LB COMMERCIAL MORTGAGE TRUST 2007-C3,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-C3
UNDERWRITING AGREEMENT
As of July 19, 2007
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Citigroup Global Markets Inc
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Structured Asset Securities Corporation II, a Delaware corporation
(the "Company"), proposes to cause the issuance of, and to sell to ▇▇▇▇▇▇
Brothers Inc. ("LBI") and Citigroup Global Markets Inc. ("CITI" and collectively
with LBI, 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"). The Mortgage Loans will be
acquired by the Company from ▇▇▇▇▇▇ Brothers Holdings Inc. ("LBHI"), pursuant to
a mortgage loan purchase agreement dated as of July 19, 2007 (the "Mortgage Loan
Purchase Agreement"), between the Company and LBHI. LBHI is referred to herein
as a "Mortgage Loan Seller".
In connection with the sale by LBHI to the Company of the Mortgage
Loans, LBHI, the Company and LBI entered into an indemnification agreement dated
as of July 19, 2007 (the "LBHI Indemnification Agreement").
The Certificates will be issued under a pooling and servicing
agreement to be dated as of July 11, 2007 (the "Pooling and Servicing
Agreement"), among the Company, as depositor, KeyCorp Real Estate Capital
Markets, Inc. ("KRECM"), as master servicer (in such capacity, the "Master
Servicer"), Midland Loan Services, Inc. ("Midland"), as special servicer (in
such capacity, the "Special Servicer"), and LaSalle Bank National Association
("LaSalle"), as trustee (in such capacity, the "Trustee"). The Certificates and
the Mortgage Loans are described more fully in the Prospectus (as defined
below), which the Company has furnished to the Underwriters. The Certificates
are part of a series of mortgage pass-through certificates that evidence
beneficial ownership interests in the Trust Fund and are being issued pursuant
to the Pooling and Servicing Agreement. The other certificates of such series
will be retained by the Company or privately placed with a limited number of
institutional investors.
In connection with the execution and delivery of the Pooling and
Servicing Agreement: (i) LaSalle, the Company, LBI, and CITI entered into an
indemnification agreement dated as of July 19, 2007 (the "Trustee
Indemnification Agreement"); (ii) KRECM, the Company, LBI and CITI entered into
an indemnification agreement dated as of July 19, 2007 (the "Master Servicer
Indemnification Agreement"); and (iii) Midland, the Company, LBI and CITI
entered into an indemnification agreement dated as of July 19, 2007 (the
"Special Servicer Indemnification Agreement"; and, collectively with the Trustee
Indemnification Agreement, the Master Servicer Indemnification Agreement and the
Mortgage Loan Seller Indemnification Agreements, the "Indemnification
Agreements").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-141638) for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective. The rules
and regulations of the Commission promulgated under the 1933 Act are
collectively referred to in this Agreement as the "1933 Act Rules." As used in
this Underwriting Agreement (this "Agreement" or this "Underwriting Agreement"):
(i) "Registration Statement" means the foregoing registration statement and all
exhibits thereto, as amended or supplemented to the date of this Agreement,
together with any information that is contained in the Prospectus (as defined
below) that is deemed to be a part of and included in that registration
statement pursuant to Rule 430B under the 1933 Act as of the date hereof; (ii)
"Basic Prospectus" means the base prospectus included in the Registration
Statement at the time it became effective, as amended or supplemented up to the
date of filing of the Prospectus Supplement (as defined below) by any base
prospectus filed with the Commission pursuant to paragraph (b) of Rule 424 under
the 1933 Act; (iii) "Prospectus Supplement" means the prospectus supplement to
the Basic Prospectus, specifically relating to the Certificates, filed or to be
filed with the Commission pursuant to paragraph (b) of Rule 424 under the 1933
Act, that is deemed to be part of and included in the Registration Statement on
the date hereof in accordance with paragraph (f) under Rule 430B of the 1933
Act; and (iv) "Prospectus" means the Basic Prospectus, together with the
Prospectus Supplement.
At or prior to the time when sales to purchasers of the Publicly
Offered Certificates were first made in accordance with Rule 159 under the 1933
Act, which was approximately 1:15 p.m. (New York City time) on July 19, 2007
(the "Time of Sale"), the Company had prepared the following information, which
is collectively referred to as the "Time of Sale Information": (i) the Basic
Prospectus dated July 12, 2007; (ii) the Free Writing Prospectus (as defined
below), dated July 12, 2007 relating to the Certificates and filed by the
Company on July 13, 2007 pursuant to Rule 433 under the 1933 Act (the "Offering
Prospectus"), which Free Writing Prospectus refers to itself therein as "this
offering prospectus", consists of over approximately 260 printed pages plus the
annexes thereto and was accompanied by the Basic Prospectus; and (iii) any other
Issuer Free Writing Prospectuses (as defined below) relating to the Certificates
that have been conveyed to prospective investors prior to the Time of Sale and
that have been or will be filed by the Company with the Commission pursuant to
Rule 433 under the 1933 Act. If, subsequent to the date of this Agreement, the
Company and the Underwriters determine that, as to the investors in one or more
Classes of the Publicly Offered Certificates, such initial Time of Sale
Information includes an untrue statement of material fact or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the Underwriters
terminate their old purchase contracts and enter into new purchase contracts
with investors in the Publicly Offered Certificates, then "Time of Sale
Information" shall refer to the information conveyed to investors at the time of
entry into the last such new purchase contract, including any information that
corrects such material misstatements or omissions ("Corrective Information").
For the purposes of this Underwriting Agreement, "Free Writing Prospectus" means
a "free writing prospectus" within the meaning of Rule 405 under the 1933 Act;
and "Issuer Free
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Writing Prospectus" means an "issuer free writing prospectus" within the meaning
of Rule 433 under the 1933 Act.
Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Prospectus.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents, warrants and agrees with the respective Underwriters that:
(a) The Registration Statement has become effective under the 1933
Act. The aggregate principal amount of the Certificates does not exceed the
remaining amount of mortgage-backed securities that may be offered and sold
under the Registration Statement as of the date hereof. The Registration
Statement, as of the date it was declared effective (its "Effective Date"), and
the portion of the Registration Statement relating to the Certificates
(including, without limitation, the Prospectus), as of the deemed effective date
thereof pursuant to Rule 430B under the 1933 Act (its "Deemed Effective Date")
complied, complies and/or will comply, as applicable, as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Rules; and the
information in the Registration Statement, as of its Effective Date, and the
information in the portion of the Registration Statement relating to the
Certificates (including, without limitation, the Prospectus), as of its Deemed
Effective Date, did not, does not and/or will not, as applicable, contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and the information in the Prospectus as of the date hereof, does not, and as of
the Closing Date (as hereinafter defined), will not, contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representation or warranty as to the Excluded Information (as defined below).
The "Excluded Information" shall mean, collectively, the information
contained in or omitted from the Registration Statement or the Prospectus or the
Time of Sale Information or any Issuer Free Writing Prospectus or any Issuer
Information (as defined below), or any revision, amendment or supplement to any
of the foregoing, (i) in reliance upon and in conformity with written or
electronic information furnished to the Company by any Underwriter specifically
for use in connection with the preparation of the Prospectus, or any revision,
amendment or supplement thereto, the Time of Sale Information or any such Issuer
Free Writing Prospectus (collectively, the "Underwriter Information"), or (ii)
to which the indemnities provided for in Section 2 of any of the Indemnification
Agreements are applicable in accordance with the respective terms thereof
(collectively, the "Third-Party Information"). It is hereby acknowledged that
the information set forth on Schedule III hereto constitutes the only
Underwriter Information in the Offering Prospectus and the Prospectus.
(b) If and to the extent that it has not done so already, the Company
will make a good faith and reasonable effort to file the Prospectus with the
Commission within the time period required under Rule 424 and, in the event that
it fails to do so, the Company shall file the Prospectus with the Commission as
soon as practicable thereafter.
(c) The Time of Sale Information, at the Time of Sale, did not, and at
the Closing Date will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
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provided, however, that the Company makes no representation and warranty with
respect to any Excluded Information.
(d) The Company (including its agents and representatives other than
the Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to, and will not make, use, prepare, authorize,
approve or refer to, any "written communication" (as defined in Rule 405 under
the 1933 Act) that constitutes an offer to sell or solicitation of an offer to
buy the Certificates other than (i) the Prospectus, (ii) any document not
constituting a prospectus under Section 2(a)(10)(a) of the 1933 Act, including,
without limitation, any document that complies with Rule 134 under the 1933 Act,
(iii) the Time of Sale Information, and (iv) any other Free Writing Prospectus
approved in advance by the Underwriters either in writing or in any other manner
mutually agreed to by the Underwriters and the Company. Each Issuer Free Writing
Prospectus (as defined below) included under clause (iv) above that was prepared
by or on behalf of the Company or its affiliates complied or, if used after the
date hereof, will comply, in all material respects with the 1933 Act and the
1933 Act Rules and each Issuer Free Writing Prospectus prepared by or on behalf
of the Company or its affiliates or delivered to the Company for filing in
accordance with Section 4 has been filed or will be filed in accordance with
Section 4 (to the extent required thereby). Each Issuer Free Writing Prospectus
included under clause (iv) above, at the Time of Sale, did not, and at the
Closing Date will not, contain any untrue statements of a material fact or (when
read in conjunction with the other Time of Sale Information) omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, that the
Company makes no representation and warranty with respect to any Excluded
Information.
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease or operate its properties and to
conduct its business as now conducted by it and to enter into and perform its
obligations under this Agreement, the Pooling and Servicing Agreement and the
Mortgage Loan Purchase Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business.
(f) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of the
date on which, prior to the Closing Date, any amendment to the Registration
Statement becomes effective, and as of the Closing Date, there has not and will
not have been (i) any request by the Commission for any further amendment to the
Registration Statement or the Prospectus or for any additional information, (ii)
any issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the institution or threat of any proceeding for
that purpose or (iii) any notification with respect to the suspension of the
qualification of the Certificates for sale in any jurisdiction or any initiation
or threat of any proceeding for such purpose.
(g) This Agreement has been duly authorized, executed and delivered by
the Company, and the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreement, when executed and delivered as contemplated hereby and
thereby, will have been duly authorized, executed and delivered by the Company;
and, assuming due authorization, execution and delivery hereof and thereof by
the other parties hereto and thereto, this Agreement constitutes, and the
Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreement, 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,
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moratorium or other similar laws affecting the enforcement of the rights of
creditors generally, (ii) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of any such
agreement that purport or are construed to provide indemnification for
securities law liabilities.
(h) As of the Closing Date, the Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the respective
descriptions thereof contained in the Prospectus. As of the Closing Date, the
Certificates will be duly and validly authorized and, when duly and validly
executed, authenticated and delivered in accordance with the Pooling and
Servicing Agreement to the Underwriters against payment therefor as provided
herein, will be duly and validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement.
(i) At the Closing Date, each of the representations and warranties of
the Company set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(j) The Company is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument the effect of which violation or default would be material to the
Company or which violation or default would have a material adverse effect on
the performance of its obligations under this Agreement, the Pooling and
Servicing Agreement or the Mortgage Loan Purchase Agreement. The execution,
delivery and performance by the Company of this Agreement, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreement do not and will not
conflict with or result in a breach of any term or provision of the certificate
of incorporation or by-laws of the Company or conflict with, result in a breach,
violation or acceleration of, or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Company is a party or by
which it or any of its material assets is bound, or any statute, order, rule or
regulation applicable to the Company of any state or federal court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company.
(k) There is no action, suit or proceeding against the Company
pending, or, to the knowledge of the Company, threatened, before any court,
arbitrator, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, the Pooling and Servicing Agreement, the Mortgage Loan
Purchase Agreement 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 the Mortgage Loan
Purchase Agreement, (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, the
Mortgage Loan Purchase Agreement or the Certificates or (iv) seeking to affect
adversely the federal income tax attributes of the Certificates as described in
the Prospectus.
(l) There are no contracts, indentures or other documents of a
character required by the 1933 Act or the 1933 Act Rules to be described or
referred to in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that have not been so described or
referred to therein or so filed or incorporated by reference as exhibits thereto
or that may be filed as exhibits thereto subsequent to the Closing Date (which
the Company will do within a reasonable period following the Closing Date);
provided, that the Company makes no representation as to any such contracts,
indentures or other documents or related information as to which any party would
be obligated to indemnify the Underwriters under the Indemnification Agreements
in accordance with the respective terms thereof.
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(m) No authorization, approval or consent of or filing with any court
or governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Certificates pursuant to or as contemplated by
this Agreement and the Pooling and Servicing Agreement, except such as have
been, or as of the Closing Date will have been, obtained or completed, as
applicable, or such as may otherwise be required under applicable state
securities laws in connection with the purchase and the offer and sale of the
Certificates by the Underwriters, and except any recordation or filing of the
respective assignments of the Mortgage Loans to the Trustee pursuant to the
Pooling and Servicing Agreement that have not been completed.
(n) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Company has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company.
(o) Any taxes, fees and other governmental charges payable by the
Company in connection with the execution and delivery of this Agreement, the
Pooling and Servicing Agreement or the Mortgage Loan Purchase Agreement or the
issuance and sale of the Certificates (other than such federal, state and local
taxes as may be payable on the income or gain recognized therefrom), have been
or will be paid at or prior to the Closing Date.
(p) Neither the Company nor the Trust Fund is, and neither the
issuance and sale of the Certificates in the manner contemplated by the
Prospectus nor the activities of the Trust Fund pursuant to the Pooling and
Servicing Agreement will cause the Company or the Trust Fund to be, an
"investment company" or under the control of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended.
(q) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of the
interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriters
will constitute at least reasonably equivalent value and fair consideration for
the Certificates. The Company will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund and the sale of the Certificates to the
Underwriters. The Company is not selling the Certificates to the Underwriters or
transferring the Mortgage Loans to the Trustee on behalf of the Trust Fund on
account of an antecedent debt or with any intent to hinder, delay or defraud any
of the creditors of the Company.
(r) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Company are pending or contemplated.
(s) At the Closing Date, the respective classes of Certificates shall
have been assigned ratings no lower than those set forth in Schedule I hereto by
the nationally recognized statistical rating organizations identified in
Schedule I hereto (the "Rating Agencies").
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(t) The Company is not, and on the date on which the first bona fide
offer of the Certificates is made (within the meaning of Rule 164(h)(2) under
the 1933 Act) will not be, an "ineligible issuer," as defined in Rule 405 under
the 1933 Act.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price (plus any
accrued interest) set forth on Schedule I hereto, Certificates of each class
thereof having the actual principal amount set forth next to the name of such
Underwriter on Schedule II hereto. Each of the Underwriters shall only be
required to purchase the actual principal amount of the Certificates of each
class thereof set forth next to such Underwriter's name on Schedule II hereto.
Each Underwriter hereby represents and warrants that, under GAAP and
for federal income tax purposes, it will report its acquisition of Certificates,
pursuant to this Agreement, as a purchase of assets and not as a secured
lending.
3. PAYMENT AND DELIVERY. The closing for the purchase and sale of the
Certificates hereunder shall occur at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, 2 World Financial Center, New York, New York 10281, at 10:00 a.m. New York
City time, on the "Expected Closing Date" identified on Schedule I hereto or at
such other location, time and date as shall be mutually agreed upon by the
Underwriters and the Company (such time and date of closing, the "Closing
Date"). Delivery of the Certificates shall be made through the Same Day Funds
Settlement System of the Depository Trust Company ("DTC"). Payment shall be made
to the Company in immediately available Federal funds wired to such bank as may
be designated by the Company (or by such other method of payment as may be
mutually agreed upon by the Company and any particular Underwriter), against
delivery of the Certificates. The Certificates will be made available for
examination by the Underwriters not later than 3:00 p.m. New York City time on
the last business day prior to the Closing Date.
References herein, including, without limitation, in the Schedules
hereto, to actions taken or to be taken following the Closing Date with respect
to any
Certificates that are to be delivered through the facilities of DTC
shall include, if the context so permits, actions taken or to be taken with
respect to the interests in such Certificates as reflected on the books and
records of DTC.
4. OFFERING BY THE UNDERWRITERS; FREE WRITING PROSPECTUSES.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale to the public, including, without limitation, in and from
the State of New York, as set forth in the Prospectus Supplement. It is further
understood that the Company, in reliance upon Policy Statement 105 has not and
will not file the offering pursuant to Section 352-e of the General Business Law
of the State of New York with respect to the Certificates which are not
"mortgage related securities" as defined in the 1934 Act (as defined below).
Accordingly, each Underwriter covenants and agrees with the Company that sales
of such Certificates made by any Underwriter in the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
(b) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors Free Writing
Prospectuses, or portions thereof, which the Company is required to file with
the Commission in electronic format and will use reasonable efforts to provide
to the Company such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft
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Excel(R) format and not in a PDF, except to the extent that the Company, in its
sole discretion, waives such requirements, subject to the following conditions
and any additional conditions set forth in subsections (f), (g), (h), (i) and
(j) of this Section 4 (to which conditions and additional conditions each
Underwriter agrees (provided that no Underwriter shall be responsible for any
breach of the following conditions by any other Underwriter.)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication (other
than the Prospectus) to any person in connection with the initial offering
of the Certificates, unless such written communication (1) is made in
reliance on Rule 134 under the 1933 Act, (2) constitutes Time of Sale
Information, or (3) constitutes an Underwriter Free Writing Prospectus (as
defined below) (that does not constitute Time of Sale Information) that has
been approved by the Company in advance of its use.
(ii) Each Underwriter shall deliver (and, if used on or prior to
the date hereof, represents and warrants that it has delivered) to the
Company, no later than two business days prior to the date of first use
thereof or such later date as may be agreed to by the Company: (i) any Free
Writing Prospectus that was prepared by or on behalf of such Underwriter or
any affiliate thereof (each, an "Underwriter Free Writing Prospectus") and
that contains any "issuer information," as defined in Rule 433(h) under the
1933 Act and footnote 271 of the Commission's Securities Offering Reform
Release No. 33-8591 ("Issuer Information") (which the parties hereto agree
includes, without limitation, information relating to Mortgage Loan Seller
Matters, as such term is defined in the LBHI Indemnification Agreement);
and (ii) any Free Writing Prospectus or portion thereof prepared by or on
behalf of such Underwriter that contains only a description of the final
terms of the Certificates. Notwithstanding the foregoing, any Free Writing
Prospectus that contains only ABS Informational and Computational Materials
may be delivered by any Underwriter to the Company not later than the later
of (A) two business days prior to the due date for filing of the Prospectus
with the Commission pursuant to Rule 424(b) under the 1933 Act or such
later date as may be agreed to by the Company and (B) the date of first use
of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that:
(i) The Underwriter Free Writing Prospectuses that were prepared
by or on behalf of such Underwriter or an affiliate thereof complied or, if
used after the date hereof, will comply, in all material respects with the
1933 Act and the 1933 Act Rules.
(ii) The Free Writing Prospectuses furnished or to be furnished
to the Company by such Underwriter pursuant to or as contemplated by
Section 4(b)(ii) hereof will constitute all Free Writing Prospectuses of
the type described in such Section that were furnished to prospective
investors by such Underwriter in connection with its offer and sale of the
Certificates.
(iii) The Free Writing Prospectuses furnished or to be furnished
to the Company by such Underwriter pursuant to or as contemplated by
Section 4(b)(ii) will constitute all Free Writing Prospectuses that were
furnished to a sponsor or servicer (as such terms are defined in Item 1101
of Regulation AB (17 C.F.R. Section 1100, et seq.)) for use or referral by
any such person in connection with its offer and sale of the Certificates.
(iv) Each Free Writing Prospectus provided or required to be
provided by any Underwriter to the Company pursuant to or as contemplated
by Section 4(b)(ii) hereof did not, as of
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the Time of Sale, and will not, as of the Closing Date, contain any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements contained therein (when read in conjunction with the
other Time of Sale Information), in light of the circumstances under which
they were made, not misleading; provided, however, that any such
Underwriter makes no representation to the extent such misstatements or
omissions were the result of any inaccurate Issuer Information, which
information was not corrected by Corrective Information subsequently
supplied by the Company, any other Underwriter or any Mortgage Loan Seller
to such Underwriter within a reasonable period of time prior to the Time of
Sale.
(v) Each Underwriter has not and will not convey any ABS
Informational and Computational Material in reliance upon Rule 167 and Rule
426 under the 1933 Act. ABS Informational and Computational Material shall
mean "ABS informational and computational material" as defined in Item 1101
of Regulation AB.
(d) The Company agrees to file with the Commission the following:
(i) each Issuer Free Writing Prospectus that was prepared by or
on behalf of the Company or its affiliates or delivered to the Company for
filing;
(ii) any Free Writing Prospectus or portion thereof delivered by
any Underwriter to the Company pursuant to Section 4(b)(ii) hereof; and
(iii) any Free Writing Prospectus for which the Company or any
person acting on its behalf provided, authorized or approved information
that is prepared and published or disseminated by a person unaffiliated
with the Company or any other offering participant that is in the business
of publishing, radio or television broadcasting or otherwise disseminating
communications;
provided, however, that the Company shall not be required to file with the
Commission (1) Issuer Information contained in any Underwriter Free Writing
Prospectus or Free Writing Prospectus of any offering participant other than the
Company, if such information is included or incorporated by reference in a
prospectus or Free Writing Prospectus previously filed with the Commission that
relates to the offering of the Certificates, or (2) any Free Writing Prospectus
or portion thereof that contains a description of the Certificates or the
offering of the Certificates which does not reflect the final terms thereof or
(3) any Free Writing Prospectus that does not contain substantive changes from
or additions to a Free Writing Prospectus previously filed with the Commission.
(e) Any Free Writing Prospectus required to be filed pursuant to
Section 4(d) hereof by the Company shall be filed with the Commission not later
than the date of first use of the Free Writing Prospectus (subject, in the case
of any Free Writing Prospectus required to be filed pursuant to Section 4(d)(ii)
hereof, to compliance by the Underwriters with Section 4(b)(ii)), except that:
(i) any Free Writing Prospectus or portion thereof required to be
filed that contains only the description of the final terms of the
Certificates shall be filed by the Company with the Commission within two
days of the later of the date such final terms have been established for
all classes of Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to
be filed that contains only ABS Informational and Computational Material
shall be filed by the Company with
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the Commission not later than the later of the due date for filing the
final Prospectus relating to the Certificates pursuant to Rule 424(b) under
the 1933 Act or two business days after the first use of such Free Writing
Prospectus; and
(iii) any Free Writing Prospectus required to be filed pursuant
to Section 4(d)(iii) shall, if no payment has been made or consideration
has been given by or on behalf of the Company for the Free Writing
Prospectus or its dissemination, be filed by the Company with the
Commission not later than four business days after the Company becomes
aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus.
(f) Each Underwriter shall file with the Commission the following:
(i) any Free Writing Prospectus that is used or referred to by it
and distributed by or on behalf of such Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination, not later than
the date of the first use of such Free Writing Prospectus; and
(ii) any Free Writing Prospectus for which such Underwriter or
any person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a person
unaffiliated with the Company or any other offering participant that is in
the business of publishing, radio or television broadcasting or otherwise
disseminating written communications and for which no payment was made or
consideration given by or on behalf of the Company or any other offering
participant, not later than four business days after any Underwriter
becomes aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus;
provided, however, that no Underwriter shall be required to file (1) any Free
Writing Prospectus to the extent that the information contained therein is
included in a prospectus or Free Writing Prospectus previously filed with the
Commission that relates to the offering of the Certificates, or (2) any Free
Writing Prospectus that does not contain substantive changes from or additions
to a Free Writing Prospectus previously filed with the Commission.
(g) The Company and each Underwriter agree that any Free Writing
Prospectuses prepared by it shall contain the following legend:
The depositor has filed a registration statement (including a
prospectus) with the SEC (SEC File No. 333-141638) for the
offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement and
other documents the depositor has filed with the SEC for more
complete information about the depositor, the issuing entity and
this offering. You may get these documents for free by visiting
▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the
depositor, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request
it by calling ▇-▇▇▇-▇▇▇-▇▇▇▇ or by emailing ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇.
(h) The Company and the Underwriters agree that each of them shall
retain all Free Writing Prospectuses that it has used and not filed with the
Commission for a period of three years following the initial bona fide offering
of the Certificates.
10
(i) In the event that the Company becomes aware that, as of the Time
of Sale, any information in an Issuer Free Writing Prospectus or any Issuer
Information contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein (when
read in conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading (a "Defective Issuer
Free Writing Prospectus"), the Company shall notify the Underwriters of such
untrue statement or omission within one business day after discovery and the
Company shall, if requested by the Underwriters, prepare and deliver to the
Underwriters a Free Writing Prospectus that corrects the material misstatement
or omission in the Defective Issuer Free Writing Prospectus (such corrected
Issuer Free Writing Prospectus, a "Corrected Issuer Free Writing Prospectus").
In the event that any Underwriter becomes aware that, as of the Time of Sale,
any Underwriter Free Writing Prospectus delivered to an investor in any
Certificates contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements contained
therein (when read in conjunction with the Time of Sale Information), in light
of the circumstances under which they were made, not misleading (a "Defective
Underwriter Free Writing Prospectus" and, together with a Defective Issuer Free
Writing Prospectus, a "Defective Free Writing Prospectus"), such Underwriter
shall notify the Company of such untrue statement or omission within one
business day after discovery.
The Underwriters shall, if requested by the Company:
(i) If the Defective Free Writing Prospectus was an Underwriter
Free Writing Prospectus, prepare a Free Writing Prospectus that corrects
the material misstatement in or omission from the Defective Free Writing
Prospectus (together with a Corrected Issuer Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(ii) Either (A) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing Prospectus prior to
entering into a contract of sale with such investor, clearly identifying or
highlighting the Corrective Information, or (B) deliver the Corrected Free
Writing Prospectus to each investor which received the Defective Free
Writing Prospectus, clearly identifying or highlighting the Corrective
Information, and (x) notify in writing each such investor in a prominent
fashion that the prior contract of sale with such investor has been
terminated, and of such investor's rights as a result of termination of
such agreement and (y) provide such investor with an opportunity to
affirmatively agree in writing to purchase the Certificates on the terms
described in the Corrected Free Writing Prospectus; and
(iii) Comply with any other requirements for reformation of the
original contract of sale with such investor, as described in Section
IV.A.2.c of Commission's Securities Offering Reform Release No. 33-8591.
In the event that the Defective Free Writing Prospectus was an Issuer Free
Writing Prospectus and the defective information was not provided by any party
that would be obligated to indemnify the Underwriters under the Indemnification
Agreements, and the Underwriters shall in good faith incur any costs to an
investor in connection with the reformation of the contract of sale with the
investor, the Company agrees to reimburse the Underwriters for such costs;
provided that, before incurring such costs, the Underwriters first permit the
Company access to the applicable investor and an opportunity to attempt to
mitigate such costs through direct negotiation with such investor.
11
(j) Each Underwriter covenants with the Company that after the
Prospectus is available such Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless such
information is preceded or accompanied by the Prospectus.
(k) LBHI covenants with the Company that it will not prepare or have
prepared on its behalf, or use or refer to, any Free Writing Prospectus that
would constitute an Issuer Free Writing Prospectus without the prior written
consent of the Company, and LBHI represents and warrants to the Company that it
has not previously done so. In the event the Company consents in writing to, in
advance of, such preparation, use or referral of a Free Writing Prospectus by a
Mortgage Loan Seller, such Mortgage Loan Seller will deliver such Free Writing
Prospectus to the Company for filing in accordance with the timeframes set forth
in Section 4(e).
(l) Each Underwriter hereby represents and warrants to and covenants
with the Company that:
(i) such Underwriter has only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the
meaning of section 21 of the Financial Services and Markets Act 2000 (the
"FSMA")) received by such Underwriter in connection with the issue or sale
of any Certificates in circumstances in which section 21(1) of the FSMA
does not apply to the Company; and
(ii) such Underwriter has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by such
Underwriter in relation to the Certificates in, from or otherwise involving
the United Kingdom.
(m) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), each Underwriter hereby represents and warrants to and covenants with
the Company that with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the "Relevant
Implementation Date") such Underwriter has not made and will not make an offer
of Certificates to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Certificates which has been
approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance with the
Prospectus Directive, except that such Underwriter may, with effect from and
including the Relevant Implementation Date, make an offer of Certificates to the
public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average
of at least 250 employees during the last financial year, (2) a total
balance sheet of more than (euro)43,000,000 and (3) an annual net turnover
of more than (euro)50,000,000, as shown in its last annual or consolidated
accounts; or
(iii) in any other circumstances which do not require the
publication by the Company of a prospectus pursuant to Article 3 of the
Prospectus Directive.
12
For the purposes of this provision, the expression an "offer of
Certificates to the public" in relation to any Certificates in any Relevant
Member State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Certificates so as to enable an
investor to decide to purchase or subscribe to the Certificates, as the same may
be varied in that Member State by any measure implementing the Prospectus
Directive in that Member State and the expression "Prospectus Directive" means
Directive 2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
(n) Each of the Underwriters hereby confirms that it is aware that no
German sales prospectus (Verkaufsprospekt) has been or will be published in
respect of the offering of the Certificates, and each of the Underwriters hereby
represents, warrants and agrees that it will comply with the German Securities
Sales Prospectus Act (Wertpapier-Verkaufsprospektgesetz) or any other laws
applicable in Germany governing the issue, offering and sale of the
Certificates. In particular, each of the Underwriters agrees not to engage in a
public offering (Offentliches Angebot) in Germany with respect to any of the
Certificates otherwise than in accordance with the German Securities Sales
Prospectus Act and any other act replacing or supplementing it and all other
applicable laws and regulations.
(o) No Underwriter shall take any action relating to the offer or sale
of any of the Certificates in any jurisdiction that would result in the Company
being obligated to register or file any further prospectus or corresponding
document relating to the Certificates in such jurisdiction, other than as
expressly contemplated hereby.
(p) Each Underwriter acknowledges that it has actively participated in
the marketing and distribution of the Certificates.
(q) Each Underwriter advises the Company that it currently intends to
make a market in the Certificates, although it has no obligations to do so and
may terminate such market making at any time.
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 the Prospectus, and any amendment thereof or supplement thereto, 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 the Prospectus relating to or covering the Certificates that may,
in the judgment of the Company or the Underwriters, be required by the 1933 Act
and the 1933 Act Rules or requested by the Commission and approved by the
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 1933 Act) 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 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
13
Certificates (other than any amendment by reason of Rule 429 under the 1933 Act)
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 occurrence, 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.
(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 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 LBHI as and to the extent
provided in the Mortgage Loan Purchase 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, to the extent required under Rule
433 of the 1933 Act Rules, all Free Writing Prospectuses that the Company is
required to file under Section 4(d) hereof, within the time frames set forth in
Section 4(e) hereof. Subject to compliance by each Underwriter with the
requirements of Section 4(b) hereof, the Company represents and warrants that,
to the extent required by Rule 433 under the 1933 Act, the Company has timely
filed with the Commission any Free Writing Prospectuses contemplated to be filed
by it under Section 4(d) hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the 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:
14
(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; the Prospectus Supplement shall have been
filed or transmitted for filing with the Commission in accordance with Rule 424
under the 1933 Act; and any Free Writing Prospectuses contemplated to be filed
by the Company under Section 4(d) hereof shall have been filed or transmitted
for filing with the Commission in accordance with Rule 433 under the 1933 Act,
to the extent required to be filed thereunder.
(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 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 ten (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, the Mortgage Loan Purchase Agreement 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 the
Mortgage Loan Purchase Agreement, 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 Agreement.
(e) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, special counsel for the Company, one or more favorable opinions, dated the
Closing Date, in form and substance reasonably acceptable to the Underwriters
(taking into account comparable opinions rendered by such counsel on behalf of
the Company in similar commercial mortgage securitization transactions involving
the Company and LBI).
(f) The Underwriters shall have received copies of all legal opinion
letters delivered by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇ LLP stating that the Underwriters may rely on such opinion letter as if it
were addressed to them as of date thereof.
15
(g) The Underwriters shall have received from in-house counsel for the
Company, a favorable opinion, dated the Closing Date, in form and substance
reasonably acceptable to the Underwriters (taking into account comparable
opinions rendered by such counsel on behalf of the Company in similar commercial
mortgage securitization transactions involving the Company and LBI).
(h) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, special counsel for the Company, a letter, dated the Closing Date,
containing a statement substantially to the effect that, based on discussions
with certain representatives of the Company, the Mortgage Loan Sellers, the
Underwriters, the Trustee, the Master Servicer, the Special Servicer and their
respective counsel, and (with limited exception) without having reviewed any of
the mortgage notes, mortgages or other documents relating to the Mortgage Loans,
or any documents, records, agreements, ratings or portfolio data or any other
information regarding the business or operations of the sponsors, the Trustee,
the Master Servicer or the Special Servicer (other than the Pooling and
Servicing Agreement), and without having made any independent check or
verification of the statements contained in the Prospectus or the Time of Sale
Information, nothing has come to such counsel's attention that would lead it to
believe that the Offering Prospectus, at the Time of Sale, or the Prospectus, at
the date of the Prospectus Supplement or at the Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that such
counsel need not comment on (i) any financial, statistical or numerical data set
forth or referred to therein or omitted therefrom, (ii) any information set
forth on or omitted from any diskette, CD-ROM or other electronic media that may
accompany the Prospectus, (iii) any documents or information incorporated
therein by reference, or (iv) any Excluded Information contained therein or
omitted therefrom.
(i) The Underwriters shall have received from Deloitte & Touche LLP,
certified public accountants, a letter dated the date of the Prospectus
Supplement and satisfactory in form and substance to the 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 Time of Sale Information,
as was agreed upon by the Underwriters, agrees with the data sheet or
computer tape prepared by or on behalf of the Mortgage Loan Sellers, unless
otherwise noted in such letter;
(ii) 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 computer
tape prepared by or on behalf of the Mortgage Loan Sellers, unless
otherwise noted in such letter; and
(iii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clauses (i) and (ii)
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 and the Trustee, a favorable opinion of
counsel, dated the Closing Date, addressing: the
16
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 Underwriters and their counsel; and such other
matters as the 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 each Mortgage Loan Seller
and/or any affiliate thereof in connection with the sale of Mortgage Loans by
such Mortgage Loan Seller to the Company, pursuant to the related Mortgage Loan
Purchase Agreement. The Underwriters shall be entitled to rely on each such
certificate executed and delivered by a Mortgage Loan Seller, any affiliate
thereof 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 such other
documents and opinions as the 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.
(m) 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.
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 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 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.
(a) 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, 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.
17
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the Underwriters
and each person, if any, who controls each 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 (A) 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 (B)
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the 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 or
(C) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Issuer Free Writing
Prospectus prepared by or on behalf of the Company or any Issuer
Information contained in any Underwriter Free Writing Prospectus, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein (when read in
conjunction with the other Time of Sale Information), in light of the
circumstances under which they were made, not misleading, which was not
corrected by Corrective Information subsequently supplied by the Company or
any Mortgage Loan Seller to any Underwriter within a reasonable period of
time prior to the Time of Sale;
(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
(iii) any and all expenses whatsoever, as incurred (including,
without limitation, the fees and disbursements of counsel chosen by the
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 subsection (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 the Excluded Information; 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 subsection (a) for any
such loss, liability, claim, damage, cost or expense that arises out of or is
based upon any untrue statement or omission contemplated by clause (i) above as
to which any Underwriter has agreed to indemnify the Company pursuant to Section
8(b).
18
(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 (i) untrue statements or
omissions, or alleged untrue statements or omissions made in the Underwriter
Information (insofar as the Underwriter Information relates to or was provided
by such Underwriter and was not corrected by subsequent Underwriter Information
relating to or provided by such Underwriter supplied to the Company by such
Underwriter within a reasonable period of time prior to the Time of Sale) or
(ii) untrue statements or omissions made in any Underwriter Free Writing
Prospectus prepared by or on behalf of such Underwriter or omissions or alleged
omissions to state in such Underwriter Free Writing Prospectus a material fact
necessary in order to make the statements therein (when read in conjunction with
the Time of Sale Information), in the light of the circumstances under which
they were made, not misleading; provided, however, that such Underwriter shall
not be liable under the indemnity agreement in this subsection (b) for any such
loss, liability, claim, damage, cost or expense that are caused by a
misstatement or omission resulting from an error or omission in (i) the Issuer
Information which was not corrected by Corrective Information subsequently
supplied by the Company or any Mortgage Loan Seller to any Underwriter within a
reasonable period of time prior to the Time of Sale or (ii) any Third Party
Information as to which the Company would be entitled to indemnification by the
Servicer, the Special Servicer or the Trustee pursuant to Section 2 of the
related Indemnification Agreement.
(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
subsection (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 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 subsection (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 subsection (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
19
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 subsection
(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 pursuant to this Section 8, 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.
(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
20
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 1933 Act) 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 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 Underwriters may terminate their obligations 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
21
reasonable judgment of the 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 H hereof
(based on aggregate purchase price), then the remaining Underwriter(s) shall be
obligated to take up and pay for the Certificates that the withdrawing or
defaulting Underwriter agreed but failed to purchase.
(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, 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 Underwriter(s) 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 the non-Defaulting Underwriter(s) 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 Underwriter(s) 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 to such other address as any
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 ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (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
22
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.
23
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 4(k),
and Section 5(g) and, except in the case of LBHI, Section 7.
Very truly yours,
STRUCTURED ASSET SECURITIES CORPORATION II
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Confirmed and accepted as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Confirmed and accepted as of the date first above written, solely for purposes
of Section 4(k) and 5(g):
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SCHEDULE I
Underwriting Agreement, dated as of July 19, 2007
Title and Description of the Certificates: LB Commercial Mortgage Trust
2007-C3, Commercial Mortgage
Pass-Through Certificates, Series
2007-C3, Class A-1, Class A-2, Class
A-3, Class A-AB, Class-A4, Class
A-4B, Class A-1A, Class A-M, Class
A-MB Class A-J, Class B, Class C,
Class D, Class E Class F, Class X-CP
and Class X-W Certificates
Cut-off Date: As defined in the Pooling and Servicing Agreement.
Expected Closing Date: July 26, 2007
CERTIFICATES
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-AB CLASS A-4 CLASS A-4B
---------- ------------ ----------- ----------- ------------ ------------
Initial Aggregate
Principal Amount $8,000,000 $320,000,000 $71,000,000 $21,700,000 $568,338,000 $100,000,000
Initial Pass-
Through Rate 5.71000% 5.84000% 6.12388% 6.09388% 6.131388% 5.51700%
Rating(1) AAA/Aaa AAA/Aaa AAA/Aaa AAA/Aaa AAA/Aaa AAA/Aaa
Purchase Price(2) 100.46541% 10036444% 100.49162% 100.37567% 100.4021% 96.82322%
CLASS A-1A CLASS A-M CLASS A-MB CLASS A-J CLASS B CLASS C
------------ ------------ ------------ ------------ ----------- -----------
Initial Aggregate
Principal Amount $894,617,000 $203,379,000 $100,000,000 $103,789,000 $32,338,000 $32,338,000
Initial Pass-
Through Rate 6.08888% 6.13388% 5.18900% 6.13388% 6.13388% 6.13388%
Rating(1) AAA/Aaa AAA/Aaa AAA/Aaa AAA/Aaa AA+/AA1 AA/AA2
Purchase Price(2) 100.48308% 100.12066% 94.00941% 99.61346% 99.0376% 98.68008%
CLASS D CLASS E CLASS F CLASS X
----------- ----------- ----------- --------------
Initial Aggregate
Principal Amount $28,295,000 $24,254,000 $28,296,000 $3,233,794,172(3)
Initial Pass-
Through Rate 6.13388% 6.13388% 6.13388% 6.13388%
Rating(1) AA-/Aa3 A+/A1 A/A2 AAA/Aaa
Purchase Price(2) 98.11119% 97.61676% 96.91592% 80.57436%
----------
(1) By Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. and ▇▇▇▇▇'▇ Investor Service, Inc., 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 and
including July 11, 2007 to but not including the Closing Date.
(3) Notional Amount.
SCHEDULE II
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITER (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
-------------------------- ----- ----------------------------
▇▇▇▇▇▇ Brothers Inc. A-1 $ 8,000,000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ A-2 $ 320,000,000
New York, New York 10019 A-3 $ 71,000,000
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ A-AB $ 21,700,000
A-4 $ 568,338,000
A-4B $ 100,000,000
A-1A $ 894,617,000
A-M $ 203,379,000
A-MB $ 100,000,000
A-J $ 103,789,000
B $ 32,338,000
C $ 32,338,000
D $ 28,295,000
E $ 24,254,000
F $ 28,296,000
X $3,233,794,172
Citigroup Global Markets Inc. A-1 $ 0
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ A-2 $ 0
New York, New York 10013 A-3 $ 0
A-AB $ 0
A-4 $ 0
A-4B $ 0
A-1A $ 0
A-M $ 0
A-MB $ 0
A-J $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
X $ 0
A-2-1
SCHEDULE III
The Underwriter Information in the Offering Prospectus and the
Prospectus Supplement consists of: (i) the statements set forth in the first,
second, fourth and fifth sentences of the penultimate paragraph, and the entire
last paragraph, above the bolded names of the Underwriters on the cover of each
of the Offering Prospectus and the Prospectus Supplement; and (ii) the
statements in the table (if any) and in the second sentence of the first
paragraph, the first sentence of each of the third and eighth paragraphs, and
the entire fourth, fifth and ninth paragraphs, under the caption "Method of
Distribution" in each of the Offering Prospectus and the Prospectus Supplement.
A-2-1