Exhibit 1.1
STRUCTURED ASSET SECURITIES CORPORATION
UNDERWRITING AGREEMENT
As of May 26, 1999
Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Structured Asset Securities Corporation, a Delaware corporation (the
"Company"), proposes to cause the issuance of, and sell to the underwriters
named in Schedule I hereto (the "Underwriters"; provided, however, that if you
are the only underwriter named in Schedule I, then the terms "Underwriter" and
"Underwriters" shall refer solely to you), for whom you act as representative
(in such capacity, the "Representative"), the mortgage pass-through certificates
that are identified on Schedule II attached hereto (the "Certificates"). The
Certificates will evidence beneficial ownership interests in a trust fund (the
"Trust Fund") to be formed by the Company and consisting primarily of a
segregated pool (the "Mortgage Pool") of multifamily and commercial mortgage
loans (the "Mortgage Loans"). Certain of the Mortgage Loans will be acquired by
Company from Xxxxxx Brothers Holdings Inc., doing business as Xxxxxx Capital, a
division of Xxxxxx Brothers Holdings Inc. ("Holdings"), pursuant to a mortgage
loan purchase agreement, dated as of the date hereof (the "Holdings Mortgage
Loan Purchase Agreement"), between Company and Holdings. The other Mortgage
Loans will be acquired by Company from LUBS Inc. ("LUBS" and, together with
Holdings, the "Mortgage Loan Sellers"), pursuant to a mortgage loan purchase
agreement dated as of the date hereof (the "LUBS Mortgage Loan Purchase
Agreement"; and, together with the Holdings Mortgage Loan Purchase Agreement,
the "Mortgage Loan Purchase Agreements"), between the Company and LUBS. The
Certificates will be issued under a Pooling and Servicing Agreement to be dated
as of June 1, 1999 (the "Pooling and Servicing Agreement"), among the Company as
depositor, Norwest Bank Minnesota, National Association as trustee (the
"Trustee"), First Union National Bank as master servicer (the "Master Servicer")
and GMAC Commercial Mortgage Corporation as special servicer (the "Special
Servicer"). The Certificates and the Mortgage Loans are described more fully in
the Prospectus (as defined below), which the Company has furnished to the
Underwriters. Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Prospectus.
The Certificates are part of a series of mortgage pass-through
certificates that evidence beneficial ownership interests in the Trust Fund and
are being issued pursuant to the Pooling and Servicing Agreement. The other
certificates of such series (the "Private Certificates") will be privately
placed through the Underwriters with a limited number of institutional investors
as described in the Private Placement Memorandum dated the date hereof that
relates to the
Privately Offered Certificates (together with all exhibits and annexes thereto,
the "Memorandum").
1. Representations and Warranties. The Company represents, warrants and
agrees that:
(a) A registration statement on Form S-3 (No. 333-49129) with respect to
the Certificates has been prepared by the Company and filed with the Securities
and Exchange Commission (the "Commission"), and complies as to form in all
material respects with the requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and the rules and regulations of the Commission
thereunder, including Rule 415, and has become effective under the 1933 Act. As
used in this Underwriting Agreement (this "Agreement" or the "Underwriting
Agreement"), (i) "Registration Statement" means that registration statement and
all exhibits thereto, as amended or supplemented to the date of this Agreement;
(ii) "Basic Prospectus" means the prospectus included in the Registration
Statement at the time it became effective, or as subsequently filed with the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iii)
"Prospectus" means the Basic Prospectus, together with the prospectus supplement
specifically relating to the Certificates (the "Prospectus Supplement"), as most
recently filed with, or mailed for filing to, the Commission pursuant to
paragraph (b) of Rule 424 of the 1933 Act; and (iv) "Preliminary Prospectus"
means any preliminary form of the Prospectus that has heretofore been filed
pursuant to paragraph (b) of Rule 424 of the 1933 Act. The aggregate principal
amount of the Certificates does not exceed the remaining amount of
mortgage-backed securities that may be registered under the Registration
Statement as of the date hereof.
(b) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and on the date of this Agreement,
complied, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will comply, as to form in all material respects with the
requirements of the 1933 Act and the rules and regulations of the Commission
thereunder; and the Registration Statement and the Prospectus do not, and (in
the case of any amendment or supplement to any such document filed with the
Commission after the date as of which this representation is being made) will
not, contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company makes no
representation or warranty as to (i) information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
specifically for inclusion therein or (ii) any information in any Computational
Materials and ABS Term Sheets (each as defined in Section 4) incorporated into
the Registration Statement by the filing thereof pursuant to Section 5(j).
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease or operate its properties and to
conduct its business as now conducted by it and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement; and
the Company is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is
required, whether by reason
of the ownership or leasing of property or the conduct of business.
(d) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of the
date on which, prior to the Closing Date, any amendment to the Registration
Statement becomes effective, as of the date on which any supplement to the
Prospectus Supplement is filed with the Commission, and as of the Closing Date,
there has not and will not have been (i) any request by the Commission for any
further amendment to the Registration Statement or the Prospectus or for any
additional information, (ii) any issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threat of any proceeding for that purpose or (iii) any notification with respect
to the suspension of the qualification of the Certificates for sale in any
jurisdiction or any initiation or threat of any proceeding for such purpose.
(e) This Agreement has been duly authorized, executed and delivered by the
Company, and the Pooling and Servicing Agreement, when executed and delivered as
contemplated hereby and thereby, will have been duly authorized, executed and
delivered by the Company; and this Agreement constitutes, and the Pooling and
Servicing Agreement, when so executed and delivered will constitute, legal,
valid and binding agreements of the Company, enforceable against the Company in
accordance with their respective terms, except as enforceability may be limited
by (i) bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of the rights of creditors generally,
(ii) general principles of equity, whether enforcement is sought in a proceeding
in equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of the provisions of such agreement or the Pooling and Servicing
Agreement that purport to provide indemnification from securities law
liabilities.
(f) As of the Closing Date, the Certificates and the Pooling and Servicing
Agreement will conform in all material respects to the respective descriptions
thereof contained in the Prospectus. As of the Closing Date, the Certificates
will be duly and validly authorized and, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement to the Underwriters against payment therefor as provided herein, will
be duly and validly issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement.
(g) At the Closing Date, each of the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(h) The Company is not in violation of its certificate of incorporation or
by-laws or in default under any agreement, indenture or instrument the effect of
which violation or default would be material to the Company or which violation
or default would have a material adverse affect on the performance of its
obligations under this Agreement or the Pooling and Servicing Agreement. Neither
the issuance and sale of the Certificates, nor the execution and delivery by the
Company of this Agreement or the Pooling and Servicing Agreement, nor the
consummation by the Company of any of the transactions herein or therein
contemplated, nor compliance by the
Company with the provisions hereof or thereof, does or will conflict with or
result in a breach of any term or provision of the certificate of incorporation
or by-laws of the Company or conflict with, result in a breach, violation or
acceleration of, or constitute a default under, the terms of any indenture or
other agreement or instrument to which the Company is a party or by which it or
any of its material assets is bound, or any statute, order or regulation
applicable to the Company of any state or Federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the Company.
(i) There is no action, suit or proceeding against the Company pending,
or, to the knowledge of the Company, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement or the Certificates, (ii) seeking
to prevent the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement or the Pooling and Servicing
Agreement, (iii) that might materially and adversely affect the performance by
the Company of its obligations under, or the validity or enforceability of, this
Agreement, the Pooling and Servicing Agreement or the Certificates or (iv)
seeking to affect adversely the federal income tax attributes of the
Certificates as described in the Prospectus.
(j) There are no contracts, indentures or other documents of a character
required by the 1933 Act or by the rules and regulations thereunder to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(k) No authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the offering, issuance or
sale of the Certificates pursuant to this Agreement and the Pooling and
Servicing Agreement, except such as have been, or as of the Closing Date will
have been, obtained or such as may otherwise be required under applicable state
securities laws in connection with the purchase and offer and sale of the
Certificates by the Underwriters, and except any recordation of the respective
assignments of the Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing Agreement that have not been completed.
(l) The Company possesses all material licenses, certificates, authorities
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it, and the
Company has not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company.
(m) Any taxes, fees and other governmental charges payable by the Company
in connection with the execution and delivery of this Agreement and the Pooling
and Servicing Agreement or the issuance and sale of the Certificates (other than
such federal, state and local taxes as may be payable on the income or gain
recognized therefrom) have been or will be paid at or prior to the Closing Date.
(n) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company will have good title to, and will be the sole owner of,
each Mortgage Loan, free and clear of any pledge, mortgage, lien, security
interest or other encumbrance.
(o) Neither the Company nor the Trust Fund is, and neither the issuance
and sale of the Certificates in the manner contemplated by the Prospectus nor
the activities of the Trust Fund pursuant to the Pooling and Servicing Agreement
will cause the Company or the Trust Fund to be, an "investment company" or under
the control of an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(p) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of the
interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriters
will constitute reasonably equivalent value and fair consideration for the
Certificates. The Company will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund and the sale of the Certificates to the
Underwriters. The Company is not selling the Certificates to the Underwriters or
transferring the Mortgage Loans to the Trustee on behalf of the Trust Fund with
any intent to hinder, delay or defraud any of the creditors of the Company.
(q) At the Closing Date, the respective classes of Certificates shall have
been assigned ratings no lower than those set forth in Schedule II hereto by the
nationally recognized statistical rating organizations identified in Schedule II
hereto (the "Rating Agencies").
(r) At the Closing Date, each of the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(s) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Company are pending or contemplated.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the principal or notional amount of each
class of the Certificates set forth opposite each such Underwriter's name in
Schedule I hereto.
The purchase price for each class of the Certificates as a
percentage of the aggregate principal or notional amount thereof as of the
Closing Date is set forth in Schedule II hereto. There will be added to the
purchase price of the Certificates to be purchased hereunder an amount equal to
interest accrued thereon pursuant to the terms thereof from June 1, 1999 to but
excluding the Closing Date.
3. Payment and Delivery. The closing for the purchase and sale of the
Certificates hereunder shall occur at the offices of Sidley & Austin, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. New York City time, on June 10,
1999 or at such other location, time and date as shall be mutually agreed upon
by the Company and the Representative (such time and date of closing, the
"Closing Date"). Delivery of the Certificates shall be made through the Same Day
Funds Settlement System of the Depository Trust Company ("DTC"). Payment shall
be made to the Company in immediately available Federal funds wired to such bank
as may be designated by the Company (or by such other method of payment as may
be mutually acceptable to the parties hereto), against delivery of the
Certificates. The Certificates will be made available for examination by the
Representative not later than 3:00 p.m. New York City time on the last business
day prior to the Closing Date.
References herein, including, without limitation, in the Schedules hereto,
to actions taken or to be taken following the Closing Date with respect to any
Certificates that are to be delivered through the facilities of DTC shall
include, if the context so permits, actions taken or to be taken with respect to
the interests in such Certificates as reflected on the books and records of DTC.
4. Offering by the Underwriters.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale to the public, including, without limitation, in and from
the State of New York, as set forth in the Prospectus Supplement. It is further
understood that the Company, in reliance upon Policy Statement 105 has not and
will not file the offering pursuant to Section 352-e of the General Business Law
of the State of New York with respect to the Certificates which are not
"mortgage related securities" as defined in the 1934 Act (as defined below);
accordingly, each Underwriter covenants and agrees with the Company that sales
of such Certificates made by such Underwriter in the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
(b) The Underwriters may prepare and provide (and acknowledge that they
have prepared and provided) to prospective investors certain Computational
Materials or ABS Term Sheets in connection with the offering of the
Certificates. In this regard, each Underwriter represents and warrants to, and
covenants with, the Company that:
(i) Such Underwriter has complied and shall comply with the
requirements of the no-action letter, dated May 20, 1994, issued by the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody &
Co. Incorporated and Xxxxxx Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in response
to the request of the Public Securities Association, dated May 25, 1994
(collectively, the "Xxxxxx/PSA Letter"), and the requirements of the
no-action letter, dated February 17, 1995, issued by the Commission to the
Public Securities Association (the "PSA Letter" and, together with the
Xxxxxx/PSA Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials" shall have the
meaning
given such term in the No-Action Letters and "ABS Term Sheets,"
"Structural Term Sheets" and "Collateral Term Sheets" shall have the
meanings given such terms in the PSA Letter.
(iii) All such Computational Materials and ABS Term Sheets in
respect of the Certificates provided to prospective investors by such
Underwriter have borne or shall bear, as the case may be, a legend in a
form previously approved by the Company or its counsel.
(iv) Such Underwriter has not distributed and shall not distribute
any such Computational Materials or ABS Term Sheets in respect of the
Certificates, the forms and methodology of which are not in accordance
with this Agreement. Such Underwriter has provided or shall provide, as
the case may be, to the Company, for filing pursuant to a Current Report
on Form 8-K as provided in Section 5(j), copies (in such format as
required by the Company) of all such Computational Materials and ABS Term
Sheets. Such Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required to be
filed. All Computational Materials and ABS Term Sheets described in this
paragraph (b)(iv) must be or must have been, as applicable, provided to
the Company (A) in paper or electronic format suitable for filing with the
Commission and (B) not later than 10:00 a.m. (New York City time) on a
business day that is not less than one business day before filing thereof
is or was, as the case may be, required pursuant to the terms of the
No-Action Letters.
(v) All information included in any such Computational Materials and
ABS Term Sheets in respect of the Certificates provided to prospective
investors by such Underwriter has been or shall be generated based on
substantially the same methodology and assumptions as are used to generate
the information in the Prospectus Supplement as set forth therein;
provided that such Computational Materials and ABS Term Sheets may include
information based on alternative methodologies or assumptions if specified
therein. If any Computational Materials or ABS Term Sheets in respect of
the Certificates provided to prospective investors by such Underwriter
were based on assumptions with respect to the Mortgage Pool that differ
from the Prospectus Supplement in any material respect or on Certificate
structuring assumptions (except in the case of Computational Materials
when the different structuring terms were hypothesized and so described)
that were revised in any material respect prior to the printing of the
Prospectus, then to the extent that it has not already done so, such
Underwriter shall immediately inform the Company and, upon the direction
of the Company, and if not corrected by the Prospectus, shall prepare
revised Computational Materials and ABS Term Sheets, as the case may be,
based on information regarding the Mortgage Pool and Certificate
structuring assumptions consistent with the Prospectus, circulate such
revised Computational Materials and ABS Term Sheets to all recipients of
the preliminary versions thereof, and include such revised Computational
Materials and ABS Term Sheets (marked, "as revised") in the materials
delivered to the Company pursuant to paragraph (b)(iv) above.
(vi) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that the Company will file
Computational Materials or ABS Term Sheets that contain a material error
or, when read together with the Prospectus, a material omission, if
clearly marked (A) "superseded by materials dated [specify date]" and
accompanied by corrected Computational Materials or ABS Term Sheets that
are marked "material previously dated [specify date], as corrected", or
(B) if the material error or omission is to be corrected in the
Prospectus, "superseded by materials contained in the Prospectus." If,
within the period during which the Prospectus relating to the Certificates
is required to be delivered under the 1933 Act and the rules and
regulations of the Commission thereunder, any Computational Materials or
ABS Term Sheets in respect of the Certificates provided to prospective
investors by such Underwriter are determined, in the reasonable judgment
of the Company or such Underwriter, to contain a material error or, when
read together with the Prospectus, a material omission, then (unless the
material error or omission was corrected in the Prospectus) such
Underwriter shall prepare a corrected version of such Computational
Materials or ABS Term Sheets, shall circulate such corrected Computational
Materials or ABS Term Sheets to all recipients of the prior versions
thereof, and shall deliver copies of such corrected Computational
Materials or ABS Term Sheets (marked, "as corrected") to the Company for
filing with the Commission in a subsequent Current Report on Form 8-K
submission (subject to the Company's obtaining an accountant's comfort
letter in respect of such corrected Computational Materials and ABS Term
Sheets, which shall be at the expense of such Underwriter).
(vii) Such Underwriter shall be deemed to have represented, as of
the Closing Date, that except for Computational Materials and/or ABS Term
Sheets provided to the Company pursuant to or as contemplated by paragraph
(b)(iv) above, such Underwriter 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 in accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by either
Underwriter to the Company of all Computational Materials and ABS Term
Sheets in respect of the Certificates required to be delivered in
accordance with or as contemplated by paragraph (b)(iv) above, the Company
shall have the right to delay the release of the Prospectus to investors
or to the Underwriters, to delay the Closing Date and to take other
appropriate actions in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 5(j) to file the
Computational Materials and ABS Term Sheets by the time specified therein.
(ix) Computational Materials and ABS Term Sheets may be distributed
by such Underwriter through electronic means in accordance with SEC
Release No. 33-7233 (the "Release").
(c) Each Underwriter further agrees that it shall promptly provide the
Company with such information as to matters of fact as the Company may
reasonably request to enable it to
comply with its reporting requirements with respect to each class of
Certificates to the extent such information can in the good faith judgment of
such Underwriter be determined by it.
5. Covenants of the Company. The Company covenants with the Underwriters
that:
(a) The Company will furnish promptly to the Representative and counsel
for the Underwriters one signed copy of the Registration Statement as originally
filed with the Commission, and each amendment or supplement thereto filed prior
to the date of this Agreement or relating to or covering the Certificates, and a
copy of each Prospectus filed with the Commission, including all consents and
exhibits filed therewith.
(b) The Company will deliver promptly to any Underwriter such number of
conformed copies of the Registration Statement and of each amendment or
supplement thereto filed prior to the date of this Agreement or relating to or
covering the Certificates and, during such period following the date of this
Agreement in which any Prospectus is required by law to be delivered, such
number of copies of each Prospectus, as such Underwriter may reasonably request.
(c) The Company will file promptly with the Commission, during such period
following the date of the this Agreement in which any Prospectus is required by
law to be delivered, any amendment or supplement to the Registration Statement
or any Prospectus relating to or covering the Certificates that may, in the
judgment of the Company or the Representative, be required by the 1933 Act and
the rules and regulations of the Commission thereunder or requested by the
Commission and approved by the Representative.
(d) Prior to filing with the Commission during the period referred to in
paragraph (c) above any amendment or supplement to the Registration Statement or
any Prospectus relating to or covering the Certificates, the Company will
furnish a copy thereof to the Representative and to counsel for the
Underwriters, and the Company will not file any such amendment or supplement to
which the Underwriters shall reasonably object.
(e) The Company will advise the Representative promptly (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Certificates becomes effective, (ii) of any request or proposed request by
the Commission for an amendment or supplement to the Registration Statement or
to any Prospectus (insofar as the amendment or supplement relates to or covers
the Certificates) or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to any Prospectus or the initiation
or threat of any such stop order proceeding, (iv) of receipt by the Company of
any notification with respect to the suspension of the qualification of the
Certificates for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose and (v) of the happening of any event that makes
untrue any statement of a material fact made in the Registration Statement or
any Prospectus or that
requires the making of a change in the Registration Statement or any Prospectus
in order to make any material statement therein not misleading.
(f) If, during the period referred to in paragraph (c) above, the
Commission issues an order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the lifting
of that order at the earliest possible time.
(g) [Reserved.]
(h) The Company will endeavor to qualify the Certificates for offer and
sale under the securities laws of such jurisdictions as the Representative may
reasonably request, provided, however, that this Section 5(h) shall not obligate
the Company to file any general consent to service of process or to qualify to
do business in any jurisdiction or as a dealer in securities in any jurisdiction
in which it is not so qualified.
(i) The Company will pay or cause to be paid (i) the costs incident in the
preparation, printing and filing under the 1933 Act of the Registration
Statement and any amendments thereof and supplements and exhibits thereto; (ii)
the costs of distributing the Registration Statement as originally filed and
each amendment and post-effective amendment thereof (including exhibits), any
Preliminary Prospectus, each Prospectus and any amendment or supplement to the
Prospectus as provided in this Agreement; (iii) the costs of printing and
distributing the Pooling and Servicing Agreement; (iv) the costs of filings, if
any, with the National Association of Securities Dealers, Inc.; (v) fees paid to
the Rating Agencies in connection with the rating of the Certificates; (vi) the
fees and expenses of qualifying the Certificates, under the securities laws of
the several jurisdictions as provided in Section 5(h) hereof, and of preparing
and printing, if so requested by the Representative, a preliminary blue sky
survey and legal investment survey concerning the legality of the Certificates
as an investment (including fees and disbursements of counsel to the
Underwriters in connection therewith); and (vii) any other costs and expenses
incident to the performance of the Company's obligations under this Agreement;
provided, however, that, except as provided above in this Section 5(i) or in
Section 7, each Underwriter shall pay its own costs and expenses, including the
fees and expenses of its counsel, any transfer taxes on the Certificates that it
may sell and the expenses of advertising any offering of the Certificates made
by such Underwriter.
(j) The Company will file any documents and any amendments thereof as may
be required to be filed by it pursuant to the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations
of the Commission under the 1933 Act and the 1934 Act, including, but not
limited to, the filing with the Commission pursuant to a Current Report on Form
8-K, subject to Section 4, all Computational Materials and ABS Term Sheets in
respect of the Certificates furnished by either Underwriter and identified by it
as such. Subject to compliance by the Underwriters with Section 4(b)(iv), the
Company will file all such Computational Materials and ABS Term Sheets within
the time period allotted for such filing pursuant to the No-Action Letters.
Subject to compliance by the Underwriters with Section 4(b)(iv), the Company
represents and warrants that, to the extent required by the No-Action Letters,
the Company has timely filed with the Commission any Collateral Term Sheets
previously delivered to it as contemplated by Section 4(b)(iv).
6. Conditions to the Obligations of the Underwriters. The obligation of
the Underwriters hereunder to purchase the Certificates shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date, as
of the date the Prospectus Supplement or any supplement thereto is filed with
the Commission prior to the Closing Date and as of the Closing Date, to the
accuracy of the statements of the Company made in any certificates delivered
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to satisfaction, as of the Closing Date, of the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or, to
the Company's knowledge, threatened; and the Prospectus Supplement shall have
been filed or transmitted for filing with the Commission in accordance with Rule
424 under the 0000 Xxx.
(b) The Company shall have delivered to the Underwriters a certificate of
the Company, signed by an authorized officer of the Company and dated the
Closing Date, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date; and
(ii) the Company has in all material respects complied with all the agreements
and satisfied all the conditions on its part that are required hereby to be
performed or satisfied at or prior to the Closing Date.
(c) The Underwriters shall have received with respect to the Company a
good standing certificate from the Secretary of State of the State of Delaware,
dated not earlier than 30 days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an
assistant secretary of the Company, in his individual capacity, a certificate,
dated the Closing Date, to the effect that: (i) each individual who, as an
officer or representative of the Company, signed this Agreement, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreements or any other document
or certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, in the Pooling and Servicing Agreement or in
the Mortgage Loan Purchase Agreements, was at the respective times of such
signing and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures; and (ii) no event (including, without limitation, any act or
omission on the part of the Company) has occurred since the date of the good
standing certificate referred to in paragraph (c) above which has affected the
good standing of the Company under the laws of the State of Delaware. Such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an assistant secretary of the Company) of the certificate of
incorporation and by-laws of the Company, as in effect on the Closing Date, and
of the
resolutions of the Company and any required shareholder consent relating to the
transactions contemplated in this Agreement, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements.
(e) The Underwriters shall have received from Sidley & Austin, special
counsel for the Company, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Registration Statement and any post-effective amendments
thereto have become effective under the 1933 Act.
(ii) To the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and not
withdrawn, and no proceedings for that purpose have been instituted or
threatened and not terminated.
(iii) The Registration Statement, each post-effective amendment
thereto (if any), the Basic Prospectus and the Prospectus Supplement, as
of their respective effective or issue dates (other than the financial
statements, schedules and other financial and statistical information
contained therein or omitted therefrom and other than information
incorporated therein by reference, as to which such counsel need express
no opinion), complied as to form in all material respects with the
applicable requirements of the 1933 Act and the rules and regulations of
the Commission thereunder.
(iv) To the best knowledge of such counsel, there are no material
contracts, indentures or other documents relating to the Certificates of a
character required to be described or referred to in the Registration
Statement or the Prospectus Supplement or to be filed as exhibits to the
Registration Statement, other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto.
(v) The Mortgage Loan Purchase Agreements and the Pooling and
Servicing Agreement each constitute a valid, legal, binding and
enforceable agreement of the Company, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally, to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or
at law and public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the enforceability
of the provisions of such agreement that purport to provide
indemnification from securities law liabilities.
(vi) The Certificates, when duly and validly executed, authenticated
and delivered in accordance with the Pooling and Servicing Agreement and
paid for in accordance with this Agreement, will be duly and validly
issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement.
(vii) The statements set forth in the Prospectus Supplement under
the headings "Description of the Offered Certificates" and "Servicing of
the Mortgage Loans" and in the Basic Prospectus under the headings
"Description of the Securities", "Servicing of Mortgage Loans" and "The
Trust Agreement", insofar as such statements purport to summarize certain
material provisions of the Certificates and the Pooling and Servicing
Agreement, are accurate in all material respects.
(viii) The statements set forth in the Prospectus Supplement under
the headings "Federal Income Tax Consequences", "Certain ERISA
Considerations" and "Legal Investment" and in the Basic Prospectus under
the headings "Federal Income Tax Considerations" and "Legal Investment",
to the extent that they constitute matters of federal law or legal
conclusions with respect thereto, while not discussing all possible
consequences of an investment in the Certificates to all investors,
provide a fair and accurate summary of such matters and conclusions set
forth under such headings.
(ix) Upon initial issuance, the Class A-1, Class A-2, Class B and
Class X Certificates will be "mortgage related securities", as defined in
Section 3(a)(41) under the 0000 Xxx.
(x) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
Fund is not required to be registered under the 1940 Act.
(xi) No consent, approval, authorization or order of any State of
New York or federal court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated herein or
in the Pooling and Servicing Agreement, except (A) such as have been
obtained under the 1933 Act, (B) such as may be required under state
securities laws or the "blue sky" laws of any jurisdiction in connection
with the offer and sale of the Certificates by the Underwriters, as to
which such counsel need express no opinion; and (C) any recordation of the
assignments of the Mortgage Loans pursuant to the Pooling and Servicing
Agreement that has not yet been completed.
(xii) Assuming compliance with all provisions of the Pooling and
Servicing Agreement, for federal income tax purposes, REMIC I, REMIC II
and REMIC III will each qualify as a real estate mortgage investment
conduit (a "REMIC") under the Internal Revenue Code of 1986 (the "Code"),
the Class R-I Certificates will be the sole class of "residual interests"
in REMIC I, the Class R-II Certificates will be the sole class of
"residual interests" in REMIC II, the Class A-1, Class A-2, Class B, Class
C, Class D, Class E, Class X, Class F, Class G, Class H, Class J, Class K,
Class L and Class M Certificates will evidence the "regular interests" in
REMIC III, and the Class R-III Certificates will be the sole class of
"residual interests" in REMIC III.
(xiii) The portion of the Trust Fund consisting of the Grantor Trust
(as defined in the Prospectus Supplement) will be classified as a grantor
trust under subpart E, part I
of subchapter J of the Internal Revenue Code of 1986.
In giving its opinions pursuant to this Section 6(e), Sidley & Austin,
special counsel to the Company, shall additionally state that, based on
conferences and telephone conversations with representatives of the Company,
Holdings, LUBS, the Master Servicer, the Special Servicer, the Trustee and their
respective counsel, and (with limited exception) without having reviewed any of
the mortgage notes, mortgages or other documents relating to the Mortgage Loans
or made any inquiry of any originator of any Mortgage Loan not referenced above,
nothing has come to such special counsel's attention that would lead it to
believe that the Prospectus (other than any accounting, financial or statistical
information included therein or omitted therefrom, and other than any
information incorporated therein by reference, as to which such counsel has not
been requested to comment), at the date of the Prospectus Supplement or at the
Closing Date, included or includes an untrue statement of a material fact or
omitted or omits 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.
In giving its opinions pursuant to this Section 6(e), Sidley & Austin,
special counsel to the Company, may express its reliance as to factual matters
on the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials and, further, may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto. Such opinion may be qualified as an opinion
only on the General Corporation Law of the State of Delaware, the laws of the
State of New York and the federal law of the United States.
(f) The Underwriters shall have received copies of all legal opinion
letters delivered by Sidley & Austin to the Rating Agencies in connection with
the issuance of the Certificates, accompanied in each case by a letter signed by
Sidley & Austin stating that the Underwriters may rely on such opinion letter as
if it were addressed to them as of date thereof.
(g) The Underwriters shall have received from Xxxxxxxxxxx Xxxx, Esq.,
counsel for the Company, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Representative and counsel for the
Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware and has the
corporate power to enter into and perform its obligations under each of
the Mortgage Loan Purchase Agreements, this Agreement and the Pooling and
Servicing Agreement.
(ii) Each of the Mortgage Loan Purchase Agreements, this
Agreement and the Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Company.
(iii) The execution, delivery and performance of the Pooling and
Servicing
Agreement, this Agreement and the Mortgage Loan Purchase Agreements by
the Company, and the consummation of the transactions contemplated
hereby or thereby, to such counsel's knowledge, do not and will not
result in a material breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or instrument known to such counsel to which the Company is
a party, nor will such actions result in any violation of the provisions
of the articles of incorporation or by-laws of the Company or any statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company (except for such conflicts,
breaches, violations and defaults as would not have a material adverse
effect on the ability of the Company to perform its obligations under the
Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements).
(iv) to such counsel's knowledge without any independent
investigation, no consent, approval, authorization or order of or with any
court or governmental agency or body of the United States or any other
jurisdiction is required for the transactions contemplated by the Pooling
and Servicing Agreement, this Agreement and the Mortgage Loan Purchase
Agreements, except such consents, approvals, authorizations,
registrations or qualifications as have been previously obtained or the
failure of which to obtain would not have a material adverse effect on the
performance by the Company of its obligations under the Pooling and
Servicing Agreement, this Agreement and the Mortgage Loan Purchase
Agreements.
In giving his opinions required pursuant to this Section 6(g),
Xxxxxxxxxxx Xxxx, Esq., counsel to the Company, may express his reliance as
to factual matters on the representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of, the parties to this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials and, further, may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the Company.
Such opinion may be qualified as an opinion only on the General Corporation Law
of the State of Delaware, the laws of the State of New York and the federal law
of the United States.
(h) The Underwriters shall have received from Deloitte & Touche, LLP
certified public accountants, a letter dated the Closing Date and satisfactory
in form and substance to the Representative and counsel for the Underwriters, to
the following effect:
(i) they have performed certain specified procedures as a result of
which they have determined that the information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
under the captions "Summary of the Prospectus Supplement," "Description of
the Mortgage Pool" and "Yield and Maturity Considerations" and on Annex
X-0, Xxxxx X-0, Xxxxx X-0 and Annex A-4 agrees with the data sheet or
computer tape prepared by or on behalf of the Mortgage Loan Sellers,
unless non-material deviations are otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed upon sampling of the Mortgage Loan
files and in such other sources as shall be specified by them, and found
such data and information to be in agreement in all material respects,
unless non-material deviations are otherwise noted in such letter.
(i) The Underwriters shall have received, with respect to each of the
Master Servicer, the Special Servicer and the Trustee, a favorable opinion of
counsel, dated the Closing Date, addressing the valid existence of such party
under the laws of the jurisdiction of its organization, the due authorization,
execution and delivery of the Pooling and Servicing Agreement by such party and,
subject to the same limitations as set forth in Section 6(e)(v), the
enforceability of the Pooling and Servicing Agreement against such party.
Counsel rendering each such opinion may express its reliance as to factual
matters on representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of the parties
to the Pooling and Servicing Agreement and on certificates furnished by public
officials and, further, may assume the due authorization, execution and delivery
of the instruments and documents referred to therein by the parties thereto
other than the party on behalf of which such opinion is being rendered. Such
opinion may be qualified as an opinion only on the laws of the State of New
York, the laws of the jurisdiction of organization for the party on behalf of
which such opinion is being rendered and the federal law of the United States.
(j) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by Holdings in connection
with the sale by Holdings of its Mortgage Loans to the Company, pursuant to the
Holdings Mortgage Loan Purchase Agreement.
(k) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by LUBS in connection with
the sale by LUBS of its Mortgage Loans to the Company, pursuant to the LUBS
Mortgage Loan Purchase Agreement.
(l) The Underwriters and counsel to the Underwriters shall have been
furnished with such other documents and opinions as they may reasonably require,
for the purpose of enabling them to pass upon the issuance and sale of the
Certificates as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained.
(m) The Certificates shall have been assigned ratings no less than those
set forth on Schedule II and such ratings shall not have been rescinded.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, if
the Company is in material breach of any covenants or agreements contained
herein or if any of the opinions and certificates referred to above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time
prior to, the Closing Date by the Underwriters. Notice of such cancellation
shall be given to the Company in writing, or by telephone or telegraph confirmed
in writing.
7. Reimbursement of Underwriter's Expenses. If the sale of the
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform in all material respects any agreement herein or comply in all material
respects with any provision hereof, other than by reason of a default by an
Underwriter, the Company will reimburse the Underwriters upon demand, for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by any of them in connection with the proposed
purchase and sale of the Certificates.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus or any Preliminary Prospectus Supplement (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representative on
behalf of the Underwriters), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under clause (i) or (ii) above;
provided, however, that the foregoing indemnity shall not apply to any such
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information (as
specified in Section 8(b) below) furnished to the Company by the Underwriters
expressly for use in the Registration Statement (or any amendment thereto) or in
the Basic Prospectus, any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto); and provided, further, that
the foregoing indemnity shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in any Computational Materials or ABS Term
Sheets (or amendments thereof or supplements thereto) in respect of the
Certificates delivered to prospective investors by any Underwriter and furnished
to the Company by such Underwriter pursuant to Section 4(b)(iv) and made a part
of the Registration Statement or incorporated by reference in any Preliminary
Prospectus or the Prospectus, except to the extent that any such untrue
statement or omission results from an error (a "Collateral Error") in the
information regarding the characteristics of the Mortgage Loans, Mortgaged
Properties and/or Borrowers furnished by the Company to the Underwriters in
writing for use in such Computational Materials or ABS Term Sheets (and, if the
Company has notified such Underwriter in writing of such Collateral Error or
provided in written or electronic form information superseding or correcting
such Collateral Error (in any such case, a "Corrected Collateral Error") prior
to the time of confirmation of sale to the person that purchased the
Certificates that are the subject of any such loss, liability, claim, damage or
expense, or action in respect thereof, such Underwriter has failed to deliver to
such person corrected Computational Materials or ABS Term Sheets (or, if the
superseding or correcting information is contained in the Prospectus, has failed
to deliver to such person such Prospectus) prior to confirmation of such sale to
such person); and provided, further, that the foregoing indemnity with respect
to any Preliminary Prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) with respect to
any loss, liability, claim, damage or expense arising out of the claims of any
particular person that purchased Certificates if the untrue statement or
omission or alleged untrue statement or omission made in such Preliminary
Prospectus upon which such claims are based is eliminated or remedied in the
Prospectus and, if required by law, a copy of the Prospectus shall not have been
furnished to such person at or prior to the written confirmation of the sale of
such Certificates to such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 8(a), as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Prospectus or any Preliminary Prospectus (or any amendment thereof or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter expressly for use in the Prospectus
or such Preliminary Prospectus (or any amendment or supplement thereto); or made
in any Computational Materials or ABS Term Sheets in respect of the Certificates
furnished by such Underwriter to prospective investors; provided, however, that
the foregoing indemnity shall not apply to any such loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or omission
in any such Computational Materials or ABS Term Sheets resulting from a
Collateral Error, except to the extent that such Collateral Error became a
Corrected Collateral Error prior to the time of confirmation of sale to the
person
that purchased the Certificates that are the subject of any such loss,
liability, claim, damage or expense, or action in respect thereof, and such
Underwriter failed to deliver to such person corrected Computational Materials
or ABS Term Sheets (or, if the superseding or correcting information is
contained in the Prospectus, failed to deliver to such person such Prospectus)
prior to confirmation of such sale to such person. It is hereby acknowledged
that (i) the statements set forth in the first, second and third sentences of
the last paragraph on the cover of the Prospectus Supplement, and (ii) the
statements in the first sentence of each of the second and fourth paragraphs
under the caption "Method of Distribution" in the Prospectus Supplement,
constitute the only written information furnished to the Company by the
Underwriters expressly for use in the Prospectus or any Preliminary Prospectus
(or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of such
counsel, or (ii) the indemnifying party shall not have assumed the defense of
such action, with counsel satisfactory to the indemnified party, within a
reasonable period following the indemnifying party's receiving notice of such
action, or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In no event shall
the indemnifying party or parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from its or their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. Unless it shall assume the
defense of any proceeding, an indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party shall indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. If an indemnifying
party assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the indemnified party or, if such settlement
provides for the unconditional release of the indemnified party in connection
with all matters relating to the proceeding that have been asserted against the
indemnified party in such proceeding by the other parties to such settlement,
without the consent of the indemnified party.
9. Contribution. In order to provide for just and equitable contribution
in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and each Underwriter shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company or
any Underwriter, as incurred, in such proportions that each Underwriter is
responsible for that portion represented by the percentage that the underwriting
discounts and commissions pertaining to the Certificates underwritten by it
bears to the aggregate of the initial public offering prices of the Certificates
and the Company is responsible for the balance; provided, however, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation; and provided, further, that in
no event shall any Underwriter be obligated to contribute more than an amount
equal to the underwriting discounts and commissions pertaining to the
Certificates underwritten by it. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company.
10. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters, or by or on behalf of
the Company, or by or on behalf of any of the controlling persons and officers
and directors referred to in Sections 8 and 9, and shall survive delivery of the
Certificates to the Underwriters.
11. Substitution of Underwriters. (a) If any Underwriter shall fail to
take up and pay for the amount of the Certificates agreed by such Underwriter to
be purchased under this Agreement, upon tender of such Certificates in
accordance with the terms hereof, and the amount of the Certificates not
purchased does not aggregate more than 10% of the total amount of the
Certificates set forth in Schedule I hereof (based on aggregate purchase price),
the remaining Underwriters shall be obligated to take up and pay for the
Certificates that the withdrawing or defaulting Underwriter agreed but failed to
purchase.
(b) If any Underwriter shall fail to take up and pay for the amount
of the Certificates agreed by such Underwriter to be purchased under this
Agreement (such Underwriter being a "Defaulting Underwriter"), upon tender of
such Certificates in accordance with the terms hereof, and the amount of the
Certificates not purchased aggregates more than 10% of the total amount of the
Certificates set forth in Schedule I hereto (based on aggregate purchase price),
and arrangements satisfactory to the remaining Underwriters and the Company for
the purchase of such Certificates by other persons are not made within 36 hours
thereafter, this Agreement shall terminate. In the event of any such termination
the Company shall not be under any liability to
any Underwriter (except to the extent provided in Section 5(i) and Sections 8
and 9 hereof) nor shall any Underwriter (other than an Underwriter who shall
have failed, otherwise than for some reason permitted under this Agreement, to
purchase the amount of the Certificates such Underwriter agreed to purchase
hereunder) be under any liability to the Company (except to the extent provided
in Sections 8 and 9 hereof). Nothing herein shall be deemed to relieve any
Defaulting Underwriter from any liability it may have to the Company or any
other Underwriter by reason of its failure to take up and pay for Certificates
as agreed by such Defaulting Underwriter.
12. Termination of Agreement; Survival.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in the reasonable judgment of the Representative,
impracticable to market the Certificates or to enforce contracts for the sale of
the Certificates, or (iii) if trading generally on the New York Stock Exchange
has been suspended, or if a banking moratorium has been declared by either
federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 12, such
termination shall be without liability of any party to any other party, except
as provided in Section 11.
(c) The provisions of Section 5(i) regarding the payment of costs and
expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement.
13. Notices. Any notice by the Company to the Underwriters shall be
sufficient if given in writing or by telegraph to the addresses set forth on
Schedule I hereto (or, in the case of any Underwriter, at such other address as
may be furnished by such Underwriter to the Company in accordance with this
Section 13); and any notice by the Underwriters to the Company shall be
sufficient if given in writing or by telegraph addressed to the Company at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of the President.
14. Successors. This Agreement shall be binding upon the Underwriters, the
Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the indemnity agreement of the Underwriters contained in Section 8 hereof shall
be deemed to be also for the benefit of directors of the Company, officers of
the Company who have signed the Registration Statement and any person
controlling the Company and the indemnity agreement of the Company contained in
Section 8 shall be deemed to be also for the benefit of any person controlling
the Underwriters. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section, any legal
or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
15. Business Day. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange is open for trading.
16. Applicable Law. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York, applicable to
contracts made and to be performed entirely in said State.
17. Counterparts. This Agreement may be executed in one or more
counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriters.
Very truly yours,
STRUCTURED ASSET SECURITIES
CORPORATION
By:
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXX BROTHERS INC.
By:
Name:
Title:
SCHEDULE I
Principal or Notional
Amount of Relevant
Class of Offered
Underwriters (and addresses) Class Certificates to be Purchased
---------------------------- ----- ----------------------------
Xxxxxx Brothers Inc. A-1 402,000,000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
A-2 802,800,000
B 90,854,000
C 86,904,000
D 63,202,000
E 31,602,000
X 1,580,066,327(1)
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxx Xxxxxxxx
-----------------
(1) Notional Amount
SCHEDULE II
Underwriting Agreement, dated as of May 26, 1999.
Title and Description of the Certificates:
Xxxxxx Brothers Commercial Mortgage Trust 1999-C1, Commercial Mortgage
Pass-Through Certificates, Series 1999-C1, Class A-1, Class A-2, Class B,
Class C, Class D, Class E and Class X.
Cut-off Date: As defined in the Prospectus
Expected Closing Date: June 10, 1999
CERTIFICATES
============================================================================================================================
Class A-1 Class A-2 Class B Class C Class D Class E Class X
--------- --------- ------- ------- ------- ------- -------
----------------------------------------------------------------------------------------------------------------------------
Initial Aggregate 402,000,000 802,800,000 90,854,000 86,904,000 63,202,000 31,602,000 1,580,066,327(1)
Certificate Principal
Amount or Certificate
Notional Amount
----------------------------------------------------------------------------------------------------------------------------
Initial Pass-Through Rate 6.410% 6.780% 6.930% 7.020% 7.020% 7.020% 0.693%
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Rating(2) Aaa/AAA Aaa/AAA Xx0/XX X0/X Xxx0/XXX Xxx0/XXX- Xxx/XXX
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Purchase Price(3)
============================================================================================================================
---------------
(1) Notional amount.
(2) By Xxxxx'x Investors Service, Inc. and Duff & Xxxxxx Credit Rating Co.,
respectively.
(3) Expressed as a percentage of the initial aggregate stated principal amount
or notional principal amount, as applicable, of each class of
Certificates. The Purchase Price for each class of Certificates will
include accrued interest at the initial Pass-Through Rate therefor on the
initial aggregate stated principal amount or notional principal amount
thereof from June 1, 1999 to but not including the Closing Date.
