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Exhibit 99.2
XXXXXXX XXXXXXXX MORTGAGE SECURITIES VII, INC.
$840,752,000
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-C1
CLASS A-1, CLASS A-2, CLASS A-3,
CLASS B, CLASS C, CLASS D AND CLASS E
UNDERWRITING AGREEMENT
as of July 25, 2001
Xxxxxxx Xxxxx Xxxxxx Inc. X.X. Xxxxxx Securities Inc.
000 Xxxxxxxxx Xxxxxx 000 Xxxx Xxxxxx
00xx Xxxxx 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx Attention: Xxxxx X. Xxxxx
First Union Securities, Inc. UBS Warburg LLC
000 Xxxxx Xxxxx Xxxxxx 0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx Attention: Xxxxx Xxxxx
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Ladies and Gentlemen:
Salomon Brothers Mortgage Securities VII, Inc., a Delaware corporation
("SBMS"), proposes to sell to Xxxxxxx Xxxxx Xxxxxx Inc. ("SSBI"), Greenwich
Capital Markets, Inc. ("Greenwich Capital"), X.X. Xxxxxx Securities Inc. ("X.X.
Xxxxxx"), UBS Warburg LLC ("UBSW") and First Union Securities, Inc. ("First
Union; and, collectively with SSBI, Greenwich Capital, X.X. Xxxxxx and UBSW, the
"Underwriters"), pursuant to this Underwriting Agreement (this "Agreement"), the
classes of Commercial Mortgage Pass-Through Certificates, Series 2001-C1 that
are identified on Schedule I hereto (collectively, the "Registered
Certificates"), each having the initial aggregate stated principal amount (the
initial "Class Principal Balance") set forth on Schedule I. The Registered
Certificates, together with the Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P, Class R, Class X-1, Class X-2 and Class Y
Certificates (collectively, the "Private Certificates"; and, collectively with
the Registered Certificates, the "Certificates"), evidence the entire beneficial
ownership interest in the assets of a trust to be created by SBMS (such trust,
the "Trust"; and such assets collectively, the "Trust Fund"). The Trust Fund
consists primarily of a pool (the "Mortgage Pool") of multifamily and commercial
mortgage loans (the "Mortgage Loans") that will have, as of their respective due
dates in July 2001 (individually, on a loan-by-loan basis, and collectively, the
"Cut-off Date"), after taking into account all payments of principal due on the
Mortgage Loans on or before the Cut-off Date, whether or not received, an
aggregate principal
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balance of approximately $952,694,296 (subject to a variance of plus or minus
5.0%).
Certain of the Mortgage Loans will be acquired by SBMS from Salomon
Brothers Realty Corp. ("SBRC"; and such Mortgage Loans, the "SBRC Mortgage
Loans"), pursuant to a mortgage loan purchase agreement, dated as of the date
hereof (the "SBRC/SBMS Mortgage Loan Purchase Agreement"), between SBRC, as
mortgage loan seller, and SBMS, as purchaser. Certain of the Mortgage Loans will
be acquired by SBMS from Greenwich Capital Financial Products, Inc. ("GCFP"; and
such Mortgage Loans, the "GCFP Mortgage Loans"), pursuant to a mortgage loan
purchase agreement, dated as of the date hereof (the "GCFP/SBMS Mortgage Loan
Purchase Agreement"), between GCFP, as mortgage loan seller, and SBMS, as
purchaser. Certain of the Mortgage Loans will be acquired by SBMS from Artesia
Mortgage Capital Corporation ("AMCC"; and such Mortgage Loans, the "AMCC
Mortgage Loans"), pursuant to a mortgage loan purchase agreement, dated as of
the date hereof (the "AMCC/SBMS Mortgage Loan Purchase Agreement"), between
AMCC, as mortgage loan seller, and SBMS, as purchaser. SBRC, GCFP and AMCC are,
collectively, the "Mortgage Loan Sellers"; and the SBRC/SBMS Mortgage Loan
Purchase Agreement, the GCFP/SBMS Mortgage Loan Purchase Agreement and the
AMCC/SBMS Mortgage Loan Purchase Agreement are, collectively, the "Mortgage Loan
Purchase Agreements".
The Trust is to be created and the Certificates are to be issued under a
pooling and servicing agreement, dated as of July 1, 2000 (the "Pooling and
Servicing Agreement"), among SBMS as depositor, Midland Loan Services, Inc., as
master servicer (the "Master Servicer"), ORIX Real Estate Capital Markets, LLC,
as special servicer (the "Special Servicer"), Xxxxx Fargo Bank Minnesota, N.A.,
as trustee (the "Trustee") and The Chase Manhattan Bank, as certificate
administrator (in such capacity, the "Certificate Administrator") and as tax
administrator (in such capacity, the "Tax Administrator"). Capitalized terms
used but not defined herein have the respective meanings assigned thereto in the
Pooling and Servicing Agreement.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS. SBMS represents and
warrants to, and covenants with, each of the Underwriters that:
(a) A registration statement (File No. 333-63752) on Form S-3 has
been filed with the Securities and Exchange Commission (the "Commission"), and
has become effective under the Securities Act of 1933, as amended (the
"Securities Act"); such registration statement includes a prospectus which, as
supplemented, shall be, and may include a preliminary prospectus supplement
which, as completed, is proposed to be, used in connection with the sale of the
Registered Certificates. Such registration statement, as amended to the date of
this Agreement, is hereinafter referred to as the "Registration Statement"; such
prospectus (which shall be in the form in which it has most recently been filed,
as the same is proposed to be added to or changed), as first supplemented by a
prospectus supplement relating to the Registered Certificates, filed, or
transmitted for filing, with the Commission pursuant to Rule 424(b) under the
Securities Act and used in connection with the sale of the Registered
Certificates, is hereinafter referred to as the "Base Prospectus"; such
prospectus supplement is hereinafter referred to as the "Prospectus Supplement";
and the Base Prospectus and the Prospectus Supplement are collectively referred
to as the "Prospectus". Any preliminary form of Prospectus that has heretofore
been filed pursuant to Rule 424 hereinafter is called the "Preliminary
Prospectus". Any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement or the Prospectus shall
be
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deemed to refer to and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), deemed to be incorporated
by reference therein after the date hereof. SBMS will file with the Commission
(i) within fifteen (15) days of the issuance of the Certificates a current
report on Form 8-K (a "Current Report") for purposes of filing the Pooling and
Servicing Agreement and other material contracts and (ii) in the time period
specified in Section 5(e) hereof, a Current Report for purposes of filing
certain Computational Materials and ABS Term Sheets as described in Section 5(e)
hereof.
(b) The Registration Statement, as of the date it became effective,
and the Prospectus, as of the date of the Prospectus Supplement, and any
revisions or amendments thereof or supplements thereto filed prior to the
termination of the offering of the Registered Certificates, as of their
respective effective or issue dates, conformed or will conform, as applicable,
in all material respects to the requirements of the Securities Act and the rules
and regulations of the Commission thereunder applicable to the use of such
documents as of such respective dates, and the Registration Statement and the
Prospectus, as revised, amended or supplemented as of the Closing Date (as
defined in Section 3), will conform in all material respects to the requirements
of the Securities Act and the rules and regulations of the Commission thereunder
applicable to the use of such documents as of the Closing Date; and no such
document, as of such respective dates and, in the case of the Prospectus and any
revisions or amendments thereof or supplements thereto filed prior to the
Closing Date, as of the Closing Date, included or will include any untrue
statement of a material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that SBMS does not make any representations, warranties or
agreements as to (A) the information contained in or omitted from the Prospectus
or any revision or amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing by or on behalf of the
Underwriters specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto, (B) any
information in any Computational Materials and ABS Term Sheets (each as defined
in Section 9) provided by the Underwriters to prospective investors in
connection with the sale of the Registered Certificates, or (C) the statements
in or the omissions from the Registration Statement, the Prospectus or any
revisions or amendments thereof or supplements thereto that are excluded from
the indemnification provisions of Section 7(a) pursuant to Section 7(a)(ii).
There are no contracts or other documents relating to SBMS of a character
required to be described in or to be filed as exhibits to the Registration
Statement, as of the date of the Prospectus Supplement, which were not described
or filed as required.
(c) As of the Closing Date, the Registered Certificates and the
Private Certificates will be duly authorized by SBMS, and, when the Registered
Certificates have been duly executed and authenticated in the manner
contemplated in the Pooling and Servicing Agreement and have been delivered to
and paid for by the Underwriters pursuant to this Agreement, the Registered
Certificates will be validly issued and outstanding and entitled to the benefits
provided by the Pooling and Servicing Agreement.
(d) Xxxxxx Xxxxxxxx ("Xxxxxx Xxxxxxxx") is an independent public
accountant with respect to SBMS as required by the Securities Act and the rules
and regulations thereunder.
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(e) As of the Closing Date, the Pooling and Servicing Agreement and
each Mortgage Loan Purchase Agreement will have been duly authorized, executed
and delivered by SBMS and, assuming the valid authorization, execution and
delivery thereof by the other parties thereto, will constitute a valid and
binding agreement of SBMS enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization or
other laws relating to or affecting the enforcement of creditors' rights and by
general principles of equity.
(f) This Agreement has been duly authorized, executed and delivered
by SBMS.
(g) SBMS has been duly organized 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 its properties and conduct its business as
described in the Prospectus.
(h) The issuance and sale of the Registered Certificates to the
Underwriters pursuant to this Agreement, the compliance by SBMS with the other
provisions of this Agreement, the Mortgage Loan Purchase Agreements, the Pooling
and Servicing Agreement and the Registered Certificates and the consummation by
SBMS of the other transactions herein or therein contemplated do not, under any
statute, regulation or rule of general applicability in the United States or any
decision, order, decree or judgment of any judicial or other governmental body
specifically applicable to SBMS, require any consent, approval, authorization,
order, registration or qualification of or with any court or governmental
authority, except (A) such as have been obtained or effected with respect to the
Registered Certificates under the Securities Act, (B) the recordation of the
assignments of the Mortgage Loans to the Trustee, which recordation is to be
completed pursuant to the Pooling and Servicing Agreement on or following the
Closing Date and (C) such other approvals as have been obtained; provided that
SBMS makes no representations or warranties as to any consent, approval,
authorization, registration or qualification that may be required under state
securities or "blue sky" laws.
(i) Neither the execution and delivery of this Agreement, the
Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement, nor
the issuance and delivery of the Registered Certificates, nor the consummation
by SBMS of any other of the transactions contemplated herein or therein, nor the
fulfillment by SBMS of the terms of this Agreement, the Mortgage Loan Purchase
Agreements and the Pooling and Servicing Agreement, will conflict with, violate,
result in a breach of or constitute a default under the certificate of
incorporation or by-laws of SBMS, any statute or regulation currently applicable
to SBMS, or any order currently applicable to SBMS of any court, regulatory
body, administrative agency or governmental body having jurisdiction over SBMS,
or the terms of any indenture or other agreement or instrument to which SBMS is
a party or by which it or any of its properties are bound.
(j) There are no actions or proceedings against, or investigations
of, SBMS pending, or, to the knowledge of SBMS, threatened, before any court,
administrative agency or other tribunal (A) asserting the invalidity of this
Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing
Agreement or the Registered Certificates, (B) seeking to prevent the issuance of
the Registered Certificates or the consummation by SBMS of any of the
transactions contemplated by this Agreement, the Mortgage Loan Purchase
Agreements or the Pooling and Servicing Agreement, (C) that might materially and
adversely affect the performance by SBMS of its obligations under, or
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the validity or enforceability against SBMS of, this Agreement, the Mortgage
Loan Purchase Agreements, the Pooling and Servicing Agreement or the Registered
Certificates or (D) seeking to affect adversely the federal income tax
attributes of the Registered Certificates described in the Prospectus.
(k) SBMS is not aware of (i) any request by the Commission for any
further amendment of the Registration Statement or the Prospectus or for any
additional information, (ii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose or (iii) any notification with
respect to the suspension of the qualification of the Registered Certificates
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(l) Any taxes, fees and other governmental charges (other than
income taxes, franchise taxes and recording and filing fees) that are due and
payable by SBMS as of the Closing Date in connection with the execution,
delivery and performance of this Agreement, the Mortgage Loan Purchase
Agreements, the Pooling and Servicing Agreement and the Registered Certificates,
will have been paid at or prior to the Closing Date.
(m) SBMS is not, and the issuance and sale of the Registered
Certificates in the manner contemplated by the Prospectus will not cause SBMS to
be, subject to registration or regulation as an investment company or affiliate
of an investment company under the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(n) The transfer of the Mortgage Loans to the Trust and the sale of
the Certificates to each of the Underwriters, at the Closing Date, will be
treated by SBMS for financial accounting and reporting purposes as a sale of
assets and not as a pledge of assets to secure debt.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance on the representations and warranties herein set forth, SBMS agrees to
sell to each of the Underwriters, and each of the Underwriters, severally and
not jointly, agrees to purchase from SBMS, their respective portions of the
Class Principal Balance of each class of Registered Certificates specified on
Schedule I hereto, at the purchase price for each such class as set forth on
such Schedule I (the "Purchase Price").
3. DELIVERY AND PAYMENT. Delivery of and payment for the Registered
Certificates shall be made in the manner, on the date and at the time specified
in Schedule I hereto, which date and time may be changed by agreement among the
Underwriters and SBMS (such date and time of delivery of and payment for the
Registered Certificates being hereinafter referred to as the "Closing Date").
Delivery of each Underwriter's allotment of the Registered Certificates shall be
made to the related Underwriter against payment by such Underwriter of the
purchase price therefor to or upon the order of SBMS in same-day funds by
federal funds wire (or by such other method as such Underwriter and SBMS may
agree). Unless delivery is made through the facilities of The Depository Trust
Company, the Registered Certificates of each class thereof shall be registered
in such names and in such authorized denominations as the related Underwriter
may have requested not less than three (3) full business days prior to the
Closing Date.
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SBMS agrees to have the Registered Certificates available for
inspection, checking and packaging in New York, New York, at any time before
3:00 p.m. New York City time on the business day prior to the Closing Date.
4. OFFERING BY THE UNDERWRITERS. It is understood that the
Underwriters propose to offer the Registered Certificates for sale as set forth
in the Prospectus. It is further understood that SBMS, in reliance upon Policy
Statement 105, has not filed and will not file an offering statement pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Registered Certificates. As required by Policy Statement 105, each
Underwriter therefore covenants and agrees with SBMS that sales of the
Registered Certificates made by such Underwriter in and from the State of New
York will be made only to institutional investors within the meaning of Policy
Statement 105.
5. AGREEMENTS. SBMS and the Underwriters mutually agree that:
(a) SBMS will not file any supplement to the Prospectus relating to
or affecting the Registered Certificates at any time, except as contemplated by
Section 5(e) or unless SBMS has furnished a copy to the Underwriters for their
review prior to filing, and will not file any such proposed supplement to which
the Underwriters reasonably object. SBMS will not file any amendment to the
Registration Statement relating to or affecting the Registered Certificates at
any time subsequent to the date hereof and prior to the Closing Date, except as
contemplated by Section 5(e) or unless SBMS has furnished a copy to SSBI for its
review prior to filing, and will not file any such proposed amendment to which
SSBI reasonably objects. Subject to the foregoing sentences, SBMS will cause the
Prospectus to be filed, or transmitted for filing, with the Commission pursuant
to Rule 424(b) under the Securities Act and will promptly advise each
Underwriter when the Prospectus has been so filed, or transmitted for filing,
and, prior to the termination of the offering of the Registered Certificates,
will also promptly advise each Underwriter (i) when any amendment to the
Registration Statement relating to the Registered Certificates has become
effective or any revision of or supplement to the Prospectus has been so filed
or transmitted for filing, (ii) of any request by the Commission for any
amendment of the Registration Statement or the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt by SBMS
of any notification with respect to the suspension of the qualification of the
Registered Certificates for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. SBMS will use its best efforts
to prevent the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act, (i) any event
occurs as a result of which the Prospectus, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (ii) it shall be
necessary to revise, amend or supplement the Prospectus to comply with the
Securities Act or the rules and regulations of the Commission thereunder, SBMS
promptly will prepare and file with the Commission, subject to paragraph (a) of
this Section 5, a revision, amendment or supplement that will correct such
statement or omission or effect such compliance.
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(c) Upon request, so long as delivery of a prospectus relating to
the Registered Certificates is required under the Securities Act, SBMS will
furnish to any Underwriter and counsel for such Underwriter, without charge, as
many copies of the Prospectus and any revisions or amendments thereof or
supplements thereto as may be reasonably requested.
(d) SBMS will use its best efforts to arrange for the qualification
of the Registered Certificates for sale under the laws of such jurisdictions as
SSBI may designate, to maintain such qualifications in effect so long as
required for the distribution of the Registered Certificates and to arrange for
the determination of the legality of the Registered Certificates for purchase by
institutional investors; provided, however, that SBMS shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(e) SBMS will cause or, if appropriate, has caused any Computational
Materials and ABS Term Sheets (each as defined in Section 9) with respect to the
Registered Certificates, which are or have been delivered by the Underwriters to
SBMS pursuant to or as contemplated by Section 9, to be filed with the
Commission on a Current Report pursuant to Rule 13a-11 under the Exchange Act
not later than, in each such case, the business day immediately following the
later of (i) the day on which such Computational Materials or ABS Term Sheets
are delivered to counsel for SBMS by the Underwriters (it being understood that
any such material that is delivered after 10:30 a.m., New York City time, on a
business day shall be deemed to have been delivered on the next business day)
and (ii) the date hereof; and, if such filing is subsequent to the date hereof,
SBMS will promptly advise the Underwriters when each such Current Report has
been so filed. If any Collateral Term Sheet (as defined in Section 9) is
provided by any Underwriter to potential investors in the Registered
Certificates, SBMS will cause each such Collateral Term Sheet that is delivered
by such Underwriter to SBMS to be filed with the Commission on a Current Report
pursuant to Rule 13a-11 under the Exchange Act on the business day immediately
following the day on which such Collateral Term Sheet is delivered to counsel
for SBMS by such Underwriter (it being understood that any such material that is
delivered after 10:30 a.m., New York City time, on a business day shall be
deemed to have been delivered on the next business day). Each such Current
Report shall be incorporated by reference in the Prospectus and the Registration
Statement. Notwithstanding the foregoing, SBMS shall have no obligation to file
materials provided by the Underwriters pursuant to or as contemplated by Section
9 which, in the reasonable determination of SBMS after making reasonable efforts
to consult with the Underwriters, are not required to be filed pursuant to the
No-Action Letters (as defined in Section 9), or which contain erroneous
information or contain any untrue statement of a material fact, or which, when
read in conjunction with the Prospectus, omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
it being understood, however, that SBMS shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any Computational
Materials or ABS Term Sheets provided by the Underwriters to SBMS pursuant to or
as contemplated by Section 9 hereof.
(f) The purchase of the Certificates by each of the Underwriters, at
the Closing Date, will be treated by each Underwriter for financial accounting
and reporting purposes as a sale of the Certificates by SMBS and not as a pledge
of the Certificates to secure a debt. The Underwriters agree to sell the
Registered Certificates only to purchasers other than SBMS, the Mortgage Loan
Sellers and their respective affiliates.
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(g) SBMS will make generally available to holders of the Registered
Certificates as soon as practicable, but in any event not later than eighteen
months after the filing of the Prospectus pursuant to Rule 424(b) under the
Securities Act, an earnings statement (which need not be audited) with respect
to the Mortgage Pool as contemplated by Section 11(a) of the Securities Act),
which pursuant to Rule 158 under the Securities Act may be the annual report
filed with the Commission with respect to the Trust.
6. CONDITIONS TO THE OBLIGATIONS OF EACH UNDERWRITER AND SBMS. The
obligation of each Underwriter to purchase from SBMS, and the obligation of SBMS
to sell to such Underwriter, its allotment of the Registered Certificates shall
be subject to the accuracy of the representations and warranties on the part of
SBMS and such Underwriter contained herein as of the date hereof and as of the
Closing Date, to the accuracy of the statements of SBMS and such Underwriter
made in any officer's certificate delivered pursuant to the provisions hereof,
to the performance by SBMS and such Underwriter of their respective obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted and be pending or shall have been threatened.
(b) SBMS shall have furnished to the Underwriters:
(i) An executed copy of the Pooling and Servicing Agreement;
(ii) An opinion of Xxxxxx Xxxxxx Xxxxx & Xxxx, in its
capacity as counsel for SBMS, dated the Closing Date, substantially to
the effect that:
(A) SBMS is validly existing as a corporation in
good standing under the laws of the State of Delaware, with
corporate power and authority under such laws to enter into and
perform its obligations under this Agreement, the Mortgage Loan
Purchase Agreements and the Pooling and Servicing Agreement;
(B) The Registered Certificates and the Private
Certificates have been duly authorized by SBMS and, when the
Certificates have been duly executed and authenticated in the
manner contemplated in the Pooling and Servicing Agreement and,
(i) in the case of the Registered Certificates, have been
delivered to and paid for by the Underwriters pursuant to this
Agreement, and (ii) in the case of the Private Certificates,
have been delivered to and paid for by SSBI in accordance with
that certain Certificate Purchase Agreement, dated as of July
25, 2001, between SBMS and SSBI, the Certificates will be
validly issued and outstanding and entitled to the benefits
provided by the Pooling and Servicing Agreement;
(C) The Pooling and Servicing Agreement and each of
the Mortgage Loan Purchase Agreements has been duly authorized,
executed and delivered by SBMS and, upon the due authorization,
execution and delivery by the other parties thereto, will
constitute a valid, legal and binding agreement of SBMS,
enforceable against
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SBMS in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, moratorium, reorganization
or other similar laws relating to or affecting the enforcement
of creditors' rights generally, by general principles of equity,
whether enforcement is sought in a proceeding in equity or at
law, by public policy considerations underlying the securities
laws, to the extent that such public policy considerations limit
the enforceability of the provisions of the Pooling and
Servicing Agreement that purport or are construed to provide
indemnification for securities laws liabilities, and by such
other exceptions as the Underwriters shall reasonably agree;
(D) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939,
as amended, and the Trust is not required to be registered under
the Investment Company Act;
(E) The Registration Statement has become effective
under the Securities Act, and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted and are pending or have been
threatened under the Securities Act;
(F) The Registration Statement, at the time it
became effective, and the Prospectus, as of the date of the
Prospectus Supplement, and each revision or amendment thereof or
supplement thereto relating to the Registered Certificates, as
of its effective or issue date (except in each case for
accounting, financial and statistical statements included
therein or omitted therefrom and for Computational Materials and
ABS Term Sheets, as to which such counsel has not been requested
to comment), appeared on their respective faces to be
appropriately responsive in all material respects to the
requirements of the Securities Act and the rules and regulations
of the Commission thereunder applicable to such documents as of
such respective dates; and the Prospectus, as revised, amended
or supplemented as of the date hereof (except for accounting,
financial and statistical statements included therein or omitted
therefrom, as to which such counsel has not been requested to
comment), conforms in all material respects to the requirements
of the Securities Act and the rules and regulations of the
Commission thereunder applicable to use of the Prospectus (as so
revised, amended or supplemented) as of the date hereof;
(G) No consent, approval, authorization or order of
any federal or State of New York court or agency or other
governmental body is required for the consummation by SBMS of
the transactions contemplated by the terms of this Agreement,
the Mortgage Loan Purchase Agreements or the Pooling and
Servicing Agreement, except such as may be required under the
securities or "blue sky" laws of any state in connection with
the purchase and the offer and sale of the Registered
Certificates by the Underwriters as to which such counsel need
not express any opinion, and except such as have been obtained;
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(H) The execution, delivery and performance by SBMS
of the terms of this Agreement, the Mortgage Loan Purchase
Agreements or the Pooling and Servicing Agreement will not
violate or result in a breach of any term or provision of the
certificate of incorporation or by-laws of SBMS or any federal
or State of New York statute or regulation of general
applicability to transactions of the type contemplated by those
documents, except such counsel need express no opinion as to
compliance with the securities laws of New York and other
particular States in connection with the purchase and sale of
the Registered Certificates by the Underwriters;
(I) Such counsel does not know, having made no
independent investigation, of any contracts or other documents
relating to SBMS of a character required to be described in or
to be filed as exhibits to the Registration Statement, as of the
date of the Prospectus Supplement, that were not described or
filed as required;
(J) This Agreement has been duly authorized,
executed and delivered by SBMS;
(K) The statements in each of the Base Prospectus
and the Prospectus Supplement under the headings "ERISA
Considerations", "Federal Income Tax Consequences" and "Legal
Investment", to the extent that they describe certain matters of
federal law or legal conclusions with respect thereto, while not
discussing all possible consequences of an investment in the
Registered Certificates to all investors, provide in all
material respects an accurate summary of such matters and
conclusions set forth under such headings;
(L) As described in the Prospectus Supplement and
assuming compliance with the provisions of the Pooling and
Servicing Agreement, (1) REMIC I will qualify as a REMIC within
the meaning of Sections 860A through 860G (the "REMIC
Provisions") of the Internal Revenue Code of 1986, and the REMIC
I Regular Interests will be "regular interests" and the REMIC I
Residual Interest will be the sole class of "residual interests"
in REMIC I (as both terms are defined in the REMIC Provisions in
effect on the Closing Date), (2) REMIC II will qualify as a
REMIC within the meaning of the REMIC Provisions, and the REMIC
II Regular Interests will be "regular interests" and the REMIC
II Residual Interest will be the sole class of "residual
interests" in REMIC II and (3) REMIC III will qualify as a REMIC
within the meaning of the REMIC Provisions, and the Class A-1,
Class A-2, Class A-3, Class X-1, Class X-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N and Class P Certificates will be
"regular interests" and the REMIC III Residual Interest will be
the sole class of "residual interests" in REMIC III;
(M) Assuming compliance with the provisions of the
Pooling and Servicing Agreement, for City and State of New York
income and corporation franchise tax purposes, REMIC I, REMIC II
and REMIC III will each be classified as a REMIC and not as a
corporation, partnership or trust, in conformity with the
federal income tax treatment of REMIC I, REMIC II and REMIC III.
Accordingly, the Trust Fund
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will be exempt from all City and State of New York taxation
imposed on its income, franchise or capital stock, and its
assets will not be included in the calculation of any franchise
tax liability;
(N) The portions of the Trust Fund consisting of
Grantor Trust Y and Grantor Trust R, respectively, will each be
classified as a grantor trust under Subpart E, Part I of
Subchapter J of the Code; and
(O) The statements set forth in the Prospectus
Supplement under the headings "Description of the Offered
Certificates" and "Servicing of the Underlying Mortgage Loans"
and in the Prospectus under the headings "Description of the
Certificates" and "Description of the Governing Documents",
insofar as such statements purport to summarize certain material
provisions of the Registered Certificates and the Pooling and
Servicing Agreement, provide in all material respects an
accurate summary of such provisions.
In giving such opinions, Xxxxxx Xxxxxx Xxxxx & Xxxx shall additionally
state that, based on conferences and telephone conversations with
representatives of the Mortgage Loan Sellers, the Underwriters, SBMS, the
Trustee, the Certificate Administrator, the Tax Administrator, the Master
Servicer, the Special Servicer and their respective counsel (but 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 counsel's attention that would lead
it to believe that the Registration Statement or the Prospectus (other than any
accounting, financial or statistical information contained in or omitted from
the Registration Statement or the Prospectus and information incorporated by
reference into the Registration Statement or the Prospectus and any information
relating to the characteristics of the Mortgage Loans and the related borrowers
and mortgaged properties, all as to which such counsel has not been requested to
comment), at the date of effectiveness of the Registration Statement (in the
case of the Registration Statement) or at the date of the Prospectus Supplement
or at the Closing Date (in the case of the Prospectus Supplement), 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.
Such opinion 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, the Mortgage Loan Purchase Agreements and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such opinion may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than SBMS. Such
opinion need cover only the laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal law of the United
States;
(iii) The Underwriters shall have received copies of all legal
opinion letters delivered to the Rating Agencies by Xxxxxx Xxxxxx Xxxxx
& Xxxx, in its capacity as counsel to SBMS, in connection with the
issuance of the Registered Certificates, accompanied in each
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case by a letter signed by Xxxxxx Xxxxxx Xxxxx & Xxxx stating that the
Underwriters may rely on such opinion letter as if it were addressed to
the Underwriters as of the date thereof;
(iv) Good standing certificates regarding SBMS, each of the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer and the
Trustee from the Secretary of State (or other appropriate authority) of
the jurisdiction under which each such entity has been formed, dated not
earlier than 30 days prior to the Closing Date;
(v) Certificates of SBMS, each of the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer, the Certificate
Administrator, the Tax Administrator and the Trustee, each dated the
Closing Date and signed by an executive officer or authorized signatory
of such party, to the effect that the representations and warranties of
such party herein, in the Mortgage Loan Purchase Agreements and/or in
the Pooling and Servicing Agreement, as applicable, are true and correct
in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and, in the case of SBMS and each
Mortgage Loan Seller, to the effect that SBMS or the particular Mortgage
Loan Seller, as the case may be, has complied in all material respects
with all agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date; and
(vi) Officer's certificates, dated the Closing Date and
signed by the secretary or an assistant secretary of SBMS, each of the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer, the
Certificate Administrator, the Tax Administrator and the Trustee, to the
effect that each individual who, as an officer or representative of such
party, signed this Agreement, any of the Mortgage Loan Purchase
Agreements, the Pooling and Servicing Agreement or any other document or
certificate delivered on or before the Closing Date in connection with
the transactions contemplated herein, in the Mortgage Loan Purchase
Agreements or in the Pooling and Servicing Agreement, was at the
respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures. Such
certificate shall be accompanied by true and complete copies (certified
as such by the secretary or an assistant secretary of such party) of the
organizational documents of such party, as in effect on the Closing
Date, and of the resolutions of such party and any required shareholder,
member or partner consent relating to the transactions contemplated in
this Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling
and Servicing Agreement, as applicable.
(c) The Underwriters shall have received, with respect to each of
the Mortgage Loan Sellers, the Master Servicer, the Special Servicer, the
Certificate Administrator, the Tax Administrator and the Trustee, a favorable
opinion of counsel, dated the Closing Date, addressing the valid existence and
good standing of such party under the laws of the jurisdiction of its
organization, the due authorization, execution and delivery of, as applicable,
the Pooling and Servicing Agreement, the related Mortgage Loan Purchase
Agreement and/or the related Indemnification Agreement (as defined in Section
7(a)) by such party and, subject to the same limitations as set forth in Section
6(b)(ii)(C), the enforceability of, as applicable, the Pooling and Servicing
Agreement and the related Mortgage Loan Purchase Agreement against such party.
Such opinion may express its reliance as to factual matters on representations
and warranties made by, and
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on certificates or other documents furnished by officers and/or authorized
representatives of parties to the Pooling and Servicing Agreement, the related
Mortgage Loan Purchase Agreement and the related Indemnification Agreement and
on certificates furnished by public officials. Such opinion 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 need cover only the laws of the
jurisdiction in which the party on whose behalf such opinion is being rendered
is organized, the laws of the State of New York and the federal law of the
United States.
(d) SBMS and the Underwriters shall have received from Xxxxxx
Xxxxxxxx, certified public accountants, various comfort letters, dated, as
applicable, the date of the Preliminary Prospectus, the date of the Prospectus
Supplement or such other date acceptable to SBMS and the Underwriters, in form
and substance reasonably satisfactory to SBMS and the Underwriters, stating in
effect that:
(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 caption "Description of the Mortgage Pool" and on
Annex A thereto agrees with the data sheet or computer tape prepared by
the Mortgage Loan Sellers, unless otherwise noted in such letter(s); 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, unless otherwise noted in
such letter.
(e) SBMS and the Underwriters shall have received from Xxxxxx
Xxxxxxxx, certified public accountants, a letter dated on or about the Closing
Date, in form and substance reasonably satisfactory to SBMS and the
Underwriters, to the effect that they have performed certain specified
procedures, all of which have been agreed to by SBMS and the Underwriters, as a
result of which they confirmed the information of an accounting, financial or
statistical nature included in the Prospectus Supplement under the caption
"Yield and Maturity Considerations" and Annex B thereto.
(f) Each Underwriter shall have delivered to SBMS and to the other
Underwriters an officer's certificate (i) stating that attached thereto are all
of the information, tables, charts and other items that constitute Computational
Materials or ABS Term Sheets prepared by such Underwriter that are required to
be filed with the Commission pursuant to the terms of the No-Action Letters (as
defined in Section 9) and stating that such Underwriter has otherwise complied
with the terms of the No-Action Letters and (ii) representing that, 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
Closing Date.
(g) Xxxxxx Xxxxxxxx shall have furnished to SBMS and each
Underwriter a letter or letters, each in form and substance satisfactory to
SBMS, relating to the Computational Materials and
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ABS Terms Sheets of such Underwriter filed in accordance with Section 5(e),
dated the date of the related Current Report and stating in effect that:
(i) Using the assumptions and methodology used by such
Underwriter, all of which shall be described by reference in the letter,
they have recalculated the numerical data and dates set forth in such
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;
(ii) If such Computational Materials and ABS Term Sheets
include data reflecting the distribution of interest at other than a
fixed rate, or reflecting other characteristics that 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 Xxxxxx Xxxxxxxx in such letter with respect to such data; and
(iii) 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 such
Computational Materials and ABS Term Sheets agrees with the data sheet
or computer tape prepared by each Mortgage Loan Seller, unless otherwise
indicated in such letter.
(h) The Underwriters shall have received an opinion of counsel,
dated the Closing Date, from counsel to the Underwriters, in form and substance
reasonably satisfactory to them.
(i) SBMS and the Underwriters shall have received an opinion of
counsel, dated the Closing Date, from counsel for each Mortgage Loan Seller,
stating that, based on conferences and telephone conversations with
representatives of such Mortgage Loan Seller, the Underwriters, SBMS, the
Trustee, the Master Servicer, the Special Servicer and their respective counsel,
and further based on a review of certain legal documents relating to a select
group of the Mortgage Loans being sold by that Mortgage Loan Seller and a
compilation of the information in the loan summaries prepared by such Mortgage
Loan Seller for all of such Mortgage Loans (but otherwise 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),
nothing has come to such counsel's attention that would lead it to believe that
the statements in the Prospectus relating to the description of the Mortgage
Loans being sold by that Mortgage Loan Seller (except for any accounting,
financial or statistical information contained in or omitted from the Prospectus
and information incorporated by reference into the Prospectus, all 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.
(j) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of SBMS that
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SSBI concludes, in its opinion after consultation with SBMS, materially impairs
the investment quality of the Registered Certificates so as to make it
impractical or inadvisable to proceed with the public offering or the delivery
of the Registered Certificates as contemplated by the Prospectus.
(k) The Registered Certificates shall have been assigned ratings no
less than those set forth on Schedule I and such ratings shall not have been
rescinded or qualified.
7. INDEMNIFICATION AND CONTRIBUTION. (a) Subject to Section 7(c),
SBMS agrees to indemnify and hold harmless each Underwriter and each person who
controls such Underwriter within the meaning of either the Securities Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which it or any of them may become subject under the Securities
Act, the Exchange Act, or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
revision or amendment thereof or supplement thereto, or in any other filing
incorporated by reference therein, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by it or him in connection with investigating or defending any such
loss, claim, damage, liability or action; provided that SBMS shall not be liable
under the indemnity agreement in this subsection (a) to the extent that any such
loss, claim, damage or liability (or action in respect thereof) arises out of or
is based upon: (i) any such untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in any
Preliminary Prospectus, the Prospectus or any revision or amendment thereof or
supplement thereto that was made in reliance upon and in conformity with written
information furnished to SBMS by or on behalf of any Underwriter specifically
for use in connection with the preparation thereof; (ii) any such untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any revision or amendment thereof or supplement
thereto that (A) arose out of or was based upon an untrue statement, omission or
other inaccuracy with respect to the Mortgage Loan Seller Matters (as defined
below) contained in the Master Tape (also as defined below) (it being
acknowledged that the Master Tape has been used to prepare the Prospectus
Supplement and any Computational Materials and ABS Term Sheets (each as defined
in Section 9) with respect to the Registered Certificates), (B) was made in
reliance upon and conformity with (1) any of the representations and warranties
made by a Mortgage Loan Seller contained in the related Indemnification
Agreement (as defined below) or the related Mortgage Loan Purchase Agreement, or
(2) any other information regarding the Mortgage Loan Seller Matters furnished
by a Mortgage Loan Seller, electronically or in writing, to the Depositor or any
Underwriter in connection with the preparation of any Preliminary Prospectus,
the Prospectus, any Computational Materials or ABS Term Sheets with respect to
the Registered Certificates, or any revision or amendment thereof or supplement
thereto, or (C) is contained in the information regarding the Mortgage Loan
Seller Matters set forth (1) in any Preliminary Prospectus, the Prospectus
Supplement under the headings "Summary of Prospectus Supplement--The Underlying
Mortgage Loans and the Mortgaged Real Properties", "Risk Factors-Risks Related
to the Underlying Mortgage Loans" and/or "Description of the Mortgage Pool"
(provided that SBMS shall be liable to the extent that any such
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loss, claim, damage, liability or action arises out of or is based upon an error
in the manipulation of, or any calculations based upon, or any aggregation
(other than an aggregation made in the Master Tape by a Mortgage Loan Seller) of
information concerning the Mortgage Loan Seller Matters), (2) on Annex A to any
Preliminary Prospectus or the Prospectus Supplement or (3) on the diskette
accompanying any Preliminary Prospectus or the Prospectus Supplement; (iii) any
such untrue statement or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact that was made in any Computational
Materials or ABS Term Sheets provided by any Underwriter to prospective
investors in connection with the sale of the Registered Certificates and
incorporated by reference into the Registration Statement, any Preliminary
Prospectus or the Prospectus as a result of any filing pursuant to Section 5(e);
or (iv) any breach, inaccuracy or untruth of any of the statements,
representations, warranties and/or covenants made by any Underwriter pursuant to
Section 6(f) and/or Section 9(b); and provided, further, that SBMS shall not be
liable to any particular Underwriter or any person controlling such Underwriter
under the indemnity agreement in this subsection (a) for any such loss, claim,
damage or liability (or action in respect thereof) that arises out of or is
based upon any such untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in any Preliminary
Prospectus to the extent that such loss, claim, damage or liability (or action
in respect thereof) results from the fact that such Underwriter sold Registered
Certificates to a person as to whom there was not sent or given, at or prior to
the confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated therein by reference) and such untrue statement had been corrected
in the Prospectus. This indemnity agreement will be in addition to any liability
that SBMS may otherwise have.
The "Mortgage Loan Seller Matters" consist of the following matters: the
Mortgage Loans and the underlying real properties securing the Mortgage Loans;
the related loan documents and the obligors thereunder; and the Mortgage Loan
Sellers.
The "Master Tape" is the compilation of underlying information and data
regarding the Mortgage Loans covered by the independent accountants' report on
applying agreed upon procedures dated July 25, 2001, as supplemented to the date
of initial issuance of the Certificates, and rendered by Xxxxxx Xxxxxxxx.
The "Indemnification Agreements" consist, collectively, of (i) the
Indemnification Agreement dated the date hereof, between SBRC, SBMS and the
Underwriters, (ii) the Indemnification Agreement dated the date hereof, between
GCFP, SBMS and the Underwriters and (iii) the Indemnification Agreement dated
the date hereof, between AMCC, SBMS and the Underwriters.
(b) Subject to Section 7(c), each Underwriter, severally and not
jointly, agrees to indemnify and hold harmless SBMS and each of its directors,
each of its officers who signed the Registration Statement or any amendments
thereof, and each person who controls SBMS within the meaning of either the
Securities Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which it or any of them may become subject
under the Securities Act, the Exchange Act, or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Prospectus or any revision or
amendment thereof or supplement thereto, or any omission or alleged omission to
state therein a material fact necessary to make the statements
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therein, in the light of the circumstances under which they were made, not
misleading, which untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon or conformity with written
information furnished to SBMS by or on behalf of such Underwriter, specifically
for use in connection with the preparation of any Preliminary Prospectus, the
Prospectus or any revision or amendment thereof or supplement thereto, (ii) any
untrue statement or alleged untrue statement of a material fact made in
Computational Materials or ABS Term Sheets provided by such Underwriter to
prospective investors in connection with the sale of the Registered Certificates
and incorporated by reference into the Registration Statement or Prospectus as a
result of any filing pursuant to Section 5(e), (iii) any omission or alleged
omission to state in any Computational Materials or ABS Term Sheets provided by
such Underwriter to prospective investors in connection with the sale of the
Registered Certificates and incorporated by reference into the Registration
Statement or Prospectus as a result of any filing pursuant to Section 5(e), a
material fact that, when read in conjunction with any Preliminary Prospectus
(or, if delivered on or after the date hereof or if there is no Preliminary
Prospectus, when read in conjunction with the Prospectus), is required to be
stated therein or necessary to make the statements therein not misleading and
(iv) any material breach, inaccuracy or untruth of any of the statements,
representations, warranties and/or covenants set forth in Section 6(f) and/or
Section 9(b); provided that such Underwriter shall not be liable under the
indemnity agreement in this subsection (b) for any such loss, claim, damage or
liability (or action in respect thereof) that arises out of or is based upon any
untrue statement or omission in any such Computational Materials or ABS Term
Sheets to the extent that such loss, claim, damage or liability (or action in
respect thereof) is covered by the indemnity agreement included in Section 1(a)
of any Indemnification Agreement, unless such Underwriter was notified
electronically or in writing of such untrue statement or omission prior to the
time of confirmation of sale to the person that purchased the Certificates that
are the subject of such loss, claim, damage or liability (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 the
Prospectus) prior to confirmation of such sale to such person; and provided,
further, that none of Greenwich Capital, X.X. Xxxxxx, UBSW or First Union shall
be liable under the indemnity agreement in this subsection (b) for any untrue
statement or alleged untrue statement or omission or alleged omission in any
such Computational Materials or ABS Term Sheet prepared by SSBI. This indemnity
agreement will be in addition to any liability that the Underwriters may
otherwise have. SBMS acknowledges that the statements set forth in the fourth
and fifth sentences of the paragraph beginning "Xxxxxxx Xxxxx Xxxxxx Inc.,
Greenwich Capital Markets, Inc., ..." on the cover page of the Prospectus
Supplement, the subsection entitled "Summary of Prospectus Supplement--Relevant
Parties--Underwriters" in the Prospectus Supplement, the third paragraph under
the heading "Risk Factors--Risks Related to the Offered Certificates--Potential
Conflicts of Interest" in the Prospectus Supplement and the second paragraph,
the third paragraph, the fourth paragraph, the sixth paragraph and the last
paragraph under the heading "Method of Distribution" in the Prospectus
Supplement, constitute the only information furnished in writing by or on behalf
of the Underwriters for inclusion in the Prospectus and Preliminary Prospectus
or any revision or amendment thereof or supplement thereto, and each Underwriter
confirms that such statements attributable thereto are correct.
(c) Promptly after receipt by an indemnified party under Section
7(a) or Section 7(b) above of notice of the commencement of any suit, action,
proceeding (including, without limitation,
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any governmental or regulatory investigation), claim or demand, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under Section 7(a) or Section 7(b) above, notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any liability
that it may have to any indemnified party otherwise than under Section 7(a) or
Section 7(b); provided, however, that any increase in such liability as a result
of such failure to notify shall not be an expense of the indemnifying party. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided that, if the defendants in any
such action include both the indemnified party and the indemnifying party, and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party for legal
expenses of other counsel or other expenses, in each case subsequently incurred
by such indemnified party, in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel), representing the indemnified party or parties who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time period after notice of commencement of the action
or (iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii).
Notwithstanding anything herein to the contrary, an indemnifying party
shall not be liable under Section 7(a) or Section 7(b) for any settlement of any
litigation, proceeding, action or claim effected without its consent unless (i)
at any time an indemnified party shall have requested such indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for which the
indemnifying party is obligated under Section 7(a) or Section 7(b), as
applicable, (ii) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and more than five days
after receipt by such indemnifying party of written notice of the proposed
settlement and (iii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement.
No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the
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indemnified party from all liability arising out of such action or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act, by or on behalf of the indemnified party.
(d) If the indemnification provided for in Section 7(a) or Section
7(b) above is due in accordance with its terms but is for any reason held by a
court to be unavailable to any indemnified party on grounds of public policy or
otherwise, then the indemnifying party shall contribute to the aggregate losses,
claims, damages and liabilities (including legal and other expenses reasonably
incurred in connection with investigating or defending same) to which such
indemnified party may be subject and which were intended to be covered under
such Section 7(a) or Section 7(b), as the case may be, as follows:
(i) in the case of any such losses, claims, damages or
liabilities (or actions in respect thereof) referred to in and intended
to be covered under Section 7(a) above, in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such
discount and the total purchase price of the Registered Certificates
specified in Schedule I hereto and SBMS is responsible for the balance
(or, if such allocation is not permitted by applicable law or if the
indemnified party failed to give the notice required in Section 7(c) or
in the last paragraph of this Section 7(d), in such proportion as is
appropriate to reflect not only such financial considerations but also
the factors referred to in the immediately following clause (ii));
provided, however, that in no case shall any Underwriter (except as may
be provided in any agreement among underwriters relating to the offering
of the Registered Certificates) be responsible under this clause (i) for
more than the amount, if any, by which the underwriting discounts and
fees applicable to the Registered Certificates purchased by such
Underwriter hereunder exceeds any damages otherwise paid by such
Underwriter with respect to the subject loss, claim, damage or liability
(or action in respect thereof); and
(ii) in the case of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to in and intended
to be covered under Section 7(b) above, in such proportion as is
appropriate to reflect the relative fault of SBMS on the one hand and
the Underwriters on the other in connection with the statement or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact that is the basis for such loss, claim, damage or liability results
from information prepared by SBMS on the one hand or the Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
SBMS and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by per capita
allocation which does not take account of the equitable considerations referred
to above in this subsection (d).
Notwithstanding the foregoing, however, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any
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person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls an Underwriter within the meaning of
either the Securities Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person who controls SBMS within the
meaning of either the Securities Act or the Exchange Act, each officer of SBMS
who shall have signed the Registration Statement or any amendments thereof and
each director of SBMS shall have the same rights to contribution as SBMS. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this subsection (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this subsection
(d).
(e) The Underwriters further agree as follows:
(i) Each Underwriter will indemnify and hold harmless each
of the other Underwriters against any losses, claims, damages or
liabilities to which any of those other Underwriters may become subject,
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon (1) any untrue
statements or misstatements of a material fact made in Computational
Materials or ABS Term Sheets prepared by the indemnifying Underwriter
(except when due solely to a Collateral Error, other than a Corrected
Collateral Error) or (2) the indemnifying Underwriter's failure to
comply with Section 9, and will reimburse each of the other Underwriters
for any legal or other expenses reasonably incurred by any of those
other Underwriters in connection with investigating or defending any
such action or claim as such expenses are incurred.
As used herein, "Collateral Error" shall mean any error in the
Master Tape or any other information concerning the Mortgage Loans
furnished by a Mortgage Loan Seller to any Underwriter in writing or by
electronic transmission that was used in the preparation of any
Computational Materials or ABS Term Sheets; provided that Collateral
Error shall not include an error by an Underwriter in the manipulation
of, or any calculation based upon, or any aggregation of information
concerning the Mortgage Loans. "Corrected Collateral Error" shall mean
any Collateral Error as to which the Underwriters, prior to the
dissemination of the materials from which any loss, claim, damage or
liability or action in respect thereof arose, were notified in writing
or provided in written or electronic form information superseding or
correcting such Collateral Error, including, without limitation, as part
of the Prospectus.
(ii) Promptly after receipt by an indemnified party under
clause (i) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such clause, notify the
indemnifying party in writing of the commencement thereof; but the
omission to so notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such clause; provided, however, that any increase in such
liability as a result of such failure to notify shall not be an expense
of the indemnifying party. In case any such action shall be brought
against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and may
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elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
clause (i) above for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof unless (A) the indemnified party
shall have employed separate counsel in connection with the assertion of
legal defenses in accordance with the next sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to any local
counsel) representing the indemnified party or parties who are parties
to such action), (B) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time period after notice of
commencement of the action or (C) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (A) or (C) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (A) or (C). If the defendants in any such
action include both the indemnified party and the indemnifying party,
and the indemnified party shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties which
are different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties.
An indemnifying party shall not be liable for any settlement of
any proceeding effected without its consent. If any proceeding is
settled with such consent or if there is a final judgment for the
plaintiff, however, the indemnifying party shall indemnify the
indemnified party from and against any loss, claim, damage or liability
by reason of such settlement or judgment. Notwithstanding the foregoing,
an indemnifying party shall be liable to the same extent it otherwise
would be under clause (i) above, for any settlement of any proceeding
effected without its written consent if (X) at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel for which the
indemnifying party is obligated under clause (i) above, (Y) such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (Z) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement.
No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified party is an actual
or potential party to such action or claim) unless such settlement,
compromise or judgment (A) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim
and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified
party.
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(iii) If the indemnification provided in clause (i) is due in
accordance with its terms in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, but is
for any reason held by a court to be unavailable on grounds of public
policy or otherwise, then the indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect both the relative
benefits received by the indemnifying party on the one hand and the
indemnified party on the other, from the offering of the Registered
Certificates, and the relative fault of the indemnifying party on the
one hand and the indemnified party on the other in connection with the
statements which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the indemnifying party
on the one hand and indemnified party on the other shall be deemed to be
in the same proportion to the amount of Registered Certificates
underwritten by each such party. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
indemnifying party on the one hand or indemnified party on the other and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contribution pursuant to this clause (iii) were determined by per capita
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to above in this clause
(iii). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this clause (iii) shall be deemed to
include 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 clause (iii), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registered Certificates
underwritten by it and distributed to the public, were sold, exceeds the
amount of any damages which such party has otherwise been required to
pay by reason of such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact. 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.
(iv) The respective obligations of each of the Underwriters
under clauses (i) through (iii) above shall be in addition to any
liability which each may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls such
Underwriter within the meaning of the Securities Act or the Exchange
Act.
(f) The amount paid or payable by an indemnified party as a result
of the losses, claims, damages and liabilities referred to in any subsection of
this Section 7 shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim (except
where the indemnified party is required to bear such expenses pursuant to this
Agreement), which expenses the indemnifying party shall pay as and when
incurred, at the request of the indemnified party, to the extent that it is
reasonable to believe that the indemnifying party will be ultimately
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obligated to pay such expenses. If any expenses so paid by an indemnifying party
are subsequently determined not to be required to be borne by such indemnifying
party hereunder, the indemnified party that received such payment shall promptly
refund the amount so paid to such indemnifying party.
8. FEES AND EXPENSES. Except as provided in any other particular
Section hereof, costs and expenses incurred in connection with the transactions
herein contemplated shall be allocated pursuant to the terms of that certain
Term Sheet dated May 29, 2001 (the "Term Sheet") between the Mortgage Loan
Sellers.
9. COMPUTATIONAL MATERIALS AND ABS TERM SHEETS. (a) Not later than
10:30 a.m., New York City time, on the date hereof, each Underwriter shall
deliver to SBMS two (2) complete copies of all materials provided by such
Underwriter to prospective investors in the Registered Certificates that
constitute either (i) "Computational Materials" within the meaning of the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Xxxxxxx & Co. Incorporated, and Xxxxxx Structured Asset Corporation and the
no-action letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together, the
"Xxxxxx/PSA Letters") or (ii) "ABS Term Sheets" within the meaning of the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (such letter,
together with the Xxxxxx/PSA Letters, the "No-Action Letters"), if the filing of
such materials with the Commission is a condition of the relief granted in such
letters and, in the case of any such materials that constitute "Collateral Term
Sheets" within the meaning of the PSA Letter, such Collateral Term Sheets have
not previously been delivered to SBMS as contemplated by Section 9(b)(i) below.
Each delivery of Computational Materials pursuant to this paragraph (a) shall be
effected by delivering one (1) copy of such materials to counsel for SBMS and
one (1) copy of such materials to SBMS. Each delivery of ABS Term Sheets
pursuant to this paragraph (a) shall be effected by delivering such materials to
counsel for SBMS on behalf of SBMS at the address specified in Section 16 hereof
in a format that will permit such materials to be promptly filed electronically
with the Commission.
(b) Each Underwriter represents and warrants to and agrees with
SBMS, as of the date hereof and as of the Closing Date, as applicable, that:
(i) If such Underwriter has provided any Collateral Term
Sheets to potential investors in the Registered Certificates prior to
the date hereof and if the filing of such materials with the Commission
is a condition of the relief granted in the No-Action Letters, then in
each such case such Underwriter delivered such materials in the format
contemplated by Section 9(a) to counsel for SBMS on behalf of SBMS at
the address specified in Section 16 hereof no later than 10:30 a.m., New
York City time, on the first business day following the date on which
such materials were initially provided to a potential investor;
(ii) The Computational Materials (either in original,
aggregated or consolidated form) and ABS Term Sheets furnished to SBMS
pursuant to Section 9(a) or as contemplated in Section 9(b)(i)
constitute all of the materials relating to the Registered Certificates
furnished by such Underwriter (whether in written, electronic or other
format) to prospective
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investors in the Registered Certificates prior to the date hereof,
except for any Preliminary Prospectus and any Computational Materials
and ABS Term Sheets that are not required to be filed with the
Commission in accordance with the No-Action Letters, and all
Computational Materials and ABS Term Sheets provided by such Underwriter
to potential investors in the Registered Certificates comply with the
requirements of the No-Action Letters;
(iii) On the respective dates any such Computational Materials
and/or ABS Term Sheets with respect to the Registered Certificates
referred to in Section 9(b)(ii) were last furnished by such Underwriter
to each prospective investor, on the date of delivery thereof to SBMS
pursuant to or as contemplated by this Section 9 and on the Closing
Date, such Computational Materials and/or ABS Term Sheets did not and
will not include any untrue statement of a material fact, or, when read
in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(iv) At the time any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates were furnished to a
prospective investor and on the date hereof, such Underwriter possessed,
and on the date of delivery of such materials to SBMS pursuant to or as
contemplated by this Section 9 and on the Closing Date, such Underwriter
will possess, the capability, knowledge, expertise, resources and
systems of internal control necessary to ensure that such Computational
Materials and/or ABS Term Sheets conform to the representations and
warranties of such Underwriter contained in subparagraphs (ii) and (iii)
above of this paragraph (b);
(v) All Computational Materials and ABS Term Sheets with
respect to the Registered Certificates furnished by such Underwriter to
potential investors contained and will contain a legend, prominently
displayed on the first page thereof, to the effect that SBMS has not
prepared, reviewed or participated in the preparation of such
Computational Materials or ABS Term Sheets, is not responsible for the
accuracy thereof and has not authorized the dissemination thereof;
(vi) All Collateral Term Sheets with respect to the
Registered Certificates furnished by such Underwriter to potential
investors contained and will contain a legend, prominently displayed on
the first page thereof, indicating that the information contained
therein will be superseded by the description of the Mortgage Loans
contained in the Prospectus and, except in the case of the initial
Collateral Term Sheet, that such information supersedes the information
in all prior Collateral Term Sheets; and
(vii) After the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials, ABS
Term Sheets or other materials relating to the Registered Certificates
(whether in written, electronic or other format) to any potential
investor unless such potential investor has received a Prospectus prior
to or at the same time as the delivery of such Computational Materials,
ABS Term Sheets or other materials.
Notwithstanding the foregoing, no Underwriter makes any representation
or warranty as to
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whether any Computational Materials or ABS Term Sheets with respect to the
Registered Certificates included or will include any untrue statement resulting
directly from any Collateral Error (except any Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriters from SBMS or
any Mortgage Loan Seller of notice of such Collateral Error or materials
superseding or correcting such Collateral Error).
(c) The Underwriters acknowledge and agree that SBMS has not
authorized and will not authorize the distribution of any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates to any
prospective investor, and agree that any such Computational Materials and/or ABS
Term Sheets furnished to prospective investors shall include a disclaimer in the
form set forth in paragraph (b)(v) above. The Underwriters agree that they will
not represent to potential investors that any Computational Materials and/or ABS
Term Sheets with respect to the Registered Certificates were prepared or
disseminated on behalf of SBMS.
(d) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act prior to 90
days from the date hereof, it shall be necessary in the opinion of the
Underwriters or their counsel to amend or supplement the Prospectus as a result
of an untrue statement of a material fact contained in any Computational
Materials or ABS Term Sheets provided by the Underwriters pursuant to or as
contemplated by this Section 9 or the omission to state a material fact
required, when considered in conjunction with the Prospectus, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Securities Act or the rules
thereunder, the Underwriters, at their expense (or, if such amendment or
supplement is necessary due to a Collateral Error relating to the SBRC Mortgage
Loans (except any such Corrected Collateral Error, with respect to materials
prepared after the receipt by the Underwriters from SBMS or any Mortgage Loan
Seller of notice of such Collateral Error or materials superseding or correcting
such Collateral Error), at the expense of SBMS), shall promptly prepare and
furnish to SBMS for filing with the Commission an amendment or supplement that
will correct such statement or omission or an amendment that will effect such
compliance and shall distribute such amendment or supplement to each prospective
investor in the Registered Certificates that received such information being
amended or supplemented. The Underwriters represent and warrant to SBMS, as of
the date of delivery of such amendment or supplement to SBMS, that such
amendment or supplement will not include any untrue statement of a material fact
or, when read in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. SBMS shall have no obligation to file such amendment or supplement
if SBMS determines that (i) such amendment or supplement contains any untrue
statement of a material fact or, when read in conjunction with the Prospectus,
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading (it being understood, however, that
SBMS shall have no obligation to review or pass upon the accuracy or adequacy
of, or to correct, any such amendment or supplement provided by the Underwriters
to SBMS pursuant to this paragraph (d)) or (ii) such filing is not required
under the Securities Act. Notwithstanding the foregoing, the Underwriters make
no representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Registered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials
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prepared after the receipt by the Underwriters from SBMS or any Mortgage Loan
Seller of notice of such Collateral Error or materials superseding or correcting
such Collateral Error).
(e) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act prior to 90
days from the date hereof, it shall be necessary in the opinion of SBMS or its
counsel to amend or supplement the Prospectus as a result of an untrue statement
of a material fact contained in any Computational Materials or ABS Term Sheets
provided by the Underwriters pursuant to or as contemplated by this Section 9 or
the omission to state therein a material fact required, when considered in
conjunction with the Prospectus, to be stated therein or necessary to make the
statements therein, when read in conjunction with the Prospectus, not
misleading, or if it shall be necessary to amend or supplement any Current
Report to comply with the Securities Act or the rules thereunder, SBMS promptly
will notify the Underwriters of the necessity of such amendment or supplement,
and the Underwriters, at their expense (or, if such amendment or supplement is
necessary due to a Collateral Error relating to the SBRC Mortgage Loans (except
any such Corrected Collateral Error, with respect to materials prepared after
the receipt by the Underwriters from SBMS or any of the Mortgage Loan Sellers of
notice of such Collateral Error or materials superseding or correcting such
Collateral Error), at the expense of SBMS), shall promptly prepare and furnish
to SBMS for filing with the Commission an amendment or supplement that will
correct such statement or omission or an amendment that will effect such
compliance and shall distribute such amendment or supplement to each prospective
investor in the Registered Certificates that received such information being
amended or supplemented. The Underwriters represent and warrant to SBMS, as of
the date of delivery of such amendment or supplement to SBMS, that such
amendment or supplement will not include any untrue statement of a material fact
or, when read in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. SBMS shall have no obligation to file such amendment or supplement
if SBMS determines that such amendment or supplement contains any untrue
statement of a material fact or, when read in conjunction with the Prospectus,
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading (it being understood, however, that
SBMS shall have no obligation to review or pass upon the accuracy or adequacy
of, or to correct, any such amendment or supplement provided by the Underwriters
to SBMS pursuant to this paragraph (e)). Notwithstanding the foregoing, the
Underwriters make no representation or warranty as to whether any such amendment
or supplement of Computational Materials or ABS Term Sheets with respect to the
Registered Certificates included or will include any untrue statement resulting
directly from any Collateral Error (except any Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriters from SBMS or
any Mortgage Loan Seller of notice of such Collateral Error or materials
superseding or correcting such Collateral Error).
10. TERMINATION. This Agreement shall be subject to termination by
notice given to SBMS, if the sale of the Registered Certificates provided for
herein is not consummated because of any failure or refusal on the part of SBMS
to comply in all material respects with the terms or to fulfill in all material
respects any of the conditions of this Agreement, or if for any reason SBMS
shall be unable to perform in all material respects its obligations under this
Agreement. This Agreement shall also be subject to termination by the
Underwriters, by notice given to SBMS prior to delivery of and payment for the
Certificates, if prior to such time (i) trading in securities generally on the
New York Stock Exchange shall have been suspended or materially limited, (ii) a
general moratorium on
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commercial banking activities in New York shall have been declared by either
federal or New York State authorities, or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Underwriters after consultation with SBMS,
impracticable to market the Registered Certificates.
11. DEFAULT BY AN UNDERWRITER. If any Underwriter shall fail to
purchase and pay for any of the Registered Certificates agreed to be purchased
by such Underwriter hereunder and such failure to purchase shall constitute a
default in the performance of its obligations under this Agreement, the
remaining Underwriters shall be obligated (in proportion to their allocations
set forth in Schedule I) to take up and pay for the Registered Certificates that
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the purchase price of the Registered
Certificates that the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate Purchase Price of the Registered
Certificates, the remaining Underwriters shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the Registered
Certificates, and if such nondefaulting Underwriters do not purchase all of the
Registered Certificates, this Agreement will terminate without liability to the
nondefaulting Underwriters or SBMS. In the event of a default by an Underwriter
as set forth in this Section 11, the Closing Date for the Registered
Certificates shall be postponed for such period, not exceeding seven (7) days,
as the nondefaulting Underwriters shall determine in order that the required
changes in the Registration Statement, the Prospectus or any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to SBMS and to any
nondefaulting Underwriter for damages occasioned by its default hereunder.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
SBMS, the Underwriters and their respective officers, directors, employees and
agents set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of the
Underwriters, SBMS or any of the officers, directors or controlling persons
referred to in Section 7 hereof, and will survive delivery of and payment for
the Registered Certificates. The provisions of Sections 7 and 9 hereof shall
survive the termination or cancellation of this Agreement.
13. BENEFICIARIES. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 hereof, and
no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the substantive laws of the State of New York, applicable to
agreements negotiated, made and to be performed entirely in said state.
15. MISCELLANEOUS. This Agreement supersedes all prior or
contemporaneous agreements and understandings relating to the subject matter
hereof (other than the Term Sheet). Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated except by a writing signed by
the party against whom enforcement of such change, waiver, discharge or
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termination is sought. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, and that taken together
shall constitute one and the same instrument.
16. NOTICES. All communications hereunder will be in writing and
effective only upon receipt and, if sent to any Underwriter, will be delivered
to such Underwriter at the address, and to the attention of the person or group,
set forth on page 1 of this Agreement; and, if sent to SBMS, will be delivered
to Salomon Brothers Mortgage Securities VII, Inc., 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx Xxxxx, and, solely for purposes of
Section 5(e), Xxxxxx Xxxxxx Xxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxxx X. Xxxxxx; or, in each such case, to such other address, or
to the attention of such other person or group, as may be forwarded by any such
party to the other parties hereto in writing.
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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 you and SBMS.
Very truly yours,
XXXXXXX XXXXXXXX MORTGAGE
SECURITIES VII, INC.
By:
------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX XXXXXX INC.
By:
----------------------------
Name:
Title:
GREENWICH CAPITAL MARKETS, INC.
By:
----------------------------
Name:
Title:
X.X. XXXXXX SECURITIES INC.
By:
----------------------------
Name:
Title:
UBS WARBURG LLC
By:
----------------------------
Name:
Title:
30
FIRST UNION SECURITIES, INC.
By:
----------------------------
Name:
Title:
31
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-63752 filed by SBMS on Form S-3 and declared
effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED CERTIFICATES:
Commercial Mortgage Pass-Through Certificates, Series 2001-C1, Class A-1, Class
A-2, Class A-3, Class B, Class C, Class D and Class E Certificates.
Underwriting Agreement, dated as of July 25, 2001
Class Initial Class Principal Initial Rating
Designation Purchase Price(1) Balance (2)(3) Pass-Through Rate by Moody's/S&P (4)
----------- ----------------- -------------- ----------------- ------------------
A-1 100-00 $50,000,000 5.137% Aaa/AAA
A-2 000-00 000,525,000 6.226 Aaa/AAA
A-3 000-00 000,049,000 6.428 Aaa/AAA
B 000-00 00,490,000 6.580 Aa2/AA
C 000-00 00,489,000 6.729 A2/A
D 000-00 00,909,000 6.831 A3/A-
E 95-00 14,290,000 6.310 Baa1/BBB+
(1) Expressed in 32nds. 100-16 means 100 16/32%.
(2) Subject to a variance of plus or minus 5.0%.
(3) Subject to rounding to the nearest whole dollar, Xxxxxxx Xxxxx
Barney Inc. will acquire 53%, Greenwich Capital Markets, Inc.
will acquire 32%, X.X. Xxxxxx Securities Inc. will acquire 5%,
UBS Warburg LLC will acquire 5% and First Union Securities, Inc.
will acquire 5% of the Class Principal Balance of the Class A-3
Certificates. Xxxxxxx Xxxxx Xxxxxx Inc. will acquire 79% and
Greenwich Capital Markets, Inc. will acquire 21% of the Class
Principal Balance of the Class A-1 Certificates, Xxxxxxx Xxxxx
Barney Inc. will acquire 65% and Greenwich Capital Markets, Inc.
will acquire 35% of the Class Principal Balance of the Class A-2
Certificates, Xxxxxxx Xxxxx Xxxxxx Inc. will acquire 69% and
Greenwich Capital Markets, Inc. will acquire 31% of the Class
Principal Balance of the Class B Certificates, Xxxxxxx Xxxxx
Barney Inc. will acquire 51% and Greenwich Capital Markets, Inc.
will acquire 49% of the Class Principal Balance of the Class C
Certificates, Xxxxxxx Xxxxx Xxxxxx Inc. will acquire 65% and
Greenwich Capital Markets, Inc. will acquire 35% of the Class
Principal Balance of the Class D Certificates and Xxxxxxx Xxxxx
Barney Inc. will acquire 77% and Greenwich Capital Markets, Inc.
will acquire 23% of the Class E certificates.
(4) By each of Xxxxx'x Investors Service, Inc. ("Moody's") and
Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P").
Purchase Price: The purchase prices set forth in the above schedule for
each Class of Registered Certificates is expressed as a percentage of
the Class Principal Balance of such Class, and is to be accompanied by
interest on the Class Principal Balance of such Class of Registered
Certificates at the initial Pass-Through Rate for such Class, from July
1, 2001 to but not including the Closing Date.
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Closing Time, Date and Location: 10:00 a.m. New York City time on July
31, 2001 at the offices of Xxxxxx Xxxxxx Xxxxx & Xxxx, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
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Issuance and delivery of Registered Certificates: Each class of
Registered 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 such Certificates
through the book-entry facilities of The Depository Trust Company in
minimum denominations of initial principal balance of $10,000 and
integral multiples of $1 in excess thereof.
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