STRUCTURED ASSET MORTGAGE INVESTMENTS II INC. MORTGAGE PASS-THROUGH CERTIFICATES UNDERWRITING AGREEMENT
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
MORTGAGE
PASS-THROUGH CERTIFICATES
|
February
26, 2007
|
Bear,
Xxxxxxx & Co. Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Dear
Ladies and Gentlemen:
1. Introduction. Structured
Asset Mortgage Investments II Inc., a Delaware corporation (the “Depositor”),
from time to time proposes to issue and sell Mortgage Pass-Through Certificates
(“Certificates”) in various series (each a “Series”), and, within each Series,
in various classes, in one or more offerings on terms determined at the time
of
sale. The Certificates of each series will be issued pursuant to a pooling
and
servicing agreement (each, a “Pooling and Servicing Agreement”) among the
Depositor, as depositor, EMC Mortgage Corporation, as Seller and certain
instances, as company, one or more master servicers, a third-party trustee
(the
“Trustee”) and, in certain instances, a securities administrator (the
“Securities Administrator”). Upon issuance, the Certificates of each series will
evidence undivided interests in the Trust Fund (as defined in the Pooling
and
Servicing Agreement) established for such series containing mortgages or,
in the
event the Trust Fund, or a portion thereof, constitutes a real estate mortgage
investment conduit (“REMIC”), the Trust Fund may contain interests issued by a
trust which will contain mortgages, all as described in the Prospectus (as
defined below). Terms not defined herein which are defined in the Pooling
and
Servicing Agreement shall have the meanings ascribed to them in the Pooling
and
Servicing Agreement.
Whenever
the Depositor determines to make an offering of a Series of Certificates
(an
“Offering”) through you or an underwriting syndicate managed or co-managed by
you, it will offer to enter into an agreement (“Terms Agreement”) providing for
the sale of such Certificates to, and the purchase and offering thereof by,
you
and such other co-managers and underwriters, if any, which have been selected
by
you and have authorized you to enter into such Terms Agreement and other
related
documentation on their behalf (collectively, the “Underwriters,” which term
shall include you whether acting alone in the sale of Certificates or as
a
co-manager or as a member of an underwriting syndicate). The Terms Agreement
relating to each Offering shall specify the principal amount of Certificates
to
be issued and their terms not otherwise specified in the Pooling and Servicing
Agreement, the price at which the Certificates are to be purchased by each
of
the Underwriters from the Depositor and the initial public offering price
or the
method by which the price at which the Certificates are to be sold will be
determined. The Terms Agreement, which shall be substantially in the form
of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Depositor. Each Offering governed
by this Agreement, as supplemented by the applicable Terms Agreement, shall
inure to the benefit of and be binding upon the Depositor and each of the
Underwriters participating in the Offering of such Certificates.
The
Depositor hereby agrees with the Underwriters as follows:
2. Representations
and Warranties of the Depositor. The Depositor represents and
warrants to you as of the date hereof, and to each Underwriter named in the
applicable Terms Agreement as of the date of such Terms Agreement, as
follows:
(a) A
registration statement on Form S-3, including a prospectus, and such amendments
thereto as may have been required to the date hereof, relating to the
Certificates and the offering thereof from time to time in accordance with
Rule
415 under the Securities Act of 1933, as amended (the “Act”), have been filed
with the Securities and Exchange Commission (the “Commission”) and such
registration statement as amended has become effective. Such registration
statement as amended and the prospectus relating to the sale of Certificates
constituting a part thereof as from time to time amended or supplemented
(including any prospectus filed with the Commission pursuant to Rule 424
of the
rules and regulations of the Commission (the “Rules and Regulations”) under the
Act, including any documents incorporated by reference therein pursuant to
Item
12 of Form S-3 under the Act which were filed under the Securities Exchange
Act
of 1934, as amended (the “Exchange Act”) on or before the Effective Date of the
Registration Statement or the date of the Prospectus Supplement, are
respectively referred to herein as the “Registration Statement” and the
“Prospectus”; provided, however, that a supplement to the Prospectus (a
“Prospectus Supplement”) prepared pursuant to Section 5(a) hereof shall be
deemed to have supplemented the Prospectus only with respect to the Offering
of
the Series of Certificates to which it relates. The conditions of Rule 415
under
the Act have been satisfied with respect to the Depositor and the Registration
Statement. The Depositor further proposes to prepare, after the final terms
of
all classes of the Certificates have been established, either a Free
Writing Prospectus that will contain substantially all information that will
appear in the Prospectus Supplement, to the extent that such information
is
known at that time and minus specific sections including the Method of
Distribution section or an Iterative Information Package (such Free Writing
Prospectus, together with the Basic Prospectus, or any Iterative Information
Package, the “Definitive Free Writing Prospectus”). The Definitive
Free Writing Prospectus must be provided to each investor prior to the time
of
Contract of Sale (as defined herein). An “Iterative Information
Package” shall mean with respect to any class of Certificates, collectively the
following documents: (i) one or more term sheets or other Written
Communications, providing information about that class of Certificates and
the
structure and other cash flow characteristics thereof, information regarding
the
payment priority of such certificates, the basic terms of any credit
enhancements, including any subordination, as known at the time of such term
sheet, factual information about the Mortgage Loans (other than any Underwriter
Derived Information) as known at the time of such term sheet, information
regarding the parties to the transaction as known at the time of such term
sheet, and the tax, ERISA and SMMEA characteristics of that class of
Certificates as known at the time of such term sheet, (ii) a term sheet
supplement, containing relevant risk factors and additional information similar
to the information in the Prospectus Supplement to the extent known at the
time
of such term sheet supplement, and (iii) the Prospectus, which may be provided
by a link to a website. Each of the items described in (i) and (ii)
in the preceding sentence shall constitute a Free Writing
Prospectus.
(b) On
the
effective date of the Registration Statement, the Registration Statement
and the
Prospectus and any static pool information provided by the Depositor pursuant
to
Regulation AB Item 1105(a), (b) and (c), but deemed excluded from the
Registration Statement and the Prospectus pursuant to Regulation AB Item
1105(d), conformed in all material respects to the requirements of the Act
and
the Rules and Regulations, and did not include any 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 on the date
of
each Terms Agreement, the Registration Statement and the Prospectus will
conform
in all material respects to the requirements of the Act and the Rules and
Regulations, and the Prospectus and any static pool information provided
by the
Depositor pursuant to Regulation AB Item 1105(a), (b) and (c), but deemed
excluded from the Registration Statement and the Prospectus pursuant to
Regulation AB Item 1105(d), will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading; provided, however, that the foregoing
does not apply to any information contained in or omitted from the portions
of
the Prospectus set forth under the caption “Method of Distribution” relating to
the Certificates and the stabilization legend required by Item 502(d)(1)
under
Regulation S-K of the Act (the “Underwriter Information”). In addition, the
Definitive Free Writing Prospectus, as of the date thereof and as of the
Closing
Date, did not and will not contain an untrue statement of a material fact
and
did not and will not omit to state a material fact necessary in order to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading. The effective date shall mean the earlier of
the date by which the Prospectus Supplement is first used and the time of
the
first Contract of Sale to which such Prospectus Supplement relates.
(c) Since
the
respective dates as of which information is given in the Registration Statement
and the Prospectus except as otherwise stated therein, (A) there has been
no
material adverse change in the condition, financial or otherwise, earnings,
affairs, regulatory situation or business prospects of the Depositor whether
or
not arising in the ordinary course of business and (B) there have been no
transactions entered into by the Depositor which are material, other than
those
in the ordinary course of business.
(d) The
Depositor is not, as of the date upon which it delivers the Definitive Free
Writing Prospectus, an Ineligible Issuer, as such term is defined in Rule
405 of
the 1933 Act Regulations.
(e) This
Agreement has been, and the Pooling and Servicing Agreement when executed
and
delivered as contemplated hereby and thereby will have been, duly executed
and
delivered by the Depositor and each constitutes, or will constitute when
so
executed and delivered, a legal, valid and binding instrument enforceable
against the Depositor in accordance with its terms, subject, as to the
enforceability of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting the rights of creditors
generally, and to general principles of equity and the discretion of the
court
(regardless of whether enforceability of such remedies is considered in a
proceeding in equity or at law).
(f) At
the
applicable Closing Date, each applicable Terms Agreement will have been duly
authorized, executed and delivered by the Depositor and will be a legal,
valid
and binding obligation of the Depositor enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency, moratorium, fraudulent
conveyance and other laws affecting the rights of creditors generally, and
to
general principles of equity and the discretion of the court (regardless
of
whether enforceability of such remedies is considered in a proceeding in
equity
or at law).
(g) The
issuance of the Certificates has been duly authorized by the Depositor and,
when
such Certificates are executed and authenticated in accordance with the Pooling
and Servicing Agreement and delivered against payment pursuant to this
Agreement, such Certificates will be validly issued and outstanding; and
the
Certificates will be entitled to the benefits provided by the Pooling and
Servicing Agreement. The Certificates are in all material respects in the
form
contemplated by the Pooling and Servicing Agreement.
(h) Neither
the Depositor nor the Trust Fund is or, as a result of the offer and sale
of the
Certificates as contemplated in this Agreement will become, an “investment
company” as defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”), or an “affiliated person” of any such “investment
company” that is registered or is required to be registered under the Investment
Company Act (or an “affiliated person” of any such “affiliated person”), as such
terms are defined in the Investment Company Act.
(i) The
representations and warranties made by the Depositor in the Pooling and
Servicing Agreement and made in any Officer’s Certificate of the Depositor
delivered pursuant to the Pooling and Servicing Agreement will be true and
correct at the time made and on the Closing Date.
3. Purchase,
Sale and Delivery of Certificates. Delivery of and payment for
the Certificates shall be made at your office or at such other location as
you
shall make known at such time as shall be specified in the applicable Terms
Agreement, each such time being herein referred to as a “Closing Date.” Delivery
of the Certificates shall be made by the Depositor to each Underwriter against
payment of the purchase price specified in the applicable Terms Agreement
in
Federal Funds by wire or check. Unless delivery is made through the facilities
of the Depository Trust Company, the Certificates so to be delivered will
be in
definitive, fully registered form, in such denominations and registered in
such
names as you request, and will be made available for inspection and packaging
at
your office at least twenty-four hours prior to the applicable Closing
Date.
4. Offering
by Underwriters. It is understood that each Underwriter proposes
to offer the Certificates for sale to the public as set forth in the
Prospectus.
(a) It
is
understood that each Underwriter proposes to offer and/or solicit offers
for the
Certificates to be purchased by it for sale to the public as set forth in
the
Prospectus and each Underwriter agrees that all such offers, solicitations
and
sales by it shall be made in compliance with all applicable laws and
regulations. Prior to the date hereof, you have not offered, pledged,
sold, disposed of or otherwise transferred any Certificate or any security
backed by the Mortgage Loans, any interest in any Certificate or such security
or any Mortgage Loan.
(b) It
is
understood that each Underwriter will solicit offers to purchase the
Certificates as follows:
(1) Prior
to the time you have received the
Definitive Free Writing Prospectus you may, in compliance with the provisions
of
this Agreement, solicit offers to purchase Certificates; provided that, you
shall not accept any such offer to purchase a Certificate or any interest
in any
Certificate or Mortgage Loan or otherwise enter into any Contract of Sale
for
any Certificate, any interest in any Certificate or any Mortgage Loan prior
to
the investor’s receipt of the Definitive Free Writing
Prospectus.
(2) Any
Free Writing Prospectus (other than
the Definitive Free Writing Prospectus) relating to the Certificates used
by an
Underwriter in compliance with the terms of this Agreement prior to the time
such Underwriter has entered into a Contract of Sale for Certificates shall
prominently set forth substantially the following statement:
The
information in this free writing
prospectus is preliminary, and will be superseded by the Definitive Free
Writing
Prospectus. This free writing prospectus is being delivered to you
solely to provide you with information about the offering of the Certificates
referred to in this free writing prospectus and to solicit an offer to purchase
the Certificates, when, as and if issued. Any such offer to purchase
made by you will not be accepted and will not constitute a contractual
commitment by you to purchase any of the Certificates until we have accepted
your offer to purchase Certificates. We will not accept any offer by
you to purchase Certificates, and you will not have any contractual
commitment to purchase any of the Certificates until after you have received
the
Definitive Free Writing Prospectus. You may withdraw your offer to purchase
Certificates at any time prior to our acceptance of your
offer.
“Written
Communication” has the same
meaning as that term is defined in Rule 405 of the 1933 Act
Regulations.
(3) Any
Free Writing Prospectus relating to
the Certificates and used by an Underwriter in connection with marketing
the
Certificates, including the Definitive Free Writing Prospectus, shall
prominently set forth substantially the following statement:
The
Certificates referred to in these
materials are being sold when, as and if issued. You are advised that
Certificates may not be issued that have the characteristics described in
these
materials. Our obligation to sell such Certificates to you is
conditioned on the mortgage loans and certificates having the characteristics
described in these materials. If for any reason we do not
deliver such Certificates, we will notify you, and neither the issuer nor
any
underwriter will have any obligation to you to deliver all or any portion
of the
Certificates which you have committed to purchase, and none of the issuer
nor
any underwriter will be liable for any costs or damages whatsoever arising
from
or related to such non-delivery.
(c) It
is understood that you will not
enter into a Contract of Sale with any investor until the Definitive Free
Writing Prospectus has been conveyed to the investor. For purposes of
this Agreement, “Contract of Sale” shall have the same meaning as in Rule 159 of
the 1933 Act Regulations and all Commission guidance relating to Rule
159. The Definitive Free Writing Prospectus shall prominently set
forth substantially the following statement:
This
Definitive Free Writing Prospectus
supersedes the information in any free writing prospectus previously delivered
in connection with this offering, to the extent that this Definitive Free
Writing Prospectus is inconsistent with any information in any free writing
prospectus delivered in connection with this offering.
(d) It
is understood that each Underwriter
may prepare and provide to prospective investors certain Free Writing
Prospectuses (as defined below), subject to the following
conditions:
(1) Unless
preceded or accompanied by a
prospectus satisfying the requirements of Section 10(a) of the Act, an
Underwriter shall not convey or deliver any Written Communication to any
person
in connection with the initial offering of the Certificates, unless such
Written
Communication (i) is made in reliance on Rule 134 under the Act, (ii)
constitutes a prospectus satisfying the requirements of Rule 430B under the
Act,
(iii) is the Definitive Free Writing Prospectus, or (iv) both (1) constitutes
a
Free Writing Prospectus (as defined below) used in reliance on Rule 164 and
(2)
includes only information that is within the definition of ABS Informational
and
Computational Materials as defined in Item 1100 of Regulation AB, or Permitted
Additional Materials.
(2) Each
Underwriter shall comply with all
applicable laws and regulations in connection with the use of Free Writing
Prospectuses, including but not limited to Rules 164 and 433 of the 1933
Act
Regulations and all Commission guidance relating to Free Writing Prospectuses,
including but not limited to Commission Release No. 33-8591.
(3) For
purposes hereof, “Free Writing
Prospectus” shall have the meaning given such term in Rules 405 and 433 of the
1933 Act Regulations. “Issuer Information” shall mean information
included in a Free Writing Prospectus that both (i) is within the types of
information specified in clauses (1) to (5) of footnote 271 of Commission
Release No. 33-8591 (Securities Offering Reform) as shown in Exhibit C hereto
and (ii) has been either prepared by, or has been reviewed and approved by,
the
Depositor. “Underwriter Derived Information” shall refer to
information of the type described in clause (5) of such footnote 271 when
prepared by an Underwriter. “Permitted Additional
Materials”
shall mean information that is not ABS Informational and Computational Materials
and (x) that are referred to in Section 4(d)(12)), (y) that constitute
Certificate price, yield, weighted average life, subscription or allocation
information, or a trade confirmation, or (z) otherwise with respect to which
the
Depositor has provided written consent to the Underwriter to include in a
Free
Writing Prospectus. As used herein with respect to any Free Writing
Prospectus, “Pool Information” shall mean the information with respect to the
characteristics of the Mortgage Loans and administrative and servicing fees,
as
provided by or on behalf of the Depositor to the Underwriter at the time
most
recent to the date of such Free Writing Prospectus.
(4) All
Free Writing Prospectuses
provided to prospective investors, whether or not filed with the
Commission, shall bear a
legend including substantially the following statement:
“THE
DEPOSITOR HAS FILED A REGISTRATION
STATEMENT (INCLUDING A PROSPECTUS) WITH THE SEC FOR THE OFFERING TO WHICH
THIS
COMMUNICATION RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS
IN THAT
REGISTRATION STATEMENT AND OTHER DOCUMENTS THE ISSUER HAS FILED WITH THE
SEC FOR
MORE COMPLETE INFORMATION ABOUT THE ISSUER AND THE OFFERING. YOU MAY
GET THESE DOCUMENTS AT NO CHARGE BY VISITING XXXXX ON THE SEC WEB SITE AT
XXX.XXX.XXX AT
“XXXXX://XXX.XXXXXXXXXXX.XXX/XXXXXXXXXX/XXXX”,
OR AT UNDERWRITER
WEBSITE.
ALTERNATIVELY, THE ISSUER, ANY
UNDERWRITER OR ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND
YOU
THE PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING TOLL-FREE
0-000-000-0000 OR VIA E-MAIL AT
_________________________.
The
Depositor shall have the right to
require additional specific legends or notations to appear on any Free
Writing Prospectus, the right to
require changes regarding the use of terminology and the right to determine
the
types of information appearing therein with the approval of the Underwriter
(which shall not be unreasonably withheld).
(5) Each
Underwriter shall deliver to the
Depositor and its counsel (in such format as required by the Depositor) prior
to
the proposed date of first use thereof, (i) any Free Writing Prospectus prepared
by or on behalf of that Underwriter that contains any information that, if
reviewed and approved by the Depositor, would be Issuer Information, and
(ii)
any Free Writing Prospectus or portion thereof prepared by that Underwriter
that
contains only a description of the final terms of the Certificates after
such
terms have been established for all classes of Certificates being publicly
offered. No information in any Free Writing Prospectus (other than
the Definitive Free Writing Prospectus) shall consist of information of a
type
that is not included within the definition of ABS Informational and
Computational Materials, or is not Permitted Additional Materials. To
facilitate filing to the extent required by Section 5(b) or 4(f), as applicable,
all Underwriter Derived Information shall be set forth in a document separate
from the document including Issuer Information. All Free Writing
Prospectuses described in this subsection (5) must be approved by the Depositor
before the Underwriter provides the Free Writing Prospectus to investors
pursuant to the terms of this Agreement. Notwithstanding the
foregoing, the
Underwriter shall not be required to deliver any Free Writing Prospectus
to the
extent that it does not contain substantive changes from or additions to
any
Free Writing Prospectus previously approved by the
Depositor.
(6) Bear,
Xxxxxxx & Co. shall provide
the Depositor with a letter from Deloitte & Touche LLP, certified public
accountants, prior to the Closing Date, with respect to any Free Writing
Prospectus provided by that Underwriter to the Depositor under Section 4(d)(5),
satisfactory in form and substance to the Depositor and their counsel and
the
Underwriter, to the effect that such accountants have performed certain
specified procedures, all of which have been agreed to by the Depositor and
the
Underwriter, as a result of which they determined that all accounting, financial
or statistical information that is included in such Free Writing Prospectus,
is
accurate except as to such matters that are not deemed by the Depositor and
the
Underwriter to be material. The foregoing letter shall be at the
expense of the respective Underwriter.
(7) None
of the information in the Free
Writing Prospectuses may conflict with the information contained in the
Prospectus or the Registration Statement.
(8) The
Depositor shall not be obligated to
file any Free Writing Prospectuses that have been determined to contain any
material error or omission, unless the Depositor is required to file the
Free
Writing Prospectus pursuant to Section 5(b) below. In the event that
an Underwriter becomes aware that, as of the date on which an investor entered
into an agreement to purchase any Certificates, any Free Writing Prospectus
prepared by or on behalf of that Underwriter and delivered to such investor
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements contained therein, in light
of
the circumstances under which they were made, not misleading (such Free Writing
Prospectus, a “Defective Free Writing Prospectus”), such Underwriter shall
notify the Depositor thereof as soon as practical but in any event within
one
business day after discovery.
(9) If
any
Underwriter does not provide any Free Writing Prospectuses to the Depositor
pursuant to subsection (5) above, that Underwriter shall be deemed to have
represented, as of the Closing Date, that it did not provide any prospective
investors with any information in written or electronic form in connection
with
the offering of the Certificates that is required to be filed with the
Commission by the Depositor as a Free Writing Prospectus (other than the
Definitive Free Writing Prospectus) in accordance with the 1933 Act
Regulations.
(10) In
the
event of any delay in the delivery by the Underwriter to the Depositor of
any
Free Writing Prospectuses required to be delivered in accordance with subsection
(5) above, or in the delivery of the accountant’s comfort letter in respect
thereof pursuant to subsection (6) above, the Depositor shall have the right
to
delay the release of the Prospectus to investors or to the Underwriter, to
delay
the Closing Date and to take other appropriate actions in each case as necessary
in order to allow the Depositor to comply with its agreement set forth in
Section 5(b) to file the Free Writing Prospectuses by the time specified
therein.
(11) Each
Underwriter represents that it has in place, and covenants that it shall
maintain internal controls and procedures which it reasonably believes to
be
sufficient to ensure full compliance with all applicable legal requirements
of
the 1933 Act Regulations
with respect to the generation and use of Free Writing Prospectuses in
connection with the offering of the Certificates. In addition, each
Underwriter shall, for a period of at least three years after the date hereof,
maintain written and/or electronic records of any Free Writing Prospectus
used to
solicit offers to purchase Certificates to the extent not filed with the
Commission.
(12) It
is
understood and agreed that all information provided by any Underwriter to
or
through Bloomberg or Intex or similar entities for use by prospective investors,
or imbedded in any CDI file provided to prospective investors, to the extent
constituting a Free Writing Prospectus, shall be deemed for all purposes
hereof
to be a Free Writing Prospectus not containing Issuer Information. In
connection therewith, the Underwriter agrees that it shall not provide any
information constituting Issuer Information through the foregoing media unless
that information is contained either in the Definitive Free Writing Prospectus
or in a Free Writing Prospectus delivered in compliance with Section
4(d)(5).
(e) Each
Underwriter covenants with the
Depositor that after the final 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
final Prospectus. It is understood
and agreed
that the use of written information in accordance with the preceding sentence
is
not a Free Writing Prospectus and is not otherwise restricted or governed
in any
way by this Agreement.
(f) Each
Underwriter shall file any Free
Writing Prospectus that has been distributed by that Underwriter in a manner
that could lead to its broad, unrestricted dissemination not later than the
date
of first use; provided that, if that Free Writing Prospectus contains only
information of a type included within the definition of ABS Informational
and
Computational Materials then such filing shall be made within the later of
(i)
two business days after the Underwriter first provides this information to
investors and (ii) the date upon which the Depositor is required to file
the
Prospectus Supplement with the Commission pursuant to Rule 424(b)(5) of the
1933
Act Regulations; provided further, that the Depositor shall not be required
to
file any Free Writing Prospectus that does not contain substantive changes
from
or additions to a Free Writing Prospectus previously filed with the
Commission.
(g) Each
Underwriter further agrees that (i) if the Prospectus is not delivered with
the
confirmation in reliance on Rule 172, it will include in every confirmation
sent
out the notice required by Rule 173 informing the investor that the sale
was
made pursuant to the Registration Statement and that the investor may request
a
copy of the Prospectus from such Underwriter; (ii) if a paper copy of the
Prospectus is requested by a person who receives a confirmation, such
Underwriter shall deliver a paper copy of such Prospectus; (iii) if an
electronic copy of the Prospectus is delivered by an Underwriter for any
purpose, such copy shall be the same electronic file containing the Prospectus
in the identical form transmitted electronically to such Underwriter by or
on
behalf of the Depositor specifically for use by such Underwriter pursuant
to
this Section 4(h) ; for example, if the Prospectus is delivered to an
Underwriter by or on behalf of the Depositor in a single electronic file
in .pdf format, then such Underwriter will deliver the electronic
copy of the Prospectus in the same single electronic file in .pdf
format. Each
Underwriter further agrees that (i) if it delivers to an investor the Prospectus
in .pdf format, upon such Underwriter’s receipt of a request from the
investor within the period for which delivery of the Prospectus is required,
such Underwriter will promptly deliver or cause to be delivered to the investor,
without charge, a paper copy of the Prospectus and (ii) it will provide to
the
Depositor any Free Writing Prospectuses, or portions thereof, which the
Depositor is required to file with the Commission in electronic format and
will
use reasonable efforts to provide to the Depositor such Free Writing
Prospectuses, or portions thereof, in either Microsoft Word® or Microsoft Excel®
format and not in .pdf format, except to the extent that the Depositor, in
its
sole discretion, waives such requirements.
5. Covenants
of the Depositor. The Depositor covenants and agrees with you and
the several Underwriters participating in the Offering of any Series of
Certificates that:
(a) In
connection with the execution of each Terms Agreement, the Depositor will
prepare a Prospectus Supplement to be filed under the Act setting forth the
principal amount of Certificates covered thereby and their terms not otherwise
specified in the Prospectus, the price at which the Certificates are to be
purchased by the several Underwriters from the Depositor, either the initial
public offering price or the method by which the price at which the Certificates
are to be sold will be determined, the selling concession and reallowance,
if
any, any delayed delivery arrangements, and such other information as you
and
the Depositor deem appropriate in connection with the offering of the
Certificates, but the Depositor will not file any amendments to the Registration
Statement or any amendments or supplements to the Prospectus, unless it shall
first have delivered copies of such amendments or supplements to you, and
you
shall not have objected thereto promptly after receipt thereof. The Depositor
will advise you or your counsel promptly (i) when notice is received from
the
Commission that any post-effective amendment to the Registration Statement
has
become or will become effective, and (ii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer
and
sale of the Certificates, or of any proceedings or examinations that may
lead to
such an order or communication, whether by or of the Commission or any authority
administering any state securities or Blue Sky law, as soon as the Depositor
is
advised thereof, and will use its best efforts to prevent the issuance of
any
such order or communication and to obtain as soon as possible its lifting,
if
issued.
(b) The
Depositor shall file any Free
Writing Prospectus prepared by the Depositor (including the Definitive Free
Writing Prospectus), and any Issuer Information contained in any Free Writing
Prospectus provided to it by each Underwriter under Section 4(d)(5), not
later
than the date of first use of the Free Writing Prospectus, except
that:
(1) As
to any Free Writing Prospectus or
portion thereof that contains only (A) a description of the final terms of
the
Certificates after such terms have been established for all classes of
Certificates being publicly offered, may be filed by the Depositor within
two
days of the later of (i) the date such final terms have been established
for all
classes of Certificates being publicly offered and (ii) the date of first
use
and (B) a description of the terms of the Certificates that does not reflect
the
final terms after they have been established for all classes of all Certificates
is not required to be filed; and
(2) Notwithstanding
clause (1) above, as to
any Free Writing Prospectus or portion thereof required to be filed that
contains only information of a type included within the definition of ABS
Informational and Computational Materials, the Depositor shall file such
Free
Writing Prospectus or portion thereof within the later of (i) two business
days
after the Underwriter first provides this information to investors and (ii)
the
date upon which the Depositor is required to file the Prospectus Supplement
with
the Commission pursuant to Rule 424(b)(5) of the Act;
provided
further, that prior to such use
of any Free Writing Prospectuses by the Depositor, the Underwriter must comply
with its obligations pursuant to Section 4(d) and that the Depositor shall
not
be required to file any Free Writing Prospectus that does not contain
substantive changes from or additions to a Free Writing Prospectus previously
filed with the Commission.
(c) If
at any
time when a Prospectus relating to the Certificates is required to be delivered
under the Act any event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact
or
omit to state a material fact necessary to make the statements therein, in
the
light of the circumstances under which they were made, not misleading, or
if it
is necessary at any time to amend the Prospectus to comply with the Act,
the
Depositor promptly will prepare and file with the Commission an amendment
or
supplement which will correct such statement or omission or an amendment
which
will effect such compliance.
(d) If
the
Depositor or any Underwriter determines or becomes aware that any Written
Communication (including without limitation any Free Writing Prospectus)
or oral
statement contains an untrue statement of material fact or omits to state
a
material fact necessary to make the statements, in light of the circumstances
under which they were made, not misleading at the time that a Contract of
Sale
was entered into with any investor, when considered in conjunction with all
information conveyed at the time of Contract of Sale, either the Depositor
or
that Underwriter may prepare corrective information with notice to the other
party and any other Underwriters, and the Underwriter dealing with that investor
shall deliver such information in a manner reasonably acceptable to that
Underwriter and the Depositor, to any person with whom a Contract of Sale
was
entered into, and such information shall provide any such person with the
following:
(1) Adequate
disclosure of the contractual
arrangement;
(2) Adequate
disclosure of the person’s
rights under the existing Contract of Sale at the time termination is
sought;
(3) Adequate
disclosure of the new
information that is necessary to correct the misstatements or omissions in
the
information given at the time of the original Contract of Sale;
and
(4) A
meaningful ability to elect to
terminate or not terminate the prior Contract of Sale and to elect to enter
into
or not enter into a new Contract of Sale.
To
the
extent that the Underwriter incurs any costs to the investor in connection
with
any such termination or reformation of a Contract of Sale, the Depositor
shall
reimburse the Underwriter for such costs to the extent that the defective
information was of a type that the Depositor is responsible for under Section
7(a).
(e) With
respect to each Series of Certificates, the Depositor will make generally
available to the holders of the Certificates and will deliver to you, in
each
case as soon as practicable, an earnings statement covering the twelve-month
period beginning after the date of the Terms Agreement in respect of such
series
of Certificates, which will satisfy the provisions of Section 11 (a) of the
Act
with respect to the Certificates.
(f) The
Depositor will furnish to you copies of the Registration Statement (two of
which
will be signed and will include all documents and exhibits thereto or
incorporated by reference therein), each related preliminary prospectus,
the
Prospectus, and all amendments and supplements to such documents, in each
case
as soon as available and in such quantities as you request; provided, however, that you
will provide
the notice specified in Section 4(h) in every confirmation and will only
deliver
the prospectus to those investors that request a paper copy
thereof.
(g) The
Depositor will arrange for the qualification of the Certificates for sale
and
the determination of their eligibility for investment under the laws of such
jurisdictions as you reasonably designate and will continue such qualifications
in effect so long as reasonably required for the distribution; provided,
however, that the Depositor shall not be required to qualify to do business
in
any jurisdiction where it is not qualified on the date of the related Terms
Agreement or to take any action which would subject it to general or unlimited
service of process in any jurisdiction in which it is not, on the date of
the
related Terms Agreement, subject to such service of process.
(h) The
Depositor will pay all expenses incidental to the performance of its obligations
under this Agreement and any Terms Agreement and will reimburse each Underwriter
for any expenses (including fees and disbursements of counsel and accountants)
incurred by them in connection with qualification of the Certificates and
determination of their eligibility for investment under the laws of such
jurisdictions as you designate and the printing of memoranda relating thereto,
for any fees charged by the nationally recognized statistical rating agencies
for the rating of the Certificates, for the filing fee of the National
Association of Securities Dealers, Inc. relating to the Certificates, if
applicable, and for expenses incurred in distributing the prospectus to the
Underwriters.
(i) During
the period when a prospectus is required by law to be delivered in connection
with the sale of the Certificates pursuant to this Agreement, the Depositor
will
file or cause to be filed, on a timely and complete basis, all documents
that
are required to be filed by the Depositor with the Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(j) So
long
as the Certificates of a Series shall be outstanding, the Depositor will
deliver
to you the annual statement of compliance delivered to the Trustee pursuant
to
the Pooling and Servicing Agreement and the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to the Pooling
and Servicing Agreement as soon as such statements are furnished to the
Trustee.
(k) The
Depositor acknowledges and agrees that the Underwriters are acting solely
in the
capacity of an arm’s length contractual counterparty to the Depositor with
respect to the offering of securities contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial
advisor or fiduciary to, or agent of, the Depositor or any other
person. Additionally, neither Underwriter is advising the Depositor
or any other person as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. The Depositor shall consult with its own
advisors concerning such matters and shall be responsible for making its
own
independent investigation and appraisal of the transactions contemplated
hereby,
and the Underwriters shall have no responsibility or liability to the Depositor
with respect thereto.
6. Conditions
to the Obligations of the Underwriter. The several obligations of
each Underwriter named in any Terms Agreement to purchase and pay for the
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Depositor as of the date hereof, the date of
the
applicable Terms Agreement and the applicable Closing Date, to the accuracy
of
the statements made in any officers’ certificates (each an “Officer’s
Certificate”) pursuant to the provisions hereof, to the performance by the
Depositor of its obligations hereunder and to the following additional
conditions precedent:
(a) At
the
time the applicable Terms Agreement is executed, Deloitte & Touche and/or
any other firm of certified independent public accountants acceptable to
you
shall have furnished to you a letter, addressed to you, and in form and
substance satisfactory to you in all respects, stating in effect that using
the
assumptions and methodology used by the Depositor, all of which shall be
described in such letter or the Prospectus Supplement, they have recalculated
such numbers, percentages and weighted average lives set forth in the Prospectus
Supplement as you may reasonably request, compared the results of their
calculations to the corresponding items in the Prospectus Supplement, and
found
each such number, percentage, and weighted average life set forth in the
Prospectus Supplement to be in agreement with the results of such calculations.
To the extent historical financial delinquency or related information is
included with respect to one or more master servicers, such letter or letters
shall also relate to such information.
(b) At
the
Closing Date, Deloitte & Touche and/or any other firm of certified
independent public accountants acceptable to you shall have furnished to
you a
letter, addressed to you, and in form and substance satisfactory to you in
all
respects, relating to the extent such information is not covered in the letter
or letters provided pursuant to clause (a)(i), to a portion of the information
set forth on the Mortgage Loan Schedule attached to the Pooling and Servicing
Agreement and the characteristics of the mortgage loans, as presented in
the
Prospectus Supplement or the Form 8-K relating thereto, or if a letter relating
to the same information is provided to the Trustee, indicating that you are
entitled to rely upon its letter to the Trustee.
(c) Subsequent
to the respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any change, or any
development involving a prospective change, in or affecting the business
or
properties of the Depositor or any of its affiliates the effect of which,
in any
case, is, in your judgment, so material and adverse as to make it impracticable
or inadvisable to proceed with the Offering or the delivery of the Certificates
as contemplated by the Registration Statement and the Prospectus. All actions
required to be taken and all filings required to be made by the Depositor
under
the Act and the Exchange Act prior to the sale of the Certificates shall
have
been duly taken or made; and prior to the applicable Closing Date, no stop
order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted, or
to the
knowledge of the Depositor or you, shall be contemplated by the Commission
or by
any authority administering any state securities or Blue Sky law.
(d) Unless
otherwise specified in any applicable Terms Agreement for a Series, the
Certificates shall be rated in one of the four highest grades by one or more
nationally recognized statistical rating agencies specified in said Terms
Agreement.
(e) You
shall
have received the opinion of counsel for the Depositor, dated the applicable
Closing Date, substantially to the effect set forth in Exhibit B attached
hereto.
(f) Each
opinion also shall relate to such other matters as may be specified in the
related Terms Agreement or as to which you reasonably may request. In rendering
any such opinion, counsel for the Depositor may rely on certificates of
responsible officers of the Depositor, the Trustee, and public officials
or, as
to matters of law other than New York or Federal law, on opinions of other
counsel (copies of which opinions shall be delivered to you), provided that,
in
cases of opinions of other counsel, counsel for the Depositor shall include
in
its opinion a statement of its belief that both it and you are justified
in
relying on such opinions.
(g) You
shall
have received from counsel for the Depositor a letter, dated as of the Closing
Date, stating that you may rely on the opinions delivered by such firm under
the
Pooling and Servicing Agreement and to the rating agency or agencies rating
the
Certificates as if such opinions were addressed directly to you (copies of
which
opinions shall be delivered to you).
(h) You
shall
have received from counsel for the Underwriters, if such counsel is different
from counsel to the Depositor, such opinion or opinions, dated as of the
Closing
Date, with respect to the validity of the Certificates, the Registration
Statement, the Prospectus and other related matters as the Underwriters may
require, and the Depositor shall have furnished to such counsel such documents
as they may have requested from it for the purpose of enabling them to pass
upon
such matters.
(i) You
shall
have received Officer’s Certificates signed by such of the principal executive,
financial and accounting officers of the Depositor as you may request, dated
as
of the Closing Date, in which such officers, to the best of their knowledge
after reasonable investigation, shall state that the representations and
warranties of the Depositor in this Agreement are true and correct; that
the
Depositor has complied with all agreements and satisfied all conditions on
its
part to be performed or satisfied at or prior to the Closing Date; that no
stop
order suspending the effectiveness of the Registration Statement has been
issued
and no proceedings for that purpose have been instituted or are contemplated;
that, subsequent to the respective dates as of which information is given
in the
Prospectus, and except as set forth or contemplated in the Prospectus, there
has
not been any material adverse change in the general affairs, business, key
personnel, capitalization, financial condition or results of operations of
the
Depositor; that except as otherwise stated in the Prospectus, there are no
material actions, suits or proceedings pending before any court or governmental
agency, authority or body or, to their knowledge, threatened, affecting the
Depositor or the transactions contemplated by this Agreement; and that attached
thereto are true and correct copies of a letter or letters from the one or
more
nationally recognized statistical rating agencies specified in the applicable
Terms Agreement confirming that, unless otherwise specified in said Terms
Agreement, the Certificates have been rated in one of the four highest grades
by
each of such agencies and that such rating has not been lowered since the
date
of such letter.
The
Depositor will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled
in all
material respects with respect to a particular Offering when and as provided
in
this Agreement and the related Terms Agreement, or if any of the opinions
and
certificates mentioned above or elsewhere in this Agreement and the related
Terms Agreement shall not be in all material respects reasonably satisfactory
in
form and substance to you, this Agreement (with respect to the related Offering)
and the related Terms Agreement and all obligations of the Underwriters
hereunder (with respect to the related Offering) and thereunder may be canceled
at, or at any time prior to, the related Closing Date by the Underwriters.
Notice of such cancellation shall be given to the Depositor in writing, or
by
telephone or telegraph confirmed in writing.
7. Indemnification.
(a) The
Depositor agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section
15 of
the Act or Section 20(a) of the Exchange Act against any and all losses,
claims,
damages, liabilities and expenses whatsoever (including but not limited to
attorneys’ fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or
any
claim whatsoever, and any and all amounts paid in settlement of any claim
or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act, or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or
are
based upon any untrue statement or alleged untrue statement of a material
fact
contained in the Registration Statement relating to the applicable Series
of
Certificates (the “Applicable Registration Statement”) as it became effective or
in any amendment or supplement thereof, or in the Applicable Registration
Statement or the related Prospectus, or in any amendment thereof, or in any
static pool information provided by the Depositor pursuant to Regulation
AB Item
1105(a), (b) and (c), but deemed excluded from the Registration Statement
and
the Prospectus pursuant to Regulation AB Item 1105(d), or arise out of or
are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not
misleading (ii) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Definitive Free Writing
Prospectus, or any Issuer Information contained in any other Free Writing
Prospectus, or any omission or alleged omission to state therein a material
fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or (iii) are caused by any untrue
statement of a material fact or alleged untrue statement of a material fact
contained in any Free Writing Prospectus that was caused by any error in
any
Pool Information; provided, however, that the Depositor will not be liable
in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission based upon any information with
respect to which any Underwriter has agreed to indemnify the Depositor pursuant
to Section 7(b).
(b) Each
Underwriter severally, and not jointly, agrees to indemnify and hold harmless
the Depositor, each of the directors of the Depositor, each of the officers
of
the Depositor who shall have signed the Applicable Registration Statement,
and
each other person, if any, who controls the Depositor within the meaning
of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any losses,
claims, damages, liabilities and expenses whatsoever (including but not limited
to attorneys’ fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them
may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon (i) the Underwriter Information, (ii) any
Underwriter Derived Information prepared or used by that Underwriter, (iii)
any
Free Writing Prospectus prepared or used by that Underwriter for which the
conditions set forth in Section 4(d)(5) above are not satisfied with respect
to
the prior approval by the Depositor, (iv) any portion of any Free Writing
Prospectus (other than the Definitive Free Writing Prospectus) prepared or
used
by that Underwriter not constituting Issuer Information, (v) and any liability
directly resulting from that Underwriter’s failure to provide any investor with
the Definitive Free Writing Prospectus prior to entering into a Contract
of Sale
with such investor or failure to file any Free Writing Prospectus required
to be
filed by that Underwriter in accordance with Section 4(f); provided, however,
that the indemnification set forth in this 7(b) shall not apply to the extent
of
any error in any Free Writing Prospectus that was caused by any error in
any
Pool Information. This indemnity will be in addition to any liability
which each Underwriter may otherwise have. The Depositor acknowledges that,
unless otherwise set forth in the applicable Terms Agreement, the Underwriters’
Information included in the Prospectus Supplement relating to a Series of
Certificates constitute the only information furnished in writing by or on
behalf of any Underwriter expressly for use in the Applicable Registration
Statement or the Prospectus or in any amendment thereof or supplement thereto,
as the case may be furnished to the Depositor by such Underwriter), and each
Underwriter confirms, on its behalf, that such statements are
correct.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party will, if
a
claim in respect thereof is to be made against the indemnifying party under
such
subsection, notify each party against whom indemnification is to be sought
in
writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this Section 7 except to the extent that it has been prejudiced in
any
material respect by such failure or from any liability which it may have
otherwise). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume
the
defense thereof, with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have
the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
or
parties unless (i) the employment of such counsel shall have been authorized
in
writing by one of the indemnifying parties in connection with the defense
of
such action, (ii) the indemnifying parties shall not have employed counsel
to
have charge of the defense of such action within a reasonable time after
notice
of commencement of the action, or (iii) such indemnified party or parties
shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of
the
indemnifying parties (in which case the indemnifying parties shall not have
the
right to direct the defense of such action on behalf of the indemnified party
or
parties), in any of which events such fees and expenses shall be borne by
the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement
of
any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
(d) In
order
to provide for contribution in circumstances in which the indemnification
provided for in Section 7 hereof is for any reason held to be unavailable,
on
grounds of public policy or otherwise, from the Depositor or the applicable
Underwriter or is insufficient to hold harmless a party indemnified thereunder,
the Depositor and the applicable Underwriter shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated
by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of,
any
action, suit or proceeding or any claims asserted, but after deducting in
the
case of losses, claims, damages, liabilities and expenses suffered by the
Depositor any contribution received by the Depositor from persons, other
than
the applicable Underwriter, who may also be liable for contribution, including
persons who control the Depositor within the meaning of Section 15 of the
Act or
Section 20(a) of the Exchange Act, officers of the Depositor who signed the
Applicable Registration Statement and directors of the Depositor) to which
the
Depositor and the applicable Underwriter may be subject (i) in the case of
any
losses, claims, damages and liabilities (or actions in respect thereof) which
do
not arise out of or are not based upon any untrue statement or omission of
a
material fact in any portion of any Free Writing Prospectus (other than the
Definitive Free Writing Prospectus) not constituting Issuer Information (or
any
amendments or supplements thereof), in such proportions as is appropriate
to
reflect the relative benefits received by the Depositor on one hand and the
applicable Underwriter on the other from the Offering of the Certificates
as to
which such loss, liability, claim, damage or expense is claimed to arise
or, if
such allocation is not permitted by applicable law or indemnification is
not
available as a result of the indemnifying party not having received notice
as
provided in Section 7(c) hereof, in such proportion as is appropriate to
reflect
not only the relative benefits referred to above but also the relative fault
of
the Depositor on one hand and the applicable Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations or (ii) in the case of any losses, claims, damages
and
liabilities (or actions in respect thereof) which arise out of or are based
upon
any untrue statement or omission of a material fact in any portion of any
Free
Writing Prospectus (other than the Definitive Free Writing Prospectus) not
constituting Issuer Information (or any amendments or supplements thereof)
in
such proportion as is appropriate to reflect the relative fault of the Depositor
on the one hand and the Underwriter that furnished such portion of any Free
Writing Prospectus (other than the Definitive Free Writing Prospectus) not
constituting Issuer Information on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities
(or
actions in respect thereof) as well as any other relevant equitable
considerations; provided, however, that in no case shall such Underwriter
be
responsible under this subparagraph (ii) for any amount in excess of the
aggregate Purchase Price for the Offered Certificates.
The
relative benefits received by the Depositor on one hand and the applicable
Underwriter on the other shall be deemed to be in the same proportion as
(x) the
total proceeds from the Offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Depositor and (y) the
underwriting discounts and commissions received by the applicable Underwriter,
respectively, in each case as set forth in the Terms Agreement in respect
of the
Offering of the Certificates as to which such loss, liability, claim, damage
or
expense is claimed to arise. The relative fault of the Depositor on one hand
and
the applicable Underwriter on the other shall be determined by reference
to,
among other things, (A) in the case of clause (i) of the preceding paragraph,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Depositor on one hand or the applicable Underwriter on the
other, (B) in the case of clause (ii) of the preceding paragraph, whether
the
untrue or alleged untrue statement of a material fact or the omission or
alleged
omission to state a material fact relates to any untrue statement or omission
of
a material fact in any portion of any Free Writing Prospectus (other than
the
Definitive Free Writing Prospectus) not constituting Issuer Information (or
any
amendments or supplements thereof), and (C) in the case of either clause
(i) or
clause (ii) of the preceding paragraph, the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. The Depositor and the applicable Underwriter agree that it would
not
be just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7(d), (x) except as otherwise
provided in Section 7(d)(ii), in no case shall the applicable Underwriter
be
liable or responsible for any amount in excess of the underwriting discount
set
forth in the Terms Agreement relating to the Certificates as to which such
losses, claims, damages, liabilities or expenses are claimed to arise, and
(y)
no person guilty of fraudulent misrepresentation (within the meaning of Section
11 (f) of the Act) shall be entitled to contribution from any person who
was not
guilty of such fraudulent misrepresentation. For purposes of this Section
7(d),
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act shall have the same rights
to
contribution as such Underwriter, and each person, if any, who controls the
Depositor within the meaning of Section 15 of the Act or Section 20(a) of
the
Exchange Act, each officer of the Depositor who shall have signed the Applicable
Registration Statement and each director of the Depositor shall have the
same
rights to contribution as the Depositor, subject in each case to clauses
(i) and
(ii) of this Section 7(d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this Section 7(d), notify such party
or
parties from whom contribution may be sought, but the omission to so notify
such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section
7(d) or
otherwise. No party shall be liable for contribution with respect to any
action
or claim settled without its consent; provided, however, that such consent
was
not unreasonably withheld.
8. Underwriter’s
Use of Free Writing Prospectus. Each Underwriter acknowledges and agrees
that, as to any Free Writing Prospectus prepared by any Underwriter, each
non-preparing Underwriter shall not participate in the planning for the use
of
such Free Writing Prospectus in any manner. Each Underwriter
acknowledges and agrees that for all purposes of Rule 159A of the 1933 Act
Regulations, solely as between it and the other Underwriters, each respective
Underwriter shall be responsible only for: (i) the Definitive Free Writing
Prospectus and any other Free Writing Prospectus prepared by the Depositor,
as
used in connection with the offering by such Underwriter to any investor,
(ii)
any Free Writing Prospectus prepared by such Underwriter, as used in connection
with the offering by such Underwriter to any investor and (iii) any Free
Writing
Prospectus prepared by any other Underwriter, but only to the extent actually
used in connection with the offering by such non-preparing Underwriter to
any
investor.
9. Default
of an Underwriter. If any Underwriter or Underwriters participating in an
Offering of Certificates default in their obligations to purchase Certificates
hereunder and under the Terms Agreement and the aggregate purchase price
of
Certificates which such defaulting Underwriter or Underwriters agreed but
failed
to purchase does not exceed 10% of the aggregate purchase price of the
Certificates then being purchased, you may make arrangements satisfactory
to the
Depositor for the purchase of such Certificates by other persons, including
any
of the Underwriters, but if no such arrangements are made by the Closing
Date
the non-defaulting Underwriters shall be obligated severally, in proportion
to
their respective total commitments as set forth in the applicable Terms
Agreement (for all classes of Certificates), to purchase the Certificates
which
such defaulting Underwriter or Underwriters agreed but failed to purchase.
If
any Underwriter or Underwriters so default and the aggregate purchase price
of
Certificates with respect to which such default or defaults occur is more
than
10% of the aggregate purchase price of Certificates then being purchased,
and
arrangements satisfactory to you and the Depositor for the purchase of such
Certificates by other persons are not made within 36 hours after such default,
the Terms Agreement as to which such offering relates will terminate without
liability on the part of any non-defaulting Underwriter or the Depositor,
except
as provided in Section 11. As used in this Agreement, the term “Underwriter”
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its
default.
10. Survival
of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties, and other statements
of
the Depositor or its officers and of the several Underwriters set forth in
or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the result thereof, made by or on
behalf of any Underwriter or the Depositor or any of its officers or directors
or any controlling person, and will survive delivery of and payment for the
Certificates and any termination of this Agreement or any Terms Agreement,
including any termination pursuant to Section 10.
11. Termination. You
shall have the right to terminate any Terms Agreement at any time prior to
the
applicable Closing Date if any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, securities markets; or if trading on the New York
or
American Stock Exchanges shall have been suspended, or minimum or maximum
prices
for trading shall have been fixed, or maximum ranges for prices for securities
shall have been required on the New York or American Stock Exchanges by the
New
York or American Stock Exchanges or by order of the Commission or any other
governmental authority having jurisdiction; or if the United States shall
have
become involved in a war or major hostilities; or if a banking moratorium
has
been declared by a state or Federal authority, or if a banking moratorium
in
foreign exchange trading by major international banks or persons has been
declared; or if any new restriction materially and adversely affecting the
distribution of the series of Certificates as to which such Terms Agreement
relates shall have become effective; or if there shall have been such change
in
the market for securities in general or in political, financial or economic
conditions as in your judgment would be so materially adverse as to make
it
inadvisable to proceed with the Offering, sale and delivery of the Series
of
Certificates as to which such Terms Agreement relates on the terms contemplated
in such Terms Agreement. Any notice of termination pursuant to this Section
12
shall be by telephone, telex, or telegraph, confirmed in writing by
letter.
12. Notices. All
communications hereunder will be in writing, and, if sent to the Underwriters,
will be mailed, delivered or telegraphed and confirmed to you at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel or if sent to
the
Depositor, will be mailed, delivered or telegraphed and confirmed to it at
000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxxxx;
provided, however, that any notice to an Underwriter pursuant to Section
7 will
be mailed, delivered or telegraphed to such Underwriter at the address furnished
by it.
13. Successors. This
Agreement and the Terms Agreement will inure to the benefit of and be binding
upon the parties hereto and thereto, and their respective successors and
the
officers and directors and controlling persons referred to in Section 7,
and no
other person will have any right or obligation hereunder or
thereunder.
14. Representation
of Underwriters. You will act for the several Underwriters in
connection with each Offering of Certificates governed by this Agreement,
and
any action under this Agreement and any Terms Agreement taken by you will
be
binding upon all the Underwriters identified in such Terms
Agreement.
15. Construction. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York, without giving effect to principles of conflict
of laws.
If
the
foregoing is in accordance with your understanding of our agreement, kindly
sign
and return to us the enclosed duplicate hereof, whereupon it will become
a
binding agreement among the Depositor and the several Underwriters in accordance
with its terms.
|
Very
truly yours,
|
|||||||||||||
|
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
|
|||||||||||||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | ||||||||||||
|
Name:
|
Xxxxxx X. Xxxxxxxxx | ||||||||||||
|
Title:
|
Vice President | ||||||||||||
|
The
foregoing Underwriting Agreement hereby is confirmed and accepted
as of
the date first above written.
|
|||||||||||||
|
BEAR,
XXXXXXX & CO. INC.
|
|||||||||||||
|
By:
|
/s/ Xxxxx Xxxxxxxxxxx | ||||||||||||
|
Name:
|
Xxxxx Xxxxxxxxxxx | ||||||||||||
|
Title:
|
Vice President | ||||||||||||
SCHEDULE
I (for multiple underwriters)
|
Underwriters
|
|||||
|
Name
|
Class
|
Class
|
Class
|
Class
|
Class
|
|
Bear,
Xxxxxxx & Co. Inc.
|
$
|
$
|
$
|
$
|
$
|
|
[Other
Underwriters]
|
|||||
|
Total
|
|||||
EXHIBIT
A
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
Bear
Xxxxxxx ARM Trust 2007-5
Mortgage
Pass-Through Certificates, Series 2007-5
TERMS
AGREEMENT
Dated:
as
of August 30, 2007
To: STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
Re: Underwriting
Agreement dated February 26, 2007
Underwriter: Bear,
Xxxxxxx & Co. Inc.
Series
Designation: Series 2007-5.
Class
Designation Schedule of the Certificates: Class I-A-1, Class I-A-2, Class
II-A-1, Class II-A-2, Class III-A-1, Class III-A-2, Class III-X-1, Class R-I,
Class R-II, Class R-III, Class B-1, Class B-2 and Class B-3
Certificates.
Terms
of
the Certificates:
|
Class
|
Original
Principal Amount
|
Interest
Rate
|
|
I-A-1
|
$62,690,000
|
Variable
Rate
|
|
I-A-2
|
$5,298,000
|
Variable
Rate
|
|
II-A-1
|
$100,606,000
|
Variable
Rate
|
|
II-A-2
|
$8,502,000
|
Variable
Rate
|
|
III-A-1
|
$185,188,000
|
Variable
Rate
|
|
III-A-2
|
$24,510,000
|
Variable
Rate
|
|
III-X-1
|
$0
*
|
0.271%
|
|
B-1
|
$6,027,000
|
Variable
Rate
|
|
B-2
|
$3,416,000
|
Variable
Rate
|
|
B-3
|
$1,407,000
|
Variable
Rate
|
|
R-I
|
$50
|
N/A
|
|
R-II
|
$50
|
N/A
|
|
R-III
|
$50
|
N/A
|
*Notional
Amount
The
Certificates purchased by the Underwriter will be offered from time to time
by
the Underwriter in negotiated transactions at varying prices to be determined
at
the time of sale.
Defined
Terms: Terms not otherwise defined herein shall have the meanings given to
such terms in the Pooling and Servicing Agreement, dated as of August 1, 2007,
among Structured Asset Mortgage Investments II Inc., as depositor, EMC Mortgage
Corporation, as seller and master servicer, and Xxxxx Fargo Bank, N.A. as
trustee.
Form
of Certificates Being Purchased by the Underwriter: Book-Entry except for
the Class R-I, Class R-II and Class R-III Certificates which will be in
certificated, fully registered form.
Distribution
Dates: The 25th day
of each month
or, if such 25th day is
not a
business day, the next succeeding business day beginning on September 25,
2007.
Certificate
Rating for the Certificates Being Purchased by the
Underwriters:
|
Class
|
S&P
|
Fitch
|
||
|
Class
I-A-1
|
AAA
|
AAA
|
||
|
Class
I-A-2
|
AAA
|
AAA
|
||
|
Class
II-A-1
|
AAA
|
AAA
|
||
|
Class
II-A-2
|
AAA
|
AAA
|
||
|
Class
III-A-1
|
AAA
|
AAA
|
||
|
Class
III-A-2
|
AAA
|
AAA
|
||
|
Class
III-X-1
|
AAA
|
AAA
|
||
|
Class
R-I
|
AAA
|
AAA
|
||
|
Class
R-II
|
AAA
|
AAA
|
||
|
Class
R-III
|
AAA
|
AAA
|
||
|
Class
B-1
|
BB
|
NR
|
||
|
Class
X-0
|
X
|
XX
|
||
|
Xxxxx
X-0
|
XX
|
XX
|
Xxxxxxxx
Assets: The Mortgage Loans to be included in the Trust Fund are as described
in Annex A hereto.
Purchase
Price: The aggregate purchase price payable by the Underwriter for the Group
I Certificates covered by this Agreement will be $______*______ (plus
$ ______*______ in accrued interest). The aggregate purchase
price payable by the Underwriter for the Group II Certificates covered by this
Agreement will be $______*______ (plus $ ______*______ in accrued
interest). The aggregate purchase price payable by the Underwriter
for the Group III Certificates covered by this Agreement will be $______*______
(plus $ ______*______ in accrued interest).
Credit
Enhancement: Subordination.
Closing
Date: August 31, 2007.
_____________________
The
undersigned, as the Underwriter, agrees, subject to the terms and provisions
of
the above-referenced Underwriting Agreement, which is incorporated herein in
its
entirety and made a part hereof, to purchase the respective principal amounts
of
the Classes of the above-referenced Series of Certificates as set forth
herein.
|
BEAR,
XXXXXXX & CO. INC.
|
|
|
By:
/s/ Xxxxx Xxxxxxxxxxx
|
|
|
Name:
Xxxxx Xxxxxxxxxxx
|
|
|
Title:
Vice President
|
|
|
Accepted:
|
|
|
STRUCTURED
ASSET MORTGAGE
INVESTMENTS
II INC.
|
|
|
By:
/s/ Xxxxxx X. Xxxxxxxxx,
Xx.
|
|
|
Name:
Xxxxxx X. Xxxxxxxxx, Xx.
|
|
|
Title:
Vice President
|
Annex
A
Mortgage
Loan Schedule
[Available
Upon Request]
