EXHIBIT 1.1
LB-UBS COMMERCIAL MORTGAGE TRUST 200_-C_,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 200_-C_
FORM OF UNDERWRITING AGREEMENT
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As of ___________, 200_
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. ("Xxxxxx") and UBS Securities LLC ("UBS Securities"; and, together with
Xxxxxx, the "Underwriters"), the mortgage pass-through certificates that are
identified on Schedule I attached hereto (the "Certificates").
The Certificates will evidence beneficial ownership interests in a trust
fund (the "Trust Fund") to be formed by the Company and consisting primarily of
a segregated pool (the "Mortgage Pool") of multifamily and commercial mortgage
loans (the "Mortgage Loans"). Certain of the Mortgage Loans (the "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
___________, 200_ (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 ___________, 200_ (the "LBHI Mortgage Loan Purchase Agreement"),
between the Company and LBHI. The remaining Mortgage Loan (the "LUBS Mortgage
Loan"; and, collectively 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 ___________, 200_ (the "LUBS
Mortgage Loan Purchase Agreement"; and, collectively with the LBHI Mortgage Loan
Purchase Agreement and the UBS Mortgage Loan Purchase Agreement, the "Mortgage
Loan Purchase Agreements"), between the Company, LUBS and LBHI. 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 ___________, 200_ (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 ___________, 200_ (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 ______________, 200_ (the "Pooling and Servicing Agreement"),
among the Company, as depositor, _______________, as master servicer (the
"Master Servicer"), _________________, as special servicer (the "Special
Servicer"), _______________, as trustee (the "Trustee"), and _______________, 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 the date as of which this representation is being made) will
not, contain an untrue statement of a material fact
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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 Data File (it
being acknowledged that the Data File was used to prepare the Prospectus
Supplement and any Preliminary Prospectus Supplement, including, without
limitation, [Annex X-0, Xxxxx X-0, Xxxxx X-0, Annex X-0, Xxxxx X-0, Xxxxx X-0,
Xxxxx B and any Annex H] 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 (the foregoing items, collectively, the
"Disclosure Materials")), (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 Specified Portions (as defined below) of, annexed to or accompanying
the Prospectus Supplement or any amendment or supplement thereto, 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 "Data File" consists of
the compilation of underlying information and data regarding the Mortgage Loans
used in connection with the preparation of any particular Disclosure Materials,
which compilation of underlying information and data is referred to in an
Independent Accountants Report on Applying Agreed Upon Procedures related to
such Disclosure Materials and rendered by _________________. 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 (including any co-lender, intercreditor or other similar agreements)
and the obligors thereunder; the Mortgage Loan Sellers; and the servicing and
administration of the _________________ Loan Combination, the _________________
Loan Combination and the _________________ Loan Combination. The "Specified
Portions" consist of the following sections and other items contained in,
annexed to or accompanying the Prospectus Supplement or any Preliminary
Prospectus Supplement (or any amendment or supplement thereto): (i) the sections
under the headings "Summary of Prospectus Supplement--Relevant Parties",
"Summary of Prospectus Supplement --The Underlying Mortgage Loans and the
Mortgaged Real Properties", "Risk Factors--Risks Related to the Underlying
Mortgage Loans," "Description of the Mortgage Pool," "Servicing Under the Series
200_-C_ Pooling and Servicing Agreement" (but only insofar as such section
discusses the servicing and administration of the ____________ Loan Combination,
the ____________ Loan Combination and/or the ____________ Loan Combination
and/or discusses the terms of any co-lender, intercreditor or similar agreement
or arrangement with respect to any Mortgage Loan), "Servicing of the
____________ Loan Combination and the ____________ Loan Combination" and
"Servicing of the ____________ Loan Combination"; (ii) [Annex X-0, Xxxxx X-0,
Xxxxx X-0, Xxxxx X-0, Xxxxx X-0, Xxxxx X-0, Xxxxx B and any Annex H]; and (iii)
the accompanying diskette.
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
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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 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
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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 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
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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 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 ______________, 200_ to but
excluding the Closing Date.
Each Underwriter hereby represents and warrants that, under GAAP and for
federal income tax purposes, it will report its acquisition of Certificates,
pursuant to this Agreement, as a purchase of assets and not as a secured
lending.
3. PAYMENT AND DELIVERY. The closing for the purchase and sale of the
Certificates hereunder shall occur at the offices of Sidley Xxxxxx Xxxxx & Xxxx
LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. New York City
time, on ____________, 200_ 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.
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References herein, including, without limitation, in the Schedules hereto,
to actions taken or to be taken following the Closing Date with respect to any
Certificates that are to be delivered through the facilities of DTC shall
include, if the context so permits, actions taken or to be taken with respect to
the interests in such Certificates as reflected on the books and records of DTC.
4. OFFERING BY THE UNDERWRITERS.
a. It is understood that the Underwriters propose to offer the Certificates
for sale to the public, including, without limitation, in and from the State of
New York, as set forth in the Prospectus Supplement. It is further understood
that the Company, in reliance upon Policy Statement 1__ has not and will not
file the offering pursuant to Section 352-e of the General Business Law of the
State of New York with respect to the Certificates which are not "mortgage
related securities" as defined in the 1934 Act (as defined below). Accordingly,
each Underwriter covenants and agrees with the Company that sales of such
Certificates made by such Underwriter in the State of New York will be made only
to institutional investors within the meaning of Policy Statement 1__.
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, Peabody
Acceptance Corporation I, Xxxxxx, Xxxxxxx & 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
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with the Commission not later than 10:00 a.m. (New York City time) at least
one business day before filing thereof is or was, as the case may be,
required pursuant to the terms of the No-Action Letters.
v. All information included in any Computational Materials and ABS
Term Sheets in respect of the Certificates provided to prospective
investors by such Underwriter has been or shall be generated based on
substantially the same methodology and assumptions as are used to generate
the information in the Prospectus Supplement as set forth therein; provided
that such -------- Computational Materials and ABS Term Sheets may include
information based on alternative methodologies or assumptions if specified
therein. If any Computational Materials or ABS Term Sheets in respect of
the Certificates provided to prospective investors by such Underwriter were
based on assumptions with respect to the Mortgage Pool that differ from the
Prospectus Supplement in any material respect or on Certificate structuring
assumptions (except in the case of Computational Materials when the
different structuring terms were hypothesized and so described) that were
revised in any material respect prior to the printing of the Prospectus,
then to the extent that it has not already done so, such Underwriter shall
immediately inform the Company and, upon the direction of the Company, and
if not corrected by the Prospectus, shall prepare revised Computational
Materials and/or ABS Term Sheets, as the case may be, based on information
regarding the Mortgage Pool and Certificate structuring assumptions
consistent with the Prospectus, circulate such revised Computational
Materials and ABS Term Sheets to all recipients of the preliminary versions
thereof, and include such revised Computational Materials and ABS Term
Sheets (marked, "as revised") in the materials delivered to the Company
pursuant to paragraph (b)(iv) above. -----------------
vi. The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission; provided that the Company will file
Computational Materials or ABS Term Sheets that -------- contain a material
error or, when read together with the Prospectus, a material omission, if
clearly marked (A) "superseded by materials dated [specify date]" and
accompanied by corrected Computational Materials or ABS Term Sheets that
are marked "material previously dated [specify date], as corrected", or (B)
if the material error or omission is to be corrected in the Prospectus,
"superseded by materials contained in the Prospectus." If, within the
period during which the Prospectus relating to the Certificates is required
to be delivered under the 1933 Act and the rules and regulations of the
Commission thereunder, any Computational Materials or ABS Term Sheets in
respect of the Certificates provided to prospective investors by such
Underwriter are determined, in the reasonable judgment of the Company or
such Underwriter, to contain a material error or, when read together with
the Prospectus, a material omission, then (unless the material error or
omission was corrected in the Prospectus) such Underwriter shall prepare,
or cause the preparation of, a corrected version of such Computational
Materials or ABS Term Sheets, shall circulate such corrected Computational
Materials or ABS Term Sheets to all recipients of the prior versions
thereof, and shall deliver copies of such corrected Computational Materials
or ABS Term Sheets (marked, "as corrected") to the Company for filing with
the Commission in a subsequent 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
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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.
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 hereby represents and warrants to and covenants with
the Company that:
i. such Underwriter has only communicated or caused to be communicated
and will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of section
21 of the Financial Services and Markets Act 2000 (the "FSMA")) received by
such Underwriter in connection with the issue or sale of any Certificates
in circumstances in which section 21(1) of the FSMA does not apply to the
Company; and
ii. such Underwriter has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by such Underwriter in
relation to the Certificates in, from or otherwise involving the United
Kingdom.
d. In relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a "Relevant Member State"), each
Underwriter hereby represents and warrants to and covenants with the Company
that with effect from and including the date on which the Prospectus Directive
is implemented in that Relevant Member State (the "Relevant Implementation
Date") such Underwriter has not made and will not make an offer of Certificates
to the public in that Relevant Member State prior to the publication of a
prospectus in relation to the Certificates which has been approved by the
competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that such Underwriter may, with effect from and including the
Relevant Implementation Date, make an offer of Certificates to the public in
that Relevant Member State at any time:
i. to legal entities which are authorized or regulated to operate in
the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
ii. to any legal entity which has two or more of (1) an average of at
least 250 employees during the last financial year, (2) a total balance
sheet of more than (euro)43,000,000 and (3)
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an annual net turnover of more than (euro)50,000,000, as shown in its last
annual or consolidated accounts; or
iii. in any other circumstances which do not require the publication
by the Company of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes of this provision, the expression an "offer of
Certificates to the public" in relation to any Certificates in any Relevant
Member State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Certificates to be offered so as
to enable an investor to decide to purchase or subscribe the Certificates, as
the same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State and the expression "Prospectus
Directive" means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
e. Each of the Underwriters hereby confirms that it is aware that no German
sales prospectus (Verkaufsprospekt) has been or will be published in respect of
the offering of the Certificates, and each of the Underwriters hereby
represents, warrants and agrees that it will comply with the German Securities
Sales Prospectus Act (Wertpapier-Verkaufsprospektgesetz) or any other laws
applicable in Germany governing the issue, offering and sale of the
Certificates. In particular, each of the Underwriters agrees not to engage in a
public offering (Offentliches Angebot) in Germany with respect to any of the
Certificates otherwise than in accordance with the German Securities Sales
Prospectus Act and any other act replacing or supplementing it and all other
applicable laws and regulations.
f. No Underwriter shall take any action relating to the offer or sale of
any of the Certificates in any jurisdiction that would result in the Company
being obligated to register or file any further prospectus or corresponding
document relating to the Certificates in such jurisdiction, other than as
expressly contemplated hereby.
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 0000 Xxx) 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.
10
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 0000 Xxx) becomes effective, (ii) of any request or
proposed request by the Commission for any amendment or supplement to the
Registration Statement (insofar as the amendment or supplement relates to or
covers the Certificates), for any amendment or supplement to the Prospectus or
for any additional information with respect to the Certificates, (iii) of the
issuance by the Commission, during the Prospectus Delivery Period, of any stop
order suspending the effectiveness of the Registration Statement or the
initiation or threat of any such stop order proceeding, (iv) of receipt by the
Company of any notification with respect to the suspension of the qualification
of the Certificates for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose and (v) of the 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.
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
11
certificates delivered pursuant to the provisions hereof, to the performance in
all material respects by the Company of its obligations hereunder and to
satisfaction, as of the Closing Date, of the following additional conditions:
a. No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or, to
the Company's knowledge, threatened; and the Prospectus Supplement shall have
been filed or transmitted for filing with the Commission in accordance with Rule
424 under the 0000 Xxx.
b. The Company shall have delivered to the Underwriters a certificate of
the Company, signed by an authorized officer of the Company and dated the
Closing Date, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date; and
(ii) the Company has in all material respects complied with all the agreements
and satisfied all the conditions on its part that are required hereby to be
performed or satisfied at or prior to the Closing Date.
c. The Underwriters shall have received with respect to the Company a good
standing certificate from the Secretary of State of the State of Delaware, dated
not earlier than 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 Sidley 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 Sidley 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 Sidley 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.
12
g. The Underwriters shall have received from in-house counsel for the
Company, a favorable opinion, dated the Closing Date, substantially in the form
attached hereto as Exhibit A-2.
h. The Underwriters shall have received from Sidley 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 Supplement or at the Closing Date,
contained or contains any untrue statement 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 _________________, 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
13
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.
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 LUBS, 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
14
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 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
15
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 Data File (it being
acknowledged that the Data File was used to prepare the Prospectus Supplement
and any Preliminary Prospectus Supplement, including, without limitation, [Annex
X-0, Xxxxx X-0, Xxxxx X-0, Annex X-0, Xxxxx X-0, Xxxxx X-0, Xxxxx B and any
Annex H] 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 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 Specified Portions of, annexed to or accompanying the Prospectus Supplement
or any Preliminary Prospectus Supplement (or any amendment or supplement
thereto) concerning the Mortgage Loan Seller Matters, except to the extent that
such untrue statement or omission or alleged untrue statement or omission
contemplated by clause (i) above in such Specified Portions 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
16
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 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
eighth paragraphs, and the entire fourth, fifth and ninth paragraphs, under the
caption "Method of Distribution" in the Prospectus Supplement (and any
corresponding statements under the caption "Method of Distribution" in 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
17
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.
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
18
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 pursuant to this Section 9(a)
were determined by per capita allocation or by any other method of allocation
that does not take account of the considerations referred to in this Section
9(a).
b. Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person, if any, who
controls 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,
19
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.
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
20
Company contained in Section 8 hereof and the contribution agreement of the
Company contained in Section 9 hereof shall each be deemed to be also for the
benefit of any person controlling an Underwriter. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 14, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
15. BUSINESS DAY. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange is open for trading.
16. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, applicable to contracts
negotiated, made and to be performed entirely in said State.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
18. WAIVERS, MODIFICATIONS AND AMENDMENTS. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought.
21
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
instrument, along with all counterparts, and your acceptance shall represent a
binding agreement between the Company, 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:
------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
XXXXXX BROTHERS INC.
By:
------------------------------
Name:
Title:
UBS SECURITIES LLC
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
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:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written, solely for purposes
of Section 5(g):
XXXXXX BROTHERS HOLDINGS INC.
By:
------------------------------
Name:
Title:
SCHEDULE I
Underwriting Agreement, dated as of ___________, 200_
Title and Description of the Certificates: LB-UBS Commercial Mortgage Trust
200_-C_, Commercial Mortgage
Pass-Through Certificates,
Series 200_-C_, [Class A-1,
Class X-0, Xxxxx X-0, Class A-AB,
Class A-4, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D,
Class E, Class F and Class X-CP]
Certificates
Cut-off Date: As defined in the Pooling and Servicing Agreement.
Expected Closing Date: ___________, 200_
CERTIFICATES
[CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-AB CLASS A-4 CLASS A-1A
--------- --------- --------- ---------- --------- ----------
Initial Aggregate
Principal Amount $________ $________ $________ $_________ $________ $_________
Initial
Pass-Through Rate ______% ______% ______% ______% ______% ______%
Rating(1) ___/___ ___/___ ___/___ ___/___ ___/___ ___/___
Purchase Price(2) ______% ______% ______% ______% ______% ______%
CLASS A-M CLASS A-J CLASS B CLASS C CLASS D
--------- --------- ------- ------- -------
Initial Aggregate
Principal Amount $________ $________ $_______ $________ $_______
Initial ______% ______% ______% ______% ______%
Pass-Through Rate
Rating(1) ___/___ ___/___ ___/___ ___/___ ___/___
Purchase Price(2) _______% _______% _______% _______% _______%
CLASS E CLASS F CLASS X-CP]
------- ------- ----------
Initial Aggregate
Principal Amount $_______ $_______ $________
Initial
Pass-Through Rate ______% ______% ______%
Rating(1) ___/___ ___/___ ___/___
Purchase Price(2) _______% _______% ______%
---------------
(1) By [Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc.] and [Fitch, Inc.], respectively.
(2) Expressed as a percentage of the initial aggregate stated principal amount
of each class of Certificates. There shall be added to the Purchase Price
for each class of Certificates accrued interest at the initial Pass-Through
Rate therefor on the initial aggregate principal amount thereof from and
including ______________, 200_ to but not including the Closing Date.
(3) Notional Amount.
(4) Approximate.
>
SCHEDULE II
UNDERWRITERS (AND ADDRESSES) CLASS PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
CERTIFICATES TO BE PURCHASED
Xxxxxx Brothers Inc. [A-1 $____________
000 Xxxxxxx Xxxxxx A-2 $____________
Xxx Xxxx, Xxx Xxxx 00000 A-3 $____________
Attention: Xxxxx Xxxxxxx A-AB $____________
A-4 $____________
A-1A $____________
A-M $____________
A-J $____________
B $____________
C $____________
D $____________
E $____________
F $____________
X-CP] $____________
UBS Securities LLC [A-1 $____________
1285 Avenue of the Americas, 00xx Xxxxx X-0 $____________
Xxx Xxxx, Xxx Xxxx 00000 A-3 $____________
Attention: Xxxxxx Xxxxxxxxx A-AB $____________
A-4 $____________
with a copy to: A-1A $____________
A-M $____________
1285 Avenue of the Americas, 11th Floor A-J $____________
Xxx Xxxx, Xxx Xxxx 00000 B $____________
Attention: Xxxxx X. Xxxxxx C $____________
Telecopier No.: (000) 000-0000 D $____________
E $____________
F $____________
X-CP] $____________
(1) Notional Amount.
EXHIBIT A-1
FORMS OF OPINIONS OF SIDLEY XXXXXX XXXXX & XXXX, LLP,
SPECIAL COUNSEL FOR THE COMPANY
[LETTERHEAD OF SIDLEY XXXXXX XXXXX & XXXX LLP
EXHIBIT A-2
FORM OF OPINION OF IN-HOUSE COUNSEL FOR THE COMPANY
[LETTERHEAD OF XXXXXX BROTHERS INC.]
