EXECUTION
VERSION
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-PWR14
UNDERWRITING AGREEMENT
December 6, 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
("Morgan Stanley")
(together, the "Underwriters"), the commercial mortgage
pass-through
certificates identified in Schedule I hereto (the "Certificates")
pursuant to
this Underwriting Agreement, dated December 6, 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 December 6,
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 December 6, 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 December 6, 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 December 6, 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 December 6, 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 December 6,
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 December 1, 2006 (the
"Pooling and
Servicing Agreement"), among the Depositor, as depositor,
Prudential Asset
Resources Inc., as a master servicer, Wells 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 1:45 p.m. on December 6, 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
November 21, 2006 (the cover page of which is attached hereto as
Annex A) to the
Depositor's Prospectus dated September 13, 2006, the Depositor's
Free Writing
Prospectus dated December 5, 2006 that replaces certain collateral
information
set forth in the Depositor's Free Writing Prospectus dated November
21, 2006,
the Term Sheet dated November 21, 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
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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 investors in the
Certificates, then
"Time of Sale Information" will refer to the information conveyed
to purchasers
at the time of entry into the first such new purchase contract,
including any
information that corrects such material misstatements or omissions
("Corrective
Information") and "Time of Sale" will refer to the time and date on
which such
new purchase contracts were entered into.
(1)
Representations and Warranties.
(a)
The Depositor represents and warrants to the Underwriters as
follows:
(i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no
proceedings for such purpose are pending or, to the Depositor's
knowledge,
threatened by the Commission; the Registration Statement as of its
effective
date or deemed effective date pursuant to Rule 430B under the 1933
Act (the
"Effective Date"), and the Prospectus, as of the date of the
Prospectus
Supplement, complied in all material respects with the applicable
requirements
of the 1933 Act and the rules and regulations thereunder (the "1933
Act
Regulations"); and the information in the Registration Statement,
as of the
Effective Date, did not contain any untrue statement of a material
fact and did
not omit to state any material fact required to be stated therein
or necessary
to make the statements therein not misleading and the information
in the
Prospectus, as of the date of the Prospectus Supplement, did not,
and as of the
Closing Date (as defined below), will not, contain an untrue
statement of a
material fact and did not and will not omit to state a material
fact necessary
in order to make the information therein, in the light of the
circumstances
under which they were made, not misleading, provided, however, that
the
Depositor makes no representations, warranties or agreements as to
(A) the
information contained in the Prospectus or any revision or
amendment thereof or
supplement thereto in reliance upon and in conformity with
information furnished
in writing to the Depositor by any Underwriter on behalf of itself
or the other
Underwriters specifically for use in connection with the
preparation of the
Prospectus or any revision or amendment thereof or supplement
thereto (the
"Underwriter Information"), (B) any information contained in or
omitted from the
portions of the Prospectus Supplement for which the Mortgage Loan
Sellers are
obligated to indemnify the Underwriters under the Indemnification
Agreements,
each dated as of December 6, 2006, between the respective Mortgage
Loan Seller,
the Depositor and the Underwriters (the "Mortgage Loan Seller
Information"), (C)
untrue statements or omissions in the portions of the Prospectus
Supplement
under the heading "Yield and Maturity Considerations" that arise
out of or are
based upon untrue statements or omissions in the Mortgage Loan
Seller
Information or (D) any information contained in or omitted from the
portions of
the Prospectus Supplement for which one or more of the initial
Master Servicers,
the initial Primary Servicers, the initial General Special
Servicer, the initial
Certificate Administrator and the initial Trustee are obligated to
indemnify the
Underwriters under (i) the Representation and Indemnification
Agreement, dated
as of December 6, 2006, between the Depositor, the Underwriters and
Wells Fargo
Bank, (ii) each of the Representation and Indemnification
Agreements, both dated
as of December 6, 2006, between the Depositor, the Underwriters and
each of the
initial Primary Servicers, (iii) the Representation and
Indemnification
Agreement, dated as of December 6, 2006, between the Depositor, the
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Underwriters and the initial General Special Servicer, (iv) the
Representation
and Indemnification Agreement, dated as of December 6, 2006,
between the
Depositor, the Underwriters and the initial Certificate
Administrator, (v) the
Representation and Indemnification Agreement, dated as of December
6, 2006,
between the Depositor, the Underwriters and the initial Trustee,
and/or (vi) the
Indemnification Agreement, dated as of December 6, 2006, between
the Depositor
and Prudential Asset Resources, Inc. (of which the Underwriters are
third party
beneficiaries) (the "Servicer/Trustee Information"). The parties
acknowledge
that the Underwriter Information consists of the first, second,
third and fourth
sentences of the final paragraph of the cover page, and the second,
fourth and
eighth paragraphs of the section titled "Plan of Distribution" in
the
Prospectus.
(ii) The Time of Sale Information, at the Time of Sale, did not,
and
at the Closing Date will not, contain any untrue statement of a
material fact or
omit to state a material fact necessary in order to make the
statements therein,
in the light of the circumstances under which they were made, not
misleading;
provided that the Depositor makes no representation and warranty
with respect to
(A) any statements or omissions made in reliance upon and in
conformity with the
Underwriter Information, (B) any Mortgage Loan Seller Information
contained in
or omitted from such Time of Sale Information or (C) any
Servicer/Trustee
Information contained in or omitted from such Time of Sale
Information. The
parties acknowledge that none of the Underwriters has furnished any
Underwriter
Information to the Depositor expressly for use in the Time of Sale
Information.
(iii) Other than the Prospectus, the Depositor (including its
agents
and representatives other than the Underwriters in their capacity
as such) has
not made, used, prepared, authorized, approved or referred to and
will not make,
use, prepare, authorize, approve or refer to any "written
communication" (as
defined in Rule 405 under the 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.
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(iv) The Depositor has been duly incorporated and is validly
existing
as a corporation in good standing under the laws of the State of
Delaware with
corporate power and authority to enter into and perform its
obligations under
this Agreement and the Pooling and Servicing Agreement.
(v) The execution, delivery and performance of this Agreement and
the
Pooling and Servicing Agreement by the Depositor and the
consummation of the
transactions contemplated herein and therein by the Depositor and
compliance by
the Depositor with its obligations hereunder and thereunder have
been duly
authorized by all necessary corporate action and will not (A)
contravene any
provision of the certificate of incorporation or by-laws of the
Depositor or
applicable law or (B) conflict with or constitute a breach of or
default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon
any property or assets of the Depositor pursuant to, any contract,
indenture,
mortgage, loan agreement, note, lease or other instrument to which
the Depositor
is a party or by which it may be bound or to which any of the
property or assets
of the Depositor is subject, which conflict, breach, default, lien,
charge or
encumbrance is reasonably likely to materially and adversely affect
the
Depositor's ability to perform its obligations under this Agreement
or the
Pooling and Servicing Agreement.
(vi) The Certificates have been duly authorized for issuance and
sale
(or will have been so authorized prior to the issuance thereof)
pursuant to this
Agreement and the Pooling and Servicing Agreement. When issued,
authenticated
and delivered pursuant to the provisions of this Agreement and of
the Pooling
and Servicing Agreement against payment of the consideration
therefor in
accordance with this Agreement, the Certificates will be duly and
validly issued
and outstanding and entitled to the benefits provided by the
Pooling and
Servicing Agreement, except as enforceability thereof may be
limited by the
effect of (A) bankruptcy, insolvency, reorganization, receivership,
moratorium
or other similar laws affecting the enforcement of the rights of
creditors
generally, and (B) general principles of equity, whether
enforcement is sought
in a proceeding in equity or at law. The Certificates and the
Pooling and
Servicing Agreement conform in all material respects to all
statements relating
thereto contained in the Prospectus.
(vii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with
the offering,
issuance or sale of the Certificates hereunder, except such as have
been, or as
of the Closing Date will have been, obtained or such as may
otherwise be
required under applicable state securities laws in connection with
the purchase
and offer and sale of the Certificates by the Underwriters and any
recordation
of the respective assignments of the Mortgage Loans to the Trustee
pursuant to
the Pooling and Servicing Agreement that have not yet been
completed.
(viii) This Agreement has been, and as of the Closing Date the
Pooling
and Servicing Agreement will be, duly authorized, executed and
delivered by the
Depositor. This Agreement constitutes, and as of the Closing Date
the Pooling
and Servicing Agreement will constitute, a legal, valid and binding
agreement
enforceable against the Depositor in accordance with its terms,
except as such
enforceability may be limited by the effect of (A) bankruptcy,
insolvency,
reorganization, receivership, moratorium or other similar laws
affecting the
enforcement of the rights of creditors generally, (B) general
principles of
equity, whether
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enforcement is sought in a proceeding in equity or at law, and (C)
public policy
considerations underlying the securities laws, to the extent that
such public
policy considerations limit the enforceability of the provisions of
this
Agreement that purport or are construed to provide indemnification
from
securities law liabilities.
(ix) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) will convey to the Trustee,
or cause to
be conveyed to the Trustee, all of the Depositor's right, title and
interest in
and to the Mortgage Loans, free and clear of any lien, mortgage,
pledge, charge,
encumbrance, adverse claim or other security interest (collectively
"Liens")
granted by or imposed upon the Depositor, (B) will not have
assigned to any
other person any of its right, title or interest in the Mortgage
Loans or in the
Pooling and Servicing Agreement or the Certificates, and (C) will
have the power
and authority to transfer or cause to be transferred its right,
title and
interest in the Mortgage Loans to the Trustee and to sell the
Certificates to
the Underwriters. Upon execution and delivery of the Pooling and
Servicing
Agreement by the Trustee, the Trustee will have acquired ownership
of all of the
Depositor's right, title and interest in and to the Mortgage Loans
except to the
extent disclosed in the Prospectus, and upon delivery to the
Underwriters of the
Certificates pursuant hereto, each Underwriter will have good title
to the
Certificates purchased by such Underwriter, in each case free of
Liens granted
by or imposed upon the Depositor.
(x) The Depositor is not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not
cause the
Depositor or the Trust Fund to be, subject to registration or
regulation as an
"investment company" under the Investment Company Act of 1940, as
amended (the
"1940 Act").
(xi) Under generally accepted accounting principles ("GAAP") and
for
federal income tax purposes, the Depositor will report the transfer
of the
Mortgage Loans to the Trustee in exchange for the Certificates and
the sale of
the Certificates to the Underwriters pursuant to this Agreement as
a sale of the
interest in the Mortgage Loans evidenced by the Certificates. The
consideration
received by the Depositor upon the sale of the Certificates to the
Underwriters
will constitute at least reasonably equivalent value and fair
consideration for
the Certificates. The Depositor will be solvent at all relevant
times prior to,
and will not be rendered insolvent by, the sale of the Certificates
to the
Underwriters. The Depositor is not selling the Certificates to the
Underwriters
with any intent to hinder, delay or defraud any of the creditors of
the
Depositor.
(xii) The Depositor has not relied on the Underwriters for any tax,
regulatory, accounting or other advice with respect to compliance
with or
registration under any statute, rule or regulation of any
governmental,
regulatory, administrative or other agency or authority. The
Depositor
acknowledges and agrees that (i) the terms of this Agreement and
the offering
(including the price of the Certificates) were negotiated at arm's
length
between sophisticated parties represented by counsel; (ii) no
fiduciary,
advisory or agency relationship between the Depositor and the
Underwriters has
been created as a result of any of the transactions contemplated by
this
Agreement, irrespective of whether any Underwriter has advised or
is advising
the Depositor on other matters; (iii) the Underwriters' obligations
to the
Depositor in respect of the offering, and the purchase and sale, of
the
Certificates are set forth in this Agreement in their entirety; and
(iv) it has
obtained such legal, tax, accounting and other advice as it deems
appropriate
with respect to this Agreement and the transactions contemplated
hereby
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and any other activities undertaken in connection therewith, and it
is not
relying on the Underwriters with respect to any such matters.
(xiii) The Trust Fund (other than those portions specified in the
Pooling and Servicing Agreement) will qualify as three separate
real estate
mortgage investment conduits (each, a "REMIC") for federal income
tax purposes
pursuant to Section 860D of the Internal Revenue Code of 1986, as
amended (the
"Code"); the REMIC III Regular Certificates will constitute
"regular interests"
in a REMIC; and the Class R Certificates will evidence the sole
class of
"residual interests" in each related REMIC.
(xiv) There are no legal or governmental proceedings pending or, to
the knowledge of the Depositor, threatened to which the Depositor
is a party or
to which any of the properties of the Depositor are subject that
are required to
be described in the Prospectus or the Time of Sale Information or
necessary in
order to make the statements therein in the light of the
circumstances under
which they were made, not misleading and that are not so described,
nor are
there any contracts or other documents to which the Depositor is a
party or to
which the Depositor or any of the properties of the Depositor are
subject that
are required to be described in the Prospectus.
(xv) At the Closing Date, the respective classes of Certificates
shall
have been assigned ratings no lower than those set forth in
Schedule I hereto by
the nationally recognized statistical rating organizations
identified in
Schedule I hereto (the "Rating Agencies").
(xvi) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the
Pooling and
Servicing Agreement and the Certificates payable by the Depositor
(other than
income taxes) have been paid or will be paid at or prior to the
Closing Date.
(xvii) None of the Depositor or any of its affiliates does business
with the government of Cuba or with any person or affiliate located
in Cuba
within the meaning of Section 517.075, Florida Statutes.
(xviii) The Depositor is not, and on the date on which the first
bona
fide offer of the Certificates is made (within the meaning of Rule
164(h)(2)
under the 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,
as
of the date hereof and as of the Closing Date, such Underwriter has
complied with all of its obligations hereunder.
(2)
Purchase and Sale.
Subject to the terms and conditions herein set forth and in
reliance upon
the representations and warranties herein contained, the Depositor
shall sell to
the Underwriters, and each Underwriter shall, severally and not
jointly,
purchase from the Depositor, at the related purchase price set
forth on Schedule
I hereto, Certificates of each class thereof having an actual or
notional amount
as set forth on Schedule I hereto opposite their names. There will
be added
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to the purchase price of the Certificates an amount equal to
interest accrued
thereon pursuant to the terms thereof from December 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
December 19,
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.
(4)
Offering by Underwriters; Free Writing Prospectuses.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale as set forth in the Prospectus. It is further
understood that the Depositor, in reliance upon Policy Statement
105,
has not and will not file an offering statement pursuant to Section
352-e of the General Business Law of the State of New York with
respect to the Certificates. Each Underwriter severally and not
jointly therefore agrees that sales of the Certificates made by
such
Underwriter in and from the State of New York will be made only to
institutional investors within the meaning of Policy Statement 105.
(b) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors
Free Writing Prospectuses (as defined below), or portions thereof,
which the Depositor is required to file with the Commission in
electronic format and will use reasonable efforts to provide to the
Depositor such Free Writing Prospectuses, or portions thereof, in
either Microsoft Word(R) or Microsoft Excel(R) format and not in a
PDF, except to the extent that the Depositor, in its sole
discretion,
waives such requirements, subject to the following conditions (to
which such conditions each Underwriter agrees (provided that no
Underwriter shall be responsible for any breach of the following
conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication
to any person
in connection with the initial offering of the Certificates, unless
such written
communication (1) is made in reliance on Rule 134 under the 1933
Act, (2)
constitutes a prospectus satisfying the requirements of Rule 430B
under the 1933
Act or (3) constitutes Time of Sale Information or a Free Writing
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Prospectus that does not constitute Time of Sale Information. The
Underwriters
shall not convey or deliver in connection with the initial offering
of the
Certificates any "ABS informational and computational material," as
defined in
Item 1101(a) of Regulation AB under the 1933 Act ("ABS
Informational and
Computational Material"), in reliance upon Rules 167 and 426 under
the 1933 Act.
(ii) Each Underwriter shall deliver to the Depositor, no later
than two business days prior to the date of first use thereof or
such later date
as may be agreed to by the Depositor, (a) any Free Writing
Prospectus that was
prepared by or on behalf of such Underwriter (an "Underwriter Free
Writing
Prospectus") and that contains any "issuer information," as defined
in Rule
433(h) under the 1933 Act and footnote 271 of the Commission's
Securities
Offering Reform Release No. 33-8591 ("Issuer Information") (which
the parties
hereto agree includes, without limitation, Mortgage Loan Seller
Information),
and (b) any Free Writing Prospectus or portion thereof prepared by
or on behalf
of such Underwriter that contains only a description of the final
terms of the
Certificates. Notwithstanding the foregoing, any Free Writing
Prospectus that
contains only ABS Informational and Computational Materials may be
delivered by
an Underwriter to the Depositor not later than the later of (A) two
business
days prior to the due date for filing of the Prospectus pursuant to
Rule 424(b)
under the 1933 Act or such later date as may be agreed to by the
Depositor or
(B) the date of first use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Depositor
that the Free Writing Prospectuses to be furnished to the Depositor
by such
Underwriter pursuant to Section 4(b)(ii) will constitute all Free
Writing
Prospectuses of the type described therein that were furnished to
prospective
investors by such Underwriter in connection with its offer and sale
of the
Certificates.
(iv) Each Underwriter represents and warrants to the Depositor
that each Free Writing Prospectus required to be provided by it to
the Depositor
pursuant to Section 4(b)(ii) did not, as of the Time of Sale, and
will not as of
the Closing Date, include any untrue statement of a material fact
or omit any
material fact necessary to make the statements contained therein
(when read in
conjunction with the Time of Sale Information), in light of the
circumstances
under which they were made, not misleading; provided, however, that
such
Underwriter makes no representation to the extent such
misstatements or
omissions were the result of any inaccurate Issuer Information,
which
information was not corrected by Corrective Information
subsequently supplied by
the Depositor or any Mortgage Loan Seller to such Underwriter
within a
reasonable period of time prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission the
following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered
by any Underwriter to the Depositor pursuant to Section 4(b)(ii);
and
(C) Any Free Writing Prospectus for which the Depositor or
any person acting on its behalf provided, authorized or approved
information that
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is prepared and published or disseminated by a person unaffiliated
with the Depositor or any other offering participant that is in the
business of publishing, radio or television broadcasting or
otherwise
disseminating communications.
Notwithstanding the foregoing, the Depositor shall not be required
to
file (1) Issuer Information contained in any Underwriter Free
Writing
Prospectus or Free Writing Prospectus of any other offering
participant other than the Depositor, if such information is
included
or incorporated by reference in a prospectus or Free Writing
Prospectus previously filed with the Commission that relates to the
offering of the Certificates, or (2) any Free Writing Prospectus or
portion thereof that contains a description of the Certificates or
the
offering of the Certificates which does not reflect the final terms
thereof.
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 4(b)(v) by the Depositor shall be filed with the Commission
not later
than the date of first use of the Free Writing Prospectus, except
that:
(A) Any Free Writing Prospectus or portion thereof required
to be filed that contains only the description of the final terms
of
the Certificates shall be filed by the Depositor with the
Commission
within two days of the later of the date such final terms have been
established for all classes of Certificates and the date of first
use;
(B) Any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS Informational and Computational
Material shall be filed by the Depositor with the Commission not
later
than the later of the due date for filing the final Prospectus
relating to the Certificates pursuant to Rule 424(b) under the 1933
Act or two business days after the first use of such Free Writing
Prospectus; and
(C) Any Free Writing Prospectus required to be filed
pursuant to Section 4(b)(v)(C) shall, if no payment has been made
or
consideration has been given by or on behalf of the Depositor for
the
Free Writing Prospectus or its dissemination, be filed by the
Depositor with the Commission not later than four business days
after
the Depositor becomes aware of the publication, radio or television
broadcast or other dissemination of the Free Writing Prospectus.
(vii) Each Underwriter shall file with the Commission any Free
Writing Prospectus that is used or referred to by it and
distributed by or on
behalf of such Underwriter in a manner reasonably designed to lead
to its broad,
unrestricted dissemination not later than the date of the first use
of such Free
Writing Prospectus.
(viii) Notwithstanding the provisions of Section 4(b)(vii), each
Underwriter shall file with the Commission any Free Writing
Prospectus for which
such Underwriter or any person acting on its behalf provided,
authorized or
approved information that is prepared and published or disseminated
by a person
unaffiliated with the Depositor or any other offering participant
that is in the
business of publishing, radio or television broadcasting or
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otherwise disseminating written communications and for which no
payment was made
or consideration given by or on behalf of the Depositor or any
other offering
participant, not later than four business days after such
Underwriter becomes
aware of the publication, radio or television broadcast or other
dissemination
of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 4(b)(v) and
4(b)(vii), neither the Depositor nor any Underwriter shall be
required to file
any Free Writing Prospectus that does not contain substantive
changes from or
additions to a Free Writing Prospectus previously filed with the
Commission, and
neither Underwriter shall be required to file any Free Writing
Prospectus to the
extent that the information contained therein is included in a
prospectus or
Free Writing Prospectus previously filed that relates to the
offering of the
Certificates.
(x) The Depositor and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain the following
legend, or
substantially equivalent legend that complies with Rule 433 of the
Act:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
depositor has filed with the SEC for more complete information
about the depositor, the issuing trust
