EXECUTION COPY
LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-C7
UNDERWRITING AGREEMENT
As of November 21, 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
Citigroup Global Markets Inc.
388 Greenwich Street
19th Floor
New York, New York 10013
KeyBanc Capital Markets
a division of McDonald Investments Inc.
Key Tower
127 Public Square
Cleveland OH 44114
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"),
Citigroup Global Markets Inc. ("CGMI") and KeyBanc Capital Markets,
a division
of McDonald Investments Inc. ("KBCM" and, collectively with LBI,
UBS-AM and
CGMI, 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 November 21, 2006 (the "UBS Mortgage Loan Purchase
Agreement"),
between the Company and UBSREI. Certain of the 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
November 21, 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
November 21, 2006 (the "Additional Mortgage Loan Purchase
Agreement"), between
the Company, the LBHI-Affiliated Mortgage Loan Seller and LBHI. The
remaining
Mortgage Loans (the "KBNA Mortgage Loans") will be acquired by the
Company from
KeyBank National Association ("KBNA") pursuant to a mortgage loan
purchase
agreement dated as of November 21, 2006 (the "KBNA Mortgage Loan
Purchase
Agreement"). LBHI, any LBHI-Affiliated Mortgage Loan Seller, UBSREI
and KBNA 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, the UBS
Mortgage Loan Purchase Agreement and the KBNA 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, CGMI and KBCM
entered into an
indemnification agreement dated as of November 21, 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, CGMI and KBCM also entered
into an
indemnification agreement dated as of November 21, 2006 (the "LBHI
Indemnification Agreement"). In connection with the sale by KBNA to
the Company
of the KBNA Mortgage Loans, KBNA, the Company, LBI, UBS-AM, CGMI
and KBCM also
entered into an indemnification agreement dated as of November 21,
2006 (the
"KBNA Indemnification Agreement"and, together with the UBS
Indemnification
Agreement and the LBHI Indenmnification Agreement, the"Mortgage
Loan Seller
Indemnification Agreements").
The Certificates will be issued under a pooling and servicing
agreement to be dated as of November 13, 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, CGMI
and KBCM
entered into an indemnification agreement dated as of November 21,
2006 (the
"Trustee Indemnification Agreement"); (ii) Wachovia, the Company,
LBI, UBS-AM,
CGMI and KBCM entered into an indemnification agreement dated as of
November 21,
2006 (the "Master Servicer Indemnification Agreement"); and (iii)
LNR, the
Company, LBI and KBCM entered into an indemnification agreement
dated as of
November 21, 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").
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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 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 1.00 p.m. (New York City time) on
November 21, 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 November 13, 2006; (ii) the Free Writing
Prospectus (as defined
below), dated November 14, 2006 relating to the Certificates and
filed by the
Company on November 14, 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 297 printed pages
plus the
annexes thereto 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.
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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 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
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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 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.
5
(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 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
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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
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
7
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 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)):
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(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 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
9
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
(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
10
(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 or on behalf of the Company or any other offering
participant, not
later than four business days after any Underwriter becomes aware
of the
publication, radio or t
