EXECUTION COPY
LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C6,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-C6
UNDERWRITING AGREEMENT
As of September 22, 2006
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
UBS Global Asset Management (US) Inc.
1285 Avenue of the Americas
New York, New York 10019
UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
Structured Asset Securities Corporation II, a Delaware corporation
(the
"Company"), proposes to cause the issuance of, and to sell to
Lehman Brothers
Inc. ("LBI"), UBS Global Asset Management (US) Inc. ("UBS-AM") and
UBS
Securities LLC ("UBS Securities" and, collectively with LBI and
UBS-AM, the
"Underwriters"), the mortgage pass-through certificates that are
identified on
Schedule I attached hereto (the "Certificates").
The Certificates will evidence beneficial ownership interests in a
trust
fund (the "Trust Fund") to be formed by the Company 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
"UBS Mortgage
Loans") will be acquired by the Company from UBS Real Estate
Investments Inc.
("UBSREI"), pursuant to a mortgage loan purchase agreement dated as
of September
22, 2006 (the "UBS Mortgage Loan Purchase Agreement"), between the
Company and
UBSREI. The remaining Mortgage Loans (the "Lehman Mortgage Loans")
will be
acquired by the Company from Lehman Brothers Holdings Inc.
("LBHI"), pursuant to
a mortgage loan purchase agreement dated as of September 22, 2006
(the "LBHI
Mortgage Loan Purchase Agreement"), between the Company and LBHI;
provided that
one or more of the Lehman Mortgage Loans may be acquired by the
Company from an
affiliate of LBHI (the "LBHI-Affiliated Mortgage Loan Seller"),
pursuant to a
mortgage loan purchase agreement dated as of September 22, 2006
(the "Additional Mortgage Loan Purchase Agreement"), between the
Company, the
LBHI-Affiliated Mortgage Loan Seller and LBHI. LBHI, any
LBHI-Affiliated
Mortgage Loan Seller and UBSREI are each referred to herein as a
"Mortgage Loan
Seller" and are collectively referred to herein as the "Mortgage
Loan Sellers."
The LBHI Mortgage Loan Purchase Agreement, any Additional Mortgage
Loan Purchase
Agreement and the UBS Mortgage Loan Purchase Agreement are each
referred to
herein as a "Mortgage Loan Purchase Agreement" and are collectively
referred to
herein as the "Mortgage Loan Purchase Agreements".
In connection with the sale by UBSREI to the Company of the UBS
Mortgage
Loans, UBSREI, the Company, LBI, UBS-AM and UBS Securities entered
into an
indemnification agreement dated as of September 22, 2006 (the "UBS
Indemnification Agreement"). In connection with the sale by LBHI
and any
LBHI-Affiliated Mortgage Loan Seller to the Company of the Lehman
Mortgage
Loans, LBHI, the Company, LBI, UBS-AM and UBS Securities also
entered into an
indemnification agreement dated as of September 22, 2006 (the "LBHI
Indemnification Agreement"; and, together with the UBS
Indemnification
Agreement, the "Mortgage Loan Seller Indemnification Agreements").
The Certificates will be issued under a pooling and servicing
agreement to
be dated as of September 11, 2006 (the "Pooling and Servicing
Agreement"), among
the Company, as depositor, Wachovia Bank, National Association
("Wachovia"), as
master servicer (in such capacity, the "Master Servicer"), LNR
Partners, Inc.
("LNR"), as special servicer (in such capacity, the "Special
Servicer"), and
LaSalle Bank National Association ("LaSalle"), as trustee (in such
capacity, the
"Trustee"). The Certificates and the Mortgage Loans are described
more fully in
the Prospectus (as defined below), which the Company has furnished
to the
Underwriters. The Certificates are part of a series of mortgage
pass-through
certificates that evidence beneficial ownership interests in the
Trust Fund and
are being issued pursuant to the Pooling and Servicing Agreement.
The other
certificates of such series will be retained by the Company or
privately placed
with a limited number of institutional investors.
In connection with the execution and delivery of the Pooling and
Servicing
Agreement: (i) LaSalle, the Company, LBI, UBS-AM and UBS Securities
entered into
an indemnification agreement dated as of September 22, 2006 (the
"Trustee
Indemnification Agreement"); (ii) Wachovia, the Company, LBI,
UBS-AM and UBS
Securities entered into an indemnification agreement dated as of
September 22,
2006 (the "Master Servicer Indemnification Agreement"); and (iii)
LNR, the
Company, LBI and UBS Securities entered into an indemnification
agreement dated
as of September 22, 2006 (the "Special Servicer Indemnification
Agreement"; and,
collectively with the Trustee Indemnification Agreement, the Master
Servicer
Indemnification Agreement and the Mortgage Loan Seller
Indemnification
Agreements, the "Indemnification Agreements").
The Company has filed with the Securities and Exchange Commission
(the
"Commission") a registration statement on Form S-3 (No. 333-129844)
for the
registration of the Certificates under the Securities Act of 1933,
as amended
(the "1933 Act"), which registration statement has become
effective. The rules
and regulations of the Commission promulgated under the 1933 Act
are
collectively referred to in this Agreement as the "1933 Act Rules."
As used in
this Underwriting Agreement (this "Agreement" or this "Underwriting
Agreement"):
(i) "Registration Statement" means the foregoing registration
statement and all
exhibits thereto, as amended or supplemented to the date of this
Agreement,
together with any information that is contained in the Prospectus
(as defined
below) that is deemed to be a part of and included in that
registration
statement pursuant to Rule 430B under the 1933 Act as of the date
hereof; (ii)
"Basic Prospectus" means the base prospectus included in the
Registration
Statement at the time it became
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effective, as amended or supplemented up to the date of filing of
the Prospectus
Supplement (as defined below) by any base prospectus filed with the
Commission
pursuant to paragraph (b) of Rule 424 under the 1933 Act; (iii)
"Prospectus
Supplement" means the prospectus supplement to the Basic
Prospectus,
specifically relating to the Certificates, filed or to be filed
with the
Commission pursuant to paragraph (b) of Rule 424 under the 1933
Act, that is
deemed to be part of and included in the Registration Statement on
the date
hereof in accordance with paragraph (f) under Rule 430B of the 1933
Act; and
(iv) "Prospectus" means the Basic Prospectus, together with the
Prospectus
Supplement.
At or prior to the time when sales to purchasers of the Publicly
Offered
Certificates were first made in accordance with Rule 159 under the
1933 Act,
which was approximately 1:40 p.m. (New York City time) on September
22, 2006
(the "Time of Sale"), the Company had prepared the following
information, which
is collectively referred to as the "Time of Sale Information": (i)
the Basic
Prospectus dated September 15, 2006; (ii) the Free Writing
Prospectus (as
defined below), dated September 15, 2006 relating to the
Certificates and filed
by the Company on September 18, 2006 pursuant to Rule 433 under the
1933 Act
(the "Offering Prospectus"), which Free Writing Prospectus refers
to itself
therein as "this offering prospectus", consists of over 290 printed
pages and
was accompanied by the Basic Prospectus; and (iii) any other Issuer
Free Writing
Prospectuses (as defined below) relating to the Certificates that
have been
conveyed to prospective investors prior to the Time of Sale and
that have been
or will be filed by the Company with the Commission pursuant to
Rule 433 under
the 1933 Act. If, subsequent to the date of this Agreement, the
Company and the
Underwriters determine that, as to the investors in one or more
Classes of the
Publicly Offered Certificates, such initial Time of Sale
Information includes an
untrue statement of material fact or omits to state a material fact
necessary in
order to make the statements therein, in light of the circumstances
under which
they were made, not misleading, and the Underwriters terminate
their old
purchase contracts and enter into new purchase contracts with
investors in the
Publicly Offered Certificates, then "Time of Sale Information"
shall refer to
the information conveyed to investors at the time of entry into the
last such
new purchase contract, including any information that corrects such
material
misstatements or omissions ("Corrective Information"). For the
purposes of this
Underwriting Agreement, "Free Writing Prospectus" means a "free
writing
prospectus" within the meaning of Rule 405 under the 1933 Act; and
"Issuer Free
Writing Prospectus" means an "issuer free writing prospectus"
within the meaning
of Rule 433 under the 1933 Act.
Capitalized terms used but not defined herein have the respective
meanings
assigned thereto in the Prospectus.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company
represents, warrants and agrees with the respective Underwriters
that:
(a) The Registration Statement has become effective under the 1933
Act. The
aggregate principal amount of the Certificates does not exceed the
remaining
amount of mortgage-backed securities that may be offered and sold
under the
Registration Statement as of the date hereof. The Registration
Statement, as of
the date it was declared effective (its "Effective Date"), and the
portion of
the Registration Statement relating to the Certificates (including,
without
limitation, the Prospectus), as of the deemed effective date
thereof pursuant to
Rule 430B under the 1933 Act (its "Deemed Effective Date")
complied, complies
and/or will comply, as applicable, as to form in all material
respects with the
requirements of the 1933 Act and the 1933 Act Rules; and the
information in the
Registration Statement, as of its Effective Date, and the
information in the
portion of the Registration Statement relating to the Certificates
(including,
without limitation, the Prospectus), as of its Deemed Effective
Date, did not,
does not and/or will not, as
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applicable, contain an untrue statement of a material fact or 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
hereof, does not, and as of the Closing Date (as hereinafter
defined), will not,
contain an untrue statement of a material fact or omit to state any
material
fact necessary to make the statements therein, in the light of the
circumstances
under which they were made, not misleading; provided, however, that
the Company
makes no representation or warranty as to the Excluded Information
(as defined
below).
The "Excluded Information" shall mean, collectively, the
information
contained in or omitted from the Registration Statement or the
Prospectus or the
Time of Sale Information or any Issuer Free Writing Prospectus or
any Issuer
Information (as defined below), or any revision, amendment or
supplement to any
of the foregoing, (i) in reliance upon and in conformity with
written or
electronic information furnished to the Company by any Underwriter
specifically
for use in connection with the preparation of the Prospectus, or
any revision,
amendment or supplement thereto, the Time of Sale Information or
any such Issuer
Free Writing Prospectus (collectively, the "Underwriter
Information"), or (ii)
to which the indemnities provided for in Section 2 of any of the
Indemnification
Agreements are applicable in accordance with the respective terms
thereof
(collectively, the "Third-Party Information"). It is hereby
acknowledged that
the information set forth on Schedule III hereto constitutes the
only
Underwriter Information in the Offering Prospectus and the
Prospectus.
(b) If and to the extent that it has not done so already, the
Company will
make a good faith and reasonable effort to file the Prospectus with
the
Commission within the time period required under Rule 424 and, in
the event that
it fails to do so, the Company shall file the Prospectus with the
Commission as
soon as practicable thereafter.
(c) 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, however, that the Company makes no representation and
warranty with
respect to any Excluded Information.
(d) The Company (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) the Prospectus, (ii) any
document not
constituting a prospectus under Section 2(a)(10)(a) of the 1933
Act, including,
without limitation, any document that complies with Rule 134 under
the 1933 Act,
(iii) the Time of Sale Information, and (iv) any other Free Writing
Prospectus
approved in advance by the Underwriters either in writing or in any
other manner
mutually agreed to by the Underwriters and the Company. Each Issuer
Free Writing
Prospectus (as defined below) included under clause (iv) above that
was prepared
by or on behalf of the Company or its affiliates complied or, if
used after the
date hereof, will comply, in all material respects with the 1933
Act and the
1933 Act Rules and each Issuer Free Writing Prospectus prepared by
or on behalf
of the Company or its affiliates or delivered to the Company for
filing in
accordance with Section 4 has been filed or will be filed in
accordance with
Section 4 (to the extent required thereby). Each Issuer Free
Writing Prospectus
included under clause (iv) above, at the Time of Sale, did not, 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
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the statements therein, in the light of the circumstances under
which they were
made, not misleading; provided, that the Company makes no
representation and
warranty with respect to any Excluded Information.
(e) The Company 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 own, lease or operate its
properties and to
conduct its business as now conducted by it and to enter into and
perform its
obligations under this Agreement, the Pooling and Servicing
Agreement and the
Mortgage Loan Purchase Agreements; and the Company is duly
qualified as a
foreign corporation to transact business and is in good standing in
each
jurisdiction in which such qualification is required, whether by
reason of the
ownership or leasing of property or the conduct of business.
(f) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act,
as of the
date on which, prior to the Closing Date, any amendment to the
Registration
Statement becomes effective, and as of the Closing Date, there has
not and will
not have been (i) any request by the Commission for any further
amendment to the
Registration Statement or the Prospectus or for any additional
information, (ii)
any issuance by the Commission of any stop order suspending the
effectiveness of
the Registration Statement or the institution or threat of any
proceeding for
that purpose or (iii) any notification with respect to the
suspension of the
qualification of the Certificates for sale in any jurisdiction or
any initiation
or threat of any proceeding for such purpose.
(g) This Agreement has been duly authorized, executed and delivered
by the
Company, and the Pooling and Servicing Agreement and the respective
Mortgage
Loan Purchase Agreements, when executed and delivered as
contemplated hereby and
thereby, will have been duly authorized, executed and delivered by
the Company;
and, assuming due authorization, execution and delivery hereof and
thereof by
the other parties hereto and thereto, this Agreement constitutes,
and the
Pooling and Servicing Agreement and the respective Mortgage Loan
Purchase
Agreements, when so executed and delivered will constitute, legal,
valid and
binding agreements of the Company, enforceable against the Company
in accordance
with their respective terms, except as enforceability may be
limited by (i)
bankruptcy, insolvency, reorganization, receivership, moratorium or
other
similar laws affecting the enforcement of the rights of creditors
generally,
(ii) general principles of equity, whether enforcement is sought in
a proceeding
in equity or at law, and (iii) public policy considerations
underlying the
securities laws, to the extent that such public policy
considerations limit the
enforceability of the provisions of any such agreement that purport
or are
construed to provide indemnification for securities law
liabilities.
(h) As of the Closing Date, the Certificates and the Pooling and
Servicing
Agreement will conform in all material respects to the respective
descriptions
thereof contained in the Prospectus. As of the Closing Date, the
Certificates
will be duly and validly authorized and, when duly and validly
executed,
authenticated and delivered in accordance with the Pooling and
Servicing
Agreement to the Underwriters against payment therefor as provided
herein, will
be duly and validly issued and outstanding and entitled to the
benefits of the
Pooling and Servicing Agreement.
(i) At the Closing Date, each of the representations and warranties
of the
Company set forth in the Pooling and Servicing Agreement will be
true and
correct in all material respects.
(j) The Company is not in violation of its certificate of
incorporation or
by-laws or in default under any agreement, indenture or instrument
the effect of
which violation or default would be material to the Company or
which violation
or default would have a material adverse affect on the performance
of its
obligations under this Agreement, the Pooling and Servicing
Agreement or any of
the
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Mortgage Loan Purchase Agreements. The execution, delivery and
performance by
the Company of this Agreement, the Pooling and Servicing Agreement
and the
respective Mortgage Loan Purchase Agreements do not and will not
conflict with
or result in a breach of any term or provision of the certificate
of
incorporation or by-laws of the Company or conflict with, result in
a breach,
violation or acceleration of, or constitute a default under, the
terms of any
indenture or other agreement or instrument to which the Company is
a party or by
which it or any of its material assets is bound, or any statute,
order, rule or
regulation applicable to the Company of any state or federal court,
regulatory
body, administrative agency or governmental body having
jurisdiction over the
Company.
(k) There is no action, suit or proceeding against the Company
pending, or,
to the knowledge of the Company, threatened, before any court,
arbitrator,
administrative agency or other tribunal (i) asserting the
invalidity of this
Agreement, the Pooling and Servicing Agreement, any of the Mortgage
Loan
Purchase Agreements or the Certificates, (ii) seeking to prevent
the issuance of
the Certificates or the consummation of any of the transactions
contemplated by
this Agreement, the Pooling and Servicing Agreement or any of the
Mortgage Loan
Purchase Agreements, (iii) that might materially and adversely
affect the
performance by the Company of its obligations under, or the
validity or
enforceability of, this Agreement, the Pooling and Servicing
Agreement, any of
the Mortgage Loan Purchase Agreements or the Certificates or (iv)
seeking to
affect adversely the federal income tax attributes of the
Certificates as
described in the Prospectus.
(l) There are no contracts, indentures or other documents of a
character
required by the 1933 Act or the 1933 Act Rules to be described or
referred to in
the Registration Statement or the Prospectus or to be filed as
exhibits to the
Registration Statement that have not been so described or referred
to therein or
so filed or incorporated by reference as exhibits thereto or that
may be filed
as exhibits thereto subsequent to the Closing Date (which the
Company will do
within a reasonable period following the Closing Date); provided,
that the
Company makes no representation as to any such contracts,
indentures or other
documents or related information as to which any party would be
obligated to
indemnify the Underwriters under the Indemnification Agreements in
accordance
with the respective terms thereof.
(m) No authorization, approval or consent of or filing with any
court or
governmental authority or agency is necessary in connection with
the offering,
issuance or sale of the Certificates pursuant to or as contemplated
by this
Agreement and the Pooling and Servicing Agreement, except such as
have been, or
as of the Closing Date will have been, obtained or completed, as
applicable, or
such as may otherwise be required under applicable state securities
laws in
connection with the purchase and the offer and sale of the
Certificates by the
Underwriters, and except any recordation or filing of the
respective assignments
of the Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing
Agreement that have not been completed.
(n) The Company possesses all material licenses, certificates,
authorities
or permits issued by the appropriate state, federal or foreign
regulatory
agencies or bodies necessary to conduct the business now operated
by it, and the
Company has not received any notice of proceedings relating to the
revocation or
modification of any such license, certificate, authority or permit
which, singly
or in the aggregate, if the subject of any unfavorable decision,
ruling or
finding, would materially and adversely affect the condition,
financial or
otherwise, or the earnings, business affairs or business prospects
of the
Company.
(o) Any taxes, fees and other governmental charges payable by the
Company
in connection with the execution and delivery of this Agreement,
the Pooling and
Servicing Agreement or any of the Mortgage Loan Purchase Agreements
or the
issuance and sale of the Certificates (other than such
6
federal, state and local taxes as may be payable on the income or
gain
recognized therefrom), have been or will be paid at or prior to the
Closing
Date.
(p) Neither the Company nor the Trust Fund is, and neither the
issuance and
sale of the Certificates in the manner contemplated by the
Prospectus nor the
activities of the Trust Fund pursuant to the Pooling and Servicing
Agreement
will cause the Company or the Trust Fund to be, an "investment
company" or under
the control of an "investment company" as such terms are defined in
the
Investment Company Act of 1940, as amended (the "1940 Act").
(q) Under generally accepted accounting principles ("GAAP") and for
federal
income tax purposes, the Company 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
interests in the
Mortgage Loans evidenced by the Certificates. The consideration
received by the
Company upon the sale of the Certificates to the Underwriters will
constitute at
least reasonably equivalent value and fair consideration for the
Certificates.
The Company will be solvent at all relevant times prior to, and
will not be
rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on
behalf of the Trust Fund and the sale of the Certificates to the
Underwriters.
The Company is not selling the Certificates to the Underwriters or
transferring
the Mortgage Loans to the Trustee on behalf of the Trust Fund on
account of an
antecedent debt or with any intent to hinder, delay or defraud any
of the
creditors of the Company.
(r) No proceedings looking toward merger, liquidation, dissolution
or
bankruptcy of the Company are pending or contemplated.
(s) 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").
(t) The Company 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.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance
upon the representations and warranties herein set forth, the
Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally
and not
jointly, to purchase from the Company, at the purchase price (plus
any accrued
interest) set forth on Schedule I hereto, Certificates of each
class thereof
having the actual principal amount set forth next to the name of
such
Underwriter on Schedule II hereto. Each of the Underwriters shall
only be
required to purchase the actual principal amount of the
Certificates of each
class thereof set forth next to such Underwriter's name on Schedule
II hereto.
Each Underwriter hereby represents and warrants that, under GAAP
and for
federal income tax purposes, it will report its acquisition of
Certificates,
pursuant to this Agreement, as a purchase of assets and not as a
secured
lending.
3. PAYMENT AND DELIVERY. The closing for the purchase and sale of
the
Certificates hereunder shall occur at the offices of Sidley Austin
LLP, 787
Seventh Avenue, New York, New York 10019, at 10:00 a.m. New York
City time, on
the "Expected Closing Date" identified on Schedule I hereto or at
such other
location, time and date as shall be mutually agreed upon by the
Underwriters and
the Company (such time and date of closing, the "Closing Date").
Delivery of the
Certificates shall be made through the Same
7
Day Funds Settlement System of the Depository Trust Company
("DTC"). Payment
shall be made to the Company in immediately available Federal funds
wired to
such bank as may be designated by the Company (or by such other
method of
payment as may be mutually agreed upon by the Company and any
particular
Underwriter), against delivery of the Certificates. The
Certificates will be
made available for examination by the Underwriters not later than
3:00 p.m. New
York City time on the last business day prior to the Closing Date.
References herein, including, without limitation, in the Schedules
hereto,
to actions taken or to be taken following the Closing Date with
respect to any
Certificates that are to be delivered through the facilities of DTC
shall
include, if the context so permits, actions taken or to be taken
with respect to
the interests in such Certificates as reflected on the books and
records of DTC.
4. OFFERING BY THE UNDERWRITERS; FREE WRITING PROSPECTUSES.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale to the public, including, without limitation,
in and from
the State of New York, as set forth in the Prospectus Supplement.
It is further
understood that the Company, in reliance upon Policy Statement 105
has not and
will not file the offering pursuant to Section 352-e of the General
Business Law
of the State of New York with respect to the Certificates which are
not
"mortgage related securities" as defined in the 1934 Act (as
defined below).
Accordingly, each Underwriter covenants and agrees with the Company
that sales
of such Certificates made by any Underwriter in 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,
or portions thereof, which the Company is required to file with the
Commission
in electronic format and will use reasonable efforts to provide to
the Company
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
Company, in its sole discretion, waives such requirements, subject
to the
following conditions and any additional conditions set forth in
subsections (f),
(g), (h), (i) and (j) of this Section 4 (to which conditions and
additional
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 (other than
the
Prospectus) 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 Time of Sale
Information, or
(3) constitutes an Underwriter Free Writing Prospectus (as defined
below)
(that does not constitute Time of Sale Information) that has been
approved
by the Company in advance of its use.
(ii) Each Underwriter shall deliver (and, if used on or prior to
the
date hereof, represents and warrants that it has delivered) to the
Company,
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 Company: (i) any Free
Writing
Prospectus that was prepared by or on behalf of any Underwriter or
any
affiliate thereof (each, 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, information relating to Mortgage Loan
Seller
Matters, as such term is collectively defined
8
in the Mortgage Loan Seller Indemnification Agreements); and (ii)
any Free
Writing Prospectus or portion thereof prepared by or on behalf of
any
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 any Underwriter to the Company 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 Company or (B) the date of first use of such Free
Writing
Prospectus.
(c) Each Underwriter represents and warrants to the Company that:
(i) The Free Writing Prospectuses that were prepared by or on
behalf
of any Underwriter or an affiliate thereof complied or, if used
after the
date hereof, will comply, in all material respects with the 1933
Act and
the 1933 Act Rules.
(ii) The Free Writing Prospectuses furnished or to be furnished to
the
Company by any Underwriter pursuant to or as contemplated by
Section
4(b)(ii) hereof will constitute all Free Writing Prospectuses of
the type
described in such Section that were furnished to prospective
investors by
any Underwriter in connection with its offer and sale of the
Certificates.
(iii) The Free Writing Prospectuses furnished or to be furnished to
the Company by any Underwriter pursuant to or as contemplated by
Section
4(b)(ii) will constitute all Free Writing Prospectuses that were
furnished
to a sponsor or servicer (as such terms are defined in Item 1101 of
Regulation AB (17 C.F.R. Section 1100, et seq.)) for use or
referral by any
such person in connection with its offer and sale of the
Certificates.
(iv) Each Free Writing Prospectus provided or required to be
provided
by any Underwriter to the Company pursuant to or as contemplated by
Section
4(b)(ii) hereof did not, as of the Time of Sale, and will not, as
of the
Closing Date, contain any untrue statement of a material fact or
omit to
state any material fact necessary to make the statements contained
therein
(when read in conjunction with the other Time of Sale Information),
in
light of the circumstances under which they were made, not
misleading;
provided, however, that any 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 Company, any other
Underwriter or
any Mortgage Loan Seller to such Underwriter within a reasonable
period of
time prior to the Time of Sale.
(v) Each Underwriter has not and will not convey any ABS
Informational
and Computational Material in reliance upon Rule 167 and Rule 426
under the
1933 Act. ABS Informational and Computational Material shall mean
"ABS
informational and computational material" as defined in Item 1101
of
Regulation AB.
(d) The Company agrees to file with the Commission the following:
(i) each Issuer Free Writing Prospectus that was prepared by or on
behalf of the Company or its affiliates or delivered to the Company
for
filing;
(ii) any Free Writing Prospectus or portion thereof delivered by
any
Underwriter to the Company pursuant to Section 4(b)(ii) hereof; and
9
(iii) any Free Writing Prospectus for which the Company 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
Company or any other offering participant that is in the business
of
publishing, radio or television broadcasting or otherwise
disseminating
communications;
provided, however, that the Company 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
Company, 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 or (3)
any Free
Writing Prospectus that does not contain substantive changes from
or additions
to a Free Writing Prospectus previously filed with the Commission.
(e) Any Free Writing Prospectus required to be filed pursuant to
Section
4(d) hereof by the Company shall be filed with the Commission not
later than the
date of first use of the Free Writing Prospectus (subject, in the
case of any
Free Writing Prospectus required to be filed pursuant to Section
4(d)(ii)
hereof, to compliance by the Underwriters with Section 4(b)(ii)),
except that:
(i) any Free Writing Prospectus or portion thereof required to be
filed that contains only the description of the final terms of the
Certificates shall be filed by the Company with the Commission
within two
days of the later of the date such final terms have been
established for
all classes of Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be
filed that contains only ABS Informational and Computational
Material shall
be filed by the Company with the Commission not later than the
later of the
due date for filing the final Prospectus relating to the
Certificates
pursuant to Rule 424(b) under the 1933 Act or two business days
after the
first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant to
Section 4(d)(iii) shall, if no payment has been made or
consideration has
been given by or on behalf of the Company for the Free Writing
Prospectus
or its dissemination, be filed by the Company with the Commission
not later
than four business days after the Company becomes aware of the
publication,
radio or television broadcast or other dissemination of the Free
Writing
Prospectus.
(f) Each Underwriter shall file with the Commission the following:
(i) any Free Writing Prospectus that is used or referred to by it
and
distributed by or on behalf of any 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; and
(ii) any Free Writing Prospectus for which any 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 Company or any other offering participant that is in the
business
of publishing, radio or television broadcasting or otherwise
disseminating
written communications and for which no payment was made or
consideration
given by
