EXHIBIT 1.1
LB COMMERCIAL MORTGAGE TRUST ___-____
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES ____-__
UNDERWRITING AGREEMENT
As of _________ __, ____
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Ladies and Gentlemen:
Structured Asset Securities Corporation II, a Delaware corporation (the
"Company"), proposes to cause the issuance of, and to sell to _______________
("______"), ____________ ("____"; and, together with ______, the "Lead
Underwriters"), _____________ ("____"); and _____________ ("_______" and,
collectively with ______, _____ and ____, 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 "___ Mortgage Loans") will be acquired by the Company from
_________________ ("_______"), pursuant to a mortgage loan purchase agreement
dated as of the date hereof (the "___ Mortgage Loan Purchase Agreement"),
between the Company, _______ and ____________ ("_____"). The other Mortgage
Loans (the "Holdings Mortgage Loans") will be acquired by the Company from
___________________, doing business as _____________, a division of
_________________ ("Holdings" and, together with _______, the "Mortgage Loan
Sellers"), pursuant to a mortgage loan purchase agreement dated as of the date
hereof (the "Holdings Mortgage Loan Purchase Agreement"; and, together with the
___ Mortgage Loan Purchase Agreement, the "Mortgage Loan Purchase Agreements"),
between the Company and Holdings. In connection with the sale by _______ to the
Company of the ___ Mortgage Loans, _______, ________, ("_______)"), the Company
and the Underwriters entered into an indemnification agreement dated as of the
date hereof (the "___ Indemnification Agreement"). In connection with the sale
by Holdings to the Company of the Holdings Mortgage Loans, Holdings, the Company
and the Underwriters also entered into an indemnification agreement dated as of
the date hereof (the "Holdings Indemnification Agreement"; and, together with
the ___ Indemnification Agreement, the "Indemnification Agreements").
The Certificates will be issued under a pooling and servicing agreement
to be dated as of _________ __, ____ (the "Pooling and Servicing Agreement"),
among the Company as depositor, _______ _____________ as trustee (the
"Trustee"), ______________ as master servicer (the "Master Servicer"),
_______________ as special servicer (the "Special Servicer") and _____________
as fiscal agent (the "Fiscal Agent"). The Certificates and the Mortgage Loans
are described more fully in the Prospectus (as defined below), which the Company
has furnished to the Underwriters. Capitalized terms used but not defined herein
have the respective meanings assigned thereto in the Prospectus.
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.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents, warrants and agrees with the respective Underwriters that:
(a) A registration statement on Form S-3 (No. 333-_____) with respect
to the Certificates has been prepared by the Company and filed with the
Securities and Exchange Commission (the "Commission"), and complies as to form
in all material respects with the requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and the rules and regulations of the Commission
thereunder, including Rule 415, and has become effective under the 1933 Act. As
used in this Underwriting Agreement (this "Agreement" or the "Underwriting
Agreement"), (i) "Registration Statement" means that registration statement and
all exhibits thereto, as amended or supplemented to the date of this Agreement;
(ii) "Basic Prospectus" means the prospectus included in the Registration
Statement at the time it became effective, or as subsequently filed with the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iii)
"Prospectus Supplement" means the prospectus supplement specifically relating to
the Certificates, as most recently filed with, or transmitted for filing to, the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iv)
"Prospectus" means the Basic Prospectus, together with the Prospectus
Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form
of the Prospectus Supplement that has heretofore been filed pursuant to
paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus"
means the Basic Prospectus, together with any Preliminary Prospectus Supplement.
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.
(b) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and on the date of this Agreement,
complied, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will comply, as to form in all material respects with the
requirements of the 1933 Act and the rules and regulations of the Commission
thereunder; and the Registration Statement and the Prospectus do not, and (in
the case of any amendment or supplement to any such document filed with the
Commission after the date as of which this representation is being made) will
not, 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; provided, however, that the Company makes no
representation or warranty as to (i) information contained in or omitted from
the Registration Statement or the Prospectus, or any amendment or supplement
thereto, in reliance upon and in conformity with written or electronic
information furnished to the Company by the Underwriters specifically for
inclusion therein, (ii) the information contained in or omitted from the
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Prospectus, or any amendment or supplement thereto, in reliance upon and
conformity with (A) the Master Tape (it being acknowledged that the Master Tape
was used to prepare the Prospectus Supplement and any Preliminary Prospectus
Supplement, including, without limitation, Annex X-0, Xxxxx X-0, Xxxxx X-0,
Xxxxx A-4 and Annex B to each of the Prospectus Supplement and any Preliminary
Prospectus Supplement and the accompanying diskette, and any Computational
Materials and ABS Term Sheets (each as defined in Section 4 hereof) with respect
to the Certificates), (B) the representations and warranties of either Mortgage
Loan Seller set forth in or made pursuant to the related Mortgage Loan Purchase
Agreement, or (C) any other information concerning the Mortgage Loan Seller
Matters furnished to the Company or the Underwriters by either Mortgage Loan
Seller, (iii) the information regarding the Mortgage Loan Seller Matters (as
defined below) contained in or omitted from the Prospectus Supplement, or any
amendment or supplement thereto, under the headings "Summary of Prospectus
Supplement--The Underlying Mortgage Loans and the Mortgaged Real Properties",
"Risk Factors--Risks Related to the Underlying Mortgage Loans" and "Description
of the Mortgage Pool" or on Annex X-0, Xxxxx X-0, Xxxxx X-0, Xxxxx X-0 and Annex
B thereto or on the accompanying diskette, (iv) the information contained in or
omitted from any Computational Materials or ABS Term Sheets, or any amendment or
supplement thereto, incorporated by reference in the Registration Statement, any
Preliminary Prospectus or the Prospectus (or any amendment thereof or supplement
thereto) by a reason of a filing made in accordance with Section 5(h) hereof, or
(v) the information contained in or omitted from the Special Valley Fair Mall
Financial Information, which financial information was filed as part of the
Registration Statement as an exhibit to a current report on Form 8-K and
incorporated by reference into the Prospectus. The "Master Tape" consists of the
compilation of underlying information and data regarding the Mortgage Loans
covered by the Independent Accountants Report on Applying Agreed Upon Procedures
dated _________ ___, ____, as supplemented to the Closing Date, and rendered by
_________________. The "Mortgage Loan Seller Matters" consist of the following
matters: the Mortgage Loans and the underlying real properties securing the
Mortgage Loans; the related loan documents and the obligors thereunder; and the
Mortgage Loan Sellers.
(c) 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.
(d) 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, as of the date on which any supplement to the
Prospectus Supplement is filed with the Commission, 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.
(e) 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
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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.
(f) 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.
(g) 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.
(h) 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
either 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.
(i) 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, either 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 either 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, either
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.
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(j) There are no contracts, indentures or other documents of a
character required by the 1933 Act or by the rules and regulations thereunder to
be described or referred to in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(k) 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.
(l) 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.
(m) 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 either 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.
(n) 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").
(o) 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 with
any intent to hinder, delay or defraud any of the creditors of the Company.
(p) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Company are pending or contemplated.
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(q) 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").
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 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. There will be added to the
purchase price of the Certificates an amount equal to interest accrued thereon
pursuant to the terms thereof from _________ __, ____ to but excluding the
Closing Date.
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 ___________________,
__________________, ________, ________ _____, at ______a.m. New York City time,
on _______ _, ____ or at such other location, time and date as shall be mutually
agreed upon by the Lead 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 ____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.
(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 such Underwriter in the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
(b) The Underwriters may prepare and provide (and acknowledge that they
have prepared and provided) to prospective investors certain Computational
Materials or ABS Term Sheets in connection
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with the offering of the Certificates. In this regard, each Underwriter
represents and warrants to, and covenants with, the Company that:
(i) Such Underwriter has complied and shall comply with the
requirements of the no-action letter, dated May 20, 1994, issued by the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody
& Co. Incorporated and Xxxxxx Structured Asset Corporation II as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association, dated May
27, 1994 (collectively, the "Xxxxxx/PSA Letter"), and the requirements
of the no-action letter, dated February 17, 1995, issued by the
Commission to the Public Securities Association (the "PSA Letter" and,
together with the Xxxxxx/PSA Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials", "ABS
Term Sheets," "Structural Term Sheets" and "Collateral Term Sheets"
shall have the respective meanings given such terms in the No-Action
Letters.
(iii) All Computational Materials and ABS Term Sheets in
respect of the Certificates provided to prospective investors by such
Underwriter have borne or shall bear, as the case may be, a legend in a
form previously approved by the Company or its counsel.
(iv) Such Underwriter has not distributed and shall not
distribute any such Computational Materials or ABS Term Sheets in
respect of the Certificates, the forms and methodology of which are not
in accordance with this Agreement. Such Underwriter has provided or
shall provide, as the case may be, to the Company, for filing pursuant
to a Current Report on Form 8-K as provided in Section 5(h) hereof,
copies (in such format as required by the Company) of all such
Computational Materials and ABS Term Sheets. Such Underwriter may
provide copies of the foregoing in a consolidated or aggregated form
including all information required to be filed. All Computational
Materials and ABS Term Sheets described in this paragraph (b)(iv) must
be or must have been, as applicable, provided to the Company in paper
or electronic format suitable for filing with the Commission not later
than _____ a.m. (New York City time) at least one business day before
filing thereof is or was, as the case may be, required pursuant to the
terms of the No-Action Letters.
(v) All information included in any Computational Materials
and ABS Term Sheets in respect of the Certificates provided to
prospective investors by such Underwriter has been or shall be
generated based on substantially the same methodology and assumptions
as are used to generate the information in the Prospectus Supplement as
set forth therein; provided that such Computational Materials and ABS
Term Sheets may include information based on alternative methodologies
or assumptions if specified therein. If any Computational Materials or
ABS Term Sheets in respect of the Certificates provided to prospective
investors by such Underwriter were based on assumptions with respect to
the Mortgage Pool that differ from the Prospectus Supplement in any
material respect or on Certificate structuring assumptions (except in
the case of Computational Materials when the different structuring
terms were hypothesized and so described) that were revised in any
material respect prior to the printing of the Prospectus, then to the
extent that it has not already done so, such Underwriter shall
immediately inform the Company and, upon the direction of the Company,
and if not corrected by the Prospectus, shall prepare revised
Computational Materials and/or ABS Term Sheets, as the case may be,
based on information regarding the Mortgage Pool and
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Certificate structuring assumptions consistent with the Prospectus,
circulate such revised Computational Materials and ABS Term Sheets to
all recipients of the preliminary versions thereof, and include such
revised Computational Materials and ABS Term Sheets (marked, "as
revised") in the materials delivered to the Company pursuant to
paragraph (b)(iv) above.
(vi) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined to
contain any material error or omission, provided that the Company will
file Computational Materials or ABS Term Sheets that contain a material
error or, when read together with the Prospectus, a material omission,
if clearly marked (A) "superseded by materials dated [specify date]"
and accompanied by corrected Computational Materials or ABS Term Sheets
that are marked "material previously dated [specify date], as
corrected", or (B) if the material error or omission is to be corrected
in the Prospectus, "superseded by materials contained in the
Prospectus." If, within the period during which the Prospectus relating
to the Certificates is required to be delivered under the 1933 Act and
the rules and regulations of the Commission thereunder, any
Computational Materials or ABS Term Sheets in respect of the
Certificates provided to prospective investors by such Underwriter are
determined, in the reasonable judgment of the Company or such
Underwriter, to contain a material error or, when read together with
the Prospectus, a material omission, then (unless the material error or
omission was corrected in the Prospectus) such Underwriter shall
prepare, or cause the preparation of, a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such
corrected Computational Materials or ABS Term Sheets to all recipients
of the prior versions thereof, and shall deliver copies of such
corrected Computational Materials or ABS Term Sheets (marked, "as
corrected") to the Company for filing with the Commission in a
subsequent Current Report on Form 8-K submission (subject to the
Company's obtaining an accountant's comfort letter in respect of such
corrected Computational Materials and ABS Term Sheets, which shall be
at the expense of such Underwriter).
(vii) Such Underwriter has not (and, as of the Closing Date,
will not have) provided any prospective investors with any information
in written or electronic form in connection with the offering of the
Certificates except for (A) the Prospectus and any amendments or
supplements thereto, (B) any Preliminary Prospectus and (C) such
Computational Materials and/or ABS Term Sheets as either have been
provided to the Company pursuant to or as contemplated by paragraph
(b)(iv) above or are not required to be filed with the Commission in
accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by any
Underwriter to the Company of all Computational Materials and ABS Term
Sheets in respect of the Certificates required to be delivered in
accordance with or as contemplated by paragraph (b)(iv) above, the
Company shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Closing Date and to take
other appropriate actions in each case as necessary in order to allow
the Company to comply with its agreement set forth in Section 5(h)
hereof to file the Computational Materials and ABS Term Sheets by the
time specified therein.
(ix) Computational Materials and ABS Term Sheets distributed
by such Underwriter through electronic means have been so distributed
in accordance with SEC Release No. 33-7233.
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(c) Each Underwriter represents and agrees that: (i) it has not sold or
offered the Certificates in the United Kingdom, and it has not delivered or
communicated the Prospectus or any other invitation or inducement to buy or
participate in the Certificates in the United Kingdom, except to persons who (A)
have professional experience of participating in unregulated collective
investment schemes and of matters relating to investments falling within both
Article 14(5) of the Financial Services Markets Xxx 0000 (Promotion of
Collective Investment Schemes) (Exemptions) Order 2001 (the "CIS Order") and
Article 19(5) of the Financial Services and Markets Act (Financial Promotion)
Order 2001 (the "FP order") or (B) fall within Article 22(2)(a) through (d)
("high net worth companies, unincorporated associations, etc.") of the CIS Order
and Article 49(2)(a) though (d) of the FP Order; and (ii) it has complied and
will comply with all applicable provisions of the Financial Services and Markets
Xxx 0000 with respect to anything done by it in relation to the Certificates in,
from or otherwise involving the United Kingdom.
5. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants with the
respective Underwriters that:
(a) During such period following the date of this Agreement in which
any Prospectus is required to be delivered under the 1933 Act (the "Prospectus
Delivery Period"), the Company will deliver to each Underwriter such number of
copies of each Prospectus as such Underwriter may reasonably request.
(b) During the Prospectus Delivery Period, the Company will file
promptly with the Commission any amendment or supplement to the Registration
Statement or any Prospectus relating to or covering the Certificates that may,
in the judgment of the Company or the Lead Underwriters, be required by the 1933
Act and the rules and regulations of the Commission thereunder or requested by
the Commission and approved by the Lead Underwriters.
(c) Prior to filing with the Commission during the Prospectus Delivery
Period any amendment or supplement to the Registration Statement relating to or
covering the Certificates (other than an amendment by reason of Rule 429 under
the 0000 Xxx) or any amendment or supplement to the Prospectus, the Company will
furnish a copy thereof to the Underwriters, and the Company will not file any
such amendment or supplement to which the Lead Underwriters shall reasonably
object.
(d) The Company will advise the Underwriters promptly (i) when, during
the Prospectus Delivery Period, any post-effective amendment to the Registration
Statement relating to or covering the Certificates (other than any amendment by
reason of Rule 429 under the 0000 Xxx) becomes effective, (ii) of any request or
proposed request by the Commission for any amendment or supplement to the
Registration Statement (insofar as the amendment or supplement relates to or
covers the Certificates), for any amendment or supplement to the Prospectus or
for any additional information with respect to the Certificates, (iii) of the
issuance by the Commission, during the Prospectus Delivery Period, of any stop
order suspending the effectiveness of the Registration Statement or the
initiation or threat of any such stop order proceeding, (iv) of receipt by the
Company of any notification with respect to the suspension of the qualification
of the Certificates for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose and (v) of the happening, during the Prospectus
Delivery Period, of any event that makes untrue any statement of a material fact
made in the Registration Statement or any Prospectus or that requires the making
of a change in or addition to the Registration Statement or any Prospectus in
order to make any material statement therein not misleading.
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(e) If, during the Prospectus Delivery Period, the Commission issues an
order suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the lifting of that order at the
earliest possible time.
(f) The Company will endeavor to qualify the Certificates for offer and
sale under the securities laws of such jurisdictions as the Lead Underwriters
may reasonably request, provided, however, that this Section 5(f) shall not
obligate the Company to file any general consent to service of process or to
qualify to do business in any jurisdiction or as a dealer in securities in any
jurisdiction in which it is not so qualified.
(g) The costs and expenses associated with the transactions
contemplated by this Agreement shall be payable by the Mortgage Loan Sellers as
and to the extent provided in the respective Mortgage Loan Purchase Agreements.
____ and _______ shall each be responsible for the costs and expenses
(including, but not limited to, the fees and expenses of any counsel retained
thereby) actually incurred by such Underwriter in connection with the
transactions contemplated by this Agreement.
(h) The Company will file any documents and any amendments thereof as
may be required to be filed by it pursuant to the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations
of the Commission under the 1933 Act and the 1934 Act, including, but not
limited to, the filing with the Commission pursuant to a Current Report on Form
8-K, subject to Section 4 hereof, of all Computational Materials and ABS Term
Sheets in respect of the Certificates furnished by any Underwriter and
identified by it as such. Subject to compliance by each Underwriter with Section
4(b)(iv) hereof, the Company will file all such Computational Materials and ABS
Term Sheets within the time period allotted for such filing pursuant to the
No-Action Letters. Subject to compliance by each Underwriter with Section
4(b)(iv) hereof, the Company represents and warrants that, to the extent
required by the No-Action Letters, the Company has timely filed with the
Commission any Collateral Term Sheets previously delivered to it as contemplated
by Section 4(b)(iv) hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters hereunder to purchase the Certificates shall be
subject to the accuracy in all material respects of the representations and
warranties on the part of the Company contained herein as of the date hereof, as
of the date of the effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date, as of the date the Prospectus Supplement or any
supplement thereto is filed with the Commission prior to the Closing Date and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates delivered pursuant to the provisions hereof, to the performance
in all material respects by the Company of its obligations hereunder and to
satisfaction, as of the Closing Date, of the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or, to
the Company's knowledge, threatened; and the Prospectus Supplement shall have
been filed or transmitted for filing with the Commission in accordance with Rule
424 under the 0000 Xxx.
(b) The Company shall have delivered to the Underwriters a certificate
of the Company, signed by an authorized officer of the Company and dated the
Closing Date, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date; and
(ii) the Company has
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in all material respects complied with all the agreements and satisfied all the
conditions on its part that are required hereby to be performed or satisfied at
or prior to the Closing Date.
(c) The Underwriters shall have received with respect to the Company a
good standing certificate from the Secretary of State of the State of Delaware,
dated not earlier than 10 days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an
assistant secretary of the Company, in his individual capacity, a certificate,
dated the Closing Date, to the effect that: (i) each individual who, as an
officer or representative of the Company, signed this Agreement, the Pooling and
Servicing Agreement, either of the Mortgage Loan Purchase Agreements or any
other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, in the Pooling and
Servicing Agreement or in either of the Mortgage Loan Purchase Agreements, was
at the respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (ii) no event (including,
without limitation, any act or omission on the part of the Company) has occurred
since the date of the good standing certificate referred to in paragraph (c)
above which has affected the good standing of the Company under the laws of the
State of Delaware. Such certificate shall be accompanied by true and complete
copies (certified as such by the Secretary or an assistant secretary of the
Company) of (i) the certificate of incorporation and by-laws of the Company, as
in effect on the Closing Date, and (ii) the resolutions of the Company and any
required shareholder consent relating to the transactions contemplated in this
Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements.
(e) The Underwriters shall have received from _________________,
special counsel for the Company, a favorable opinion, dated the Closing Date,
substantially in the form attached hereto as Exhibit A-1.
(f) The Underwriters shall have received copies of all legal opinion
letters delivered by ________________, special counsel for the Company, to the
Rating Agencies in connection with the issuance of the Certificates, accompanied
in each case by a letter signed by _____________ stating that the Underwriters
may rely on such opinion letter as if it were addressed to them as of date
thereof.
(g) The Underwriters shall have received from in-house counsel for the
Company, a favorable opinion, dated the Closing Date, substantially in the form
attached hereto as Exhibit A-2.
(h) The Underwriters shall have received from _____________, special
counsel for the Company, a letter, dated the Closing Date, substantially in the
form attached hereto as Exhibit A-3, regarding certain information in the
Registration Statement and the Prospectus.
(i) The Underwriters shall have received from ______________, certified
public accountants, a letter dated the Closing Date and satisfactory in form and
substance to the Lead Underwriters and their counsel, to the following effect:
(i) they have performed certain specified procedures as a
result of which they have determined that such information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement, as was agreed upon by the Underwriters, agrees with the
data sheet or
-11-
computer tape prepared by or on behalf of the Mortgage Loan Sellers,
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 an agreed upon sampling of the Mortgage Loan
files and in such other sources as shall be specified by them, and
found such data and information to be in agreement in all material
respects, unless otherwise noted in such letter.
(j) The Underwriters shall have received, with respect to each of the
Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent, a
favorable opinion of counsel, dated the Closing Date, addressing: the valid
existence of such party under the laws of its jurisdiction of organization; the
due authorization, execution and delivery of the Pooling and Servicing Agreement
by such party; the enforceability of the Pooling and Servicing Agreement against
such party, subject to such limitations as are reasonably acceptable to the Lead
Underwriters and their counsel; and such other matters as the Lead Underwriters
and their counsel may reasonably request. Counsel rendering each 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, the parties to the Pooling and Servicing
Agreement and on certificates furnished by public officials and, further, 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. Each such opinion need cover
only the laws of the State of New York, the laws of the jurisdiction of
organization for the party on behalf of which such opinion is being rendered and
the federal law of the United States.
(k) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by _______, _____ and
________ in connection with the sale by _______ of the ___ Mortgage Loans to the
Company, pursuant to the ___ Mortgage Loan Purchase Agreement. The Underwriters
shall be entitled to rely on each such certificate executed and delivered by
_______, ________ or any of their respective officers and representatives, to
the same extent that the Company may so rely, and each such opinion addressed to
the Company shall also be addressed to the Underwriters.
(l) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by Holdings in connection
with the sale by Holdings of its Mortgage Loans to the Company, pursuant to the
Holdings Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to
rely on each such certificate executed and delivered by Holdings or any of its
officers and representatives, to the same extent that the Company may so rely,
and each such opinion addressed to the Company shall also be addressed to the
Underwriters.
(m) The Underwriters shall have been furnished with such other
documents and opinions as the Lead Underwriters may reasonably require, for the
purpose of enabling them to pass upon the issuance and sale of the Certificates
as herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained.
(n) The Certificates shall have been assigned ratings no less than
those set forth on Schedule I and such ratings shall not have been qualified,
downgraded or withdrawn.
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If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in material breach of any covenants or agreements contained
herein or if any of the opinions and certificates referred to above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to the Lead Underwriters and their counsel, this Agreement
and all obligations of the Underwriters hereunder may be cancelled at, or at any
time prior to, the Closing Date by the Lead Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform in all material respects any agreement herein or comply in all material
respects with any provision hereof, other than by reason of a default by the
Underwriters or a refusal, inability or failure on the part of _______ or any of
its affiliates to perform in all material respects any agreement in, or comply
in all material respects with any provision of, the ___ Mortgage Loan Purchase
Agreement, the Company will reimburse the Underwriters upon demand, for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by any of them in connection with the proposed
purchase and sale of the Certificates. If the sale of the Certificates provided
for herein is not consummated because of a refusal, inability or failure on the
part of _______ or any of its affiliates to perform in all material respects any
agreement in, or comply in all material respects with any provision of, the ___
Mortgage Loan Purchase Agreement, _______ will reimburse the Underwriters upon
demand, for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by any of them in
connection with the proposed purchase and sale of the Certificates.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the Underwriters
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against:
(i) any and all losses, liabilities, claims, damages, costs
and expenses whatsoever, as incurred, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus
or any Preliminary Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) any and all losses, liabilities, claims, damages, costs
and expenses whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission or any such alleged untrue statement or omission, contemplated
by clause (i) above, if such settlement is effected with the written
consent of the Company or as otherwise provided in Section 8(c) hereof;
and
-13-
(iii) any and all expenses whatsoever, as incurred
(including, without limitation, the fees and disbursements of counsel
chosen by the Lead Underwriters), reasonably incurred in investigating,
preparing for or defending against any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, contemplated by clause (i) above, to the extent that any such
expense is not paid under clause (i) or (ii) above;
provided, however, that the Company shall not be liable under the indemnity
agreement in this section (a) for any such loss, liability, claim, damage, cost
or expense that arises out of or is based upon any untrue statement or omission
or alleged untrue statement or omission contemplated by clause (i) above that
was made in reliance upon and in conformity with written or electronic
information (as specified in Section 8(b) below) furnished to the Company by any
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or in the Prospectus or any Preliminary Prospectus (or any amendment or
supplement thereto); and provided, further, that the Company shall not be liable
under the indemnity agreement in this section (a) for any such loss, liability,
claim, damage, cost or expense that arises out of or is based upon any untrue
statement or omission or alleged untrue statement or omission contemplated by
clause (i) above that was made in any Computational Materials or ABS Term Sheets
(or any amendments or supplements thereto) in respect of the Certificates
delivered to prospective investors by one or more of the Underwriters and
furnished to the Company by any of the Underwriters pursuant to Section 4(b)(iv)
hereof and made a part of the Registration Statement or incorporated by
reference in the Prospectus or any Preliminary Prospectus; and provided,
further, that the Company shall not be liable under the indemnity agreement in
this section (a) for any such loss, liability, claim, damage, cost or expense
that arises out of or is based upon (A) any untrue statement or omission or
alleged untrue statement or omission contemplated by clause (i) above that was
made in the Prospectus or any Preliminary Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with (1) the Master Tape
(it being acknowledged that the Master Tape was used to prepare the Prospectus
Supplement and any Preliminary Prospectus Supplement, including, without
limitation, Annex X-0, Xxxxx X-0, Xxxxx X-0, Xxxxx A-4 and Annex B thereto and
the accompanying diskette), (2) the representations and warranties of either
Mortgage Loan Seller set forth in or made pursuant to the related Mortgage Loan
Purchase Agreement or (3) any other information concerning the Mortgage Loan
Seller Matters furnished to the Company or the Underwriters by either Mortgage
Loan Seller, or (B) any untrue statement or omission or alleged untrue statement
or omission contemplated by clause (i) above that was made in the Prospectus
Supplement or any Preliminary Prospectus Supplement (or any amendment or
supplement thereto) concerning the Mortgage Loan Seller Matters under the
headings "Summary of Prospectus Supplement--The Underlying Mortgage Loans and
the Mortgaged Real Properties", "Risk Factors--Risks Related to the Underlying
Mortgage Loans" and "Description of the Mortgage Pool" therein or on Annex X-0,
Xxxxx X-0, Xxxxx X-0, Annex A-4 and/or Annex B thereto or on the accompanying
diskette, except to the extent that such untrue statement or omission or alleged
untrue statement or omission contemplated by clause (i) above under such
headings, on such annexes or on such diskette was made as a result of an error
in the manipulation of, or any calculations based upon, or any aggregation of,
such information regarding the Mortgage Loan Seller Matters, or (C) any untrue
statement or omission or alleged untrue statement or omission contemplated by
clause (i) above that was made in the Special Valley Fair Mall Financial
Information (insofar as such financial information was made a part of the
Registration Statement or incorporated by reference in the Prospectus or any
Preliminary Prospectus (or any amendment or supplement thereto)); and, provided,
further, that the Company shall not be liable to any Underwriter or any person
controlling such Underwriter under the indemnity agreement in this section (a)
for any such loss, liability,
-14-
claim, damage, cost or expense that arises out of or is based upon any untrue
statement or omission contemplated by clause (i) above that was made in any
Preliminary Prospectus to the extent that such losses, liabilities, claims,
damages, costs or expenses result from the fact that such Underwriter sold
Certificates to a person as to whom it shall be established that there was not
sent or given, at or prior to the confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated therein by reference), such untrue
statement or omission had been corrected in the Prospectus and a sufficient
number of copies of the Prospectus had been provided by the Company to such
Underwriter prior to the confirmation of such sale.
(b) The respective Underwriters, severally and not jointly, each agrees
to indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all losses, liabilities, claims, damages, costs and
expenses described in clauses (i), (ii) and (iii) of Section 8(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Prospectus or any Preliminary
Prospectus (or any amendment thereof or supplement thereto) in reliance upon and
in conformity with written or electronic information relating to such
Underwriter furnished to the Company by such Underwriter, or by either of the
Lead Underwriters on its behalf, expressly for use in the Prospectus or such
Preliminary Prospectus (or any amendment or supplement thereto), or made in any
Computational Materials or ABS Term Sheets in respect of the Certificates that
were prepared by such Underwriter and distributed by it or any other party to
prospective investors; provided, however, that such Underwriter shall not be
liable under the indemnity agreement in this section (b) for any such loss,
liability, claim, damage, cost or expense that arises out of or is based upon
any untrue statement or omission in any such Computational Materials or ABS Term
Sheets to the extent that such loss, liability, claim, damage or expense is
covered by the indemnity agreement included in Section 1(a) of either
Indemnification Agreement, unless it shall be established that such Underwriter
was notified electronically or in writing of such untrue statement or omission
prior to the time of confirmation of sale to the person that purchased the
Certificates that are the subject of such loss, liability, claim, damage or
expense, or action in respect thereof, and such Underwriter failed to deliver to
such person corrected Computational Materials or ABS Term Sheets (or, if the
superseding or correcting information is contained in the Prospectus, failed to
deliver to such person such Prospectus) prior to confirmation of such sale to
such person. It is hereby acknowledged that (i) the statements set forth in the
first, fourth and fifth sentences of the penultimate paragraph, and the entire
last paragraph, above the emboldened names of the Underwriters on the cover of
the Prospectus Supplement and any Preliminary Prospectus Supplement, (ii) the
statements under the caption "Summary of Prospectus Supplement--Relevant
Parties--Underwriters" in the Prospectus Supplement or any Preliminary
Prospectus Supplement, and (iii) the statements in the table and in the first
sentence of each of the third and fifth paragraphs, and the entire sixth
paragraph, under the caption "Method of Distribution" in the Prospectus
Supplement or any Preliminary Prospectus Supplement, constitute the only written
or electronic information furnished to the Company by the Underwriters,
including, without limitation, by either of the Lead Underwriters on behalf of
any other Underwriter, expressly for use in the Prospectus or any Preliminary
Prospectus.
(c) Each indemnified party shall give notice 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 on account of the indemnity agreement in
section (a) or (b), as applicable, of this Section 8. An indemnifying party may
participate at its own expense in the defense of any such action and, to the
extent that it may elect by written notice delivered to the indemnified party
promptly
-15-
after receiving the aforesaid notice from the indemnified party, to assume the
defense thereof, with counsel satisfactory to such 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, or (ii) the
indemnifying party shall not have assumed the defense of such action, with
counsel satisfactory to the indemnified party, within a reasonable period
following the indemnifying party's receiving notice of such action, or (iii) 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. In no event shall the indemnifying party or
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from its or their own counsel to 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.
Notwithstanding anything herein to the contrary, an indemnifying party
shall not be liable under section (a) or (b) of this Section 8 for any
settlement or compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification could be sought under such section (a) or (b), as the case may
be, of this Section 8, effected without its written consent, unless (i) at any
time an indemnified party shall have requested such indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for which the
indemnifying party is obligated under this Section 8, (ii) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (iii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification could be sought under section (a)
or (b), as applicable, of this Section 8 (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) The amount paid or payable by an indemnified party as a result of
the losses, liabilities, claims, damages, costs or expenses referred to in this
Section 8 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 except where the indemnified party is
required to bear such expenses, which expenses the indemnifying party shall pay
as and when incurred, at the request of the indemnified party, to the extent
that it is reasonable to believe that the indemnifying party will be ultimately
obligated to pay such expenses. 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.
(e) The remedies provided for in this Section 8 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.
-16-
(f) The indemnity agreements contained in this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by the Company, the Underwriters, any of
their respective directors or officers, or any person controlling the Company or
any of the Underwriters, and (iii) acceptance of and payment for any of the
Certificates.
9. CONTRIBUTION.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8(a) or
Section 8(b) hereof is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, on the one hand, and the Underwriters, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages, costs and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company, on the one hand, or the Underwriters, on the other hand, as incurred,
(i) in such proportions as are appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, from the transactions contemplated by this Agreement, 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 Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages, costs and/or expenses, as well as any other relevant equitable
considerations; provided, however, that in no case shall any Underwriter be
responsible under this Section 9(a) for any amount in excess of the fees and/or
underwriting discounts received by such Underwriter in connection with the
underwriting of the Certificates, less any amount previously paid by such
Underwriter in respect of the subject losses, liabilities, claims, damages,
costs and/or expenses. For purposes of the foregoing, the benefits received by
the Company in connection with the transactions contemplated by this Agreement
shall be deemed to be equal to the total gross proceeds from the sale of the
Certificates (before deducting expenses, but excluding fees paid to the
Underwriters) received by the Company, and the benefits received by each
Underwriter in connection with the transactions contemplated by this Agreement
shall be deemed to be equal to the fees and/or underwriting discounts received
by such Underwriter in connection with the underwriting of the Certificates. The
relative fault of the Company, on the one hand, and the Underwriters, on the
other hand, 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 Company
or by the Underwriters, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 9(a) were determined by per capita allocation or by any
other method of allocation that does not take account of the considerations
referred to in this Section 9(a).
(b) Notwithstanding the foregoing, 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. For purposes of this Section 9, each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The remedies
provided for in this Section 9 are not exclusive
-17-
and shall not limit any rights or remedies that may otherwise be available at
law or in equity to any party entitled to contribution under this Section 9.
(c) The contribution agreements contained in this Section 9 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or any of the Underwriters, and (iii) acceptance of and payment for any
of the Certificates.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, or by or on behalf of the
Company, or by or on behalf of any of the controlling persons and officers and
directors referred to in Sections 8 and 9 hereof, and shall survive delivery of
the Certificates to the Underwriters.
11. TERMINATION OF AGREEMENT; SURVIVAL.
(a) The Lead Underwriters may terminate the obligations of the
Underwriters under this Agreement, by notice to the Company, at any time at or
prior to the Closing Date (i) if there has been, since the date of this
Agreement or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which is such as to make it, in the reasonable
judgment of the Lead Underwriters, impracticable to market the Certificates or
to enforce contracts for the sale of the Certificates, or (iii) if trading
generally on the New York Stock Exchange has been suspended, or if a banking
moratorium has been declared by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 11 such
termination shall be without liability of any party to any other party, except
that the provisions of Section 5(g) hereof regarding the payment of costs and
expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement.
12. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter shall fail to take up and pay for the amount of
the Certificates agreed by such Underwriter to be purchased under this
Agreement, upon tender of such Certificates in accordance with the terms hereof,
and the amount of the Certificates not purchased does not aggregate more than
10% of the total amount of the Certificates set forth in Schedule II hereof
(based on aggregate purchase price), then the remaining Lead Underwriter (or, in
the case that either ____ or _______ is the withdrawing or defaulting
Underwriter, the Lead Underwriters) shall be obligated to take up and pay for
the Certificates that the withdrawing or defaulting Underwriter agreed but
failed to purchase (it being understood and agreed that if either ____ or
_______ is the withdrawing or defaulting Underwriter, then the Lead
Underwriters' obligations under this Section 12(a) shall be allocated between
them, on a pro rata basis, in accordance with the respective aggregate purchase
prices to be paid by the Lead Underwriters for the Certificates originally
allocated thereto on Schedule II).
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(b) If any Underwriter shall fail to take up and pay for the amount of
the Certificates agreed by such Underwriter to be purchased under this Agreement
(such Underwriter being a "Defaulting Underwriter"), upon tender of such
Certificates in accordance with the terms hereof, and the amount of the
Certificates not purchased aggregates more than 10% of the total amount of the
Certificates set forth in Schedule II hereto (based on aggregate purchase
price), and arrangements satisfactory to the remaining Underwriters and the
Company for the purchase of such Certificates by other persons are not made
within 36 hours thereafter, this Agreement shall terminate. In the event of any
such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 5(g), Section 8 and
Section 9 hereof), nor shall any Underwriter (other than the Defaulting
Underwriter) be under any liability to the Company (except to the extent
provided in Sections 8 and 9 hereof). Nothing herein shall be deemed to relieve
any Defaulting Underwriter from any liability it may have to the Company or the
other Underwriters by reason of its failure to take up and pay for Certificates
as agreed by such Defaulting Underwriter.
13. NOTICES. Any notice by the Company to any Underwriter shall be
sufficient if given in writing or by telegraph addressed to the address for such
Underwriter set forth on Schedule II hereto (or, in the case of any Underwriter,
to such other address as such Underwriter shall designate in writing to the
Company in accordance with this Section 13) and any notice by any Underwriter to
the Company shall be sufficient if given in writing or by telegraph addressed to
the Company at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxxxxx (or to such other address as the Company shall designate in writing to
the Underwriters in accordance with this Section 13).
14. BENEFICIARIES. This Agreement shall be binding upon the
Underwriters, the Company and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except that the indemnity agreement of the Underwriters contained in Section 8
hereof and the contribution agreement of the Underwriters contained in Section 9
hereof shall each be deemed to be also for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement and
any person controlling the Company; and the indemnity agreement of the Company
contained in Section 8 hereof and the contribution agreement of the Company
contained in Section 9 hereof shall each be deemed to be also for the benefit of
any person controlling an Underwriter. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 14, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
15. BUSINESS DAY. For purposes of this Agreement, "business day" means
any day on which the New York Stock Exchange is open for trading.
16. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, applicable to contracts
negotiated, made and to be performed entirely in said State.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
18. WAIVERS, MODIFICATIONS AND AMENDMENTS. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought.
-19-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this instrument, along with all counterparts, and your acceptance
shall represent a binding agreement between the Company, the Underwriters and
the Mortgage Loan Sellers signing this Agreement for purposes of Section 5(g)
and 7.
Very truly yours,
STRUCTURED ASSET SECURITIES CORPORATION II
By:
--------------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
-------------------- --------------------
By: By:
----------------------- -------------------------
Name: Name:
Title: Title:
By:
-------------------------
Name:
Title:
-------------------- --------------------
By: By:
----------------------- -------------------------
Name: Name:
Title: Title:
Confirmed and accepted as of the date first above written, solely for purposes
of Sections 5(g) and 7:
---------------------------------
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
Confirmed and accepted as of the date first above written, solely for purposes
of Section 5(g):
-----------------------------,
DOING BUSINESS AS ______________,
A DIVISION OF _____________________________
By:
-----------------------------
Name:
Title:
SCHEDULE I
Underwriting Agreement, dated as of _________ __, ____.
Title and Description of the Certificates: LB Commercial Mortgage Trust
____-__, Commercial Mortgage
Pass-Through Certificates, Series
____-__, Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5,
Class B, Class C, Class D, Class E,
Class F and Class G Certificates
Cut-off Date: ___________ __, ____
Expected Closing Date: __________ __, ____
CERTIFICATES
------------------------------------------------------------------------------------------------
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4 CLASS A-5
------------------------------------------------------------------------------------------------
Initial Aggregate
Principal Amount $ $ $ $ $
------------------------------------------------------------------------------------------------
Initial Pass-Through
Rate % % % % %
------------------------------------------------------------------------------------------------
Rating(1) / / / / /
------------------------------------------------------------------------------------------------
Purchase Price(2) % % % % %
------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
CLASS B CLASS C CLASS D CLASS E CLASS F CLASS G
--------------------------------------------------------------------------------------------------------------
Initial Aggregate
Principal Amount $ $ $ $ $ $
--------------------------------------------------------------------------------------------------------------
Initial Pass-Through
Rate % % % % % %
--------------------------------------------------------------------------------------------------------------
Rating(1) / / / / / /
--------------------------------------------------------------------------------------------------------------
Purchase Price(2) % % % % % %
--------------------------------------------------------------------------------------------------------------
---------------
(1) By _______________________ and __________________, respectively.
(2) Expressed as a percentage of the initial aggregate stated principal
amount of each class of Certificates. There shall be added to the
Purchase Price for each class of Certificates accrued interest at the
initial Pass-Through Rate therefor on the initial aggregate principal
amount thereof from the Cut-off Date to but not including the Closing
Date.
SCHEDULE II
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
---------------------------- ----- ----------------------------
____________________ A-1 $
A-2 $
A-3 $
A-4 $
A-5 $
B $
C $
D $
E $
F $
G $
____________________ A-1 $
A-2 $
A-3 $
A-4 $
A-5 $
B $
C $
D $
E $
F $
G $
_____________________ A-1 $
A-2 $
A-3 $
A-4 $
A-5 $
B $
C $
D $
E $
F $
G $
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
---------------------------- ----- ----------------------------
_______________________ A-1 $
A-2 $
A-3 $
A-4 $
A-5 $
B $
C $
D $
E $
F $
G $
EXHIBIT A-1
FORM OF OPINION OF _______________,
SPECIAL COUNSEL FOR THE COMPANY
---------- --, -------
--------------------- -----------------------
--------------------- -----------------------
--------------------- -----------------------
--------------------- -----------------------
Re: LB Commercial Mortgage Trust ______-__
Commercial Mortgage Pass-Through Certificates, Series ______-__
Ladies and Gentlemen:
We have acted as special counsel to Structured Asset Securities
Corporation II, (the "Depositor"), ______ _________. ("_____") and
_______________, doing business as ______________, a division of
_____________________________ ("_______"), in connection with the following
transactions (collectively, the "Transactions"):
1. the sale by _______, and the purchase by the Depositor, of certain
multifamily and commercial mortgage loans (the "_______ Mortgage Loans"),
pursuant to that certain Mortgage Loan Purchase Agreement, dated as of _______
__, _______ (the "_______ Mortgage Loan Purchase Agreement"), between _______ as
seller and the Depositor as purchaser;
2. the sale by _________________________ ("____________" and, together
with _______, the "Mortgage Loan Sellers"), and the purchase by the Depositor,
of certain other multifamily and commercial mortgage loans (the "____________
Mortgage Loans" and, together with the _______ Mortgage Loans, the "Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement, dated as of
_______ __, _______ (the "____________ Mortgage Loan Purchase Agreement" and,
together with the _______ Mortgage Loan Purchase Agreement, the "Mortgage Loan
Purchase Agreements"), between ____________ as seller, the Depositor as
purchaser and _____ __________ as an additional party;
3. the creation of a common law trust (the "Trust") and the issuance of
an aggregate $___________ Certificate Principal Balance of Commercial Mortgage
Pass-Through Certificates, Series ______-__ (the "Certificates"), consisting of
multiple classes designated Class A-1, Class A-2, Class A-3, Class X-0, Xxxxx
X-0, Class X-CL, Class X-CP, Class X-VF, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P,
Class Q, Class S, Class T, Class U, Class R-I, Class R-II, Class R-III, Class
R-LR and Class V, pursuant to that certain Pooling and Servicing Agreement,
dated as of _______ ____ _______ (the "Pooling and Servicing Agreement"),
between the Depositor as depositor, __________________ as master servicer,
__________________ as special servicer, _________________ as trustee (the
"Trustee") and __________ _________ as fiscal agent;
4. the transfer of the Mortgage Loans by the Depositor to the Trust,
pursuant to the Pooling and Servicing Agreement, in exchange for the issuance of
the Certificates at the direction of the Depositor;
5. the sale by the Depositor, and the purchase by _____, ______________
("________"), ______________________ ("________") and _______ __________________
("_______"; _______, collectively with _____, ________ and ________ in such
capacity, the "Underwriters"), of the Class X-0, Xxxxx X-0, Class A-3, Class
A-4, Class A-5, Class B, Class C, Class D, Class E, Class F and Class G
Certificates (collectively, the "Publicly Offered Certificates"), pursuant to
that certain Underwriting Agreement, dated as of _______ __, _______ (the
"Underwriting Agreement"), between the Depositor and the Underwriters, and
acknowledged, as to certain sections, by ____________ and _______;
6. the sale by the Depositor, and the purchase by _____ and ________
(together in such capacity, the "Initial Purchasers"), of the Class X-CL, Class
X-CP, Class X-VF, Class H, Class J, Class K, Class L, Class M, Class N, Class P,
Class Q, Class S, Class T and Class U Certificates (collectively, the "Privately
Offered Certificates" and, collectively with the Publicly Offered Certificates,
the "Offered Certificates"), together with the Class V Certificates, pursuant to
that certain Certificate Purchase Agreement, dated as of _______ __, _______
(the "Certificate Purchase Agreement"), between the Depositor and the Initial
Purchasers;
7. the negotiation and execution of that certain _______
Indemnification Agreement, dated as of _______ __, _______ (the "_______
Indemnification Agreement"), between _______, the Depositor and the
Underwriters/Initial Purchasers; and
8. the negotiation and execution of that certain ___ Indemnification
Agreement, dated as of _______ __, _______ (the "___ Indemnification Agreement"
and, together with the _______ Indemnification Agreement, the "Indemnification
Agreements"), between ____________, _______, Inc. ("_______"), the Depositor and
the Underwriters/Initial Purchasers.
In the course of our acting as special counsel to the Depositor, _____
and _______ as described above, we prepared or reviewed the Pooling and
Servicing Agreement, the Underwriting Agreement, the Certificate Purchase
Agreement, the Mortgage Loan Purchase Agreements and the Indemnification
Agreements (collectively, the "Agreements"). Capitalized terms not defined
herein have the respective meanings set forth in the Pooling and Servicing
Agreement and, to the extent not defined therein, in the other Agreements.
In addition, with the knowledge and consent of the Depositor and the
Underwriters/Initial Purchasers, we have acted as special counsel to those
parties in connection with the preparation or review of the following documents
and all exhibits thereto (collectively with the Agreements, the "Relevant
Documents"):
(i) the Prospectus Supplement, dated _______ __, _______ (the
"Prospectus Supplement"), specifically relating to the Publicly Offered
Certificates and the Trust;
(ii) the Prospectus, dated _______ ____, _______, relating to
publicly offered mortgage-backed securities, including mortgage
pass-through certificates evidencing interests in trust funds
established by the Depositor (the "Basic Prospectus" and, together with
the Prospectus Supplement, the "Prospectus");
(iii) the Offering Memorandum, dated _______ __, _______ (the
"Memorandum") specifically relating to the Privately Offered
Certificates and the Trust; and
(iv) the registration statement on Form S-3 (No. 333-_____)
(the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission").
We have also reviewed and, without independent investigation, assumed
the accuracy of the opinions and legal conclusions set forth in that certain
opinion dated __________ __, _______, rendered by _______________ to
_____________________ and the addressees to this letter, regarding certain tax
consequences to the Trust Fund resulting from the servicing and administration
of the _____________ Mortgage Loan and any related REO Property in accordance
with the ____________ Servicing Agreement.
For purposes of rendering the opinions set forth below, we have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents and records as we have deemed relevant or
necessary as the basis for the opinions set forth below; we have obtained such
certificates from and made such inquiries of officers and representatives of the
parties to the Agreements and public officials as we have deemed relevant or
necessary as the basis for such opinions; and we have relied upon, and assumed
the accuracy of, such other documents and records, such certificates and the
statements made in response to such inquiries, with respect to the factual
matters upon which such opinions are based. We have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters contained in the Agreements, (ii) the legal capacity of natural
persons, (iii) the genuineness of all signatures, (iv) the authenticity of all
documents submitted to us as originals, (v) the conformity to authentic
originals of all documents submitted to us as certified, conformed or
photostatic copies, (vi) the due organization of each of the parties to the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) except as expressly addressed in
opinion paragraph 5 below, the power and authority of all parties to the
Agreements to enter into, perform under and consummate the transactions
contemplated by the Agreements, without any resulting conflict with or violation
of the organizational documents of any such party or with or of any law, rule,
regulation, order, writ or decree applicable to any such party or its assets,
and without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreements by all parties thereto, (ix) except as
expressly addressed in opinion paragraph 6 below, the constitution of each of
the Agreements as the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms, (x) the compliance
with the Agreements by all parties thereto and, in the case of the Pooling and
Servicing Agreement, by the registered holders and beneficial owners of the
Certificates, (xi) the conformity, to the requirements of the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements, of the Mortgage
Notes, the Mortgages and the other documents delivered to the Trustee by, on
behalf of or at the direction of the Depositor and the Mortgage Loan Sellers,
and (xii) the absence of any other agreement that supplements or otherwise
modifies the express terms of the Agreements.
Our opinions set forth below with respect to the enforceability of any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any
federal, state or local statute, rule or regulation, (ii) the application of any
general principles of equity or (iii) the obligation of diligence, (b) any
provision that purports to grant any remedies that would not otherwise be
available at law, to restrict access to any particular legal or equitable
remedies, to make any rights or remedies cumulative and enforceable in addition
to any other right or remedy, to provide that the election of any particular
remedy does not preclude recourse to one or more other remedies, to provide that
the failure to exercise or the delay in exercising rights or remedies will not
operate as a waiver of such rights or remedies, to impose penalties or
forfeitures, or to provide for set-off in the absence of mutuality between the
parties, (c) any provision that purports to release, exculpate or exempt a party
from, or indemnify a party for, liability for any act or omission on its part
that constitutes negligence, recklessness or willful or unlawful conduct, (d)
any provision that purports to govern matters of civil procedure, including any
such provision that purports to establish evidentiary standards, to waive
objections to venue or forum, to confer subject matter jurisdiction on any court
that would not otherwise have such jurisdiction or to waive any right to a jury
trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not in writing and executed by all
relevant parties, to sever any provision of any agreement, to appoint any person
or entity as the attorney-in-fact of any other person or entity or to provide
that any agreement or any particular provision thereof is to be governed by or
construed in accordance with the laws of any jurisdiction other than the State
of New York; (4) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws affecting the rights of creditors or secured parties
generally; and (5) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
any provision of any agreement that purports or is construed to provide
indemnification with respect to securities law violations.
When used in this opinion, the term "knowledge" or words of similar
import mean the actual knowledge of facts or other information of the
__________________ attorneys currently practicing law with this firm who have
been actively involved in the above-described representation of the Depositor,
_______ and/or the Underwriters/Initial Purchasers. In that regard we have
conducted no special or independent investigation of factual matters in
connection with this opinion letter.
In rendering the opinions set forth below, we do not express any
opinion concerning the laws of any jurisdiction other than the laws of the State
of New York and, where expressly referred to below, the federal laws of the
United States of America (in each case without regard to conflicts of law
principles). In addition, we do not express any opinion with respect to the tax,
securities or "doing business" laws of any particular State, including the State
of New York, or with respect to any matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that:
(a) The Registration Statement has become effective under the
Securities Act of 1933, as amended (the "1933 Act").
(b) To our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn, and no proceedings for
that purpose have been instituted or threatened and not terminated.
(c) The Registration Statement, the Basic Prospectus and the Prospectus
Supplement, as of their respective effective or issue dates (other than the
financial statements, schedules and other financial
and statistical information contained therein or omitted therefrom and other
than information incorporated therein by reference, as to which we express no
opinion), complied as to form in all material respects with the applicable
requirements of the 1933 Act and the rules and regulations of the Commission
thereunder.
(d) To our knowledge, there are no material contracts, indentures or
other documents relating to the Publicly Offered Certificates of a character
required to be described or referred to in the Registration Statement or the
Prospectus Supplement or to be filed as exhibits to the Registration Statement,
other than those described or referred to therein or filed or incorporated by
reference as exhibits thereto.
(e) The execution, delivery and performance by the Depositor of the
Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement, the
Underwriting Agreement and the Certificate Purchase Agreement do not conflict
with, or result in a violation of, any federal or State of New York statute, or
any rule or regulation promulgated thereunder or pursuant thereto, which
statute, rule or regulation is applicable to the Depositor (except for any such
conflict or violation as would not have a material adverse effect on the
performance by the Depositor of its obligations under those Agreements).
(f) The Mortgage Loan Purchase Agreements, the Pooling and Servicing
Agreement, the Underwriting Agreement and the Certificate Purchase Agreement are
each a valid, legal and binding agreement of the Depositor, enforceable against
the Depositor in accordance with its terms.
(g) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for in accordance with the Underwriting Agreement or the
Certificate Purchase Agreement, as applicable, will be duly and validly issued
and outstanding and entitled to the benefits of the Pooling and Servicing
Agreement.
(h) No consent, approval, authorization or order of any federal or
State of New York court, agency or other governmental body is required for the
consummation by the Depositor of the transactions contemplated by the terms of
the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement, the
Underwriting Agreement and the Certificate Purchase Agreement, except (a) such
as have been obtained and (b) such as may be required under state securities
laws or the "blue sky" laws of any jurisdiction in connection with the purchase
and the offer and sale of Offered Certificates by the Underwriters/Initial
Purchasers, as to which we express no opinion.
(i) The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
(j) The Trust is not required to be registered under the Investment
Company Act of 1940, as amended.
(k) The statements set forth in the Prospectus Supplement under the
headings "Federal Income Tax Consequences", "ERISA Considerations" and "Legal
Investment", in the Basic Prospectus under the headings "Federal Income Tax
Consequences", "ERISA Considerations" and "Legal Investment" and in the
Memorandum under the headings "Certain Federal Income Tax Consequences",
"Certain ERISA Considerations" and "Legal Investment", to the extent that they
describe certain matters of federal law or legal conclusions with respect
thereto, while not purporting to discuss all possible consequences of an
investment in the Offered Certificates to all investors, provide an accurate
summary of such matters and conclusions set forth under such headings.
(l) The statements set forth in the Prospectus Supplement under the
headings "Description of the Offered Certificates" and "Servicing Under the
Series ______-__ Pooling and Servicing Agreement", in the Basic Prospectus under
the headings "Description of the Certificates" and "Description of the Governing
Documents" and in the Memorandum under the headings "Summary of Offering
Memorandum--Description of the Privately Offered Certificates" and "Transfer and
Exchange; Restrictions" insofar as such statements purport to summarize certain
material provisions of the Offered Certificates and the Pooling and Servicing
Agreement, are accurate in all material respects.
(m) As described in the Prospectus and Memorandum, (a) each Loan REMIC
will qualify as a REMIC within the meaning of the REMIC Provisions, and the
related Loan REMIC Regular Interest will be the "regular interest" and the Class
R-LR Certificates will evidence the sole class of "residual interests" in each
Loan REMIC, (b) REMIC I will qualify as a REMIC within the meaning of the REMIC
Provisions, and the REMIC I Regular Interests will be "regular interests" and
the Class R-I Certificates will evidence the sole class of "residual interests"
in REMIC I, (c) REMIC II will qualify as a REMIC within the meaning of the REMIC
Provisions, and the REMIC II Regular Interests will be "regular interests" and
the Class R-II Certificates will evidence the sole class of "residual interests"
in REMIC II, and (d) REMIC III will qualify as a REMIC within the meaning of the
REMIC Provisions, and the Regular Interest Certificates will evidence "regular
interests" and the Class R-III Certificates will evidence the sole class of
"residual interests" in REMIC III.
(n) The portion of the Trust Fund consisting of the Grantor Trust
Assets will be classified as a grantor trust under subpart E, part I of
subchapter J of the Internal Revenue Code of 1986.
(o) Assuming the accuracy of the deemed representations set forth under
the heading "Notice to Investors" in the Memorandum on the part of investors
that purchase Privately Offered Certificates from _____ and ________, the offer
and sale of the Privately Offered Certificates by the Depositor to _____ and
________, and by _____ and ________ to investors that purchase from them, in the
manner contemplated by the Memorandum, the Certificate Purchase Agreement and
the Pooling and Servicing Agreement, are transactions that do not require
registration under the Securities Act of 1933, as amended.
The opinions expressed herein are being delivered to you as of
the date hereof, and we assume no obligation to advise you of any changes of law
or fact that may occur after the date hereof, notwithstanding that such changes
may affect the legal analysis or conclusions contained herein. This opinion
letter is solely for your benefit in connection with the Transactions and may
not be relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
EXHIBIT A-2
FORM OF OPINION OF IN-HOUSE COUNSEL FOR THE COMPANY
--------- --, -----
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: LB Commercial Mortgage Trust _____-__
Commercial Mortgage Pass-Through Certificates, Series _____-__
Ladies and Gentlemen:
I am internal counsel to ______ _________. ("___") and, in such
capacity, have acted as counsel to Structured Asset Securities Corporation II, a
Delaware corporation ("SASCO II"), and am familiar with matters pertaining to
the following agreements (collectively, the "Agreements"): (i) the Pooling and
Servicing Agreement dated as of _______ __,, _____ (the "Pooling and Servicing
Agreement"), by and between SASCO II, as depositor, __________________al
Association, as master servicer, _______________., as special servicer,
______________, as trustee, and _____________, as fiscal agent; (ii) the
Mortgage Loan Purchase Agreement dated as of __________ __, _____, by and
between SASCO II and _____________, doing business as _____________, a division
of ______ ("____"); (iii) the Mortgage Loan Purchase Agreement dated as of
__________ __, _____, by and between SASCO II, __________________ ("______"),
and _______________ as an additional party; (iv) the Underwriting Agreement
dated as of __________ __, _____, by and between SASCO II, ___, _____ __________
("______"), _______________ ("______") and ______ __________ ("______") and
acknowledged as to certain sections by ______ and ____; and (v) the Certificate
Purchase Agreement dated as of __________ __, _____ by and between SASCO II, ___
and ______.
In connection with this opinion, I have examined, or have had examined
on my behalf, an executed copy of each of the Agreements, certificates and
statements of public officials and officers of SASCO II and such other
agreements, instruments, documents and records as I have deemed necessary or
appropriate for the purposes of this opinion.
Based on the foregoing but subject to the assumptions, exceptions,
qualifications and limitations hereinafter expressed, I am of the opinion that:
(1) SASCO II is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware,
with all requisite corporate power to enter into the Agreements.
(2) Each of the Agreements has been duly authorized, executed
and delivered by SASCO II.
(3) The execution, delivery and performance of the Agreements
by SASCO II, (i) to my knowledge, do not and will not result in a
material breach or violation of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to me to which
SASCO II is a party, (ii) do not contravene its certificate of
incorporation or by-laws, and (iii) to my knowledge, do not contravene
any order of any court or governmental agency that names SASCO II and
is specifically directed to its property (in each case, except for such
breaches, violations, defaults or contraventions as would not have a
material adverse effect on the ability of SASCO II to perform its
obligations under the Agreements).
The foregoing opinions are subject to the following assumptions,
exceptions, qualifications and limitations:
(a) My opinions are limited to the present laws and to the
facts as they presently exist. I assume no obligation to revise or
supplement this opinion should the present laws of any jurisdiction
referred to in paragraph A. above be changed by legislative action,
judicial decision or otherwise.
(b) I have assumed with your permission (i) the genuineness
of all signatures by each party other than SASCO II, (ii) the legal
capacity of all natural persons signing or delivering any instrument,
(iii) the authenticity of documents submitted to me as originals and
the conformity with the authentic original documents of all documents
submitted to me as copies, and (iv) the due execution and delivery,
pursuant to due authorization, of all documents by each party other
than SASCO II.
(c) I have relied on originals or copies, certified or
otherwise identified to my satisfaction, of the certificate of
incorporation and by-laws of SASCO II, records of proceedings taken by
SASCO II, and other corporate documents and records of SASCO II, and
have made such other investigations as I have deemed relevant or
necessary for the purpose of this opinion. I have relied, without
independent investigation, as to factual matters on the representations
and warranties contained in the Agreements and on certificates of
public officials and/or officers and other representatives of SASCO II.
This letter is rendered to you in connection with the Agreements and
the transactions related thereto and may not be relied upon by any other person
or by you in any other context or for any other purpose. This letter may not be
quoted in whole or in part, nor may copies thereof be furnished or delivered to
any other person, without my prior written consent.
The foregoing opinions are given on the express understanding that the
undersigned is an officer of _______________. and shall in no event incur any
personal liability in connection with the said opinion.
Very truly yours,
EXHIBIT A-3
FORM OF LETTER TO BE DELIVERED BY _______________
SPECIAL COUNSEL TO THE COMPANY AND COUNSEL TO THE UNDERWRITERS
REGARDING THE DISCLOSURE IN THE REGISTRATION STATEMENT
AND PROSPECTUS
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Re: LB-_____ Commercial Mortgage Trust _______-__
Commercial Mortgage Pass-Through Certificates, Series _______-__
Ladies and Gentlemen:
We have acted as special counsel to Structured Asset Securities
Corporation II (the "Depositor"), Xxxxxx _________. ("______") and
__________________, doing business as ______________, a division of
____________________ ("______"), in connection with the following transactions
(collectively, the "Transactions"):
(i) the sale by ______, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "______ Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement,
dated as of __________ __, _____ (the "______ Mortgage Loan Purchase
Agreement"), between ______ as seller and the Depositor as purchaser;
(ii) the sale by _____ _________ ("_________" and, together
with ______, the "Mortgage Loan Sellers"), and the purchase by the
Depositor, of certain other multifamily and commercial mortgage loans
(the "_________ Mortgage Loans" and, together with the ______ Mortgage
Loans, the "Mortgage Loans"), pursuant to that certain Mortgage Loan
Purchase Agreement, dated as of __________ __, _____ (the "_________
Mortgage Loan Purchase Agreement" and, together with the ______
Mortgage Loan Purchase Agreement, the "Mortgage Loan Purchase
Agreements"), between _________ as seller, the Depositor as purchaser
and _____ __________ as an additional party;
(iii) the creation of a common law trust (the "Trust") and
the issuance of an aggregate $________ Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series _______-__ (the
"Certificates"), consisting of multiple classes designated Class A-1,
Class A-2, Class A-3, Class X-0, Xxxxx X-0, Class X-CL, Class X-CP,
Class X-VF, Class B, Class C, Class D, Class E, Class F, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class P, Class Q, Class
S, Class T, Class U, Class R-I, Class R-II, Class R-III, Class R-LR and
Class V, pursuant to that certain Pooling and Servicing Agreement,
dated as of _______ __,, _____ (the "Pooling and Servicing Agreement"),
between the Depositor as depositor, Wachovia Bank, National Association
as master servicer, _______________. as special servicer,
___________________ as trustee (the "Trustee") and _____________ as
fiscal agent;
(iv) the transfer of the Mortgage Loans by the Depositor to
the Trust, pursuant to the Pooling and Servicing Agreement, in exchange
for the issuance of the Certificates at the direction of the Depositor;
(v) the sale by the Depositor, and the purchase by ______,
_____ __________, _______________ and ____________________
(collectively, the "Underwriters"), of the Class X-0, Xxxxx X-0, Class
A-3, Class A-4, Class A-5, Class B, Class C, Class D, Class E, Class F
and Class G Certificates (collectively, the "Publicly Offered
Certificates"), pursuant to that certain Underwriting Agreement, dated
as of __________ __, _____ (the "Underwriting Agreement"), between the
Depositor and the Underwriters, and acknowledged, as to certain
sections, by _________ and ______;
(vi) the negotiation and execution of that certain ______
Indemnification Agreement, dated as of __________ __, _____ (the
"______ Indemnification Agreement"), between ______, the Depositor and
the Underwriters; and
(vii) the negotiation and execution of that certain _____
Indemnification Agreement, dated as of __________ __, _____ (the "_____
Indemnification Agreement" and, together with the ______
Indemnification Agreement, the "Indemnification Agreements"), between
_________, _________, Inc., the Depositor and the Underwriters.
In the course of our acting as special counsel to the Depositor, ______
and ______ as described above, we prepared or reviewed the Pooling and Servicing
Agreement, the Underwriting Agreement, the Mortgage Loan Purchase Agreements and
the Indemnification Agreements (collectively, the "Agreements"). Capitalized
terms not defined herein have the respective meanings set forth in the Pooling
and Servicing Agreement and, to the extent not defined therein, in the other
Agreements.
In addition, with the knowledge and consent of the Depositor and the
Underwriters, we have also acted as special counsel to those parties in
connection with the preparation or review of the following documents and all
exhibits thereto (collectively with the Agreements, the "Relevant Documents"):
(a) the Prospectus Supplement, dated __________ __, _____
(the "Prospectus Supplement"), specifically relating to the Publicly
Offered Certificates and the Trust;
(b) the Prospectus, dated _________ __, _____, relating to
publicly offered mortgage-backed securities, including mortgage
pass-through certificates evidencing interests in trust funds
established by the Depositor (the "Basic Prospectus" and, together with
the Prospectus Supplement, the "Prospectus");
(c) the registration statement on Form S-3 (No. 333-_____)
(the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission");
(d) the loan agreement, the Mortgage Note and selected
provisions of the Mortgage for the Mortgage Loan described in the
Prospectus Supplement as the "Xxxxxxxx Mall Mortgage Loan"; and
(e) asset summaries prepared and provided to us by ______
with respect to the Mortgaged Properties securing the ______ Mortgage
Loans.
Furthermore, we have discussed the information contained in the
Relevant Documents with certain representatives of the Depositor, the
Underwriters and the other parties to the Agreements and their respective
counsel (in addition to us).
For purposes of delivering this letter, we have also examined originals
or copies, certified or otherwise identified to our satisfaction, of such other
documents and records as we have deemed relevant or necessary as the basis for
the statements made in this letter; we have obtained such certificates from and
made such inquiries of officers and representatives of the parties to the
Agreements and public officials as we have deemed relevant or necessary as the
basis for the statements made in this letter; and we have relied upon, and
assumed the accuracy of, such other documents and records, such certificates and
the statements made in response to such inquiries, with respect to the factual
matters upon which the statements made in this letter are based. We have also
assumed (i) the truthfulness and accuracy of each of the representations and
warranties as to factual matters contained in the Agreements, (ii) the legal
capacity of natural persons, (iii) the genuineness of all signatures, (iv) the
authenticity of all documents submitted to us as originals, (v) the conformity
to authentic originals of all documents submitted to us as certified, conformed
or photostatic copies, (vi) the due organization of each of the parties to the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) the power and authority of all
parties to the Agreements to enter into, perform under and consummate the
transactions contemplated by the Agreements, without any resulting conflict with
or violation of the organizational documents of any such party or with or of any
law, rule, regulation, order, writ or decree applicable to any such party or its
assets, and without any resulting default under or breach of any other agreement
or instrument by which any such party is bound or which is applicable to it or
its assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreements by all parties thereto, (ix) the
constitution of each of the Agreements as the legal, valid and binding
obligation of each party thereto, enforceable against such party in accordance
with its terms, (x) the compliance with the Agreements by all parties thereto
and, in the case of the Pooling and Servicing Agreement, by the registered
holders and beneficial owners of the Certificates, (xi) the conformity, to the
requirements of the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreements, of the Mortgage Notes, the Mortgages and the other
documents delivered to the Trustee by, on behalf of or at the direction of the
Depositor and/or the Mortgage Loan Sellers, (xii) the conformity of the text of
each document filed with the Commission through the Commission's Electronic Data
Gathering, Analysis and Retrieval System to the printed documents reviewed by
us, and (xiii) the absence of any other agreement that supplements or otherwise
modifies the express terms of the Agreements. In rendering this letter, we do
not make any statement or express any view concerning the laws of any
jurisdiction other than the federal laws of the United States of America.
While we have made no independent check or verification of, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, on the
basis of and subject to the foregoing, nothing has come to our attention that
has caused us to believe that (a) the Registration Statement, as of its
effective date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (b) the Prospectus, as of the date of the
Prospectus Supplement or as of the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that we express no view or
belief as to (w) any information contained in or omitted from the Prospectus
Supplement with respect to the description of the Mortgage Loans identified
therein as the _______________, the _____________ or the _______________, the
description of the obligors under, and the Mortgaged Properties relating to, the
foregoing three Mortgage Loans and/or the description of the servicing and
administration of the _______________ or any related REO Property, (x) any
financial, statistical or numerical data set forth or referred to in or omitted
from the Registration Statement or the Prospectus, (y) the information set forth
on or omitted from any diskette that
may accompany the Prospectus, or (z) any documents or information incorporated
by reference in the Registration Statement or the Prospectus.
In connection with delivering this letter, we advise you that, as to
materiality, we have relied, to the extent that we may properly do so in the
discharge of our professional responsibilities as experienced law practitioners,
upon the judgment of officers and representatives of the Depositor, the
Underwriters and the Mortgage Loan Sellers. In addition, we call to your
attention that, with your knowledge and consent, we have not, except to the
limited extent described above, examined or otherwise reviewed any of the
Mortgage Files or any particular documents contained in such files or any other
document with respect to the Mortgage Loans. When used in this letter, the term
"attention" or words of similar import mean the conscious awareness of facts or
other information of the _____________ attorneys currently practicing law with
this firm who have been actively involved in providing the representation
described above in connection with the Transactions.
The statements set forth herein are being made to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the statements made herein. This letter is being delivered solely for the
benefit of the persons to which it is addressed in connection with the
Transactions; accordingly, it may not be quoted or otherwise delivered to or
relied upon by any other person (including, without limitation, any person who
acquires Publicly Offered Certificates from any Underwriter), filed with any
governmental authority or other regulatory agency or otherwise circulated or
utilized for any other purpose without our prior written consent.
Very truly yours,
