STRUCTURED ASSET SECURITIES CORPORATION
UNDERWRITING AGREEMENT
As of March 9, 1998
Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Structured Asset Securities Corporation, a Delaware corporation (the
"Company"), proposes to cause the issuance of, and sell to Xxxxxx Brothers Inc.
("LBI" or the "Underwriter"), the mortgage pass-through certificates that are
identified on Schedule I attached hereto (the "Certificates"). The Certificates
will evidence beneficial ownership interests in a trust fund (the "Trust Fund")
to be formed by the Company and consisting primarily of a segregated pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans") to be purchased from Xxxxxx Brothers Holdings Inc., doing business as
Xxxxxx Capital, a Division of Xxxxxx Brothers Holdings Inc. (the "Mortgage Loan
Seller"). The Certificates will be issued under a Pooling and Servicing
Agreement to be dated as of February 1, 1998 (the "Pooling and Servicing
Agreement"), among the Company as depositor, LaSalle National Bank as trustee
(the "Trustee"), GMAC Commercial Mortgage Corporation as master servicer (in
such capacity, the "Master Servicer") and as special servicer (in such capacity,
the "Special Servicer") and ABN AMRO Bank N.V. as fiscal agent (the "Fiscal
Agent"). The Certificates and the Mortgage Loans are described more fully in the
Prospectus (as defined below), which the Company has furnished to the
Underwriter. Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Prospectus.
The Certificates are part of a series of mortgage pass-through
certificates that evidence beneficial ownership interests in the Trust Fund and
are being issued pursuant to the Pooling and Servicing Agreement. The other
certificates of such series (the "Privately Offered Certificates") will be
privately placed through the Underwriter with a limited number of institutional
investors as described in the Private Placement Memorandum dated the date hereof
that relates to the Privately Offered Certificates (together with all exhibits
and annexes thereto, the "Memorandum").
1. Representations and Warranties. The Company represents, warrants and
agrees that:
(a) A registration statement on Form S-3 (No. 33-96378) with respect to
the Certificates has been prepared by the Company and filed with the Securities
and Exchange
Commission (the "Commission"), and complies as to form in all material respects
with the requirements of the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the "1933 Act"),
including Rule 415, and has become effective under the Securities Act. As used
in this Underwriting Agreement (this "Agreement" or the "Underwriting
Agreement"), (i) "Registration Statement" means that registration statement and
all exhibits thereto, as amended or supplemented to the date of this Agreement;
(ii) "Basic Prospectus" means the prospectus included in the Registration
Statement at the time it became effective, or as subsequently filed with the
Commission pursuant to paragraph (b) of Rule 424 of the Securities Act; (iii)
"Prospectus" means the Basic Prospectus, together with the prospectus supplement
specifically relating to the Certificates (the "Prospectus Supplement"), as
filed with, or mailed for filing to, the Commission pursuant to paragraph (b) of
Rule 424 of the Securities Act; and (iv) "Preliminary Prospectus" means any
preliminary form of the Prospectus that has heretofore been filed pursuant to
paragraph (b) of Rule 424 of the Securities Act. The aggregate principal amount
of the Certificates does not exceed the remaining amount of mortgage-backed
securities that may be registered under the Registration Statement as of the
date hereof.
(b) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and on the date of this Agreement,
complied, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will comply, as to form in all material respects with the
requirements of the 1933 Act; and the Registration Statement and the Prospectus
do not, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will not, contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company makes no
representation or warranty as to (i) information contained in or omitted from
the Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company by the Underwriter
specifically for inclusion therein or (ii) any information in any Computational
Materials and ABS Term Sheets (each as defined below) incorporated into the
Registration Statement by the filing thereof pursuant to Section 5(j).
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease or operate its properties and to
conduct its business as now conducted by it and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement; and
the Company is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business.
(d) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of the
date on which, prior to the Closing Date, any amendment to the Registration
Statement becomes effective, as of the date on which any supplement to the
Prospectus Supplement is filed with the Commission, and as of the Closing Date,
there has not and will not have been (i) any request by the Commission for any
further
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XXXXXX & XXXXXX XXX XXXX
amendment to the Registration Statement or the Prospectus or for any additional
information, (ii) any issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or threat of
any proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Certificates for sale in any jurisdiction
or any initiation or threat of any proceeding for such purpose.
(e) This Agreement has been duly authorized, executed and delivered by the
Company, and the Pooling and Servicing Agreement, when executed and delivered as
contemplated hereby and thereby, will have been duly authorized, executed and
delivered by the Company; and this Agreement constitutes, and the Pooling and
Servicing Agreement, when so executed and delivered will constitute, legal,
valid and binding agreements of the Company, enforceable against the Company in
accordance with their respective terms, except as enforceability may be limited
by (i) bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of the rights of creditors generally,
(ii) general principles of equity, whether enforcement is sought in a proceeding
in equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement or the Pooling and Servicing
Agreement that purport to provide indemnification from securities law
liabilities.
(f) As of the Closing Date, the Certificates and the Pooling and Servicing
Agreement will conform in all material respects to the respective descriptions
thereof contained in the Prospectus. As of the Closing Date, the Certificates
will be duly and validly authorized and, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement to you against payment therefor as provided herein, will be duly and
validly issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement.
(g) At the Closing Date, each of the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(h) The Company is not in violation of its certificate of incorporation or
by-laws or in default under any agreement, indenture or instrument the effect of
which violation or default would be material to the Company or which violation
or default would have a material adverse affect on the performance of its
obligations under this Agreement or the Pooling and Servicing Agreement. Neither
the issuance and sale of the Certificates, nor the execution and delivery by the
Company of this Agreement or the Pooling and Servicing Agreement, nor the
consummation by the Company of any of the transactions herein or therein
contemplated, nor compliance by the Company with the provisions hereof or
thereof, does or will conflict with or result in a breach of any term or
provision of the certificate of incorporation or by-laws of the Company or
conflict with, result in a breach, violation or acceleration of, or constitute a
default under, the terms of any indenture or other agreement or instrument to
which the Company is a party or by which it or any of its material assets is
bound, or any statute, order or regulation applicable to the Company of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Company.
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SIDLEY & AUSTIN NEW YORK
(i) There is no action, suit or proceeding against the Company pending,
or, to the knowledge of the Company, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement or the Certificates, (ii) seeking
to prevent the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement or the Pooling and Servicing
Agreement, (iii) that might materially and adversely affect the performance by
the Company of its obligations under, or the validity or enforceability of, this
Agreement, the Pooling and Servicing Agreement or the Certificates or (iv)
seeking to affect adversely the federal income tax attributes of the
Certificates as described in the Prospectus.
(j) There are no contracts, indentures or other documents of a character
required by the 1933 Act or by the rules and regulations thereunder to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(k) No authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the offering, issuance or
sale of the Certificates pursuant to this Agreement and the Pooling and
Servicing Agreement, except such as have been, or as of the Closing Date will
have been, obtained or such as may otherwise be required under applicable state
securities laws in connection with the purchase and offer and sale of the
Certificates by the Underwriter and any recordation of the respective
assignments of the Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing Agreement that have not been completed.
(l) The Company possesses all material licenses, certificates, authorities
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it, and the
Company has not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company.
(m) Any taxes, fees and other governmental charges payable by the Company
in connection with the execution and delivery of this Agreement and the Pooling
and Servicing Agreement or the issuance and sale of the Certificates (other than
such federal, state and local taxes as may be payable on the income or gain
recognized therefrom) have been or will be paid at or prior to the Closing Date.
(n) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company will have good title to, and will be the sole owner of,
each Mortgage Loan, free and clear of any pledge, mortgage, lien, security
interest or other encumbrance.
(o) Neither the Company nor the Trust Fund is, and neither the issuance
and sale of the Certificates in the manner contemplated by the Prospectus nor
the activities of the Trust Fund
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SIDLEY & AUSTIN NEW YORK
pursuant to the Pooling and Servicing Agreement will cause the Company or the
Trust Fund to be, an "investment company" or under the control of an "investment
company" as such terms are defined in the Investment Company Act of 1940, as
amended (the "1940 Act").
(p) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriter pursuant to this Agreement as a sale of the
interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriter
will constitute reasonably equivalent value and fair consideration for the
Certificates. The Company will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund and the sale of the Certificates to the
Underwriter. The Company is not selling the Certificates to the Underwriter or
transferring the Mortgage Loans to the Trustee on behalf of the Trust Fund with
any intent to hinder, delay or defraud any of the creditors of the Company.
(q) At the Closing Date, the respective classes of Certificates shall have
been assigned ratings no lower than those set forth in Schedule I hereto by the
nationally recognized statistical rating organizations identified in Schedule I
hereto (the "Rating Agencies").
(r) At the Closing Date, each of the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
on the representations and warranties herein set forth, the Company agrees to
sell to the Underwriter and the Underwriter agrees to purchase from the Company,
at the related purchase price set forth on Schedule I hereto, Certificates of
each class thereof having the actual or notional principal amount set forth on
Schedule I hereto. There will be added to the purchase price of the Certificates
to be purchased hereunder an amount equal to interest accrued thereon pursuant
to the terms thereof from February 1, 1998 (the "Cut-off Date") to but excluding
the Closing Date.
3. Payment and Delivery. The closing for the purchase and sale of the
Certificates hereunder shall occur at the offices of Sidley & Austin, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. New York City time, on March 11,
1998 or at such other location, time and date as shall be mutually agreed upon
by the parties hereto (such time and date of closing, the "Closing Date").
Delivery of the Certificates shall be made through the Same Day Funds Settlement
System of the Depository Trust Company ("DTC"). Payment shall be made to the
Company in immediately available Federal funds wired to such bank as may be
designated by the Company (or by such other method of payment as may be mutually
acceptable to the parties hereto), against delivery of the Certificates. The
Certificates will be made available for examination by the Underwriter not later
than 3:00 p.m. New York City time on the last business day prior to the Closing
Date.
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SIDLEY & AUSTIN NEW YORK
References herein, including, without limitation, in the Schedules hereto,
to actions taken or to be taken following the Closing Date with respect to any
Certificates that are to be delivered through the facilities of DTC shall
include, if the context so permits, actions taken or to be taken with respect to
the interests in such Certificates as reflected on the books and records of DTC.
4. Offering by Underwriter.
(a) It is understood that the Underwriter proposes to offer the
Certificates for sale to the public, including, without limitation, in and from
the State of New York, as set forth in the Prospectus Supplement. It is further
understood that the Company, in reliance upon Policy Statement 105, has not and
will not file the offering pursuant to Section 352-e of the General Business Law
of the State of New York with respect to the Certificates which are not
"mortgage related securities" as defined in the 1934 Act (as defined below);
accordingly, the Underwriter covenants and agrees with the Company that sales of
such Certificates made by the Underwriter in and from the State of New York will
be made only to institutional investors within the meaning of Policy Statement
105.
(b) The Underwriter may prepare and provide (and acknowledges that it has
prepared and provided) to prospective investors certain Computational Materials
or ABS Term Sheets in connection with its offering of the Certificates. In this
regard, the Underwriter represents and warrants to, and covenants with, the
Company that:
(i) The Underwriter has complied and shall comply with the
requirements of the no-action letter, dated May 20, 1994, issued by the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody &
Co. Incorporated and Xxxxxx Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in response
to the request of the Public Securities Association, dated May 25, 1994
(collectively, the "Xxxxxx/PSA Letter"), and the requirements of the
no-action letter, dated February 17, 1995, issued by the Commission to the
Public Securities Association (the "PSA Letter" and, together with the
Xxxxxx/PSA Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials" shall have the
meaning given such term in the No-Action Letters and "ABS Term Sheets,"
"Structural Term Sheets" and "Collateral Term Sheets" shall have the
meanings given such terms in the PSA Letter.
(iii) All such Computational Materials and ABS Term Sheets provided
to prospective investors have borne or shall bear, as the case may be, a
legend in a form previously approved by the Company or its counsel.
(iv) The Underwriter has not distributed and shall not distribute
any such Computational Materials or ABS Term Sheets, the forms and
methodology of which are not in accordance with this Agreement. The
Underwriter has provided or shall provide, as the case may be, to the
Company, for filing on Form 8-K as provided in Section 5(j),
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copies (in such format as required by the Company) of all such
Computational Materials and ABS Term Sheets. The Underwriter may provide
copies of the foregoing in a consolidated or aggregated form including all
information required to be filed. All Computational Materials and ABS Term
Sheets described in this paragraph (b)(iv) must be or must have been, as
applicable, provided to the Company (A) in paper or electronic format
suitable for filing with the Commission and (B) not later than 10:00 a.m.
(New York City time) on a business day that is not less than one business
day before filing thereof is or was, as the case may be, required pursuant
to the terms of the No-Action Letters.
(v) All information included in the Computational Materials and ABS
Term Sheets in respect of the Certificates has been or shall be generated
based on substantially the same methodology and assumptions as are used to
generate the information in the Prospectus Supplement as set forth
therein; provided that the Computational Materials and ABS Term Sheets may
include information based on alternative methodologies or assumptions if
specified therein. If any Computational Materials or ABS Term Sheets were
based on assumptions with respect to the Mortgage Pool that differ from
the Prospectus Supplement in any material respect or on Certificate
structuring assumptions (except in the case of Computational Materials
when the different structuring terms were hypothesized and so described)
that were revised in any material respect prior to the printing of the
Prospectus, then to the extent that it has not already done so, the
Underwriter shall immediately inform the Company and, upon the direction
of the Company, and if not corrected by the Prospectus, shall prepare
revised Computational Materials and ABS Term Sheets, as the case may be,
based on information regarding the Mortgage Pool and Certificate
structuring assumptions consistent with the Prospectus, circulate such
revised Computational Materials and ABS Term Sheets to all recipients of
the preliminary versions thereof, and include such revised Computational
Materials and ABS Term Sheets (marked, "as revised") in the materials
delivered to the Company pursuant to paragraph (b)(iv) above.
(vi) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that the Company will file
Computational Materials or ABS Term Sheets that contain a material error
or, when read together with the Prospectus, a material omission, if
clearly marked (A) "superseded by materials dated ____________ __" and
accompanied by corrected Computational Materials or ABS Term Sheets that
are marked "material previously dated ___________ __, as corrected", or
(B) if the material error or omission is to be corrected in the
Prospectus, "superseded by materials contained in the Prospectus." If,
within the period during which the Prospectus relating to the Certificates
is required to be delivered under the 1933 Act, any Computational
Materials or ABS Term Sheets are determined, in the reasonable judgment of
the Company or the Underwriter, to contain a material error or, when read
together with the Prospectus, a material omission, then (unless the
material error or omission was corrected in the Prospectus) the
Underwriter shall prepare a corrected version of such Computational
Materials or ABS Term Sheets,
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shall circulate such corrected Computational Materials or ABS Term Sheets
to all recipients of the prior versions thereof, and shall deliver copies
of such corrected Computational Materials or ABS Term Sheets (marked, "as
corrected") to the Company for filing with the Commission in a subsequent
Form 8-K submission (subject to the Company's obtaining an accountant's
comfort letter in respect of such corrected Computational Materials and
ABS Term Sheets, which shall be at the expense of the Underwriter).
(vii) The Underwriter shall be deemed to have represented, as of the
Closing Date, that except for Computational Materials and/or ABS Term
Sheets provided to the Company pursuant to or as contemplated by paragraph
(b)(iv) above, the Underwriter did not provide any prospective investors
with any information in written or electronic form in connection with the
offering of the Certificates that is required to be filed with the
Commission in accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by the Underwriter
to the Company of all Computational Materials and ABS Term Sheets required
to be delivered in accordance with or as contemplated by paragraph (b)(iv)
above, the Company shall have the right to delay the release of the
Prospectus to investors or to the Underwriter, to delay the Closing Date
and to take other appropriate actions in each case as necessary in order
to allow the Company to comply with its agreement set forth in Section
5(j) to file the Computational Materials and ABS Term Sheets by the time
specified therein.
(ix) Computational Materials and ABS Term Sheets may be distributed
by the Underwriter through electronic means in accordance with SEC Release
No. 33-7233 (the "Release").
(c) The Underwriter further agrees that it shall promptly provide the
Company with such information as to matters of fact as the Company may
reasonably request to enable it to comply with its reporting requirements with
respect to each class of Certificates to the extent such information can in the
good faith judgment of the Underwriter be determined by it.
5. Covenants of the Company. The Company covenants with the Underwriter
that:
(a) The Company will furnish promptly to the Underwriter and counsel for
the Underwriter one signed copy of the Registration Statement as originally
filed with the Commission, and each amendment or supplement thereto filed prior
to the date of this Agreement or relating to or covering the Certificates, and a
copy of each Prospectus filed with the Commission, including all consents and
exhibits filed therewith.
(b) The Company will deliver promptly to the Underwriter such number of
conformed copies of the Registration Statement and of each amendment or
supplement thereto filed prior to the date of this Agreement or relating to or
covering the Certificates and, during such period
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following the date of the this Agreement in which any Prospectus is required by
law to be delivered, such number of copies of each Prospectus, as the
Underwriter may reasonably request.
(c) The Company will file promptly with the Commission, during such period
following the date of the this Agreement in which any Prospectus is required by
law to be delivered, any amendment or supplement to the Registration Statement
or any Prospectus that may, in the judgment of the Company or the Underwriter,
be required by the 1933 Act or requested by the Commission and approved by the
Underwriter.
(d) Prior to filing with the Commission during the period referred to in
paragraph (c) above any amendment or supplement to the Registration Statement or
any Prospectus, the Company will furnish a copy thereof to the Underwriter and
to counsel for the Underwriter, and the Company will not file any such amendment
or supplement to which the Underwriter shall reasonably object.
(e) The Company will advise the Underwriter promptly (i) when any
post-effective amendment to the Registration Statement relating to or covering
the Certificates becomes effective, (ii) of any request or proposed request by
the Commission for an amendment or supplement to the Registration Statement or
to any Prospectus (insofar as the amendment or supplement relates to or covers
the Certificates) or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to any Prospectus or the initiation
or threat of any such stop order proceeding, (iv) of receipt by the Company of
any notification with respect to the suspension of the qualification of the
Certificates for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose and (v) of the happening of any event that makes
untrue any statement of a material fact made in the Registration Statement or
any Prospectus or that requires the making of a change in the Registration
Statement or any Prospectus in order to make any material statement therein not
misleading.
(f) If, during the period referred to in paragraph (c) above, the
Commission will order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the lifting
of that order at the earliest possible time.
(g) [Reserved.]
(h) The Company will endeavor to qualify the Certificates for offer and
sale under the securities laws of such jurisdictions as the Underwriter may
reasonably request, provided, however, that this Section 5(h) shall not obligate
the Company to file any general consent to service of process or to qualify to
do business in any jurisdiction or as a dealer in securities in any jurisdiction
in which it is not so qualified.
(i) The Company will pay or cause to be paid (i) the costs incident in the
preparation, printing and filing under the 1933 Act of the Registration
Statement and any amendments thereof and supplements and exhibits thereto; (ii)
the costs of distributing the Registration Statement as
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originally filed and each amendment and post-effective amendment thereof
(including exhibits), any Preliminary Prospectus, each Prospectus and any
amendment or supplement to the Prospectus as provided in this Agreement; (iii)
the costs of printing and distributing the Pooling and Servicing Agreement; (iv)
the costs of filings, if any, with the National Association of Securities
Dealers, Inc.; (v) fees paid to the Rating Agencies in connection with the
rating of the Certificates; (vi) the fees and expenses of qualifying the
Certificates, under the securities laws of the several jurisdictions as provided
in Section 5(h) hereof and of preparing and printing, if so requested by the
Underwriter, a preliminary blue sky survey and legal investment survey
concerning the legality of the Certificates as an investment (including fees and
disbursements of counsel to the Underwriter in connection therewith); and (vii)
any other costs and expenses incident to the performance of the Company's
obligations under this Agreement; provided, however, that, except as provided
above in this subsection (i) or in Section 7, the Underwriter shall pay its own
costs and expenses, including the fees and expenses of its counsel, any transfer
taxes on the Certificates that it may sell and the expenses of advertising any
offering of the Certificates made by the Underwriter.
(j) The Company will file any documents and any amendments thereof as may
be required to be filed by it pursuant to the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), including, but not limited
to, the filing with the Commission in a Current Report on form 8-K all
Computational Materials and ABS Term Sheets furnished by the Underwriter and
identified by it as such. The Company will file all such Computational Materials
and ABS Term Sheets within the time period allotted for such filing pursuant to
the No-Action Letters. The Company represents and warrants that, to the extent
required by the No-Action Letters, the Company has timely filed with the
Commission any Collateral Term Sheets previously delivered to it as contemplated
by Section 4(b)(iv).
6. Conditions to the Obligations of the Underwriter. The obligation of the
Underwriter hereunder to purchase the Certificates shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date, as
of the date the Prospectus Supplement or any supplement thereto is filed with
the Commission and as of the Closing Date, to the accuracy of the statements of
the Company made in any certificates delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
satisfaction, as of the Closing Date, of the following additional conditions:
(a) The Registration Statement shall have become effective and no stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and not withdrawn and no proceedings
for that purpose shall have been instituted or, to the Company's knowledge,
threatened; and the Prospectus Supplement shall have been filed or transmitted
for filing with the Commission in accordance with Rule 424 under the 0000 Xxx.
(b) The Company shall have delivered to the Underwriter a certificate of
the Company, signed by an authorized officer of the Company and dated the
Closing Date, to the effect that: (i)
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the representations and warranties of the Company in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on the Closing Date; and (ii) the Company has in all material
respects complied with all the agreements and satisfied all the conditions on
its part that are required hereby to be performed or satisfied at or prior to
the Closing Date.
(c) The Underwriter shall have received with respect to the Company a good
standing certificate from the Secretary of State of the State of Delaware, dated
not earlier than 30 days prior to the Closing Date.
(d) The Underwriter shall have received from the Secretary or an assistant
secretary of the Company, in his individual capacity, a certificate, dated the
Closing Date, to the effect that: (i) each individual who, as an officer or
representative of the Company, signed this Agreement, the Pooling and Servicing
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein 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; and
(ii) no event (including, without limitation, any act or omission on the part of
the Company) has occurred since the date of the good standing certificate
referred to in paragraph (c) above which has affected the good standing of the
Company under the laws of the State of Delaware. Such certificate shall be
accompanied by true and complete copies (certified as such by the Secretary or
an assistant secretary of the Company) of the certificate of incorporation and
by-laws of the Company, as in effect on the Closing Date, and of the resolutions
of the Company and any required shareholder consent relating to the transactions
contemplated in this Agreement and the Pooling and Servicing Agreement.
(e) You shall have received from Sidley & Austin, special counsel for the
Company, a favorable opinion, dated the Closing Date and satisfactory in form
and substance to you and counsel for the Underwriter, to the effect that:
(i) The Registration Statement and any post-effective amendments
thereto have become effective under the 1933 Act.
(ii) To the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and not
withdrawn, and no proceedings for that purpose have been instituted or
threatened and not terminated.
(iii) The Registration Statement, each post-effective amendment
thereto (if any), the Basic Prospectus and the Prospectus Supplement, as
of their respective effective or issue dates (other than the financial
statements, schedules and other financial and statistical information
contained therein or omitted therefrom, as to which such counsel need
express no opinion), complied as to form in all material respects with the
applicable requirements of the 1933 Act and the rules and regulations
thereunder.
-11-
(iv) To the best knowledge of such counsel, there are no material
contracts, indentures or other documents relating to the Certificates of a
character required to be described or referred to in the Registration
Statement or the Prospectus Supplement or to be filed as exhibits to the
Registration Statement, other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto.
(v) The Pooling and Servicing Agreement constitutes a valid, legal,
binding and enforceable agreement of the Company, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally, to general
principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law and public policy considerations underlying
the securities laws, to the extent that such public policy considerations
limit the enforceability of the provisions of this Agreement or the
Pooling and Servicing Agreement that purport to provide indemnification
from securities law liabilities.
(vi) The Certificates, when duly and validly executed and
authenticated in the manner contemplated in the Pooling and Servicing
Agreement and delivered and paid for by the Underwriter as provided
herein, will be duly and validly issued and outstanding and entitled to
the benefits of the Pooling and Servicing Agreement.
(vii) The statements set forth in the Prospectus Supplement under
the headings "Description of the Certificates" and "Servicing of the
Mortgage Loans" and in the Basic Prospectus under the headings
"Description of the Securities", "Servicing of Mortgage Loans" and "The
Trust Agreement", insofar as such statements purport to summarize certain
material provisions of the Certificates and the Pooling and Servicing
Agreement, provide a fair and accurate summary of such provisions.
(viii) The statements set forth in the Prospectus Supplement under
the headings "Certain Federal Income Tax Consequences", "ERISA
Considerations" and "Legal Investment" and in the Basic Prospectus under
the headings "Federal Income Tax Considerations" and "Legal Investment",
to the extent that they constitute matters of federal law or legal
conclusions with respect thereto, while not discussing all possible
consequences of an investment in the Certificates to all investors,
provide a fair and accurate summary of such matters and conclusions set
forth under such headings.
(ix) Upon initial issuance, the Class A, Class IO and Class B
Certificates will be "mortgage related securities", as defined in Section
3(a)(41) of the 0000 Xxx.
(x) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and neither
the Company nor the Trust Fund is required to be registered under the 1940
Act.
(xi) No consent, approval, authorization or order of any State of
New York or federal court or governmental agency or body is required for
the consummation by the
-12-
Company of the transactions contemplated herein or in the Pooling and
Servicing Agreement, except (A) such as have been obtained under the 1933
Act, (B) such as may be required under the blue sky laws of any
jurisdiction in connection with the offer and sale of the Certificates by
the Underwriter, as to which such counsel need express no opinion; and (C)
any recordation of the assignments of the Mortgage Loans pursuant to the
Pooling and Servicing Agreement that has not yet been completed.
(xii) Assuming compliance with all provisions of the Pooling and
Servicing Agreement, for federal income tax purposes, REMIC I, REMIC II
and REMIC III will each qualify as a real estate mortgage investment
conduit (a "REMIC") under the Internal Revenue Code of 1986 (the "Code"),
the Class R-I Certificates will be the sole class of "residual interests"
in REMIC I, the Class R-II Certificates will be the sole class of
"residual interests" in REMIC II, the Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E, Class IO, Class F, Class G, Class H,
Class J, Class K, Class L and Class M Certificates will be the "regular
interests" in REMIC III, and the Class R-III Certificates will be the sole
class of "residual interests" in REMIC III.
In giving its opinions pursuant to this Section 6(e), special counsel to
the Company, Sidley & Austin, shall additionally state that, based on
conferences and telephone conversations with representatives of the Company, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent and their respective counsel, and (with limited exception)
without having reviewed any of the mortgage notes, mortgages or other documents
relating to the Mortgage Loans or made any inquiry of any originator of any
Mortgage Loan not referenced above, nothing has come to such special counsel's
attention that would lead it to believe that the Prospectus (other than any
accounting, financial or statistical information included therein or omitted
therefrom, and other than any information incorporated therein by reference, as
to which such counsel has not been requested to comment), at the date of the
Prospectus Supplement or at the Closing Date, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In giving its opinions pursuant to this Section 6(e), special counsel to
the Company, Sidley & Austin, may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials and, further, may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto. Such opinion may be qualified as an opinion
only on the General Corporation Law of the State of Delaware, the laws of the
State of New York and the federal law of the United States.
(f) The Underwriter shall have received copies of all legal opinion
letters delivered by Sidley & Austin to the Rating Agencies in connection with
the issuance of the Certificates, accompanied in each case by a letter signed by
Sidley & Austin stating that the Underwriter may rely on such opinion letter as
if it were addressed to the Underwriter as of the date thereof.
-13-
(g) The Underwriter shall have received from Xxxxxxxxxxx Xxxx, Esq.,
counsel for the Company, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter, to the effect that:
(i) The Company is a corporation in good standing under the laws of
the State of Delaware and has the corporate power and authority to enter
into and perform its obligations under this Agreement and the Pooling and
Servicing Agreement.
(ii) Each of this Agreement and the Pooling and Servicing Agreement
has been duly authorized, executed and delivered by the Company.
(iii) The execution, delivery and performance of the Pooling and
Servicing Agreement and this Agreement by the Company, and the
consummation of the transactions contemplated thereby, to such counsel's
knowledge, do not and will not result in a material breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or instrument known to
such counsel to which the Company is a party, nor will such actions result
in any violation of the provisions of the articles of incorporation or
by-laws of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company (except for such conflicts, breaches, violations and defaults as
would not have a material adverse effect on the ability of the Company to
perform its obligations under the Pooling and Servicing Agreement and this
Agreement).
In giving his opinions required pursuant to this Section 6(g), counsel to
the Company, Xxxxxxxxxxx Xxxx, Esq., may express his reliance as to factual
matters on the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials and, further, may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company. Such opinion may be
qualified as an opinion only on the General Corporation Law of the State of
Delaware, the laws of the State of New York and the federal law of the United
States.
(h) The Underwriter shall have received from Deloitte & Touche, LLP,
certified public accountants, a letter dated the Closing Date and satisfactory
in form and substance to the Underwriter and counsel for the Underwriter, to the
following effect:
(i) they have performed certain specified procedures as a result of
which they have determined that the information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
under the captions "Summary of the Prospectus Supplement," "Description of
the Mortgage Pool" and "Yield and Maturity Considerations" and on Annex A
agrees with the data sheet or computer tape prepared by or on behalf of
the Mortgage Loan Seller, unless non-material deviations are otherwise
noted in such letter; and
-14-
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed upon sampling of the Mortgage Loan
files and in such other sources as shall be specified by them, and found
such data and information to be in agreement in all material respects,
unless non-material deviations are otherwise noted in such letter.
(i) The Underwriter shall have received, with respect to each of the
Master Servicer, the Special Servicer, the Fiscal Agent and the Trustee, a
favorable opinion of counsel, dated the Closing Date, addressing the valid
existence of such party under the laws of the jurisdiction of its organization,
the due authorization, execution and delivery of the Pooling and Servicing
Agreement by such party and, subject to the same limitations as set forth in
Section 6(e)(v), the enforceability of the Pooling and Servicing Agreement
against such party. Counsel rendering each such opinion may express its reliance
as to factual matters on representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of parties to this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials and, further, may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party on
behalf of which such opinion is being rendered. Such opinion may be qualified as
an opinion only on the General Corporation Law of the State of Delaware (if
relevant), the laws of each state in which the writer of the opinion is admitted
to practice law and the federal law of the United States.
(j) The Underwriter shall have been furnished with all documents,
certificates and opinions to be delivered by the Mortgage Loan Seller in
connection with the sale of the Mortgage Loans by the Mortgage Loan Seller to
the Seller, pursuant to the Mortgage Loan Purchase Agreement, dated as of the
date hereof, between the Seller and the Mortgage Loan Seller.
(k) The Underwriter and counsel to the Underwriter shall have been
furnished with such other documents and opinions as they may reasonably require,
for the purpose of enabling them to pass upon the issuance and sale of the
Certificates as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained.
(l) The Certificates shall have been assigned ratings no less than those
set forth on Schedule I and such ratings shall not have been rescinded.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, if
the Company is in breach of any covenants or agreements contained herein or if
any of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter and counsel for the Underwriter, this Agreement
and all obligations of the Underwriter hereunder may be cancelled at, or at any
time prior to, the Closing Date by the Underwriter. Notice of such cancellation
shall be given to the Company in writing, or by telephone or telegraph confirmed
in writing.
-15-
7. Reimbursement of Underwriter's Expenses. If the sale of the
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 6 is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, other than by
reason of a default by the Underwriter, the Company will reimburse the
Underwriter upon demand, for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by it in
connection with the proposed purchase and sale of the Certificates.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Basic Prospectus, any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Underwriter),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause (i)
or (ii) above;
provided, however, that the foregoing indemnity shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information (as specified in Section 8(b)
below) furnished to the Company by the Underwriter expressly for use
-16-
in the Registration Statement (or any amendment thereto) or in the Basic
Prospectus, any Preliminary Prospectus Supplement or the Prospectus Supplement
(or any amendment or supplement thereto); and provided, further, that the
foregoing indemnity with respect to the Basic Prospectus or any Preliminary
Prospectus Supplement shall not inure to the benefit of the Underwriter (or to
the benefit of any person controlling the Underwriter) with respect to any loss,
liability, claim, damage or expense arising out of the claims of any particular
person that purchased Certificates if the untrue statement or omission or
alleged untrue statement or omission made in the Basic Prospectus or such
Preliminary Prospectus Supplement upon which such claims are based is eliminated
or remedied in the Prospectus and, if required by law, a copy of the Prospectus
shall not have been furnished to such person at or prior to the written
confirmation of the sale of such Certificates to such person.
(b) The Underwriter agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 8(a),
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or in the Basic Prospectus, any Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or in the Basic Prospectus, such Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement
thereto); provided that in no event shall the Underwriter be liable for any such
loss, liability, claim, damage or expense if such untrue statement or omission
or alleged untrue statement or omission resulted from an untrue statement or
omission in the underlying data regarding the Mortgage Loans, or the related
Mortgagors or Mortgaged Properties, provided to the Underwriter by the Mortgage
Loan Seller. It is hereby acknowledged that (i) the statements set forth in the
first sentence of the penultimate paragraph on the cover of the Prospectus
Supplement, (ii) the statements in the third, fourth and fifth paragraphs under
the caption "Method of Distribution" in the Prospectus Supplement and (iii) the
statements in any Computational Materials and ABS Term Sheets delivered by the
Underwriter to the Company for filing with the Commission pursuant to this
Agreement and the No-Action Letters, constitute the only written information
furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or in the Basic Prospectus,
the Preliminary Prospectus Supplement or the Prospectus Supplement (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to
-17-
assume the defense thereof, with counsel satisfactory to such indemnified party.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have agreed to the retention of such counsel, or (ii) the
indemnifying party shall not have assumed the defense of such action, with
counsel satisfactory to the indemnified party, within a reasonable period
following the indemnifying party's receiving notice of such action, or (iii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. In no event shall the indemnifying party or
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from its or their own counsel for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. Unless it shall assume the defense of any proceeding, an
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party shall
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. If an indemnifying party assumes the defense of
any proceeding, it shall be entitled to settle such proceeding with the consent
of the indemnified party or, if such settlement provides for the unconditional
release of the indemnified party in connection with all matters relating to the
proceeding that have been asserted against the indemnified party in such
proceeding by the other parties to such settlement, without the consent of the
indemnified party.
9. Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Section 8
hereof is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriter shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriter, as incurred, in such proportions
that the Underwriter is responsible for that portion represented by the
percentage that the underwriting discounts and commissions pertaining to the
Certificates bears to the aggregate of the initial public offering prices of the
Certificates and the Company is responsible for the balance; provided, however,
that no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation; and provided, further,
that in no event shall the Underwriter be obligated to contribute more than an
amount equal to the underwriting discounts and commissions pertaining to the
Certificates. For purposes of this Section, each person, if any, who controls
the Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
-18-
10. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter, or by or on behalf of the
Company, or by or on behalf of any of the controlling persons and officers and
directors referred to in Sections 8 and 9, and shall survive delivery of the
Certificates to the Underwriter.
11. Termination of Agreement; Survival.
(a) The Underwriter may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in the reasonable judgment of the Underwriter,
impracticable to market the Certificates or to enforce contracts for the sale of
the Certificates, or (iii) if trading generally on the New York Stock Exchange
has been suspended, or if a banking moratorium has been declared by either
federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
as provided in Section 10.
(c) The provisions of Section 5(i) regarding the payment of costs and
expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement.
12. Notices. Any notice by the Company to the Underwriter shall be
sufficient if given in writing or by telegraph addressed to the Underwriter at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxx X. Xxxxxxxxx, and
any notice by the Underwriter to the Company shall be sufficient if given in
writing or by telegraph addressed to the Company at 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of the President.
13. Successors. This Agreement shall be binding upon the Underwriter, the
Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the indemnity agreement of the Underwriter contained in Section 8 hereof shall
be deemed to be also for the benefit of directors of the Company, officers of
the Company who have signed the Registration Statement and any person
controlling the Company and the indemnity agreement of the Company contained in
Section 8 shall be deemed to be also for the benefit of any person controlling
the Underwriter. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons
-19-
referred to in this Section, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision contained herein.
14. Business Day. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange is open for trading.
15. Applicable Law. This Agreement will be governed by and construed in
accordance with the substantive laws of the State of New York, applicable to
contracts made and to be performed entirely in said State.
16. Counterparts. This Agreement may be executed in one or more
counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
-20-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriter.
Very truly yours,
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
SCHEDULE I
Underwriting Agreement, dated as of March 9, 1998.
Title and Description of the Certificates:
Xxxxxx Brothers Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1998-C1, Class A-1, Class X-0, Xxxxx
X-0, Class B, Class C, Class D, Class E and Class IO.
Cut-off Date: February 1, 1998
Expected Closing Date: March 11, 1998
CERTIFICATES
====================================================================================================================================
Class A-1 Class A-2 Class A-3 Class B Class C Class D Class E Class IO
--------- --------- --------- ------- ------- ------- ------- --------
------------------------------------------------------------------------------------------------------------------------------------
Initial Aggregate
Certificate Principal $267,810,00 $308,000,000 $642,291,000 $86,390,000 $86,390,000 $90,710,000 $34,556,000 $1,727,817,629(1)
Amount or Certificate
Notional Amount
------------------------------------------------------------------------------------------------------------------------------------
Initial Pass-Through
Rate 6.330% 6.400% 6.480% 6.590% 6.680% 6.980% 7.000% 0.623%
------------------------------------------------------------------------------------------------------------------------------------
Rating(2) Aaa/AAA Aaa/AAA Aaa/AAA Xx0/XX X0/XX Xxx0/XXX Xxx0/XXX- Xxx/XXX
------------------------------------------------------------------------------------------------------------------------------------
Purchase Price(3)
====================================================================================================================================
(1) Notional amount.
(2) By Xxxxx'x Investors Service, Inc., and Duff & Xxxxxx Credit Rating Co.
N/R means "not rated".
(3) Expressed as a percentage of the initial aggregate stated principal amount
or notional principal amount, as applicable, of each class of
Certificates. The Purchase Price for each class of Certificates will
include accrued interest at the initial Pass-Through Rate therefor on the
initial aggregate stated principal amount or notional principal amount
thereof from the Cut-off Date to but not including the Closing Date.
--------------------------------
