Exhibit 99.2
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MORTGAGE SECURITIES VII, INC.
$756,636,000
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-C2
CLASS A-1, CLASS A-2, CLASS A-3, CLASS B, CLASS C, CLASS D AND CLASS E
UNDERWRITING AGREEMENT
as of December 18, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
First Union Securities, Inc. Credit Suisse First Boston Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Greenwich Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Salomon Brothers Mortgage Securities VII, Inc., a Delaware
corporation ("SBMS"), proposes to sell to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("SSBI"),
Greenwich Capital Markets, Inc. ("Greenwich Capital"), ▇.▇. ▇▇▇▇▇▇ Securities
Inc. ("▇.▇. ▇▇▇▇▇▇"), Credit Suisse First Boston Corporation ("CSFB") and First
Union Securities, Inc. ("Wachovia Securities; and, collectively with SSBI,
Greenwich Capital, ▇.▇. ▇▇▇▇▇▇ and CSFB, the "Underwriters"), pursuant to this
Underwriting Agreement (this "Agreement"), the classes of Commercial Mortgage
Pass-Through Certificates, Series 2001-C2 that are identified on Schedule I
hereto (collectively, the "Registered Certificates"), each having the initial
aggregate stated principal amount (the initial "Class Principal Balance") set
forth on Schedule I. The Registered Certificates, together with the Class X-1,
Class X-2, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class P, Class Q, Class BR, Class R and Class Y Certificates (collectively,
the "Private Certificates"; and, collectively with the Registered Certificates,
the "Certificates"), evidence the entire beneficial ownership interest in the
assets of a trust to be created by SBMS (such trust, the "Trust"; and such
assets collectively, the "Trust Fund"). The Trust Fund consists primarily of a
pool (the "Mortgage Pool") of multifamily and commercial mortgage loans (the
"Mortgage Loans") that will have, as of their respective due dates in December
2001 (individually, on a loan-by-loan basis, and collectively, the "Cut-off
Date"), after taking into account all payments of principal due on the Mortgage
Loans on or before the Cut-off Date, whether or not received, an aggregate
principal balance of approximately $877,619,220 (subject to a variance of plus
or minus 5.0%).
Certain of the Mortgage Loans will be acquired by SBMS from
Salomon Brothers Realty Corp. ("SBRC"; and such Mortgage Loans, the "SBRC
Mortgage Loans"), pursuant to a mortgage loan purchase agreement, dated as of
the date hereof (the "SBRC/SBMS Mortgage Loan Purchase Agreement"), between
SBRC, as mortgage loan seller, and SBMS, as purchaser. Certain of the Mortgage
Loans will be acquired by SBMS from Greenwich Capital Financial Products, Inc.
("GCFP"; and such Mortgage Loans, the "GCFP Mortgage Loans"), pursuant to a
mortgage loan purchase agreement, dated as of the date hereof (the "GCFP/SBMS
Mortgage Loan Purchase Agreement"), between GCFP, as mortgage loan seller, and
SBMS, as purchaser. Certain of the Mortgage Loans will be acquired by SBMS from
Artesia Mortgage Capital Corporation ("AMCC"; and such Mortgage Loans, the "AMCC
Mortgage Loans"), pursuant to a mortgage loan purchase agreement, dated as of
the date hereof (the "AMCC/SBMS Mortgage Loan Purchase Agreement"), between
AMCC, as mortgage loan seller, and SBMS, as purchaser. The remaining Mortgage
Loan will be acquired by SBMS from Allied Capital Corporation ("Allied"; and
such Mortgage Loan, the "Allied Mortgage Loan"), pursuant to a mortgage loan
purchase agreement, dated as of the date hereof (the "Allied/SBMS Mortgage Loan
Purchase Agreement"), between Allied, as mortgage loan seller, and SBMS, as
purchaser. SBRC, GCFP, AMCC and Allied are, collectively, the "Mortgage Loan
Sellers"; and the SBRC/SBMS Mortgage Loan Purchase Agreement, the GCFP/SBMS
Mortgage Loan Purchase Agreement, the AMCC/SBMS Mortgage Loan Purchase Agreement
and the Allied/SBMS Mortgage Loan Purchase Agreement are, collectively, the
"Mortgage Loan Purchase Agreements".
The Trust is to be created and the Certificates are to be
issued under a pooling and servicing agreement, dated as of December 1, 2001
(the "Pooling and Servicing Agreement"), among SBMS as Depositor, Midland Loan
Services, Inc., as Master Servicer, as General Special Servicer and as Birch Run
Special Servicer, ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Trustee, JPMorgan Chase
Bank as Certificate Administrator and Tax Administrator, Fortress CBO
Investments I, Ltd., as Birch Run Companion Mortgage Loan Noteholder, and Allied
Capital Corporation, as MJ Ocala-Hilton Companion Mortgage Loan Noteholder.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Pooling and Servicing Agreement.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS. SBMS represents
and warrants to, and covenants with, each of the Underwriters that:
(a) A registration statement (File No. 333-63752) on Form S-3
has been filed with the Securities and Exchange Commission (the "Commission"),
and has become effective under the Securities Act of 1933, as amended (the
"Securities Act"); such registration statement includes a prospectus which, as
supplemented, shall be, and may include a preliminary prospectus supplement
which, as completed, is proposed to be, used in connection with the sale of the
Registered Certificates. Such registration statement, as amended to the date of
this Agreement, is hereinafter referred to as the "Registration Statement"; such
prospectus (which shall be in the form in which it has most recently been filed,
as the same is proposed to be added to or changed), as first supplemented by a
prospectus supplement relating to the Registered Certificates, filed, or
transmitted for filing, with the Commission pursuant to Rule 424(b) under the
Securities Act and used in connection with the sale of the Registered
Certificates, is hereinafter referred to as the "Base Prospectus"; such
prospectus supplement is hereinafter referred to as the "Prospectus Supplement";
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and the Base Prospectus and the Prospectus Supplement are collectively referred
to as the "Prospectus". Any preliminary form of Prospectus that has heretofore
been filed pursuant to Rule 424 hereinafter is called the "Preliminary
Prospectus". Any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement or the Prospectus shall
be deemed to refer to and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), deemed to be
incorporated by reference therein after the date hereof. SBMS will file with the
Commission (i) within fifteen (15) days of the issuance of the Certificates a
current report on Form 8-K (a "Current Report") for purposes of filing the
Pooling and Servicing Agreement and other material contracts and (ii) in the
time period specified in Section 5(e) hereof, a Current Report for purposes of
filing certain Computational Materials and ABS Term Sheets as described in
Section 5(e) hereof.
(b) The Registration Statement, as of the date it became
effective, and the Prospectus, as of the date of the Prospectus Supplement, and
any revisions or amendments thereof or supplements thereto filed prior to the
termination of the offering of the Registered Certificates, as of their
respective effective or issue dates, conformed or will conform, as applicable,
in all material respects to the requirements of the Securities Act and the rules
and regulations of the Commission thereunder applicable to the use of such
documents as of such respective dates, and the Registration Statement and the
Prospectus, as revised, amended or supplemented as of the Closing Date (as
defined in Section 3), will conform in all material respects to the requirements
of the Securities Act and the rules and regulations of the Commission thereunder
applicable to the use of such documents as of the Closing Date; and no such
document, as of such respective dates and, in the case of the Prospectus and any
revisions or amendments thereof or supplements thereto filed prior to the
Closing Date, as of the Closing Date, included or will include any untrue
statement of a material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that SBMS does not make any representations, warranties or
agreements as to (A) the information contained in or omitted from the Prospectus
or any revision or amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing by or on behalf of the
Underwriters specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto, (B) any
information in any Computational Materials and ABS Term Sheets (each as defined
in Section 9) provided by the Underwriters to prospective investors in
connection with the sale of the Registered Certificates, or (C) the statements
in or the omissions from the Registration Statement, the Prospectus or any
revisions or amendments thereof or supplements thereto that are excluded from
the indemnification provisions of Section 7(a) pursuant to Section 7(a)(ii).
There are no contracts or other documents relating to SBMS of a character
required to be described in or to be filed as exhibits to the Registration
Statement, as of the date of the Prospectus Supplement, which were not described
or filed as required.
(c) As of the Closing Date, the Registered Certificates and
the Private Certificates will be duly authorized by SBMS, and, when the
Registered Certificates have been duly executed and authenticated in the manner
contemplated in the Pooling and Servicing Agreement and have been delivered to
and paid for by the Underwriters pursuant to this Agreement, the Registered
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Certificates will be validly issued and outstanding and entitled to the benefits
provided by the Pooling and Servicing Agreement.
(d) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇") is an independent
public accountant with respect to SBMS as required by the Securities Act and the
rules and regulations thereunder.
(e) As of the Closing Date, the Pooling and Servicing
Agreement and each Mortgage Loan Purchase Agreement will have been duly
authorized, executed and delivered by SBMS and, assuming the valid
authorization, execution and delivery thereof by the other parties thereto, will
constitute a valid and binding agreement of SBMS enforceable in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors' rights and by general principles of equity.
(f) This Agreement has been duly authorized, executed and
delivered by SBMS.
(g) SBMS has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus.
(h) The issuance and sale of the Registered Certificates to
the Underwriters pursuant to this Agreement, the compliance by SBMS with the
other provisions of this Agreement, the Mortgage Loan Purchase Agreements, the
Pooling and Servicing Agreement and the Registered Certificates and the
consummation by SBMS of the other transactions herein or therein contemplated do
not, under any statute, regulation or rule of general applicability in the
United States or any decision, order, decree or judgment of any judicial or
other governmental body specifically applicable to SBMS, require any consent,
approval, authorization, order, registration or qualification of or with any
court or governmental authority, except (A) such as have been obtained or
effected with respect to the Registered Certificates under the Securities Act,
(B) the recordation of the assignments of the Mortgage Loans to the Trustee,
which recordation is to be completed pursuant to the Pooling and Servicing
Agreement on or following the Closing Date and (C) such other approvals as have
been obtained; provided that SBMS makes no representations or warranties as to
any consent, approval, authorization, registration or qualification that may be
required under state securities or "blue sky" laws.
(i) Neither the execution and delivery of this Agreement, the
Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement, nor
the issuance and delivery of the Registered Certificates, nor the consummation
by SBMS of any other of the transactions contemplated herein or therein, nor the
fulfillment by SBMS of the terms of this Agreement, the Mortgage Loan Purchase
Agreements and the Pooling and Servicing Agreement, will conflict with, violate,
result in a breach of or constitute a default under the certificate of
incorporation or by-laws of SBMS, any statute or regulation currently applicable
to SBMS, or any order currently applicable to SBMS of any court, regulatory
body, administrative agency or governmental body having jurisdiction over SBMS,
or the terms of any indenture or other agreement or instrument to which SBMS is
a party or by which it or any of its properties are bound.
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(j) There are no actions or proceedings against, or
investigations of, SBMS pending, or, to the knowledge of SBMS, threatened,
before any court, administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, the Mortgage Loan Purchase Agreements, the Pooling
and Servicing Agreement or the Registered Certificates, (B) seeking to prevent
the issuance of the Registered Certificates or the consummation by SBMS of any
of the transactions contemplated by this Agreement, the Mortgage Loan Purchase
Agreements or the Pooling and Servicing Agreement, (C) that might materially and
adversely affect the performance by SBMS of its obligations under, or the
validity or enforceability against SBMS of, this Agreement, the Mortgage Loan
Purchase Agreements, the Pooling and Servicing Agreement or the Registered
Certificates or (D) seeking to affect adversely the federal income tax
attributes of the Registered Certificates described in the Prospectus.
(k) SBMS is not aware of (i) any request by the Commission for
any further amendment of the Registration Statement or the Prospectus or for any
additional information, (ii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose or (iii) any notification with
respect to the suspension of the qualification of the Registered Certificates
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(l) Any taxes, fees and other governmental charges (other than
income taxes, franchise taxes and recording and filing fees) that are due and
payable by SBMS as of the Closing Date in connection with the execution,
delivery and performance of this Agreement, the Mortgage Loan Purchase
Agreements, the Pooling and Servicing Agreement and the Registered Certificates,
will have been paid at or prior to the Closing Date.
(m) SBMS is not, and the issuance and sale of the Registered
Certificates in the manner contemplated by the Prospectus will not cause SBMS to
be, subject to registration or regulation as an investment company or affiliate
of an investment company under the Investment Company Act of 1940, as amended
(the "Investment Company Act").
(n) The transfer of the Mortgage Loans to the Trust and the
sale of the Certificates to each of the Underwriters, at the Closing Date, will
be treated by SBMS for financial accounting and reporting purposes as a sale of
assets and not as a pledge of assets to secure debt.
2. PURCHASE AND SALE. Subject to the terms and conditions and
in reliance on the representations and warranties herein set forth, SBMS agrees
to sell to each of the Underwriters, and each of the Underwriters, severally and
not jointly, agrees to purchase from SBMS, their respective portions of the
Class Principal Balance of each class of Registered Certificates specified on
Schedule I hereto, at the purchase price for each such class as set forth on
such Schedule I (the "Purchase Price").
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Registered Certificates shall be made in the manner, on the date and at the time
specified in Schedule I hereto, which date and time may be changed by agreement
among the Underwriters and SBMS (such date and time of delivery of and payment
for the Registered Certificates being hereinafter referred to as
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the "Closing Date"). Delivery of each Underwriter's allotment of the Registered
Certificates shall be made to the related Underwriter against payment by such
Underwriter of the purchase price therefor to or upon the order of SBMS in
same-day funds by federal funds wire (or by such other method as such
Underwriter and SBMS may agree). Unless delivery is made through the facilities
of The Depository Trust Company, the Registered Certificates of each class
thereof shall be registered in such names and in such authorized denominations
as the related Underwriter may have requested not less than three (3) full
business days prior to the Closing Date.
SBMS agrees to have the Registered Certificates available for
inspection, checking and packaging in New York, New York, at any time before
3:00 p.m. New York City time on the business day prior to the Closing Date.
4. OFFERING BY THE UNDERWRITERS. It is understood that the
Underwriters propose to offer the Registered Certificates for sale as set forth
in the Prospectus. It is further understood that SBMS, in reliance upon Policy
Statement 105, has not filed and will not file an offering statement pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Registered Certificates. As required by Policy Statement 105, each
Underwriter therefore covenants and agrees with SBMS that sales of the
Registered Certificates made by such Underwriter in and from the State of New
York will be made only to institutional investors within the meaning of Policy
Statement 105.
5. AGREEMENTS. SBMS and the Underwriters mutually agree that:
(a) SBMS will not file any supplement to the Prospectus
relating to or affecting the Registered Certificates at any time, except as
contemplated by Section 5(e) or unless SBMS has furnished a copy to the
Underwriters for their review prior to filing, and will not file any such
proposed supplement to which the Underwriters reasonably object. SBMS will not
file any amendment to the Registration Statement relating to or affecting the
Registered Certificates at any time subsequent to the date hereof and prior to
the Closing Date, except as contemplated by Section 5(e) or unless SBMS has
furnished a copy to SSBI for its review prior to filing, and will not file any
such proposed amendment to which SSBI reasonably objects. Subject to the
foregoing sentences, SBMS will cause the Prospectus to be filed, or transmitted
for filing, with the Commission pursuant to Rule 424(b) under the Securities Act
and will promptly advise each Underwriter when the Prospectus has been so filed,
or transmitted for filing, and, prior to the termination of the offering of the
Registered Certificates, will also promptly advise each Underwriter (i) when any
amendment to the Registration Statement relating to the Registered Certificates
has become effective or any revision of or supplement to the Prospectus has been
so filed or transmitted for filing, (ii) of any request by the Commission for
any amendment of the Registration Statement or the Prospectus or for any
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv) of the
receipt by SBMS of any notification with respect to the suspension of the
qualification of the Registered Certificates for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. SBMS will use its
best efforts to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
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(b) If, at any time when a prospectus relating to the
Registered Certificates is required to be delivered under the Securities Act,
(i) any event occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (ii) it shall be
necessary to revise, amend or supplement the Prospectus to comply with the
Securities Act or the rules and regulations of the Commission thereunder, SBMS
promptly will prepare and file with the Commission, subject to paragraph (a) of
this Section 5, a revision, amendment or supplement that will correct such
statement or omission or effect such compliance.
(c) Upon request, so long as delivery of a prospectus relating
to the Registered Certificates is required under the Securities Act, SBMS will
furnish to any Underwriter and counsel for such Underwriter, without charge, as
many copies of the Prospectus and any revisions or amendments thereof or
supplements thereto as may be reasonably requested.
(d) SBMS will use its best efforts to arrange for the
qualification of the Registered Certificates for sale under the laws of such
jurisdictions as SSBI may designate, to maintain such qualifications in effect
so long as required for the distribution of the Registered Certificates and to
arrange for the determination of the legality of the Registered Certificates for
purchase by institutional investors; provided, however, that SBMS shall not be
required to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
(e) SBMS will cause or, if appropriate, has caused any
Computational Materials and ABS Term Sheets (each as defined in Section 9) with
respect to the Registered Certificates, which are or have been delivered by the
Underwriters to SBMS pursuant to or as contemplated by Section 9, to be filed
with the Commission on a Current Report pursuant to Rule 13a-11 under the
Exchange Act not later than, in each such case, the business day immediately
following the later of (i) the day on which such Computational Materials or ABS
Term Sheets are delivered to counsel for SBMS by the Underwriters (it being
understood that any such material that is delivered after 10:30 a.m., New York
City time, on a business day shall be deemed to have been delivered on the next
business day) and (ii) the date hereof; and, if such filing is subsequent to the
date hereof, SBMS will promptly advise the Underwriters when each such Current
Report has been so filed. If any Collateral Term Sheet (as defined in Section 9)
is provided by any Underwriter to potential investors in the Registered
Certificates, SBMS will cause each such Collateral Term Sheet that is delivered
by such Underwriter to SBMS to be filed with the Commission on a Current Report
pursuant to Rule 13a-11 under the Exchange Act on the business day immediately
following the day on which such Collateral Term Sheet is delivered to counsel
for SBMS by such Underwriter (it being understood that any such material that is
delivered after 10:30 a.m., New York City time, on a business day shall be
deemed to have been delivered on the next business day). Each such Current
Report shall be incorporated by reference in the Prospectus and the Registration
Statement. Notwithstanding the foregoing, SBMS shall have no obligation to file
materials provided by the Underwriters pursuant to or as contemplated by Section
9 which, in the reasonable determination of SBMS after making reasonable efforts
to consult with the Underwriters, are not required to be filed pursuant to the
No-Action Letters (as defined in Section 9), or which contain erroneous
information or contain any untrue
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statement of a material fact, or which, when read in conjunction with the
Prospectus, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being understood,
however, that SBMS shall have no obligation to review or pass upon the accuracy
or adequacy of, or to correct, any Computational Materials or ABS Term Sheets
provided by the Underwriters to SBMS pursuant to or as contemplated by Section 9
hereof.
(f) The purchase of the Certificates by each of the
Underwriters, at the Closing Date, will be treated by each Underwriter for
financial accounting and reporting purposes as a sale of the Certificates by
SMBS and not as a pledge of the Certificates to secure a debt. The Underwriters
agree to sell the Registered Certificates only to purchasers other than SBMS,
the Mortgage Loan Sellers and their respective affiliates.
(g) SBMS will make generally available to holders of the
Registered Certificates as soon as practicable, but in any event not later than
eighteen months after the filing of the Prospectus pursuant to Rule 424(b) under
the Securities Act, an earnings statement (which need not be audited) with
respect to the Mortgage Pool as contemplated by Section 11(a) of the Securities
Act), which pursuant to Rule 158 under the Securities Act may be the annual
report filed with the Commission with respect to the Trust.
6. CONDITIONS TO THE OBLIGATIONS OF EACH UNDERWRITER AND SBMS.
The obligation of each Underwriter to purchase from SBMS, and the obligation of
SBMS to sell to such Underwriter, its allotment of the Registered Certificates
shall be subject to the accuracy of the representations and warranties on the
part of SBMS and such Underwriter contained herein as of the date hereof and as
of the Closing Date, to the accuracy of the statements of SBMS and such
Underwriter made in any officer's certificate delivered pursuant to the
provisions hereof, to the performance by SBMS and such Underwriter of their
respective obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted and be pending or shall have been threatened.
(b) SBMS shall have furnished to the Underwriters:
(i) An executed copy of the Pooling and Servicing
Agreement;
(ii) An opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, in its
capacity as counsel for SBMS, dated the Closing Date,
substantially to the effect that:
(A) SBMS is validly existing as a corporation in good
standing under the laws of the State of Delaware, with
corporate power and authority under such laws to enter into
and perform its obligations under this Agreement, the Mortgage
Loan Purchase Agreements and the Pooling and Servicing
Agreement;
(B) The Registered Certificates and the Private
Certificates have been duly authorized by SBMS and, when the
Certificates have been duly executed and
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authenticated in the manner contemplated in the Pooling and
Servicing Agreement and, (i) in the case of the Registered
Certificates, have been delivered to and paid for by the
Underwriters pursuant to this Agreement, and (ii) in the case
of the Private Certificates, have been delivered to and paid
for by SSBI in accordance with that certain Certificate
Purchase Agreement, dated as of December 18, 2001, between
SBMS and SSBI, the Certificates will be validly issued and
outstanding and entitled to the benefits provided by the
Pooling and Servicing Agreement;
(C) The Pooling and Servicing Agreement and each of
the Mortgage Loan Purchase Agreements has been duly
authorized, executed and delivered by SBMS and, upon the due
authorization, execution and delivery by the other parties
thereto, will constitute a valid, legal and binding agreement
of SBMS, enforceable against SBMS in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights
generally, by general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, by
public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the
enforceability of the provisions of the Pooling and Servicing
Agreement that purport or are construed to provide
indemnification for securities laws liabilities, and by such
other exceptions as the Underwriters shall reasonably agree;
(D) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust is not required to be
registered under the Investment Company Act;
(E) The Registration Statement has become effective
under the Securities Act, and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted and are pending or have been
threatened under the Securities Act;
(F) The Registration Statement, at the time it became
effective, and the Prospectus, as of the date of the
Prospectus Supplement, and each revision or amendment thereof
or supplement thereto relating to the Registered Certificates,
as of its effective or issue date (except in each case for
accounting, financial and statistical statements included
therein or omitted therefrom and for Computational Materials
and ABS Term Sheets, as to which such counsel has not been
requested to comment), appeared on their respective faces to
be appropriately responsive in all material respects to the
requirements of the Securities Act and the rules and
regulations of the Commission thereunder applicable to such
documents as of such respective dates; and the Prospectus, as
revised, amended or supplemented as of the date hereof (except
for accounting, financial and statistical statements included
therein or omitted therefrom, as to which such counsel has not
been requested to comment), conforms in all material respects
to the requirements of the Securities Act
9
and the rules and regulations of the Commission thereunder
applicable to use of the Prospectus (as so revised, amended or
supplemented) as of the date hereof;
(G) No consent, approval, authorization or order of
any federal or State of New York court or agency or other
governmental body is required for the consummation by SBMS of
the transactions contemplated by the terms of this Agreement,
the Mortgage Loan Purchase Agreements or the Pooling and
Servicing Agreement, except such as may be required under the
securities or "blue sky" laws of any state in connection with
the purchase and the offer and sale of the Registered
Certificates by the Underwriters as to which such counsel need
not express any opinion, and except such as have been
obtained;
(H) The execution, delivery and performance by SBMS
of the terms of this Agreement, the Mortgage Loan Purchase
Agreements or the Pooling and Servicing Agreement will not
violate or result in a breach of any term or provision of the
certificate of incorporation or by-laws of SBMS or any federal
or State of New York statute or regulation of general
applicability to transactions of the type contemplated by
those documents, except such counsel need express no opinion
as to compliance with the securities laws of New York and
other particular States in connection with the purchase and
sale of the Registered Certificates by the Underwriters;
(I) Such counsel does not know, having made no
independent investigation, of any contracts or other documents
relating to SBMS of a character required to be described in or
to be filed as exhibits to the Registration Statement, as of
the date of the Prospectus Supplement, that were not described
or filed as required;
(J) This Agreement has been duly authorized, executed
and delivered by SBMS;
(K) The statements in each of the Base Prospectus and
the Prospectus Supplement under the headings "ERISA
Considerations", "Federal Income Tax Consequences" and "Legal
Investment", to the extent that they describe certain matters
of federal law or legal conclusions with respect thereto,
while not discussing all possible consequences of an
investment in the Registered Certificates to all investors,
provide in all material respects an accurate summary of such
matters and conclusions set forth under such headings;
(L) As described in the Prospectus Supplement and
assuming compliance with the provisions of the Pooling and
Servicing Agreement, (1) REMIC I will qualify as a REMIC
within the meaning of Sections 860A through 860G (the "REMIC
Provisions") of the Internal Revenue Code of 1986, and the
REMIC I Regular Interests will be "regular interests" and the
REMIC I Residual Interest will be the sole class of "residual
interests" in REMIC I (as both terms are defined in the REMIC
Provisions in effect on the Closing Date), (2) REMIC II will
qualify as a
10
REMIC within the meaning of the REMIC Provisions, and the
REMIC II Regular Interests will be "regular interests" and the
REMIC II Residual Interest will be the sole class of "residual
interests" in REMIC II and (3) REMIC III will qualify as a
REMIC within the meaning of the REMIC Provisions, and the
Class A-1, Class A-2, Class A-3, Class B, Class C, Class D,
Class E, Class X-1, Class X-2, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P, Class Q
and Class BR Certificates will evidence the "regular
interests", and the REMIC III Residual Interest will be the
sole class of "residual interests", in REMIC III;
(M) Assuming compliance with the provisions of the
Pooling and Servicing Agreement, for City and State of New
York income and corporation franchise tax purposes, REMIC I,
REMIC II and REMIC III will each be classified as a REMIC and
not as a corporation, partnership or trust, in conformity with
the federal income tax treatment of REMIC I, REMIC II and
REMIC III. Accordingly, the Trust Fund will be exempt from all
City and State of New York taxation imposed on its income,
franchise or capital stock, and its assets will not be
included in the calculation of any franchise tax liability;
(N) The portions of the Trust Fund consisting of
Grantor Trust Y and Grantor Trust R, respectively, will each
be classified as a grantor trust under Subpart E, Part I of
Subchapter J of the Code; and
(O) The statements set forth in the Prospectus
Supplement under the headings "Description of the Offered
Certificates" and "Servicing of the Underlying Mortgage Loans"
and in the Prospectus under the headings "Description of the
Certificates" and "Description of the Governing Documents",
insofar as such statements purport to summarize certain
material provisions of the Registered Certificates and the
Pooling and Servicing Agreement, provide in all material
respects an accurate summary of such provisions.
In giving such opinions, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ shall
additionally state that, based on conferences and telephone
conversations with representatives of the Mortgage Loan Sellers, the
Underwriters, SBMS, the Trustee, the Certificate Administrator, the Tax
Administrator, the Master Servicer, the Special Servicers, the Birch
Run Companion Mortgage Loan Noteholder, the MJ Ocala Companion Mortgage
Loan Noteholder and their respective counsel (but without having
reviewed any of the mortgage notes, mortgages or other documents
relating to the Mortgage Loans or made any inquiry of any originator of
any Mortgage Loan not referenced above), nothing has come to such
counsel's attention that would lead it to believe that the Registration
Statement or the Prospectus (other than any accounting, financial or
statistical information contained in or omitted from the Registration
Statement or the Prospectus and information incorporated by reference
into the Registration Statement or the Prospectus and any information
relating to the characteristics of the Mortgage Loans and the related
borrowers and mortgaged properties, all as to which such counsel has
not been requested to comment), at the date of effectiveness of the
Registration Statement (in the case of the Registration Statement) or
at the date of the Prospectus
11
Supplement or at the Closing Date (in the case of the Prospectus
Supplement), included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized representatives
of, the parties to this Agreement, the Mortgage Loan Purchase
Agreements and the Pooling and Servicing Agreement and on certificates
furnished by public officials. Such opinion may assume the due
authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than SBMS. Such
opinion need cover only the laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal law of the
United States;
(iii) The Underwriters shall have received copies of
all legal opinion letters delivered to the Rating Agencies by
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, in its capacity as counsel to
SBMS, in connection with the issuance of the Registered
Certificates, accompanied in each case by a letter signed by
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ stating that the Underwriters may
rely on such opinion letter as if it were addressed to the
Underwriters as of the date thereof;
(iv) Good standing certificates regarding SBMS, each
of the Mortgage Loan Sellers, the Master Servicer, each of the
Special Servicers and the Trustee from the Secretary of State
(or other appropriate authority) of the jurisdiction under
which each such entity has been formed, dated not earlier than
30 days prior to the Closing Date;
(v) Certificates of SBMS, each of the Mortgage Loan
Sellers, the Master Servicer, each of the Special Servicers,
the Certificate Administrator, the Tax Administrator and the
Trustee, each dated the Closing Date and signed by an
executive officer or authorized signatory of such party, to
the effect that the representations and warranties of such
party herein, in the Mortgage Loan Purchase Agreements and/or
in the Pooling and Servicing Agreement, as applicable, are
true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing
Date, and, in the case of SBMS and each Mortgage Loan Seller,
to the effect that SBMS or the particular Mortgage Loan
Seller, as the case may be, has complied in all material
respects with all agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the
Closing Date; and
(vi) Officer's certificates, dated the Closing Date
and signed by the secretary or an assistant secretary of SBMS,
each of the Mortgage Loan Sellers, the Master Servicer, each
of the Special Servicers, the Certificate Administrator, the
Tax Administrator and the Trustee, to the effect that each
individual who, as an officer or representative of such party,
signed this Agreement, any of the Mortgage Loan Purchase
Agreements, the Pooling and Servicing Agreement or any other
document or certificate delivered on or before the Closing
Date in connection with the transactions contemplated herein,
in the Mortgage Loan
12
Purchase Agreements or in the Pooling and Servicing Agreement,
was at the respective times of such signing and delivery, and
is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and
the signatures of such persons appearing on such documents and
certificates are their genuine signatures. Such certificate
shall be accompanied by true and complete copies (certified as
such by the secretary or an assistant secretary of such party)
of the organizational documents of such party, as in effect on
the Closing Date, and of the resolutions of such party and any
required shareholder, member or partner consent relating to
the transactions contemplated in this Agreement, the Mortgage
Loan Purchase Agreements and/or the Pooling and Servicing
Agreement, as applicable.
(c) The Underwriters shall have received, with respect to each
of the Mortgage Loan Sellers, the Master Servicer, each of the Special
Servicers, the Certificate Administrator, the Tax Administrator and the Trustee,
a favorable opinion of counsel, dated the Closing Date, addressing the valid
existence and good standing of such party under the laws of the jurisdiction of
its organization, the due authorization, execution and delivery of, as
applicable, the Pooling and Servicing Agreement, the related Mortgage Loan
Purchase Agreement and/or the related Indemnification Agreement (as defined in
Section 7(a)) by such party and, subject to the same limitations as set forth in
Section 6(b)(ii)(C), the enforceability of, as applicable, the Pooling and
Servicing Agreement and the related Mortgage Loan Purchase Agreement against
such party. Such opinion may express its reliance as to factual matters on
representations and warranties made by, and on certificates or other documents
furnished by officers and/or authorized representatives of parties to the
Pooling and Servicing Agreement, the related Mortgage Loan Purchase Agreement
and the related Indemnification Agreement and on certificates furnished by
public officials. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the party on behalf of which such opinion is being rendered.
Such opinion need cover only the laws of the jurisdiction in which the party on
whose behalf such opinion is being rendered is organized, the laws of the State
of New York and the federal law of the United States.
(d) SBMS and the Underwriters shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, certified public accountants, various comfort letters, dated, as
applicable, the date of the Preliminary Prospectus, the date of the Prospectus
Supplement or such other date acceptable to SBMS and the Underwriters, in form
and substance reasonably satisfactory to SBMS and the Underwriters, stating in
effect that:
(i) They have performed certain specified procedures
as a result of which they have determined that the information
of an accounting, financial or statistical nature set forth in
the Prospectus Supplement under the caption "Description of
the Mortgage Pool" and on Annex A thereto agrees with the data
sheet or computer tape prepared by the Mortgage Loan Sellers,
unless otherwise noted in such letter(s); and
(ii) They have compared the data contained in the
data sheet or computer tape referred to in the immediately
preceding clause (i) to information contained in an agreed
upon sampling of the Mortgage Loan files and in such other
sources as shall be specified by
13
them, and found such data and information to be in agreement,
unless otherwise noted in such letter.
(e) SBMS and the Underwriters shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, certified public accountants, a letter dated on or about the Closing
Date, in form and substance reasonably satisfactory to SBMS and the
Underwriters, to the effect that they have performed certain specified
procedures, all of which have been agreed to by SBMS and the Underwriters, as a
result of which they confirmed the information of an accounting, financial or
statistical nature included in the Prospectus Supplement under the caption
"Yield and Maturity Considerations" and Annex B thereto.
(f) Each Underwriter shall have delivered to SBMS and to the
other Underwriters an officer's certificate (i) stating that attached thereto
are all of the information, tables, charts and other items that constitute
Computational Materials or ABS Term Sheets prepared by such Underwriter that are
required to be filed with the Commission pursuant to the terms of the No-Action
Letters (as defined in Section 9) and stating that such Underwriter has
otherwise complied with the terms of the No-Action Letters and (ii) representing
that, other than the items described in clause (i), no term sheets, collateral
information or other data in written form that would be required to be filed
with the Commission pursuant to the No-Action Letters were furnished by such
Underwriter to actual or potential investors for the Registered Certificates
prior to the Closing Date.
(g) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have furnished to SBMS and each
Underwriter a letter or letters, each in form and substance satisfactory to
SBMS, relating to the Computational Materials and ABS Terms Sheets of such
Underwriter filed in accordance with Section 5(e), dated the date of the related
Current Report and stating in effect that:
(i) Using the assumptions and methodology used by
such Underwriter, all of which shall be described by reference
in the letter, they have recalculated the numerical data and
dates set forth in such Computational Materials and ABS Term
Sheets of such Underwriter (or portions thereof) attached to
such letter, compared the results of their calculations to the
corresponding items in such Computational Materials and ABS
Term Sheets (or portions thereof) and found such items to be
in agreement with the respective results of such calculation;
(ii) If such Computational Materials and ABS Term
Sheets include data reflecting the distribution of interest at
other than a fixed rate, or reflecting other characteristics
that give rise to the use of tables in such Computational
Materials and ABS Term Sheets, such letter shall also set
forth such other statements as are customarily set forth by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in such letter with respect to such data; and
(iii) They have performed certain specified
procedures as a result of which they have determined that the
information of an accounting, financial or statistical nature
set forth in such Computational Materials and ABS Term Sheets
agrees with the data sheet or computer tape prepared by each
Mortgage Loan Seller, unless otherwise indicated in such
letter.
14
(h) The Underwriters shall have received an opinion of
counsel, dated the Closing Date, from counsel to the Underwriters, in form and
substance reasonably satisfactory to them.
(i) SBMS and the Underwriters shall have received an opinion
of counsel, dated the Closing Date, from counsel for each Mortgage Loan Seller,
stating that, based on conferences and telephone conversations with
representatives of such Mortgage Loan Seller, the Underwriters, SBMS, the
Trustee, the Master Servicer, the Special Servicers and their respective
counsel, and further based on a review of certain legal documents relating to a
select group of the Mortgage Loans being sold by that Mortgage Loan Seller and a
compilation of the information in the loan summaries prepared by such Mortgage
Loan Seller for all of such Mortgage Loans (but otherwise without having
reviewed any of the mortgage notes, mortgages or other documents relating to the
Mortgage Loans or made any inquiry of any originator of any Mortgage Loan),
nothing has come to such counsel's attention that would lead it to believe that
the statements in the Prospectus relating to the description of the Mortgage
Loans being sold by that Mortgage Loan Seller (except for any accounting,
financial or statistical information contained in or omitted from the Prospectus
and information incorporated by reference into the Prospectus, all as to which
such counsel has not been requested to comment), at the date of the Prospectus
Supplement or at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(j) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective change, in or
affecting the business or properties of SBMS that SSBI concludes, in its opinion
after consultation with SBMS, materially impairs the investment quality of the
Registered Certificates so as to make it impractical or inadvisable to proceed
with the public offering or the delivery of the Registered Certificates as
contemplated by the Prospectus.
(k) The Registered Certificates shall have been assigned
ratings no less than those set forth on Schedule I and such ratings shall not
have been rescinded or qualified.
7. INDEMNIFICATION AND CONTRIBUTION. (a) Subject to Section
7(c), SBMS agrees to indemnify and hold harmless each Underwriter, each of its
officers and directors and each person who controls such Underwriter within the
meaning of either the Securities Act or the Exchange Act against any and all
expenses, losses, claims, damages or liabilities, joint or several, to which it
or any such officer, director or controlling person may become subject under the
Securities Act, the Exchange Act, or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such expenses, losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any revision or amendment thereof or supplement thereto, or in any
other filing incorporated by reference therein, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by it or him in connection with
15
investigating or defending any such expense, loss, claim, damage, liability or
action; provided that SBMS shall not be liable under the indemnity agreement in
this subsection (a) to the extent that any such expense, loss, claim, damage or
liability (or action in respect thereof) arises out of or is based upon: (i) any
such untrue statement or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact in the Registration Statement or in
any Preliminary Prospectus, the Prospectus or any revision or amendment thereof
or supplement thereto that was made in reliance upon and in conformity with
written or electronic information furnished to SBMS by or on behalf of any
Underwriter specifically for use in connection with the preparation thereof;
(ii) any such untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any revision or
amendment thereof or supplement thereto that (A) arose out of or was based upon
an untrue statement, omission or other inaccuracy with respect to the Mortgage
Loan Seller Matters (as defined below) contained in the Master Tape (also as
defined below) (it being acknowledged that the Master Tape has been used to
prepare the Prospectus Supplement and any Computational Materials and ABS Term
Sheets (each as defined in Section 9) with respect to the Registered
Certificates), (B) was made in reliance upon and conformity with (1) any of the
representations and warranties made by a Mortgage Loan Seller contained in the
related Indemnification Agreement (as defined below) or the related Mortgage
Loan Purchase Agreement, or (2) any other information regarding the Mortgage
Loan Seller Matters furnished by a Mortgage Loan Seller, electronically or in
writing, to the Depositor or any Underwriter in connection with the preparation
of any Preliminary Prospectus, the Prospectus, any Computational Materials or
ABS Term Sheets with respect to the Registered Certificates, or any revision or
amendment thereof or supplement thereto, or (C) is contained in the information
regarding the Mortgage Loan Seller Matters set forth (1) in any Preliminary
Prospectus or the Prospectus Supplement under the headings "Summary of
Prospectus Supplement -- The Underlying Mortgage Loans and the Mortgaged Real
Properties", "Risk Factors -- Risks Related to the Underlying Mortgage Loans"
and/or "Description of the Mortgage Pool" (provided that SBMS shall be liable to
the extent that any such expense, loss, claim, damage, liability or action
arises out of or is based upon an error in the manipulation of, or any
calculations based upon, or any aggregation (other than an aggregation made in
the Master Tape by a Mortgage Loan Seller) of information concerning the
Mortgage Loan Seller Matters), (2) on Annex A to any Preliminary Prospectus or
the Prospectus Supplement or (3) on the diskette accompanying any Preliminary
Prospectus or the Prospectus Supplement; (iii) any such untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact that was made in any Computational Materials or ABS Term
Sheets provided by any Underwriter to prospective investors in connection with
the sale of the Registered Certificates and incorporated by reference into the
Registration Statement, any Preliminary Prospectus or the Prospectus as a result
of any filing pursuant to Section 5(e); or (iv) any breach, inaccuracy or
untruth of any of the statements, representations, warranties and/or covenants
made by any Underwriter pursuant to Section 6(f) and/or Section 9(b); and
provided, further, that SBMS shall not be liable to any particular Underwriter,
any of its officers or directors or any person controlling such Underwriter
under the indemnity agreement in this subsection (a) for any such expense, loss,
claim, damage or liability (or action in respect thereof) that arises out of or
is based upon any such untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in any
Preliminary Prospectus to the extent that such expense, loss, claim, damage or
liability (or
16
action in respect thereof) results from the fact that such Underwriter sold
Registered Certificates to a person as to whom there was not sent or given, at
or prior to the confirmation of such sale, a copy of the Prospectus (excluding
documents incorporated therein by reference) and such untrue statement had been
corrected in the Prospectus. This indemnity agreement will be in addition to any
liability that SBMS may otherwise have.
The "Mortgage Loan Seller Matters" consist of the following
matters: the Mortgage Loans and the underlying real properties securing the
Mortgage Loans; the related loan documents and the obligors thereunder; and the
Mortgage Loan Sellers.
The "Master Tape" is the compilation of underlying information
and data regarding the Mortgage Loans covered by the independent accountants'
report on applying agreed upon procedures dated December 18, 2001, as
supplemented to the date of initial issuance of the Certificates, and rendered
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
The "Indemnification Agreements" consist, collectively, of (i)
the Indemnification Agreement dated the date hereof, between SBRC, SBMS and the
Underwriters, (ii) the Indemnification Agreement dated the date hereof, between
GCFP, SBMS and the Underwriters, (iii) the Indemnification Agreement dated the
date hereof, between AMCC, SBMS and the Underwriters and (iv) the
Indemnification Agreement dated the date hereof, between Allied, SBMS and the
Underwriters.
(b) Subject to Section 7(c), each Underwriter, severally and
not jointly, agrees to indemnify and hold harmless SBMS and each of its
directors, each of its officers who signed the Registration Statement or any
amendments thereof, and each person who controls SBMS within the meaning of
either the Securities Act or the Exchange Act against any and all expenses,
losses, claims, damages or liabilities, joint or several, to which it or any of
them may become subject under the Securities Act, the Exchange Act, or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such expenses, losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon: (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Prospectus or any revision or amendment thereof or supplement
thereto, or any omission or alleged omission to state therein a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, which untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon or
conformity with written information furnished to SBMS by or on behalf of such
Underwriter, specifically for use in connection with the preparation of any
Preliminary Prospectus, the Prospectus or any revision or amendment thereof or
supplement thereto, (ii) any untrue statement or alleged untrue statement of a
material fact made in Computational Materials or ABS Term Sheets prepared or
developed by such Underwriter and provided by such Underwriter or any other
Underwriter to prospective investors in connection with the sale of the
Registered Certificates and incorporated by reference into the Registration
Statement or Prospectus as a result of any filing pursuant to Section 5(e),
(iii) any omission or alleged omission to state in any Computational Materials
or ABS Term Sheets prepared or developed by such Underwriter and provided by
such Underwriter or any other Underwriter to prospective investors in connection
with the sale of the Registered Certificates and incorporated by reference into
the
17
Registration Statement or Prospectus as a result of any filing pursuant to
Section 5(e), a material fact that, when read in conjunction with any
Preliminary Prospectus (or, if delivered on or after the date hereof or if there
is no Preliminary Prospectus, when read in conjunction with the Prospectus), is
required to be stated therein or necessary to make the statements therein not
misleading and (iv) any material breach, inaccuracy or untruth on the part of
such Underwriter of any of the statements, representations, warranties and/or
covenants set forth in Section 6(f) and/or Section 9(b); provided that such
Underwriter shall not be liable under the indemnity agreement in this subsection
(b) for any such expense, loss, claim, damage or liability (or action in respect
thereof) that arises out of or is based upon any untrue statement or omission in
any such Computational Materials or ABS Term Sheets to the extent that such
expense, loss, claim, damage or liability (or action in respect thereof) is
covered by the indemnity agreement included in Section 1(a) of any
Indemnification Agreement, unless such Underwriter was notified electronically
or in writing of such untrue statement or omission prior to the time of
confirmation of sale to the person that purchased the Certificates that are the
subject of such expense, loss, claim, damage or liability (or action in respect
thereof) and such Underwriter failed to deliver to such person corrected
Computational Materials or ABS Term Sheets (or, if the superseding or correcting
information is contained in the Prospectus, failed to deliver to such person the
Prospectus) prior to confirmation of such sale to such person. This indemnity
agreement will be in addition to any liability that the Underwriters may
otherwise have. SBMS acknowledges that the statements set forth in the first,
fourth and fifth sentences of the paragraph beginning "▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., Greenwich Capital Markets, Inc. ...", and the entire following paragraph,
on the cover page of the Prospectus Supplement, the subsection entitled "Summary
of Prospectus Supplement -- Relevant Parties -- Underwriters" in the
Prospectus Supplement, the fourth paragraph under the heading "Risk
Factors -- Risks Related to the Offered Certificates -- Potential Conflicts
of Interest" in the Prospectus Supplement and the second paragraph, the third
paragraph, the fourth paragraph, the sixth paragraph and the last paragraph
under the heading "Method of Distribution" in the Prospectus Supplement,
constitute the only information furnished in writing by or on behalf of the
Underwriters for inclusion in the Prospectus and Preliminary Prospectus or any
revision or amendment thereof or supplement thereto, and each Underwriter
confirms that such statements attributable thereto are correct.
(c) Promptly after receipt by an indemnified party under
Section 7(a) or Section 7(b) above of notice of the commencement of any suit,
action, proceeding (including, without limitation, any governmental or
regulatory investigation), claim or demand, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
Section 7(a) or Section 7(b) above, notify the indemnifying party in writing of
the commencement thereof, but the omission so to notify the indemnifying party
will not relieve the indemnifying party from any liability that it may have to
any indemnified party otherwise than under Section 7(a) or Section 7(b);
provided, however, that any increase in such liability as a result of such
failure to notify shall not be an expense of the indemnifying party. In case any
such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided that, if the defendants in any
such action include both the indemnified party and the indemnifying party, and
18
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party for legal
expenses of other counsel or other expenses, in each case subsequently incurred
by such indemnified party, in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel), representing the indemnified party or parties who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time period after notice of commencement of the action
or (iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii).
Notwithstanding anything herein to the contrary, an
indemnifying party shall not be liable under Section 7(a) or Section 7(b) for
any settlement of any litigation, proceeding, action or claim effected without
its consent unless (i) at any time an indemnified party shall have requested
such indemnifying party to reimburse the indemnified party for fees and expenses
of counsel for which the indemnifying party is obligated under Section 7(a) or
Section 7(b), as applicable, (ii) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and more
than five days after receipt by such indemnifying party of written notice of the
proposed settlement and (iii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement.
No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of the indemnified
party.
(d) If the indemnification provided for in Section 7(a) or
Section 7(b) above is due in accordance with its terms but is for any reason
held by a court to be unavailable to any indemnified party on grounds of public
policy or otherwise, then the indemnifying party shall contribute to the
aggregate expenses, losses, claims, damages and liabilities (including legal and
other expenses reasonably incurred in connection with investigating or defending
same) to which such indemnified party may be subject and which were intended to
be covered under such Section 7(a) or Section 7(b), as the case may be, as
follows:
19
(i) in the case of any such expenses, losses, claims, damages
or liabilities (or actions in respect thereof) referred to in and
intended to be covered under Section 7(a) above, in such proportion so
that the Underwriters are responsible for that portion represented by
the percentage that the underwriting discount bears to the sum of such
discount and the total purchase price of the Registered Certificates
specified in Schedule I hereto and SBMS is responsible for the balance
(or, if such allocation is not permitted by applicable law or if the
indemnified party failed to give the notice required in Section 7(c) or
in the last paragraph of this Section 7(d), in such proportion as is
appropriate to reflect not only such financial considerations but also
the factors referred to in the immediately following clause (ii));
provided, however, that in no case shall any Underwriter (except as may
be provided in any agreement among underwriters relating to the
offering of the Registered Certificates) be responsible under this
clause (i) for more than the amount, if any, by which the underwriting
discounts and fees applicable to the Registered Certificates purchased
by such Underwriter hereunder exceeds any damages otherwise paid by
such Underwriter with respect to the subject expense, loss, claim,
damage or liability (or action in respect thereof); and
(ii) in the case of any expenses, losses, claims, damages or
liabilities (or actions in respect thereof) referred to in and intended
to be covered under Section 7(b) above, in such proportion as is
appropriate to reflect the relative fault of SBMS on the one hand and
the Underwriters on the other in connection with the statement or
omissions which resulted in such expenses, losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact that is the basis for such expense,
loss, claim, damage or liability results from information prepared by
SBMS on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
SBMS and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by per
capita allocation which does not take account of the equitable considerations
referred to above in this subsection (d).
Notwithstanding the foregoing, however, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of either the
Securities Act or the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person who controls SBMS within the meaning of either
the Securities Act or the Exchange Act, each officer of SBMS who shall have
signed the Registration Statement or any amendments thereof and each director of
SBMS shall have the same rights to contribution as SBMS. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this subsection
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the
20
party or parties from whom contribution may be sought from any other obligation
it or they may have hereunder or otherwise than under this subsection (d).
(e) The Underwriters further agree as follows:
(i) Each Underwriter will indemnify and hold harmless each of
the other Underwriters against any expenses, losses, claims, damages or
liabilities to which any of those other Underwriters may become
subject, under the Securities Act or otherwise, insofar as such
expenses, losses, claims, damages or liabilities arise out of or are
based upon (1) any untrue statements or misstatements of a material
fact made in Computational Materials or ABS Term Sheets prepared by the
indemnifying Underwriter (except when due solely to a Collateral Error,
other than a Corrected Collateral Error) or (2) the indemnifying
Underwriter's failure to comply with Section 9, and will reimburse each
of the other Underwriters for any legal or other expenses reasonably
incurred by any of those other Underwriters in connection with
investigating or defending any such action or claim as such expenses
are incurred. As used herein, "Collateral Error" shall mean any error
in the Master Tape or any other information concerning the Mortgage
Loans furnished by a Mortgage Loan Seller to any Underwriter in writing
or by electronic transmission that was used in the preparation of any
Computational Materials or ABS Term Sheets; provided that Collateral
Error shall not include an error by an Underwriter in the manipulation
of, or any calculation based upon, or any aggregation of information
concerning the Mortgage Loans. "Corrected Collateral Error" shall mean
any Collateral Error as to which the Underwriters, prior to the
dissemination of the materials from which any expense, loss, claim,
damage or liability or action in respect thereof arose, were notified
in writing or provided in written or electronic form information
superseding or correcting such Collateral Error, including, without
limitation, as part of the Prospectus.
(ii) Promptly after receipt by an indemnified party under
clause (i) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such clause, notify the
indemnifying party in writing of the commencement thereof; but the
omission to so notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such clause; provided, however, that any increase in such
liability as a result of such failure to notify shall not be an expense
of the indemnifying party. In case any such action shall be brought
against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and may elect by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party;
and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under clause (i)
above for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in
connection with the defense thereof unless (A) the indemnified party
shall have employed separate counsel in connection with the assertion
of legal defenses in accordance with the next sentence (it being
understood,
21
however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to any local
counsel) representing the indemnified party or parties who are parties
to such action), (B) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time period after notice of
commencement of the action or (C) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (A) or (C) is
applicable, such liability shall be only in respect of the counsel
referred to in such clause (A) or (C). If the defendants in any such
action include both the indemnified party and the indemnifying party,
and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the
right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties.
An indemnifying party shall not be liable for any settlement
of any proceeding effected without its consent. If any proceeding is
settled with such consent or if there is a final judgment for the
plaintiff, however, the indemnifying party shall indemnify the
indemnified party from and against any expense, loss, claim, damage or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing, an indemnifying party shall be liable to the same extent it
otherwise would be under clause (i) above, for any settlement of any
proceeding effected without its written consent if (X) at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for
which the indemnifying party is obligated under clause (i) above, (Y)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (Z) such indemnifying
party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (A) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (B) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of
the indemnified party.
(iii) If the indemnification provided in clause (i) is due in
accordance with its terms in respect of any expenses, losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, but is for any reason held by a court to be unavailable on
grounds of public policy or otherwise, then the indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of such expenses, losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect both the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the
other, from the offering of the Registered Certificates,
22
and the relative fault of the indemnifying party on the one hand and
the indemnified party on the other in connection with the statements
which resulted in such expenses, losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the
indemnifying party on the one hand and indemnified party on the other
shall be deemed to be in the same proportion to the amount of
Registered Certificates underwritten by each such party. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party on the one hand or
indemnified party on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not
be just and equitable if contribution pursuant to this clause (iii)
were determined by per capita allocation or by any other method of
allocation which does not take into account the equitable
considerations referred to above in this clause (iii). The amount paid
or payable by an indemnified party as a result of the expenses, losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this clause (iii) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this clause (iii), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Registered Certificates underwritten
by it and distributed to the public, were sold, exceeds the amount of
any damages which such party has otherwise been required to pay by
reason of such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(iv) The respective obligations of each of the Underwriters
under clauses (i) through (iii) above shall be in addition to any
liability which each may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls such
Underwriter within the meaning of the Securities Act or the Exchange
Act.
(f) The amount paid or payable by an indemnified party as a
result of the expenses, losses, claims, damages and liabilities referred to in
any subsection of this Section 7 shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim (except where the indemnified party is required to bear such
expenses pursuant to this Agreement), which expenses the indemnifying party
shall pay as and when incurred, at the request of the indemnified party, to the
extent that it is reasonable to believe that the indemnifying party will be
ultimately obligated to pay such expenses. If any expenses so paid by an
indemnifying party are subsequently determined not to be required to be borne by
such indemnifying party hereunder, the indemnified party that received such
payment shall promptly refund the amount so paid to such indemnifying party.
23
8. FEES AND EXPENSES. Except as provided in any other
particular Section hereof, costs and expenses incurred in connection with the
transactions herein contemplated shall be allocated pursuant to the terms of
that certain Term Sheet dated September 21, 2001 (the "Term Sheet") between
SSBI, Greenwich Capital, AMCC and Artesia Banking Corp.
9. COMPUTATIONAL MATERIALS AND ABS TERM SHEETS. (a) Not later
than 10:30 a.m., New York City time, on the date hereof, each Underwriter shall
deliver to SBMS two (2) complete copies of all materials provided by such
Underwriter to prospective investors in the Registered Certificates that
constitute either (i) "Computational Materials" within the meaning of the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & Co. Incorporated, and ▇▇▇▇▇▇ Structured Asset Corporation and the
no-action letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together, the
"▇▇▇▇▇▇/PSA Letters") or (ii) "ABS Term Sheets" within the meaning of the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (such letter,
together with the ▇▇▇▇▇▇/PSA Letters, the "No-Action Letters"), if the filing of
such materials with the Commission is a condition of the relief granted in such
letters and, in the case of any such materials that constitute "Collateral Term
Sheets" within the meaning of the PSA Letter, such Collateral Term Sheets have
not previously been delivered to SBMS as contemplated by Section 9(b)(i) below.
Each delivery of Computational Materials pursuant to this paragraph (a) shall be
effected by delivering one (1) copy of such materials to counsel for SBMS and
one (1) copy of such materials to SBMS. Each delivery of ABS Term Sheets
pursuant to this paragraph (a) shall be effected by delivering such materials to
counsel for SBMS on behalf of SBMS at the address specified in Section 16 hereof
in a format that will permit such materials to be promptly filed electronically
with the Commission.
(b) Each Underwriter represents and warrants to and agrees
with SBMS, as of the date hereof and as of the Closing Date, as applicable,
that:
(i) If such Underwriter has provided any Collateral Term
Sheets to potential investors in the Registered Certificates prior to
the date hereof and if the filing of such materials with the Commission
is a condition of the relief granted in the No-Action Letters, then in
each such case such Underwriter delivered such materials in the format
contemplated by Section 9(a) to counsel for SBMS on behalf of SBMS at
the address specified in Section 16 hereof no later than 10:30 a.m.,
New York City time, on the first business day following the date on
which such materials were initially provided to a potential investor;
(ii) The Computational Materials (either in original,
aggregated or consolidated form) and ABS Term Sheets furnished to SBMS
pursuant to Section 9(a) or as contemplated in Section 9(b)(i)
constitute all of the materials relating to the Registered Certificates
furnished by such Underwriter (whether in written, electronic or other
format) to prospective investors in the Registered Certificates prior
to the date hereof, except for any Preliminary Prospectus and any
Computational Materials and ABS Term Sheets that are not required to be
filed with the Commission in accordance with the No-Action Letters, and
all
24
Computational Materials and ABS Term Sheets provided by such
Underwriter to potential investors in the Registered Certificates
comply with the requirements of the No-Action Letters;
(iii) On the respective dates any such Computational Materials
and/or ABS Term Sheets with respect to the Registered Certificates
referred to in Section 9(b)(ii) were last furnished by such Underwriter
to each prospective investor, on the date of delivery thereof to SBMS
pursuant to or as contemplated by this Section 9 and on the Closing
Date, such Computational Materials and/or ABS Term Sheets did not and
will not include any untrue statement of a material fact, or, when read
in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(iv) At the time any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates were furnished to a
prospective investor and on the date hereof, such Underwriter
possessed, and on the date of delivery of such materials to SBMS
pursuant to or as contemplated by this Section 9 and on the Closing
Date, such Underwriter will possess, the capability, knowledge,
expertise, resources and systems of internal control necessary to
ensure that such Computational Materials and/or ABS Term Sheets conform
to the representations and warranties of such Underwriter contained in
subparagraphs (ii) and (iii) above of this paragraph (b);
(v) All Computational Materials and ABS Term Sheets with
respect to the Registered Certificates furnished by such Underwriter to
potential investors contained and will contain a legend, prominently
displayed on the first page thereof, to the effect that SBMS has not
prepared, reviewed or participated in the preparation of such
Computational Materials or ABS Term Sheets, is not responsible for the
accuracy thereof and has not authorized the dissemination thereof;
(vi) All Collateral Term Sheets with respect to the Registered
Certificates furnished by such Underwriter to potential investors
contained and will contain a legend, prominently displayed on the first
page thereof, indicating that the information contained therein will be
superseded by the description of the Mortgage Loans contained in the
Prospectus and, except in the case of the initial Collateral Term
Sheet, that such information supersedes the information in all prior
Collateral Term Sheets; and
(vii) After the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials, ABS
Term Sheets or other materials relating to the Registered Certificates
(whether in written, electronic or other format) to any potential
investor unless such potential investor has received a Prospectus prior
to or at the same time as the delivery of such Computational Materials,
ABS Term Sheets or other materials.
Notwithstanding the foregoing, no Underwriter makes any
representation or warranty as to whether any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates included or will include any
untrue statement resulting directly from any Collateral Error
25
(except any Corrected Collateral Error, with respect to materials prepared after
the receipt by the Underwriters from SBMS or any Mortgage Loan Seller of notice
of such Collateral Error or materials superseding or correcting such Collateral
Error).
(c) The Underwriters acknowledge and agree that SBMS has not
authorized and will not authorize the distribution of any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates to any
prospective investor, and agree that any such Computational Materials and/or ABS
Term Sheets furnished to prospective investors shall include a disclaimer to the
effect set forth in paragraph (b)(v) above. The Underwriters agree that they
will not represent to potential investors that any Computational Materials
and/or ABS Term Sheets with respect to the Registered Certificates were prepared
or disseminated on behalf of SBMS.
(d) If, at any time when a prospectus relating to the
Registered Certificates is required to be delivered under the Securities Act
prior to 90 days from the date hereof, it shall be necessary in the opinion of
the Underwriters or their counsel to amend or supplement the Prospectus as a
result of an untrue statement of a material fact contained in any Computational
Materials or ABS Term Sheets provided by the Underwriters pursuant to or as
contemplated by this Section 9 or the omission to state a material fact
required, when considered in conjunction with the Prospectus, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Securities Act or the rules
thereunder, the Underwriters, at their expense (or, if such amendment or
supplement is necessary due to a Collateral Error relating to the SBRC Mortgage
Loans (except any such Corrected Collateral Error, with respect to materials
prepared after the receipt by the Underwriters from SBMS or any Mortgage Loan
Seller of notice of such Collateral Error or materials superseding or correcting
such Collateral Error), at the expense of SBMS), shall promptly prepare and
furnish to SBMS for filing with the Commission an amendment or supplement that
will correct such statement or omission or an amendment that will effect such
compliance and shall distribute such amendment or supplement to each prospective
investor in the Registered Certificates that received such information being
amended or supplemented. The Underwriters represent and warrant to SBMS, as of
the date of delivery of such amendment or supplement to SBMS, that such
amendment or supplement will not include any untrue statement of a material fact
or, when read in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. SBMS shall have no obligation to file such amendment or supplement
if SBMS determines that (i) such amendment or supplement contains any untrue
statement of a material fact or, when read in conjunction with the Prospectus,
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading (it being understood, however, that
SBMS shall have no obligation to review or pass upon the accuracy or adequacy
of, or to correct, any such amendment or supplement provided by the Underwriters
to SBMS pursuant to this paragraph (d)) or (ii) such filing is not required
under the Securities Act. Notwithstanding the foregoing, the Underwriters make
no representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Registered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriters from SBMS or any
Mortgage Loan Seller of notice of such Collateral Error or materials superseding
or correcting such Collateral Error).
26
(e) If, at any time when a prospectus relating to the
Registered Certificates is required to be delivered under the Securities Act
prior to 90 days from the date hereof, it shall be necessary in the opinion of
SBMS or its counsel to amend or supplement the Prospectus as a result of an
untrue statement of a material fact contained in any Computational Materials or
ABS Term Sheets provided by the Underwriters pursuant to or as contemplated by
this Section 9 or the omission to state therein a material fact required, when
considered in conjunction with the Prospectus, to be stated therein or necessary
to make the statements therein, when read in conjunction with the Prospectus,
not misleading, or if it shall be necessary to amend or supplement any Current
Report to comply with the Securities Act or the rules thereunder, SBMS promptly
will notify the Underwriters of the necessity of such amendment or supplement,
and the Underwriters, at their expense (or, if such amendment or supplement is
necessary due to a Collateral Error relating to the SBRC Mortgage Loans (except
any such Corrected Collateral Error, with respect to materials prepared after
the receipt by the Underwriters from SBMS or any of the Mortgage Loan Sellers of
notice of such Collateral Error or materials superseding or correcting such
Collateral Error), at the expense of SBMS), shall promptly prepare and furnish
to SBMS for filing with the Commission an amendment or supplement that will
correct such statement or omission or an amendment that will effect such
compliance and shall distribute such amendment or supplement to each prospective
investor in the Registered Certificates that received such information being
amended or supplemented. The Underwriters represent and warrant to SBMS, as of
the date of delivery of such amendment or supplement to SBMS, that such
amendment or supplement will not include any untrue statement of a material fact
or, when read in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. SBMS shall have no obligation to file such amendment or supplement
if SBMS determines that such amendment or supplement contains any untrue
statement of a material fact or, when read in conjunction with the Prospectus,
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading (it being understood, however, that
SBMS shall have no obligation to review or pass upon the accuracy or adequacy
of, or to correct, any such amendment or supplement provided by the Underwriters
to SBMS pursuant to this paragraph (e)). Notwithstanding the foregoing, the
Underwriters make no representation or warranty as to whether any such amendment
or supplement of Computational Materials or ABS Term Sheets with respect to the
Registered Certificates included or will include any untrue statement resulting
directly from any Collateral Error (except any Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriters from SBMS or
any Mortgage Loan Seller of notice of such Collateral Error or materials
superseding or correcting such Collateral Error).
10. TERMINATION. This Agreement shall be subject to
termination by notice given to SBMS, if the sale of the Registered Certificates
provided for herein is not consummated because of any failure or refusal on the
part of SBMS to comply in all material respects with the terms or to fulfill in
all material respects any of the conditions of this Agreement, or if for any
reason SBMS shall be unable to perform in all material respects its obligations
under this Agreement. This Agreement shall also be subject to termination by the
Underwriters, by notice given to SBMS prior to delivery of and payment for the
Certificates, if prior to such time (i) trading in securities generally on the
New York Stock Exchange shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities in New York shall have been
declared by either federal
27
or New York State authorities, or (iii) there shall have occurred any material
outbreak or escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the reasonable judgment of the Underwriters after consultation with SBMS,
impracticable to market the Registered Certificates.
11. DEFAULT BY AN UNDERWRITER. If any Underwriter shall fail
to purchase and pay for any of the Registered Certificates agreed to be
purchased by such Underwriter hereunder and such failure to purchase shall
constitute a default in the performance of its obligations under this Agreement,
the remaining Underwriters shall be obligated (in proportion to their
allocations set forth in Schedule I) to take up and pay for the Registered
Certificates that the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that in the event that the purchase price of the
Registered Certificates that the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate Purchase Price of the
Registered Certificates, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Registered Certificates, and if such nondefaulting Underwriters do not purchase
all of the Registered Certificates, this Agreement will terminate without
liability to the nondefaulting Underwriters or SBMS. In the event of a default
by an Underwriter as set forth in this Section 11, the Closing Date for the
Registered Certificates shall be postponed for such period, not exceeding seven
(7) days, as the nondefaulting Underwriters shall determine in order that the
required changes in the Registration Statement, the Prospectus or any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to SBMS and
to any nondefaulting Underwriter for damages occasioned by its default
hereunder.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
SBMS, the Underwriters and their respective officers, directors, employees and
agents set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of the
Underwriters, SBMS or any of the officers, directors or controlling persons
referred to in Section 7 hereof, and will survive delivery of and payment for
the Registered Certificates. The provisions of Sections 7 and 9 hereof shall
survive the termination or cancellation of this Agreement.
13. BENEFICIARIES. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 hereof, and
no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of New York,
applicable to agreements negotiated, made and to be performed entirely in said
state.
15. MISCELLANEOUS. This Agreement supersedes all prior or
contemporaneous agreements and understandings relating to the subject matter
hereof (other than the Term Sheet). Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated except by a writing signed by
the party against whom enforcement of such change, waiver, discharge
28
or termination is sought. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, and that taken together
shall constitute one and the same instrument.
16. NOTICES. All communications hereunder will be in writing
and effective only upon receipt and, if sent to any Underwriter, will be
delivered to such Underwriter at the address, and to the attention of the person
or group, set forth on page 1 of this Agreement; and, if sent to SBMS, will be
delivered to Salomon Brothers Mortgage Securities VII, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, and, solely for
purposes of Section 5(e), ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; or, in each such case, to such
other address, or to the attention of such other person or group, as may be
forwarded by any such party to the other parties hereto in writing.
29
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between you and SBMS.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ MORTGAGE
SECURITIES VII, INC.
By:
-----------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
----------------------------------------------
Name:
Title:
GREENWICH CAPITAL MARKETS, INC.
By:
----------------------------------------------
Name:
Title:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:
----------------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
----------------------------------------------
Name:
Title:
FIRST UNION SECURITIES, INC.
By:
----------------------------------------------
Name:
Title:
SCHEDULE I
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 333-63752 filed by SBMS on Form S-3 and declared
effective by the Commission.
TITLE AND DESCRIPTION OF THE REGISTERED CERTIFICATES:
Commercial Mortgage Pass-Through Certificates, Series 2001-C2, Class A-1, Class
A-2, Class A-3, Class B, Class C, Class D and Class E Certificates.
Underwriting Agreement, dated as of December 18, 2001
INITIAL CLASS PRINCIPAL INITIAL RATING
CLASS DESIGNATION PURCHASE PRICE(1) BALANCE (2)(3) PASS-THROUGH RATE BY S&P/MOODY'S (4)
----------------- ----------------- -------------- ----------------- ------------------
A-1 100.0015% $50,000,000 4.482% AAA/Aaa
A-2 100.4956% $90,000,000 6.168% AAA/Aaa
A-3 100.4908% $530,163,000 6.499% AAA/Aaa
B 100.4998% $36,751,000 6.705% AA/Aa2
C 100.4969% $10,810,000 6.842% AA-/Aa3
D 100.5001% $27,022,000 6.970% A/A2
E 100.4953% $11,890,000 7.087% A-/A3
(1) The Purchase Price includes any Underwriter's discount.
(2) Subject to a variance of plus or minus 5.0%.
(3) Subject to rounding to the nearest whole dollar, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc will acquire 40%, Greenwich Capital Markets, Inc. will acquire 45%,
Credit Suisse First Boston Corporation will acquire 5%, ▇.▇. ▇▇▇▇▇▇
Securities Inc. will acquire 5% and First Union Securities, Inc. will
acquire 5% of the Class Principal Balance of the Class A-3
Certificates; and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ will acquire 47% and Greenwich
Capital Markets, Inc. will acquire 53% of the respective Class
Principal Balances of the remaining classes of Registered Certificates.
(4) By each of Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") and ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's").
Purchase Price: The purchase prices set forth in the above schedule for each
Class of Registered Certificates is expressed as a percentage of the Class
Principal Balance of such Class, and is to be accompanied by interest on the
Class Principal Balance of such Class of Registered Certificates at the initial
Pass-Through Rate for such Class, from December 1, 2001 to but not including the
Closing Date.
Closing Time, Date and Location: 10:00 a.m. New York City time on December 27,
2001 at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Issuance and delivery of Registered Certificates: Each class of Registered
Certificates will be issued as one or more Certificates registered in the name
of Cede & Co., as nominee of The Depository Trust Company. Beneficial owners
will hold interests in such Certificates through the book-entry facilities of
The Depository Trust Company in minimum denominations of initial principal
balance of $10,000 and integral multiples of $1 in excess thereof.
S-1