EXECUTION COPY
LB-UBS COMMERCIAL MORTGAGE TRUST 2005-C1,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2005-C1
UNDERWRITING AGREEMENT
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As of January 31, 2005
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Structured Asset Securities Corporation II, a Delaware
corporation (the "Company"), proposes to cause the issuance of, and to sell to
Xxxxxx Brothers Inc. ("Lehman") and UBS Securities LLC ("UBSS"; and, together
with Lehman, 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 Real Estate
Investments Inc. ("UBSREI"), pursuant to a mortgage loan purchase agreement
dated as of January 31, 2005 (the "UBS Mortgage Loan Purchase Agreement"),
between the Company, UBSREI and UBS Principal Finance LLC ("UBSPF"). Certain of
the Mortgage Loans (the "LBHI Mortgage Loans") will be acquired by the Company
from Xxxxxx Brothers Holdings Inc. ("LBHI"), pursuant to a mortgage loan
purchase agreement dated as of January 31, 2005 (the "LBHI Mortgage Loan
Purchase Agreement"), between the Company and LBHI. One Mortgage Loan (the "LUBS
Mortgage Loan"; and, together with the LBHI Mortgage Loans, the "Xxxxxx Mortgage
Loans") will be acquired by the Company from LUBS Inc. ("LUBS"), pursuant to a
mortgage loan purchase agreement dated as of January 31, 2005 (the "LUBS
Mortgage Loan Purchase Agreement"; and, together with the LBHI Mortgage Loan
Purchase Agreement and the UBS Mortgage Loan Purchase Agreement, the "Mortgage
Loan Purchase Agreements"), between the Company, LBHI and LUBS. LUBS, LBHI and
UBSREI are each referred to herein as a "Mortgage Loan Seller" and are
collectively referred to herein as the "Mortgage Loan Sellers."
In connection with the sale by UBSREI to the Company of the
UBS Mortgage Loans, UBSREI, UBS Americas Inc. ("UBSAI"), the Company and the
Underwriters entered into an
indemnification agreement dated as of January 31, 2005 (the "UBS Indemnification
Agreement"). In connection with the sale by LBHI to the Company of the LBHI
Mortgage Loans and the sale by LUBS to the Company of the LUBS Mortgage Loan,
LBHI, the Company and the Underwriters also entered into an indemnification
agreement dated as of January 31, 2005 (the "LBHI 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 January 11, 2005 (the "Pooling and Servicing
Agreement"), among the Company, as depositor, Wachovia Bank, National
Association, as master servicer (the "Master Servicer"), Allied Capital
Corporation, as special servicer (the "Special Servicer"), LaSalle Bank National
Association, as trustee (the "Trustee"), 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. 333-119328) with
respect to the Certificates has been prepared by the Company and filed with the
Securities and Exchange Commission (the "Commission"), and complies as to form
in all material respects with the requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and the rules and regulations of the Commission
thereunder, including Rule 415, and has become effective under the 1933 Act. As
used in this Underwriting Agreement (this "Agreement" or the "Underwriting
Agreement"), (i) "Registration Statement" means that registration statement and
all exhibits thereto, as amended or supplemented to the date of this Agreement;
(ii) "Basic Prospectus" means the prospectus included in the Registration
Statement at the time it became effective, or as subsequently filed with the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iii)
"Prospectus Supplement" means the prospectus supplement specifically relating to
the Certificates, as most recently filed with, or transmitted for filing to, the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iv)
"Prospectus" means the Basic Prospectus, together with the Prospectus
Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form
of the Prospectus Supplement that has heretofore been filed pursuant to
paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus"
means the Basic Prospectus, together with any Preliminary Prospectus Supplement.
The aggregate principal amount of the Certificates does not exceed the remaining
amount of mortgage-backed securities that may be offered and sold under the
Registration Statement as of the date hereof.
(b) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and on the date of this Agreement,
complied, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will comply, as to form in all material respects with the
requirements of the 1933 Act and 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
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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 (as specified in Section 8(b)
hereof) 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 A-1, Annex A-2, Annex A-3, Annex A-4, Annex A-5, Annex
A-6 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 any Mortgage
Loan Seller (or LBHI in its capacity as an additional party to the LUBS Mortgage
Loan Purchase Agreement) set forth in or made pursuant to the related Mortgage
Loan Purchase Agreement, or (C) any other information concerning the Mortgage
Loan Seller Matters (as defined below) furnished to the Company or the
Underwriters by any Mortgage Loan Seller (or LBHI in its capacity as an
additional party to the LUBS Mortgage Loan Purchase Agreement), (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
A-1, Annex A-2, Annex A-3, Annex A-4, Annex A-5, Annex A-6 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, made a part of or 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 January 31, 2005, 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 will not have been (i) any request by the Commission for
any further amendment to the Registration Statement or the
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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 any 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, rule or regulation applicable to the Company of
any state or federal court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company.
(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, any 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
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Agreement or any 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, any 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 any 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").
(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
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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 and including January 11, 2005 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 Xxxxxx Xxxxxx Xxxxx
& Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. New York
City time, on February 10, 2005 or at such other location, time and date as
shall be mutually agreed upon by the 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.
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
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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, prior to
the date hereof, may 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, made available May 20,
1994, issued by the Division of Corporation Finance of the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation
(the "Xxxxxx Letter"), as made applicable to other issuers and
underwriters pursuant to a no-action letter, made available May 27,
1994, issued by the Division of Corporation Finance of the
Commission in response to the request of the Public Securities
Association (the "PSA Letter"), and the requirements of the
no-action letter, made available February 17, 1995, issued by the
Division of Corporation Finance of the Commission to the Public
Securities Association (together with the Xxxxxx Letter and 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 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
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in any material respect or on Certificate structuring assumptions
(except in the case of Computational Materials when the different
structuring terms were hypothesized and so described) that were
revised in any material respect prior to the printing of the
Prospectus, then to the extent that it has not already done so, such
Underwriter shall immediately inform the Company and, upon the
direction of the Company, and if not corrected by the Prospectus,
shall prepare revised Computational Materials and/or ABS Term
Sheets, as the case may be, based on information regarding the
Mortgage Pool and Certificate structuring assumptions consistent
with the Prospectus, circulate such revised Computational Materials
and ABS Term Sheets to all recipients of the preliminary versions
thereof, and include such revised Computational Materials and ABS
Term Sheets (marked, "as revised") in the materials delivered to the
Company pursuant to paragraph (b)(iv) above.
(vi) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined
to contain any material error or omission; provided that the Company
will file Computational Materials or ABS Term Sheets that contain a
material error or, when read together with the Prospectus, a
material omission, if clearly marked (A) "superseded by materials
dated [specify date]" and accompanied by corrected Computational
Materials or ABS Term Sheets that are marked "material previously
dated [specify date], as corrected", or (B) if the material error or
omission is to be corrected in the Prospectus, "superseded by
materials contained in the Prospectus." If, within the period during
which the Prospectus relating to the Certificates is required to be
delivered under the 1933 Act and the rules and regulations of the
Commission thereunder, any Computational Materials or ABS Term
Sheets in respect of the Certificates provided to prospective
investors by such Underwriter are determined, in the reasonable
judgment of the Company or such Underwriter, to contain a material
error or, when read together with the Prospectus, a material
omission, then (unless the material error or omission was corrected
in the Prospectus) such Underwriter shall prepare, or cause the
preparation of, a corrected version of such Computational Materials
or ABS Term Sheets, shall circulate such corrected Computational
Materials or ABS Term Sheets to all recipients of the prior versions
thereof, and shall deliver copies of such corrected Computational
Materials or ABS Term Sheets (marked, "as corrected") to the Company
for filing with the Commission in a subsequent Current Report on
Form 8-K submission (subject to the Company's obtaining an
accountant's comfort letter in respect of such 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 either
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.
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(ix) Computational Materials and ABS Term Sheets
distributed by such Underwriter through electronic means have been
so distributed in accordance with SEC Release No. 33-7233.
(c) Each Underwriter represents and agrees that: (i) it has
not sold or offered the Certificates in the United Kingdom, and it has not
delivered or communicated the Prospectus or any other invitation or inducement
to buy or participate in the Certificates in the United Kingdom, except to
persons who (A) have professional experience in matters relating to investments
or (B) are persons falling within Articles 49(2)(a) through (d) ("high net worth
companies, unincorporated associations, etc.") of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2001; and (ii) it has complied and
will comply with all applicable provisions of the Financial Services and Markets
Act 2000 with respect to anything done by it in relation to the Certificates in,
from or otherwise involving the United Kingdom.
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 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 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 1933 Act) 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 Underwriters shall
reasonably object.
(d) The Company will advise the Underwriters promptly (i)
when, during the Prospectus Delivery Period, any post-effective amendment to the
Registration Statement relating to or covering the Certificates (other than any
amendment by reason of Rule 429 under the 1933 Act) 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 occurrence, 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.
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(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
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 UBSREI and LBHI, as and to
the extent provided in the respective Mortgage Loan Purchase Agreements.
(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 either Underwriter and
identified by it as such. Subject to compliance by each Underwriter with Section
4(b)(iv) and (vi) 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) and (vi) hereof, the Company represents and warrants that, to the
extent required by the No-Action Letters, the Company has timely filed with the
Commission any Collateral Term Sheets previously delivered to it as contemplated
by Section 4(b)(iv) hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the 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 1933 Act.
(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.
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(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 ten (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, any 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 any 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 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 Xxxxxx Xxxxxx
Xxxxx & Xxxx LLP, special counsel for the Company, one or more favorable
opinions, dated the Closing Date, substantially in the form or the respective
forms, as the case may be, attached hereto as Exhibit A-1.
(f) The Underwriters shall have received copies of all legal
opinion letters delivered by Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, 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 Xxxxxx Xxxxxx Xxxxx
& Xxxx LLP 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 Xxxxxx Xxxxxx
Xxxxx & Xxxx LLP, special counsel for the Company, a letter, dated the Closing
Date, containing a statement to the effect that, based on discussions with
certain representatives of the Company, LUBS, UBSREI, LBHI, the Underwriters,
the Trustee, the Master Servicer, the Special Servicer and their respective
counsel, and (with limited exception) without having reviewed any of the
mortgage notes, mortgages or other documents relating to the Mortgage Loans, and
without having made any independent check or verification of the statements
contained in the Prospectus, nothing has come to such counsel's attention that
would lead it to believe that the Prospectus (other than any financial,
statistical or numerical data set forth or referred to therein or omitted
therefrom, other than any information set forth on or omitted from any diskette
that may accompany the Prospectus, other than any documents or information
incorporated therein by reference, and other than information relating to or
based upon the Mortgage Loan Seller Matters, as to which such counsel has not
been requested to comment), at the date of the Prospectus or at the Closing
Date, contained or contains any untrue statement
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of a material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(i) The Underwriters shall have received from Deloitte &
Touche LLP, certified public accountants, a letter dated the date of the
Prospectus Supplement and satisfactory in form and substance to the Underwriters
and their counsel, to the following effect:
(i) they have performed certain specified procedures as a
result of which they have determined that such information of an
accounting, financial or statistical nature set forth in the
Prospectus Supplement, as was agreed upon by the Underwriters,
agrees with the data sheet or computer tape prepared by or on behalf
of the Mortgage Loan Sellers, unless 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 an agreed upon sampling 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, unless otherwise noted in such
letter.
(j) The Underwriters shall have received, with respect to
each of the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent, a favorable opinion of counsel, dated the Closing Date, addressing: the
valid existence of such party under the laws of its jurisdiction of
organization; the due authorization, execution and delivery of the Pooling and
Servicing Agreement by such party; the enforceability of the Pooling and
Servicing Agreement against such party, subject to such limitations as are
reasonably acceptable to the Underwriters and their counsel; and such other
matters as the Underwriters and their counsel 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 UBSREI, UBSPF
and UBSAI in connection with the sale by UBSREI 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
UBSREI, UBSPF, UBSAI 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 LBHI in
connection with the sale by LBHI of the LBHI Mortgage Loans to the Company,
pursuant to the LBHI Mortgage Loan Purchase Agreement. The Underwriters shall be
entitled to rely on each such certificate executed and delivered by LBHI 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.
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(m) The Underwriters shall have been furnished with all
documents, certificates and opinions required to be delivered by LUBS and/or
LBHI in connection with the sale by LUBS of the LUBS Mortgage Loan to the
Company, pursuant to the LUBS Mortgage Loan Purchase Agreement. The Underwriters
shall be entitled to rely on each such certificate executed and delivered by
XXXX, LBHI 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.
(n) The Underwriters shall have been furnished with such
other documents and opinions as 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.
(o) The Certificates shall have been assigned ratings no less
than those set forth on Schedule I and such ratings shall not have been
qualified, downgraded or withdrawn.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, if the Company is in material breach of any covenants or agreements
contained herein or if any of the opinions and certificates referred to above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and their counsel, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform in all material respects any agreement herein or comply in all material
respects with any provision hereof, other than by reason of a default by the
Underwriters or a refusal, inability or failure on the part of UBSREI or any of
its affiliates to perform in all material respects any agreement in, or comply
in all material respects with any provision of, the UBS 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. If the sale of the Certificates provided
for herein is not consummated because of a refusal, inability or failure on the
part of UBSREI or any of its affiliates to perform in all material respects any
agreement in, or comply in all material respects with any provision of, the UBS
Mortgage Loan Purchase Agreement, UBSREI 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 each 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
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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 any claim whatsoever based upon any such
untrue statement or omission or any such alleged untrue statement or
omission, contemplated by clause (i) above, if such settlement is
effected with the written consent of the Company or as otherwise
provided in Section 8(c) hereof; and
(iii) any and all expenses whatsoever, as incurred
(including, without limitation, the fees and disbursements of
counsel chosen by the Underwriters), reasonably incurred in
investigating, preparing for 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 either 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 both of
the Underwriters and furnished to the Company by either 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 A-1, Annex A-2,
Annex A-3, Annex A-4, Annex A-5, Annex A-6 and Annex B thereto and the
accompanying diskette), (2) the representations and warranties of any Mortgage
Loan Seller (or LBHI as an additional party to the LUBS Mortgage Loan Purchase
Agreement) 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 any
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Mortgage Loan Seller (or LBHI as an additional party to the LUBS Mortgage Loan
Purchase Agreement), 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 A-1,
Annex A-2, Annex A-3, Annex A-4, Annex A-5, Annex A-6 and/or Annex B thereto or
on the accompanying diskette, except to the extent that such untrue statement or
omission or alleged untrue statement or omission contemplated by clause (i)
above under such headings, on such annexes or on such diskette was made as a
result of an error in the manipulation of, or any calculations based upon, or
any aggregation of, such information regarding the Mortgage Loan Seller Matters;
and, provided, further, that the Company shall not be liable to either
Underwriter or any person controlling such Underwriter under the indemnity
agreement in this subsection (a) for any such loss, liability, claim, damage,
cost or expense that arises out of or is based upon any untrue statement or
omission contemplated by clause (i) above that was made in any Preliminary
Prospectus to the extent that such losses, liabilities, claims, damages, costs
or expenses result from the fact that such Underwriter sold Certificates to a
person as to whom it shall be established that there was not sent or given, at
or prior to the confirmation of such sale, a copy of the Prospectus (excluding
documents incorporated therein by reference), such untrue statement or omission
had been corrected in the Prospectus and a sufficient number of copies of the
Prospectus had been provided by the Company to such Underwriter prior to the
confirmation of such sale.
(b) The respective Underwriters, severally and not jointly,
each agrees to indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all losses, liabilities, claims, damages,
costs and expenses described in clauses (i), (ii) and (iii) of Section 8(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, (i) 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 the
other Underwriter on its behalf, expressly for use in the Prospectus or such
Preliminary Prospectus (or any amendment or supplement thereto), or (ii) 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
first, fourth and fifth sentences of the penultimate paragraph, and the entire
last paragraph, above the bolded names of the Underwriters on the cover of the
Prospectus Supplement and any Preliminary Prospectus Supplement, (ii) the
statements under the caption "Summary of
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Prospectus Supplement--Relevant Parties--Underwriters" in the Prospectus
Supplement or any Preliminary Prospectus Supplement, and (iii) the statements in
the table and in the second sentence of the first paragraph, 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 expressly for use in
the Prospectus or any Preliminary Prospectus.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of the indemnity
agreement in subsection (a) or (b), as applicable, of this Section 8. An
indemnifying party may participate at its own expense in the defense of any such
action and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of such
counsel, or (ii) the indemnifying party shall not have assumed the defense of
such action, with counsel satisfactory to the indemnified party, within a
reasonable period following the indemnifying party's receiving notice of such
action, or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In no event shall
the indemnifying party or parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from its or their own
counsel to all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
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 could be sought under subsection
(a) or (b), as applicable, of 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.
-16-
(d) The amount paid or payable by an indemnified party as a
result of the losses, liabilities, claims, damages, costs or expenses referred
to in this Section 8 shall be deemed to include any legal fees and disbursements
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such claim except where the indemnified
party is required to bear such expenses, which expenses the indemnifying party
shall pay as and when incurred, at the request of the indemnified party, to the
extent that it is reasonable to believe that the indemnifying party will be
ultimately obligated to pay such expenses. In the event that any expenses so
paid by the indemnifying party are subsequently determined to not be required to
be borne by the indemnifying party hereunder, the party which received such
payment shall promptly refund the amount so paid to the party which made such
payment.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity agreements contained in this Section 8 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or any of the Underwriters, and (iii) acceptance of and payment for any
of the Certificates.
9. CONTRIBUTION.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8(a) or
Section 8(b) hereof is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, on the one hand, and the Underwriters, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages, costs and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company, on the one hand, or the Underwriters, on the other hand, as incurred,
(i) in such proportions as are appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, from the transactions contemplated by this Agreement, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages, costs and/or expenses, as well as any other relevant equitable
considerations; provided, however, that in no case shall either Underwriter be
responsible under this Section 9(a) for any amount in excess of the fees and/or
underwriting discounts 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 and/or underwriting discounts 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
-17-
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 1933
Act) 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 either Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The remedies provided for in this Section 9 are not exclusive and shall
not limit any rights or remedies that may otherwise be available at law or in
equity to any party entitled to contribution under this Section 9.
(c) The contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Company, the
Underwriters, any of their respective directors or officers, or any person
controlling the Company or any of the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of either Underwriter, or by or on
behalf of the Company, or by or on behalf of any of the controlling persons and
officers and directors referred to in Sections 8 and 9 hereof, and shall survive
delivery of the Certificates to the Underwriters.
11. TERMINATION OF AGREEMENT; SURVIVAL.
(a) The Underwriters may terminate their obligations 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
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.
-18-
12. SUBSTITUTION OF UNDERWRITERS.
(a) If either 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 Underwriter shall be
obligated to take up and pay for the Certificates that the withdrawing or
defaulting Underwriter agreed but failed to purchase.
(b) If either 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 Underwriter 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 either
Underwriter (except to the extent provided in Section 5(g), Section 8 and
Section 9 hereof), nor shall the non-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 Underwriter 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 either Underwriter
shall be sufficient if given in writing or by telegraph addressed to the address
for such Underwriter set forth on Schedule II hereto (or, in the case of either
Underwriter, to such other address as such Underwriter shall designate in
writing to the Company in accordance with this Section 13) and any notice by
either Underwriter to the Company shall be sufficient if given in writing or by
telegraph addressed to the Company at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxx Xxxxxxx (or to such other address as the Company shall
designate in writing to the Underwriters in accordance with this Section 13).
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.
-19-
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.
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.
-20-
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, the Underwriters and
the Mortgage Loan Sellers signing this Agreement for purposes of Section 5(g)
and 7.
Very truly yours,
STRUCTURED ASSET SECURITIES CORPORATION II
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
Confirmed and accepted as of the date first above written:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
UBS SECURITIES LLC
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Director
Confirmed and accepted as of the date first above written, solely for purposes
of Sections 5(g) and 7:
UBS REAL ESTATE INVESTMENTS INC.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Director
Confirmed and accepted as of the date first above written, solely for purposes
of Section 5(g):
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
SCHEDULE I
Underwriting Agreement, dated as of January 31, 2005
Title and Description of the Certificates: LB-UBS Commercial Mortgage Trust
2005-C1, Commercial Mortgage
Pass-Through Certificates, Series
2005-C1, Class A-1, Class A-2, Class
A-3, Class A-AB, Class A-4, Class
A-1A, Class A-J, Class B, Class C,
Class D, Class E and Class X-CP
Certificates
Cut-off Date: January 11, 2005
Expected Closing Date: February 10, 2005
CERTIFICATES
------------
------------------------------------------------------------------------------------------------------------------------------------
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-AB CLASS A-4 CLASS A-1A
--------- --------- --------- ---------- --------- ----------
------------------------------------------------------------------------------------------------------------------------------------
Initial Aggregate $53,000,000 $232,000,000 $162,000,000 $54,000,000 $531,842,000 $186,798,000
Principal Amount
------------------------------------------------------------------------------------------------------------------------------------
Initial Pass-Through Rate 4.063% 4.310% 4.545% 4.568% 4.742% 4.581%
------------------------------------------------------------------------------------------------------------------------------------
Rating(1) AAA/Aaa AAA/Aaa AAA/Aaa AAA/Aaa AAA/Aaa AAA/Aaa
------------------------------------------------------------------------------------------------------------------------------------
Purchase Price(2) 100.49742% 100.49883% 100.49524% 100.49808% 100.49956% 100.49650%
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
CLASS A-J CLASS B CLASS C CLASS D CLASS E CLASS X-CP
--------- ------- ------- ------- ------- ----------
------------------------------------------------------------------------------------------------------------------------------------
Initial Aggregate $102,769,000 $13,351,000 $26,704,000 $19,073,000 $24,796,000 $1,419,314,000(3)
Principal Amount
------------------------------------------------------------------------------------------------------------------------------------
Initial Pass-Through Rate 4.806% 4.816% 4.836% 4.856% 4.924% 0.794%(4)
------------------------------------------------------------------------------------------------------------------------------------
Rating(1) AAA/Aaa AA+/Aa1 AA/Aa2 AA-/Aa3 A/A2 AAA/Aaa
------------------------------------------------------------------------------------------------------------------------------------
Purchase Price(2) 100.49352% 100.49469% 100.49707% 100.49945% 100.49215% 3.99148%
------------------------------------------------------------------------------------------------------------------------------------
---------------
(1) By Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. and Xxxxx'x Investors Service, 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 and including January 11, 2005 to but not including
the Closing Date.
(3) Notional Amount.
(4) Approximate.
SCHEDULE II
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
---------------------------- ----- ----------------------------
Xxxxxx Brothers Inc. A-1 $ 53,000,000
000 Xxxxxxx Xxxxxx X-0 $ 232,000,000
New York, New York 10019 A-3 $ 162,000,000
Attention: Xxxxx Xxxxxxx A-AB $ 54,000,000
A-4 $ 531,842,000
A-1A $ 186,798,000
A-J $ 102,769,000
B $ 13,351,000
C $ 26,704,000
D $ 19,073,000
E $ 24,796,000
X-CP $1,419,314,000(1)
UBS Securities LLC A-1 $ 0
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Floor A-2 $ 0
New York, New York 10019 A-3 $ 0
Attention: Xxxxxx Xxxxxxxxx A-AB $ 0
A-4 $ 0
A-1A $ 0
A-J $ 0
B $ 0
C $ 0
D $ 0
E $ 0
X-CP $ 0(1)
(1) Notional Amount.
EXHIBIT A-1
FORMS OF OPINIONS OF XXXXXX XXXXXX XXXXX & XXXX LLP,
SPECIAL COUNSEL FOR THE COMPANY
[XXXXXX XXXXXX XXXXX & XXXX LLP LETTERHEAD]
February 10, 2005
To the Parties Listed on Annex A hereto:
Re: LB-UBS Commercial Mortgage Trust 2005-C1
Commercial Mortgage Pass-Through Certificates, Series 2005-C1
-------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Structured Asset
Securities Corporation II (the "Depositor"), Xxxxxx Brothers Inc. ("LBI"), LUBS
Inc. ("LUBS") and Xxxxxx Brothers Holdings Inc. ("LBHI"), in connection with the
following transactions (collectively, the "Transactions"):
(i) the sale by LBHI, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (collectively, the
"LBHI Mortgage Loans"), pursuant to the LBHI Mortgage Loan Purchase
Agreement, dated as of January 31, 2005 (the "LBHI Mortgage Loan
Purchase Agreement"), between LBHI as seller, and the Depositor as
purchaser;
(ii) the sale by LUBS, and the purchase by the Depositor, of a
certain commercial mortgage loan (the "LUBS Mortgage Loan"),
pursuant to the LUBS Mortgage Loan Purchase Agreement, dated as of
January 31, 2005 (the "LUBS Mortgage Loan Purchase Agreement"),
between LUBS as seller, the Depositor as purchaser, and LBHI as an
additional party;
(iii) the sale by UBS Real Estate Investments Inc. ("UBSREI"
and, together with LBHI and LUBS, the "Mortgage Loan Sellers"), and
the purchase by the Depositor, of certain other multifamily and
commercial mortgage loans (collectively, the "UBS Mortgage Loans"
and, collectively with the LBHI Mortgage Loans and the LUBS Mortgage
Loan, the "Mortgage Loans"), pursuant to the UBS Mortgage Loan
Purchase Agreement, dated as of January 31, 2005 (the "UBS Mortgage
Loan Purchase Agreement" and, together with the LBHI Mortgage Loan
Purchase Agreement and the LUBS Mortgage Loan Purchase Agreement,
the "Mortgage Loan Purchase Agreements"), between UBSREI as seller,
the Depositor as purchaser, and UBS Principal Finance LLC as an
additional party;
(iv) the creation of a common law trust (the "Trust") and the
issuance of an aggregate $1,524,551,178 Certificate Principal
Balance of Commercial Mortgage Pass-Through Certificates, Series
2005-C1 (the "Certificates"), consisting of multiple classes
designated Class A-1, Class A-2, Class A-3, Class A-AB, Class A-4,
Class A-1A, Class A-J, Class B, Class C, Class D, Class E, Class
X-CP, Class X-CL, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class P,
A-1-1
Class Q, Class S, Class R-I, Class R-II, Class R-III, Class R-LR and
Class V, pursuant to the Pooling and Servicing Agreement, dated as
of January 11, 2005 (the "Pooling and Servicing Agreement"), between
the Depositor as depositor, Wachovia Bank, National Association as
master servicer, Allied Capital Corporation as special servicer,
LaSalle Bank National Association as trustee (the "Trustee"), and
ABN AMRO Bank N.V. as fiscal agent;
(v) the transfer of the Mortgage Loans by the Depositor to the
Trust, pursuant to the Pooling and Servicing Agreement, in exchange
for the issuance of the Certificates at the direction of the
Depositor;
(vi) the sale by the Depositor, and the purchase by LBI and
UBS Securities LLC ("UBSS"), of the Class A-1, Class A-2, Class A-3,
Class A-AB, Class A-4, Class A-1A, Class A-J, Class B, Class C,
Class D, Class E and Class X-CP Certificates (collectively, the
"Publicly Offered Certificates"), pursuant to the Underwriting
Agreement, dated as of January 31, 2005 (the "Underwriting
Agreement"), between the Depositor, LBI and UBSS, and acknowledged,
as to certain sections, by UBSREI and LBHI;
(vii) the sale by the Depositor, and the purchase by LBI and
UBSS, of the Class X-CL, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class P, Class Q and Class S
Certificates (collectively, the "Privately Offered Certificates"
and, collectively with the Publicly Offered Certificates, the
"Offered Certificates"), together with the Class V Certificates,
pursuant to the Certificate Purchase Agreement, dated as of January
31, 2005 (the "Certificate Purchase Agreement"), between the
Depositor, LBI and UBSS;
(viii) the negotiation and execution of the LBHI
Indemnification Agreement, dated as of January 31, 2005 (the "LBHI
Indemnification Agreement"), between LBHI, the Depositor, LBI and
UBSS; and
(ix) the negotiation and execution of the UBS Indemnification
Agreement, dated as of January 31, 2005 (the "UBS Indemnification
Agreement" and, together with the LBHI Indemnification Agreement,
the "Indemnification Agreements"), between UBSREI, UBS Americas
Inc., the Depositor, LBI and UBSS.
In the course of our acting as special counsel to the
Depositor, LBI, LUBS and LBHI as described above, we prepared or reviewed the
Pooling and Servicing Agreement, the Underwriting Agreement, the Certificate
Purchase Agreement, the Mortgage Loan Purchase Agreements and the
Indemnification Agreements (collectively, the "Agreements"). Capitalized terms
not defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement and, to the extent not defined therein, in the other
Agreements.
In addition, with the knowledge and consent of the Depositor,
LBI and UBSS, we have acted as special counsel to those parties in connection
with the preparation or review of the following documents and all exhibits
thereto (collectively with the Agreements, the "Relevant Documents"):
(a) the Prospectus Supplement, dated January 31, 2005 (the
"Prospectus Supplement"), specifically relating to the
Publicly Offered Certificates and the Trust;
A-1-2
(b) the Prospectus, dated January 24, 2005 (the "Basic
Prospectus" and, together with the Prospectus Supplement, the
"Prospectus"), relating to publicly offered mortgage-backed
securities, including mortgage pass-through certificates
evidencing interests in trust funds established by the
Depositor;
(c) the Offering Memorandum, dated January 31, 2005 (the
"Memorandum") specifically relating to the Privately Offered
Certificates and the Trust; and
(d) the registration statement on Form S-3 (No. 333-119328)
(the "Registration Statement") filed with the Securities and
Exchange Commission (the "Commission").
For purposes of rendering the opinions set forth below, we
have also examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents and records as we have deemed relevant or
necessary as the basis for the opinions set forth below; we have obtained such
certificates from and made such inquiries of officers and representatives of the
parties to the Agreements and public officials as we have deemed relevant or
necessary as the basis for such opinions; and we have relied upon, and assumed
the accuracy of, such other documents and records, such certificates and the
statements made in response to such inquiries, with respect to the factual
matters upon which such opinions are based. We have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters contained in the Agreements, (ii) the legal capacity of natural
persons, (iii) the genuineness of all signatures, (iv) the authenticity of all
documents submitted to us as originals, (v) the conformity to authentic
originals of all documents submitted to us as certified, conformed or
photostatic copies, (vi) the due organization of each of the parties to the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) the power and authority of all
parties to the Agreements to enter into, perform under and consummate the
transactions contemplated by the Agreements, without any resulting conflict with
or violation of the organizational documents of any such party or with or of any
law, rule, regulation, order, writ or decree applicable to any such party or its
assets, and without any resulting default under or breach of any other agreement
or instrument by which any such party is bound or which is applicable to it or
its assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of each of the Agreements by all parties thereto, (ix)
the constitution of each of the Agreements as the legal, valid and binding
obligation of each party thereto, enforceable against such party in accordance
with its terms, (x) the compliance with the Agreements by all parties thereto
and, in the case of the Pooling and Servicing Agreement, by the registered
holders and beneficial owners of the Certificates, (xi) the conformity, to the
requirements of the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreements, of the Mortgage Notes, the Mortgages and the other
documents delivered to the Trustee by, on behalf of or at the direction of the
Depositor and the Mortgage Loan Sellers, and (xii) the absence of any other
agreement that supplements or otherwise modifies the express terms of the
Agreements.
When used in this opinion, the term "knowledge" or words of
similar import mean the actual knowledge of facts or other information of the
Xxxxxx Xxxxxx Xxxxx & Xxxx LLP attorneys currently practicing law with this firm
who have been actively involved in the above-described representation of the
Depositor, LUBS, LBHI, LBI and/or UBSS. In that regard we have conducted no
special or independent investigation of factual matters in connection with this
opinion letter.
In rendering the opinions set forth below, we do not express
any opinion concerning the laws of any jurisdiction other than the laws of the
State of New York and, where expressly referred to below, the federal laws of
the United States of America (in each case, without regard to conflicts of law
principles). In addition, we do not express any opinion with respect to the tax,
securities or "doing business" laws of any
A-1-3
particular State, including the State of New York, or with respect to any matter
not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion
that:
(a) The Registration Statement has become effective under the
Securities Act of 1933, as amended (the "1933 Act").
(b) To our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and not withdrawn,
and no proceedings for that purpose have been instituted or threatened and not
terminated.
(c) The Registration Statement, the Basic Prospectus and the
Prospectus Supplement, as of their respective effective or issue dates (other
than the financial statements, schedules and other financial and statistical
information contained therein or omitted therefrom and other than information
incorporated therein by reference, as to which we express no opinion), complied
as to form in all material respects with the applicable requirements of the 1933
Act and the rules and regulations of the Commission thereunder.
(d) To our knowledge, there are no material contracts,
indentures or other documents relating to the Publicly Offered Certificates of a
character required to be described or referred to in the Registration Statement
or the Prospectus Supplement or to be filed as exhibits to the Registration
Statement, other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
(e) The statements set forth in the Prospectus Supplement
under the headings "Federal Income Tax Consequences", "ERISA Considerations" and
"Legal Investment", in the Basic Prospectus under the headings "Federal Income
Tax Consequences", "ERISA Considerations" and "Legal Investment" and in the
Memorandum under the headings "Certain Federal Income Tax Consequences",
"Certain ERISA Considerations" and "Legal Investment", to the extent that they
purport to describe certain matters of federal law or legal conclusions with
respect thereto, while not discussing all possible consequences of an investment
in the Offered Certificates to all investors, provide an accurate summary of
such matters and conclusions set forth under such headings.
(f) The statements set forth in the Prospectus Supplement
under the headings "Servicing of the Underlying Mortgage Loans" and "Description
of the Offered Certificates", in the Basic Prospectus under the headings
"Description of the Certificates" and "Description of the Governing Documents"
and in the Memorandum under the headings "Summary of Offering
Memorandum--Description of the Privately Offered Certificates" and "Transfer and
Exchange; Restrictions", insofar as such statements purport to summarize certain
material provisions of the Offered Certificates and the Pooling and Servicing
Agreement, are accurate in all material respects.
(g) Assuming the accuracy of the deemed representations set
forth under the heading "Notice to Investors" in the Memorandum on the part of
investors that purchase Privately Offered Certificates from LBI and UBSS, the
offer and sale of the Privately Offered Certificates by the Depositor to LBI and
UBSS, and by LBI and UBSS to investors that purchase from them, in the manner
contemplated by the Memorandum, the Certificate Purchase Agreement and the
Pooling and Servicing Agreement, are transactions that do not require
registration under the 1933 Act.
A-1-4
The opinions expressed herein are being delivered to you as of
the date hereof, and we assume no obligation to advise you of any changes of law
or fact that may occur after the date hereof, notwithstanding that such changes
may affect the legal analysis or conclusions contained herein. This opinion
letter is solely for your benefit in connection with the Transactions and may
not be used or relied on in any manner for any other purpose or by any other
person or transmitted to any other person without our prior consent.
Very truly yours,
ANNEX A
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A-2
FORM OF OPINION OF IN-HOUSE COUNSEL FOR THE COMPANY
[LETTERHEAD OF XXXXXX BROTHERS INC.]
February 10, 2005
Structured Asset Securities Corporation II Allied Capital Corporation
000 Xxxxxxx Xxxxxx 0000 Xxxxxxxxxxxx Xxxxxx N.W.
New York, New York 10019 Washington, D.C. 20006
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx LaSalle Bank National Association
New York, New York 00000 000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx Brothers Inc. ABN AMRO Bank N.V.
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx Brothers Holdings Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
LUBS Inc.
000 Xxxxxxx Xxxxxx Standard & Poor's Ratings Services,
New York, New York 10019 a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
NC 1075
0000 Xxxxxxxx Xxxxx, XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-1075
Re: LB-UBS Commercial Mortgage Trust 2005-C1
Commercial Mortgage Pass-Through Certificates, Series 2005-C1
-------------------------------------------------------------
Ladies and Gentlemen:
I am internal counsel to Xxxxxx Brothers Inc. ("LBI") and, in
such capacity, have acted as counsel to Structured Asset Securities Corporation
II, a Delaware corporation ("SASCO II"), and am familiar with matters pertaining
to the following agreements (collectively, the "Agreements"): (i) the
A-2-1
Pooling and Servicing Agreement dated as of January 11, 2005, by and between
SASCO II as depositor, Wachovia Bank, National Association as master servicer,
Allied Capital Corporation as special servicer, LaSalle Bank National
Association as trustee, and ABN AMRO Bank N.V. as fiscal agent; (ii) the LUBS
Mortgage Loan Purchase Agreement dated as of January 31, 2005, by and between
SASCO II, LUBS Inc. and Xxxxxx Brothers Holdings Inc. ("LBHI"); (iii) the LBHI
Mortgage Loan Purchase Agreement dated as of January 31, 2005, by and between
SASCO II and LBHI; (iv) the UBS Mortgage Loan Purchase Agreement dated as of
January 31, 2005, by and between SASCO II, UBS Real Estate Investments, Inc.
("UBSREI") and UBS Principal Finance LLC; (v) the Underwriting Agreement dated
as of January 31, 2005, by and between SASCO II, LBI and UBS Securities LLC
("UBSS"), and acknowledged as to certain sections by UBSREI and LBHI; and (vi)
the Certificate Purchase Agreement dated as of January 31, 2005, by and between
XXXXX XX, LBI and UBSS.
In connection with this opinion, I have examined, or have had
examined on my behalf, an executed copy of each of the Agreements, certificates
and statements of public officials and officers of XXXXX XX and such other
agreements, instruments, documents and records as I have deemed necessary or
appropriate for the purposes of this opinion.
Based on the foregoing but subject to the assumptions,
exceptions, qualifications and limitations hereinafter expressed, I am of the
opinion that:
1. SASCO II is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware, with all requisite corporate power to enter into the
Agreements.
2. Each of the Agreements has been duly authorized,
executed and delivered by XXXXX XX.
3. The execution, delivery and performance of the
Agreements by XXXXX XX, (i) to my knowledge, do not and will not result
in a material breach or violation of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to me to which
SASCO II is a party, (ii) do not contravene its certificate of
incorporation or by-laws, and (iii) to my knowledge, do not contravene
any order of any court or governmental agency that names XXXXX XX and
is specifically directed to its property (in each case, except for such
breaches, violations, defaults or contraventions as would not have a
material adverse effect on the ability of SASCO II to perform its
obligations under the Agreements).
The foregoing opinions are subject to the following
assumptions, exceptions, qualifications and limitations:
A. I am a member of the Bar of the State of New York
and render no opinion as to the laws of any jurisdiction other than the
laws of the State of New York, the General Corporation Law of the State
of Delaware and the federal laws of the United States of America.
B. My opinions are limited to the present laws and to
the facts as they presently exist. I assume no obligation to revise or
supplement this opinion should the present laws of any jurisdiction
referred to in paragraph A. above be changed by legislative action,
judicial decision or otherwise.
A-2-2
C. I have assumed with your permission (i) the
genuineness of all signatures by each party other than XXXXX XX, (ii)
the legal capacity of all natural persons signing or delivering any
instrument, (iii) the authenticity of documents submitted to me as
originals and the conformity with the authentic original documents of
all documents submitted to me as copies, and (iv) the due execution and
delivery, pursuant to due authorization, of all documents by each party
other than SASCO II.
D. I have relied on originals or copies, certified or
otherwise identified to my satisfaction, of the certificate of
incorporation and by-laws of XXXXX XX, records of proceedings taken by
XXXXX XX, and other corporate documents and records of SASCO II, and
have made such other investigations as I have deemed relevant or
necessary for the purpose of this opinion. I have relied, without
independent investigation, as to factual matters on the representations
and warranties contained in the Agreements and on certificates of
public officials and/or officers and other representatives of XXXXX XX.
This letter is rendered to you in connection with the
Agreements and the transactions related thereto and may not be relied upon by
any other person or by you in any other context or for any other purpose. This
letter may not be quoted in whole or in part, nor may copies thereof be
furnished or delivered to any other person, without my prior written consent.
The foregoing opinions are given on the express understanding
that the undersigned is an officer of Xxxxxx Brothers Inc. and shall in no event
incur any personal liability in connection with the said opinions.
Very truly yours,
