Exhibit 1
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-TOP24
UNDERWRITING AGREEMENT
----------------------
October 18, 2006
Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Bear
Stearns Commercial Mortgage Securities Inc., a Delaware
corporation
(the "Depositor"), proposes to cause the issuance of, and to sell
to Bear,
Stearns & Co. Inc. and Morgan Stanley & Co. Incorporated
(together, the
"Underwriters"), the Commercial Mortgage Pass-Through Certificates
identified in
Schedule I hereto (the "Certificates") pursuant to this
Underwriting Agreement,
dated October 18, 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,
manufactured housing community and commercial mortgage loans (the
"Mortgage
Loans").
Certain of
the Mortgage Loans (the "BSCMI Mortgage Loans") will be
acquired by the Depositor from Bear Stearns Commercial Mortgage,
Inc. ("BSCMI")
pursuant to the mortgage loan purchase agreement, dated October 18,
2006 (the
"BSCMI Mortgage Loan Purchase Agreement") between the Depositor and
BSCMI.
Certain of the Mortgage Loans (the "MSMC Mortgage Loans") will be
acquired by
the Depositor from Morgan Stanley Mortgage Capital Inc. ("MSMC")
pursuant to the
mortgage loan purchase agreement, dated October 18, 2006 (the "MSMC
Mortgage
Loan Purchase Agreement") between the Depositor and MSMC. Certain
of the
Mortgage Loans (the "PCF II Mortgage Loans") will be acquired by
the Depositor
from Principal Commercial Funding II, LLC ("PCF II") pursuant to
the mortgage
loan purchase agreement, dated October 18, 2006 (the "PCF II
Mortgage Loan
Purchase Agreement"), between the Depositor and PCF II. Certain of
the Mortgage
Loans (the "WFB Mortgage Loans") will be acquired by the Depositor
from Wells
Fargo Bank, National Association ("WFB") pursuant to the mortgage
loan purchase
agreement, dated October 18, 2006 (the "WFB Mortgage Loan
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Purchase Agreement") between the Depositor and WFB. BSCMI, MSMC,
PCF II and WFB
collectively constitute the "Mortgage Loan Sellers"; and the BSCMI
Mortgage Loan
Purchase Agreement, the MSMC Mortgage Loan Purchase Agreement, the
PCF II
Mortgage Loan Purchase Agreement and the WFB 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 October 1, 2006 (the
"Pooling and
Servicing Agreement"), between the Depositor, as depositor, WFB, as
master
servicer, ARCap Servicing, Inc., as special servicer, LaSalle Bank
National
Association, as trustee and custodian (the "Trustee") and WFB, as
paying agent,
certificate registrar and authenticating agent (the "Paying
Agent").
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 it 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 2:45 p.m. on October 18, 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
October 6, 2006 (the cover page of which is attached hereto as
Annex A) to
accompany the Depositor's Prospectus dated September 13, 2006, the
Depositor's
Prospectus dated September 13, 2006, the Term Sheet dated October
6, 2006,
relating to the Certificates, 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 and the pricing
information
annex attached hereto as Annex C. 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 contracts
and enter into new purchase contracts with purchasers of the
Certificates, then
"Time of Sale Information" will refer to the information
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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 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"), or (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 October 18, 2006, between the
respective Mortgage
Loan Seller, the Depositor and the Underwriters (the "Mortgage Loan
Seller
Information") and provided, further, that the Depositor makes no
representations
or warranties regarding untrue statements or omissions in the
portions of the
Prospectus Supplement under the heading "Yield, Prepayment and
Maturity
Considerations" that arise out of or are based upon untrue
statements or
omissions in the Mortgage Loan Seller Information. The Underwriter
Information
shall consist of the second, fourth and ninth paragraphs of the
section of the
Prospectus Supplement entitled "Plan of Distribution" and the first
two
sentences of the last paragraph on the cover page of the Prospectus
Supplement.
(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 or (B) any Mortgage Loan Seller Information
contained in
or omitted from such Time of Sale Information. The parties
acknowledge that none
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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 1933 Act) 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 to 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.
(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.
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(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 the 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 and each Mortgage Loan Purchase Agreement
have
been, and as of the Closing Date the Pooling and Servicing
Agreement will be,
duly authorized, executed and delivered by the Depositor. This
Agreement and the
Mortgage Loan Purchase Agreements constitute, 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 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
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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 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 Regular Certificates (other than the portion of
the Class of
Certificates representing the right to receive Excess Interest as
set forth in
the Pooling and Servicing Agreement) will constitute "regular
interests" in a
REMIC; and the Class R-I, Class R-II and Class R-III Interests will
each
constitute the sole class of "residual interests" in the related
REMIC. Certain
portions of the Trust Fund will qualify as a grantor trust for
federal income
tax purposes under the Code and the Class of Certificates
representing the right
to receive Excess Interest as set forth in the Pooling and
Servicing Agreement
will represent pro rata undivided beneficial interests in such
grantor trust.
(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
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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, the Mortgage Loan Purchase Agreements 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 1933 Act) will not be, an "ineligible issuer,"
as defined in
Rule 405 under the 1933 Act.
(b) Each Underwriter represents and warrants to the Depositor
that:
(i) as of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations hereunder;
and
(ii) (A) 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)
received
by it in connection with the issue or sale of the certificates
in
circumstances in which Section 21(1) of the Financial Services
and
Markets Act 2000 does not apply to the Depositor; and
(B) it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act 2000 with
respect to anything done by it in relation to the certificates
in,
from or otherwise involving the United Kingdom.
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
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to the purchase price of the Certificates an amount equal to
interest accrued
thereon pursuant to the terms thereof from October 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
October 31, 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 Latham & Watkins LLP,
885 Third Avenue,
New York, New York 10022, 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, 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 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 "computational materials" or
"ABS
term
sheets" in reliance on the "Kidder/PSA" no-action letters or any
"ABS
informational and computational material," as defined in Item
1101(a) of
Regulation
AB under the 1933
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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 is prepared and published or disseminated by a
person unaffiliated with the
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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.
The Depositor is required to file such Free Writing
Prospectuses
with the Commission in electronic format and the Underwriters
shall
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,
(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.
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(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 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 no 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 1933
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 EDGAR on the SEC Web site
at
www.sec.gov. 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
1-866-803-9204.
(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) If the Depositor becomes aware that, as of the Time
of Sale,
any Issuer Free Writing Prospectus delivered to an investor in
any Certificate
contained any untrue statement of a material fact or
omitted to
state a material fact necessary in order to make the statements
con
