EXECUTION VERSION
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-PWR15
UNDERWRITING AGREEMENT
March 8, 2007
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Bear Xxxxxxx Commercial Mortgage Securities Inc., a Delaware corporation
(the "Depositor"), proposes to cause the issuance of, and to sell to Bear,
Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx")
(together, the "Underwriters"), the commercial mortgage pass-through
certificates identified in Schedule I hereto (the "Certificates") pursuant to
this Underwriting Agreement, dated March 8, 2007 (this "Agreement"), between the
Depositor and the Underwriters. The Certificates will evidence beneficial
ownership interests in, among other things, a trust fund (the "Trust Fund") to
be formed by the Depositor and consisting primarily of a segregated pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans").
Certain of the Mortgage Loans (the "Bear Xxxxxxx Mortgage Loans") will be
acquired by the Depositor from Bear Xxxxxxx Commercial Mortgage, Inc. ("BSCMI")
pursuant to the mortgage loan purchase agreement, dated March 8, 2007 (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, 2007 (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, 2007 (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, 2007 (the "PCFII Mortgage Loan Purchase Agreement"),
between the Depositor and PCFII. Certain of the Mortgage Loans (the "WFB
Mortgage Loans"), will be acquired by the Depositor from Xxxxx Fargo Bank,
National Association ("WFB") pursuant to the mortgage loan purchase agreement,
dated March 8, 2007 (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, 2007 (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, 2007 (the "Pooling and
Servicing Agreement"), among the Depositor, as depositor, Prudential Asset
Resources Inc., as a master servicer, Xxxxx Fargo Bank, National Association as
a master servicer, as certificate administrator and as tax administrator, 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 10:31 a.m. on March 8, 2007 (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 26, 2007 (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 March 8, 2007 that replaces certain information set forth in
the Depositor's Free Writing Prospectus dated February 26, 2007, the Term Sheet
dated February 23, 2007, relating to the Certificates, and each "free-writing
prospectus" (as defined pursuant to Rule 405 under the 1933 Act) (a "Free
Writing Prospectus") the first page of each of which is attached as Annex B
hereto. If, subsequent to the date of this Agreement, the Depositor and the
Underwriters determine that such information included an untrue statement of
material
-2-
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and terminate their old purchase contracts and enter into
new purchase contracts with investors in the Certificates, then "Time of Sale
Information" will refer to the information conveyed to purchasers at the time of
entry into the first such new purchase contract, including any information that
corrects such material misstatements or omissions ("Corrective Information") and
"Time of Sale" will refer to the time and date on which such new purchase
contracts were entered into.
(1) Representations and Warranties.
(a) The Depositor represents and warrants to the Underwriters as
follows:
(i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending or, to the Depositor's knowledge,
threatened by the Commission; the Registration Statement as of its effective
date or deemed effective date pursuant to Rule 430B under the 1933 Act (the
"Effective Date"), and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects with the applicable requirements
of the 1933 Act and the rules and regulations thereunder (the "1933 Act
Regulations"); and the information in the Registration Statement, as of the
Effective Date, did not contain any untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and the information in the
Prospectus, as of the date of the Prospectus Supplement, did not, and as of the
Closing Date (as defined below), will not, contain an untrue statement of a
material fact and did not and will not omit to state a material fact necessary
in order to make the information therein, in the light of the circumstances
under which they were made, not misleading, provided, however, that the
Depositor makes no representations, warranties or agreements as to (A) the
information contained in the Prospectus or any revision or amendment thereof or
supplement thereto in reliance upon and in conformity with information furnished
in writing to the Depositor by any Underwriter on behalf of itself or the other
Underwriters specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto (the
"Underwriter Information"), (B) any information contained in or omitted from the
portions of the Prospectus Supplement for which the Mortgage Loan Sellers are
obligated to indemnify the Underwriters under the Indemnification Agreements,
each dated as of March 8, 2007, 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 March 8, 2007, between the Depositor, the Underwriters and Xxxxx Fargo
Bank, (ii) each of the Representation and Indemnification Agreements, both dated
as of March 8, 2007, between the Depositor, the Underwriters and each of the
initial Primary Servicers, (iii) the Representation and Indemnification
Agreement, dated as of March 8, 2007, between the Depositor, the Underwriters
and the initial General Special Servicer, (iv) the Representation and
Indemnification Agreement, dated as of March 8, 2007, between the Depositor, the
Underwriters and the initial Certificate Administrator, (v) the Representation
and
-3-
Indemnification Agreement, dated as of March 8, 2007, between the Depositor, the
Underwriters and the initial Trustee, and/or (vi) the Indemnification Agreement,
dated as of March 8, 2007, 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 0000 Xxx) that constitutes an offer to sell or
solicitation of an offer to buy the Certificates other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act or
Rule 134 under the 1933 Act, (ii) the Time of Sale Information, and (iii) each
other written communication of the Depositor or its agents and representatives
approved by the Underwriters either in writing in advance or in any other manner
mutually agreed by the Underwriters and the Depositor (each such communication
referred to in clause (ii) and this clause (iii) constituting an "issuer free
writing prospectus", as defined in Rule 433(h) under the 1933 Act, being
referred to as an "Issuer Free Writing Prospectus"). Each such Issuer Free
Writing Prospectus complied or, if used after the date hereof, will comply, in
all material respects with the 1933 Act and the rules and regulations
promulgated thereunder, has been filed or will be filed in accordance with
Section 4 (to the extent required thereby) and did not at the Time of Sale, and
at the Closing Date will not, contain any untrue statements of a material fact
or (when read in conjunction with the other Time of Sale Information) omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the Depositor makes no representation and warranty with respect to (i) any
statements or omissions made in reliance upon and in conformity with the
Underwriter Information or (ii) any Mortgage Loan Seller Information contained
in or omitted from any Issuer Free Writing Prospectus. The parties acknowledge
that none of the Underwriters has furnished any Underwriter Information to the
Depositor expressly for use in any Issuer Free Writing Prospectus.
-4-
(iv) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to enter into and perform its obligations under
this Agreement and the Pooling and Servicing Agreement.
(v) The execution, delivery and performance of this Agreement and the
Pooling and Servicing Agreement by the Depositor and the consummation of the
transactions contemplated herein and therein by the Depositor and compliance by
the Depositor with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and will not (A) contravene any
provision of the certificate of incorporation or by-laws of the Depositor or
applicable law or (B) conflict with or constitute a breach of or default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Depositor pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Depositor
is a party or by which it may be bound or to which any of the property or assets
of the Depositor is subject, which conflict, breach, default, lien, charge or
encumbrance is reasonably likely to materially and adversely affect the
Depositor's ability to perform its obligations under this Agreement or the
Pooling and Servicing Agreement.
(vi) The Certificates have been duly authorized for issuance and sale
(or will have been so authorized prior to the issuance thereof) pursuant to this
Agreement and the Pooling and Servicing Agreement. When issued, authenticated
and delivered pursuant to the provisions of this Agreement and of the Pooling
and Servicing Agreement against payment of the consideration therefor in
accordance with this Agreement, the Certificates will be duly and validly issued
and outstanding and entitled to the benefits provided by the Pooling and
Servicing Agreement, except as enforceability thereof may be limited by the
effect of (A) bankruptcy, insolvency, reorganization, receivership, moratorium
or other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity, whether enforcement is sought
in a proceeding in equity or at law. The Certificates and the Pooling and
Servicing Agreement conform in all material respects to all statements relating
thereto contained in the Prospectus.
(vii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Certificates hereunder, except such as have been, or as
of the Closing Date will have been, obtained or such as may otherwise be
required under applicable state securities laws in connection with the purchase
and offer and sale of the Certificates by the Underwriters and any recordation
of the respective assignments of the Mortgage Loans to the Trustee pursuant to
the Pooling and Servicing Agreement that have not yet been completed.
(viii) This Agreement has been, and as of the Closing Date the Pooling
and Servicing Agreement will be, duly authorized, executed and delivered by the
Depositor. This Agreement constitutes, and as of the Closing Date the Pooling
and Servicing Agreement will constitute, a legal, valid and binding agreement
enforceable against the Depositor in accordance with its terms, except as such
enforceability may be limited by the effect of (A) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting the
enforcement of the rights of creditors generally, (B) general principles of
equity, whether
-5-
enforcement is sought in a proceeding in equity or at law, and (C) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of this
Agreement that purport or are construed to provide indemnification from
securities law liabilities.
(ix) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) will convey to the Trustee, or cause to
be conveyed to the Trustee, all of the Depositor's right, title and interest in
and to the Mortgage Loans, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively "Liens")
granted by or imposed upon the Depositor, (B) will not have assigned to any
other person any of its right, title or interest in the Mortgage Loans or in the
Pooling and Servicing Agreement or the Certificates, and (C) will have the power
and authority to transfer or cause to be transferred its right, title and
interest in the Mortgage Loans to the Trustee and to sell the Certificates to
the Underwriters. Upon execution and delivery of the Pooling and Servicing
Agreement by the Trustee, the Trustee will have acquired ownership of all of the
Depositor's right, title and interest in and to the Mortgage Loans except to the
extent disclosed in the Prospectus, and upon delivery to the Underwriters of the
Certificates pursuant hereto, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens granted
by or imposed upon the Depositor.
(x) The Depositor is not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not cause the
Depositor or the Trust Fund to be, subject to registration or regulation as an
"investment company" under the Investment Company Act of 1940, as amended (the
"1940 Act").
(xi) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Depositor will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale ----
of the Certificates to the Underwriters pursuant to this Agreement as a sale of
the interest in the Mortgage Loans evidenced by the Certificates. The
consideration received by the Depositor upon the sale of the Certificates to the
Underwriters will constitute at least reasonably equivalent value and fair
consideration for the Certificates. The Depositor will be solvent at all
relevant times prior to, and will not be rendered insolvent by, the sale of the
Certificates to the Underwriters. The Depositor is not selling the Certificates
to the Underwriters with any intent to hinder, delay or defraud any of the
creditors of the Depositor.
(xii) The Depositor has not relied on the Underwriters for any tax,
regulatory, accounting or other advice with respect to compliance with or
registration under any statute, rule or regulation of any governmental,
regulatory, administrative or other agency or authority. The Depositor
acknowledges and agrees that (i) the terms of this Agreement and the offering
(including the price of the Certificates) were negotiated at arm's length
between sophisticated parties represented by counsel; (ii) no fiduciary,
advisory or agency relationship between the Depositor and the Underwriters has
been created as a result of any of the transactions contemplated by this
Agreement, irrespective of whether any Underwriter has advised or is advising
the Depositor on other matters; (iii) the Underwriters' obligations to the
Depositor in respect of the offering, and the purchase and sale, of the
Certificates are set forth in this Agreement in their entirety; and (iv) it has
obtained such legal, tax, accounting and other advice as it deems appropriate
with respect to this Agreement and the transactions contemplated hereby
-6-
and any other activities undertaken in connection therewith, and it is not
relying on the Underwriters with respect to any such matters.
(xiii) The Trust Fund (other than those portions specified in the
Pooling and Servicing Agreement) will qualify as three separate real estate
mortgage investment conduits (each, a "REMIC") for federal income tax purposes
pursuant to Section 860D of the Internal Revenue Code of 1986, as amended (the
"Code"); the REMIC III Regular Certificates will constitute "regular interests"
in a REMIC; and the Class R Certificates will evidence the sole class of
"residual interests" in each related REMIC.
(xiv) There are no legal or governmental proceedings pending or, to
the knowledge of the Depositor, threatened to which the Depositor is a party or
to which any of the properties of the Depositor are subject that are required to
be described in the Prospectus or the Time of Sale Information or necessary in
order to make the statements therein in the light of the circumstances under
which they were made, not misleading and that are not so described, nor are
there any contracts or other documents to which the Depositor is a party or to
which the Depositor or any of the properties of the Depositor are subject that
are required to be described in the Prospectus.
(xv) At the Closing Date, the respective classes of Certificates shall
have been assigned ratings no lower than those set forth in Schedule I hereto by
the nationally recognized statistical rating organizations identified in
Schedule I hereto (the "Rating Agencies").
(xvi) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates payable by the Depositor (other than
income taxes) have been paid or will be paid at or prior to the Closing Date.
(xvii) None of the Depositor or any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes.
(xviii) The Depositor is not, and on the date on which the first bona
fide offer of the Certificates is made (within the meaning of Rule 164(h)(2)
under the 0000 Xxx) will not be, an "ineligible issuer," as defined in Rule 405
under the 0000 Xxx.
(b) Each Underwriter represents and warrants to the Depositor that, as
of the date hereof and as of the Closing Date, such Underwriter has
complied with all of its obligations hereunder.
(2) Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance upon
the representations and warranties herein contained, the Depositor shall sell to
the Underwriters, and each Underwriter shall, severally and not jointly,
purchase from the Depositor, at the related purchase price set forth on Schedule
I hereto, Certificates of each class thereof having an actual or notional amount
as set forth on Schedule I hereto opposite their names. There will be added
-7-
to the purchase price of the Certificates an amount equal to interest accrued
thereon pursuant to the terms thereof from March 1, 2007 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 March 29, 2007,
which date and time may be postponed by agreement between the Underwriters and
the Depositor (such time and date of payment and delivery, the "Closing Date").
Payment shall be made to the Depositor by the Underwriters of the purchase
prices of the Certificates as set forth in Schedule I in immediately available
Federal funds wired to such bank as may be designated by the Depositor, against
delivery of the Certificates. Delivery of the Certificates will be made in
book-entry form through the facilities of The Depository Trust Company ("DTC").
Each class of Certificates will be represented by one or more definitive global
Certificates to be deposited by or on behalf of the Depositor with DTC or the
Trustee. The Certificates will be made available for examination by the
Underwriters not later than 10:00 a.m. New York City time on the last business
day prior to the Closing Date. The closing of the transactions contemplated
hereby shall be made at the offices of Sidley Austin LLP, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the
Underwriters and the Depositor.
(4) Offering by Underwriters; Free Writing Prospectuses.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale as set forth in the Prospectus. It is further
understood that the Depositor, in reliance upon Policy Statement 105,
has not and will not file an offering statement pursuant to Section
352-e of the General Business Law of the State of New York with
respect to the Certificates. Each Underwriter severally and not
jointly therefore agrees that sales of the Certificates made by such
Underwriter in and from the State of New York will be made only to
institutional investors within the meaning of Policy Statement 105.
(b) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors
Free Writing Prospectuses (as defined below), or portions thereof,
which the Depositor is required to file with the Commission in
electronic format and will use reasonable efforts to provide to the
Depositor such Free Writing Prospectuses, or portions thereof, in
either Microsoft Word(R) or Microsoft Excel(R) format and not in a
PDF, except to the extent that the Depositor, in its sole discretion,
waives such requirements, subject to the following conditions (to
which such conditions each Underwriter agrees (provided that no
Underwriter shall be responsible for any breach of the following
conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication to any person
in connection with the initial offering of the Certificates, unless such written
communication (1) is made in reliance on Rule 134 under the 1933 Act, (2)
constitutes a prospectus satisfying the requirements of Rule 430B under the 1933
Act or (3) constitutes Time of Sale Information or a Free Writing
-8-
Prospectus that does not constitute Time of Sale Information. The Underwriters
shall not convey or deliver in connection with the initial offering of the
Certificates any "ABS informational and computational material," as defined in
Item 1101(a) of Regulation AB under the 1933 Act ("ABS Informational and
Computational Material"), in reliance upon Rules 167 and 426 under the 1933 Act.
(ii) Each Underwriter shall deliver to the Depositor, no later
than two business days prior to the date of first use thereof or such later date
as may be agreed to by the Depositor, (a) any Free Writing Prospectus that was
prepared by or on behalf of such Underwriter (an "Underwriter Free Writing
Prospectus") and that contains any "issuer information," as defined in Rule
433(h) under the 1933 Act and footnote 271 of the Commission's Securities
Offering Reform Release No. 33-8591 ("Issuer Information") (which the parties
hereto agree includes, without limitation, Mortgage Loan Seller Information),
and (b) any Free Writing Prospectus or portion thereof prepared by or on behalf
of such Underwriter that contains only a description of the final terms of the
Certificates. Notwithstanding the foregoing, any Free Writing Prospectus that
contains only ABS Informational and Computational Materials may be delivered by
an Underwriter to the Depositor not later than the later of (A) two business
days prior to the due date for filing of the Prospectus pursuant to Rule 424(b)
under the 1933 Act or such later date as may be agreed to by the Depositor or
(B) the date of first use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Depositor
that the Free Writing Prospectuses to be furnished to the Depositor by such
Underwriter pursuant to Section 4(b)(ii) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to prospective
investors by such Underwriter in connection with its offer and sale of the
Certificates.
(iv) Each Underwriter represents and warrants to the Depositor
that each Free Writing Prospectus required to be provided by it to the Depositor
pursuant to Section 4(b)(ii) did not, as of the Time of Sale, and will not as of
the Closing Date, include any untrue statement of a material fact or omit any
material fact necessary to make the statements contained therein (when read in
conjunction with the Time of Sale Information), in light of the circumstances
under which they were made, not misleading; provided, however, that such
Underwriter makes no representation to the extent such misstatements or
omissions were the result of any inaccurate Issuer Information, which
information was not corrected by Corrective Information subsequently supplied by
the Depositor or any Mortgage Loan Seller to such Underwriter within a
reasonable period of time prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission the
following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered
by any Underwriter to the Depositor pursuant to Section 4(b)(ii); and
(C) Any Free Writing Prospectus for which the Depositor or
any person acting on its behalf provided, authorized or approved
information that
-9-
is prepared and published or disseminated by a person unaffiliated
with the Depositor or any other offering participant that is in the
business of publishing, radio or television broadcasting or otherwise
disseminating communications.
Notwithstanding the foregoing, the Depositor shall not be required to
file (1) Issuer Information contained in any Underwriter Free Writing
Prospectus or Free Writing Prospectus of any other offering
participant other than the Depositor, if such information is included
or incorporated by reference in a prospectus or Free Writing
Prospectus previously filed with the Commission that relates to the
offering of the Certificates, or (2) any Free Writing Prospectus or
portion thereof that contains a description of the Certificates or the
offering of the Certificates which does not reflect the final terms
thereof.
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 4(b)(v) by the Depositor shall be filed with the Commission not later
than the date of first use of the Free Writing Prospectus, except that:
(A) Any Free Writing Prospectus or portion thereof required
to be filed that contains only the description of the final terms of
the Certificates shall be filed by the Depositor with the Commission
within two days of the later of the date such final terms have been
established for all classes of Certificates and the date of first use;
(B) Any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS Informational and Computational
Material shall be filed by the Depositor with the Commission not later
than the later of the due date for filing the final Prospectus
relating to the Certificates pursuant to Rule 424(b) under the 1933
Act or two business days after the first use of such Free Writing
Prospectus; and
(C) Any Free Writing Prospectus required to be filed
pursuant to Section 4(b)(v)(C) shall, if no payment has been made or
consideration has been given by or on behalf of the Depositor for the
Free Writing Prospectus or its dissemination, be filed by the
Depositor with the Commission not later than four business days after
the Depositor becomes aware of the publication, radio or television
broadcast or other dissemination of the Free Writing Prospectus.
(vii) Each Underwriter shall file with the Commission any Free
Writing Prospectus that is used or referred to by it and distributed by or on
behalf of such Underwriter in a manner reasonably designed to lead to its broad,
unrestricted dissemination not later than the date of the first use of such Free
Writing Prospectus.
(viii) Notwithstanding the provisions of Section 4(b)(vii), each
Underwriter shall file with the Commission any Free Writing Prospectus for which
such Underwriter or any person acting on its behalf provided, authorized or
approved information that is prepared and published or disseminated by a person
unaffiliated with the Depositor or any other offering participant that is in the
business of publishing, radio or television broadcasting or
-10-
otherwise disseminating written communications and for which no payment was made
or consideration given by or on behalf of the Depositor or any other offering
participant, not later than four business days after such Underwriter becomes
aware of the publication, radio or television broadcast or other dissemination
of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 4(b)(v) and
4(b)(vii), neither the Depositor nor any Underwriter shall be required to file
any Free Writing Prospectus that does not contain substantive changes from or
additions to a Free Writing Prospectus previously filed with the Commission, and
neither Underwriter shall be required to file any Free Writing Prospectus to the
extent that the information contained therein is included in a prospectus or
Free Writing Prospectus previously filed that relates to the offering of the
Certificates.
(x) The Depositor and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend, or
substantially equivalent legend that complies with Rule 433 of the Act:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
depositor has filed with the SEC for more complete information
about the depositor, the issuing trust, and this offering. You
may get these documents for free by visiting XXXXX on the SEC Web
site at xxx.xxx.xxx. Alternatively, the depositor, any
underwriter or any dealer participating in the offering will
arrange to send you the prospectus if you request it by calling
toll-free 0-000-000-0000.
(xi) The Depositor and each Underwriter agree to retain all Free
Writing Prospectuses that they have used and that are not required to be filed
pursuant to this Section 4 for a period of three years following the initial
bona fide offering of the Certificates.
(xii) (A) In the event that the Depositor becomes aware that, as
of the Time of Sale, any Issuer Free Writing Prospectus contains any
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained therein (when read
in conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading (a "Defective
Issuer Free Writing Prospectus"), the Depositor shall notify the
Underwriters of such untrue statement or omission within one business
day after discovery and the Depositor shall, if requested by the
Underwriters, prepare and deliver to the Underwriters a Free Writing
Prospectus that corrects the material misstatement or omission in the
Defective Issuer Free Writing Prospectus (such corrected Issuer Free
Writing Prospectus, a "Corrected Issuer Free Writing Prospectus").
(B) In the event that any Underwriter becomes aware that, as
of the Time of Sale, any Underwriter Free Writing Prospectus delivered
to an investor in any Certificates contained any untrue statement of a
material fact or
-11-
omitted to state a material fact necessary in order to make the
statements contained therein (when read in conjunction with the Time
of Sale Information), in light of the circumstances under which they
were made, not misleading (together with a Defective Issuer Free
Writing Prospectus, a "Defective Free Writing Prospectus"), such
Underwriter shall notify the Depositor of such untrue statement or
omission within one business day after discovery.
(C) The Underwriters shall, if requested by the Depositor:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus that corrects the material misstatement in or omission
from the Defective Free Writing Prospectus (together with a
Corrected Issuer Free Writing Prospectus, a "Corrected Free
Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with such
investor;
(3) notify such investor in a prominent fashion that
the prior contract of sale with the investor has been terminated,
and of the investor's rights as a result of termination of such
agreement;
(4) provide such investor with an opportunity to
affirmatively agree to purchase the Certificates on the terms
described in the Corrected Free Writing Prospectus; and
(5) comply with any other requirements for reformation
of the original contract of sale with such investor, as described
in Section IV.A.2.c of Commission's Securities Offering Reform
Release No. 33-8591.
(D) In the event that the Defective Free Writing Prospectus
was an Issuer Free Writing Prospectus, and the Underwriters shall
in good faith incur any costs to an investor in connection with
the reformation of the contract of sale with the investor, the
Depositor agrees to reimburse the Underwriters for such costs;
provided that, before incurring such costs, the Underwriters
first permits the Depositor access to the applicable investor and
an opportunity to attempt to mitigate such costs through direct
negotiation with such investor.
(xiii) Each Underwriter covenants with the Depositor that after the
Prospectus is available such Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless such
information is preceded or accompanied by the Prospectus.
(c) Each Underwriter further represents and warrants that (1) it has
only communicated or
-12-
caused to be communicated and will only communicate or cause to be
communicated an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services
and Markets Act 2000 (the "FSMA")) received by it in connection with
the issue or sale of Certificates in circumstances in which Section
21(1) of the FSMA does not apply to the issuer, (2) it has complied
and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to Certificates in, from or
otherwise involving the United Kingdom and (3) it has offered and sold
Certificates only to, or directed at, persons who:
(i) are outside the United Kingdom;
(ii) have professional experience in participating in unregulated
collective investment schemes; or
(iii) are persons falling within Articles 49(2)(A) through (D) or
19 of the FSMA (Financial Promotion) Order 2005.
(5) Covenants of the Depositor.
The Depositor covenants with each Underwriter as follows:
(a) The Depositor will give each of the Underwriters notice of its
intention to prepare, use, authorize, approve, refer to or file any
Issuer Free Writing Prospectus or to file or prepare (i) any amendment
to the Registration Statement at any time prior to the Closing Date or
(ii) any amendment or supplement to the Prospectus (including any
revised prospectus that the Depositor proposes for use by the
Underwriters in connection with the offering of the Certificates and
that differs from the prospectus on file at the Commission at the time
the Registration Statement became effective, whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b) of
the 1933 Act Regulations) at any time during the period when a
prospectus relating to the Certificates is required to be delivered
under the 1933 Act, and the Depositor will furnish the Underwriters
with copies of any such Issuer Free Writing Prospectus, amendment or
supplement a reasonable amount of time prior to such proposed filing
or use, as the case may be, and will not prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus or
file any such amendment or supplement or use any such prospectus to
which the Underwriters shall reasonably object.
(b) The Depositor will promptly give each Underwriter notice of (i)
any request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information relating
to the Certificates, (ii) any written notification received by the
Depositor of suspension of qualification of the Certificates for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose and (iii) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the institution or, to the knowledge of the Depositor, threatening any
proceeding for that purpose. The Depositor will use its best efforts
to prevent the issuance of any
-13-
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(c) The Depositor will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the 1933 Act by
means reasonably calculated to result in filing with the Commission
pursuant to said rule. Subject to Section 4, the Depositor will cause
each Issuer Free Writing Prospectus to be transmitted for filing
pursuant to Rule 433 under the 1933 Act by means reasonably calculated
to result in filing with the Commission pursuant to said rule.
(d) The Depositor will furnish to each Underwriter, from time to time
during the period when a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, such number of copies of
the Prospectus and each Free Writing Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the 1933 Act or the Securities Exchange Act
of 1934, as amended (the "1934 Act") or the respective applicable
rules and regulations of the Commission thereunder.
(e) If, during the period after the first date of the public offering
of the Certificates in which a prospectus relating to the Certificates
is required to be delivered under the 1933 Act, any event shall occur
as a result of which it is necessary to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light
of the circumstances existing at the time it is delivered to an
investor in the Certificates, if the Depositor has actual knowledge of
the event, and if the event is not otherwise disclosed in a filing to
the Registration Statement pursuant to Section 13 or 15(d) of the 1934
Act, the Depositor will forthwith amend or supplement the Prospectus
so that, as so amended or supplemented, the Prospectus will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances existing at the time it is delivered to
a purchaser, not misleading, and the Depositor will furnish to each
Underwriter a reasonable number of copies of such amendment or
supplement.
(f) The Depositor will endeavor to arrange for the qualification of
the Certificates for sale under the applicable securities laws of such
states and other jurisdictions of the United States as the
Underwriters may reasonably designate and will maintain such
qualification in effect so long as required for the initial
distribution of Certificates; provided, however, that the Depositor
shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a general
consent to service of process in any jurisdiction.
(g) The Depositor will use the net proceeds received by it from the
sale of the Certificates in the manner specified in the Prospectus
under "Use of Proceeds".
(h) Whether or not the transactions contemplated by this Agreement are
consummated, the Depositor will pay or cause to be paid all expenses
incident to
-14-
the performance of the obligations of the Depositor under this
Agreement, including, without limitation, (i) the fees, disbursements
and expenses of the Depositor's counsel and accountants in connection
with the purchase of the Mortgage Loans and the issuance and sale of
the Certificates, (ii) all fees and expenses incurred in connection
with the registration and delivery of the Certificates under the 1933
Act, and all other fees or expenses in connection with the preparation
and filing of the Registration Statement, the Time of Sale
Information, any Issuer Free Writing Prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities
specified above, (iii) all costs and expenses related to the transfer
and delivery of the Certificates to the Underwriters, including any
transfer or other taxes payable thereon, (iv) the costs of printing or
producing any "blue sky" memorandum in connection with the offer and
sale of the Certificates under state securities laws and all expenses
in connection with the qualification of the Certificates for the offer
and sale under state securities laws as provided in Section 5(f),
including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and
in connection with the "blue sky" memorandum, (v) the cost of printing
the Certificates, (vi) the upfront costs and charges of any transfer
agent, registrar or depository, (vii) the fees and expenses of the
rating agencies incurred in connection with the issuance and sale of
the Certificates and (viii) all other costs and expenses incident to
the performance of the obligations of the Depositor hereunder for
which provision is not otherwise made in this Section. Except as
herein provided, the Underwriters shall be responsible for the payment
of all costs and expenses incurred by them, including, without
limitation, (i) the fees and disbursements of counsel of the
Underwriters and (ii) such additional costs arising out of any Free
Writing Prospectuses prepared by or on behalf of the Underwriters and
the filing of such materials, if required, with the Commission.
(i) The Depositor shall obtain a letter from Deloitte & Touche LLP,
certified public accountants, satisfactory in form and substance to
the Depositor and the Underwriters, to the effect that such
accountants have performed certain specified procedures, all of which
have been agreed to by the Depositor and the Underwriters, as a result
of which they have determined that the information included in the
Time of Sale Information that the accountants have examined in
accordance with such agreed upon procedures, is accurate except as to
such matters that are not deemed by the Depositor or the Underwriters
to be material.
(6) Conditions of Underwriters' Obligations.
Each Underwriter's obligation to purchase the Certificates allocated to it
as set forth on Schedule I hereto shall be subject to the accuracy in all
material respects of the representations and warranties on the part of the
Depositor contained herein as of the date hereof and as of the Closing Date, to
the performance by the Depositor in all material respects of its obligations
hereunder and to the following conditions:
-15-
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose
shall be pending or, to the Depositor's knowledge, threatened by the
Commission and the Prospectus Supplement and each Free Writing
Prospectus required to be filed by the Depositor pursuant to Section
4(b) shall have been filed or transmitted for filing by means
reasonably calculated to result in a filing with the Commission
pursuant to Rule 424(b) under the 1933 Act or Rule 433 under the 1933
Act, as applicable.
(b) On the Closing Date, such Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of counsel to
the Depositor, in form and substance satisfactory to such Underwriter,
substantially to the effect that:
(A) The Depositor is a corporation in good standing under
the laws of the State of Delaware.
(B) The Depositor has corporate power and authority to enter
into and perform its obligations under this Agreement and the
Pooling and Servicing Agreement.
(C) Each of this Agreement and the Pooling and Servicing
Agreement has been duly authorized, executed and delivered by the
Depositor. Upon due authorization, execution and delivery by the other
parties thereto, the Pooling and Servicing Agreement will constitute a
valid, legal and binding agreement of the Depositor, enforceable
against the Depositor in accordance with its terms, except as
enforceability may be limited by (1) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar
laws affecting the enforcement of the rights of creditors generally,
(2) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law and (3) such other exceptions as are
reasonably acceptable to the Underwriters.
(D) The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with this Agreement,
will be entitled to the benefits of the Pooling and Servicing
Agreement.
(E) The Registration Statement was declared effective under
the 1933 Act and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and not
withdrawn, and no proceedings for that purpose have been initiated or
threatened by the Commission.
(F) At the time it became effective, the Registration
Statement (other than any financial or statistical information
included or incorporated by reference therein, as to which no opinion
need be rendered) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
-16-
(G) To such counsel's knowledge and information, there are
no material contracts, indentures, or other documents of the Depositor
required to be described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto.
(H) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended, and
the issuance and sale of the Certificates in the manner contemplated
by the Prospectus will not cause the Trust Fund to be subject to
registration or regulation as an "investment company" under the
Investment Company Act of 1940, as amended.
(I) No consent, approval, authorization, or order of any
State of New York or federal court or governmental agency or body is
required for the consummation by the Depositor of the transactions
contemplated herein, except (1) such as have been obtained, (2) such
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and sale of the Certificates by the
Underwriters, as to which no opinion need be expressed and (3) any
recordation of the assignments of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that has not yet been
completed.
(J) Neither the sale of the Certificates to the Underwriters
pursuant to this Agreement, nor the consummation by the Depositor of
any other of the transactions contemplated by, or the fulfillment by
the Depositor of the terms of, this Agreement or the Pooling and
Servicing Agreement, will conflict with or result in a breach or
violation of any term or provision of, or constitute a default (or an
event which with the passing of time or notification or both, would
constitute a default) under, (1) the certificate of incorporation or
by-laws of the Depositor, or, (2) to the knowledge of such counsel,
any material indenture, agreement or instrument to which the Depositor
is a party or by which it is bound, or, (3) any State of New York or
federal statute or regulation applicable to the Depositor, or, (4) to
the knowledge of such counsel, any order of any New York or federal
court, regulatory body, administrative agency or governmental body
having jurisdiction over the Depositor except, in the case of either
(2) or (4), for any conflict, breach, violation or default that, in
the judgment of such counsel, is not reasonably likely to materially
and adversely affect the Depositor's ability to perform its
obligations under this Agreement or the Pooling and Servicing
Agreement.
(ii) An opinion, dated the Closing Date, of counsel to the
Underwriters, reasonably acceptable to the Underwriters.
(iii) In giving their opinions required by the foregoing
subsections (i) and (ii) of this Section, counsel to the Depositor and
the Underwriters, respectively, shall in each case additionally state
that nothing has come to such counsel's attention that has caused it
to believe that (i), in the case of counsel to the Depositor, the
Registration Statement, the Prospectus or the Time of Sale
-17-
Information, and (ii) in the case of counsel to the Underwriters, the
Prospectus or the Time of Sale Information (in each case other than
any financial statements and supporting schedules and statistical
and/or accounting information included therein, as to which no
statement need be made), in the case of the Registration Statement, as
of the time it became effective, in the case of the Prospectus, as of
the date thereof or as of the Closing Date, and as of the Time of
Sale, in the case of the Time of Sale Information, contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such
statement shall be based upon conferences and telephone conversations
with representatives of the parties hereto, the Mortgage Loan Sellers,
the Master Servicers, the Special Servicers, the Certificate
Administrator, the Tax Administrator and the Trustee and such
statement may be qualified that, with limited exception, such counsel
will not have reviewed any loan documents.
Such opinion(s) may express its (their) reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion(s) may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the party on behalf of which such
opinion is being rendered. Such opinion(s) may be qualified as an opinion only
on the General Corporation Law of the State of Delaware, the laws of the State
of New York and the federal law of the United States.
(c) On the Closing Date, each Underwriter shall have received a
favorable opinion, dated the Closing Date, of special tax and ERISA
counsel to the Depositor (i) regarding the qualification of each of
REMIC I, REMIC II and REMIC III as a real estate mortgage investment
conduit within the meaning of Sections 860A through 860G of the
Internal Revenue Code of 1986 and (ii) to the effect that the
statements in the Base Prospectus and the Prospectus Supplement under
the headings "Federal Income Tax Consequences" and "ERISA
Considerations", to the extent that they constitute matters of federal
law or legal conclusions with respect thereto, while not purporting to
discuss all possible consequences of investment in the Certificates,
are correct in all material respects with respect to those
consequences or matters that are discussed therein. Such opinion(s)
may express its (their) reliance as to factual matters on the
representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of,
the parties to this Agreement and the Pooling and Servicing Agreement
and on certificates furnished by public officials. Such opinion(s) may
assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto.
Such opinion(s) may be qualified as an opinion only on the federal tax
and ERISA law of the United States.
-18-
(d) The Depositor shall have delivered to each Underwriter a
certificate, dated the Closing Date, and signed by the President, a
Senior Vice President or a Vice President of the Depositor, to the
effect that:
(i) the representations and warranties of the Depositor in this
Agreement and the Pooling and Servicing Agreement are true and correct in all
material respects; and
(ii) the Depositor has, in all material respects, complied with
all the agreements and satisfied all the conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date.
(e) Each Mortgage Loan Seller shall have delivered to each Underwriter
a certificate, dated the Closing Date, and signed by the President, a
Senior Vice President or a Vice President of the Mortgage Loan Seller
to the effect that:
(i) the representations and warranties of the Mortgage Loan
Seller in Section 4(a) of the respective Mortgage Loan Purchase Agreement are
true and correct in all material respects;
(ii) the Mortgage Loan Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied under the respective Mortgage Loan Purchase Agreement
at or prior to the Closing Date;
(iii) since the date of this Agreement and prior to the sale of
the Mortgage Loans under the Agreement, there has been no material adverse
change in the financial condition of the Mortgage Loan Seller.
(f) The Depositor and each Underwriter shall have received from
Deloitte & Touche LLP, certified public accountants, a letter dated
the Closing Date, in form and substance satisfactory to such
Underwriter, stating in effect that:
(i) they have performed certain specified procedures as a result
of which they have determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement agrees
with the data sheet or computer tape prepared by or on behalf of each Mortgage
Loan Seller, unless otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to information
contained in the Mortgage Files and in such other sources as shall be specified
by them, and found such data and information to be in agreement, unless
otherwise noted in such letter.
(g) The Depositor shall have received the accountant's letters
specified in Section 5(i).
(h) Each Underwriter shall have received, with respect to each of the
Master Servicers, the Special Servicers, the Certificate
Administrator, the Tax
-19-
Administrator and the Trustee, a favorable opinion of counsel, dated
the Closing Date, addressing the valid existence of such party under
the laws of the jurisdiction of its organization, the due
authorization, execution and delivery of the Pooling and Servicing
Agreement by such party and, subject to the same limitations as set
forth in Section 6(b)(i)(C), the enforceability of the Pooling and
Servicing Agreement against such party and such other opinions as
shall be reasonably requested by such Underwriter. Such opinion may
express its reliance as to factual matters on representations and
warranties made by, and on certificates or other documents furnished
by, officers and/or authorized representatives of parties to, the
Pooling and Servicing Agreement and on certificates furnished by
public officials. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents referred to
therein by the parties thereto other than the party on behalf of which
such opinion is being rendered.
(i) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or
affecting the business or properties of the Depositor or a Mortgage
Loan Seller (including any of the Mortgage Loans) which such
Underwriter concludes, in the reasonable judgment of such Underwriter,
materially impairs the investment quality of the Certificates so as to
make it impractical or inadvisable to proceed with the public offering
or the delivery of the Certificates as contemplated by the Time of
Sale Information (excluding the Corrective Information) and the
Prospectus.
(j) The Certificates shall have been assigned ratings by the Rating
Agencies (as defined in the Pooling and Servicing Agreement) no less
than those set forth on Schedule I and such ratings shall not have
been withdrawn, suspended or qualified.
(k) The Underwriters shall have received copies of any opinions of
counsel to the Depositor supplied to the Rating Agencies relating to
certain matters with respect to the Certificates. Any such opinions
shall be dated the Closing Date and addressed to the Underwriters or
accompanied by reliance letters addressed to the Underwriters.
(l) The Depositor shall have furnished to the Underwriters such
further opinions, information, certificates and documents as the
Underwriters may reasonably have requested, and all proceedings in
connection with the transactions contemplated by this Agreement and
all documents incident hereto shall be in all material respects
reasonably satisfactory in form and substance to the Underwriters and
their counsel.
(7) Indemnification.
(a) The Depositor shall indemnify and hold harmless each Underwriter
(severally and not jointly), its directors and officers and each
person, if any, who controls such Underwriter within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from
and against any and all expenses, losses,
-20-
claims, damages and other liabilities (including without limitation
the reasonable costs of investigation and legal defense) (the
"Liabilities") caused by (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement
or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, not misleading, or any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus or any
omission or alleged omission to state therein a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (ii) any
untrue statement or alleged untrue statement of a material fact
contained in any Issuer Free Writing Prospectus or any Issuer
Information contained in any Underwriter Free Writing Prospectus, or
the omission or alleged omission to state a material fact necessary to
make the statements therein (when read in conjunction with the other
Time of Sale Information), in light of the circumstances under which
they were made, not misleading, which was not corrected by Corrective
Information subsequently supplied by the Depositor or any Mortgage
Loan Seller to any Underwriter within a reasonable period of time
prior to the Time of Sale, or (iii) any breach of the representation
and warranty in Section 1(a)(R); provided, however, that, in the case
of clauses (i) and (ii) above, the Depositor shall have no obligation
to so indemnify and hold harmless insofar as the Liabilities arise
from or are based upon (A) any such untrue statement or omission or
alleged untrue statement or omission with respect to any information
in the Prospectus as to which any Underwriter has agreed to indemnify
the Depositor pursuant to Section 7(b), (B) an untrue statement or
omission or an alleged untrue statement or omission with respect to
the Mortgage Loan Seller Information (including without limitation
untrue statements or alleged untrue statements or omissions or alleged
untrue omissions in the portions of the Prospectus Supplement under
the heading "Yield and Maturity Considerations" that arise out of or
are based upon untrue statements or alleged untrue statements or
omissions or alleged omissions in the Mortgage Loan Seller
Information) or (C) an untrue statement or omission or an alleged
untrue statement or omission with respect to the Servicer/Trustee
Information.
(b) Each Underwriter shall, severally and not jointly, indemnify and
hold harmless the Depositor, its directors and its officers who signed
the Registration Statement and each person, if any, who controls the
Depositor within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all Liabilities as
incurred, but only with respect to Liabilities caused by any (i)
untrue statements or alleged untrue statements of a material fact in
the Underwriter Information and (ii) untrue statements or alleged
untrue statements of a material fact in any Underwriter Free Writing
Prospectus prepared by or on behalf of such Underwriter or omission or
alleged omission to state in such Underwriter Free Writing Prospectus
a material fact necessary in order to make the statements therein
(when read in conjunction with the Time of Sale Information), in the
light of the circumstances under which they were made, not misleading;
provided that no Underwriter shall be obligated to so indemnify and
hold harmless (A) to the extent such Liabilities are caused by a
misstatement or
-21-
omission resulting from an error or omission in the Issuer Information
which was not corrected by Corrective Information subsequently
supplied by the Depositor or any Mortgage Loan Seller to any
Underwriter within a reasonable period of time prior to the Time of
Sale or (B) with respect to information that is also contained in the
Time of Sale Information.
(c) Each indemnified party shall give notice in writing as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may have
otherwise than under subsection (a) or (b) of this Section 7. Upon
request of the indemnified party, the indemnifying party shall retain
counsel reasonably satisfactory to the indemnified party to represent
the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements
of such counsel related to such proceeding as incurred. If any action
is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
may participate at its own expense in the defense of any such action.
The indemnifying party may elect to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from the indemnified party. In any such proceeding,
any indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the
indemnified party shall have agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them or (iii) the indemnifying party shall have failed to designate
within a reasonable period of time counsel reasonably satisfactory to
the indemnified party (in which case the fees and expenses shall be
paid as incurred by the indemnifying party). In no event shall the
indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. An
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent. However, if settled
with such consent or if there be a final judgment for the plaintiff,
the indemnifying party shall indemnify the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for
which the indemnifying party is obligated under this subsection, the
indemnifying party agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall
-22-
not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. If an indemnifying party
assumes the defense of any proceeding, it shall be entitled to settle
such proceeding with the consent of the indemnified party or, if such
settlement provides for an unconditional release of the indemnified
party in connection with all matters relating to the proceeding that
have been asserted against the indemnified party in such proceeding by
the other parties to such settlement and does not include an admission
of fault, culpability or failure to act by or on behalf of an
indemnified party, without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 7 is due in
accordance with its terms but is for any reason unavailable to an
indemnified party, or is insufficient to hold harmless an indemnified
party, in respect of any losses, claims, damages or liabilities under
subsection (a) or (b) on grounds of public policy or otherwise, then
the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Depositor on the one hand and the
applicable Underwriter on the other from the offer and sale of the
Certificates pursuant hereto or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Depositor on the one hand and of such Underwriter on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or other liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Depositor on the one hand, and such Underwriter on the other, in
connection with the offering of the Certificates underwritten by such
Underwriter shall be deemed to be in the same respective proportions
that the total proceeds from the sale of the Certificates underwritten
by such Underwriter (before deducting expenses) received by the
Depositor and the amount by which (i) the total price received by such
Underwriter with respect to the initial resale to investors in the
Certificates acquired by such Underwriter exceeds (ii) the total
underwriting discounts and commissions received by such Underwriter
(or, if no such Underwriter discounts and commissions are payable
hereunder, the amount of the other fees payable to such Underwriter in
connection with the offering of the Certificates), bear to the
aggregate offering price of the Certificates. The relative fault of
the Depositor on the one hand and of such Underwriter on the other
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Depositor or by such Underwriter, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The parties hereto agree that it would not be just and equitable
if contribution were determined by pro rata allocation or by any other
method of allocation that does not take account of the considerations
referred to in
-23-
subsection (d) above. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or other liabilities
referred to in this Section 7 shall be deemed to include any legal
fees and disbursements or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such claim. In the event that any expenses so paid by the indemnifying
party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such
payment shall promptly refund the amount so paid to the party which
made such payment. Notwithstanding the provisions of this subsection
(e), no Underwriter shall be required to contribute any amount in
excess of the amount by which (i) the total underwriting discounts and
commissions and other fees received by such Underwriter in connection
with the offering of the Certificates exceeds (ii) the amount of
damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies
that may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by the Depositor, an Underwriter, any of their
respective directors or officers, or any person controlling the
Depositor or such Underwriter within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, and (iii) acceptance of
and payment for any of the Certificates.
(g) The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the respective amount of
Certificates they have purchased hereunder, and not joint.
(h) Each Underwriter (the "Indemnifying Underwriter") will indemnify
and hold harmless the other Underwriters and each person, if any, who
controls such Underwriter within the meaning of either the 1933 Act or
the 1934 Act (the "Non-Indemnifying Underwriter") from and against any
and all losses, claims, damages or liabilities, joint or several, to
which the Non-Indemnifying Underwriter becomes subject under the 1933
Act, the 1934 Act or other federal or state statutory law or
regulation, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of
a material fact or the omission or alleged omission (when read in
conjunction with the Time of Sale Information) to state a material
fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading at the Time
of Sale, contained in any Underwriter Free Writing Prospectus prepared
by, or on behalf of, or used or referred to by, such Indemnifying
Underwriter or (ii) the failure of such Indemnifying Underwriter, or
-24-
any member of its selling group, to comply with any provision of
Section 4(b) or 9, and agrees to reimburse such Non-Indemnifying
Underwriter, as incurred for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action, except to the extent
such losses, claims, damages or liabilities are caused by a
misstatement or omission resulting from an error or omission in the
Issuer Information which was not corrected by Corrective Information
subsequently supplied by the Depositor or any Mortgage Loan Seller to
any Underwriter within a reasonable period of time prior to the Time
of Sale. This agreement will be in addition to any liability that any
Underwriter may otherwise have.
(8) Representations and Warranties to Survive Delivery.
All representations and warranties of the Depositor contained in this
Agreement shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
in respect of such Underwriter, and shall survive delivery of the Certificates
to the Underwriters.
(9) Defaulting Underwriter.
If, on the Closing Date, any of the Underwriters shall fail or refuse to
purchase Certificates that it has agreed to purchase hereunder on such date, and
the aggregate principal amount of Certificates which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of Certificates to be purchased on such date, the
other Underwriter shall be obligated to purchase the Certificates which such
defaulting Underwriter agreed but failed or refused to purchase on such date;
provided that in no event shall the principal amount of Certificates that any
Underwriter has agreed to purchase pursuant to Section 3 be increased pursuant
to this Section 9 by an amount in excess of one-ninth of such principal amount
of Certificates, without the written consent of such Underwriter, and provided,
further that no Underwriter shall be obligated under this Section 9 to purchase
Certificates of a Class that it is not otherwise obligated to purchase under
this Agreement.
If, on the Closing Date, one of the Underwriters shall fail or refuse to
purchase Certificates that it has agreed to purchase hereunder on such date and
the aggregate principal amount of Certificates with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Certificates to be purchased on such date and arrangements satisfactory to the
non-defaulting Underwriter and the Depositor for the purchase of such
Certificates are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or of the Depositor. In any such case either such non-defaulting Underwriter or
the Depositor shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
-25-
(10) Termination of Agreement.
(a) Any Underwriter may terminate its obligations under this
Agreement, by notice to the Depositor, at any time at or prior to the
Closing Date if the sale of the Certificates provided for herein is
not consummated because of any failure or refusal on the part of the
Depositor to comply in all material respects with the terms, or to
fulfill in all material respects any of the conditions of, this
Agreement, or if for any reason the Depositor shall be unable to
perform in all material respects its obligations under this Agreement.
(b) Any Underwriter may terminate its obligations under this Agreement
in the absolute discretion of such Underwriter, by notice given to the
Depositor, if (A) after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of the Depositor or its
affiliates shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either
Federal or State of New York authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis, or any major disruption
of settlement or clearance of securities in the United States, that,
in the judgment of such Underwriter, is material and adverse and (B)
in the case of any of the events specified in clauses (A)(i) through
(iv) above, such event singly or together with any other such event,
makes it, in the judgment of such Underwriter, impracticable to market
the Certificates on the terms and in the manner contemplated in the
Time of Sale Information and the Prospectus.
(c) If any Underwriter terminates its obligations under this Agreement
in accordance with Section 10(a), the Depositor shall reimburse such
Underwriter for all reasonable out-of pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by such Underwriter in connection with the
proposed purchase and sale of the Certificates.
(11) Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed duly given if sent by facsimile or delivered by courier, in
either case with appropriate confirmation of receipt. Notices to the Depositor
shall be directed to Bear Xxxxxxx Commercial Mortgage Securities Inc., 000
Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxxxxxxxx, Managing Director (with a copy to the attention of Xxxxxx X.
Xxxxxxxxx, Xx., Managing Director, Legal Department); to Bear, Xxxxxxx & Co.
Inc., shall be directed to Bear, Xxxxxxx & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing
Director, Commercial Mortgage Department (with a copy to the attention of Xxxxxx
X. Xxxxxxxxx, Xx., Managing Director, Legal Department);
-26-
to Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Friend (with a copy to Xxxxxx Xxxxxxx & Co. Incorporated,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel); and as to
any party, to such other address as may hereafter be furnished by such party to
the others in writing.
(12) Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Depositor and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person or entity, other than the Underwriters and the Depositor and
their respective successors and the controlling persons and officers and
directors referred to in Section 7 and their respective successors, heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Depositor and their respective
successors, and said controlling persons and officers and directors and their
respective successors, heirs and legal representatives, and for the benefit of
no other person or entity. No purchaser of Certificates from the Underwriters
shall be deemed to be a successor by reason merely of such purchase.
(13) Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State.
(14) Miscellaneous.
This Agreement supersedes all prior or contemporaneous agreements and
understandings between the parties hereto relating to the subject matter hereof.
Neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated except by a writing signed by the party against whom enforcement of
such amendment, waiver, discharge or termination is sought. This Agreement may
be signed in any number of duplicate originals, each of which shall be deemed an
original, which taken together shall constitute one and the same instrument.
[signature page follows]
-27-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Depositor a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Depositor in accordance with its terms.
Very truly yours,
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By:
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
BEAR, XXXXXXX & CO. INC.
By:
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Managing Director
XXXXXX XXXXXXX & CO. INCORPORATED
By:
------------------------------------
Name:
Title:
Underwriting Agreement
SCHEDULE I
Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates, Series 2007-PWR15, Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-1A, Class A-M and Class A-J
AMOUNT TO BE PURCHASED BY
AMOUNT TO BE PURCHASED XXXXXX XXXXXXX
CLASS OF CERTIFICATES BY BEAR, XXXXXXX & CO. INC. & CO. INCORPORATED
--------------------- --------------------------- -------------------------
A-1 $ 42,850,000 $ 42,850,000
A-2 $ 127,000,000 $ 127,000,000
A-3 $ 35,900,000 $ 35,900,000
A-AB $ 50,750,000 $ 50,750,000
A-4 $ 487,608,000 $ 487,608,000
A-1A $ 153,378,500 $ 153,378,500
A-M $ 77,855,000 $ 77,855,000
A-J $ 58,556,500 $ 58,556,500
Total $1,033,898,000.00 $1,033,898,000.00
Sch. I-1
SCHEDULE I (CONTINUED)
INITIAL AGGREGATE INITIAL
CLASS PRINCIPAL AMOUNT PASS-THROUGH PURCHASE RATING(3)
DESIGNATION OF CLASS(1) RATE PRICE(2) (XXXXX'X/S&P)
----------- ----------------- ------------ --------- -------------
A-1 $ 85,700,000 5.016% 99.99905% Aaa/AAA
A-2 $254,000,000 5.205% 100.54685% Aaa/AAA
A-3 $ 71,800,000 5.309% 100.54768% Aaa/AAA
A-AB $101,800,000 5.315% 100.54877% Aaa/AAA
A-4 $975,216,000 5.331% 100.54937% Aaa/AAA
A-1A $306,757,000 5.317% 100.54550% Aaa/AAA
A-M $155,710,000 5.363% 100.54358% Aaa/AAA
A-J $117,113,000 5.403% 100.54787% Aaa/AAA
----------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the aggregate stated amount of the relevant
class of Certificates to be purchased. The purchase price for each class of
the Certificates will also include accrued interest at the initial
Pass-Through Rate therefor on the aggregate stated amount thereof to be
purchased from March 1, 2007 to but not including the Closing Date.
(3) By each of Xxxxx'x Investors Services, Inc. ("Xxxxx'x") and Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P").
Sch. I-2
