LB-UBS COMMERCIAL MORTGAGE TRUST 2001-C3,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-C3
UNDERWRITING AGREEMENT
As of July 20, 2001
▇▇▇▇▇▇ Brothers Inc.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Structured Asset Securities Corporation, a Delaware corporation (the
"Company"), proposes to cause the issuance of, and to sell to ▇▇▇▇▇▇ Brothers
Inc. ("▇▇▇▇▇▇"), UBS Warburg LLC ("UBSW"; and, together with ▇▇▇▇▇▇, the "Lead
Underwriters") and Bear ▇▇▇▇▇▇▇ & Co. Inc. ("Bear ▇▇▇▇▇▇▇"; and, collectively
with ▇▇▇▇▇▇ and UBSW, the "Underwriters"), the mortgage pass-through
certificates that are identified on Schedule I attached hereto (the
"Certificates").
The Certificates will evidence beneficial ownership interests in a
trust fund (the "Trust Fund") to be formed by the Company and consisting
primarily of a segregated pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"). Certain of the Mortgage Loans
(the "UBS Mortgage Loans") will be acquired by the Company from UBS Warburg Real
Estate Investments Inc. ("UBSWREI"), pursuant to a mortgage loan purchase
agreement, dated as of the date hereof (the "UBS Mortgage Loan Purchase
Agreement"), between the Company, UBSWREI and UBS Principal Finance LLC
("UBSPF"). The other Mortgage Loans (the "Holdings Mortgage Loans") will be
acquired by the Company from ▇▇▇▇▇▇ Brothers Holdings Inc., doing business as
▇▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇ Brothers Holdings Inc. ("Holdings" and,
together with UBSWREI, the "Mortgage Loan Sellers"), pursuant to a mortgage loan
purchase agreement dated as of the date hereof (the "Holdings Mortgage Loan
Purchase Agreement"; and, together with the UBS Mortgage Loan Purchase
Agreement, the "Mortgage Loan Purchase Agreements"), between the Company and
Holdings. In connection with the sale of the UBS Mortgage Loans by UBSWREI to
the Company, UBSWREI, UBS(USA), Inc. ("UBS(USA)"), the Company and the
Underwriters entered into an indemnification agreement dated as of
the date hereof (the "UBS Indemnification Agreement"). In connection with the
sale of the Holdings Mortgage Loans by Holdings to the Company, Holdings, the
Company and the Underwriters also entered into an indemnification agreement
dated as of the date hereof (the "Holdings Indemnification Agreement"; and,
together with the UBS Indemnification Agreement, the "Indemnification
Agreements").
The Certificates will be issued under a pooling and servicing agreement
to be dated as of July 11, 2001 (the "Pooling and Servicing Agreement"), among
the Company as depositor, LaSalle Bank National Association as trustee (the
"Trustee"), First Union National Bank as master servicer (the "Master
Servicer"), Lennar Partners, Inc. as special servicer (the "Special Servicer")
and ABN AMRO Bank N.V. as fiscal agent (the "Fiscal Agent"). The Certificates
and the Mortgage Loans are described more fully in the Prospectus (as defined
below), which the Company has furnished to the Underwriters. Capitalized terms
used but not defined herein have the respective meanings assigned thereto in the
Prospectus.
The Certificates are part of a series of mortgage pass-through
certificates that evidence beneficial ownership interests in the Trust Fund and
are being issued pursuant to the Pooling and Servicing Agreement. The other
certificates of such series will be retained by the Company or privately placed
with a limited number of institutional investors.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents, warrants and agrees with the respective Underwriters that:
(a) A registration statement on Form S-3 (No. 333-58562) with respect
to the Certificates has been prepared by the Company and filed with the
Securities and Exchange Commission (the "Commission"), and complies as to form
in all material respects with the requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and the rules and regulations of the Commission
thereunder, including Rule 415, and has become effective under the 1933 Act. As
used in this Underwriting Agreement (this "Agreement" or the "Underwriting
Agreement"), (i) "Registration Statement" means that registration statement and
all exhibits thereto, as amended or supplemented to the date of this Agreement;
(ii) "Basic Prospectus" means the prospectus included in the Registration
Statement at the time it became effective, or as subsequently filed with the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iii)
"Prospectus Supplement" means the prospectus supplement specifically relating to
the Certificates, as most recently filed with, or transmitted for filing to, the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iv)
"Prospectus" means the Basic Prospectus, together with the Prospectus
Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form
of the Prospectus Supplement that has heretofore been filed pursuant to
paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus"
means the Basic Prospectus, together with any Preliminary Prospectus Supplement.
The aggregate principal amount of the Certificates does not exceed the remaining
amount of mortgage-backed securities that may be offered and sold under the
Registration Statement as of the date hereof.
(b) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and on the date of this Agreement,
complied, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will comply, as to form in all material respects with the
requirements of the
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1933 Act and the rules and regulations of the Commission thereunder; and the
Registration Statement and the Prospectus do not, and (in the case of any
amendment or supplement to any such document filed with the Commission after the
date as of which this representation is being made) will not, contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company makes no representation or warranty as to
(i) information contained in or omitted from the Registration Statement or the
Prospectus, or any amendment or supplement thereto, in reliance upon and in
conformity with written or electronic information furnished to the Company by
the Underwriters specifically for inclusion therein, (ii) the information
contained in or omitted from the Prospectus, or any amendment or supplement
thereto, in reliance upon and conformity with (A) the Master Tape (it being
acknowledged that the Master Tape was used to prepare the Prospectus Supplement
and any Preliminary Prospectus Supplement, including, without limitation, Annex
▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇ and Annex B to each of the Prospectus Supplement and
any Preliminary Prospectus Supplement and the accompanying diskette, and any
Computational Materials and ABS Term Sheets (each as defined in Section 4
hereof) with respect to the Certificates), (B) the representations and
warranties of either Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase Agreement, or (C) any other information
concerning the Mortgage Loan Seller Matters furnished to the Company or the
Underwriters by either Mortgage Loan Seller, (iii) the information regarding the
Mortgage Loan Seller Matters contained in or omitted from the Prospectus
Supplement, or any amendment or supplement thereto, under the headings "Summary
of Prospectus Supplement--The Underlying Mortgage Loans and the Mortgaged Real
Properties", "Risk Factors--Risks Related to The Underlying Mortgage Loans" and
"Description of the Mortgage Pool" or on Annex ▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇ and
Annex B thereto or on the accompanying diskette, or (iv) the information
contained in or omitted from any Computational Materials or ABS Term Sheets, or
any amendment or supplement thereto, incorporated by reference in the
Registration Statement, any Preliminary Prospectus or the Prospectus (or any
amendment thereof or supplement thereto) by a reason of a filing made in
accordance with Section 5(h) hereof. The "Master Tape" consists of the
compilation of underlying information and data regarding the Mortgage Loans
covered by the Independent Accountants Report on Applying Agreed Upon Procedures
dated July 20, 2001, as supplemented to the Closing Date, and rendered by
Deloitte & Touche, LLP. The "Mortgage Loan Seller Matters" consist of the
following matters: the Mortgage Loans and the underlying real properties
securing the Mortgage Loans; the related loan documents and the obligors
thereunder; and the Mortgage Loan Sellers.
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease or operate its properties and to
conduct its business as now conducted by it and to enter into and perform its
obligations under this Agreement, the Pooling and Servicing Agreement and the
Mortgage Loan Purchase Agreements; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business.
(d) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of the
date on which, prior to the Closing Date, any amendment to the Registration
Statement becomes effective, as of the date on which any supplement to the
Prospectus Supplement is filed with the Commission, and as of the Closing Date,
there has not and
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will not have been (i) any request by the Commission for any further amendment
to the Registration Statement or the Prospectus or for any additional
information, (ii) any issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or threat of
any proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Certificates for sale in any jurisdiction
or any initiation or threat of any proceeding for such purpose.
(e) This Agreement has been duly authorized, executed and delivered by
the Company, and the Pooling and Servicing Agreement and the respective Mortgage
Loan Purchase Agreements, when executed and delivered as contemplated hereby and
thereby, will have been duly authorized, executed and delivered by the Company;
and, assuming due authorization, execution and delivery hereof and thereof by
the other parties hereto and thereto, this Agreement constitutes, and the
Pooling and Servicing Agreement and the respective Mortgage Loan Purchase
Agreements, when so executed and delivered will constitute, legal, valid and
binding agreements of the Company, enforceable against the Company in accordance
with their respective terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of the rights of creditors generally,
(ii) general principles of equity, whether enforcement is sought in a proceeding
in equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of the provisions of any such agreement that purport or are
construed to provide indemnification for securities law liabilities.
(f) As of the Closing Date, the Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the respective
descriptions thereof contained in the Prospectus. As of the Closing Date, the
Certificates will be duly and validly authorized and, when duly and validly
executed, authenticated and delivered in accordance with the Pooling and
Servicing Agreement to the Underwriters against payment therefor as provided
herein, will be duly and validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement.
(g) At the Closing Date, each of the representations and warranties of
the Company set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(h) The Company is not in violation of its certificate of incorporation
or by-laws or in default under any agreement, indenture or instrument the effect
of which violation or default would be material to the Company or which
violation or default would have a material adverse affect on the performance of
its obligations under this Agreement, the Pooling and Servicing Agreement or
either of the Mortgage Loan Purchase Agreements. The execution, delivery and
performance by the Company of this Agreement, the Pooling and Servicing
Agreement and the respective Mortgage Loan Purchase Agreements do not and will
not conflict with or result in a breach of any term or provision of the
certificate of incorporation or by-laws of the Company or conflict with, result
in a breach, violation or acceleration of, or constitute a default under, the
terms of any indenture or other agreement or instrument to which the Company is
a party or by which it or any of its material assets is bound, or any statute,
order or regulation applicable to the Company of any state or Federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Company.
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(i) There is no action, suit or proceeding against the Company pending,
or, to the knowledge of the Company, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement, either of the Mortgage Loan
Purchase Agreements or the Certificates, (ii) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions contemplated by
this Agreement, the Pooling and Servicing Agreement or either of the Mortgage
Loan Purchase Agreements, (iii) that might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement, the Pooling and Servicing Agreement, either
of the Mortgage Loan Purchase Agreements or the Certificates or (iv) seeking to
affect adversely the federal income tax attributes of the Certificates as
described in the Prospectus.
(j) There are no contracts, indentures or other documents of a
character required by the 1933 Act or by the rules and regulations thereunder to
be described or referred to in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(k) No authorization, approval or consent of or filing with any court
or governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Certificates pursuant to or as contemplated by
this Agreement and the Pooling and Servicing Agreement, except such as have
been, or as of the Closing Date will have been, obtained or completed, as
applicable, or such as may otherwise be required under applicable state
securities laws in connection with the purchase and the offer and sale of the
Certificates by the Underwriters, and except any recordation or filing of the
respective assignments of the Mortgage Loans to the Trustee pursuant to the
Pooling and Servicing Agreement that have not been completed.
(l) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Company has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company.
(m) Any taxes, fees and other governmental charges payable by the
Company in connection with the execution and delivery of this Agreement, the
Pooling and Servicing Agreement or either of the Mortgage Loan Purchase
Agreements or the issuance and sale of the Certificates (other than such
federal, state and local taxes as may be payable on the income or gain
recognized therefrom), have been or will be paid at or prior to the Closing
Date.
(n) Neither the Company nor the Trust Fund is, and neither the issuance
and sale of the Certificates in the manner contemplated by the Prospectus nor
the activities of the Trust Fund pursuant to the Pooling and Servicing Agreement
will cause the Company or the Trust Fund to be, an "investment company" or under
the control of an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
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(o) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of the
interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriters
will constitute at least reasonably equivalent value and fair consideration for
the Certificates. The Company will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund and the sale of the Certificates to the
Underwriters. The Company is not selling the Certificates to the Underwriters or
transferring the Mortgage Loans to the Trustee on behalf of the Trust Fund with
any intent to hinder, delay or defraud any of the creditors of the Company.
(p) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Company are pending or contemplated.
(q) At the Closing Date, the respective classes of Certificates shall
have been assigned ratings no lower than those set forth in Schedule I hereto by
the nationally recognized statistical rating organizations identified in
Schedule I hereto (the "Rating Agencies").
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth on
Schedule I hereto, Certificates of each class thereof having the actual
principal amount set forth next to the name of such Underwriter on Schedule II
hereto. Each of the Underwriters shall only be required to purchase the actual
principal amount of the Certificates of each class thereof set forth next to
such Underwriter's name on Schedule II hereto. There will be added to the
purchase price of the Certificates an amount equal to interest accrued thereon
pursuant to the terms thereof from July 11, 2001 to but excluding the Closing
Date.
Each Underwriter hereby represents and warrants that, under GAAP and
for federal income tax purposes, it will report its acquisition of Certificates,
pursuant to this Agreement, as a purchase of assets and not as a secured
lending.
3. PAYMENT AND DELIVERY. The closing for the purchase and sale of the
Certificates hereunder shall occur at the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. New York City time, on
July 30, 2001 or at such other location, time and date as shall be mutually
agreed upon by the Lead Underwriters and the Company (such time and date of
closing, the "Closing Date"). Delivery of the Certificates shall be made through
the Same Day Funds Settlement System of the Depository Trust Company ("DTC").
Payment shall be made to the Company in immediately available Federal funds
wired to such bank as may be designated by the Company (or by such other method
of payment as may be mutually agreed upon by the Company and any particular
Underwriter), against delivery of the Certificates. The Certificates will be
made available for examination by the Underwriters not later than 3:00 p.m. New
York City time on the last business day prior to the Closing Date.
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References herein, including, without limitation, in the Schedules
hereto, to actions taken or to be taken following the Closing Date with respect
to any Certificates that are to be delivered through the facilities of DTC shall
include, if the context so permits, actions taken or to be taken with respect to
the interests in such Certificates as reflected on the books and records of DTC.
4. OFFERING BY THE UNDERWRITERS.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale to the public, including, without limitation, in and from
the State of New York, as set forth in the Prospectus Supplement. It is further
understood that the Company, in reliance upon Policy Statement 105 has not and
will not file the offering pursuant to Section 352-e of the General Business Law
of the State of New York with respect to the Certificates which are not
"mortgage related securities" as defined in the 1934 Act (as defined below).
Accordingly, each Underwriter covenants and agrees with the Company that sales
of such Certificates made by such Underwriter in the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
(b) The Underwriters may prepare and provide (and acknowledge that they
have prepared and provided) to prospective investors certain Computational
Materials or ABS Term Sheets in connection with the offering of the
Certificates. In this regard, each Underwriter represents and warrants to, and
covenants with, the Company that:
(i) Such Underwriter has complied and shall comply with the
requirements of the no-action letter, dated May 20, 1994, issued by the
Commission to ▇▇▇▇▇▇, Peabody Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
Co. Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation, as made applicable
to other issuers and underwriters by the Commission in response to the
request of the Public Securities Association, dated May 27, 1994
(collectively, the "▇▇▇▇▇▇/PSA Letter"), and the requirements of the
no-action letter, dated February 17, 1995, issued by the Commission to the
Public Securities Association (the "PSA Letter" and, together with the
▇▇▇▇▇▇/PSA Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials", "ABS Term
Sheets," "Structural Term Sheets" and "Collateral Term Sheets" shall have
the respective meanings given such terms in the No-Action Letters.
(iii) All Computational Materials and ABS Term Sheets in respect
of the Certificates provided to prospective investors by such Underwriter
have borne or shall bear, as the case may be, a legend in a form previously
approved by the Company or its counsel.
(iv) Such Underwriter has not distributed and shall not distribute
any such Computational Materials or ABS Term Sheets in respect of the
Certificates, the forms and methodology of which are not in accordance with
this Agreement. Such Underwriter has provided or shall provide, as the case
may be, to the Company, for filing pursuant to a Current Report on Form 8-K
as provided in Section 5(h) hereof, copies (in such format as required by
the Company) of all such Computational Materials and ABS Term Sheets. Such
Underwriter may provide copies of the foregoing in a consolidated or
aggregated form including all information required to be
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filed. All Computational Materials and ABS Term Sheets described in this
paragraph (b)(iv) must be or must have been, as applicable, provided to the
Company in paper or electronic format suitable for filing with the
Commission not later than 10:00 a.m. (New York City time) at least one
business day before filing thereof is or was, as the case may be, required
pursuant to the terms of the No-Action Letters.
(v) All information included in any Computational Materials and
ABS Term Sheets in respect of the Certificates provided to prospective
investors by such Underwriter has been or shall be generated based on
substantially the same methodology and assumptions as are used to generate
the information in the Prospectus Supplement as set forth therein; provided
that such Computational Materials and ABS Term Sheets may include
information based on alternative methodologies or assumptions if specified
therein. If any Computational Materials or ABS Term Sheets in respect of the
Certificates provided to prospective investors by such Underwriter were
based on assumptions with respect to the Mortgage Pool that differ from the
Prospectus Supplement in any material respect or on Certificate structuring
assumptions (except in the case of Computational Materials when the
different structuring terms were hypothesized and so described) that were
revised in any material respect prior to the printing of the Prospectus,
then to the extent that it has not already done so, such Underwriter shall
immediately inform the Company and, upon the direction of the Company, and
if not corrected by the Prospectus, shall prepare revised Computational
Materials and/or ABS Term Sheets, as the case may be, based on information
regarding the Mortgage Pool and Certificate structuring assumptions
consistent with the Prospectus, circulate such revised Computational
Materials and ABS Term Sheets to all recipients of the preliminary versions
thereof, and include such revised Computational Materials and ABS Term
Sheets (marked, "as revised") in the materials delivered to the Company
pursuant to paragraph (b)(iv) above.
(vi) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that the Company will file
Computational Materials or ABS Term Sheets that contain a material error or,
when read together with the Prospectus, a material omission, if clearly
marked (A) "superseded by materials dated [specify date]" and accompanied by
corrected Computational Materials or ABS Term Sheets that are marked
"material previously dated [specify date], as corrected", or (B) if the
material error or omission is to be corrected in the Prospectus, "superseded
by materials contained in the Prospectus." If, within the period during
which the Prospectus relating to the Certificates is required to be
delivered under the 1933 Act and the rules and regulations of the Commission
thereunder, any Computational Materials or ABS Term Sheets in respect of the
Certificates provided to prospective investors by such Underwriter are
determined, in the reasonable judgment of the Company or such Underwriter,
to contain a material error or, when read together with the Prospectus, a
material omission, then (unless the material error or omission was corrected
in the Prospectus) such Underwriter shall prepare, or cause the preparation
of, a corrected version of such Computational Materials or ABS Term Sheets,
shall circulate such corrected Computational Materials or ABS Term Sheets to
all recipients of the prior versions thereof, and shall deliver copies of
such corrected Computational Materials or ABS Term Sheets (marked, "as
corrected") to the Company for filing with the Commission in a subsequent
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Current Report on Form 8-K submission (subject to the Company's obtaining an
accountant's comfort letter in respect of such corrected Computational
Materials and ABS Term Sheets, which shall be at the expense of such
Underwriter).
(vii) Such Underwriter has not (and, as of the Closing Date, will
not have) provided any prospective investors with any information in written
or electronic form in connection with the offering of the Certificates
except for (A) the Prospectus and any amendments or supplements thereto, (B)
any Preliminary Prospectus and (C) such Computational Materials and/or ABS
Term Sheets as either have been provided to the Company pursuant to or as
contemplated by paragraph (b)(iv) above or are not required to be filed with
the Commission in accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by any
Underwriter to the Company of all Computational Materials and ABS Term
Sheets in respect of the Certificates required to be delivered in accordance
with or as contemplated by paragraph (b)(iv) above, the Company shall have
the right to delay the release of the Prospectus to investors or to the
Underwriters, to delay the Closing Date and to take other appropriate
actions in each case as necessary in order to allow the Company to comply
with its agreement set forth in Section 5(h) hereof to file the
Computational Materials and ABS Term Sheets by the time specified therein.
(ix) Computational Materials and ABS Term Sheets distributed by
such Underwriter through electronic means have been so distributed in
accordance with SEC Release No. 33-7233.
5. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants with the
respective Underwriters that:
(a) During such period following the date of this Agreement in which
any Prospectus is required to be delivered under the 1933 Act (the "Prospectus
Delivery Period"), the Company will deliver to each Underwriter such number of
copies of each Prospectus as such Underwriter may reasonably request.
(b) During the Prospectus Delivery Period, the Company will file
promptly with the Commission any amendment or supplement to the Registration
Statement or any Prospectus relating to or covering the Certificates that may,
in the judgment of the Company or the Lead Underwriters, be required by the 1933
Act and the rules and regulations of the Commission thereunder or requested by
the Commission and approved by the Lead Underwriters.
(c) Prior to filing with the Commission during the Prospectus Delivery
Period any amendment or supplement to the Registration Statement relating to or
covering the Certificates (other than an amendment by reason of Rule 429 under
the ▇▇▇▇ ▇▇▇) or any amendment or supplement to the Prospectus, the Company will
furnish a copy thereof to the Underwriters, and the Company will not file any
such amendment or supplement to which the Lead Underwriters shall reasonably
object.
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(d) The Company will advise the Underwriters promptly (i) when, during
the Prospectus Delivery Period, any post-effective amendment to the Registration
Statement relating to or covering the Certificates (other than any amendment by
reason of Rule 429 under the ▇▇▇▇ ▇▇▇) becomes effective, (ii) of any request or
proposed request by the Commission for any amendment or supplement to the
Registration Statement (insofar as the amendment or supplement relates to or
covers the Certificates), for any amendment or supplement to the Prospectus or
for any additional information with respect to the Certificates, (iii) of the
issuance by the Commission, during the Prospectus Delivery Period, of any stop
order suspending the effectiveness of the Registration Statement or the
initiation or threat of any such stop order proceeding, (iv) of receipt by the
Company of any notification with respect to the suspension of the qualification
of the Certificates for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose and (v) of the happening, during the Prospectus
Delivery Period, of any event that makes untrue any statement of a material fact
made in the Registration Statement or any Prospectus or that requires the making
of a change in or addition to the Registration Statement or any Prospectus in
order to make any material statement therein not misleading.
(e) If, during the Prospectus Delivery Period, the Commission issues an
order suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the lifting of that order at the
earliest possible time.
(f) The Company will endeavor to qualify the Certificates for offer and
sale under the securities laws of such jurisdictions as the Lead Underwriters
may reasonably request, provided, however, that this Section 5(f) shall not
obligate the Company to file any general consent to service of process or to
qualify to do business in any jurisdiction or as a dealer in securities in any
jurisdiction in which it is not so qualified.
(g) The costs and expenses associated with the transactions
contemplated by this Agreement shall be payable by the Mortgage Loan Sellers as
and to the extent provided in the Mortgage Loan Purchase Agreements, provided
that Bear ▇▇▇▇▇▇▇ shall not be responsible pursuant to this Section 5(g) for any
costs and expenses incurred by the Company, the Lead Underwriters or either
Mortgage Loan Seller, it being acknowledged and agreed that Bear ▇▇▇▇▇▇▇ shall
be responsible only for costs and expenses (including, but not limited to, the
costs of any counsel retained thereby) actually incurred by it. Bear ▇▇▇▇▇▇▇
shall be entitled to receive as a fee from the Mortgage Loan Sellers, the sum of
$31,250.00.
(h) The Company will file any documents and any amendments thereof as
may be required to be filed by it pursuant to the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations
of the Commission under the 1933 Act and the 1934 Act, including, but not
limited to, the filing with the Commission pursuant to a Current Report on Form
8-K, subject to Section 4 hereof, of all Computational Materials and ABS Term
Sheets in respect of the Certificates furnished by any Underwriter and
identified by it as such. Subject to compliance by each Underwriter with Section
4(b)(iv) hereof, the Company will file all such Computational Materials and ABS
Term Sheets within the time period allotted for such filing pursuant to the
No-Action Letters. Subject to compliance by each Underwriter with Section
4(b)(iv) hereof, the Company represents and warrants that, to the extent
required by the No-Action Letters, the Company has timely filed with the
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Commission any Collateral Term Sheets previously delivered to it as contemplated
by Section 4(b)(iv) hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters hereunder to purchase the Certificates shall be
subject to the accuracy in all material respects of the representations and
warranties on the part of the Company contained herein as of the date hereof, as
of the date of the effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date, as of the date the Prospectus Supplement or any
supplement thereto is filed with the Commission prior to the Closing Date and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates delivered pursuant to the provisions hereof, to the performance
in all material respects by the Company of its obligations hereunder and to
satisfaction, as of the Closing Date, of the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or, to
the Company's knowledge, threatened; and the Prospectus Supplement shall have
been filed or transmitted for filing with the Commission in accordance with Rule
424 under the ▇▇▇▇ ▇▇▇.
(b) The Company shall have delivered to the Underwriters a certificate
of the Company, signed by an authorized officer of the Company and dated the
Closing Date, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date; and
(ii) the Company has in all material respects complied with all the agreements
and satisfied all the conditions on its part that are required hereby to be
performed or satisfied at or prior to the Closing Date.
(c) The Underwriters shall have received with respect to the Company a
good standing certificate from the Secretary of State of the State of Delaware,
dated not earlier than 10 days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an
assistant secretary of the Company, in his individual capacity, a certificate,
dated the Closing Date, to the effect that: (i) each individual who, as an
officer or representative of the Company, signed this Agreement, the Pooling and
Servicing Agreement, either of the Mortgage Loan Purchase Agreements or any
other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, in the Pooling and
Servicing Agreement or in either of the Mortgage Loan Purchase Agreements, was
at the respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (ii) no event (including,
without limitation, any act or omission on the part of the Company) has occurred
since the date of the good standing certificate referred to in paragraph (c)
above which has affected the good standing of the Company under the laws of the
State of Delaware. Such certificate shall be accompanied by true and complete
copies (certified as such by the Secretary or an assistant secretary of the
Company) of (i) the certificate of incorporation and by-laws of the Company, as
in effect on the Closing Date, and (ii) the
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resolutions of the Company and any required shareholder consent relating to the
transactions contemplated in this Agreement, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements.
(e) The Underwriters shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇, special counsel for the Company, a favorable opinion, dated the Closing
Date, substantially in the form attached hereto as Exhibit A-1.
(f) The Underwriters shall have received copies of all legal opinion
letters delivered by Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, special counsel for the
Company, to the Rating Agencies in connection with the issuance of the
Certificates, accompanied in each case by a letter signed by Sidley ▇▇▇▇▇▇ ▇▇▇▇▇
& ▇▇▇▇ stating that the Underwriters may rely on such opinion letter as if it
were addressed to them as of date thereof.
(g) The Underwriters shall have received from in-house counsel for the
Company, a favorable opinion, dated the Closing Date, substantially in the form
attached hereto as Exhibit A-2.
(h) The Underwriters shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇, special counsel for the Company and the Underwriters, a letter, dated the
Closing Date, substantially in the form attached hereto as Exhibit A-3,
regarding certain information in the Registration Statement and the Prospectus.
(i) The Underwriters shall have received from Deloitte & Touche, LLP,
certified public accountants, a letter dated the Closing Date and satisfactory
in form and substance to the Lead Underwriters and Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
as special counsel for the Underwriters, to the following effect:
(i) they have performed certain specified procedures as a result
of which they have determined that the information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement under
the captions "Summary of the Prospectus Supplement," "Description of the
Mortgage Pool" and "Yield and Maturity Considerations" and on Annex ▇-▇,
▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇ and Annex B agrees with the data sheet or computer tape
prepared by or on behalf of the Mortgage Loan Sellers, except for such
non-material deviations as are otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in agreed upon documents that are part of the Mortgage
Loan files and in such other sources as shall be specified by them, and
found such data and information to be in agreement in all material respects,
except for such non-material deviations as are otherwise noted in such
letter.
(j) The Underwriters shall have received, with respect to each of the
Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent, a
favorable opinion of counsel, dated the Closing Date, addressing: the valid
existence of such party under the laws of its jurisdiction of organization; the
due authorization, execution and delivery of the Pooling and Servicing Agreement
by such party; the
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enforceability of the Pooling and Servicing Agreement against such party,
subject to such limitations as are reasonably acceptable to the Lead
Underwriters and Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, as special counsel for the
Underwriters; and such other matters as the Lead Underwriters and Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇, as special counsel for the Underwriters, may reasonably request.
Counsel rendering each such opinion may express its reliance as to factual
matters on representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to the Pooling and Servicing Agreement and on certificates furnished by
public officials and, further, may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the party on behalf of which such opinion is being rendered.
Each such opinion need cover only the laws of the State of New York, the laws of
the jurisdiction of organization for the party on behalf of which such opinion
is being rendered and the federal law of the United States.
(k) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by UBSWREI, UBSPF and
UBS(USA) in connection with the sale by UBSWREI of the UBS Mortgage Loans to the
Company, pursuant to the UBS Mortgage Loan Purchase Agreement. The Underwriters
shall be entitled to rely on each such certificate executed and delivered by
UBSWREI, UBS(USA) or any of their respective officers and representatives, to
the same extent that the Company may so rely, and each such opinion addressed to
the Company shall also be addressed to the Underwriters.
(l) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by Holdings in connection
with the sale by Holdings of its Mortgage Loans to the Company, pursuant to the
Holdings Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to
rely on each such certificate executed and delivered by Holdings or any of its
officers and representatives, to the same extent that the Company may so rely,
and each such opinion addressed to the Company shall also be addressed to the
Underwriters.
(m) The Underwriters and Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, as special counsel
for the Underwriters, shall have been furnished with such other documents and
opinions as the Lead Underwriters and Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, as special
counsel for the Underwriters, may reasonably require, for the purpose of
enabling them to pass upon the issuance and sale of the Certificates as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained.
(n) The Certificates shall have been assigned ratings no less than
those set forth on Schedule I and such ratings shall not have been qualified,
downgraded or withdrawn.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in material breach of any covenants or agreements contained
herein or if any of the opinions and certificates referred to above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to the Lead Underwriters and Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
as special counsel for the Underwriters, this Agreement and all obligations of
the Underwriters hereunder may be cancelled at, or at
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any time prior to, the Closing Date by the Lead Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform in all material respects any agreement herein or comply in all material
respects with any provision hereof, other than by reason of a default by the
Underwriters or a refusal, inability or failure on the part of UBSWREI or any of
its affiliates to perform in all material respects any agreement in, or comply
in all material respects with any provision of, its Mortgage Loan Purchase
Agreement, the Company will reimburse the Underwriters upon demand, for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by any of them in connection with the proposed
purchase and sale of the Certificates. UBSWREI has agreed that, if the sale of
the Certificates provided for herein is not consummated because of a refusal,
inability or failure on the part of UBSWREI or any of its affiliates to perform
in all material respects any agreement in, or comply in all material respects
with any provision of, its Mortgage Loan Purchase Agreement, UBSWREI will
reimburse the Underwriters upon demand, for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by any of them in connection with the proposed purchase and sale of the
Certificates.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the Underwriters
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against:
(i) any and all losses, liabilities, claims, damages, costs and
expenses whatsoever, as incurred, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading, or arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus or any Preliminary Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) any and all losses, liabilities, claims, damages, costs and
expenses whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission, contemplated by clause (i) above, if
such settlement is effected with the written consent of the Company or as
otherwise provided in Section 8(c) hereof; and
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(iii) any and all expenses whatsoever, as incurred (including,
without limitation, the fees and disbursements of counsel chosen by the Lead
Underwriters), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, contemplated by clause (i) above, to
the extent that any such expense is not paid under clause (i) or (ii) above;
provided, however, that the Company shall not be liable under the indemnity
agreement in this subsection (a) for any such loss, liability, claim, damage,
cost or expense that arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission contemplated by clause (i)
above that was made in reliance upon and in conformity with written or
electronic information (as specified in Section 8(b) below) furnished to the
Company by any Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or in the Prospectus or any Preliminary Prospectus (or
any amendment or supplement thereto); and provided, further, that the Company
shall not be liable under the indemnity agreement in this subsection (a) for any
such loss, liability, claim, damage, cost or expense that arises out of or is
based upon any untrue statement or omission or alleged untrue statement or
omission contemplated by clause (i) above that was made in any Computational
Materials or ABS Term Sheets (or any amendments or supplements thereto) in
respect of the Certificates delivered to prospective investors by one or more of
the Underwriters and furnished to the Company by any of the Underwriters
pursuant to Section 4(b)(iv) hereof and made a part of the Registration
Statement or incorporated by reference in the Prospectus or any Preliminary
Prospectus; and provided, further, that the Company shall not be liable under
the indemnity agreement in this subsection (a) for any such loss, liability,
claim, damage, cost or expense that arises out of or is based upon (A) any
untrue statement or omission or alleged untrue statement or omission
contemplated by clause (i) above that was made in the Prospectus or any
Preliminary Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with (1) the Master Tape (it being acknowledged that the
Master Tape was used to prepare the Prospectus Supplement and any Preliminary
Prospectus Supplement, including, without limitation, Annex ▇-▇, ▇▇▇▇▇ ▇-▇,
▇▇▇▇▇ ▇-▇ and Annex B thereto and the accompanying diskette), (2) the
representations and warranties of either Mortgage Loan Seller set forth in or
made pursuant to the related Mortgage Loan Purchase Agreement or (3) any other
information concerning the Mortgage Loan Seller Matters furnished to the Company
or the Underwriters by either Mortgage Loan Seller, or (B) any untrue statement
or omission or alleged untrue statement or omission contemplated by clause (i)
above that was made in the Prospectus Supplement or any Preliminary Prospectus
Supplement (or any amendment or supplement thereto) concerning the Mortgage Loan
Seller Matters 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 "Description of the
Mortgage Pool" therein or on Annex ▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇ and/or Annex B
thereto or on the accompanying diskette; and, provided, further, that the
Company shall not be liable to any Underwriter or any person controlling such
Underwriter under the indemnity agreement in this subsection (a) for any such
loss, liability, claim, damage, cost or expense that arises out of or is based
upon any untrue statement or omission contemplated by clause (i) above that was
made in any Preliminary Prospectus to the extent that such losses, liabilities,
claims, damages, costs or expenses result from the fact that such Underwriter
sold Certificates to a person as to whom it shall be established that there was
not sent or given, at or prior to the confirmation of such
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sale, a copy of the Prospectus (excluding documents incorporated therein by
reference), such untrue statement or omission had been corrected in the
Prospectus and a sufficient number of copies of the Prospectus had been provided
by the Company to such Underwriter prior to the confirmation of such sale.
(b) The respective Underwriters, severally and not jointly, each agrees
to indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all losses, liabilities, claims, damages, costs and
expenses described in clauses (i), (ii) and (iii) of Section 8(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Prospectus or any Preliminary
Prospectus (or any amendment thereof or supplement thereto) in reliance upon and
in conformity with written or electronic information relating to such
Underwriter furnished to the Company by such Underwriter, or by either of the
Lead Underwriters on its behalf, expressly for use in the Prospectus or such
Preliminary Prospectus (or any amendment or supplement thereto), or made in any
Computational Materials or ABS Term Sheets in respect of the Certificates that
were prepared by such Underwriter and distributed by it or any other party to
prospective investors; provided, however, that such Underwriter shall not be
liable under the indemnity agreement in this subsection (b) for any such loss,
liability, claim, damage, cost or expense that arises out of or is based upon
any untrue statement or omission in any such Computational Materials or ABS Term
Sheets to the extent that such loss, liability, claim, damage or expense is
covered by the indemnity agreement included in Section 1(a) of either
Indemnification Agreement, unless it shall be established that such Underwriter
was notified electronically or in writing of such untrue statement or omission
prior to the time of confirmation of sale to the person that purchased the
Certificates that are the subject of such loss, liability, claim, damage or
expense, or action in respect thereof, and such Underwriter failed to deliver to
such person corrected Computational Materials or ABS Term Sheets (or, if the
superseding or correcting information is contained in the Prospectus, failed to
deliver to such person such Prospectus) prior to confirmation of such sale to
such person. It is hereby acknowledged that (i) the statements set forth in the
fourth and fifth sentences of the penultimate paragraph, and the entire last
paragraph, on the cover of the Prospectus Supplement and any Preliminary
Prospectus Supplement, (ii) the statements under the caption "Summary of
Prospectus Supplement--Relevant Parties--Underwriters" in the Prospectus
Supplement or any Preliminary Prospectus Supplement, and (iii) the statements in
the table and in the first sentence of each of the third and fifth paragraphs,
and the entire sixth paragraph, under the caption "Method of Distribution" in
the Prospectus Supplement or any Preliminary Prospectus Supplement, constitute
the only written or electronic information furnished to the Company by the
Underwriters, including, without limitation, by either of the Lead Underwriters
on behalf of any other Underwriter, expressly for use in the Prospectus or any
Preliminary Prospectus.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of the indemnity agreement in
subsection (a) or (b), as applicable, of this Section 8. An indemnifying party
may participate at its own expense in the defense of any such action and, to the
extent that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from the indemnified party, to
assume the
-16-
defense thereof, with counsel satisfactory to such indemnified party. In any
such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have agreed to the retention of such counsel, or (ii) the
indemnifying party shall not have assumed the defense of such action, with
counsel satisfactory to the indemnified party, within a reasonable period
following the indemnifying party's receiving notice of such action, or (iii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. In no event shall the indemnifying party or
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from its or their own counsel to all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
Notwithstanding anything herein to the contrary, an indemnifying party
shall not be liable under subsection (a) or (b) of this Section 8 for any
settlement or compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification could be sought under such subsection (a) or (b), as the case
may be, of this Section 8, effected without its written 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 this Section 8, (ii) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (iii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) The amount paid or payable by an indemnified party as a result of
the losses, liabilities, claims, damages, costs or expenses referred to in this
Section 8 shall be deemed to include any legal fees and disbursements or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim except where the indemnified party is
required to bear such expenses, which expenses the indemnifying party shall pay
as and when incurred, at the request of the indemnified party, to the extent
that it is reasonable to believe that the indemnifying party will be ultimately
obligated to pay such expenses. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment.
-17-
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity agreements contained in this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by the Company, the Underwriters, any of
their respective directors or officers, or any person controlling the Company or
any of the Underwriters, and (iii) acceptance of and payment for any of the
Certificates.
9. CONTRIBUTION.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8(a) or
Section 8(b) hereof is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, on the one hand, and the Underwriters, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages, costs and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company, on the one hand, or the Underwriters, on the other hand, as incurred,
(i) in such proportions as are appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, from the transactions contemplated by this Agreement, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages, costs and/or expenses, as well as any other relevant equitable
considerations; provided, however, that in no case shall any Underwriter be
responsible under this Section 9(a) for any amount in excess of the fees
received by such Underwriter in connection with the underwriting of the
Certificates, less any amount previously paid by such Underwriter in respect of
the subject losses, liabilities, claims, damages, costs and/or expenses. For
purposes of the foregoing, the benefits received by the Company in connection
with the transactions contemplated by this Agreement shall be deemed to be equal
to the total gross proceeds from the sale of the Certificates (before deducting
expenses, but excluding fees paid to the Underwriters) received by the Company,
and the benefits received by each Underwriter in connection with the
transactions contemplated by this Agreement shall be deemed to be equal to the
fees received by such Underwriter in connection with the underwriting of the
Certificates. The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties hereto agree that it would not
be just and equitable if contribution pursuant to this Section 9(a) were
determined by per capita allocation or by any other method of allocation that
does not take account of the considerations referred to in this Section 9(a).
(b) Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the
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1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The remedies provided for
in this Section 9 are not exclusive and shall not limit any rights or remedies
that may otherwise be available at law or in equity to any party entitled to
contribution under this Section 9.
(c) The contribution agreements contained in this Section 9 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or any of the Underwriters, and (iii) acceptance of and payment for any
of the Certificates.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, or by or on behalf of the
Company, or by or on behalf of any of the controlling persons and officers and
directors referred to in Sections 8 and 9 hereof, and shall survive delivery of
the Certificates to the Underwriters.
11. TERMINATION OF AGREEMENT; SURVIVAL.
(a) The Lead Underwriters may terminate the obligations of the
Underwriters under this Agreement, by notice to the Company, at any time at or
prior to the Closing Date (i) if there has been, since the date of this
Agreement or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which is such as to make it, in the reasonable
judgment of the Lead Underwriters, impracticable to market the Certificates or
to enforce contracts for the sale of the Certificates, or (iii) if trading
generally on the New York Stock Exchange has been suspended, or if a banking
moratorium has been declared by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 11, such
termination shall be without liability of any party to any other party, except
that the provisions of Section 5(g) hereof regarding the payment of costs and
expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement.
12. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter shall fail to take up and pay for the amount of
the Certificates agreed by such Underwriter to be purchased under this
Agreement, upon tender of such Certificates in accordance with the terms hereof,
and the amount of the Certificates not purchased does not aggregate more than
10% of the total amount of the Certificates set forth in Schedule II hereof
(based on aggregate purchase price), then the remaining Lead Underwriter (or, in
the case that Bear ▇▇▇▇▇▇▇ is the withdrawing
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or defaulting Underwriter, the Lead Underwriters) shall be obligated to take up
and pay for the Certificates that the withdrawing or defaulting Underwriter
agreed but failed to purchase (it being understood and agreed that if Bear
▇▇▇▇▇▇▇ is the withdrawing or defaulting Underwriter, then the Lead
Underwriters' obligations under this Section 12(a) shall be allocated between
them, on a pro rata basis, in accordance with the respective aggregate purchase
prices to be paid by the Lead Underwriters for the Certificates originally
allocated thereto on Schedule II).
(b) If any Underwriter shall fail to take up and pay for the amount of
the Certificates agreed by such Underwriter to be purchased under this Agreement
(such Underwriter being a "Defaulting Underwriter"), upon tender of such
Certificates in accordance with the terms hereof, and the amount of the
Certificates not purchased aggregates more than 10% of the total amount of the
Certificates set forth in Schedule II hereto (based on aggregate purchase
price), and arrangements satisfactory to the remaining Underwriters and the
Company for the purchase of such Certificates by other persons are not made
within 36 hours thereafter, this Agreement shall terminate. In the event of any
such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 5(g), Section 8 and
Section 9 hereof), nor shall any Underwriter (other than the Defaulting
Underwriter) be under any liability to the Company (except to the extent
provided in Sections 8 and 9 hereof). Nothing herein shall be deemed to relieve
any Defaulting Underwriter from any liability it may have to the Company or the
other Underwriters by reason of its failure to take up and pay for Certificates
as agreed by such Defaulting Underwriter.
13. NOTICES. Any notice by the Company to any Underwriter shall be
sufficient if given in writing or by telegraph addressed to the address for such
Underwriter set forth on Schedule II hereto and any notice by any Underwriter to
the Company shall be sufficient if given in writing or by telegraph addressed to
the Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of the
President.
14. BENEFICIARIES. This Agreement shall be binding upon the
Underwriters, the Company and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except that the indemnity agreement of the Underwriters contained in Section 8
hereof and the contribution agreement of the Underwriters contained in Section 9
hereof shall each be deemed to be also for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement and
any person controlling the Company; and the indemnity agreement of the Company
contained in Section 8 hereof and the contribution agreement of the Company
contained in Section 9 hereof shall each be deemed to be also for the benefit of
any person controlling an Underwriter. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 14, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
15. BUSINESS DAY. For purposes of this Agreement, "business day" means
any day on which the New York Stock Exchange is open for trading.
16. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, applicable to contracts
negotiated, made and to be performed entirely in said State.
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17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
18. WAIVERS, MODIFICATIONS AND AMENDMENTS. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this instrument, along with all counterparts, and your acceptance
shall represent a binding agreement between the Company and the Underwriters.
Very truly yours,
STRUCTURED ASSET SECURITIES
CORPORATION
By:
--------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC. UBS WARBURG LLC
By: By:
----------------------------- ------------------------------
Name: Name:
Title: Title
By:
------------------------------
Name:
Title:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
-----------------------------
Name:
Title:
Confirmed and accepted as of the date first above written, solely for purposes
of Sections 5(g) and 7:
UBS WARBURG REAL ESTATE INVESTMENTS INC.
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
Confirmed and accepted as of the date first above written, solely for purposes
of Section 5(g):
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.,
DOING BUSINESS AS ▇▇▇▇▇▇ CAPITAL,
A DIVISION OF ▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By:
------------------------------
Name:
Title:
SCHEDULE I
Underwriting Agreement, dated as of July 20, 2001.
Title and Description
of the Certificates: LB-UBS Commercial Mortgage Trust 2001-C3, Commercial
Mortgage Pass-Through Certificates, Series 2001-C3,
Class A-1, Class A-2, Class B, Class C and Class D
Cut-off Date: July 11, 2001
Expected Closing Date: July 30, 2001
CERTIFICATES
-----------------------------------------------------------------------------------------------------------------------------------
CLASS A-1 CLASS A-2 CLASS A-2 CLASS B CLASS C CLASS D
-----------------------------------------------------------------------------------------------------------------------------------
Initial Aggregate Principal Amount $351,200,000 $756,013,000 $25,000,000 $55,230,000 $44,653,000 $16,000,000
-----------------------------------------------------------------------------------------------------------------------------------
Initial Pass-Through Rate 6.05800% 6.36500% 6.36500% 6.51200% 6.65300% 6.73100%
-----------------------------------------------------------------------------------------------------------------------------------
Rating(1) AAA/AAA AAA/AAA AAA/AAA AA/AA A/A A-/A-
-----------------------------------------------------------------------------------------------------------------------------------
Purchase Price(2) 100.49592% 100.49574% 100.37115% 100.49654% 100.49958% 100.49794%
-----------------------------------------------------------------------------------------------------------------------------------
---------------
(1) By Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. and Fitch, Inc., respectively.
(2) Expressed as a percentage of the initial aggregate stated principal
amount of each class of Certificates. There shall be added to the
Purchase Price for each class of Certificates accrued interest at the
initial Pass-Through Rate therefor on the initial aggregate principal
amount thereof from the Cut-off Date to but not including the Closing
Date.
SCHEDULE II
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
---------------------------- ----- ----------------------------
▇▇▇▇▇▇ Brothers Inc. A-1 $351,200,000
Three World Financial Center A-2 $756,013,000
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ B $ 55,230,000
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ C $ 44,653,000
D $ 16,000,000
UBS Warburg LLC A-1 $ 0
1285 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇ ▇-▇ $ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ B $ 0
Attention: ▇▇▇▇▇ ▇▇▇▇▇ C $ 0
D $ 0
Bear, ▇▇▇▇▇▇▇ & Co. Inc. A-1 $ 0
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ A-2 $ 25,000,000
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ B $ 0
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ C $ 0
D $ 0