EXECUTION COPY
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES II INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-PWR11
UNDERWRITING AGREEMENT
March 8, 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 II, 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 ("Morgan
Stanley") (together, the "Underwriters"), the commercial mortgage
pass-through
certificates identified in Schedule I hereto (the "Certificates")
pursuant to
this Underwriting Agreement, dated March 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 Stearns Mortgage Loans")
will be
acquired by the Depositor from Bear Stearns Commercial Mortgage,
Inc. ("BSCMI")
pursuant to the mortgage loan purchase agreement, dated March 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 March 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 March 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 March 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 Wells
Fargo Bank,
National Association ("WFB") pursuant to the mortgage loan purchase
agreement,
dated March 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 March 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 March 1, 2006 (the
"Pooling and
Servicing Agreement"), among the Depositor, as depositor,
Prudential Asset
Resources Inc., as a master servicer, Wells Fargo Bank, as a master
servicer, as
certificate administrator and as tax administrator, ARCap
Servicing, Inc., as
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. 333-108839) on Form S-3
for the
registration of the Certificates under the Securities Act of 1933,
as amended
(the "1933 Act"), which registration statement has become
effective. The
Depositor proposes to file with the Commission pursuant to Rule
424(b) under the
1933 Act a supplement to the form of prospectus included in such
registration
statement relating to the Certificates and the plan of distribution
thereof.
Such registration statement, including the exhibits thereto and
information that
is contained in the Prospectus (as defined below) and is deemed to
be part of
and included in such registration statement, as such registration
statement may
have been amended or supplemented at the date of the Prospectus, is
hereinafter
referred to as the "Registration Statement"; the prospectus first
required to be
filed to satisfy the condition set forth in Rule 172(c) and
pursuant to Rule
424(b) under the 1933 Act, is hereinafter referred to as the "Base
Prospectus";
such form of supplement to the Base Prospectus relating to the
Certificates, in
the form first required to be filed to satisfy the condition set
forth in Rule
172(c) and pursuant to Rule 424(b) under the 1933 Act (including
the Base
Prospectus as so supplemented) is hereinafter referred to as the
"Prospectus
Supplement"; and the Base Prospectus and the Prospectus Supplement,
together,
are hereinafter referred to as the "Prospectus".
At or prior to the time when sales to purchasers of the
Certificates were
first made, which was approximately 2:35 p.m. on March 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
February 27, 2006 (the cover page of which is attached hereto as
Annex A) to the
Depositor's Prospectus dated December 1, 2005, and the Depositor's
Prospectus
dated December 1, 2005, the Term Sheet dated February 27, 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 contracts and enter into new
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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"), 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 March 8, 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 and
Maturity Considerations" that arise out of or are based upon untrue
statements or omissions in the Mortgage Loan Seller 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
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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 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
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 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 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
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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,
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,
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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 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
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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 1933 Act) 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.
(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 March 1, 2006 to but
excluding the
Closing Date.
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(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
March 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, 787
Seventh Avenue,
New York, New York 10019, 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)):
(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.
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(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.
(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.
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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 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
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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 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.
(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 wer
