EXHIBIT 1.1
LB COMMERCIAL CONDUIT MORTGAGE TRUST II
MULTICLASS PASS-THROUGH CERTIFICATES, SERIES 1996-C2
October 18, 1996
UNDERWRITING AGREEMENT
----------------------
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
Xxxxxx Brothers Inc. ("LBI" or the "Underwriter"), the classes of LB Commercial
Conduit Mortgage Trust II Multiclass PassThrough Certificates, Series 1996-C2
that are described on Schedule I attached hereto (the "Certificates"). The
Certificates will evidence beneficial ownership interests in a trust fund (the
"Trust Fund") to be formed by the Company and consisting primarily of a
segregated pool (the "Mortgage Pool") of multifamily and commercial mortgage
loans (the "Mortgage Loans"). The Certificates will be issued under a trust
agreement, dated as of October 1, 1996 (the "Trust Agreement"), among the
Company as depositor, LaSalle National Bank as trustee (the "Trustee"), GMAC
Commercial Mortgage Corporation as servicer (the "Servicer"), CRIIMI MAE
Services Limited Partnership as special servicer (the "Special Servicer") and
ABN AMRO Bank N.V. as fiscal agent (the "Fiscal Agent").
1. REPRESENTATIONS AND WARRANTIES. The Company represents, warrants and
agrees that:
a. A registration statement on Form S-3 (No.
33-96378) 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, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), including Rule 415,
and has become effective under the Securities Act. As used in this Underwriting
Agreement (this "Agreement" or the "Underwriting Agreement"), (i) "Registration
Statement" means that registration statement and all exhibits thereto,
including, among other things, the Statement of Eligibility and Qualification of
the Trustee under the Trust Indenture Act of 1939, as amended, on Form T-1 (the
"Form T-1"), 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 Securities Act; (iii) "Prospectus"
means the Basic Prospectus, together with the prospectus supplement specifically
relating to the Certificates (the "Prospectus Supplement"), as filed with,
or mailed for filing to, the Commission pursuant to paragraph (b) of Rule 424 of
the Securities 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 Securities Act.
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 Securities Act, the Trust Indenture Act of 1939, as
amended, and the rules and regulations thereunder (collectively, the "Trust
Indenture Act"); 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) that part of the Registration Statement
that shall constitute the Form T-1, (ii) 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 the Underwriter
specifically for inclusion therein or (iii) any information in any Computational
Materials and ABS Term Sheets (each as defined below) incorporated into the
Registration Statement by the filing thereof pursuant to Section 4(j).
c. The Company is not in violation of its corporate
charter 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; the
execution, delivery and performance by the Company of this Agreement, and the
consummation of the transactions contemplated herein, have been, and as of the
Delivery Date (as defined in Section 3 hereof), the Trust Agreement, the
Servicing Agreement, dated as of October 1, 1996 (the "Servicing Agreement"),
among the Company, the Trustee, the Servicer and the Special Servicer and the
Special Servicing Agreement, dated as of October 1, 1996 (the "Special Servicing
Agreement"), among the Company, the Trustee, the Servicer and the Special
Servicer, and the consummation of the transactions contemplated therein, will
have been, authorized by all necessary corporate action and compliance by the
Company with the provisions of this Agreement; the issuance of the Certificates
and the execution, delivery and performance by the Company of the Trust
Agreement will not conflict with, result in the creation or imposition of any
material lien, charge or encumbrance upon any of the assets of the Company,
other than the lien, if any, created by the Trust Agreement, pursuant to the
terms of, or constitute a default under, any material agreement, trust agreement
or instrument, or result in a violation of the corporate charter or bylaws of
the Company or any order, rule or regulation of any court or governmental agency
having jurisdiction over the Company or its properties; and, except as required
by the Securities Act, the Trust Indenture Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and applicable state securities laws, no
consent, authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and
2
performance of this Agreement, the Servicing Agreement, the Special Servicing
Agreement and the Trust Agreement (collectively, the "Transaction Documents").
d. Except as described in the Registration Statement
and the Prospectus, there has not been any material adverse change in, or any
adverse development that materially affects, the business, properties, financial
condition or results of operations of the Company from the dates as of which
information is given in the Registration Statement and the Prospectus.
e. The Company has no reason to believe that Deloitte
& Touche LLP, whose reports are incorporated by reference into the Prospectus,
are not independent accountants as required by the Securities Act.
f. As of the date hereof, this Agreement has been
duly and validly authorized, executed and delivered by the Company and is a
valid and legally binding obligation of the Company, enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency or other laws affecting the enforcement of creditors rights
generally, by general principles of equity, and by public policy considerations,
to the extent that such public policy considerations limit the enforceability of
any provisions of this Agreement that purport to provide indemnification for
securities law liabilities. On the Delivery Date, (i) the Trust Agreement, the
Servicing Agreement and the Special Servicing Agreement will have been duly and
validly authorized, executed and delivered by the Company, and will constitute
the valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency or other laws affecting the enforcement of
creditors rights generally or by general principles of equity, (ii) the issuance
of the Certificates will have been validly authorized by the Company and, upon
payment for the Certificates as provided in this Agreement and due execution,
authentication and delivery thereof as provided in the Trust Agreement, the
Certificates will be validly issued and outstanding, and will be entitled to the
benefits of the Trust Agreement, and (iii) the Certificates, the Servicing
Agreement, the Special Servicing Agreement and the Trust Agreement will conform
to the descriptions thereof contained in the Prospectus.
g. The Company has been duly incorporated, is validly
existing and in good standing under the laws of the State of Delaware and is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction in which its ownership of property or the conduct of its
business requires such qualification and has all corporate power and authority
necessary to own or hold its properties and to conduct the business in which it
is engaged, except such jurisdictions, if any, in which the failure to be so
qualified will not have a material adverse effect on its business or properties.
h. Except as described in the Prospectus, there is no
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company that might result in any material
adverse change in the financial condition, results of
3
operations, business or prospects of the Company or that is required to be
disclosed in the Registration Statement or Prospectus.
i. There are no contracts or other documents that are
required to be filed as exhibits to the Registration Statement by the Securities
Act or by the Trust Indenture Act that have not been filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by the
Securities Act or the Trust Indenture Act, or that are required to be summarized
in the Prospectus that are not so summarized; provided, however, that the
Company makes no representation or warranty with respect to any contract or
document, except this Agreement, to which LBI is a party.
j. At or prior to the Delivery Date, the Company will
have validly assigned all of its right, title and interest in and to the
Mortgage Loans, and delivered the related Mortgage Files to the Trustee under
the Trust Agreement. The Mortgage Loans (i) have as of the Delivery Date an
aggregated unpaid principal balance, after application of all payments due on or
before October 1, 1996 (the "Cut-off Date"), of not less than the aggregate
certificate principal amount of the Certificates and the other certificates, if
any, issued pursuant to the Trust Agreement, (ii) have for each Due Date
scheduled payments of principal and interest that will satisfy the requirements
of the Trust Agreement and (iii) conform in all material respects with the
description thereof in the Prospectus.
k. The Company and the Trust Fund are not, and will
not be as a result of the offer and sale of the Certificates as contemplated by
the Prospectus, subject to the provisions of the Investment Company Act of 1940,
as amended.
l. At the Delivery Date, each Class of the
Certificates will have been rated in the bond rating category by a nationally
recognized statistical rating organization (as such term is used in Rule 15c3-1
of the Exchange Act) as described in the Prospectus.
2. PURCHASE AND SALE. Subject to the terms and conditions and
in reliance on the representations and warranties herein set forth, the Company
agrees to sell to LBI and LBI agrees to purchase from the Company the
Certificates, at the purchase price for each class thereof as set forth on
Schedule I attached hereto.
3. PAYMENT AND DELIVERY. Payment for the Certificates shall be
made at the offices of Xxxxxxx Xxxxxxxx & Xxxx, Xxx Xxxxx Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 10:00 a.m. New York City time, on October 30, 1996 or
at such other location, time and date as shall be agreed upon. This date and
time are sometimes referred to as the "Delivery Date". Delivery of the
Certificates shall be made to LBI against payment by LBI of the purchase price
therefore to or upon the order of the Company in same-day funds by federal funds
wire. Unless delivery is made through the facilities of The Depository Trust
Company, the Certificates shall be registered in such names and in such
authorized denominations as LBI may have requested not less than three full
business days prior to the Delivery Date.
4
The Company agrees to have the Certificates available for
inspection, checking and packaging in New York, New York, at any time before
3:00 p.m. on the business day prior to the Delivery Date.
4. AGREEMENTS. The Company agrees:
a. To furnish promptly to the Underwriter and counsel
for the Underwriter 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. To deliver promptly to the 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 the this
Agreement in which any Prospectus is required by law to be delivered, such
number of copies of each Prospectus, as the Underwriter may reasonably request;
c. To 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 that may, in the judgment of the Company or the
Underwriter, be required by the Securities Act or requested by the Commission
and approved by the Underwriter;
d. Prior to filing with the Commission during the
period referred to in (c) above any amendment or supplement to the Registration
Statement or any Prospectus, to furnish a copy thereof to the Underwriter and to
counsel for the Underwriter, and the Company will not file any such amendment or
supplement to which the Underwriter shall reasonably object;
e. To advise the Underwriter 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;
5
f. If, during the period referred to in (c) above,
the Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, the Company shall be obligated to make every reasonable
effort to obtain the lifting of that order at the earliest possible time;
g. As soon as practicable, to make generally
available to its security holders and to deliver to the Underwriter an earnings
statement conforming with the requirements of Section 11(a) of the Securities
Act and Rule 158 thereunder;
h. To endeavor to qualify the Certificates for offer
and sale under the securities laws of such jurisdictions as the Underwriter may
reasonably request, provided, however, that this Section 4(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. To pay or cause to be paid (i) the costs incident
in the preparation, printing and filing under the Securities 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 Transaction Documents; (iv) the costs of filings,
if any, with the National Association of Securities Dealers, Inc.; (v) fees paid
to any rating agency 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 4(h) hereof and of preparing
and printing, if so requested by the Underwriter, a preliminary blue sky survey
and legal investment survey concerning the legality of the Certificates,
including the Certificates, as an investment (including fees and disbursements
of counsel to the Underwriter 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
paragraph (i) or in Section 8, the 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 the Underwriter; and
j. To file any documents and any amendments thereof
as may be required to be filed by it pursuant to the Securities Act and the
Exchange Act, including, but not limited to, the filing with the commission in a
Current Report on form 8-K all Computational Materials and ABS Term Sheets
furnished by the Underwriter and identified by it as such. 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 (as hereinafter
defined).
6
5. INDEMNIFICATION.
a. The Company shall indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of Section 20 the Exchange Act or Section 15 of the Securities Act from
and against any loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which the Underwriter or such controlling person
may become subject, under the Securities Act, the Exchange Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or any
Prospectus or arises out of, or is 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, and shall reimburse the Underwriter
and such controlling person for any legal and other expenses reasonably incurred
by the Underwriter or such controlling person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, (i) any untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus, the Registration
Statement or any Prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein or (ii) any such untrue statement made in the
Underwriter's Computational Materials or ABS Term Sheets incorporated into the
Registration Statement by the filing thereof pursuant to Section 4(j); and
provided further that, as to any Preliminary Prospectus, this indemnity
agreement shall not inure to the benefit of the Underwriter or any person
controlling the Underwriter on account of any loss, claim, damage, liability or
action arising from the sale of Certificates to any person by that Underwriter
if that Underwriter failed to send or give a copy of the Prospectus, as the same
may be amended or supplemented, to that person within the time required by the
Securities Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in such Prospectus, unless such failure
resulted from non-compliance by the Company with Section 4(a) or 4(b). The
foregoing indemnity is in addition to any liability that the Company may
otherwise have to the Underwriter or any person or entity controlling the
Underwriter.
b. The Underwriter shall indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement, and any person who controls the Company within the
meaning of Section 20 of the Exchange Act or Section 15 of the Securities Act
from and against any loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Securities Act, the Exchange
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or any Prospectus, or arises out of, or is 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, but
in each case only to the extent that (i) the untrue
7
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriter specifically for inclusion therein,
or (ii) any such untrue statement was made in the Underwriter's Computational
Materials or ABS Term Sheets incorporated into the Registration Statement by the
filing thereof pursuant to Section 4(j); and shall reimburse the Company for any
legal and other expenses reasonably incurred by the Company or any such
director, officer or controlling person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action.
The foregoing indemnity agreement is in addition to any liability that the
Underwriter may otherwise have to the Company or any of its directors, officers
or controlling persons.
c. Promptly after receipt by an indemnified party
under this Section of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party in writing
of the claim or commencement of that action, provided that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have
to an indemnified party otherwise than under this Section. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party that it will assume
the defense of any such claim or action, the indemnifying party will not be
liable to the indemnified party under this Section for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof; provided that the Underwriter shall have the right to employ
counsel to represent the Underwriter and the controlling persons referred to in
subsection (a) above who may be subject to liability arising out of any claim or
action in respect of which indemnity may be sought by the Underwriter against
the Company under this Section, if (i) in the reasonable judgment of the
Underwriter, there may be legal defenses available to the Underwriter, and those
controlling persons, different from or in addition to those available to the
Company, or there is a conflict of interest between the Underwriter and the
controlling persons, on the one hand, and the Company, on the other, or (ii) the
Company shall fail to select counsel reasonably satisfactory to the indemnified
party or parties, and in such event the fees and expenses of such separate
counsel shall be paid by the Company. In no event shall the Company be liable
for the fees and expenses of more than one separate firm of attorneys for the
Underwriter and its controlling persons in connection with any other action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
d. If the indemnification provided for in Sections
5(a) and 5(b) shall for any reason be unavailable to an indemnified party under
Section 5(a) or 5(b), as the case may be, in respect of any loss, claim, damage
or liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be
8
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other from the offering of the Certificates or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriter on the other with respect to the
statements or omissions that resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriter on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Certificates (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriter with
respect to such offering. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Underwriter, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriter agree that it would not
be just and equitable if contributions pursuant to this Section 5(d) were to be
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 5(d) shall be deemed to include, for purposes of this Section 5(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5(d), the Underwriter shall not
be required to contribute any amount in excess of the amount by which the
discount on the front cover of the Prospectus relating to the Certificates
underwritten by it and distributed to the public exceeds the amount of any
damages that the Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
e. The indemnity and contribution agreements
contained in this Section and the representations, warranties and agreements of
the Company in Section 1 and Section 4 hereof, shall survive the delivery of the
Certificates, and the provisions of this Section shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
6. TERMINATION. The obligations of the Underwriter under this
Agreement may be terminated by the Underwriter, in its absolute discretion by
notice given to and received by the Company prior to the delivery of and payment
for the Certificates, if, during the period beginning on the date of this
Agreement to and including the Delivery Date, (a) trading in securities
generally on the New York Stock Exchange is suspended or minimum prices are
established on that Exchange, or (b) a banking moratorium is declared by Federal
or New York State authorities, or (c) the United States is or becomes engaged in
hostilities that result in the
9
declaration of a national emergency, or (d) any proposed rating of any class of
Certificates shall be lowered by the nationally recognized statistical rating
organization (as such term is used in Rule 15c3-1 under the Exchange Act) that
will initially rate the Certificates.
7. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. The
obligations of the Underwriter under this Agreement with respect to the
Certificates are subject to the accuracy, on the date of this Agreement and on
the Delivery Date, of the representations and warranties of the Company
contained herein, to performance by the Company of its obligations hereunder,
and to each of the following additional terms and conditions applicable to the
Certificates:
a. At or before the Delivery Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued, and prior to that time no stop order proceeding shall have been
initiated or threatened by the Commission; any request of the Commission for
inclusion of additional information in the Registration Statement or any
Prospectus or otherwise shall have been complied with; and after the date of
this Agreement the Company shall not have filed with the Commission any
amendment or supplement to the Registration Statement or any Prospectus to which
the Underwriter shall have reasonably objected.
b. The Underwriter shall not have discovered and
disclosed to the Company on or prior to the Delivery Date that the Registration
Statement or any Prospectus contains an untrue statement of a fact that, in the
opinion of counsel to the Underwriter, is material or omits to state a fact
that, in the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
c. All corporate proceedings and other legal matters
incident to the authorization, form and validity of the Certificates and the
Transaction Documents and the form of the Registration Statement, the Prospectus
(other than financial statements and other financial data) and all other legal
matters relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all respects to counsel for the Underwriter,
and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
d. The Underwriter shall have received the following:
i. A favorable opinion, dated the Delivery
Date, of (A) counsel for the Company, (B) counsel for the Servicer, (C)
counsel for the Special Servicer, and (D) counsel for the Trustee and
the Fiscal Agent.
ii. A certificate of the Company, dated the
Delivery Date, substantially in the form attached hereto as Exhibit A.
10
iii. A letter dated the date hereof and
satisfactory in form and substance to the Underwriter and the
Underwriter's counsel, from Deloitte & Touche LLP, certified public
accountants, to the effect that they have performed certain specified
procedures, all of which have been agreed to by the Underwriter, as a
result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement under the captions "Description of the Mortgage Pool",
"Description of the Certificates" and "Yield, Prepayment and Maturity
Considerations" agrees with the records of the Company excluding any
questions of legal interpretation.
iv. Such other letters, opinions and
certificates as have been requested by those nationally recognized
statistical rating organizations (as such term is used in Rule 15c3-1
under the Exchange Act) that will initially rate the Certificates.
8. ITEMS DELIVERED RELATING TO COMPUTATIONAL MATERIALS AND ABS
TERM SHEETS.
a. The Underwriter shall deliver to the Company an
officer's certificate (i) stating that attached thereto are all of the
information, tables, charts and other items that constitute "Computational
Materials" (as defined in the letter dated May 4, 1994, from Xxxxx & Xxxx to
Xxxxx X. Xxxxx, Director of the Division of Corporation Finance of the
Commission (together with the Commission's response thereto dated May 20, 1994,
the "Xxxxxx Letter")) or that constitute "ABS Term Sheets" (as defined in the
letter dated February 13, 1995, from Cleary, Gottlieb, Xxxxx & Xxxxxxxx to
Xxxxxxx Arms, Associate Director of the Division of Corporate Finance of the
Commission (together with the Commission's response thereto dated February 17,
1995, the "PSA Letter")) (the Xxxxxx Letter and the PSA Letter, together, the
"No-Action Letters") prepared by the Underwriter which are required to be filed
with the Commission pursuant to the terms of the No-Action Letters and stating
that the Underwriter has otherwise complied with the terms of the No-Action
Letters and (ii) representing that (A) other than the items described in clause
(i), no term sheets, collateral information or other data in written form that
would be required to be filed with the Commission pursuant to the No-Action
Letters were furnished by such Underwriter to actual or potential investors for
the Registered Certificates prior to the Delivery Date and (B) to the best
knowledge of such officer, the items described in clause (i) do not include any
untrue or misleading statement of a material fact nor, when taken together with
the Prospectus, and in the light of the circumstances in which the statements in
such items were made, omit to state any material fact required to be stated in
such items or necessary to make the statements contained in such items not
misleading.
b. Deloitte & Touche LLP shall furnish to the Company
and the Underwriter a letter or letters, each in form and substance satisfactory
to the Company, relating to the Computational Materials and ABS Terms Sheets of
the Underwriter filed in accordance with Section 4(j) and dated the date of the
related Current Report on Form 8-K and stating in effect that:
11
i. using the assumptions and methodology
used by the Underwriter, all of which shall be described by reference
in the letter, they have recalculated the numerical data and dates set
forth in the Computational Materials and ABS Term Sheets of such
Underwriter (or portions thereof) attached to such letter, compared the
results of their calculations to the corresponding items in such
Computational Materials and ABS Term Sheets (or portions thereof) and
found such items to be in agreement with the respective results of such
calculation; and
ii. if such Computational Materials and ABS
Term Sheets include data reflecting the distribution of interest at
other than a fixed rate or the distribution in reduction of the
aggregate Certificate Principal Amount (as defined in the Prospectus
Supplement) of a class of Certificates according to a schedule of
planned or targeted amounts, or reflecting other characteristics which
give rise to the use of tables in such Computational Materials and ABS
Term Sheets, such letter shall also set forth such other statements as
are customarily set forth by Deloitte & Touche LLP in such letter with
respect to such data.
9. FEES AND EXPENSES. If the sale of the Certificates shall
not be consummated because any condition to the Underwriter's obligations set
forth in Section 7 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of default of the Underwriter,
the Company shall reimburse the Underwriter for the reasonable fees and expenses
of its counsel and for such other out-of-pocket expenses as shall have been
incurred in connection with this Agreement and the proposed purchase of the
Certificates, and upon demand the Company shall pay the full amount thereof to
the Underwriter.
10. NOTICES. The Company shall be entitled to act and rely
upon any request, consent, notice or agreement by Xxxxxx Brothers Inc. Any
notice by the Company to the Underwriter shall be sufficient if given in writing
or by telegraph addressed to the Underwriter at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, attention of Xxxxx X. Xxxxx, and any notice by the Underwriter 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.
11. SUCCESSORS. This Agreement shall be binding upon the
Underwriter, 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 Underwriter contained in Section 5
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 5 shall be deemed to be also for the benefit of any person
controlling the Underwriter. 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.
12
12. BUSINESS DAY. For purposes of this Agreement, "business
day" means any day on which the New York Stock Exchange is open for trading.
13. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
14. 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.
13
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 Underwriter.
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:
14
SCHEDULE I
Underwriting Agreement, dated October 18, 1996.
Title and Description of the Certificates:
LB Commercial Conduit Mortgage Trust II Multiclass Pass-Through
Certificates, Series 1996-C2, Class A, Class IO, Class B, Class C,
Class D and Class E.
Cut-off Date: October 1, 1996.
CERTIFICATES
=========================================================================================================================
CLASS A CLASS IO CLASS B CLASS C CLASS D CLASS E
------- -------- ------- ------- ------- -------
-------------------------------------------------------------------------------------------------------------------------
Initial Aggregate $270,097,693 $397,202,489(2) $27,804,174 $23,832,149 $15,888,100 $7,944,050
Certificate Principal
Amount or Certificate
Notional Amount
-------------------------------------------------------------------------------------------------------------------------
Initial Certificate 7.416% 1.249% 7.606% 7.726% 7.886% 7.886%
Interest Rate
-------------------------------------------------------------------------------------------------------------------------
Rating Xxx/XXX/XXX Xxx/XXX/XXX Xx0/XX/XX X0/X/X Baa2/BBB/BBB Baa3/BBB-
/BBB-
-------------------------------------------------------------------------------------------------------------------------
Purchase Price(1)
=========================================================================================================================
(1) Expressed as a percentage of the initial aggregate Certificate
Principal Amount or Certificate Notional Amount, as applicable, of each
class of Certificates. The Purchase Price for each class of
Certificates will include accrued interest at the initial Certificate
Interest Rate therefor on the initial aggregate Certificate Principal
Amount or Certificate Notional Amount thereof from the Cut-off Date to
but not including the Closing Date.
(2) Notional amount.
Closing Time, Date and Location: 10:00 a.m., New York City time, on October 30,
1996 at the offices of Xxxxxxx Xxxxxxxx & Wood.
-------------------------------------------
Issuance and delivery of Certificates: The Class A, Class B, Class C, Class D
and Class E Certificates (the "Book-Entry Certificates") will be issued as one
or more Certificates registered in the name of Cede & Co., as nominee of The
Depository Trust Company. Beneficial owners will hold interests in the BookEntry
Certificates through the book-entry facilities of The Depository Trust Company
in minimum denominations of initial actual principal amount of $10,000 and
integral multiples of $1.00 in excess thereof. The Class IO Certificates will be
issued in minimum denominations of initial notional principal amount of $500,000
and integral multiples of $1.00 in excess thereof. The Class IO Certificates
will be delivered in fully registered, certificated form in such names and
authorized denominations as the Underwriter may direct.
EXHIBIT A
LB Commercial Conduit Mortgage Trust II
Multiclass Pass-Through Certificates
Series 1996-C2
CERTIFICATE OF AN OFFICER OF
STRUCTURED ASSET SECURITIES CORPORATION
I, _______________ hereby certify that I am a ______________ of
Structured Asset Securities Corporation, a Delaware corporation (the "Company"),
and further certify as follows:
2. Attached hereto are true, complete and correct copies of the
certificate of incorporation and by-laws of the Company as in full force and
effect on the date hereof, together with a certificate of good standing in
respect of the Company issued by the Secretary of State of the State of
Delaware. No event (including, without limitation, any act or omission on the
part of the Company) has occurred since the date thereof which has affected the
good standing of the Company under the laws of the State of Delaware.
3. No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Company are pending or contemplated.
4. Each individual who, as an officer or representative of the Company,
signed (a) the Underwriting Agreement, dated as of October 18, 1996 (the
"Underwriting Agreement"), between the Company as seller and Xxxxxx Brothers
Inc. ("LBI") as underwriter, (b) the Certificate Purchase Agreement, dated as of
October 18, 1996 (the "Certificate Purchase Agreement"), between the Company as
seller and LBI as purchaser, (c) the Trust Agreement, dated as of October 1,
1996 (the "Trust Agreement"), among the Company as depositor, GMAC Commercial
Mortgage Corporation as servicer, CRIIMI MAE Services Limited Partnership as
special servicer, LaSalle National Bank as trustee and ABN AMRO Bank N.V. as
fiscal agent, (d) the Mortgage Loan Purchase Agreement, dated as of October 18,
1996 (the "Mortgage Loan Purchase Agreement"), between the Company as purchaser
and Xxxxxx Brothers Holdings Inc., doing business as Xxxxxx Capital, A Division
of Xxxxxx Brothers Holdings Inc., as seller, or (e) any other document or
certificate delivered by or on behalf of the Company prior hereto or on the date
hereof in connection with the transactions contemplated in the Mortgage Loan
Purchase Agreement, the Underwriting Agreement, the Certificate Purchase
Agreement and the Trust Agreement (collectively, the "Agreements") was, at the
respective times of such signing and delivery, and is as of the date hereof,
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.
5. There are no actions, suits or proceedings pending or, to the best
of my knowledge, threatened, against or affecting the Company which if adversely
determined, individually or in the aggregate, would materially and adversely
affect the Company's ability to perform its obligations under any of the
Agreements.
6. Attached hereto is a true, complete and correct copy of the
resolutions duly adopted by the board of directors of the Company with respect
to the transactions contemplated in the Agreements, and such resolutions have
not been amended, modified, annulled or revoked since the date thereof and are
in full force and effect on the date hereof.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: October 30, 1996
________________________________
Name:
Title:
I, _____________, a _____________ of the Company, hereby certify that
______________ is a duly elected or appointed, qualified and acting of the
Company, and that the signature appearing above is his genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: October 30, 1996
________________________________
Name:
Title:
