Exhibit 1.1
STRUCTURED ASSET MORTGAGE INVESTMENTS II INC.
MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
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 seller, one or more
master servicers which may include the Depositor and a third-party trustee (the
"Trustee"). 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 or 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 (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 the
Underwriters named in the applicable Terms Agreement as of the date of such
Terms Agreement, as follows:
(a) A registration statement, 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 ("Act"), have been filed with
the Securities and Exchange Commission ("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 ("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.
(b) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus 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 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 (i) statements or omissions in
such documents based upon written information furnished to the Depositor by any
Underwriter specifically for use therein or (ii) any Current Report (as defined
in Section 5(b) below) or in any amendment thereof or supplement thereto,
incorporated by reference in such Registration Statement or such Prospectus (or
any amendment thereof or supplement thereto).
(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.
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(d) This Agreement has been, and the Pooling and Servicing
Agreement, when executed and delivered as contemplated thereby 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).
(e) 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).
(f) 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.
(g) 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.
(h) 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
the Underwriters 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.
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4. OFFERING BY UNDERWRITERS. It is understood that the
Underwriters propose to offer the Certificates for sale to the public as set
forth in the Prospectus.
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 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 will cause any Computational Materials and
any Structural Term Sheets (each as defined in Section 8 below) with respect to
each Series of Certificates that are delivered by the Underwriters to the
Depositor pursuant to Section 8 to be filed with the Commission on a Current
Report on Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on the business
day immediately following the day on which such Computational Materials and
Structural Term Sheets are delivered to counsel for the Depositor by any of the
Underwriters prior to 10:30 a.m. (and will use its best efforts to cause such
Computational Materials and Structural Term Sheets to be so filed prior to 2:00
p.m., New York time, on such business day), and will promptly advise you when
such Current Report has been so filed. The Depositor will cause one Collateral
Term Sheet (as defined in Section 9 below) with respect to an Offering of a
Series that is delivered by any of the Underwriters to the Depositor in
accordance with the provisions of Section 9 to be filed with the Commission on a
Current Report pursuant to Rule 13a-11 under the Exchange Act on the business
day immediately following the day on which such Collateral Term Sheet is
delivered to counsel for the Depositor by any of the Underwriters prior to 10:30
a.m. In addition, if at any time prior to the availability of the related
Prospectus Supplement, any of the Underwriters has delivered to any prospective
investor a subsequent Collateral Term Sheet that reflects, in the reasonable
judgment of such Underwriter and the Depositor, a material change in the
characteristics of the Mortgage Loans for the related Series from those on which
a Collateral Term Sheet with respect to the related Series previously filed with
the Commission was based, the Depositor will cause any such Collateral Term
Sheet that is delivered by such Underwriter to the Depositor in accordance with
the provisions of Section 9 to be filed with
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the Commission on a Current Report on the business day immediately following the
day on which such Collateral Term Sheet is delivered to counsel for the
Depositor by such Underwriter prior to 2:00 p.m. In each case, the Depositor
will promptly advise you when such Current Report has been so filed.
Notwithstanding the four preceding sentences, the Depositor shall have no
obligation to file any materials provided by any of the Underwriters pursuant to
Sections 8 and 9 which (i) in the reasonable determination of the Depositor are
not required to be filed pursuant to the Xxxxxx Letters or the PSA Letter (each
as defined in Section 8 below), or (ii) contain erroneous information or contain
any untrue statement of a material fact or, when read in conjunction with the
Prospectus and Prospectus Supplement, omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading; it
being understood, however, that the Depositor shall have no obligation to review
or pass upon the accuracy or adequacy of, or to correct, any Computational
Materials or ABS Term Sheets (as defined in Section 9 below) provided by such
Underwriter to the Depositor pursuant to Section 8 or Section 9 hereof. The
Depositor shall give notice to you and such Underwriter of its determination not
to file any materials pursuant to clause (i) of the preceding sentence and
agrees to file such materials if such Underwriter or you reasonably object to
such determination within one business day after receipt of such notice.
(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; provided,
however, that the Depositor will not be required to file any such amendment or
supplement with respect to any Computational Materials, Structural Term Sheets
or Collateral Term Sheets incorporated by reference in the Prospectus other than
any amendments or supplements of such Computational Materials or Structural Term
Sheets that are furnished to the Depositor by the Underwriter pursuant to
Section 8(e) hereof or any amendments or supplements of such Collateral Term
Sheets that are famished to the Depositor by the Underwriter pursuant to Section
9(d) hereof which are required to be filed in accordance therewith.
(d) 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.
(e) 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.
(f) 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
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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.
(g) The Depositor will pay all expenses incidental to the
performance of its obligations under this Agreement and any Terms Agreement and
will reimburse the Underwriters 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
preliminary prospectuses to the Underwriters.
(h) 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.
(i) 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.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters 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) (i) 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 famished 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 as you may reasonably request,
compared the results of their calculations to the corresponding items in the
Prospectus, and found each such number, percentage, and weighted average life
set forth in the Prospectus to be in agreement with the results of such
calculations. To the extent historical financial delinquency or
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related information is included with respect to one or more master servicers,
such letter or letters shall also relate to such information.
(a) (ii) 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.
(b) 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.
(c) 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.
(d) 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.
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.
(e) 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 )
..
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(f) 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.
(g) 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 Underwriter. 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
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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) 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 arise out of or are based upon the omission or alleged omission (in the case
of any Computational Materials or ABS Term Sheets in respect of which the
Depositor agrees to indemnify the Underwriters, as set forth below, when such
are read in conjunction with the related Prospectus and Prospectus Supplement)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that (i) 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 made
therein (A) in reliance upon and in conformity with written information
furnished to the Depositor as herein stated by or on behalf of the Underwriters
specifically for use in connection with the preparation thereof or (B) in any
Current Report or any amendment or supplement thereof, except to the extent that
any untrue statement or alleged untrue statement therein or omission therefrom
results (or is alleged to have resulted) directly from an error (a "Mortgage
Pool Error") in the information concerning the characteristics of the Mortgage
Loans furnished by the Depositor to the Underwriters in writing or by electronic
transmission that was used in the preparation of either (x) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) included in
such Current Report (or amendment or supplement thereof) or (y) any written or
electronic materials famished to prospective investors on which the
Computational Materials (or amendments or supplements) were based, (ii) such
indemnity with respect to any Corrected Statement (as defined below) in such
Prospectus (or Prospectus Supplement thereto) shall not inure to the benefit of
the Underwriters (or any person controlling any Underwriter) from whom the
person asserting any loss, claim, damage or liability purchased the Certificates
of the related Series that are the subject thereof if such person did not
receive a copy of a Prospectus Supplement to such Prospectus at or prior to the
confirmation of the sale of such Certificates and the untrue statement or
omission of a material fact contained in such Prospectus (or Prospectus
Supplement thereto) was corrected (a "Corrected Statement") in such other
supplement and such supplement was furnished by the Depositor to the
Underwriters prior to the delivery of such confirmation, and (iii) such
indemnity with respect to any Mortgage Pool Error shall not inure to the benefit
of the Underwriters (or any person controlling any Underwriter) from whom the
person asserting any loss, claim, damage or liability received any Computational
Materials (or any written or electronic materials on which the Computational
Materials are based) or ABS Term Sheets that were prepared on the basis of such
Mortgage Pool Error, if, prior to the time of confirmation of the sale of the
applicable Series of Certificates to such person, the Depositor notified the
Underwriters in writing of the Mortgage Pool Error or provided in written or
electronic form information superseding or correcting such Mortgage Pool Error
(in any such case, a "Corrected Mortgage Pool Error"), and the Underwriters
failed to notify such person thereof or to deliver to such person corrected
Computational Materials (or underlying written or electronic materials) or ABS
Term Sheets. This indemnity agreement will be in addition to any liability which
the Depositor may otherwise have.
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(b) The Underwriters severally, and not jointly, agree 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 (A) any untrue
statement or alleged untrue statement of a material fact contained in the
Applicable Registration Statement, as originally filed or any amendment thereof,
or any related preliminary prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, 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, in each case to the
extent, but only to the extent, that any such loss, claim, damage, liability or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Depositor, by or on
behalf of such Underwriter expressly for use therein; or (B) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) famished to
the Depositor by such Underwriter pursuant to Section 8 and incorporated by
reference in such Registration Statement or the related Prospectus, Prospectus
Supplement or any amendment or supplement thereof (except that no such indemnity
shall be available for any losses, claims, damages or liabilities, or actions in
respect thereof resulting from any Mortgage Pool Error, other than a Corrected
Mortgage Pool Error). This indemnity will be in addition to any liability which
the Underwriters may otherwise have. The Depositor acknowledges that, unless
otherwise set forth in the applicable Terms Agreement, the statements set forth
in the last paragraph of the cover page and under the caption "Method of
Distribution" and the stabilization legend required by Item 502(d)(1) under
Regulation S-K of the Act 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 (other than any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) 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.
-10-
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 Underwriters or is insufficient to hold harmless a party
indemnified thereunder, the Depositor and the Underwriters 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 Underwriters, 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 Underwriters 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 Computational Materials or ABS Term Sheets (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
Underwriters 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 Underwriters 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 Computational Materials or ABS Term Sheets
(or any amendments or supplements thereof) or in any written or electronic
materials distributed to prospective investors on which the Computational
Materials are based, in such proportion as is appropriate to reflect the
relative fault of the Depositor on the one hand and the Underwriter that
furnished such Computational Materials or ABS Term Sheets on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in
-11-
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 Underwriters 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 Underwriters,
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 Underwriters 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 Underwriters 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 Computational Materials or ABS Term Sheets (or any amendments or supplements
thereof) or in any written or electronic materials distributed by the applicable
Underwriter to prospective investors on which the Computational Materials are
based, 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 Underwriters 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
Underwriters 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.
-12-
8. COMPUTATIONAL MATERIALS AND STRUCTURAL TERM SHEETS. (a) Not
later than 2:00 p.m., New York time, on the business day before the date on
which the Current Report relating to the Certificates of a Series is required to
be filed by the Depositor with the Commission pursuant to Section 5(b) hereof,
you and any other applicable Underwriter shall deliver to the Depositor, and
unless otherwise agreed to by the Depositor, in a form reasonably convertible to
an XXXXX filing format, a copy of all materials provided by the Underwriters to
prospective investors in such Certificates which constitute (i) "Computational
Materials, within the meaning of the no-action letter dated May 20, 1994 issued
by the Division of Corporation Finance of the Commission to Xxxxxx, Peabody
Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters") and the filing of such
material is a condition of the relief granted in such letter (such materials
being the "Computational Materials"), and (ii) "Structural Term Sheets" within
the meaning of the no-action letter dated February 17, 1995 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter") and the filing of such material is a condition of
the relief granted in such letter (such materials being the "Structural Term
Sheets"). Each delivery of Computational Materials and Structural Term Sheets to
the Depositor by you and any other applicable Underwriter pursuant to this
paragraph (a) shall be effected by delivering a copy of such materials to
counsel for the Depositor on behalf of the Depositor at the address specified by
the Depositor and one copy of such materials to the Depositor.
(b) You and each other Underwriter, by virtue of its having
executed and delivered the related Terms Agreement, which shall incorporate this
Section 8(b) by reference, represents and warrants to and agrees with the
Depositor, as of the date of the related Terms Agreement and as of the Closing
Date, that:
(i) the Computational Materials furnished to the
Depositor pursuant to Section 8(a) constitute (either in original,
aggregated or consolidated form) all of the materials furnished to
prospective investors by such Underwriter prior to the time of delivery
thereof to the Depositor that are required to be filed with the
Commission with respect to the Offering of the Certificates in
accordance with the Xxxxxx Letters, and such Computational Materials
comply with the requirements of the Xxxxxx Letters;
(ii) the Structural Term Sheets furnished to the
Depositor pursuant to Section 8(a) constitute all of the materials
furnished to prospective investors by such Underwriter prior to the
time of delivery thereof to the Depositor that are required to be filed
with the Commission as "Structural Term Sheets" with respect to the
related Offering of the Certificates in accordance with the PSA Letter,
and such Structural Term Sheets comply with the requirements of the PSA
Letter;
(iii) on the date any such Computational Materials or
Structural Term Sheets with respect to the Offering of the Certificates
(or any written or electronic materials furnished to prospective
investors on which the Computational Materials are based) were last
furnished to each prospective investor and on the date of delivery
thereof to the Depositor pursuant to Section 8(a) and on the related
Closing Date, such Computational Materials (or such other materials) or
Structural Term Sheets did not and will not include any untrue
-13-
statement of a material fact or, when read in conjunction with the
related Prospectus and Prospectus Supplement, omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and
(iv) all Computational Materials (or underlying
materials distributed to prospective investors on which the
Computational Materials were based) or Structural Term Sheets famished
to prospective investors contained and will contain a legend,
prominently displayed on the first page thereof, to the effect that the
Depositor has not prepared, reviewed or participated in the preparation
of such materials and is not responsible for the accuracy thereof.
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Computational Materials or
Structural Term Sheets (or any written or electronic materials on which the
Computational Materials are based) included or will include any untrue statement
resulting directly from any Mortgage Pool Error (except any Corrected Mortgage
Pool Error, with respect to materials prepared after the receipt by the
Underwriters from the Depositor of notice of such Corrected Mortgage Pool Error
or materials superseding or correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter delivering Computational Materials shall
cause a firm of public accountants to furnish to the Depositor a letter, dated
as of the date on which such Underwriter delivers any Computational Materials
(which term shall be deemed to include, for purposes of this paragraph (c),
calculated statistical information delivered to prospective investors in the
form of a Structural Term Sheet) to the Depositor pursuant to Section 8(a), in
form and substance satisfactory to the Depositor, stating in effect that they
have verified the mathematical accuracy of any calculations performed by such
Underwriter and set forth in such Computational Materials.
(d) The Underwriters acknowledge and agree that the Depositor
has not authorized and will not authorize the distribution of any Computational
Materials (or any written or electronic materials on which the Computational
Materials are based) or Structural Tern Sheets to any particular prospective
investor, and agrees that any Computational Materials or Structural Term Sheets
with respect to any Series of Certificates furnished to prospective investors
shall include a disclaimer in the form described in paragraph (b) (iv) above.
The Underwriters agree that they will not represent to prospective investors
that any Computational Materials or Structural Term Sheets were prepared or
disseminated on behalf of the Depositor.
(e) If, at any time when a prospectus relating to the
Certificates of a Series is required to be delivered under the Act, it shall be
necessary to amend or supplement the related Prospectus or Prospectus Supplement
as a result of an untrue statement of a material fact contained in any
Computational Materials or Structural Term Sheets provided by an Underwriter
pursuant to this Section 8 or the omission to state therein a material fact
required, when considered in conjunction with the related Prospectus and
Prospectus Supplement, to be stated therein or necessary to make the statements
therein, when read in conjunction with the related Prospectus and Prospectus
Supplement, not misleading, or if it shall be necessary to amend or supplement
any Current Report relating to any Computational Materials or Structural Term
Sheets to comply with the Act or the
-14-
rules thereunder, such Underwriter promptly will prepare and furnish to the
Depositor for filing with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Such Underwriter will deliver an Officer's Certificate to the
Depositor representing and warranting to the Depositor that, as of the date of
delivery of such amendment or supplement to the Depositor, such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the related Prospectus and Prospectus Supplement, omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that such Underwriter will
make no representation or warranty as to whether any such amendment or
supplement will include any untrue statement resulting directly from any
Mortgage Pool Error (except any Corrected Mortgage Pool Error, with respect to
any such amendment or supplement prepared after the receipt by such Underwriter
from the Depositor of notice of such Corrected Mortgage Pool Error or materials
superseding or correcting such Corrected Mortgage Pool Error). The Depositor
shall have no obligation to file such amendment or supplement if (i) the
Depositor determines that such amendment or supplement contains any untrue
statement of a material fact or, when read in conjunction with the related
Prospectus and Prospectus Supplement, omits to state a material fact required to
be stated therein or necessary to make the statements therein not misleading; it
being understood, however, that the Depositor shall have no obligation to review
or pass upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by such Underwriter to the Depositor pursuant to this
paragraph (e) or (ii) the Depositor reasonably determines that such filing is
not required under the Act and such Underwriter does not object as provided
below. The Depositor shall give notice to such Underwriter of its determination
not to file an amendment or supplement pursuant to clause (ii) of the preceding
sentence and agrees to file such amendment or supplement if such Underwriter
reasonably objects to such determination within one business day after receipt
of such notice.
9. COLLATERAL TERM SHEETS. (a) Prior to the delivery of any
"Collateral Term Sheet" within the meaning of the PSA Letter, the filing of
which material is a condition of the relief granted in such letter (such
material being the "Collateral Term Sheets"), to a prospective investor in the
Certificates, the applicable Underwriter shall notify the Depositor and its
counsel by telephone of its intention to deliver such materials and the
approximate date on which the first such delivery of such materials is expected
to occur. Not later than 10:30 a.m., New York time, on the business day
immediately following the date on which any Collateral Term Sheet was first
delivered to a prospective investor in the Certificates of an offered series,
such applicable Underwriter shall deliver to the Depositor, and unless otherwise
agreed to by the Depositor, in a form reasonably convertible to an XXXXX format,
a complete copy of all materials provided by such Underwriter to prospective
investors in such certificates which constitute "Collateral Term Sheets." Each
delivery of a Collateral Term Sheet to the Depositor pursuant to this paragraph
(a) shall be effected by delivering a copy of such materials to counsel for the
Depositor on behalf of the Depositor at the address specified by the Depositor
and one copy of such materials to the Depositor. (Collateral Term Sheets and
Structural Term Sheets are, together, referred to herein as "ABS Term Sheets.")
At the time of each such delivery, such Underwriter shall indicate in writing
that the materials being delivered constitute Collateral Term Sheets, and, if
there has been any prior such delivery with respect to the related Series, shall
indicate whether such materials differ in any material respect from any
Collateral Term Sheets previously delivered to the Depositor with respect to
such Series pursuant to this Section 9(a) as a result of the occurrence of a
material change in the characteristics of the related Mortgage Loans.
-15-
(b) You and each other Underwriter, by virtue of its having
executed and delivered the related Terms Agreement, which shall incorporate this
Section 9(b) by reference, represents and warrants to and agrees with the
Depositor as of the date of the related Terms Agreement and as of the Closing
Date, that:
(i) The Collateral Term Sheets furnished to the
Depositor pursuant to Section 9(a) constitute all of the materials
famished to prospective investors by such Underwriter prior to time of
delivery thereof to the Depositor that are required to be filed with
the Commission as "Collateral Term Sheets" with respect to the related
Offering of the Certificates in accordance with the PSA Letter, and
such Collateral Term Sheets comply with the requirements of the PSA
Letter;
(ii) On the date any such Collateral Term Sheets with
respect to the Offering of the Certificates were last furnished to each
prospective investor and on the date of delivery thereof to the
Depositor pursuant to Section 9(a) and on the related Closing Date,
such Collateral Term Sheets did not and will not include any untrue
statement of a material fact or, when read in conjunction with the
Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and
(iii) such Underwriter has not represented to any
prospective investor that any Collateral Term Sheets with respect to
any Series were prepared or disseminated on behalf of the Depositor,
and, except as otherwise disclosed by such Underwriter to the Depositor
in writing prior to the date hereof, all Collateral Term Sheets
previously furnished to prospective investors included a disclaimer to
the effect set forth in Section 8(b)(iv).
Notwithstanding the foregoing, you and each such Underwriter make no
representation or warranty as to whether any Collateral Term Sheet included or
will include any untrue statement or material omission resulting directly from
any Mortgage Pool Error (except any Corrected Mortgage Pool Error, with respect
to materials prepared after the receipt by such Underwriter from the Depositor
of notice of such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter delivering Collateral Term Sheets
acknowledges and agrees that any Collateral Term Sheets with respect to any
Series of Certificates famished to prospective investors from and after the date
hereof shall include a disclaimer to the effect set forth in Section 8(d)
hereof, and to the effect that the information contained in such materials
supersedes the information contained in any prior Collateral Term Sheet with
respect to such Series of Certificates being offered and will be superseded by
the description of the related Mortgage Loans in the related Prospectus
Supplement. The Underwriters agree that they will not represent to any
prospective investors that any Collateral Term Sheets were prepared or
disseminated on behalf of the Depositor.
(d) If, at any time when a prospectus relating to the
Certificates of a Series is required to be delivered under the Act, it shall be
necessary to amend or supplement the related Prospectus as a result of an untrue
statement of a material fact contained in any Collateral Term
-16-
Sheets provided by an Underwriter pursuant to this Section 9 or the omission to
state therein a material fact required, when considered in conjunction with the
related Prospectus and Prospectus Supplement, to be stated therein or necessary
to make the statements therein, when read in conjunction with the related
Prospectus and Prospectus Supplement, not misleading, or if it shall be
necessary to amend or supplement any Current Report relating to any Collateral
Term Sheets to comply with the Act or the rules thereunder, such Underwriter
promptly will prepare and furnish to the Depositor for filing with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Such Underwriter
will deliver an Officer's Certificate to the Depositor representing and
warranting to the Depositor that, as of the date of delivery of such amendment
or supplement to the Depositor, such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the
related Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, such Underwriter will make no representation or
warranty as to whether any such amendment or supplement will include any untrue
statement resulting directly from any Mortgage Pool Error (except any Corrected
Mortgage Pool Error, with respect to any such amendment or supplement prepared
after the receipt by such Underwriter from the Depositor of notice of such
Corrected Mortgage Pool Error or materials superseding or correcting such
Corrected Mortgage Pool Error). The Depositor shall have no obligation to file
such amendment or supplement if the Depositor determines that (i) such amendment
or supplement contains any untrue statement of a material fact or, when read in
conjunction with the related Prospectus and Prospectus Supplement, omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however, that the
Depositor shall have no obligation to review or pass upon the accuracy or
adequacy of, or to correct, any such amendment or supplement provided by such
Underwriter to the Depositor pursuant to this paragraph (d) or (ii) such filing
is not required under the Act. The Depositor shall give notice to such
Underwriter of its determination not to file an amendment or supplement pursuant
to clause (ii) of the preceding sentence.
10. DEFAULT OF UNDERWRITERS. It 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.
-17-
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
-18-
16. 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.
-19-
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:
--------------------------------
Name:
Title:
The foregoing Underwriting Agreement hereby
is confirmed and accepted as of the date first
above written.
BEAR, XXXXXXX & CO. INC.
By:--------------------------------------
Name:
Title:
SCHEDULE I (for multiple underwriters)
--------------------------------------
Underwriters
Name Class Class Class Class Class
---- ----- ----- ----- ----- -----
Bear, Xxxxxxx & Co. Inc. $ $ $ $ $
[Other Underwriters]
----- ----- ----- ----- -----
Total
===== ===== ===== ===== =====
EXHIBIT B
Closing Opinion of Counsel to the Depositor
ANNEX A
Mortgage Loan Schedule
[Available Upon Request]
