BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-PWR13
UNDERWRITING AGREEMENT
September 13, 2006
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Bear Xxxxxxx Commercial Mortgage Securities Inc., a Delaware corporation
(the "Depositor"), proposes to cause the issuance of, and to sell to Bear,
Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx")
(together, the "Underwriters"), the commercial mortgage pass-through
certificates identified in Schedule I hereto (the "Certificates") pursuant to
this Underwriting Agreement, dated September 13, 2006 (this "Agreement"),
between the Depositor and the Underwriters. The Certificates will evidence
beneficial ownership interests in a trust fund (the "Trust Fund") to be formed
by the Depositor and consisting primarily of a segregated pool (the "Mortgage
Pool") of multifamily and commercial mortgage loans (the "Mortgage Loans").
Certain of the Mortgage Loans (the "Bear Xxxxxxx Mortgage Loans") will be
acquired by the Depositor from Bear Xxxxxxx Commercial Mortgage, Inc. ("BSCMI")
pursuant to the mortgage loan purchase agreement, dated September 13, 2006 (the
"BSCMI Mortgage Loan Purchase Agreement"), between BSCMI and the Depositor.
Certain of the Mortgage Loans (the "Prudential Mortgage Loans") will be acquired
by the Depositor from Prudential Mortgage Capital Funding, LLC ("PMCF") pursuant
to the mortgage loan purchase agreement, dated September 13, 2006 (the "PMCF
Mortgage Loan Purchase Agreement"), between PMCF and the Depositor. Certain of
the Mortgage Loans (the "PCF Mortgage Loans"), will be acquired by the Depositor
from Principal Commercial Funding, LLC ("PCF") pursuant to the mortgage loan
purchase agreement, dated September 13, 2006 (the "PCF Mortgage Loan Purchase
Agreement"), between the Depositor and PCF. Certain of the Mortgage Loans (the
"PCFII Mortgage Loans"), will be acquired by the Depositor from Principal
Commercial Funding II, LLC ("PCFII") pursuant to the mortgage loan purchase
agreement, dated September 13, 2006 (the "PCFII Mortgage Loan Purchase
Agreement"), between the Depositor and PCFII. Certain of the Mortgage Loans (the
"WFB Mortgage Loans"), will be acquired by the Depositor from Xxxxx Fargo Bank,
National Association ("WFB") pursuant to the mortgage loan purchase agreement,
dated September 13, 2006 (the "WFB Mortgage Loan Purchase Agreement"), between
the Depositor and WFB. Certain of the Mortgage Loans (the "Nationwide Mortgage
Loans"), will be acquired by the Depositor from Nationwide Life Insurance
Company ("Nationwide")
pursuant to the mortgage loan purchase agreement, dated September 13, 2006 (the
"Nationwide Mortgage Loan Purchase Agreement"), between the Depositor and
Nationwide. BSCMI, PMCF, PCF, PCFII, WFB and Nationwide collectively constitute
the "Mortgage Loan Sellers"; and the BSCMI Mortgage Loan Purchase Agreement, the
PMCF Mortgage Loan Purchase Agreement, the PCF Mortgage Loan Purchase Agreement,
the PCFII Mortgage Loan Purchase Agreement, the WFB Mortgage Loan Purchase
Agreement and the Nationwide Mortgage Loan Purchase Agreement collectively
constitute the "Mortgage Loan Purchase Agreements."
The Trust is to be created and the Certificates are to be issued under a
pooling and servicing agreement, dated as of September 1, 2006 (the "Pooling and
Servicing Agreement"), among the Depositor, as depositor, Prudential Asset
Resources Inc., as a master servicer, Xxxxx Fargo Bank, National Association as
a master servicer, as certificate administrator and as tax administrator, LNR
Partners, as general special servicer, and LaSalle Bank National Association, as
trustee.
Capitalized terms used herein but not otherwise defined herein shall have
the meanings set forth in the Mortgage Loan Purchase Agreements.
The Depositor has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 333-130789) on Form S-3 for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective. The
Depositor proposes to file with the Commission pursuant to Rule 424(b) under the
1933 Act a supplement to the form of prospectus included in such registration
statement relating to the Certificates and the plan of distribution thereof.
Such registration statement, including the exhibits thereto and information that
is contained in the Prospectus (as defined below) and is deemed to be part of
and included in such registration statement, as such registration statement may
have been amended or supplemented at the date of the Prospectus, is hereinafter
referred to as the "Registration Statement"; the prospectus first required to be
filed to satisfy the condition set forth in Rule 172(c) and pursuant to Rule
424(b) under the 1933 Act, is hereinafter referred to as the "Base Prospectus";
such form of supplement to the Base Prospectus relating to the Certificates, in
the form first required to be filed to satisfy the condition set forth in Rule
172(c) and pursuant to Rule 424(b) under the 1933 Act (including the Base
Prospectus as so supplemented) is hereinafter referred to as the "Prospectus
Supplement"; and the Base Prospectus and the Prospectus Supplement, together,
are hereinafter referred to as the "Prospectus".
At or prior to the time when sales to purchasers of the Certificates were
first made, which was approximately 2:40 p.m. on September 13, 2006 (the "Time
of Sale"), the Depositor had prepared the following information (collectively,
the "Time of Sale Information"): the Depositor's Free Writing Prospectus dated
August 31, 2006 (the cover page of which is attached hereto as Annex A) to the
Depositor's Prospectus dated August 31, 2006, the Depositor's Free Writing
Prospectus dated September 12, 2006 that replaces certain collateral information
set forth in the Depositor's Free Writing Prospectus dated August 31, 2006, the
Term Sheet dated August 31, 2006, relating to the Certificates, and each
"free-writing prospectus" (as defined pursuant to Rule 405 under the 1933 Act)
(a "Free Writing Prospectus") the first page of each of which is attached as
Annex B hereto. If, subsequent to the date of this Agreement, the Depositor and
the Underwriters determine that such information included an untrue statement of
material
-2-
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and terminate their old purchase contracts and enter into
new purchase contracts with investors in the Certificates, then "Time of Sale
Information" will refer to the information conveyed to purchasers at the time of
entry into the first such new purchase contract, including any information that
corrects such material misstatements or omissions ("Corrective Information") and
"Time of Sale" will refer to the time and date on which such new purchase
contracts were entered into.
(1) Representations and Warranties.
(a) The Depositor represents and warrants to the Underwriters as
follows:
(i) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending or, to the Depositor's
knowledge, threatened by the Commission; the Registration Statement as of its
effective date or deemed effective date pursuant to Rule 430B under the 1933 Act
(the "Effective Date"), and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects with the applicable requirements
of the 1933 Act and the rules and regulations thereunder (the "1933 Act
Regulations"); and the information in the Registration Statement, as of the
Effective Date, did not contain any untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and the information in the
Prospectus, as of the date of the Prospectus Supplement, did not, and as of the
Closing Date (as defined below), will not, contain an untrue statement of a
material fact and did not and will not omit to state a material fact necessary
in order to make the information therein, in the light of the circumstances
under which they were made, not misleading, provided, however, that the
Depositor makes no representations, warranties or agreements as to (A) the
information contained in the Prospectus or any revision or amendment thereof or
supplement thereto in reliance upon and in conformity with information furnished
in writing to the Depositor by any Underwriter on behalf of itself or the other
Underwriters specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto (the
"Underwriter Information"), (B) any information contained in or omitted from the
portions of the Prospectus Supplement for which the Mortgage Loan Sellers are
obligated to indemnify the Underwriters under the Indemnification Agreements,
each dated as of September 13, 2006, between the respective Mortgage Loan
Seller, the Depositor and the Underwriters (the "Mortgage Loan Seller
Information"), (C) untrue statements or omissions in the portions of the
Prospectus Supplement under the heading "Yield and Maturity Considerations" that
arise out of or are based upon untrue statements or omissions in the Mortgage
Loan Seller Information or (D) any information contained in or omitted from the
portions of the Prospectus Supplement for which one or more of the initial
Master Servicers, the initial Primary Servicers, the initial General Special
Servicer, the initial Certificate Administrator and the initial Trustee are
obligated to indemnify the Underwriters under (i) the Representation and
Indemnification Agreement, dated as of September 13, 2006, between the
Depositor, the Underwriters and Xxxxx Fargo Bank, (ii) each of the
Representation and Indemnification Agreements, both dated as of September 13,
2006, between the Depositor, the Underwriters and each of the initial Primary
Servicers, (iii) the Representation and Indemnification Agreement, dated as of
September 13, 2006, between the Depositor, the Underwriters and the initial
General Special Servicer, (iv) the Representation and
-3-
Indemnification Agreement, dated as of September 13, 2006, between the
Depositor, the Underwriters and the initial Certificate Administrator, (v) the
Representation and Indemnification Agreement, dated as of September 13, 2006,
between the Depositor, the Underwriters and the initial Trustee, and/or (vi) the
Indemnification Agreement, dated as of September 13, 2006, between the Depositor
and Prudential Asset Resources, Inc. (of which the Underwriters are third party
beneficiaries) (the "Servicer/Trustee Information"). The parties acknowledge
that the Underwriter Information consist of the first, second, third and fourth
sentences of the final paragraph of the cover page, and the second, fourth and
eighth paragraphs of the section titled "Plan of Distribution" in the
Prospectus.
(ii) The Time of Sale Information, at the Time of Sale, did not,
and at the Closing Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Depositor makes no representation and warranty
with respect to (A) any statements or omissions made in reliance upon and in
conformity with the Underwriter Information, (B) any Mortgage Loan Seller
Information contained in or omitted from such Time of Sale Information or (C)
any Servicer/Trustee Information contained in or omitted from such Time of Sale
Information. The parties acknowledge that none of the Underwriters has furnished
any Underwriter Information to the Depositor expressly for use in the Time of
Sale Information.
(iii) Other than the Prospectus, the Depositor (including its
agents and representatives other than the Underwriters in their capacity as
such) has not made, used, prepared, authorized, approved or referred to and will
not make, use, prepare, authorize, approve or refer to any "written
communication" (as defined in Rule 405 under the 0000 Xxx) that constitutes an
offer to sell or solicitation of an offer to buy the Certificates other than (i)
any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of
the 1933 Act or Rule 134 under the 1933 Act, (ii) the Time of Sale Information,
and (iii) each other written communication of the Depositor or its agents and
representatives approved by the Underwriters either in writing in advance or in
any other manner mutually agreed by the Underwriters and the Depositor (each
such communication referred to in clause (ii) and this clause (iii) constituting
an "issuer free writing prospectus", as defined in Rule 433(h) under the 1933
Act, being referred to as an "Issuer Free Writing Prospectus"). Each such Issuer
Free Writing Prospectus complied or, if used after the date hereof, will comply,
in all material respects with the 1933 Act and the rules and regulations
promulgated thereunder, has been filed or will be filed in accordance with
Section 4 (to the extent required thereby) and did not at the Time of Sale, and
at the Closing Date will not, contain any untrue statements of a material fact
or (when read in conjunction with the other Time of Sale Information) omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the Depositor makes no representation and warranty with respect to (i) any
statements or omissions made in reliance upon and in conformity with the
Underwriter Information or (ii) any Mortgage Loan Seller Information contained
in or omitted from any Issuer Free Writing Prospectus. The parties acknowledge
that none of the Underwriters has furnished any Underwriter Information to the
Depositor expressly for use in any Issuer Free Writing Prospectus.
-4-
(iv) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement.
(v) The execution, delivery and performance of this Agreement
and the Pooling and Servicing Agreement by the Depositor and the consummation of
the transactions contemplated herein and therein by the Depositor and compliance
by the Depositor with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and will not (A) contravene any
provision of the certificate of incorporation or by-laws of the Depositor or
applicable law or (B) conflict with or constitute a breach of or default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Depositor pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Depositor
is a party or by which it may be bound or to which any of the property or assets
of the Depositor is subject, which conflict, breach, default, lien, charge or
encumbrance is reasonably likely to materially and adversely affect the
Depositor's ability to perform its obligations under this Agreement or the
Pooling and Servicing Agreement.
(vi) The Certificates have been duly authorized for issuance and
sale (or will have been so authorized prior to the issuance thereof) pursuant to
this Agreement and the Pooling and Servicing Agreement. When issued,
authenticated and delivered pursuant to the provisions of this Agreement and of
the Pooling and Servicing Agreement against payment of the consideration
therefor in accordance with this Agreement, the Certificates will be duly and
validly issued and outstanding and entitled to the benefits provided by the
Pooling and Servicing Agreement, except as enforceability thereof may be limited
by the effect of (A) bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws affecting the enforcement of the rights of
creditors generally, and (B) general principles of equity, whether enforcement
is sought in a proceeding in equity or at law. The Certificates and the Pooling
and Servicing Agreement conform in all material respects to all statements
relating thereto contained in the Prospectus.
(vii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Certificates hereunder, except such as have been, or as
of the Closing Date will have been, obtained or such as may otherwise be
required under applicable state securities laws in connection with the purchase
and offer and sale of the Certificates by the Underwriters and any recordation
of the respective assignments of the Mortgage Loans to the Trustee pursuant to
the Pooling and Servicing Agreement that have not yet been completed.
(viii) This Agreement has been, and as of the Closing Date the
Pooling and Servicing Agreement will be, duly authorized, executed and delivered
by the Depositor. This Agreement constitutes, and as of the Closing Date the
Pooling and Servicing Agreement will constitute, a legal, valid and binding
agreement enforceable against the Depositor in accordance with its terms, except
as such enforceability may be limited by the effect of (A) bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
affecting the enforcement of the rights of creditors generally, (B) general
principles of equity, whether
-5-
enforcement is sought in a proceeding in equity or at law, and (C) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of this
Agreement that purport or are construed to provide indemnification from
securities law liabilities.
(ix) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) will convey to the Trustee, or cause to
be conveyed to the Trustee, all of the Depositor's right, title and interest in
and to the Mortgage Loans, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively "Liens")
granted by or imposed upon the Depositor, (B) will not have assigned to any
other person any of its right, title or interest in the Mortgage Loans or in the
Pooling and Servicing Agreement or the Certificates, and (C) will have the power
and authority to transfer or cause to be transferred its right, title and
interest in the Mortgage Loans to the Trustee and to sell the Certificates to
the Underwriters. Upon execution and delivery of the Pooling and Servicing
Agreement by the Trustee, the Trustee will have acquired ownership of all of the
Depositor's right, title and interest in and to the Mortgage Loans except to the
extent disclosed in the Prospectus, and upon delivery to the Underwriters of the
Certificates pursuant hereto, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens granted
by or imposed upon the Depositor.
(x) The Depositor is not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not cause the
Depositor or the Trust Fund to be, subject to registration or regulation as an
"investment company" under the Investment Company Act of 1940, as amended (the
"1940 Act").
(xi) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Depositor will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of the
interest in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Depositor upon the sale of the Certificates to the Underwriters
will constitute at least reasonably equivalent value and fair consideration for
the Certificates. The Depositor will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the sale of the Certificates to the
Underwriters. The Depositor is not selling the Certificates to the Underwriters
with any intent to hinder, delay or defraud any of the creditors of the
Depositor.
(xii) The Depositor has not relied on the Underwriters for any
tax, regulatory, accounting or other advice with respect to compliance with or
registration under any statute, rule or regulation of any governmental,
regulatory, administrative or other agency or authority. The Depositor
acknowledges and agrees that (i) the terms of this Agreement and the offering
(including the price of the Certificates) were negotiated at arm's length
between sophisticated parties represented by counsel; (ii) no fiduciary,
advisory or agency relationship between the Depositor and the Underwriters has
been created as a result of any of the transactions contemplated by this
Agreement, irrespective of whether any Underwriter has advised or is advising
the Depositor on other matters; (iii) the Underwriters' obligations to the
Depositor in respect of the offering, and the purchase and sale, of the
Certificates are set forth in this Agreement in their entirety; and (iv) it has
obtained such legal, tax, accounting and other advice as it deems appropriate
with respect to this Agreement and the transactions contemplated hereby
-6-
and any other activities undertaken in connection therewith, and it is not
relying on the Underwriters with respect to any such matters.
(xiii) The Trust Fund (other than those portions specified in the
Pooling and Servicing Agreement) will qualify as three separate real estate
mortgage investment conduits (each, a "REMIC") for federal income tax purposes
pursuant to Section 860D of the Internal Revenue Code of 1986, as amended (the
"Code"); the REMIC III Regular Certificates will constitute "regular interests"
in a REMIC; and the Class R Certificates will evidence the sole class of
"residual interests" in each related REMIC.
(xiv) There are no legal or governmental proceedings pending or,
to the knowledge of the Depositor, threatened to which the Depositor is a party
or to which any of the properties of the Depositor are subject that are required
to be described in the Prospectus or the Time of Sale Information or necessary
in order to make the statements therein in the light of the circumstances under
which they were made, not misleading and that are not so described, nor are
there any contracts or other documents to which the Depositor is a party or to
which the Depositor or any of the properties of the Depositor are subject that
are required to be described in the Prospectus.
(xv) At the Closing Date, the respective classes of Certificates
shall have been assigned ratings no lower than those set forth in Schedule I
hereto by the nationally recognized statistical rating organizations identified
in Schedule I hereto (the "Rating Agencies").
(xvi) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates payable by the Depositor (other than
income taxes) have been paid or will be paid at or prior to the Closing Date.
(xvii) None of the Depositor or any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes.
(xviii) The Depositor is not, and on the date on which the first
bona fide offer of the Certificates is made (within the meaning of Rule
164(h)(2) under the 0000 Xxx) will not be, an "ineligible issuer," as defined in
Rule 405 under the 0000 Xxx.
(b) Each Underwriter represents and warrants to the Depositor
that, as of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations hereunder.
(2) Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance upon
the representations and warranties herein contained, the Depositor shall sell to
the Underwriters, and each Underwriter shall, severally and not jointly,
purchase from the Depositor, at the related purchase price set forth on Schedule
I hereto, Certificates of each class thereof having an actual or notional amount
as set forth on Schedule I hereto opposite their names. There will be added
-7-
to the purchase price of the Certificates an amount equal to interest accrued
thereon pursuant to the terms thereof from September 1, 2006 to but excluding
the Closing Date.
(3) Delivery and Payment.
Payment of the aggregate purchase price for, and delivery of, the
Certificates shall be made at 10:00 a.m. New York City time on September [27],
2006, which date and time may be postponed by agreement between the Underwriters
and the Depositor (such time and date of payment and delivery, the "Closing
Date"). Payment shall be made to the Depositor by the Underwriters of the
purchase prices of the Certificates as set forth in Schedule I in immediately
available Federal funds wired to such bank as may be designated by the
Depositor, against delivery of the Certificates. Delivery of the Certificates
will be made in book-entry form through the facilities of The Depository Trust
Company ("DTC"). Each class of Certificates will be represented by one or more
definitive global Certificates to be deposited by or on behalf of the Depositor
with DTC or the Trustee. The Certificates will be made available for examination
by the Underwriters not later than 10:00 a.m. New York City time on the last
business day prior to the Closing Date. The closing of the transactions
contemplated hereby shall be made at the offices of Sidley Austin LLP, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be
agreed upon by the Underwriters and the Depositor.
(4) Offering by Underwriters; Free Writing Prospectuses.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale as set forth in the Prospectus. It is further
understood that the Depositor, in reliance upon Policy Statement
105, has not and will not file an offering statement pursuant to
Section 352-e of the General Business Law of the State of New York
with respect to the Certificates. Each Underwriter severally and not
jointly therefore agrees that sales of the Certificates made by such
Underwriter in and from the State of New York will be made only to
institutional investors within the meaning of Policy Statement 105.
(b) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors
Free Writing Prospectuses (as defined below), or portions thereof,
which the Depositor is required to file with the Commission in
electronic format and will use reasonable efforts to provide to the
Depositor such Free Writing Prospectuses, or portions thereof, in
either Microsoft Word(R) or Microsoft Excel(R) format and not in a
PDF, except to the extent that the Depositor, in its sole
discretion, waives such requirements, subject to the following
conditions (to which such conditions each Underwriter agrees
(provided that no Underwriter shall be responsible for any breach of
the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus,
the Underwriters shall not convey or deliver any written communication to any
person in connection with the initial offering of the Certificates, unless such
written communication (1) is made in reliance on Rule 134 under the 1933 Act,
(2) constitutes a prospectus satisfying the requirements of Rule 430B under the
1933 Act or (3) constitutes Time of Sale Information or a Free Writing
-8-
Prospectus that does not constitute Time of Sale Information. The Underwriters
shall not convey or deliver in connection with the initial offering of the
Certificates any "ABS informational and computational material," as defined in
Item 1101(a) of Regulation AB under the 1933 Act ("ABS Informational and
Computational Material"), in reliance upon Rules 167 and 426 under the 1933 Act.
(ii) Each Underwriter shall deliver to the Depositor, no
later than two business days prior to the date of first use thereof or such
later date as may be agreed to by the Depositor, (a) any Free Writing Prospectus
that was prepared by or on behalf of such Underwriter (an "Underwriter Free
Writing Prospectus") and that contains any "issuer information," as defined in
Rule 433(h) under the 1933 Act and footnote 271 of the Commission's Securities
Offering Reform Release No. 33-8591 ("Issuer Information") (which the parties
hereto agree includes, without limitation, Mortgage Loan Seller Information),
and (b) any Free Writing Prospectus or portion thereof prepared by or on behalf
of such Underwriter that contains only a description of the final terms of the
Certificates. Notwithstanding the foregoing, any Free Writing Prospectus that
contains only ABS Informational and Computational Materials may be delivered by
an Underwriter to the Depositor not later than the later of (A) two business
days prior to the due date for filing of the Prospectus pursuant to Rule 424(b)
under the 1933 Act or such later date as may be agreed to by the Depositor or
(B) the date of first use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the
Depositor that the Free Writing Prospectuses to be furnished to the Depositor by
such Underwriter pursuant to Section 4(b)(ii) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to prospective
investors by such Underwriter in connection with its offer and sale of the
Certificates.
(iv) Each Underwriter represents and warrants to the
Depositor that each Free Writing Prospectus required to be provided by it to the
Depositor pursuant to Section 4(b)(ii) did not, as of the Time of Sale, and will
not as of the Closing Date, include any untrue statement of a material fact or
omit any material fact necessary to make the statements contained therein (when
read in conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading; provided, however,
that such Underwriter makes no representation to the extent such misstatements
or omissions were the result of any inaccurate Issuer Information, which
information was not corrected by Corrective Information subsequently supplied by
the Depositor or any Mortgage Loan Seller to such Underwriter within a
reasonable period of time prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission the
following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof
delivered by any Underwriter to the Depositor pursuant to Section
4(b)(ii); and
(C) Any Free Writing Prospectus for which the
Depositor or any person acting on its behalf provided, authorized or
approved information that
-9-
is prepared and published or disseminated by a person unaffiliated
with the Depositor or any other offering participant that is in the
business of publishing, radio or television broadcasting or
otherwise disseminating communications.
Notwithstanding the foregoing, the Depositor shall not be required
to file (1) Issuer Information contained in any Underwriter Free
Writing Prospectus or Free Writing Prospectus of any other offering
participant other than the Depositor, if such information is
included or incorporated by reference in a prospectus or Free
Writing Prospectus previously filed with the Commission that relates
to the offering of the Certificates, or (2) any Free Writing
Prospectus or portion thereof that contains a description of the
Certificates or the offering of the Certificates which does not
reflect the final terms thereof.
(vi) Any Free Writing Prospectus required to be filed
pursuant to Section 4(b)(v) by the Depositor shall be filed with the Commission
not later than the date of first use of the Free Writing Prospectus, except
that:
(A) Any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the final
terms of the Certificates shall be filed by the Depositor with the
Commission within two days of the later of the date such final terms
have been established for all classes of Certificates and the date
of first use;
(B) Any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and
Computational Material shall be filed by the Depositor with the
Commission not later than the later of the due date for filing the
final Prospectus relating to the Certificates pursuant to Rule
424(b) under the 1933 Act or two business days after the first use
of such Free Writing Prospectus; and
(C) Any Free Writing Prospectus required to be
filed pursuant to Section 4(b)(v)(C) shall, if no payment has been
made or consideration has been given by or on behalf of the
Depositor for the Free Writing Prospectus or its dissemination, be
filed by the Depositor with the Commission not later than four
business days after the Depositor becomes aware of the publication,
radio or television broadcast or other dissemination of the Free
Writing Prospectus.
(vii) Each Underwriter shall file with the Commission any
Free Writing Prospectus that is used or referred to by it and distributed by or
on behalf of such Underwriter in a manner reasonably designed to lead to its
broad, unrestricted dissemination not later than the date of the first use of
such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 4(b)(vii),
each Underwriter shall file with the Commission any Free Writing Prospectus for
which such Underwriter or any person acting on its behalf provided, authorized
or approved information that is prepared and published or disseminated by a
person unaffiliated with the Depositor or any other offering participant that is
in the business of publishing, radio or television broadcasting or
-10-
otherwise disseminating written communications and for which no payment was made
or consideration given by or on behalf of the Depositor or any other offering
participant, not later than four business days after such Underwriter becomes
aware of the publication, radio or television broadcast or other dissemination
of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 4(b)(v)
and 4(b)(vii), neither the Depositor nor any Underwriter shall be required to
file any Free Writing Prospectus that does not contain substantive changes from
or additions to a Free Writing Prospectus previously filed with the Commission,
and neither Underwriter shall be required to file any Free Writing Prospectus to
the extent that the information contained therein is included in a prospectus or
Free Writing Prospectus previously filed that relates to the offering of the
Certificates.
(x) The Depositor and the Underwriters each agree that
any Free Writing Prospectuses prepared by it shall contain the following legend,
or substantially equivalent legend that complies with Rule 433 of the Act:
The depositor has filed a registration statement (including
a prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read
the prospectus in that registration statement and other
documents the depositor has filed with the SEC for more
complete information about the depositor, the issuing trust,
and this offering. You may get these documents for free by
visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the depositor, any underwriter or any dealer
participating in the offering will arrange to send you the
prospectus if you request it by calling toll-free
0-000-000-0000.
(xi) The Depositor and each Underwriter agree to retain
all Free Writing Prospectuses that they have used and that are not required to
be filed pursuant to this Section 4 for a period of three years following the
initial bona fide offering of the Certificates.
(xii) (A) In the event that the Depositor becomes aware
that, as of the Time of Sale, any Issuer Free Writing Prospectus
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained
therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were
made, not misleading (a "Defective Issuer Free Writing Prospectus"),
the Depositor shall notify the Underwriters of such untrue statement
or omission within one business day after discovery and the
Depositor shall, if requested by the Underwriters, prepare and
deliver to the Underwriters a Free Writing Prospectus that corrects
the material misstatement or omission in the Defective Issuer Free
Writing Prospectus (such corrected Issuer Free Writing Prospectus, a
"Corrected Issuer Free Writing Prospectus").
(B) In the event that any Underwriter becomes
aware that, as of the Time of Sale, any Underwriter Free Writing
Prospectus delivered to an investor in any Certificates contained
any untrue statement of a material fact or
-11-
omitted to state a material fact necessary in order to make the
statements contained therein (when read in conjunction with the Time
of Sale Information), in light of the circumstances under which they
were made, not misleading (together with a Defective Issuer Free
Writing Prospectus, a "Defective Free Writing Prospectus"), such
Underwriter shall notify the Depositor of such untrue statement or
omission within one business day after discovery.
(C) The Underwriters shall, if requested by the
Depositor:
(1) if the Defective Free Writing Prospectus
was an Underwriter Free Writing Prospectus, prepare a Free
Writing Prospectus that corrects the material misstatement
in or omission from the Defective Free Writing Prospectus
(together with a Corrected Issuer Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(2) deliver the Corrected Free Writing
Prospectus to each investor which received the Defective
Free Writing Prospectus prior to entering into a contract of
sale with such investor;
(3) notify such investor in a prominent
fashion that the prior contract of sale with the investor
has been terminated, and of the investor's rights as a
result of termination of such agreement;
(4) provide such investor with an
opportunity to affirmatively agree to purchase the
Certificates on the terms described in the Corrected Free
Writing Prospectus; and
(5) comply with any other requirements for
reformation of the original contract of sale with such
investor, as described in Section IV.A.2.c of Commission's
Securities Offering Reform Release No. 33-8591.
(D) In the event that the Defective Free Writing
Prospectus was an Issuer Free Writing Prospectus, and the
Underwriters shall in good faith incur any costs to an
investor in connection with the reformation of the contract
of sale with the investor, the Depositor agrees to reimburse
the Underwriters for such costs; provided that, before
incurring such costs, the Underwriters first permits the
Depositor access to the applicable investor and an
opportunity to attempt to mitigate such costs through direct
negotiation with such investor.
(xiii) Each Underwriter covenants with the Depositor that after the
Prospectus is available such Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless such
information is preceded or accompanied by the Prospectus.
(c) Each Underwriter further represents and warrants that (1) it
has only communicated or caused to be communicated and will only
communicate or
-12-
cause to be communicated an invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the
Financial Services and Markets Act 2000 (the "FSMA")) received by it
in connection with the issue or sale of Certificates in
circumstances in which Section 21(1) of the FSMA does not apply to
the issuer, (2) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to Certificates in, from or otherwise involving the United
Kingdom and (3) it has offered and sold Certificates only to, or
directed at, persons who:
(i) are outside the United Kingdom;
(ii) have professional experience in participating in
unregulated collective investment schemes; or
(iii) are persons falling within Articles 49(2)(A) through
(D) or 19 of the FSMA (Financial Promotion) Order 2005.
(5) Covenants of the Depositor.
The Depositor covenants with each Underwriter as follows:
(a) The Depositor will give each of the Underwriters notice of
its intention to prepare, use, authorize, approve, refer to or file
any Issuer Free Writing Prospectus or to file or prepare (i) any
amendment to the Registration Statement at any time prior to the
Closing Date or (ii) any amendment or supplement to the Prospectus
(including any revised prospectus that the Depositor proposes for
use by the Underwriters in connection with the offering of the
Certificates and that differs from the prospectus on file at the
Commission at the time the Registration Statement became effective,
whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations) at any time
during the period when a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, and the Depositor will
furnish the Underwriters with copies of any such Issuer Free Writing
Prospectus, amendment or supplement a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will
not prepare, use, authorize, approve, refer to or file any such
Issuer Free Writing Prospectus or file any such amendment or
supplement or use any such prospectus to which the Underwriters
shall reasonably object.
(b) The Depositor will promptly give each Underwriter notice of
(i) any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional
information relating to the Certificates, (ii) any written
notification received by the Depositor of suspension of
qualification of the Certificates for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose and
(iii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution
or, to the knowledge of the Depositor, threatening any proceeding
for that purpose. The Depositor will use its best efforts to prevent
the issuance of any
-13-
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(c) The Depositor will cause the Prospectus to be transmitted to
the Commission for filing pursuant to Rule 424(b) under the 1933 Act
by means reasonably calculated to result in filing with the
Commission pursuant to said rule. Subject to Section 4, the
Depositor will cause each Issuer Free Writing Prospectus to be
transmitted for filing pursuant to Rule 433 under the 1933 Act by
means reasonably calculated to result in filing with the Commission
pursuant to said rule.
(d) The Depositor will furnish to each Underwriter, from time to
time during the period when a prospectus relating to the
Certificates is required to be delivered under the 1933 Act, such
number of copies of the Prospectus and each Free Writing Prospectus
(as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the
Securities Exchange Act of 1934, as amended (the "1934 Act") or the
respective applicable rules and regulations of the Commission
thereunder.
(e) If, during the period after the first date of the public
offering of the Certificates in which a prospectus relating to the
Certificates is required to be delivered under the 1933 Act, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it
is delivered to an investor in the Certificates, if the Depositor
has actual knowledge of the event, and if the event is not otherwise
disclosed in a filing to the Registration Statement pursuant to
Section 13 or 15(d) of the 1934 Act, the Depositor will forthwith
amend or supplement the Prospectus so that, as so amended or
supplemented, the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading,
and the Depositor will furnish to each Underwriter a reasonable
number of copies of such amendment or supplement.
(f) The Depositor will endeavor to arrange for the qualification
of the Certificates for sale under the applicable securities laws of
such states and other jurisdictions of the United States as the
Underwriters may reasonably designate and will maintain such
qualification in effect so long as required for the initial
distribution of Certificates; provided, however, that the Depositor
shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a general
consent to service of process in any jurisdiction.
(g) The Depositor will use the net proceeds received by it from
the sale of the Certificates in the manner specified in the
Prospectus under "Use of Proceeds".
(h) Whether or not the transactions contemplated by this
Agreement are consummated, the Depositor will pay or cause to be
paid all expenses incident to
-14-
the performance of the obligations of the Depositor under this
Agreement, including, without limitation, (i) the fees,
disbursements and expenses of the Depositor's counsel and
accountants in connection with the purchase of the Mortgage Loans
and the issuance and sale of the Certificates, (ii) all fees and
expenses incurred in connection with the registration and delivery
of the Certificates under the 1933 Act, and all other fees or
expenses in connection with the preparation and filing of the
Registration Statement, the Time of Sale Information, any Issuer
Free Writing Prospectus, the Prospectus and amendments and
supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities specified
above, (iii) all costs and expenses related to the transfer and
delivery of the Certificates to the Underwriters, including any
transfer or other taxes payable thereon, (iv) the costs of printing
or producing any "blue sky" memorandum in connection with the offer
and sale of the Certificates under state securities laws and all
expenses in connection with the qualification of the Certificates
for the offer and sale under state securities laws as provided in
Section 5(f), including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the "blue sky" memorandum,
(v) the cost of printing the Certificates, (vi) the upfront costs
and charges of any transfer agent, registrar or depository, (vii)
the fees and expenses of the rating agencies incurred in connection
with the issuance and sale of the Certificates and (viii) all other
costs and expenses incident to the performance of the obligations of
the Depositor hereunder for which provision is not otherwise made in
this Section. Except as herein provided, the Underwriters shall be
responsible for the payment of all costs and expenses incurred by
them, including, without limitation, (i) the fees and disbursements
of counsel of the Underwriters and (ii) such additional costs
arising out of any Free Writing Prospectuses prepared by or on
behalf of the Underwriters and the filing of such materials, if
required, with the Commission.
(i) The Depositor shall obtain a letter from Deloitte & Touche
LLP, certified public accountants, satisfactory in form and
substance to the Depositor and the Underwriters, to the effect that
such accountants have performed certain specified procedures, all of
which have been agreed to by the Depositor and the Underwriters, as
a result of which they have determined that the information included
in the Time of Sale Information that the accountants have examined
in accordance with such agreed upon procedures, is accurate except
as to such matters that are not deemed by the Depositor or the
Underwriters to be material.
(6) Conditions of Underwriters' Obligations.
Each Underwriter's obligation to purchase the Certificates allocated to it
as set forth on Schedule I hereto shall be subject to the accuracy in all
material respects of the representations and warranties on the part of the
Depositor contained herein as of the date hereof and as of the Closing Date, to
the performance by the Depositor in all material respects of its obligations
hereunder and to the following conditions:
-15-
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for
that purpose shall be pending or, to the Depositor's knowledge,
threatened by the Commission and the Prospectus Supplement and each
Free Writing Prospectus required to be filed by the Depositor
pursuant to Section 4(b) shall have been filed or transmitted for
filing by means reasonably calculated to result in a filing with the
Commission pursuant to Rule 424(b) under the 1933 Act or Rule 433
under the 1933 Act, as applicable.
(b) On the Closing Date, such Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of
counsel to the Depositor, in form and substance satisfactory to such
Underwriter, substantially to the effect that:
(A) The Depositor is a corporation in good
standing under the laws of the State of Delaware.
(B) The Depositor has corporate power and
authority to enter into and perform its obligations under this
Agreement and the Pooling and Servicing Agreement.
(C) Each of this Agreement and the Pooling and
Servicing Agreement has been duly authorized, executed and delivered
by the Depositor. Upon due authorization, execution and delivery by
the other parties thereto, the Pooling and Servicing Agreement will
constitute a valid, legal and binding agreement of the Depositor,
enforceable against the Depositor in accordance with its terms,
except as enforceability may be limited by (1) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the enforcement of the rights of
creditors generally, (2) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law and (3)
such other exceptions as are reasonably acceptable to the
Underwriters.
(D) The Certificates, when duly and validly
executed, authenticated and delivered in accordance with the Pooling
and Servicing Agreement and paid for in accordance with this
Agreement, will be entitled to the benefits of the Pooling and
Servicing Agreement.
(E) The Registration Statement was declared
effective under the 1933 Act and, to the best of such counsel's
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued under
the 1933 Act and not withdrawn, and no proceedings for that purpose
have been initiated or threatened by the Commission.
(F) At the time it became effective, the
Registration Statement (other than any financial or statistical
information included or incorporated by reference therein, as to
which no opinion need be rendered) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
-16-
(G) To such counsel's knowledge and information,
there are no material contracts, indentures, or other documents of
the Depositor required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto.
(H) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended, and the issuance and sale of the Certificates in the manner
contemplated by the Prospectus will not cause the Trust Fund to be
subject to registration or regulation as an "investment company"
under the Investment Company Act of 1940, as amended.
(I) No consent, approval, authorization, or order
of any State of New York or federal court or governmental agency or
body is required for the consummation by the Depositor of the
transactions contemplated herein, except (1) such as have been
obtained, (2) such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and sale of the
Certificates by the Underwriters, as to which no opinion need be
expressed and (3) any recordation of the assignments of the Mortgage
Loans to the Trustee pursuant to the Pooling and Servicing Agreement
that has not yet been completed.
(J) Neither the sale of the Certificates to the
Underwriters pursuant to this Agreement, nor the consummation by the
Depositor of any other of the transactions contemplated by, or the
fulfillment by the Depositor of the terms of, this Agreement or the
Pooling and Servicing Agreement, will conflict with or result in a
breach or violation of any term or provision of, or constitute a
default (or an event which with the passing of time or notification
or both, would constitute a default) under, (1) the certificate of
incorporation or by-laws of the Depositor, or, (2) to the knowledge
of such counsel, any material indenture, agreement or instrument to
which the Depositor is a party or by which it is bound, or, (3) any
State of New York or federal statute or regulation applicable to the
Depositor, or, (4) to the knowledge of such counsel, any order of
any New York or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Depositor
except, in the case of either (2) or (4), for any conflict, breach,
violation or default that, in the judgment of such counsel, is not
reasonably likely to materially and adversely affect the Depositor's
ability to perform its obligations under this Agreement or the
Pooling and Servicing Agreement.
(ii) An opinion, dated the Closing Date, of counsel to
the Underwriters, reasonably acceptable to the Underwriters.
(iii) In giving their opinions required by the foregoing
subsections (i) and (ii) of this Section, counsel to the Depositor
and the Underwriters, respectively, shall in each case additionally
state that nothing has come to such counsel's attention that has
caused it to believe that (i), in the case of counsel to the
Depositor, the Registration Statement, the Prospectus or the Time of
Sale
-17-
Information, and (ii) in the case of counsel to the Underwriters,
the Prospectus or the Time of Sale Information (in each case other
than any financial statements and supporting schedules and
statistical and/or accounting information included therein, as to
which no statement need be made), in the case of the Registration
Statement, as of the time it became effective, in the case of the
Prospectus, as of the date thereof or as of the Closing Date, and as
of the Time of Sale, in the case of the Time of Sale Information,
contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Such statement shall be based upon conferences and
telephone conversations with representatives of the parties hereto,
the Mortgage Loan Sellers, the Master Servicers, the Special
Servicers, the Certificate Administrator, the Tax Administrator and
the Trustee and such statement may be qualified that, with limited
exception, such counsel will not have reviewed any loan documents.
Such opinion(s) may express its (their) reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion(s) may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the party on behalf of which such
opinion is being rendered. Such opinion(s) may be qualified as an opinion only
on the General Corporation Law of the State of Delaware, the laws of the State
of New York and the federal law of the United States.
(c) On the Closing Date, each Underwriter shall have received a
favorable opinion, dated the Closing Date, of special tax and ERISA
counsel to the Depositor (i) regarding the qualification of each of
REMIC I, REMIC II and REMIC III as a real estate mortgage investment
conduit within the meaning of Sections 860A through 860G of the
Internal Revenue Code of 1986 and (ii) to the effect that the
statements in the Base Prospectus and the Prospectus Supplement
under the headings "Federal Income Tax Consequences" and "ERISA
Considerations", to the extent that they constitute matters of
federal law or legal conclusions with respect thereto, while not
purporting to discuss all possible consequences of investment in the
Certificates, are correct in all material respects with respect to
those consequences or matters that are discussed therein. Such
opinion(s) may express its (their) reliance as to factual matters on
the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized
representatives of, the parties to this Agreement and the Pooling
and Servicing Agreement and on certificates furnished by public
officials. Such opinion(s) may assume the due authorization,
execution and delivery of the instruments and documents referred to
therein by the parties thereto. Such opinion(s) may be qualified as
an opinion only on the federal tax and ERISA law of the United
States.
-18-
(d) The Depositor shall have delivered to each Underwriter a
certificate, dated the Closing Date, and signed by the President, a
Senior Vice President or a Vice President of the Depositor, to the
effect that:
(i) the representations and warranties of the Depositor
in this Agreement and the Pooling and Servicing Agreement are true and correct
in all material respects; and
(ii) the Depositor has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date.
(e) Each Mortgage Loan Seller shall have delivered to each
Underwriter a certificate, dated the Closing Date, and signed by the
President, a Senior Vice President or a Vice President of the
Mortgage Loan Seller to the effect that:
(i) the representations and warranties of the Mortgage
Loan Seller in Section 4(a) of the respective Mortgage Loan Purchase Agreement
are true and correct in all material respects;
(ii) the Mortgage Loan Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied under the respective Mortgage Loan
Purchase Agreement at or prior to the Closing Date;
(iii) since the date of this Agreement and prior to the
sale of the Mortgage Loans under the Agreement, there has been no material
adverse change in the financial condition of the Mortgage Loan Seller.
(f) The Depositor and each Underwriter shall have received from
Deloitte & Touche LLP, certified public accountants, a letter dated
the Closing Date, in form and substance satisfactory to such
Underwriter, stating in effect that:
(i) they have performed certain specified procedures as
a result of which they have determined that certain information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement agrees with the data sheet or computer tape prepared by or on behalf
of each Mortgage Loan Seller, unless otherwise noted in such letter; and
(ii) they have compared the data contained in the data
sheet or computer tape referred to in the immediately preceding clause (i) to
information contained in the Mortgage Files and in such other sources as shall
be specified by them, and found such data and information to be in agreement,
unless otherwise noted in such letter.
(g) The Depositor shall have received the accountant's letters
specified in Section 5(i).
(h) Each Underwriter shall have received, with respect to each
of the Master Servicers, the Special Servicers, the Certificate
Administrator, the Tax
-19-
Administrator and the Trustee, a favorable opinion of counsel, dated
the Closing Date, addressing the valid existence of such party under
the laws of the jurisdiction of its organization, the due
authorization, execution and delivery of the Pooling and Servicing
Agreement by such party and, subject to the same limitations as set
forth in Section 6(b)(i)(C), the enforceability of the Pooling and
Servicing Agreement against such party and such other opinions as
shall be reasonably requested by such Underwriter. Such opinion may
express its reliance as to factual matters on representations and
warranties made by, and on certificates or other documents furnished
by, officers and/or authorized representatives of parties to, the
Pooling and Servicing Agreement and on certificates furnished by
public officials. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents referred to
therein by the parties thereto other than the party on behalf of
which such opinion is being rendered.
(i) Subsequent to the date hereof, there shall not have occurred
any change, or any development involving a prospective change, in or
affecting the business or properties of the Depositor or a Mortgage
Loan Seller (including any of the Mortgage Loans) which such
Underwriter concludes, in the reasonable judgment of such
Underwriter, materially impairs the investment quality of the
Certificates so as to make it impractical or inadvisable to proceed
with the public offering or the delivery of the Certificates as
contemplated by the Time of Sale Information (excluding the
Corrective Information) and the Prospectus.
(j) The Certificates shall have been assigned ratings by the
Rating Agencies (as defined in the Pooling and Servicing Agreement)
no less than those set forth on Schedule I and such ratings shall
not have been withdrawn, suspended or qualified.
(k) The Underwriters shall have received copies of any opinions
of counsel to the Depositor supplied to the Rating Agencies relating
to certain matters with respect to the Certificates. Any such
opinions shall be dated the Closing Date and addressed to the
Underwriters or accompanied by reliance letters addressed to the
Underwriters.
(l) The Depositor shall have furnished to the Underwriters such
further opinions, information, certificates and documents as the
Underwriters may reasonably have requested, and all proceedings in
connection with the transactions contemplated by this Agreement and
all documents incident hereto shall be in all material respects
reasonably satisfactory in form and substance to the Underwriters
and their counsel.
(7) Indemnification.
(a) The Depositor shall indemnify and hold harmless each
Underwriter (severally and not jointly), its directors and officers
and each person, if any, who controls such Underwriter within the
meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act, from and against any and all expenses, losses,
-20-
claims, damages and other liabilities (including without limitation
the reasonable costs of investigation and legal defense) (the
"Liabilities") caused by (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration
Statement or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, not misleading, or any untrue statement or
alleged untrue statement of any material fact contained in the
Prospectus or any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
(ii) any untrue statement or alleged untrue statement of a material
fact contained in any Issuer Free Writing Prospectus or any Issuer
Information contained in any Underwriter Free Writing Prospectus, or
the omission or alleged omission to state a material fact necessary
to make the statements therein (when read in conjunction with the
other Time of Sale Information), in light of the circumstances under
which they were made, not misleading, which was not corrected by
Corrective Information subsequently supplied by the Depositor or any
Mortgage Loan Seller to any Underwriter within a reasonable period
of time prior to the Time of Sale, or (iii) any breach of the
representation and warranty in Section 1(a)(R); provided, however,
that, in the case of clauses (i) and (ii) above, the Depositor shall
have no obligation to so indemnify and hold harmless insofar as the
Liabilities arise from or are based upon (A) any such untrue
statement or omission or alleged untrue statement or omission with
respect to any information in the Prospectus as to which any
Underwriter has agreed to indemnify the Depositor pursuant to
Section 7(b), (B) an untrue statement or omission or an alleged
untrue statement or omission with respect to the Mortgage Loan
Seller Information (including without limitation untrue statements
or alleged untrue statements or omissions or alleged untrue
omissions in the portions of the Prospectus Supplement under the
heading "Yield and Maturity Considerations" that arise out of or are
based upon untrue statements or alleged untrue statements or
omissions or alleged omissions in the Mortgage Loan Seller
Information) or (C) an untrue statement or omission or an alleged
untrue statement or omission with respect to the Servicer/Trustee
Information.
(b) Each Underwriter shall, severally and not jointly, indemnify
and hold harmless the Depositor, its directors and its officers who
signed the Registration Statement and each person, if any, who
controls the Depositor within the meaning of either Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all
Liabilities as incurred, but only with respect to Liabilities caused
by any (i) untrue statements or alleged untrue statements of a
material fact in the Underwriter Information and (ii) untrue
statements or alleged untrue statements of a material fact in any
Underwriter Free Writing Prospectus prepared by or on behalf of such
Underwriter or omission or alleged omission to state in such
Underwriter Free Writing Prospectus a material fact necessary in
order to make the statements therein (when read in conjunction with
the Time of Sale Information), in the light of the circumstances
under which they were made, not misleading; provided that no
Underwriter shall be obligated to so indemnify and hold harmless (A)
to the extent such Liabilities are caused by a misstatement or
-21-
omission resulting from an error or omission in the Issuer
Information which was not corrected by Corrective Information
subsequently supplied by the Depositor or any Mortgage Loan Seller
to any Underwriter within a reasonable period of time prior to the
Time of Sale or (B) with respect to information that is also
contained in the Time of Sale Information.
(c) Each indemnified party shall give notice in writing as
promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability which
it may have otherwise than under subsection (a) or (b) of this
Section 7. Upon request of the indemnified party, the indemnifying
party shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others
the indemnifying party may designate in such proceeding and shall
pay the fees and disbursements of such counsel related to such
proceeding as incurred. If any action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party may participate at its
own expense in the defense of any such action. The indemnifying
party may elect to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from the indemnified party. In any such proceeding,
any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have agreed to the retention of such
counsel, (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them or (iii) the indemnifying party shall have
failed to designate within a reasonable period of time counsel
reasonably satisfactory to the indemnified party (in which case the
fees and expenses shall be paid as incurred by the indemnifying
party). In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. An indemnifying party shall not be
liable for any settlement of any proceeding effected without its
written consent. However, if settled with such consent or if there
be a final judgment for the plaintiff, the indemnifying party shall
indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel for which the indemnifying
party is obligated under this subsection, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party
shall
-22-
not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. If an indemnifying
party assumes the defense of any proceeding, it shall be entitled to
settle such proceeding with the consent of the indemnified party or,
if such settlement provides for an unconditional release of the
indemnified party in connection with all matters relating to the
proceeding that have been asserted against the indemnified party in
such proceeding by the other parties to such settlement and does not
include an admission of fault, culpability or failure to act by or
on behalf of an indemnified party, without the consent of the
indemnified party.
(d) If the indemnification provided for in this Section 7 is due
in accordance with its terms but is for any reason unavailable to an
indemnified party, or is insufficient to hold harmless an
indemnified party, in respect of any losses, claims, damages or
liabilities under subsection (a) or (b) on grounds of public policy
or otherwise, then the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Depositor on the one hand and the applicable Underwriter on the
other from the offer and sale of the Certificates pursuant hereto or
(ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but
also the relative fault of the Depositor on the one hand and of such
Underwriter on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or other
liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Depositor on the one hand, and
such Underwriter on the other, in connection with the offering of
the Certificates underwritten by such Underwriter shall be deemed to
be in the same respective proportions that the total proceeds from
the sale of the Certificates underwritten by such Underwriter
(before deducting expenses) received by the Depositor and the amount
by which (i) the total price received by such Underwriter with
respect to the initial resale to investors in the Certificates
acquired by such Underwriter exceeds (ii) the total underwriting
discounts and commissions received by such Underwriter (or, if no
such Underwriter discounts and commissions are payable hereunder,
the amount of the other fees payable to such Underwriter in
connection with the offering of the Certificates), bear to the
aggregate offering price of the Certificates. The relative fault of
the Depositor on the one hand and of such Underwriter on the other
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Depositor or by such Underwriter, and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The parties hereto agree that it would not be just and
equitable if contribution were determined by pro rata allocation or
by any other method of allocation that does not take account of the
considerations referred to in
-23-
subsection (d) above. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or other
liabilities referred to in this Section 7 shall be deemed to include
any legal fees and disbursements or other expenses reasonably
incurred by such indemnified party in connection with investigating
or defending any such claim. In the event that any expenses so paid
by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the party
which received such payment shall promptly refund the amount so paid
to the party which made such payment. Notwithstanding the provisions
of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which (i) the total
underwriting discounts and commissions and other fees received by
such Underwriter in connection with the offering of the Certificates
exceeds (ii) the amount of damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by the Depositor, an Underwriter, any of their
respective directors or officers, or any person controlling the
Depositor or such Underwriter within the meaning of either Section
15 of the 1933 Act or Section 20 of the 1934 Act, and (iii)
acceptance of and payment for any of the Certificates.
(g) The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the
respective amount of Certificates they have purchased hereunder, and
not joint.
(h) Each Underwriter (the "Indemnifying Underwriter") will
indemnify and hold harmless the other Underwriters and each person,
if any, who controls such Underwriter within the meaning of either
the 1933 Act or the 1934 Act (the "Non-Indemnifying Underwriter")
from and against any and all losses, claims, damages or liabilities,
joint or several, to which the Non-Indemnifying Underwriter becomes
subject under the 1933 Act, the 1934 Act or other federal or state
statutory law or regulation, common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact or the omission or
alleged omission (when read in conjunction with the Time of Sale
Information) to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they were
made, not misleading at the Time of Sale, contained in any
Underwriter Free Writing Prospectus prepared by, or on behalf of, or
used or referred to by, such Indemnifying Underwriter or (ii) the
failure of such Indemnifying Underwriter, or
-24-
any member of its selling group, to comply with any provision of
Section 4(b) or 9, and agrees to reimburse such Non-Indemnifying
Underwriter, as incurred for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action, except to the extent
such losses, claims, damages or liabilities are caused by a
misstatement or omission resulting from an error or omission in the
Issuer Information which was not corrected by Corrective Information
subsequently supplied by the Depositor or any Mortgage Loan Seller
to any Underwriter within a reasonable period of time prior to the
Time of Sale. This agreement will be in addition to any liability
that any Underwriter may otherwise have.
(8) Representations and Warranties to Survive Delivery.
All representations and warranties of the Depositor contained in this
Agreement shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
in respect of such Underwriter, and shall survive delivery of the Certificates
to the Underwriters.
(9) Defaulting Underwriter.
If, on the Closing Date, any of the Underwriters shall fail or refuse to
purchase Certificates that it has agreed to purchase hereunder on such date, and
the aggregate principal amount of Certificates which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of Certificates to be purchased on such date, the
other Underwriter shall be obligated to purchase the Certificates which such
defaulting Underwriter agreed but failed or refused to purchase on such date;
provided that in no event shall the principal amount of Certificates that any
Underwriter has agreed to purchase pursuant to Section 3 be increased pursuant
to this Section 9 by an amount in excess of one-ninth of such principal amount
of Certificates, without the written consent of such Underwriter, and provided,
further that no Underwriter shall be obligated under this Section 9 to purchase
Certificates of a Class that it is not otherwise obligated to purchase under
this Agreement.
If, on the Closing Date, one of the Underwriters shall fail or refuse to
purchase Certificates that it has agreed to purchase hereunder on such date and
the aggregate principal amount of Certificates with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Certificates to be purchased on such date and arrangements satisfactory to the
non-defaulting Underwriter and the Depositor for the purchase of such
Certificates are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or of the Depositor. In any such case either such non-defaulting Underwriter or
the Depositor shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
-25-
(10) Termination of Agreement.
(a) Any Underwriter may terminate its obligations under this
Agreement, by notice to the Depositor, at any time at or prior to
the Closing Date if the sale of the Certificates provided for herein
is not consummated because of any failure or refusal on the part of
the Depositor to comply in all material respects with the terms, or
to fulfill in all material respects any of the conditions of, this
Agreement, or if for any reason the Depositor shall be unable to
perform in all material respects its obligations under this
Agreement.
(b) Any Underwriter may terminate its obligations under this
Agreement in the absolute discretion of such Underwriter, by notice
given to the Depositor, if (A) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by, as the
case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange
or the Chicago Board of Trade, (ii) trading of any securities of the
Depositor or its affiliates shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have
been declared by either Federal or State of New York authorities, or
(iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or
crisis, or any major disruption of settlement or clearance of
securities in the United States, that, in the judgment of such
Underwriter, is material and adverse and (B) in the case of any of
the events specified in clauses (A)(i) through (iv) above, such
event singly or together with any other such event, makes it, in the
judgment of such Underwriter, impracticable to market the
Certificates on the terms and in the manner contemplated in the Time
of Sale Information and the Prospectus.
(c) If any Underwriter terminates its obligations under this
Agreement in accordance with Section 10(a), the Depositor shall
reimburse such Underwriter for all reasonable out-of pocket expenses
(including reasonable fees and disbursements of counsel) that shall
have been reasonably incurred by such Underwriter in connection with
the proposed purchase and sale of the Certificates.
(11) Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed duly given if sent by facsimile or delivered by courier, in
either case with appropriate confirmation of receipt. Notices to the Depositor
shall be directed to Bear Xxxxxxx Commercial Mortgage Securities Inc., 000
Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxxxxxxxx, Managing Director (with a copy to the attention of Xxxxxx X.
Xxxxxxxxx, Xx., Managing Director, Legal Department); to Bear, Xxxxxxx & Co.
Inc., shall be directed to Bear, Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing
Director, Commercial Mortgage Department (with a copy to the attention of Xxxxxx
X. Xxxxxxxxx, Xx., Managing Director, Legal Department);
-26-
to Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Friend (with a copy to Xxxxxx Xxxxxxx & Co. Incorporated,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel); and as to
any party, to such other address as may hereafter be furnished by such party to
the others in writing.
(12) Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Depositor and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person or entity, other than the Underwriters and the Depositor and
their respective successors and the controlling persons and officers and
directors referred to in Section 7 and their respective successors, heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Depositor and their respective
successors, and said controlling persons and officers and directors and their
respective successors, heirs and legal representatives, and for the benefit of
no other person or entity. No purchaser of Certificates from the Underwriters
shall be deemed to be a successor by reason merely of such purchase.
(13) Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State.
(14) Miscellaneous.
This Agreement supersedes all prior or contemporaneous agreements and
understandings between the parties hereto relating to the subject matter hereof.
Neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated except by a writing signed by the party against whom enforcement of
such amendment, waiver, discharge or termination is sought. This Agreement may
be signed in any number of duplicate originals, each of which shall be deemed an
original, which taken together shall constitute one and the same instrument.
[signature page follows]
-27-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Depositor a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Depositor in accordance with its
terms.
Very truly yours,
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By: ____________________________________
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
BEAR, XXXXXXX & CO. INC.
By:____________________________________
Name:
Title:
XXXXXX XXXXXXX & CO.
INCORPORATED
By: ____________________________________
Name: Xxxxxx X. Friend
Title: Managing Director
SCHEDULE I
Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates, Series 2006-PWR13, Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class A-M and Class A-J
AMOUNT TO BE PURCHASED BY
AMOUNT TO BE PURCHASED BY XXXXXX XXXXXXX & CO.
CLASS OF CERTIFICATES BEAR, XXXXXXX & CO. INC. INCORPORATED
----------------------- -------------------------- -------------------------
A-1 $70,000,000 $70,000,000
A-2 $30,450,000 $30,450,000
A-3 $69,000,000 $69,000,000
A-AB $68,050,000 $68,050,000
A-4 $592,709,500 $592,709,500
A-1A $187,141,500 $187,141,500
A-M $145,336,000 $145,336,000
A-J $116,268,500 $116,268,500
Total $1,278,955,500 $1,278,955,500
Sch. I-1
SCHEDULE I (CONTINUED)
INITIAL AGGREGATE INITIAL
CLASS PRINCIPAL AMOUNT OF PASS-THROUGH PURCHASE RATING(3)
DESIGNATION CLASS(1) RATE PRICE(2) (S&P/FITCH)]
------------- ------------------- ------------ ------------ -------------
A-1 $140,000,000 5.294% 100.24990% AAA/AAA
A-2 $60,900,000 5.426% 100.54995% AAA/AAA
A-3 $138,000,000 5.518% 100.54528% AAA/AAA
A-AB $136,100,000 5.530% 100.54676% AAA/AAA
A-4 $1,185,419,000 5.540% 100.54615% AAA/AAA
A-1A $374,283,000 5.533% 100.54348% AAA/AAA
A-M $290,672,000 5.582% 100.54952% AAA/AAA
A-J $232,537,000 5.611% 100.54533% AAA/AAA
_______________________
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the aggregate stated amount of the relevant
class of Certificates to be purchased. The purchase price for each class
of the Certificates will also include accrued interest at the initial
Pass-Through Rate therefor on the aggregate stated amount thereof to be
purchased from September 1, 2006 to but not including the Closing Date.
(3) By each of Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc. ("S&P") and Fitch, Inc. ("Fitch").
Sch. I-2
Annex A
[Cover Page to Transaction XXX]
Xxxxx X-0
Annex B
[None.]
Annex B-1
