Exhibit 1.1
LB-UBS COMMERCIAL MORTGAGE TRUST 2000-C3,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2000-C3
UNDERWRITING AGREEMENT
As of May 9, 2000
Xxxxxx Brothers Inc.
Three World Financial Center
New York, New York 10285
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Structured Asset Securities Corporation, a Delaware corporation (the
"COMPANY"), proposes to cause the issuance of, and to sell to Xxxxxx Brothers
Inc. ("XXXXXX" or the "LEAD UNDERWRITER"), Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX") and Deutsche Bank Securities Inc. ("DBS"; and, collectively with
Xxxxxx and Xxxxxx, the "UNDERWRITERS"), 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"). Certain of the Mortgage Loans
(the "UBSPF MORTGAGE LOANS") will be acquired by the Company from UBS Principal
Finance LLC ("UBSPF"), pursuant to a mortgage loan purchase agreement, dated as
of the date hereof (the "UBSPF MORTGAGE LOAN PURCHASE AGREEMENT"), between the
Company and UBSPF. The other Mortgage Loans (the "HOLDINGS MORTGAGE LOANS") will
be acquired by the Company from Xxxxxx Brothers Holdings Inc., doing business as
Xxxxxx Capital, a division of Xxxxxx Brothers Holdings Inc. ("HOLDINGS" and,
together with UBSPF, the "MORTGAGE LOAN SELLERS"), pursuant to a mortgage loan
purchase agreement dated as of the date hereof (the "HOLDINGS MORTGAGE LOAN
PURCHASE AGREEMENT"; and, together with the UBSPF Mortgage Loan Purchase
Agreement, the "MORTGAGE LOAN PURCHASE AGREEMENTS"), between the Company and
Holdings. In connection with the sale of the UBSPF Mortgage Loans by UBSPF to
the Company, UBSPF, UBS(USA), Inc. ("UBS(USA)"), the Company and the
Underwriters entered into an indemnification agreement dated as of the date
hereof (the "UBS INDEMNIFICATION AGREEMENT"). In connection with the sale of the
Holdings Mortgage Loans by Holdings to the Company, Holdings, the
Company and the Underwriters also entered into an indemnification agreement
dated as of the date hereof (the "HOLDINGS INDEMNIFICATION AGREEMENT"; and,
together with the UBS Indemnification Agreement, the "INDEMNIFICATION
AGREEMENTS").
The Certificates will be issued under a pooling and servicing agreement
to be dated as of May 11, 2000 (the "POOLING AND SERVICING AGREEMENT"), among
the Company as depositor, LaSalle Bank National Association as trustee (the
"TRUSTEE"), First Union National Bank as master servicer (the "MASTER
SERVICER"), Lennar Partners, Inc. as special servicer (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 Underwriters. Capitalized terms
used but not defined herein have the respective meanings assigned thereto in the
Prospectus.
The Certificates are part of a series of mortgage pass-through
certificates that evidence beneficial ownership interests in the Trust Fund and
are being issued pursuant to the Pooling and Servicing Agreement. The other
certificates of such series (the "PRIVATE CERTIFICATES") will be retained by the
Company or privately placed with a limited number of institutional investors.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents, warrants and agrees with the respective Underwriters that:
(a) A registration statement on Form S-3 (No. 333-49129) with
respect to the Certificates has been prepared by the Company and filed with the
Securities and Exchange Commission (the "COMMISSION"), and complies as to form
in all material respects with the requirements of the Securities Act of 1933, as
amended (the "1933 ACT"), and the rules and regulations of the Commission
thereunder, including Rule 415, and has become effective under the 1933 Act. As
used in this Underwriting Agreement (this "AGREEMENT" or the "UNDERWRITING
AGREEMENT"), (i) "REGISTRATION STATEMENT" means that registration statement and
all exhibits thereto, as amended or supplemented to the date of this Agreement;
(ii) "BASIC PROSPECTUS" means the prospectus included in the Registration
Statement at the time it became effective, or as subsequently filed with the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iii)
"PROSPECTUS SUPPLEMENT" means the prospectus supplement specifically relating to
the Certificates, as most recently filed with, or transmitted for filing to, the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iv)
"PROSPECTUS" means the Basic Prospectus, together with the Prospectus
Supplement; (v) "PRELIMINARY PROSPECTUS SUPPLEMENT" means any preliminary form
of the Prospectus Supplement that has heretofore been filed pursuant to
paragraph (b) of Rule 424 of the 1933 Act; and (vi) "PRELIMINARY Prospectus"
means the Basic Prospectus, together with any Preliminary Prospectus Supplement.
The aggregate principal amount of the Certificates does not exceed the remaining
amount of mortgage-backed securities that may be offered and sold 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
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the rules and regulations of the Commission thereunder; and the Registration
Statement and the Prospectus do not, and (in the case of any amendment or
supplement to any such document filed with the Commission after the date as of
which this representation is being made) will not, contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; PROVIDED,
HOWEVER, that the Company makes no representation or warranty as to (i)
information contained in or omitted from the Registration Statement or the
Prospectus, or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by the Underwriters
specifically for inclusion therein, (ii) the information contained in or omitted
from the Prospectus, or any amendment or supplement thereto, in reliance upon
and conformity with (A) the Master Tape (it being acknowledged that the Master
Tape was used to prepare the Prospectus Supplement and any Preliminary
Prospectus Supplement, including, without limitation, Annex X-0, Xxxxx X-0,
Xxxxx X-0 and Annex B to each of the Prospectus Supplement and any Preliminary
Prospectus Supplement and the accompanying diskette, and any Computational
Materials and ABS Term Sheets (each as defined in SECTION 4 hereof) with respect
to the Certificates, (B) the representations and warranties of either Mortgage
Loan Seller set forth in or made pursuant to the related Mortgage Loan Purchase
Agreement, or (C) any other information concerning the Mortgage Loan Seller
Matters furnished to the Company or the Underwriters by either Mortgage Loan
Seller, (iii) the information regarding the Mortgage Loan Seller Matters
contained in or omitted from the Prospectus Supplement, or any amendment or
supplement thereto, under the headings "Summary of Prospectus Supplement--The
Pooled Mortgage Loans and the Underlying Real Properties", "Risk Factors--Risks
Related to the Pooled Mortgage Loans" and "Description of the Mortgage Pool" or
on Annex X-0, Xxxxx X-0, Xxxxx X-0 and Annex B thereto or on the accompanying
diskette, or (iv) the information contained in or omitted from any Computational
Materials or ABS Term Sheets, or any amendment or supplement thereto,
incorporated by reference in the Registration Statement, any Preliminary
Prospectus or the Prospectus (or any amendment thereof or supplement thereto) by
a reason of a filing made in accordance with SECTION 5(h) hereof. The "MASTER
TAPE" consists of the compilation of underlying information and data regarding
the Mortgage Loans covered by the Independent Accountants Report on Applying
Agreed Upon Procedures dated May 9, 2000, as supplemented to the Closing Date,
and rendered by Deloitte & Touche, LLP. The "MORTGAGE LOAN SELLER MATTERS"
consist of the following matters: the Mortgage Loans and the underlying real
properties securing such; the related loan documents and the obligors
thereunder; and the Mortgage Loan Sellers.
(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
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amendment to the Registration Statement becomes effective, as of the date on
which any supplement to the Prospectus Supplement is filed with the Commission,
and as of the Closing Date, there has not and will not have been (i) any request
by the Commission for any further amendment to the Registration Statement or the
Prospectus or for any additional information, (ii) any issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threat of any proceeding for that purpose or
(iii) any notification with respect to the suspension of the qualification of
the Certificates for sale in any jurisdiction or any initiation or threat of any
proceeding for such purpose.
(e) This Agreement has been duly authorized, executed and
delivered by the Company, and the Pooling and Servicing Agreement, when executed
and delivered as contemplated hereby and thereby, will have been duly
authorized, executed and delivered by the Company; and this Agreement
constitutes, and the Pooling and Servicing Agreement, when so executed and
delivered will constitute, legal, valid and binding agreements of the Company,
enforceable against the Company in accordance with their respective terms,
except as enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting the
enforcement of the rights of creditors generally, (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law, and
(iii) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of such agreement or the Pooling and Servicing Agreement that purport
or are construed to provide indemnification from securities law liabilities.
(f) As of the Closing Date, the Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the respective
descriptions thereof contained in the Prospectus. As of the Closing Date, the
Certificates will be duly and validly authorized and, when duly and validly
executed, authenticated and delivered in accordance with the Pooling and
Servicing Agreement to the Underwriters against payment therefor as provided
herein, will be duly and validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement.
(g) At the Closing Date, each of the representations and
warranties of the Company set forth in the Pooling and Servicing Agreement will
be true and correct in all material respects.
(h) The Company is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument the effect of which violation or default would be material to the
Company or which violation or default would have a material adverse affect on
the performance of its obligations under this Agreement or the Pooling and
Servicing Agreement. The execution, delivery and performance by the Company of
this Agreement and the Pooling and Servicing Agreement do not and will not
conflict with or result in a breach of any term or provision of the certificate
of incorporation or by-laws of the Company or conflict with, result in a breach,
violation or acceleration of, or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Company is a party or by
which it or any of its material assets is bound, or any statute, order or
regulation applicable to the Company of any state or Federal court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company.
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(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 or filing with 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 completed, as applicable, or such as
may otherwise be required under applicable state securities laws in connection
with the purchase and offer and sale of the Certificates by the Underwriters,
and except any recordation or filing 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) Neither the Company nor the Trust Fund is, and neither the
issuance and sale of the Certificates in the manner contemplated by the
Prospectus nor the activities of the Trust Fund pursuant to the Pooling and
Servicing Agreement will cause the Company or the Trust Fund to be, an
"investment company" or under the control of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended (the "1940
ACT").
(o) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of the
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interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriters
will constitute reasonably equivalent value and fair consideration for the
Certificates. The Company will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund and the sale of the Certificates to the
Underwriters. The Company is not selling the Certificates to the Underwriters or
transferring the Mortgage Loans to the Trustee on behalf of the Trust Fund with
any intent to hinder, delay or defraud any of the creditors of the Company.
(p) No proceedings looking toward merger, liquidation, dissolution
or bankruptcy of the Company are pending or contemplated.
(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").
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth on
Schedule I hereto, Certificates of each class thereof having the actual or
notional principal amount set forth next to the name of such Underwriter on
Schedule II hereto. Each of the Underwriters shall only be required to purchase
the actual or notional principal amount of the Certificates of each class
thereof set forth next to such Underwriter's name on Schedule II hereto. There
will be added to the purchase price of the Certificates an amount equal to
interest accrued thereon pursuant to the terms thereof from May 11, 2000 to but
excluding the Closing Date. The covenants of the several Underwriters under this
SECTION 2 inure not only to the benefit of the Company, but also to the benefit
of each other.
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 May
18, 2000 or at such other location, time and date as shall be mutually agreed
upon by the Lead Underwriter and the Company (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 Lead Underwriter and the Company), against
delivery of the Certificates. The Certificates will be made available for
examination by the Underwriters not later than 3:00 p.m. New York City time on
the last business day prior to the Closing Date.
References herein, including, without limitation, in the Schedules
hereto, to actions taken or to be taken following the Closing Date with respect
to any Certificates that are to be delivered through the facilities of DTC shall
include, if the context so permits, actions taken or to be taken with respect to
the interests in such Certificates as reflected on the books and records of DTC.
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4. OFFERING BY THE UNDERWRITERS.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale to the public, including, without limitation, in and from
the State of New York, as set forth in the Prospectus Supplement. It is further
understood that the Company, in reliance upon Policy Statement 105 has not and
will not file the offering pursuant to Section 352-e of the General Business Law
of the State of New York with respect to the Certificates which are not
"mortgage related securities" as defined in the 1934 Act (as defined below).
Accordingly, each Underwriter covenants and agrees with the Company that sales
of such Certificates made by such Underwriter in the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
(b) The Underwriters may prepare and provide (and acknowledge that
they have prepared and provided) to prospective investors certain Computational
Materials or ABS Term Sheets in connection with the offering of the
Certificates. In this regard, each Underwriter represents and warrants to, and
covenants with, the Company that:
(i) Such Underwriter has complied and shall comply with
the requirements of the no-action letter, dated May 20, 1994, issued by
the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation, as
made applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association, dated May
27, 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 No-Action Letters.
(iii) All Computational Materials and ABS Term Sheets in
respect of the Certificates provided to prospective investors by such
Underwriter have borne or shall bear, as the case may be, a legend in a
form previously approved by the Company or its counsel.
(iv) Such Underwriter has not distributed and shall not
distribute any such Computational Materials or ABS Term Sheets in
respect of the Certificates, the forms and methodology of which are not
in accordance with this Agreement. Such Underwriter has provided or
shall provide, as the case may be, to the Company, for filing pursuant
to a Current Report on Form 8-K as provided in SECTION 5(h) hereof,
copies (in such format as required by the Company) of all such
Computational Materials and ABS Term Sheets. Such Underwriter may
provide copies of the foregoing in a consolidated or aggregated form
including all information required to be filed. All Computational
Materials and ABS Term Sheets described in this PARAGRAPH (b)(iv) must
be or must have been, as applicable, provided to the Company in paper
or electronic format suitable for filing with the Commission not later
than 10:00 a.m. (New York City time) at least
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one business day before filing thereof is or was, as the case may be,
required pursuant to the terms of the No-Action Letters.
(v) All information included in any Computational
Materials and ABS Term Sheets in respect of the Certificates provided
to prospective investors by such Underwriter has been or shall be
generated based on substantially the same methodology and assumptions
as are used to generate the information in the Prospectus Supplement as
set forth therein; PROVIDED that such Computational Materials and ABS
Term Sheets may include information based on alternative methodologies
or assumptions if specified therein. If any Computational Materials or
ABS Term Sheets in respect of the Certificates provided to prospective
investors by such Underwriter were based on assumptions with respect to
the Mortgage Pool that differ from the Prospectus Supplement in any
material respect or on Certificate structuring assumptions (except in
the case of Computational Materials when the different structuring
terms were hypothesized and so described) that were revised in any
material respect prior to the printing of the Prospectus, then to the
extent that it has not already done so, such Underwriter shall
immediately inform the Company and, upon the direction of the Company,
and if not corrected by the Prospectus, shall prepare revised
Computational Materials and/or ABS Term Sheets, as the case may be,
based on information regarding the Mortgage Pool and Certificate
structuring assumptions consistent with the Prospectus, circulate such
revised Computational Materials and ABS Term Sheets to all recipients
of the preliminary versions thereof, and include such revised
Computational Materials and ABS Term Sheets (marked, "as revised") in
the materials delivered to the Company pursuant to PARAGRAPH (b)(iv)
above.
(vi) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined to
contain any material error or omission, PROVIDED that the Company will
file Computational Materials or ABS Term Sheets that contain a material
error or, when read together with the Prospectus, a material omission,
if clearly marked (A) "superseded by materials dated [specify date]"
and accompanied by corrected Computational Materials or ABS Term Sheets
that are marked "material previously dated [specify date], as
corrected", or (B) if the material error or omission is to be corrected
in the Prospectus, "superseded by materials contained in the
Prospectus." If, within the period during which the Prospectus relating
to the Certificates is required to be delivered under the 1933 Act and
the rules and regulations of the Commission thereunder, any
Computational Materials or ABS Term Sheets in respect of the
Certificates provided to prospective investors by such Underwriter are
determined, in the reasonable judgment of the Company or such
Underwriter, to contain a material error or, when read together with
the Prospectus, a material omission, then (unless the material error or
omission was corrected in the Prospectus) such Underwriter shall
prepare, or cause the preparation of, a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such
corrected Computational Materials or ABS Term Sheets to all recipients
of the prior versions thereof, and shall deliver copies of such
corrected Computational Materials or ABS Term Sheets (marked, "as
corrected") to the Company for filing with the Commission in a
subsequent Current Report on Form 8-K submission (subject to the
Company's obtaining an accountant's comfort letter in respect of such
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corrected Computational Materials and ABS Term Sheets, which shall be
at the expense of such Underwriter).
(vii) Such Underwriter shall be deemed to have represented,
as of the Closing Date, that except for Computational Materials and/or
ABS Term Sheets provided to the Company pursuant to or as contemplated
by PARAGRAPH (b)(iv) above, such Underwriter did not provide any
prospective investors with any information in written or electronic
form in connection with the offering of the Certificates that is
required to be filed with the Commission in accordance with the
No-Action Letters.
(viii) In the event of any delay in the delivery by any
Underwriter to the Company of all Computational Materials and ABS Term
Sheets in respect of the Certificates required to be delivered in
accordance with or as contemplated by PARAGRAPH (b)(iv) above, the
Company shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Closing Date and to take
other appropriate actions in each case as necessary in order to allow
the Company to comply with its agreement set forth in SECTION 5(h)
hereof to file the Computational Materials and ABS Term Sheets by the
time specified therein.
(ix) Computational Materials and ABS Term Sheets
distributed by such Underwriter through electronic means have been so
distributed in accordance with SEC Release No. 33-7233.
(c) Each Underwriter makes, for the benefit of the other
Underwriters, each of the representations, warranties and covenants made by it
for the benefit of the Company in SECTION 4(a) and SECTION 4(b) above.
5. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants
with the respective Underwriters that:
(a) During such period following the date of this Agreement in
which any Prospectus is required to be delivered under the 1933 Act (the
"PROSPECTUS DELIVERY PERIOD"), the Company will deliver to each Underwriter such
number of copies of each Prospectus as such Underwriter may reasonably request.
(b) During the Prospectus Delivery Period, the Company will file
promptly with the Commission any amendment or supplement to the Registration
Statement or any Prospectus relating to or covering the Certificates that may,
in the judgment of the Company or the Lead Underwriter, be required by the 1933
Act and the rules and regulations of the Commission thereunder or requested by
the Commission and approved by the Lead Underwriter.
(c) Prior to filing with the Commission during the Prospectus Delivery Period
any amendment or supplement to the Registration Statement relating to or
covering the Certificates (other than a filing pursuant to Rule 415 and Rule 429
under the 0000 Xxx) or any amendment or supplement to the Prospectus, the
Company will furnish a copy thereof to the Underwriters and to Sidley & Austin,
as
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special counsel for the Underwriters, and the Company will not file any such
amendment or supplement to which the Lead Underwriter shall reasonably object.
(d) The Company will advise the Underwriters promptly (i) when,
during the Prospectus Delivery Period, any post-effective amendment to the
Registration Statement relating to or covering the Certificates (other than any
amendment pursuant to Rule 415 and Rule 429 under the 0000 Xxx) becomes
effective, (ii) of any request or proposed request by the Commission for any
amendment or supplement to the Registration Statement (insofar as the amendment
or supplement relates to or covers the Certificates), for any amendment or
supplement to the Prospectus or for any additional information with respect to
the Certificates, (iii) of the issuance by the Commission, during the Prospectus
Delivery Period, of any stop order suspending the effectiveness of the
Registration Statement 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, during the Prospectus Delivery Period, 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 or addition to the
Registration Statement or any Prospectus in order to make any material statement
therein not misleading.
(e) If, during the Prospectus Delivery Period, the Commission
issues an order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the lifting of that order at
the earliest possible time.
(f) The Company will endeavor to qualify the Certificates for
offer and sale under the securities laws of such jurisdictions as the Lead
Underwriter may reasonably request, PROVIDED, HOWEVER, that this SECTION 5(f)
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.
(g) The costs and expenses associated with the transactions
contemplated by this Agreement shall be payable by the Mortgage Loan Sellers as
and to the extent provided in the engagement letter dated February 15, 2000 (the
"ENGAGEMENT LETTER"), between the Lead Underwriter and UBS Warburg LLC (formerly
known as Warburg Dillon Read LLC), and shall otherwise be payable by the party
that incurred such cost or expense; PROVIDED that neither Xxxxxx nor DBS shall
be responsible pursuant to this SECTION 5(g) for any costs and expenses incurred
by the Company, the Lead Underwriter or either Mortgage Loan Seller, it being
acknowledged and agreed that Xxxxxx and DBS shall each be responsible only for
costs and expenses actually incurred by them, including, without limitation, the
fees and disbursements of Xxxxxx & Xxxxxxx as special counsel to them. In
connection with the foregoing, it is understood and agreed by all parties hereto
that 100% of the underwriting fees payable to Xxxxxx and DBS are the direct
obligation of UBSPF. Furthermore, UBSPF has agreed to reimburse Xxxxxx and DBS
for (or, at the direction of Xxxxxx and DBS, to pay directly) 100% of the fees
and disbursements of Xxxxxx & Xxxxxxx, as special counsel to Xxxxxx and DBS.
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(h) The Company will file any documents and any amendments thereof
as may be required to be filed by it pursuant to the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 ACT"), and the rules and regulations
of the Commission under the 1933 Act and the 1934 Act, including, but not
limited to, the filing with the Commission pursuant to a Current Report on Form
8-K, subject to SECTION 4 hereof, of all Computational Materials and ABS Term
Sheets in respect of the Certificates furnished by any Underwriter and
identified by it as such. Subject to compliance by each Underwriter with SECTION
4(b)(iv) hereof, the Company will file all such Computational Materials and ABS
Term Sheets within the time period allotted for such filing pursuant to the
No-Action Letters. Subject to compliance by each Underwriter with SECTION
4(b)(iv) hereof, 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) hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters hereunder to purchase the Certificates
shall be subject to the accuracy in all material respects of the representations
and warranties on the part of the Company contained herein as of the date
hereof, as of the date of the effectiveness of any amendment to the Registration
Statement filed prior to the Closing Date, as of the date the Prospectus
Supplement or any supplement thereto is filed with the Commission prior to the
Closing Date and as of the Closing Date, to the accuracy of the statements of
the Company made in any certificates delivered pursuant to the provisions
hereof, to the performance in all material respects by the Company of its
obligations hereunder and to satisfaction, as of the Closing Date, of the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or, to
the Company's knowledge, threatened; and the Prospectus Supplement shall have
been filed or transmitted for filing with the Commission in accordance with Rule
424 under the 0000 Xxx.
(b) The Company shall have delivered to the Underwriters a
certificate of the Company, signed by an authorized officer of the Company and
dated the Closing Date, to the effect that: (i) the representations and
warranties of the Company in this Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on the
Closing Date; and (ii) the Company has in all material respects complied with
all the agreements and satisfied all the conditions on its part that are
required hereby to be performed or satisfied at or prior to the Closing Date.
(c) The Underwriters shall have received with respect to the
Company a good standing certificate from the Secretary of State of the State of
Delaware, dated not earlier than 10 days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an
assistant secretary of the Company, in his individual capacity, a certificate,
dated the Closing Date, to the effect that: (i) each individual who, as an
officer or representative of the Company, signed this Agreement, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreements or any other document
or certificate
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delivered on or before the Closing Date in connection with the transactions
contemplated herein, in the Pooling and Servicing Agreement or in the Mortgage
Loan Purchase Agreements, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed, qualified
and acting as such officer or representative, and the signatures of such persons
appearing on such documents and certificates are their genuine signatures; and
(ii) no event (including, without limitation, any act or omission on the part of
the Company) has occurred since the date of the good standing certificate
referred to in PARAGRAPH (c) above which has affected the good standing of the
Company under the laws of the State of Delaware. Such certificate shall be
accompanied by true and complete copies (certified as such by the Secretary or
an assistant secretary of the Company) of the certificate of incorporation and
by-laws of the Company, as in effect on the Closing Date, and of the resolutions
of the Company and any required shareholder consent relating to the transactions
contemplated in this Agreement, the Pooling and Servicing Agreement and the
Mortgage Loan Purchase Agreements.
(e) The Underwriters shall have received from Sidley & Austin,
special counsel for the Company, a favorable opinion, dated the Closing Date,
substantially in the form attached hereto as EXHIBIT A-1.
(f) The Underwriters shall have received copies of all legal
opinion letters delivered by Sidley & Austin, special counsel for the Company,
to the Rating Agencies in connection with the issuance of the Certificates,
accompanied in each case by a letter signed by Sidley & Austin stating that the
Underwriters may rely on such opinion letter as if it were addressed to them as
of date thereof.
(g) The Underwriters shall have received from in-house counsel for
the Company, a favorable opinion, dated the Closing Date, substantially in the
form attached hereto as EXHIBIT A-2.
(h) The Underwriters shall have received from Sidley & Austin,
special counsel for the Company and the Underwriters, a letter, dated the
Closing Date, substantially in the form attached hereto as EXHIBIT A-3,
regarding certain information in the Registration Statement and the Prospectus.
(i) The Underwriters shall have received from Deloitte & Touche,
LLP, certified public accountants, a letter dated the Closing Date and
satisfactory in form and substance to the Lead Underwriter and Sidley & Austin
and Xxxxxx & Xxxxxxx, as special counsel for the Underwriters, to the following
effect:
(i) they have performed certain specified procedures as a
result of which they have determined that the information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement under the captions "Summary of the Prospectus Supplement,"
"Description of the Mortgage Pool" and "Yield and Maturity
Considerations" and on Annex X-0, Xxxxx X-0, Xxxxx X-0 and Annex B
agrees with the data sheet or computer tape prepared by or on behalf of
the Mortgage Loan Sellers, except for such non-material deviations as
are otherwise noted in such letter; and
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(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 agreed upon documents that are part 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, except for such non-material deviations as are
otherwise noted in such letter.
(j) The Underwriters shall have received, with respect to each of
the Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent, a
favorable opinion of counsel, dated the Closing Date, addressing: the valid
existence of such party under the laws of its jurisdiction of organization; the
due authorization, execution and delivery of the Pooling and Servicing Agreement
by such party; the enforceability of the Pooling and Servicing Agreement against
such party, subject to such limitations as are reasonably acceptable to the Lead
Underwriter and Sidley & Austin, as special counsel for the Underwriters; and
such other matters as the Lead Underwriter and Sidley & Austin, as special
counsel for the Underwriters, may reasonably request. Counsel rendering each
such opinion may express its reliance as to factual matters on representations
and warranties made by, and on certificates or other documents furnished by
officers and/or authorized representatives of, the parties to the Pooling and
Servicing Agreement and on certificates furnished by public officials and,
further, may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the party on behalf of which such opinion is being rendered. Each such opinion
need cover only the laws of the State of New York, the laws of the jurisdiction
of organization for the party on behalf of which such opinion is being rendered
and the federal law of the United States.
(k) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by UBSPF and UBS(USA) in
connection with the sale by UBSPF of the UBSPF Mortgage Loans to the Company,
pursuant to the UBSPF Mortgage Loan Purchase Agreement. The Underwriters shall
be entitled to rely on each such certificate executed and delivered by UBSPF,
UBS(USA) or any of their respective officers and representatives, to the same
extent that the Company may so rely, and each such opinion addressed to the
Company shall also be addressed to the Underwriters.
(l) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by Holdings in connection
with the sale by Holdings of its Mortgage Loans to the Company, pursuant to the
Holdings Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to
rely on each such certificate executed and delivered by Holdings or any of its
officers and representatives, to the same extent that the Company may so rely,
and each such opinion addressed to the Company shall also be addressed to the
Underwriters.
(m) The Underwriters and Sidley & Austin, as special counsel for
the Underwriters, shall have been furnished with such other documents and
opinions as the Lead Underwriters and Sidley & Austin, as special counsel for
the Underwriters, 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.
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(n) The Certificates shall have been assigned ratings no less
than those set forth on Schedule I and such ratings shall not have been
qualified, downgraded or withdrawn.
If any of the conditions specified in this SECTION 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in material breach of any covenants or agreements contained
herein or if any of the opinions and certificates referred to above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to the Underwriters and Sidley & Austin, as special
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be cancelled at, or at any time prior to, the Closing
Date by the Underwriters. Notice of such cancellation shall be given to the
Company in writing, or by telephone or telegraph confirmed in writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in SECTION 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform in all material respects any agreement herein or comply in all material
respects with any provision hereof, other than by reason of a default by the
Underwriters or a refusal, inability or failure on the part of UBSPF to perform
in all material respects any agreement in, or comply in all material respects
with any provision of, its Mortgage Loan Purchase Agreement, the Company will
reimburse the Underwriters upon demand, for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by any of them in connection with the proposed purchase and sale of the
Certificates. UBSPF has agreed that, if the sale of the Certificates provided
for herein is not consummated because of a refusal, inability or failure on the
part of UBSPF to perform in all material respects any agreement in, or comply in
all material respects with any provision of, its Mortgage Loan Purchase
Agreement, UBSPF will reimburse the Underwriters upon demand, for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by any of them in connection with the proposed
purchase and sale of the Certificates.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls any 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 losses, liabilities, claims,
damages, costs and expenses whatsoever, as incurred, arising out of or
based upon 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 or based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus or any Preliminary Prospectus (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;
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(ii) against any and all losses, liabilities, claims,
damages, costs and expenses 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, contemplated by CLAUSE (i) ABOVE, if such settlement is
effected with the written consent of the Company or as otherwise
provided in SECTION 8(c) hereof; and
(iii) against any and all expenses whatsoever, as incurred
(including, without limitation, the fees and disbursements of counsel
chosen by the Lead 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,
contemplated by CLAUSE (i) above, to the extent that any such expense
is not paid under CLAUSE (i) or (ii) above;
PROVIDED, HOWEVER, that the Company shall not be liable under the indemnity
agreement in this SUBSECTION (a) for any such loss, liability, claim, damage,
cost or expense that arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission contemplated by CLAUSE (i)
above that was made in reliance upon and in conformity with written information
(as specified in SECTION 8(b) below) furnished to the Company by any Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or in
the Prospectus or any Preliminary Prospectus (or any amendment or supplement
thereto); and PROVIDED, FURTHER, that the Company shall not be liable under the
indemnity agreement in this SUBSECTION (a) for any such loss, liability, claim,
damage, cost or expense that arises out of or is based upon any untrue statement
or omission or alleged untrue statement or omission contemplated by CLAUSE (i)
above that was made in any Computational Materials or ABS Term Sheets (or any
amendments or supplements thereto) in respect of the Certificates delivered to
prospective investors by one or more of the Underwriters and furnished to the
Company by any of the Underwriters pursuant to SECTION 4(b)(iv) hereof and made
a part of the Registration Statement or incorporated by reference in the
Prospectus or any Preliminary Prospectus; and PROVIDED, FURTHER, that the
Company shall not be liable under the indemnity agreement in this SUBSECTION (a)
for any such loss, liability, claim, damage, cost or expense that arises out of
or is based upon (A) any untrue statement or omission or alleged untrue
statement or omission contemplated by CLAUSE (i) above that was made in the
Prospectus or any Preliminary Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with (1) the Master Tape (it being
acknowledged that the Master Tape was used to prepare the Prospectus Supplement
and any Preliminary Prospectus Supplement, including, without limitation, Annex
X-0, Xxxxx X-0, Xxxxx X-0 and Annex B thereto and the accompanying diskette),
(2) the representations and warranties of either Mortgage Loan Seller set forth
in or made pursuant to the related Mortgage Loan Purchase Agreement or (3) any
other information concerning the Mortgage Loan Seller Matters furnished to the
Company or the Underwriters by either Mortgage Loan Seller, or (B) any untrue
statement or omission or alleged untrue statement or omission contemplated by
CLAUSE (i) above that was made in the Prospectus Supplement or any Preliminary
Prospectus Supplement (or any amendment or supplement
-15-
thereto) concerning the Mortgage Loan Seller Matters under the headings "Summary
of Prospectus Supplement--The Pooled Mortgage Loans and the Underlying Real
Properties", "Risk Factors--Risks Related to the Pooled Mortgage Loans" and
"Description of the Mortgage Pool" therein or on Annex X-0, Xxxxx X-0, Xxxxx X-0
and Annex B thereto or on the accompanying diskette; and, PROVIDED, FURTHER,
that the Company shall not be liable to any Underwriter or any person
controlling such Underwriter under the indemnity agreement in this SUBSECTION
(a) for any such loss, liability, claim, damage, cost or expense that arises out
of or is based upon any untrue statement or omission contemplated by CLAUSE (i)
above that was made in any Preliminary Prospectus to the extent that such
losses, liabilities, claims, damages, costs or expenses result from the fact
that such Underwriter sold Certificates to a person as to whom it shall be
established that there was not sent or given, at or prior to the confirmation of
such sale, a copy of the Prospectus (excluding documents incorporated therein by
reference), such untrue statement or omission had been corrected in the
Prospectus and a sufficient number of copies of the Prospectus had been provided
by the Company to such Underwriter prior to the confirmation of such sale.
(b) The respective Underwriters, severally and not jointly, each
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 losses, liabilities, claims, damages,
costs and expenses described in CLAUSES (i), (ii) and (iii) of SECTION 8(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Prospectus or any
Preliminary Prospectus (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with written information relating to such
Underwriter furnished to the Company by such Underwriter, or by the Lead
Underwriter on its behalf, expressly for use in the Prospectus or such
Preliminary Prospectus (or any amendment or supplement thereto), or made in any
Computational Materials or ABS Term Sheets in respect of the Certificates
furnished by such Underwriter to prospective investors; PROVIDED, HOWEVER, that
such Underwriter shall not be liable under the indemnity agreement in this
SUBSECTION (b) for any such loss, liability, claim, damage, cost or expense that
arises out of or is based upon any untrue statement or omission in any such
Computational Materials or ABS Term Sheets to the extent that such loss,
liability, claim, damage or expense is covered by the indemnity agreement
included in SECTION 1(a) of either Indemnification Agreement, unless it shall be
established that such Underwriter was notified electronically or in writing of
such untrue statement or omission prior to the time of confirmation of sale to
the person that purchased the Certificates that are the subject of such loss,
liability, claim, damage or expense, or action in respect thereof, and such
Underwriter failed to deliver to such person corrected Computational Materials
or ABS Term Sheets (or, if the superseding or correcting information is
contained in the Prospectus, failed to deliver to such person such Prospectus)
prior to confirmation of such sale to such person. It is hereby acknowledged
that (i) the statements set forth in the second and third sentences of the
penultimate paragraph, and the first, second and third sentences of the last
paragraph, on the cover of the Prospectus Supplement and any Preliminary
Prospectus Supplement, and (ii) the statements in the table and in the first
sentence of each of the second and fourth paragraphs under the caption "Method
of Distribution" in the Prospectus Supplement or any Preliminary Prospectus
Supplement, constitute the only written information furnished to the Company by
the Underwriters,
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including, without limitation, by the Lead Underwriter on behalf of any other
Underwriter, expressly for use in the Prospectus or any Preliminary Prospectus.
(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 the indemnity
agreement in SUBSECTION (a) or (b), as applicable, of this SECTION 8. An
indemnifying party may participate at its own expense in the defense of any such
action and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of such
counsel, or (ii) the indemnifying party shall not have assumed the defense of
such action, with counsel satisfactory to the indemnified party, within a
reasonable period following the indemnifying party's receiving notice of such
action, or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In no event shall
the indemnifying party or parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from its or their own
counsel to 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.
An indemnifying party shall not be liable for any settlement of any
proceeding effected without its consent. If any proceeding is settled with such
consent or if there is a final judgment for the plaintiff, however, the
indemnifying party shall indemnify the indemnified party from and against any
loss, claim, damage, liability, cost or expense by reason of such settlement or
judgment. Notwithstanding the foregoing, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel for which the indemnifying party is obligated under this SECTION 8, (ii)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (iii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this SECTION 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of
-17-
such litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) The amount paid or payable by an indemnified party as a result
of the losses, liabilities, claims, damages, costs or expenses referred to in
this SECTION 8 shall be deemed to include any legal fees and disbursements or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim except where the indemnified party is
required to bear such expenses, which expenses the indemnifying party shall pay
as and when incurred, at the request of the indemnified party, to the extent
that it is reasonable to believe that the indemnifying party will be ultimately
obligated to pay such expenses. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment.
(e) The remedies provided for in this SECTION 8 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity agreements contained in this SECTION 8 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or any of the Underwriters, and (iii) acceptance of and payment for any
of the Certificates.
9. CONTRIBUTION.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in SECTION 8(a) or
SECTION 8(b) hereof is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, on the one hand, and the Underwriters, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages, costs and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company, on the one hand, or the Underwriters, on the other hand, as incurred,
(i) in such proportions as are appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, from the transactions contemplated by this Agreement, 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 hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages, costs and/or expenses, as well as any other relevant equitable
considerations; PROVIDED, HOWEVER, that in no case shall any Underwriter be
responsible under this SECTION 9(a) for any amount in excess of the fees
received by such Underwriter in connection with the underwriting of the
Certificates, less any amount previously paid by such Underwriter in respect of
the subject losses, liabilities, claims, damages, costs and/or expenses. For
purposes of the foregoing, the benefits received by the Company in connection
with the transactions contemplated by this Agreement shall be deemed to be equal
to the positive difference (if any) between the total gross proceeds from the
sale of the Certificates (before deducting expenses, but excluding fees
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paid to the Underwriters) received by the Company, and the benefits received by
each Underwriter in connection with the transactions contemplated by this
Agreement shall be deemed to be equal to the fees received by such Underwriter
in connection with the underwriting of the Certificates. The relative fault of
the Company, on the one hand, and the Underwriters, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this SECTION 9(a) were determined by PER CAPITA allocation or by any other
method of allocation that does not take account of the considerations referred
to in this SECTION 9(a).
(b) Notwithstanding the foregoing, 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. For purposes of this SECTION 9, each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The remedies
provided for in this SECTION 9 are not exclusive and shall not limit any rights
or remedies that may otherwise be available at law or in equity to any party
entitled to contribution under this SECTION 9.
(c) The contribution agreements contained in this SECTION 9 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or any of the Underwriters, and (iii) acceptance of and payment for any
of the Certificates.
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 any 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 hereof, and shall survive
delivery of the Certificates to the Underwriters.
11. TERMINATION OF AGREEMENT; SURVIVAL.
(a) The Underwriters may terminate the obligations of the
Underwriters under 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
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make it, in the reasonable judgment of the Underwriters, 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 11,
such termination shall be without liability of any party to any other party,
except as provided in SECTION 11(c) below.
(c) The provisions of SECTION 5(g) hereof regarding the payment of
costs and expenses and the provisions of SECTIONS 8 and 9 hereof shall survive
the termination of this Agreement.
12. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter shall fail to take up and pay for the
amount of the Certificates agreed by such Underwriter to be purchased under this
Agreement, upon tender of such Certificates in accordance with the terms hereof,
and the amount of the Certificates not purchased does not aggregate more than
10% of the total amount of the Certificates set forth in Schedule II hereof
(based on aggregate purchase price), then the remaining Underwriters shall be
obligated to take up and pay for the Certificates that the withdrawing or
defaulting Underwriter agreed but failed to purchase, on a PRO RATA basis in
accordance with the respective aggregate purchase prices to be paid by the
remaining Underwriters for the Certificates originally allocated thereto on
SCHEDULE II.
(b) If any Underwriter shall fail to take up and pay for the
amount of the Certificates agreed by such Underwriter to be purchased under this
Agreement (such Underwriter being a "DEFAULTING UNDERWRITER"), upon tender of
such Certificates in accordance with the terms hereof, and the amount of the
Certificates not purchased aggregates more than 10% of the total amount of the
Certificates set forth in SCHEDULE II hereto (based on aggregate purchase
price), and arrangements satisfactory to the remaining Underwriters and the
Company for the purchase of such Certificates by other persons are not made
within 36 hours thereafter, this Agreement shall terminate. In the event of any
such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in SECTION 5(g), SECTION 8 and
SECTION 9 hereof), nor shall any Underwriter (other than the Defaulting
Underwriter) be under any liability to the Company (except to the extent
provided in SECTIONS 8 and 9 hereof). Nothing herein shall be deemed to relieve
any Defaulting Underwriter from any liability it may have to the Company or the
other Underwriters by reason of its failure to take up and pay for Certificates
as agreed by such Defaulting Underwriter.
13. NOTICES. Any notice by the Company to any Underwriter shall be
sufficient if given in writing or by telegraph addressed to the address for such
Underwriter set forth on SCHEDULE II hereto and any notice by any 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.
14. BENEFICIARIES. 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
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of only those persons, except that the indemnity agreement of the Underwriters
contained in SECTION 8 hereof and the contribution agreement of the Underwriters
contained in SECTION 9 hereof shall each 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 hereof and the contribution
agreement of the Company contained in SECTION 9 hereof shall each be deemed to
be also for the benefit of any person controlling an Underwriter. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this SECTION 14, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
15. BUSINESS DAY. For purposes of this Agreement, "business day"
means any day on which the New York Stock Exchange is open for trading.
16. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of New York,
applicable to contracts made and to be performed entirely in said State.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
18. WAIVERS, MODIFICATIONS AND AMENDMENTS. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought.
-21-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this instrument, along with all counterparts, and your acceptance
shall represent a binding agreement between the Company and the Underwriters.
Very truly yours,
STRUCTURED ASSET SECURITIES
CORPORATION
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
Confirmed and accepted as of the date first above written:
XXXXXX BROTHERS INC. DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxx Xxx Xxxxxx By: /s/ Xxx X. Xxxxxxx
--------------------------------- -----------------------------------
Name: Xxxx Xxx Xxxxxx Name: Xxx X. Xxxxxxx
Title: Managing Director Title: Director
XXXXXX XXXXXXX & CO. INCORPORATED By: /s/ Xxx XxXxxxxxx
-----------------------------------
Name: Xxx XxXxxxxxx
Title: Director
By: /s/ Xxxxxx X. Friend
---------------------------------
Name: Xxxxxx X. Friend
Title: Managing Director
Confirmed and accepted as of the date first above written, solely for purposes
of SECTIONS 5(g) and 7:
UBS PRINCIPAL FINANCE LLC
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Director
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Director
SCHEDULE I
Underwriting Agreement, dated as of May 9, 2000.
Title and Description of the Certificates: LB-UBS Commercial Mortgage Trust
2000-C3, Commercial Mortgage
Pass-Through Certificates, Series
2000-C3, Class A-1, Class A-2, Class
B, Class C, Class D, Class E, Class
F, Class G and Class X.
Cut-off Date: May 11, 2000
Expected Closing Date: May 18, 2000
CERTIFICATES
----------------------------------------------------------------------------------------------------------------------------
CLASS A-1 CLASS A-2 CLASS B CLASS C CLASS D CLASS E CLASS F
----------------------------------------------------------------------------------------------------------------------------
Initial Aggregate Principal
or Notional Amount $400,000,000 $641,288,000 $71,813,000 $48,964,000 $19,585,000 $13,057,000 $13,057,000
---------------------------- -------------- ------------- ------------ ------------ ------------- ------------ ------------
Initial Pass-Through Rate 7.950% 7.950% 7.950% 7.950% 7.950% 7.950% 7.950%
---------------------------- -------------- ------------- ------------ ------------ ------------- ------------ ------------
Rating(2) Aaa/AAA Aaa/AAA Xx0/XX X0/X X0/X- Xxx0/XXXx Xxx0/XXX
---------------------------- -------------- ------------- ------------ ------------ ------------- ------------ ------------
Purchase Price(3) 100.08773% 98.97495% 98.07151% 97.31586% 96.69600% 94.44960% 93.96522%
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------
CLASS G CLASS X
----------------------------------------------------------------
Initial Aggregate Principal
or Notional Amount $11,751,000 $1,305,691,486(1)
---------------------------- ------------ ---------------------
Initial Pass-Through Rate 7.950% 0.594%
---------------------------- ------------ ---------------------
Rating(2) Baa3/BBB- Aaa/AAA
---------------------------- ------------ ---------------------
Purchase Price(3) 91.18551% 2.57526%
----------------------------------------------------------------
----------------------------------------------------------------
----------
(1) Notional amount.
(2) By Xxxxx'x Investors Service, Inc. and Fitch IBCA, Inc., respectively.
(3) Expressed as a percentage of the initial aggregate stated principal or
notional 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 principal or
notional amount, as applicable, thereof from May 11, 2000 to but not
including the Closing Date.
SCHEDULE II
PRINCIPAL OR NOTIONAL
AMOUNT OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
---------------------------- ----- ----------------------------
Xxxxxx Brothers Inc. A-1 $ 371,800,000
Three World Financial Center A-2 $ 513,000,000
Xxx Xxxx, Xxx Xxxx 00000 X $ 71,813,000
Attention: Xxxxxx Xxxxxxxx B $ 40,000,000
C $ 19,603,000
D $ 13,057,000
E $ 13,057,000
F $ 11,751,000
G $ 1,305,691,485
----------------------------------------------------- -------------------- -----------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated A-1 $ 0
0000 Xxxxxxxx X-0 $ 0
Xxx Xxxx, Xxx Xxxx 00000 X $ 0
Attention: Xxxxxxx Xxxxxxx B $ 0
C $ 8,964,000
D $ 0
E $ 0
F $ 0
G $ 0
----------------------------------------------------- -------------------- -----------------------------------------
Deutsche Bank Securities Inc. A-1 $ 28,200,000
00 Xxxx 00xx Xxxxxx A-2 $ 128,288,000
Xxx Xxxx, Xxx Xxxx 00000 X $ 0
Attention: Xxx Xxxxxxx B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
G $ 0
