BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-PWR12
UNDERWRITING AGREEMENT
June 8, 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 June 8, 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 June 8, 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 June 8, 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 June 8, 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 June 8, 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 June 8, 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 June 8, 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 June 1, 2006 (the "Pooling and
Servicing Agreement"), among the Depositor, as depositor, Prudential Asset
Resources Inc., as a master servicer and as loan-specific special servicer,
Xxxxx Fargo Bank, National Association as a master servicer, as certificate
administrator and as tax administrator, ARCap Servicing, Inc., 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 12:15 p.m. on June 8, 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 May
26, 2006 (the cover page of which is attached hereto as Annex A) to the
Depositor's Prospectus dated March 31, 2006, the Term Sheet dated May 26, 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 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
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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.
(a) Representations and Warranties.
(i) The Depositor represents and warrants to the Underwriters as
follows:
(A) 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
hereinafter defined) 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 June 8, 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 Loan
Specific Special Servicer, the initial General Special Servicer, the
initial Certificate Administrator and the initial Trustee are obligated to
indemnify the Underwriters under the Representation and Indemnification
Agreement, dated as of June 8, 2006, between the Depositor, the
Underwriters, the initial Master Servicers (other than Prudential Asset
Resources, Inc.), the initial Primary Servicers, the initial General
Special Servicer, the initial Certificate Administrator and the initial
Trustee and/or the Indemnification Agreement, dated as of June 8, 2006,
between the Depositor and Prudential Asset Resources, Inc. (of which the
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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.
(B) 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.
(C) 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.
(D) 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
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power and authority to enter into and perform its obligations under this
Agreement and the Pooling and Servicing Agreement.
(E) 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.
(F) 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.
(G) 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.
(H) 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,
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moratorium or other similar laws affecting the enforcement of the rights of
creditors generally, (B) general principles of equity, whether 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.
(I) 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.
(J) 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").
(K) 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.
(L) 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
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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 and any
other activities undertaken in connection therewith, and it is not relying
on the Underwriters with respect to any such matters.
(M) 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.
(N) 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.
(O) 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").
(P) 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.
(Q) 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.
(R) 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 1933 Act.
(ii) 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.
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(b) 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 to
the purchase price of the Certificates an amount equal to interest accrued
thereon pursuant to the terms thereof from June 1, 2006 to but excluding the
Closing Date.
(c) 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 June 21, 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.
(d) Offering by Underwriters; Free Writing Prospectuses.
(i) 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.
(ii) 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)):
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(A) 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 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.
(B) 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.
(C) 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.
(D) 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.
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(E) The Depositor agrees to file with the Commission the
following:
(i) Any Issuer Free Writing Prospectus;
(ii) Any Free Writing Prospectus or portion thereof
delivered by any Underwriter to the Depositor pursuant to Section
4(b)(ii); and
(iii) Any Free Writing Prospectus for which the Depositor 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
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.
(F) 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:
(i) 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;
(ii) 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
(iii) 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.
(G) 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
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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.
(H) 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 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.
(I) 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.
(J) 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.
(K) 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.
(L) (i) 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
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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").
(ii) 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 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.
(iii) The Underwriters shall, if requested by the Depositor:
(A) 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");
(B) 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;
(C) 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;
(D) provide such investor with an opportunity to
affirmatively agree to purchase the Certificates on the terms
described in the Corrected Free Writing Prospectus; and
(E) 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.
(iv) 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.
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(M) 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.
(iii) Each Underwriter further represents and warrants that (1) it has
only communicated or caused to be communicated and will only communicate or
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:
(A) are outside the United Kingdom;
(B) have professional experience in participating in unregulated
collective investment schemes; or
(C) are persons falling within Articles 49(2)(A) through (D) or
19 of the FSMA (Financial Promotion) Order 2005.
(e) Covenants of the Depositor.
The Depositor covenants with each Underwriter as follows:
(i) 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.
(ii) 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
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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 such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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".
(viii) Whether or not the transactions contemplated by this Agreement
are consummated, the Depositor will pay or cause to be paid all expenses
incident to 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
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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.
(ix) 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.
(f) 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:
(i) 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.
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(ii) On the Closing Date, such Underwriter shall have received:
(A) 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:
(i) The Depositor is a corporation in good standing under
the laws of the State of Delaware.
(ii) The Depositor has corporate power and authority to
enter into and perform its obligations under this Agreement and the
Pooling and Servicing Agreement.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
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(viii) 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.
(ix) 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.
(x) 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.
(B) An opinion, dated the Closing Date, of counsel to the
Underwriters, reasonably acceptable to the Underwriters.
(C) 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 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
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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.
(iii) 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.
(iv) 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:
(A) 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
(B) 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.
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(v) 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:
(A) 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;
(B) 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;
(C) 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.
(vi) 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:
(A) 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
(B) 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.
(vii) The Depositor shall have received the accountant's letters
specified in Section 5(i).
(viii) Each Underwriter shall have received, with respect to each of
the Master Servicers, the Special Servicers, the Certificate Administrator, the
Tax 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
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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.
(ix) 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.
(x) 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.
(xi) 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.
(xii) 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.
(g) Indemnification.
(i) 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, 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
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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.
(ii) 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 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.
(iii) 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
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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 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.
(iv) 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
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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.
(v) 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
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.
(vi) 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.
(vii) 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.
(viii) 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
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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 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.
(h) 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.
(i) 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
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taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
(j) Termination of Agreement.
(i) 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.
(ii) 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.
(iii) 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.
(k) 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); to Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
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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.
(l) 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.
(m) 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.
(n) 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]
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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
Underwriting Agreement
SCHEDULE I
Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates, Series 2006-PWR12, 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 $ 34,050,000 $ 34,050,000
A-2 $ 24,500,000 $ 24,500,000
A-3 $ 75,250,000 $ 75,250,000
A-AB $ 59,900,000 $ 59,900,000
A-4 $436,625,000 $436,625,000
A-1A $ 97,335,500 $ 97,335,500
A-M $103,951,500 $103,951,500
A-J $ 80,562,000 $ 80,562,000
Total $912,174,000 $912,174,000
Sch. I-1
SCHEDULE I (CONTINUED)
INITIAL AGGREGATE INITIAL
CLASS PRINCIPAL AMOUNT PASS-THROUGH PURCHASE RATING(3)
DESIGNATION OF CLASS(1) RATE PRICE(2) (MOODY'S/S&P)
----------- ----------------- ------------ ---------- -------------
A-1 $ 68,100,000 5.546% 100.24943% Aaa/AAA
A-2 $ 49,000,000 5.688% 100.54596% Aaa/AAA
A-3 $150,500,000 5.704% 100.54744% Aaa/AAA
A-AB $119,800,000 5.686% 100.54474% Aaa/AAA
A-4 $873,250,000 5.711% 100.54936% Aaa/AAA
A-1A $194,671,000 5.704% 100.54611% Aaa/AAA
A-M $207,903,000 5.750% 100.54143% Aaa/AAA
A-J $161,124,000 5.750% 100.39523% 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 June 1, 2006 to but not including the Closing Date.
(3) By each of Xxxxx'x Investors Service, Inc. ("Moody's") and Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.
("S&P").
Sch. I-2
Annex A
[Cover Page to Transaction XXX]
Xxxxx X-0
Xxxxx X
Xxxx.
Xxxxx X-0
