EXHIBIT 1.1
Xxxxxx Structured Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1996-1
October [__], 1996
UNDERWRITING AGREEMENT
Xxxxxx Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Xxxxxx Structured Securities Corp., a Delaware corporation (the "Company"),
proposes to issue and sell approximately $[ ] aggregate principal amount of its
Commercial Mortgage Pass-Through Certificates, Series 1996-1, Class E-1 and
Class E-2 Certificates (the "Underwritten Certificates"). The Underwritten
Certificates shall have the following terms (except that the Initial Aggregate
Certificate Principal Amount of each Class of the Underwritten Certificates set
forth below is approximate and is subject to a permitted variance of plus or
minus 5%, depending on the amount of Resolution Trust Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1994-C1, Class E Certificates (the
"Underlying Class E Certificates") actually delivered to the Trustee):
Initial
Aggregate Rated
Certificate Certificate Final
Principal Interest Distribution
Class Amount Rate Date
-----
Class E-1 $ % June 25, 2026
----------
Class E-2 $ % June 25, 2026
The Underwritten Certificates will be issued under a Trust Agreement (the
"Trust Agreement") dated as of October 1, 1996, among the Company and State
Street Bank and Trust Company as trustee (the "Trustee").
This is to confirm the agreement concerning the purchase of the
Underwritten Certificates from the Company by the Underwriters named in Schedule
1 hereto (the "Underwriters").
1. Representations, Warranties and Covenants of the Company.
The Company represents, warrants and agrees that:
(a) A registration statement on Form S-11 (No. 333-10027) with respect to
the Underwritten Certificates has been prepared by the Company and filed with
the Securities and Exchange Commission (the "Commission"), and complies as to
form in all material respects with the requirements of the Securities Act of
1933, as amended (the "Act"), and the rules and regulations of the Commission
thereunder (the "Rules and Regulations"). As used in this Agreement, (i)
"Registration Statement" means that registration statement and all exhibits
thereto, as filed with the Commission pursuant Regulation S-T via XXXXX
transmission; and (ii) "Prospectus" means the prospectus included in the
Registration Statement.
(b) To the extent that any Underwriter (i) has provided to the Company
Collateral term sheets (as defined below) that such Underwriter has provided to
a prospective investor, the Company has filed such Collateral term sheets as an
exhibit to a report on Form 8-K within two business days of its receipt thereof,
or (ii) has provided to the Company Structural term sheets or computational
materials (each as defined below) that such Underwriter has provided to a
prospective investor, the Company will file or cause to be filed with the
Commission a report on Form 8-K containing such Structural term sheet and
computational materials, as soon as reasonably practicable after the date of
this Agreement, but in any event, not later than the date on which the
Prospectus is filed with the Commission pursuant to Regulation S-T via XXXXX
transmission.
(c) 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 Act, the Rules and Regulations, the Trust Indenture Act and
the rules and regulations thereunder (the "1939 Act Rules and Regulations"); 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
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 Underwriters (including any Derived Information)
specifically for inclusion therein.
(d) The Company is not in violation of its corporate charter or by-laws or
in default under any agreement, indenture or instrument the effect of which
violation or default would be material to the Company; the execution, delivery
and performance of this Agreement and the Trust Agreement and the consummation
of the transactions contemplated therein have been, and at the Delivery Date (as
defined in Section 4 hereof) will have been, authorized by all necessary
corporate action and compliance by the Company with the provisions of this
Agreement; the issuance of the Underwritten Certificates and the execution,
delivery and performance by the Company of the Trust Agreement will not conflict
with, result in the creation or imposition of any material lien, charge or
encumbrance upon any of the assets of the Company, other than the lien of the
Trust Agreement, pursuant to the terms of, or constitute a default under, any
material agreement, trust agreement or instrument, or result in a violation of
the corporate charter or bylaws of the Company or any order, rule or regulation
of any court or governmental agency having jurisdiction over the Company or its
properties; and, except as required by the Act, the Trust Indenture Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and applicable
state securities laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement and the Trust Agreement.
(e) Except as described in the Registration Statement and the Prospectus,
there has not been any material adverse change in, or any adverse development
that materially affects, the business, properties, financial condition or
results of operations of the Company from the dates as of which information is
given in the Registration Statement and the Prospectus.
(f) As of the date of this Agreement, each of this Agreement and the Trust
Agreement has been duly and validly authorized, executed and delivered by the
Company and is a valid and legally binding obligation of the Company except as
the enforcement thereof may be limited by bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights generally or by general
principles of equity. On the Delivery Date, (i) the Trust Agreement pursuant to
which the Underwritten Certificates will be issued will have been duly and
validly authorized, executed and delivered by the Company, and will constitute
the valid and legally binding obligations of the Company enforceable with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency or other laws affecting the enforcement of creditors' rights
generally or by general principles of equity and, (ii) upon payment for the
Underwritten Certificates as provided in this Agreement and upon due
authentication and delivery thereof as provided in the Trust Agreement, the
Underwritten Certificates will be validly issued and outstanding, and will
constitute valid and legally binding obligations of the Company entitled to the
benefits of the Trust Agreement, and (iii) the Underwritten Certificates and the
Trust Agreement will conform to the descriptions thereof contained in the
Prospectus.
(g) The Company has been duly incorporated, is validly existing and in good
standing under the laws of the State of Delaware and is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which its ownership of property or the conduct of its business requires such
qualification and has all corporate power and authority necessary to own or hold
its properties and to conduct the business in which it is engaged, except such
jurisdictions, if any, in which the failure to be so qualified will not have a
material adverse effect on its business or properties.
(h) Except as described in the Prospectus, there is no litigation or
governmental proceeding pending or, to the knowledge of the Company, threatened
against the Company that might result in any material adverse change in the
financial condition, results of operations, business or prospects of the Company
or that is required to be disclosed in the Registration Statement.
(i) There are no contracts or other documents that are required to be filed
as exhibits to the Registration Statement by the Act or by the Rules and
Regulations that have not been filed as exhibits to the Registration Statement
or incorporated therein by reference as permitted by the Rules and Regulations
or the 1939 Act Rules and Regulations, or that are required to be summarized in
the Prospectus that are not so summarized.
(j) At or prior to the Delivery Date, the Company will have caused to be
validly assigned, delivered and pledged to the Trustee under the Trust
Agreement, [a portion of] the Underling Class E Certificates, the interests of
which will pass through to the Underwritten Certificates, which Underlying Class
E Certificates (i) has as of the Delivery Date a principal balance of not less
than the aggregate certificate principal amount of the Underwritten Certificates
and the other certificates, if any, issued pursuant to the Trust Agreement, (ii)
has for each Due Date scheduled payments of interest and principal, if any, that
will satisfy the requirements of the Trust Agreement and (iii) conforms in all
material respects with the description thereof in the Prospectus.
(k) At the Delivery Date, the initial Underlying Class E Certificates
delivered to the Trustee pursuant to the Trust Agreement (the "Trust Fund"), the
interests of which pass through to the Underwritten Certificates, will have been
duly and validly assigned, delivered and conveyed by the Company under the Trust
Agreement, and there shall have been filed pursuant to the Uniform Commercial
Code any necessary financing statements with respect to the Underlying Class E
Certificates whose interest pass through to the Underwritten Certificates, in
such states as may be required so that the Trust Agreement will create as
security for the Underwritten Certificates a valid and perfected first priority
security interest in such Trust Fund, and following the Delivery Date the
Company will take any and all action required to protect such security interest
during the term of the Trust Agreement.
[(l)The Company is not, and will not be as a result of the offer and sale
of the Underwritten Certificates as contemplated by the Prospectus, subject to
the provisions of the Investment Company Act of 1940, as amended.]
(m) At the Delivery Date, each Class of the Underwritten Certificates will
have been rated in the bond rating category by a nationally recognized
statistical rating agency (as such term is used in Rule 15c3-1 under the
Exchange Act) as described in the Prospectus relating to the Underwritten
Certificates.
2. Representations, Warranties and Agreements of the Underwriters. Each
Underwriter, severally and not jointly, represents, warrants, covenants and
agrees with the Company that:
(a) It will provide to the Company a copy of any Derived Information no
later than the date preceding the date such Derived Information is required to
be filed with the Commission on Form 8-K pursuant to the No-Action Letters (as
defined below).
(b) All Derived Information provided to the Company by it pursuant to this
Section, as of the date such Derived Information is so provided and as of the
date such Derived Information is filed by the Company with the Commission, will
not contain any untrue statement of a material fact, when considered in
conjunction with the Prospectus, and will not omit to state any material fact
required to be stated therein or necessary, when considered in conjunction with
the Prospectus, to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) If any Derived Information required to be provided by it to the Company
pursuant to this Section is determined to contain any information that is
inaccurate or misleading, the applicable Underwriter responsible for such
Derived Information (whether or not such Derived Information was provided to the
Company or filed with the Commission) shall promptly prepare and deliver to the
Company and each prospective investor which received such Derived Information a
corrected version thereof. All information provided pursuant to this Section
shall be provided within the time periods set forth in Section 2(a).
(d) All Derived Information delivered by it to prospective investors shall
contain a legend satisfactory in substance to the Company.
(e) Notwithstanding any other provision herein, each Underwriter severally
agrees to pay all costs and expenses of the Company incurred in connection with
the filing by the Company of any Derived Information provided by it with the
Commission.
For purposes of this Agreement, the term "Derived Information" means such
portion, if any, of the information delivered to the Company by any Underwriter
pursuant to Section 2(a) hereof for filing with the Commission on Form 8-K as
is:
(i) not contained in the Prospectus without taking into account
information incorporated by reference therein;
(ii) was not included in any computer tape furnished to the Underwriter
bythe Company concerning the assets comprising the Trust; and
(iii)is of the type of information defined as Collateral term sheets,
Structural term sheets or computational materials (as such terms are
interpreted in the No-Action Letters).
The terms "Collateral term sheet" and "Structural term sheet" shall have
the respective meanings assigned to them in the February 13, 1995 letter (the
"PSA Letter") of Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto, were
publicly available February 17, 1995). The term "Collateral term sheet" as used
herein includes any subsequent Collateral term sheet that reflects a substantive
change in the information presented. The term "Computational materials" has the
meaning assigned to it in the May 17, 1994 letter (the "Xxxxxx Letter" and
together with the PSA Letter, the "No-Action Letters") of Brown & Xxxx on behalf
of Xxxxxx, Xxxxxxx & Co., Inc. (which letter, and the SEC staff's response
thereto, were publicly available May 20, 1994).
3. Purchase of the Underwritten Certificates by the Underwriters. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell the
Underwritten Certificates to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the principal amount
of each Class of Underwritten Certificates set forth opposite that underwriter's
name in Schedule 1 hereto, at an aggregate purchase price equal to the sum of
(i) the percentage specified in Schedule 2 hereto with respect to each Class of
Underwritten Certificates multiplied by the principal amount of such Class of
Certificates to be purchased by such Underwriter [and (ii) such Underwriter's
proportionate share (based on the principal amount of Underwritten Certificates
purchased hereunder) of a credit to the Issuer in the amount of
$[______________].]
4. Delivery of and Payment for the Underwritten Certificates. Payment for
the Underwritten Certificates shall be made at the offices of Cadwalader,
Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx by 10:00 A.M. New York
City time, on October [__], 1996, or at such other location, time and date as
shall be agreed upon. This date and time are sometimes referred to as the
"Delivery Date." The Underwritten Certificates, in definitive form, duly
executed and authenticated, shall at the direction of the Underwriters be
delivered by the Company, for safekeeping, against delivery of a safekeeping
receipt, either to the Underwriters at the offices of Xxxxxx Brothers Inc. in
New York, New York, on the business day prior to the Delivery Date, registered
in such names and denominations as the Underwriters shall request in writing at
least four business days prior to the Delivery Date or to the office of the
Underwriters' agent, The Depository Trust Company ("DTC"), in New York, New
York, on the business day prior to the Delivery Date, registered in such names
as DTC shall request in writing at least four business days prior to the
Delivery Date. The Underwritten Certificates shall be delivered or released, as
the case may be, to DTC, in its capacity as initial Holder thereof, on the
Delivery Date, at the office of DTC, against payment of the purchase price to or
under the order of the Company in Federal Reserve or other immediately available
funds. Such Underwritten Certificates shall be made available for checking and
packaging by the Underwriters not less than two business days prior to the
Delivery Date at such place in New York, New York as the Underwriters and the
Company may agree. Time shall be of the essence, and delivery at the times and
places specified pursuant to this Agreement is a further condition of the
obligation of the Underwriters hereunder.
5. Offering by Underwriters. It is understood that the Underwriters propose
to offer the Underwritten Certificates subject to this Agreement for sale to the
public as set forth in the Prospectus.
6. Further Agreements of the Company. The Company agrees:
(a) To furnish promptly to the Underwriters and to counsel for the
Underwriters one signed copy of the Registration Statement as originally filed
with the Commission, and each amendment or supplement thereto filed prior to the
date of the Underwriting Agreement or relating to or covering the Underwritten
Certificates, and a copy of each Prospectus filed with the Commission, including
all consents and exhibits filed therewith;
(b) To deliver promptly to the Underwriters such number of conformed copies
of the Registration Statement and of each amendment or supplement thereto filed
prior to the date of the Underwriting Agreement or relating to or covering the
Underwritten Certificates and, during such period following the date of the
Underwriting Agreement in which any Prospectus is required by law to be
delivered, such number of copies of each Prospectus, as the Underwriters may
reasonably request;
(c) To file promptly with the Commission, during such period following the
date of the Underwriting 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 Underwriters, be
required by the Act or requested by the Commission and approved by the
Underwriters;
(d) Prior to filing with the Commission during the period referred to in
(c) above any amendment or supplement to the Registration Statement or any
Prospectus, to furnish a copy thereof to the Underwriters and to counsel for the
Underwriters, and the Company will not file any such amendment or supplement to
which the Underwriters shall reasonably object;
(e) To advise the Underwriters promptly (i) when any post-effective
amendment to the Registration Statement relating to or covering the Underwritten
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
Underwritten 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
Underwritten 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 (c) above, the Commission shall
issue a stop order suspending the effectiveness of the Registration Statement,
the Company shall be obligated to make every reasonable effort to obtain the
lifting of that order at the earliest possible time;
(g) As soon as practicable, to make generally available to its security
holders and to deliver to the Underwriters an earnings statement conforming with
the requirements of Section 11(a) of the Act and Rule 158 thereunder;
(h) To endeavor to qualify the Underwritten Certificates for offer and sale
under the securities laws of such jurisdictions as the Underwriters may
reasonably request; provided, however, that this Section 6(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; and
(i) To file any documents and any amendments thereof as may be required to
be filed by it pursuant to the Exchange Act.
7. Expenses. The Company agrees to cause to be paid (i) the costs incident
in the preparation, printing and filing under the Act of the Registration
Statement and any amendments thereof and supplements and exhibits thereto, (ii)
the costs of distributing the Registration Statement as originally filed and
each amendment and post-effective amendment thereof (including exhibits), any
Preliminary Prospectus, each Prospectus and any amendment or supplement to the
Prospectus as provided in this Agreement; (iii) the costs of printing and
distributing this Agreement and the Trust Agreement, (iv) the costs of filings,
if any, with the National Association of Securities Dealers, Inc.; (v) fees paid
to any rating agency in connection with the rating of the Underwritten
Certificates, including the Underwritten Certificates; (vi) the fees and
expenses of qualifying the Underwritten Certificates, under the securities laws
of the several jurisdictions as provided in Section 6(h) hereof and of preparing
and printing, if so requested by the Underwriters, a Preliminary Blue Sky Survey
and Legal Investment Survey concerning the legality of the Underwritten
Certificates as an investment (including fees and disbursements of counsel to
the Underwriters in connection therewith) and (vii) any other costs and expenses
incident to the performance of the Company's obligations under this Agreement;
provided, however, that, except as provided in Section 11, the Underwriters
shall pay their own costs and expenses, including the fees and expenses of their
counsel, any transfer taxes on the Underwritten Certificates that they may sell
and the expenses of advertising any offering of the Underwritten Certificates
made by the Underwriters.
8. Conditions of Underwriters' Obligations. The obligation of the
Underwriters to purchase the Underwritten Certificates are subject to the
accuracy, on the date of this Agreement and on the Delivery Date, of the
representations and warranties of the Company contained herein, to performance
by the Company of its obligations hereunder, and to each of the following
additional terms and conditions applicable to the Underwritten Certificates:
(a) At or before the Delivery Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued, and prior to
that time no stop order proceeding shall have been initiated or threatened by
the Commission; any request of the Commission for inclusion of additional
information in the Registration Statement or any Prospectus or otherwise shall
have been complied with; and after the date of this Agreement the Company shall
not have filed with the Commission any amendment or supplement to the
Registration Statement or any Prospectus to which the Underwriters shall have
reasonably objected.
(b) The Underwriters shall not have discovered and disclosed to the Company
on or prior to the Delivery Date that the Registration Statement or any
Prospectus contains an untrue statement of a fact that, in the opinion of
counsel to the Underwriters is material or omits to state a fact that, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Underwritten
Certificates and the Trust Agreement and the form of the Registration Statement,
the Prospectus (other than financial statements and other financial data) and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all respects to counsel
for the Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(d) The Underwriters shall have received from counsel to the Company, a
favorable opinion dated the Delivery Date, satisfactory to their counsel.
(e) The Underwriters shall have received from counsel to the Trustee, a
favorable opinion dated the Delivery Date, satisfactory to their counsel.
(f) The Company shall have furnished to the Underwriters on the Delivery
Date a certificate, dated the Delivery Date, of its Chairman of the Board or
President and its Treasurer, Assistant Treasurer, Secretary or Assistant
Secretary stating that:
(i) The representations and warranties of the Company in Section l hereof
are true and correct as of the Delivery Date; the Company has complied with all
of its agreements and obligations hereunder, and the conditions set forth in
Section 8(a) hereof have been fulfilled; and
(ii) They have carefully examined the Registration Statement and each
Prospectus and, in their opinion, (A) as of the date of each Prospectus, the
Registration Statement and Prospectus did not include any untrue statement of a
material fact and did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and (B)
since the date of each Prospectus, no event has occurred that should have been
set forth in a supplement to or amendment of the Prospectus that has not been
set forth in such a supplement or amendment.
(j) The Company shall have furnished to the Underwriters, at the time the
Underwriting Agreement is executed and at the Delivery Date, accountants letters
addressed to the Underwriters and dated, respectively, the date the Underwriting
Agreement is executed and the Delivery Date, in the forms previously delivered
and agreed to by the Underwriters.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the Underwriters.
9. Conditions of Company's Obligations. The Company shall not be obligated
to deliver any of the Underwritten Certificates except upon payment for all the
Underwritten Certificates to be purchased pursuant to this Agreement as
hereinafter provided.
10. Defaulting Underwriters.
If, on the Delivery Date, any Underwriter defaults in the performance of
its obligations under this Agreement, the remaining non-defaulting Underwriter
shall be obligated to purchase the Underwritten Certificates which the
defaulting Underwriter agreed but failed to purchase on such Delivery Date;
provided, however, that the non-defaulting Underwriter shall not be obligated to
purchase any of the Underwritten Certificates on such Delivery Date if the
principal amount of Underwritten Certificates which the defaulting Underwriter
agreed but failed to purchase on such date exceeds [20%] of the aggregate
principal amount of Underwritten Certificates to be purchased on such Delivery
Date, and the non-defaulting Underwriter shall not be obligated to purchase more
than [125%] of the principal amount of Underwritten Certificates which it agreed
to purchase on such Delivery Date pursuant to the terms of Sections 3 and 4. If
the foregoing maximums are exceeded, the non-defaulting Underwriter, or those
other underwriters satisfactory to the non-defaulting Underwriter who so agree,
shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Underwritten Certificates
to be purchased on such Delivery Date. If the non-defaulting Underwriter or
other underwriters satisfactory to the non-defaulting Underwriter do not elect
to purchase the Underwritten Certificates which the defaulting Underwriter
agreed but failed to purchase on such Delivery Date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the payment of
expenses to the extent set forth in Sections 7, 11 and 13. As used in this
Agreement, the term "Underwriter" includes, for all purposes of this Agreement
unless the context requires otherwise, any party not listed in Schedule 1 hereto
who, pursuant to this Section, purchases Underwritten Certificates which a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If other
underwriters are obligated or agree to purchase the Underwritten Certificates of
a defaulting or withdrawing Underwriter, either the non-defaulting Underwriter
or the Company may postpone the Delivery Date for up to seven full business days
in order to effect any changes that in the opinion of counsel for the Company or
counsel for the Underwriters may be necessary to the Registration Statement, the
Prospectus or to any other document or arrangement.
11. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless the Underwriters and each
person, if any, who controls the Underwriters within the meaning of the Act from
and against any loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which the Underwriters or controlling person may
become subject, under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any Prospectus or arises out of, or is based upon, the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
the Underwriters and such controlling person for any legal and other expenses
reasonably incurred by the Underwriters or controlling person in investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement or
any Prospectus in reliance upon and in conformity with written information
(including any Derived Information) furnished to the Company through the
Underwriters specifically for inclusion therein. The foregoing indemnity is in
addition to any liability that the Company may otherwise have to the
Underwriters or any person or entity controlling the Underwriters.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company, its directors, its officers who signed the Registration
Statement, and any person who controls the Company within the meaning of the Act
from and against any loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any Prospectus, or arises out of, or is based
upon, the omission or alleged omission to state in the Registration Statement or
any Prospectus a material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company through the Underwriters by or on behalf of the
Underwriters specifically for inclusion therein, and shall reimburse the Company
for any legal and other expenses reasonably incurred by the Company or any such
director, officer or controlling person investing or defending or preparing to
defend against any such loss, claim, damage, liability or action. The foregoing
indemnity agreement is in addition to any liability that the Underwriters may
otherwise have to the Company or any of its directors, officers or controlling
persons.
(c) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company, its directors, its officers who signed the Registration
Statement, and any person who controls the Company within the meaning of the Act
from and against any loss, claim, damage or liability, joint or several, and any
action in respect thereof, to which the Company or any such director, officer or
controlling person may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement of a material fact contained in
any Derived Information, or arises out of, or is based upon, the omission or
alleged omission to state in any Derived Information a material fact required to
be stated therein or necessary to make the statements therein not misleading and
shall reimburse the Company for any legal and other expenses reasonably incurred
by the Company or any such director, officer or controlling person investing or
defending or preparing to defend against any such loss, claim, damage, liability
or action. The foregoing indemnity agreement is in addition to any liability
that the Underwriters may otherwise have to the Company or any of its directors,
officers or controlling persons.
(d) Promptly after receipt by an indemnified party under this Section of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party in writing of the claim
or commencement of that action, provided that the failure to so notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under this Section. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided that the Underwriters shall have the right to employ counsel
to represent the Underwriters, and the controlling persons who may be subject to
liability arising out of any claim or action in respect of which indemnity may
be sought by the Underwriters against the Company under this Section, if (i) in
the reasonable judgment of the Underwriters, there may be legal defenses
available to the Underwriters, and those controlling persons, different from or
in addition to those available to the Company, or there is a conflict of
interest between the Underwriters and the controlling persons, on one hand, and
the Company, on the other, or (ii) the Company shall fail to select counsel
reasonably satisfactory to the indemnified party or parties, and in such event
the fees and expenses of such separate counsel shall be paid by the Company. In
no event shall the Company be liable for the fees and expenses of more than one
separate firm of attorneys for the Underwriters and the controlling persons in
connection with any other action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
(e) If the indemnification provided for in this Section shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Underwritten Certificates or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other with respect to
the statements or omissions that resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Underwritten Certificates (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters with respect to such offering. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section shall be deemed to include, for purposes of this Section,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section, the Underwriters shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Certificates underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
the Underwriters has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) The Underwriters severally confirm and the Company acknowledges that
the statements with respect to the public offering of the Underwritten
Certificates by the Underwriters set forth in "Underwriting" in the Prospectus
are correct and constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus.
(g) The indemnity agreements contained in this Section and the
representations, warranties and agreements of the Company in Section 1 and
Section 6 hereof, shall survive the delivery of the Underwritten Certificates,
and the provisions of this Section shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
12. Termination. The obligations of the Underwriters under this Agreement
may be terminated by the Underwriters, in their absolute discretion by notice
given to and received by the Company prior to the delivery of and payment for
the Underwritten Certificates, if, during the period beginning on the date of
this Agreement to and including the Delivery Date, (a) trading in securities
generally on the New York Stock Exchange, Inc. is suspended or minimum prices
are established on that Exchange, (b) a banking moratorium is declared by
Federal or New York State authorities, (c) the United States shall have become
engaged in hostilities which have resulted in the declaration of a national
emergency or a declaration of war, which makes it impracticable or inadvisable
in the Underwriters' reasonable judgment to proceed with the public offering of
the Underwritten Certificates on the terms and in the manner contemplated in the
Prospectus as amended or supplemented, or (d) any rating of any series of
Certificates shall be lowered by the nationally recognized statistical rating
agency (as such term is used in Rule 15c3-1 under the Exchange Act) that
initially rated the Underwritten Certificates.
13. Reimbursement of Underwriters' Expenses. If the sale of the
Underwritten Certificates shall not be consummated other than by reason of
default of any of the Underwriters, the Company shall cause the Underwriters to
be reimbursed for the reasonable fees and expenses of counsel and for such other
out-of-pocket expenses as shall have been incurred in connection with this
Agreement and the proposed purchase of the Underwritten Certificates.
14. Notices, etc. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement by Xxxxxx Brothers Inc. Any notice to the
Underwriters shall be sufficient if given in writing or by telecopy addressed to
Xxxxxx Brothers Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and any notice
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:
President.
15. Persons Entitled to Benefit of the Agreement. This Agreement shall be
binding upon the Underwriters, the Company and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that the indemnity agreement of the Underwriters contained
in Section 11 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 11 shall be deemed to be also for the benefit of
any person controlling the Underwriters. Nothing in this Agreement is intended
or shall be construed to give any person, other than the persons referred to in
this Section, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein.
16. Definition of the term "Business Day." For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18. 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.
19. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the Company and
the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
XXXXXX STRUCTURED SECURITIES CORP.
By:
Name:
Title:
Accepted:
XXXXXX BROTHERS INC.
By:
Name:
Title:
Schedule 1
Lehman
Class Brothers Inc.
Class E-1 $[ ]
Class E-2 $[ ]
Total $[ ]
Schedule 2
Underwriting
Class Price
Class E-1 $[ ]
Class E-2 $[ ]
