▇▇▇▇▇▇ Structured Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 1996-1
October 29, 1996
UNDERWRITING AGREEMENT
▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
▇▇▇▇▇▇ Structured Securities Corp., a Delaware corporation (the
"Company"), proposes to issue and sell $65,731,702.68 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 $29,579,266.21 7.995% June 25, 2026
Class E-2 $36,152,436.47 7.995% 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 ▇▇▇▇▇▇ Brothers Inc. (the
"Underwriter").
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, Amendment No. 1 and Amendment No. 2 thereto
have been prepared by the Company and filed with the Securities and Exchange
Commission (the "Commission"), and complied 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 amended to the date
hereof, as filed with the Commission pursuant Regulation S-T via ▇▇▇▇▇
transmission; and (ii) "Prospectus" means the prospectus filed under Rule 424
and in part pursuant to Rule 430A in connection with the offering pursuant to
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 ▇▇▇▇▇
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 and the 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 Underwriter (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 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 in
accordance 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 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, the Underling Class E Certificates identified therein, which
Underlying Class E Certificates (i) have 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) have 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") will
have been duly and validly assigned, delivered and conveyed by the Company under
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.
(n) The Trust Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended.
2. Representations, Warranties and Agreements of the Underwriter. The
Underwriter 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 Underwriter (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, the Underwriter 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 by the 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 "▇▇▇▇▇▇ Letter" and
together with the PSA Letter, the "No-Action Letters") of Brown & ▇▇▇▇ on behalf
of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & 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 Underwriter. 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 Underwriter at an aggregate purchase price
equal to the sum of (i) the percentage specified in Schedule 1 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) accrued interest thereon from October 1, 1996 to (but not including) the
Delivery Date (defined below) at the Pass-Through Rate therefor specified in the
Prospectus.
4. Delivery of and Payment for the Underwritten Certificates. Payment
for the Underwritten Certificates shall be made at the offices of Cadwalader,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ by 10:00 A.M. New York
City time, on November 1, 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 Underwriter be
delivered by the Company, for safekeeping, against delivery of a safekeeping
receipt, either to the Underwriter at the offices of ▇▇▇▇▇▇ Brothers Inc. in New
York, New York, on the business day prior to the Delivery Date, registered in
such names and denominations as the Underwriter shall request in writing at
least four business days prior to the Delivery Date, in the case of the Class
E-2 Certificates, or to the office of the Underwriter's 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, in the case
of the Class E-1 Certificates, in each case 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 Underwriter not less than two
business days prior to the Delivery Date at such place in New York, New York as
the Underwriter 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 Underwriter hereunder.
5. Offering by Underwriter. It is understood that the Underwriter
proposes 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 Underwriter and to counsel for the
Underwriter one signed copy of the Registration Statement as originally filed
with the Commission, and each amendment or supplement thereto filed prior to the
date of 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 Underwriter 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 Underwriter 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 Underwriter,
be required by the Act or requested by the Commission and approved by the
Underwriter;
(d) Prior to filing with the Commission during the period referred to
in (c) above any amendment or supplement to the Registration Statement or any
Prospectus, to furnish a copy thereof to the Underwriter and to counsel for the
Underwriter, and the Company will not file any such amendment or supplement to
which the Underwriter shall reasonably object;
(e) To advise the Underwriter promptly (i) when any post-effective
amendment to the Registration Statement relating to or covering the 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 Underwriter 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 Underwriter 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 Underwriter, 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 Underwriter in connection therewith) and (vii) any other costs
and expenses incident to the performance of the Company's obligations under this
Agreement; provided, however, that, except as provided in Section 10, the
Underwriter shall pay its 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 Underwriter.
8. Conditions of Underwriter's Obligations. The obligation of the
Underwriter 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 Underwriter shall have
reasonably objected.
(b) The Underwriter shall not have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration Statement or any
Prospectus contains an untrue statement of a fact that, in the opinion of
counsel to the Underwriter is material or omits to state a fact that, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of 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 Underwriter, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(d) The Underwriter shall have received from counsel to the Company, a
favorable opinion dated the Delivery Date, satisfactory to its counsel.
(e) The Underwriter shall have received from counsel to the Trustee, a
favorable opinion dated the Delivery Date, satisfactory to its counsel.
(f) The Company shall have furnished to the Underwriter 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 Underwriter, at the time
the Underwriting Agreement is executed and at the Delivery Date, accountants
letters addressed to the Underwriter and dated, respectively, the date the
Underwriting Agreement is executed and the Delivery Date, in the forms
previously delivered and agreed to by the Underwriter.
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 Underwriter.
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. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter 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 Underwriter 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 Underwriter and such controlling person for any legal and other expenses
reasonably incurred by the Underwriter 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
Underwriter specifically for inclusion therein. The foregoing indemnity is in
addition to any liability that the Company may otherwise have to the Underwriter
or any person or entity controlling the Underwriter.
(b) The Underwriter shall indemnify and hold harmless the Company, 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 Underwriter by or on behalf of the Underwriter
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 Underwriter may
otherwise have to the Company or any of its directors, officers or controlling
persons.
(c) The Underwriter 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 Underwriter 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 Underwriter shall have the right to employ counsel to
represent the Underwriter, 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 Underwriter against the Company under this Section, if (i) in
the reasonable judgment of the Underwriter, there may be legal defenses
available to the Underwriter, and those controlling persons, different from or
in addition to those available to the Company, or there is a conflict of
interest between the Underwriter and the controlling persons, on one hand, and
the Company, on the other, or (ii) the Company shall fail to select counsel
reasonably satisfactory to the indemnified party or parties, and in such event
the fees and expenses of such separate counsel shall be paid by the Company. In
no event shall the Company be liable for the fees and expenses of more than one
separate firm of attorneys for the Underwriter and 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
Underwriter 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 Underwriter on the other with respect to the
statements or omissions that resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriter on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Underwritten Certificates (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriter with respect to such offering. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriter, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriter
agree that it would not be just and equitable if contributions pursuant to this
Section were to be determined by pro rata allocation (even if the Underwriter
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 Underwriter shall not be
required to contribute any amount in excess of the amount by which the discount
on the front cover of the Prospectus relating to the Underwritten Certificates
underwritten by it and distributed to the public exceeds the amount of any
damages that the Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) The Underwriter confirm and the Company acknowledges that the
statements with respect to the public offering of the Underwritten Certificates
by the Underwriter set forth in "Underwriting" in the Prospectus are correct and
constitute the only information concerning such Underwriter furnished in writing
to the Company by or on behalf of the Underwriter 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.
11. Termination. The obligations of the Underwriter under this
Agreement may be terminated by the Underwriter, in its absolute discretion by
notice given to and received by the Company prior to the delivery of and payment
for the 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 Underwriter's 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.
12. Reimbursement of Underwriter's Expenses. If the sale of the
Underwritten Certificates shall not be consummated other than by reason of
default of any of the Underwriter, the Company shall cause the Underwriter 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.
13. Notices, etc. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement by ▇▇▇▇▇▇ Brothers Inc. Any notice to
the Underwriter shall be sufficient if given in writing or by telecopy addressed
to ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and any
notice to the Company shall be sufficient if given in writing or by telegraph
addressed to the Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: President.
14. Persons Entitled to Benefit of the Agreement. This Agreement shall
be binding upon the Underwriter, the Company and their respective successors.
This Agreement and the terms and provisions hereof are for the sole benefit of
only those persons, except that the indemnity agreement of the Underwriter
contained in Section 10 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 10 shall be deemed to be also for
the benefit of any person controlling the Underwriter. Nothing in this Agreement
is intended or shall be construed to give any person, other than the persons
referred to in this Section, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision contained herein.
15. 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.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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. 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 Underwriter, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
▇▇▇▇▇▇ STRUCTURED SECURITIES CORP.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
By:
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Schedule 1
Underwriting
Class Price
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Class E-1 100.00%
Class E-2 85.25%