EXECUTION COPY
LB-UBS COMMERCIAL MORTGAGE TRUST 2006-C1,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-C1
UNDERWRITING AGREEMENT
As of January 20, 2006
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 January 20, 2006 (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 20, 2006 (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 January 20,
2006 (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 January 20,
2006 (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 Loans, LBHI, the Company and the Underwriters also entered
into an indemnification agreement dated as of January 20, 2006 (the "LBHI
Indemnification Agreement"; and, together with the UBS Indemnification
Agreement, the "Mortgage Loan Seller Indemnification Agreements").
The Certificates will be issued under a pooling and servicing
agreement to be dated as of January 11, 2006 (the "Pooling and Servicing
Agreement"), among the Company, as depositor, Wachovia Bank, National
Association, as master servicer (the "Master Servicer"), LNR Partners, Inc., as
special servicer (the "Special Servicer") and LaSalle Bank National Association,
as trustee (the "Trustee"). The Certificates and the Mortgage Loans are
described more fully in the Prospectus (as defined below), which the Company has
furnished to the Underwriters. 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.
In connection with the execution and delivery of the Pooling and
Servicing Agreement: (i) the Trustee, the Company and the Underwriters entered
into an indemnification agreement dated as of January 20, 2006 (the "Trustee
Indemnification Agreement"); (ii) the Master Servicer, the Company and the
Underwriters entered into an indemnification agreement dated as of January 20,
2006 (the "Master Servicer Indemnification Agreement"); and (iii) the Special
Servicer, the Company and the Underwriters entered into an indemnification
agreement dated as of January 20, 2006 (the "Special Servicer Indemnification
Agreement" and, collectively with the Trustee Indemnification Agreement, the
Master Servicer Indemnification Agreement and the Mortgage Loan Seller
Indemnification Agreements, the "Indemnification Agreements").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-119328) for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective. The rules
and regulations of the Commission promulgated under the 1933 Act are
collectively referred to in this Agreement as the "1933 Act Rules." As used in
this Underwriting Agreement (this "Agreement" or this "Underwriting Agreement"):
(i) "Registration Statement" means the foregoing registration statement and all
exhibits thereto, as amended or supplemented to the date of this Agreement,
together with any information that is contained in the Prospectus (as defined
below) that is deemed to be a part of and included in that registration
statement pursuant to Rule 430B of the 1933 Act Rules as of the date hereof;
(ii) "Basic Prospectus" means the base prospectus included in the Registration
Statement at the time it became effective, as amended or supplemented up to the
date of filing of the Prospectus Supplement (as defined below) by any base
prospectus filed with the Commission pursuant to paragraph (b) of Rule 424 of
the 1933 Act Rules; (iii) "Prospectus Supplement" means the prospectus
supplement to the Basic Prospectus, specifically relating to the Certificates,
filed with the Commission pursuant to Rule 424(b)(ii) or (b)(v) of the 1933 Act
Rules, that is deemed to be part of and included in the Registration Statement
on the date hereof in accordance with Rule 430B(f) of the 1933 Act Rules; and
(iv) "Prospectus" means the Basic Prospectus, together with the Prospectus
Supplement.
As or prior to the time when sales to purchasers of the Publicly
Offered Certificates were first made in accordance with Rule 159 of the 1933 Act
Rules, which was approximately 11:30 a.m. (New York City time) on the date
hereof (the "Time of Sale"), the Company had prepared the following information,
which is collectively referred to as the "Time of Sale Information": (i) the
Basic Prospectus dated January 6, 2006; (ii) the Free Writing Prospectus (as
defined below), dated January 9, 2006, filed by the Company on January 9, 2006
pursuant to Rule 433 of the 1933 Act Rules, which refers to itself therein as
the "offering prospectus" and consists of over 275 printed pages, and which was
accompanied by the Base Prospectus; and (iii) the Free Writing Prospectus
constituting a blacklined flipbook, dated January 19, 2006, filed by the Company
on January 23, 2006 pursuant to Rule 433 of the 1933 Act Rules. If, subsequent
to the date of this Agreement, the Company and the Underwriters determine that,
as to the investors in one or more Classes of the Publicly Offered Certificates,
such Initial Time of Sale Information includes an untrue statement of material
fact or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Underwriters terminate their old purchase contracts and
enter into new purchase contracts with investors in the Publicly Offered
Certificates, then "Time of Sale Information" shall refer to the information
conveyed to investors at the time of entry into the last such new purchase
contract, including any information that corrects such material misstatements or
omissions ("Corrective Information"). For the purposes of this Underwriting
Agreement, "Free Writing Prospectus" means a "free writing prospectus" within
the meaning of Rule 405 of the 1933 Act Rules.
Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Prospectus.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents, warrants and agrees with the respective Underwriters that:
(a) The Registration Statement has become effective under the 1933
Act. 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. The Registration
Statement, as of its effective date or deemed effective date pursuant to Rule
430B under the 1933 Act Rules (the "Effective Date") complied, and the
Prospectus, as of the date hereof, 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 information in the Registration Statement
does not, as of its Effective Date, 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, and the information in
the Prospectus as of the date hereof, did not, and as of the Closing Date (as
hereinafter defined), will not, contain an untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein not
misleading; provided, however, that the Company makes no representation or
warranty as to the Excluded Information (as defined below).
(b) The "Excluded Information" shall mean, collectively, the
information contained in or omitted from the Registration Statement or the
Prospectus or the Time of Sale Information or any Issuer Free Writing Prospectus
or any Issuer Information (as defined below), or any revision, amendment or
supplement to any of the foregoing, (i) in reliance upon and in conformity with
written or electronic information (as specified in Section 8(b) hereof)
furnished to the Company by either Underwriter specifically for use in
connection with the preparation of the Prospectus, or any revision, amendment or
supplement thereto, the Time of Sale Information or any such Issuer Free Writing
Prospectus (collectively, the "Underwriter Information"), or (ii) for which any
party would be obligated to indemnify the Underwriters under the Indemnification
Agreements.
(c) The Time of Sale Information, at the Time of Sale, did not, and at
the Closing Date will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, that the Company makes no representation and warranty with respect to
any Excluded Information.
(d) Other than the Prospectus, the Company (including its agents and
representatives other than the Underwriters in their capacity as such) has not
made, used, prepared, authorized, approved or referred to and will not make,
use, prepare, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the 1933 Act Rules) that constitutes an offer to sell
or solicitation of an offer to buy the Certificates other than (i) any document
not constituting a prospectus under Section 2(a)(10)(a) of the 1933 Act,
including, without limitation, any document that complies with Rule 134 under
the 1933 Act Rules, (ii) the Time of Sale Information, and (iii) any other Free
Writing Prospectus approved in advance by the Underwriters either in writing or
in any other manner mutually agreed to by the Underwriters and the Company. Each
Issuer Free Writing Prospectus (as defined below) included under clause (iii)
above that was prepared by or on behalf of the Company or its affiliates
complied or, if used after the date hereof, will comply, in all material
respects with the 1933 Act and the 1933 Act Rules and each Issuer Free Writing
Prospectus prepared by or on behalf of the Company or its affiliates or
delivered to the Company for filing in accordance with Section 4 has been filed
or will be filed in accordance with Section 4 (to the extent required thereby).
Each Issuer Free Writing Prospectus included under clause (iii) above, at the
Time of Sale, did not, and at the Closing Date will not, contain any untrue
statements of a material fact or (when read in conjunction with the other Time
of Sale Information) omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, that the Company makes no representation and
warranty with respect to any Excluded Information. For the purposes of this
Underwriting Agreement, an "Issuer Free Writing Prospectus" means an "issuer
free writing prospectus," as defined in Rule 433(h) under the 1933 Act Rules.
(e) 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.
(f) 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 Rules, as of
the date on which, prior to the Closing Date, any amendment to the Registration
Statement becomes effective, 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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; provided, that the Company makes no
representation as to any such contracts, indentures or other documents or
related information as to which any party would be obligated to indemnify the
Underwriters under the Indemnification Agreements.
(m) 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.
(n) 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.
(o) 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.
(p) 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").
(q) 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.
(r) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Company are pending or contemplated.
(s) 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").
(t) The Company is not, and on the date on which the first bona fide
offer of the Certificates is made (within the meaning of Rule 164(h)(2) under
the 1933 Act Rules will not be, an "ineligible issuer," as defined in Rule 405
under the 1933 Act Rules.
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 Sidley Austin LLP, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. New York City time, on
February 1, 2006 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 Company 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; FREE WRITING PROSPECTUSES.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale to the public, including, without limitation, in and from
the State of New York, as set forth in the Prospectus Supplement. It is further
understood that the Company, in reliance upon Policy Statement 105 has not and
will not file the offering pursuant to Section 352-e of the General Business Law
of the State of New York with respect to the Certificates which are not
"mortgage related securities" as defined in the 1934 Act (as defined below).
Accordingly, each Underwriter covenants and agrees with the Company that sales
of such Certificates made by such Underwriter in the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
(b) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors Free Writing
Prospectuses, or portions thereof, which the Company is required to file with
the Commission in electronic format and will use reasonable efforts to provide
to the Company such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except to the
extent that the Company, in its sole discretion, waives such requirements,
subject to the following conditions (to which such conditions each Underwriter
agrees (provided that no Underwriter shall be responsible for any breach of the
following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication (other
than the Prospectus) to any person in connection with the initial offering
of the Certificates, unless such written communication (1) is made in
reliance on Rule 134 under the 1933 Act Rules, (2) constitutes Time of Sale
Information, or (3) constitutes an Underwriter Free Writing Prospectus (as
defined below) (that does not constitute Time of Sale Information) that has
been approved by the Company in advance of its use.
(ii) Each Underwriter shall deliver to the Company, no later than
two business days prior to the date of first use thereof or such later date
as may be agreed to by the Company: (a) any Free Writing Prospectus that
was prepared by or on behalf of such Underwriter or any affiliate thereof
(each, an "Underwriter Free Writing Prospectus") and that contains any
"issuer information," as defined in Rule 433(h) under the 1933 Act Rules
and footnote 271 of the Commission's Securities Offering Reform Release No.
33-8591 ("Issuer Information") (which the parties hereto agree includes,
without limitation, Mortgage Loan Seller Information, as such term is
defined in Mortgage Loan Seller Indemnification Agreements); and (b) any
Free Writing Prospectus or portion thereof prepared by or on behalf of such
Underwriter that contains only a description of the final terms of the
Certificates. Notwithstanding the foregoing, any Free Writing Prospectus
that contains only ABS Informational and Computational Materials may be
delivered by an Underwriter to the Company not later than the later of (A)
two business days prior to the due date for filing of the Prospectus
pursuant to Rule 424(b) under the 1933 Act Rules or such later date as may
be agreed to by the Company or (B) the date of first use of such Free
Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Company
that the Free Writing Prospectuses that were prepared by or on behalf of
such Underwriter or an affiliated thereof complied or, if used after the
date hereof, will comply, in all material respects with the 1933 Act and
the 1933 Act Rules.
(iv) Each Underwriter represents and warrants to the Company that
the Free Writing Prospectuses to be furnished to the Company by such
Underwriter pursuant to Section 4(b)(ii) will constitute all Free Writing
Prospectuses of the type described in such Section that were furnished to
prospective investors by the Underwriter in connection with its offer and
sale of the Certificates.
(v) Each Underwriter represents and warrants to the Company that
each Free Writing Prospectus required to be provided by it to the Company
pursuant to Section 4(b)(ii) did not, as of the Time of Sale, and will not,
as of the Closing Date, contain any untrue statement of a material fact or
omit any material fact necessary to make the statements contained therein
(when read in conjunction with the other Time of Sale Information), in
light of the circumstances under which they were made, not misleading;
provided, however, that such Underwriter makes no representation to the
extent such misstatements or omissions were the result of any inaccurate
Issuer Information, which information was not corrected by
Corrective Information subsequently supplied by the Company, any other
Underwriter or any Mortgage Loan Seller to such Underwriter within a
reasonable period of time prior to the Time of Sale.
(vi) The Company agrees to file with the Commission the
following:
(A) Each Issuer Free Writing Prospectus that was prepared by or
on behalf of the Company or its affiliates or delivered to
the Company for filing;
(B) Any Free Writing Prospectus or portion thereof delivered by
any Underwriter to the Company pursuant to Section 4(b)(ii);
and
(C) Any Free Writing Prospectus for which the Company or any
person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated
by a person unaffiliated with the Company or any other
offering participant that is in the business of publishing,
radio or television broadcasting or otherwise disseminating
communications.
Notwithstanding the foregoing, the Company shall not be required to file (1)
Issuer Information contained in any Underwriter Free Writing Prospectus or Free
Writing Prospectus of any other offering participant other than the Company, if
such information is included or incorporated by reference in a prospectus or
Free Writing Prospectus previously filed with the Commission that relates to the
offering of the Certificates, or (2) any Free Writing Prospectus or portion
thereof that contains a description of the Certificates or the offering of the
Certificates which does not reflect the final terms thereof or (3) any Free
Writing Prospectus that does not contain substantive changes from or additions
to a Free Writing Prospectus previously filed with the Commission.
(vii) Any Free Writing Prospectus required to be filed pursuant
to Section 4(b)(vi) by the Company shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus, except
that:
(A) Any Free Writing Prospectus or portion thereof required to
be filed that contains only the description of the final
terms of the Certificates shall be filed by the Company with
the Commission within two days of the later of the date such
final terms have been established for all classes of
Certificates and the date of first use;
(B) Any Free Writing Prospectus or portion thereof required to
be filed that contains only ABS Informational and
Computational Material shall be filed by the Company with
the Commission not later than the later of the due date for
filing the final Prospectus relating to the Certificates
pursuant to Rule 424(b) under the 1933 Act Rules or two
business days after the first use of such Free Writing
Prospectus;
(C) Any Free Writing Prospectus required to be filed pursuant to
Section 4(b)(vi)(C) shall, if no payment has been made or
consideration has been given by or on behalf of the Company
for the Free Writing Prospectus or its dissemination, be
filed by the Company with the Commission not later than four
business days after the Company becomes aware of the
publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus; and
(viii) Each Underwriter shall file with the Commission the
following:
(A) Any Free Writing Prospectus that is used or referred to by
it and distributed by or on behalf of such Underwriter in a
manner reasonably designed to lead to its broad,
unrestricted dissemination not later than the date of the
first use of such Free Writing Prospectus; and
(B) Any Free Writing Prospectus for which such Underwriter or
any person acting on its behalf provided, authorized or
approved information that is prepared and published or
disseminated by a person unaffiliated with the Company or
any other offering participant that is in the business of
publishing, radio or television broadcasting or otherwise
disseminating written communications and for which no
payment was made or consideration given by or on behalf of
the Company or any other offering participant, not later
than four business days after such Underwriter becomes aware
of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus.
Notwithstanding the foregoing, no Underwriter shall be required to file (1) any
Free Writing Prospectus to the extent that the information contained therein is
included in a prospectus or Free Writing Prospectus previously filed that
relates to the offering of the Certificates, or (2) any Free Writing Prospectus
that does not contain substantive changes from or additions to a Free Writing
Prospectus previously filed with the Commission.
(ix) The Company and each Underwriter agree that any Free Writing
Prospectuses prepared by it shall contain the following legend:
The depositor has filed a registration statement (including a
prospectus) with the SEC (SEC File No. 333-119328) for the
offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement and
other documents the depositor has filed with the SEC for more
complete information about the depositor, the issuing entity and
this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the
depositor, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request
it by calling 0-000-000-0000 or by emailing XXXXXXX@xxxxxx.xxx.
(x) The Company and each Underwriter agree to retain all Free
Writing Prospectuses that they have used and not filed with the Commission
for a period of three years following the initial bona fide offering of the
Certificates.
(xi) In the event that the Company becomes aware that, as of the
Time of Sale, any information in an Issuer Free Writing Prospectus or any
Issuer Information contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
contained therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were made, not
misleading (a "Defective Issuer Free Writing Prospectus"), the Company
shall notify the Underwriters of such untrue statement or omission within
one business day after discovery and the
Company shall, if requested by the Underwriters, prepare and deliver to the
Underwriters a Free Writing Prospectus that corrects the material
misstatement or omission in the Defective Issuer Free Writing Prospectus
(such corrected Issuer Free Writing Prospectus, a "Corrected Issuer Free
Writing Prospectus"). In the event that any Underwriter becomes aware that,
as of the Time of Sale, any Underwriter Free Writing Prospectus delivered
to an investor in any Certificates contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements contained therein (when read in conjunction with the
Time of Sale Information), in light of the circumstances under which they
were made, not misleading (a "Defective Underwriter Free Writing
Prospectus: and, together with a Defective Issuer Free Writing Prospectus,
a "Defective Free Writing Prospectus"), such Underwriter shall notify the
Company of such untrue statement or omission within one business day after
discovery.
The Underwriters shall, if requested by the Company:
(A) If the Defective Free Writing Prospectus was an Underwriter
Free Writing Prospectus, prepare a Free Writing Prospectus
that corrects the material misstatement in or omission from
the Defective Free Writing Prospectus (together with a
Corrected Issuer Free Writing Prospectus, a "Corrected Free
Writing Prospectus");
(B) Either (i) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with
such investor, clearly identifying or highlighting the
Corrective Information, or (ii) deliver the Corrected Free
Writing Prospectus to each investor which received the
Defective Free Writing Prospectus, clearly identifying or
highlighting the Corrective Information, and (x) notify in
writing each such investor in a prominent fashion that the
prior contract of sale with such investor has been
terminated, and of such investor's rights as a result of
termination of such agreement and (y) provide such investor
with an opportunity to affirmatively agree in writing to
purchase the Certificates on the terms described in the
Corrected Free Writing Prospectus; and
(C) Comply with any other requirements for reformation of the
original contract of sale with such investor, as described
in Section IV.A.2.c of Commission's Securities Offering
Reform Release No. 33-8591.
In the event that the Defective Free Writing Prospectus was an Issuer
Free Writing Prospectus and the defective information was not provided
by any party that would be obligated to indemnify the Underwriters
under the Indemnification Agreements, and the Underwriters shall in
good faith incur any costs to an investor in connection with the
reformation of the contract of sale with the investor, the Company
agrees to reimburse the Underwriters for such costs; provided that,
before incurring such costs, the Underwriters first permits the
Company access to the applicable investor and an opportunity to
attempt to mitigate such costs through direct negotiation with such
investor.
(xii) Each Underwriter represents and warrants to the Company
that the Free Writing Prospectuses to be furnished to the Company by such
Underwriter pursuant to Section 4(b)(ii) will constitute all Free Writing
Prospectuses that were furnished to a sponsor, or servicer (as defined in
Item 1101 of Regulation AB) for use or referral by any such person in
connection with its offer and sale of the Certificates.
(xiii) Each Underwriter covenants with the Company that after the
Prospectus is available such Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless
such information is preceded or accompanied by the Prospectus.
(xiv) Each Mortgage Loan Seller covenants with the Company that
such Mortgage Loan Seller will not prepare or have prepared on its behalf,
or use or refer to, any Free Writing Prospectus that would constitute an
Issuer Free Writing Prospectus without the prior written consent of the
Company. In event the Company consents in writing to, in advance of, such
preparation, use or referral of a Free Writing Prospectus by a Mortgage
Loan Seller, such Mortgage Loan Seller will deliver such Free Writing
Prospectus to the Company for filing in accordance with the timeframes set
forth in Section 5(b)(vii).
(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) 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 and each Issuer Free Writing Prospectus prepared by or
on behalf of the Company 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 Rules 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 Rules)
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, to the extent required under Rule
433 of the 1933 Act Rules, all Free Writing Prospectuses that the Company is
required to file under Section 4(b)(vi), within the time frames set forth in
Section 4(b)(ii). Subject to compliance by each Underwriter with the
requirements of Section 4(b) hereof, the Company represents and warrants that,
to the extent required by Rule 433 of the 1933 Act Rules, the Company has timely
filed with the Commission any Free Writing Prospectuses contemplated to be filed
by it under Section 4(b)(vi) 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; the Prospectus Supplement shall have been
filed or transmitted for filing with the Commission in accordance with Rule 424
under the 1933 Act Rules; and any Free Writing Prospectuses contemplated to be
filed by the Company under Section 4(b)(vi) hereof shall have been filed or
transmitted for filing with the Commission in accordance with Rule 433 under the
1933 Act Rules, to the extent required to be filed thereunder.
(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 Austin 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 Austin 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 Austin 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 Sidley Austin 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, or any documents, records, agreements,
ratings or portfolio data or any other information regarding the business or
operations of the sponsors, the Trustee, Master Servicer or Special Servicer
(other than the Pooling and Servicing Agreement) and without having made any
independent check or verification of the statements contained in the Prospectus
or the Time of Sale Information, nothing has come to such counsel's attention
that would lead it to believe that the Time of Sale Information, at the Time of
Sale, or 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 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 Time of Sale Information,
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;
(ii) 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
(iii) 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.
(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 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 (A) 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 (B)
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the 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 or
(C) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Issuer Free Writing
Prospectus prepared by or on behalf of the Company or any Issuer
Information contained in any Underwriter Free Writing Prospectus, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein (when read in
conjunction with the other Time of Sale Information), in light of the
circumstances under which they were made, not misleading, which was not
corrected by Corrective Information subsequently supplied by the Company or
any Mortgage Loan Seller to any Underwriter within a reasonable period of
time prior to the Time of Sale;
(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 the Excluded Information; 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 as
to which any Underwriter has agreed to indemnify the Company pursuant to Section
8(b).
(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 (i) untrue statements or
omissions, or alleged untrue statements or omissions made in the Underwriter
Information or (ii) untrue statements or omissions made in any Underwriter Free
Writing Prospectus prepared by or on behalf of such Underwriter or omissions or
alleged omissions to state in such Underwriter Free Writing Prospectus a
material fact necessary in order to make the statements therein (when read in
conjunction with the Time of Sale Information), in the light of the
circumstances under which they were made, not misleading; 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
are caused by a misstatement or omission resulting from an error or omission in
the Issuer Information which was not corrected by Corrective Information
subsequently supplied by the Company or any Mortgage Loan Seller to any
Underwriter within a reasonable period of time prior to the Time of Sale. 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, (ii) the statements under the caption "Summary of Prospectus
Supplement--Relevant Parties--Underwriters" in the 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, constitute the only written or
electronic information furnished to the Company by the Underwriters expressly
for use in the 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.
(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
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, 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 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.
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 X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
UBS SECURITIES LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Director
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive 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 X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Director
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
Confirmed and accepted as of the date first above written, solely for purposes
of Section 5(g):
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Signatory
SCHEDULE I
Underwriting Agreement, dated as of January 20, 2006
Title and Description of the LB-UBS Commercial Mortgage Trust 2006-C1,
Certificates: Commercial Mortgage Pass-Through Certificates,
Series 2006-C1, Class A-1, Class X-0, Xxxxx
X-0, Class A-AB, Class A-4, 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: February 1, 2006
CERTIFICATES
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-AB CLASS A-4
----------- ------------ ----------- ----------- --------------
Initial Aggregate
Principal Amount $64,000,000 $326,000,000 $92,000,000 $94,000,000 $1,143,176,000
Initial Pass-Through
Rate 5.01800% 5.08400% 5.20700% 5.13900% 5.15600%
Rating(1) AAA/AAA AAA/AAA AAA/AAA AAA/AAA AAA/AAA
Purchase Price(2) 100.49958% 100.49922% 100.49600% 100.49594% 100.49605%
CLASS A-M CLASS A-J CLASS B CLASS C CLASS D
------------ ------------ ----------- ----------- -----------
Initial Aggregate
Principal Amount $245,597,000 $221,037,000 $15,350,000 $27,630,000 $24,559,000
Initial Pass-Through
Rate 5.21700% 5.27600% 5.30600% 5.33500% 5.36500%
Rating(1) AAA/AAA AAA/AAA AA+/AA+ AA/AA AA-/AA-
Purchase Price(2) 100.49473% 100.49474% 100.49865% 100.49485% 100.49880%
CLASS E CLASS F CLASS X-CP
----------- ----------- --------------
Initial Aggregate
Principal Amount $18,420,000 $21,490,000 $2,250,748,000
Initial Pass-Through
Rate 5.40400% 5.43300% 0.35172%
Rating(1) A+/A+ A/A AAA/AAA
Purchase Price(2) 100.49640% 100.49270% 2.05070%
----------
(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 January 11, 2006 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 $ 64,000,000
000 Xxxxxxx Xxxxxx A-2 $ 326,000,000
Xxx Xxxx, Xxx Xxxx 00000 A-3 $ 92,000,000
Attention: Xxxxx Xxxxxxx A-AB $ 94,000,000
A-4 $1,143,176,000
A-M $ 245,597,000
A-J $ 221,037,000
B $ 15,350,000
C $ 27,630,000
D $ 24,559,000
E $ 18,420,000
F $ 21,490,000
X-CP $2,250,748,000(1)
UBS Securities LLC A-1 $ 0
1285 Avenue of the Americas, 00xx Xxxxx X-0 $ 0
Xxx Xxxx, Xxx Xxxx 00000 A-3 $ 0
Attention: Xxxxxx Xxxxxxxxx A-AB $ 0
A-4 $ N/A
with a copy to: A-M $ 0
A-J $ 0
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx X $ 0
Xxx Xxxx, Xxx Xxxx 00000 C $ 0
Attention: Xxxxx X. Xxxxxx D $ 0
Telecopier No.: (000) 000-0000 E $ 0
F $ 0
X-CP $ 0(1)
(1) Notional Amount.
EXHIBIT A-1
FORMS OF OPINIONS OF SIDLEY AUSTIN LLP,
SPECIAL COUNSEL FOR THE COMPANY
[LETTERHEAD OF SIDLEY AUSTIN LLP]
February 1, 2006
To the Parties Listed on Annex A hereto:
Re: LB-UBS Commercial Mortgage Trust 2006-C1
Commercial Mortgage Pass-Through Certificates, Series 2006-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 20, 2006 (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 20, 2006
(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,
collectively with LBHI and LUBS, the "Mortgage Loan Sellers"), and the
purchase by the Depositor, of certain 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
20, 2006 (the "UBS Mortgage Loan Purchase Agreement" and, collectively 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 $2,483,260,647 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2006-C1 (the
"Certificates"), consisting of multiple classes designated Class A-1, Class
X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-M, Class A-J, Class B, Class
C, Class D, Class E, Class F, Class X-
A-1-1
CP, Class X-CL, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class P, Class Q, Class S, Class T, Class IUU-1, Class IUU-2, Class
IUU-3, Class IUU-4, Class IUU-5, Class IUU-6, Class IUU-7, Class IUU-8,
Class IUU-9, Class IUU-10, Class R-I, Class R-II and Class R-III pursuant
to the Pooling and Servicing Agreement, dated as of January 11, 2006 (the
"Pooling and Servicing Agreement"), between the Depositor as depositor,
Wachovia Bank, National Association as master servicer (the "Master
Servicer"), LNR Partners, Inc. as special servicer (the "Special
Servicer"), and LaSalle Bank National Association as trustee (the
"Trustee");
(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 ("UBS Securities"), of the Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class F and Class X-CP Certificates (collectively, the "Publicly
Offered Certificates"), pursuant to the Underwriting Agreement, dated as of
January 20, 2006 (the "Underwriting Agreement"), between the Depositor, LBI
and UBS Securities, and acknowledged, as to certain sections, by UBSREI and
LBHI;
(vii) the sale by the Depositor, and the purchase by LBI and UBS
Securities, of the Class X-CL, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class Q, Class S, Class T, Class IUU-1, Class
IUU-2, Class IUU-3, Class IUU-4, Class IUU-5, Class IUU-6, Class IUU-7,
Class IUU-8, Class IUU-9 and Class IUU-10 Certificates (collectively, the
"Privately Offered Certificates" and, collectively with the Publicly
Offered Certificates, the "Offered Certificates"), pursuant to the
Certificate Purchase Agreement, dated as of January 20, 2006 (the
"Certificate Purchase Agreement"), between the Depositor, LBI and UBS
Securities;
(viii) the negotiation and execution of the LBHI Indemnification
Agreement, dated as of January 20, 2006 (the "LBHI Indemnification
Agreement"), between LBHI, the Depositor, LBI and UBS Securities;
(ix) the negotiation and execution of the UBS Indemnification
Agreement, dated as of January 20, 2006 (the "UBS Indemnification
Agreement"), between UBSREI, UBS Americas Inc., the Depositor, LBI and UBS
Securities;
(x) the negotiation and execution of the Master Servicer
Indemnification Agreement, dated as of January 20, 2006 (the "Master
Servicer Indemnification Agreement"), between the Depositor, LBI, UBS
Securities and the Master Servicer;
(xi) the negotiation and execution of the Special Servicer
Indemnification Agreement, dated as of January 20, 2006 (the "Special
Servicer Indemnification Agreement"), between the Depositor, LBI, UBS
Securities and the Special Servicer; and
(xii) the negotiation and execution of the Trustee
Indemnification Agreement, dated as of January 20, 2006 (the "Trustee
Indemnification Agreement"; and, collectively with the LBHI Indemnification
Agreement, the UBS Indemnification Agreement, the Master Servicer
Indemnification Agreement and
A-1-2
Special Servicer Indemnification Agreement, the "Indemnification
Agreements"), between the Depositor, LBI, UBS Securities and the Trustee.
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, we have reviewed or been involved in the preparation of
the following documents and all exhibits thereto (collectively with the
Agreements, the "Relevant Documents"):
(i) the Prospectus Supplement, dated January 20, 2006 (the
"Prospectus Supplement"), specifically relating to the Publicly Offered
Certificates and the Trust;
(ii) the Prospectus, dated January 6, 2006 (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;
(iii) the Offering Memorandum, dated January 20, 2006 (the
"Memorandum") specifically relating to the Privately Offered Certificates
and the Trust; and
(iv) 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 and, as to factual matters relevant to the opinions set forth below,
relied upon, the originals, copies or specimens, certified or otherwise
identified to our satisfaction, of the Agreements and such certificates, public
records, agreements, instruments and other documents, including, among other
things, the documents and agreements delivered at the closing of the purchase
and sale of the Certificates (the "Closing"), as we have deemed appropriate as a
basis for the opinions expressed below. We have assumed, for purposes of this
letter, the conformity of the text of each document filed with the Commission
through the Commission's Electronic Data Gathering, Analysis and Retrieval
System to the printed documents reviewed by us. 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
A-1-3
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 Sidley
Austin LLP attorneys currently practicing law with this firm who have been
actively involved in the above-described representation with respect to the
Transactions. 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 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:
1. The Registration Statement has become effective under the
Securities Act of 1933, as amended (the "1933 Act").
2. 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.
3. The Registration Statement, as of the date it was initially
declared effective or, with respect to the portions of the Registration
Statement relating to the Publicly Offered Certificates, including the
Prospectus Supplement and relevant portions of the Basic Prospectus, as of
the deemed effective date for such portions under Rule 430B(f) of the 1933
Act (other than (i) any financial, statistical or numerical data contained
therein or omitted therefrom, (ii) information incorporated therein by
reference, (iii) information set forth on or omitted from any diskette,
CD-ROM or other electronic media included therein or distributed therewith,
(iv) any information required to be included therein pursuant to Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. Sections
229.1100-229.1123 ("Regulation AB") with respect to Mortgage Loan Seller
Matters (as defined in the UBS Indemnification Agreement), (v) any
information required to be included therein pursuant to the Specified Items
of Regulation AB (as defined in the Master Servicer Indemnification
Agreement) with respect to the Master Servicer or any of its affiliates or
any property or assets of the Master Servicer or any of its affiliates,
(vi) any information required to be included therein pursuant to the
Specified Items of Regulation AB (as defined in the Trustee Indemnification
Agreement) with respect to the Trustee or any of its affiliates or any
property or assets of the Trustee or any of its affiliates, and (vii) any
information required to be included therein pursuant to the Specified Items
of Regulation AB (as defined in the Special Servicer Indemnification
Agreement) with respect to the Special Servicer or any of its affiliates or
any property or assets of the Special Servicer or any of its affiliates),
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.
A-1-4
4. 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.
5. 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.
6. The statements set forth in the Prospectus Supplement under
the headings "The Series 2006-C1 Pooling and Servicing Agreement" 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.
7. 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 UBS
Securities, the offer and sale of the Privately Offered Certificates by the
Depositor to LBI and UBS Securities, and by LBI and UBS Securities 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.
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,
A-1-5
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
X-0-0
XXXXXXX X-0
FORM OF OPINION OF IN-HOUSE COUNSEL FOR THE COMPANY
[LETTERHEAD OF XXXXXX BROTHERS INC.]
February 1, 2006
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
LUBS Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
NC 1075
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: LB-UBS Commercial Mortgage Trust 2006-C1
Commercial Mortgage Pass-Through Certificates, Series 2006-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 Pooling and
Servicing Agreement dated as of January 11, 2006, by and between SASCO II as
depositor, Wachovia Bank, National Association as master servicer, LNR Partners,
Inc. as special servicer, and LaSalle Bank National Association as trustee; (ii)
the LUBS Mortgage Loan Purchase Agreement dated as of January 20, 2006, by and
between SASCO II, LUBS Inc.
A-2-1
and Xxxxxx Brothers Holdings Inc. ("LBHI"); (iii) the LBHI Mortgage Loan
Purchase Agreement dated as of January 20, 2006, by and between SASCO II and
LBHI; (iv) the UBS Mortgage Loan Purchase Agreement dated as of January 20,
2006, by and between SASCO II, UBS Real Estate Investments, Inc. ("UBSREI") and
UBS Principal Finance LLC; (v) the Underwriting Agreement dated as of January
20, 2006, by and between SASCO II, LBI and UBS Securities LLC ("UBS
Securities"), and acknowledged as to certain sections by UBSREI and LBHI; and
(vi) the Certificate Purchase Agreement dated as of January 20, 2006, by and
between SASCO II, LBI and UBS Securities.
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 SASCO II 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 SASCO II.
3. The execution, delivery and performance of the Agreements by
SASCO II, (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 SASCO II 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.
C. I have assumed with your permission (i) the genuineness of all
signatures by each party other than SASCO II, (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
A-2-2
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 SASCO II, records of proceedings taken by SASCO II, 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 SASCO II.
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,
A-2-3
