EXECUTION COPY
LB-UBS COMMERCIAL MORTGAGE TRUST 2003-C5,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2003-C5
UNDERWRITING AGREEMENT
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As of July 16, 2003
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Securities LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Structured Asset Securities Corporation II, a Delaware
corporation (the "Company"), proposes to cause the issuance of, and to sell to
▇▇▇▇▇▇ Brothers Inc. ("Lehman"), UBS Securities LLC ("UBSS"; and, together with
▇▇▇▇▇▇, the "Lead Underwriters) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇";
and, together with the Lead Underwriters, 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
Investment Inc. ("UBSREI"), pursuant to a mortgage loan purchase agreement dated
as of July 16, 2003 (the "UBS Mortgage Loan Purchase Agreement"), between the
Company, UBSREI and UBS Principal Finance LLC ("UBSPF"). Certain of the other
Mortgage Loans (the "LBHI Mortgage Loans") will be acquired by the Company from
▇▇▇▇▇▇ Brothers Holdings Inc., doing business as Lehman Capital, a division of
▇▇▇▇▇▇ Brothers Holdings Inc. ("LBHI"), pursuant to a mortgage loan purchase
agreement dated as of July 16, 2003 (the "LBHI Mortgage Loan Purchase
Agreement"), between the Company and LBHI. The remaining Mortgage Loans (the
"LUBS Mortgage Loans"; and, together with
the LBHI Mortgage Loans, the "▇▇▇▇▇▇ Mortgage Loans") will be acquired by the
Company from LUBS Inc. ("LUBS"), pursuant to a mortgage loan purchase agreement
dated as of July 16, 2003 (the "LUBS Mortgage Loan Purchase Agreement"; and,
together with the LBHI Mortgage Loan Purchase Agreement and the UBS Mortgage
Loan Purchase Agreement, the "Mortgage Loan Purchase Agreements"), between the
Company, LBHI and LUBS. LUBS, LBHI and UBSREI are each referred to herein as a
"Mortgage Loan Seller" and are collectively referred to herein as the "Mortgage
Loan Sellers". In connection with the sale by UBSREI to the Company of the UBS
Mortgage Loans, UBSREI, UBS (USA), Inc. ("UBS (USA)"), the Company and the
Underwriters entered into an indemnification agreement dated as of July 16, 2003
(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 July 16, 2003 (the "LBHI
Indemnification Agreement"; and, together with the UBS Indemnification
Agreement, the "Indemnification Agreements").
The Certificates will be issued under a pooling and servicing
agreement to be dated as of July 11, 2003 (the "Pooling and Servicing
Agreement"), among the Company, as depositor, LaSalle Bank National Association,
as trustee (the "Trustee"), Wachovia Bank, National Association, as master
servicer (the "Master Servicer"), Lennar Partners, Inc., as special servicer
(the "Special Servicer"), and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal
Agent"). The Certificates and the Mortgage Loans are described more fully in the
Prospectus (as defined below), which the Company has furnished to the
Underwriters. Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Prospectus.
The Certificates are part of a series of mortgage pass-through
certificates that evidence beneficial ownership interests in the Trust Fund and
are being issued pursuant to the Pooling and Servicing Agreement. The other
certificates of such series will be retained by the Company or privately placed
with a limited number of institutional investors.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
The Company represents, warrants and agrees with the respective Underwriters
that:
(a) A registration statement on Form S-3 (No. 333-105935) with
respect to the Certificates has been prepared by the Company and filed with the
Securities and Exchange Commission (the "Commission"), and complies as to form
in all material respects with the requirements of the Securities Act of 1933, as
amended (the "1933 Act"), and the rules and regulations of the Commission
thereunder, including Rule 415, and has become effective under the 1933 Act. As
used in this Underwriting Agreement (this "Agreement" or the "Underwriting
Agreement"), (i) "Registration Statement" means that registration statement and
all exhibits thereto, as amended or supplemented to the date of this Agreement;
(ii) "Basic Prospectus" means the prospectus included in the Registration
Statement at the time it became effective, or as subsequently filed with the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iii)
"Prospectus Supplement" means the prospectus supplement specifically relating to
the Certificates, as most recently filed with, or transmitted for filing to, the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iv)
"Prospectus" means the Basic Prospectus, together with the Prospectus
Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form
of the Prospectus Supplement that has heretofore been filed pursuant to
paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus"
means the Basic Prospectus, together with any Preliminary Prospectus Supplement.
The aggregate principal amount of the Certificates does not exceed the remaining
amount of mortgage-backed securities that may be offered and sold under the
Registration Statement as of the date hereof.
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(b) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective and on the date of this Agreement,
complied, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will comply, as to form in all material respects with the
requirements of the 1933 Act and the rules and regulations of the Commission
thereunder; and the Registration Statement and the Prospectus do not, and (in
the case of any amendment or supplement to any such document filed with the
Commission after the date as of which this representation is being made) will
not, contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company makes no
representation or warranty as to (i) information contained in or omitted from
the Registration Statement or the Prospectus, or any amendment or supplement
thereto, in reliance upon and in conformity with written or electronic
information (as specified in Section 8(b) hereof) furnished to the Company by
the Underwriters specifically for inclusion therein, (ii) the information
contained in or omitted from the Prospectus, or any amendment or supplement
thereto, in reliance upon and conformity with (A) the Master Tape (it being
acknowledged that the Master Tape was used to prepare the Prospectus Supplement
and any Preliminary Prospectus Supplement, including, without limitation, Annex
A-1, Annex A-2, Annex A-3, Annex A-4 and Annex B to each of the Prospectus
Supplement and any Preliminary Prospectus Supplement and the accompanying
diskette, and any Computational Materials and ABS Term Sheets (each as defined
in Section 4 hereof) with respect to the Certificates), (B) the representations
and warranties of any Mortgage Loan Seller (or LBHI in its capacity as an
additional party to the LUBS Mortgage Loan Purchase Agreement) set forth in or
made pursuant to the related Mortgage Loan Purchase Agreement, or (C) any other
information concerning the Mortgage Loan Seller Matters (as defined below)
furnished to the Company or the Underwriters by any Mortgage Loan Seller (or
LBHI in its capacity as an additional party to the LUBS Mortgage Loan Purchase
Agreement), (iii) the information regarding the Mortgage Loan Seller Matters
contained in or omitted from the Prospectus Supplement, or any amendment or
supplement thereto, under the headings "Summary of Prospectus Supplement--The
Underlying Mortgage Loans and the Mortgaged Real Properties", "Risk
Factors--Risks Related to the Underlying Mortgage Loans" and "Description of the
Mortgage Pool" or on Annex A-1, Annex A-2, Annex A-3, Annex A-4 and Annex B
thereto or on the accompanying diskette (but only to the extent that the UBS
Indemnification Agreement and/or the LBHI Indemnification Agreement shall, in
accordance with the terms thereof, provide for an indemnity with respect to the
information referred to in this clause (iii)), or (iv) the information contained
in or omitted from any Computational Materials or ABS Term Sheets, or any
amendment or supplement thereto, made a part of or incorporated by reference in
the Registration Statement, any Preliminary Prospectus or the Prospectus (or any
amendment thereof or supplement thereto) by a reason of a filing made in
accordance with Section 5(h) hereof. The "Master Tape" consists of the
compilation of underlying information and data regarding the Mortgage Loans
covered by the Independent Accountants Report on Applying Agreed Upon Procedures
dated July [16], 2003 as supplemented to the Closing Date, and rendered by
Deloitte & Touche LLP. The "Mortgage Loan Seller Matters" consist of the
following matters: the Mortgage Loans and the underlying real properties
securing the Mortgage Loans; the related loan documents and the obligors
thereunder; and the Mortgage Loan Sellers.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease or operate its
properties and to conduct its business as now conducted by it and to enter into
and perform its obligations under this Agreement, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreements; and the Company is duly
qualified as a foreign corporation to transact business and is in good
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standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business.
(d) As of the date hereof, as of the date on which the
Prospectus Supplement is first filed pursuant to Rule 424 under the 1933 Act, as
of the date on which, prior to the Closing Date, any amendment to the
Registration Statement becomes effective, as of the date on which any supplement
to the Prospectus Supplement is filed with the Commission, and as of the Closing
Date, there has not and will not have been (i) any request by the Commission for
any further amendment to the Registration Statement or the Prospectus or for any
additional information, (ii) any issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threat of any proceeding for that purpose or (iii) any notification with respect
to the suspension of the qualification of the Certificates for sale in any
jurisdiction or any initiation or threat of any proceeding for such purpose.
(e) This Agreement has been duly authorized, executed and
delivered by the Company, and the Pooling and Servicing Agreement and the
respective Mortgage Loan Purchase Agreements, when executed and delivered as
contemplated hereby and thereby, will have been duly authorized, executed and
delivered by the Company; and, assuming due authorization, execution and
delivery hereof and thereof by the other parties hereto and thereto, this
Agreement constitutes, and the Pooling and Servicing Agreement and the
respective Mortgage Loan Purchase Agreements, when so executed and delivered
will constitute, legal, valid and binding agreements of the Company, enforceable
against the Company in accordance with their respective terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws affecting the enforcement of the
rights of creditors generally, (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and (iii) public
policy considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of any
such agreement that purport or are construed to provide indemnification for
securities law liabilities.
(f) As of the Closing Date, the Certificates and the Pooling
and Servicing Agreement will conform in all material respects to the respective
descriptions thereof contained in the Prospectus. As of the Closing Date, the
Certificates will be duly and validly authorized and, when duly and validly
executed, authenticated and delivered in accordance with the Pooling and
Servicing Agreement to the Underwriters against payment therefor as provided
herein, will be duly and validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement.
(g) At the Closing Date, each of the representations and
warranties of the Company set forth in the Pooling and Servicing Agreement will
be true and correct in all material respects.
(h) The Company is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument the effect of which violation or default would be material to the
Company or which violation or default would have a material adverse affect on
the performance of its obligations under this Agreement, the Pooling and
Servicing Agreement or 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
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Company of any state or federal court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company.
(i) There is no action, suit or proceeding against the Company
pending, or, to the knowledge of the Company, threatened, before any court,
arbitrator, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, the Pooling and Servicing Agreement, the Mortgage Loan
Purchase Agreements or the Certificates, (ii) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions contemplated by
this Agreement, the Pooling and Servicing Agreement or any of the Mortgage Loan
Purchase Agreements, (iii) that might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement, the Pooling and Servicing Agreement, any of
the Mortgage Loan Purchase Agreements or the Certificates or (iv) seeking to
affect adversely the federal income tax attributes of the Certificates as
described in the Prospectus.
(j) There are no contracts, indentures or other documents of a
character required by the 1933 Act or by the rules and regulations thereunder to
be described or referred to in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(k) No authorization, approval or consent of or filing with
any court or governmental authority or agency is necessary in connection with
the offering, issuance or sale of the Certificates pursuant to or as
contemplated by this Agreement and the Pooling and Servicing Agreement, except
such as have been, or as of the Closing Date will have been, obtained or
completed, as applicable, or such as may otherwise be required under applicable
state securities laws in connection with the purchase and the offer and sale of
the Certificates by the Underwriters, and except any recordation or filing of
the respective assignments of the Mortgage Loans to the Trustee pursuant to the
Pooling and Servicing Agreement that have not been completed.
(l) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Company has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company.
(m) Any taxes, fees and other governmental charges payable by
the Company in connection with the execution and delivery of this Agreement, the
Pooling and Servicing Agreement or any of the Mortgage Loan Purchase Agreements
or the issuance and sale of the Certificates (other than such federal, state and
local taxes as may be payable on the income or gain recognized therefrom), have
been or will be paid at or prior to the Closing Date.
(n) Neither the Company nor the Trust Fund is, and neither the
issuance and sale of the Certificates in the manner contemplated by the
Prospectus nor the activities of the Trust Fund pursuant to the Pooling and
Servicing Agreement will cause the Company or the Trust Fund to be, an
"investment company" or under the control of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended (the "1940
Act").
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(o) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of the
interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriters
will constitute at least reasonably equivalent value and fair consideration for
the Certificates. The Company will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund and the sale of the Certificates to the
Underwriters. The Company is not selling the Certificates to the Underwriters or
transferring the Mortgage Loans to the Trustee on behalf of the Trust Fund with
any intent to hinder, delay or defraud any of the creditors of the Company.
(p) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Company are pending or contemplated.
(q) At the Closing Date, the respective classes of
Certificates shall have been assigned ratings no lower than those set forth in
Schedule I hereto by the nationally recognized statistical rating organizations
identified in Schedule I hereto (the "Rating Agencies").
2. PURCHASE AND SALE. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth on Schedule I hereto, Certificates of each class thereof having the
actual principal amount set forth next to the name of such Underwriter on
Schedule II hereto. Each of the Underwriters shall only be required to purchase
the actual principal amount of the Certificates of each class thereof set forth
next to such Underwriter's name on Schedule II hereto. There will be added to
the purchase price of the Certificates an amount equal to interest accrued
thereon pursuant to the terms thereof from July 11, 2003 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
& ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. New York
City time, on July 30, 2003 or at such other location, time and date as shall be
mutually agreed upon by the Lead Underwriters and the Company (such time and
date of closing, the "Closing Date"). Delivery of the Certificates shall be made
through the Same Day Funds Settlement System of the Depository Trust Company
("DTC"). Payment shall be made to the Company in immediately available Federal
funds wired to such bank as may be designated by the Company (or by such other
method of payment as may be mutually agreed upon by the Company and any
particular Underwriter), against delivery of the Certificates. The Certificates
will be made available for examination by the Underwriters not later than 3:00
p.m. New York City time on the last business day prior to the Closing Date.
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.
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4. OFFERING BY THE UNDERWRITERS.
(a) It is understood that the Underwriters propose to offer
the Certificates for sale to the public, including, without limitation, in and
from the State of New York, as set forth in the Prospectus Supplement. It is
further understood that the Company, in reliance upon Policy Statement 105 has
not and will not file the offering pursuant to Section 352-e of the General
Business Law of the State of New York with respect to the Certificates which are
not "mortgage related securities" as defined in the 1934 Act (as defined below).
Accordingly, each Underwriter covenants and agrees with the Company that sales
of such Certificates made by such Underwriter in the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
(b) The Underwriters may prepare and provide (and, prior to
the date hereof, may have prepared and provided) to prospective investors
certain Computational Materials or ABS Term Sheets in connection with the
offering of the Certificates. In this regard, each Underwriter represents and
warrants to, and covenants with, the Company that:
(i) Such Underwriter has complied and shall comply
with the requirements of the no-action letter, made available May 20,
1994, issued by the Division of Corporation Finance of the Commission
to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation (the "▇▇▇▇▇▇
Letter"), as made applicable to other issuers and underwriters pursuant
to a no-action letter, made available May 27, 1994, issued by the
Division of Corporation Finance of the Commission in response to the
request of the Public Securities Association (together with the ▇▇▇▇▇▇
Letter, the "▇▇▇▇▇▇/PSA Letter"), and the requirements of the no-action
letter, made available February 17, 1995, issued by the Division of
Corporation Finance of the Commission to the Public Securities
Association (together with the ▇▇▇▇▇▇/PSA Letter, the "No-Action
Letters").
(ii) For purposes hereof, "Computational Materials",
"ABS Term Sheets," "Structural Term Sheets" and "Collateral Term
Sheets" shall have the respective meanings given such terms in the
No-Action Letters.
(iii) All Computational Materials and ABS Term Sheets
in respect of the Certificates provided to prospective investors by
such Underwriter have borne or shall bear, as the case may be, a legend
in a form previously approved by the Company or its counsel.
(iv) Such Underwriter has not distributed and shall
not distribute any such Computational Materials or ABS Term Sheets in
respect of the Certificates, the forms and methodology of which are not
in accordance with this Agreement. Such Underwriter has provided or
shall provide, as the case may be, to the Company, for filing pursuant
to a Current Report on Form 8-K as provided in Section 5(h) hereof,
copies (in such format as required by the Company) of all such
Computational Materials and ABS Term Sheets. Such Underwriter may
provide copies of the foregoing in a consolidated or aggregated form
including all information required to be filed. All Computational
Materials and ABS Term Sheets described in this paragraph (b)(iv) must
be or must have been, as applicable, provided to the Company in paper
or electronic format suitable for filing with the Commission not later
than 10:00 a.m. (New York City time) at least one business day before
filing thereof is or was, as the case may be, required pursuant to
the terms of the No-Action Letters.
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(v) All information included in any Computational
Materials and ABS Term Sheets in respect of the Certificates provided
to prospective investors by such Underwriter has been or shall be
generated based on substantially the same methodology and assumptions
as are used to generate the information in the Prospectus Supplement as
set forth therein; provided that such Computational Materials and ABS
Term Sheets may include information based on alternative methodologies
or assumptions if specified therein. If any Computational Materials or
ABS Term Sheets in respect of the Certificates provided to prospective
investors by such Underwriter were based on assumptions with respect to
the Mortgage Pool that differ from the Prospectus Supplement in any
material respect or on Certificate structuring assumptions (except in
the case of Computational Materials when the different structuring
terms were hypothesized and so described) that were revised in any
material respect prior to the printing of the Prospectus, then to the
extent that it has not already done so, such Underwriter shall
immediately inform the Company and, upon the direction of the Company,
and if not corrected by the Prospectus, shall prepare revised
Computational Materials and/or ABS Term Sheets, as the case may be,
based on information regarding the Mortgage Pool and Certificate
structuring assumptions consistent with the Prospectus, circulate such
revised Computational Materials and ABS Term Sheets to all recipients
of the preliminary versions thereof, and include such revised
Computational Materials and ABS Term Sheets (marked, "as revised") in
the materials delivered to the Company pursuant to paragraph (b)(iv)
above.
(vi) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined to
contain any material error or omission; provided that the Company will
file Computational Materials or ABS Term Sheets that contain a material
error or, when read together with the Prospectus, a material omission,
if clearly marked (A) "superseded by materials dated [specify date]"
and accompanied by corrected Computational Materials or ABS Term Sheets
that are marked "material previously dated [specify date], as
corrected", or (B) if the material error or omission is to be corrected
in the Prospectus, "superseded by materials contained in the
Prospectus." If, within the period during which the Prospectus relating
to the Certificates is required to be delivered under the 1933 Act and
the rules and regulations of the Commission thereunder, any
Computational Materials or ABS Term Sheets in respect of the
Certificates provided to prospective investors by such Underwriter are
determined, in the reasonable judgment of the Company or such
Underwriter, to contain a material error or, when read together with
the Prospectus, a material omission, then (unless the material error or
omission was corrected in the Prospectus) such Underwriter shall
prepare, or cause the preparation of, a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such
corrected Computational Materials or ABS Term Sheets to all recipients
of the prior versions thereof, and shall deliver copies of such
corrected Computational Materials or ABS Term Sheets (marked, "as
corrected") to the Company for filing with the Commission in a
subsequent Current Report on Form 8-K submission (subject to the
Company's obtaining an accountant's comfort letter in respect of such
corrected Computational Materials and ABS Term Sheets, which shall be
at the expense of such Underwriter).
(vii) Such Underwriter has not (and, as of the
Closing Date, will not have) provided any prospective investors with
any information in written or electronic form in connection with the
offering of the Certificates except for (A) the Prospectus and any
amendments or supplements thereto, (B) any Preliminary Prospectus and
(C) such Computational Materials and/or ABS Term Sheets as either
have been provided to the Company pursuant to or as contemplated by
paragraph
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(b)(iv) above or are not required to be filed with the Commission in
accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by
any Underwriter to the Company of all Computational Materials and ABS
Term Sheets in respect of the Certificates required to be delivered in
accordance with or as contemplated by paragraph (b)(iv) above, the
Company shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Closing Date and to take
other appropriate actions in each case as necessary in order to allow
the Company to comply with its agreement set forth in Section 5(h)
hereof to file the Computational Materials and ABS Term Sheets by the
time specified therein.
(ix) Computational Materials and ABS Term Sheets
distributed by such Underwriter through electronic means have been so
distributed in accordance with SEC Release No. 33-7233.
(c) Each Underwriter represents and agrees that: (i) it has not sold or
offered the Certificates in the United Kingdom, and it has not delivered or
communicated the Prospectus or any other invitation or inducement to buy or
participate in the Certificates in the United Kingdom, except to persons who (A)
have professional experience of participating in unregulated collective
investment schemes and of matters relating to investments falling within both
Article 14(5) of the Financial Services Markets Act 2000 (Promotion of
Collective Investment Schemes) (Exemptions) Order 2001 (the "CIS Order") and
Article 19(5) of the Financial Services and Markets Act (Financial Promotion)
Order 2001 (the "FP order") or (B) fall within Article 22(2)(a) through (d)
("high net worth companies, unincorporated associations, etc.") of the CIS Order
and Article 49(2)(a) though (d) of the FP Order; and (ii) it has complied and
will comply with all applicable provisions of the Financial Services and Markets
Act 2000 with respect to anything done by it in relation to the Certificates in,
from or otherwise involving the United Kingdom.
5. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants with the
respective Underwriters that:
(a) During such period following the date of this Agreement in which
any Prospectus is required to be delivered under the 1933 Act (the "Prospectus
Delivery Period"), the Company will deliver to each Underwriter such number of
copies of each Prospectus as such Underwriter may reasonably request.
(b) During the Prospectus Delivery Period, the Company will file
promptly with the Commission any amendment or supplement to the Registration
Statement or any Prospectus relating to or covering the Certificates that may,
in the judgment of the Company or the Lead Underwriters, be required by the 1933
Act and the rules and regulations of the Commission thereunder or requested by
the Commission and approved by the Lead Underwriters.
(c) Prior to filing with the Commission during the Prospectus Delivery
Period any amendment or supplement to the Registration Statement relating to or
covering the Certificates (other than an amendment by reason of Rule 429 under
the 1933 Act) or any amendment or supplement to the Prospectus, the Company will
furnish a copy thereof to the Underwriters, and the Company will not file any
such amendment or supplement to which the Lead Underwriters shall reasonably
object.
-9-
(d) The Company will advise the Underwriters promptly (i) when, during
the Prospectus Delivery Period, any post-effective amendment to the Registration
Statement relating to or covering the Certificates (other than any amendment by
reason of Rule 429 under the 1933 Act) becomes effective, (ii) of any request or
proposed request by the Commission for any amendment or supplement to the
Registration Statement (insofar as the amendment or supplement relates to or
covers the Certificates), for any amendment or supplement to the Prospectus or
for any additional information with respect to the Certificates, (iii) of the
issuance by the Commission, during the Prospectus Delivery Period, of any stop
order suspending the effectiveness of the Registration Statement or the
initiation or threat of any such stop order proceeding, (iv) of receipt by the
Company of any notification with respect to the suspension of the qualification
of the Certificates for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose and (v) of the happening, during the Prospectus
Delivery Period, of any event that makes untrue any statement of a material fact
made in the Registration Statement or any Prospectus or that requires the making
of a change in or addition to the Registration Statement or any Prospectus in
order to make any material statement therein not misleading.
(e) If, during the Prospectus Delivery Period, the Commission issues an
order suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the lifting of that order at the
earliest possible time.
(f) The Company will endeavor to qualify the Certificates for offer and
sale under the securities laws of such jurisdictions as the Lead Underwriters
may reasonably request; provided, however, that this Section 5(f) shall not
obligate the Company to file any general consent to service of process or to
qualify to do business in any jurisdiction or as a dealer in securities in any
jurisdiction in which it is not so qualified.
(g) The costs and expenses associated with the transactions
contemplated by this Agreement shall be payable by UBSREI and LBHI, as and to
the extent provided in the respective Mortgage Loan Purchase Agreements;
provided that ▇▇▇▇▇▇ shall not be responsible pursuant to this Section 5(g) for
any costs and expenses incurred by any of the Company, the Lead Underwriters and
the Mortgage Loan Sellers, it being acknowledged and agreed that ▇▇▇▇▇▇ shall be
responsible only for the costs and expenses actually incurred by it, including,
without limitation, the fees and disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP as
special counsel to it.
(h) The Company will file any documents and any amendments thereof as
may be required to be filed by it pursuant to the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations
of the Commission under the 1933 Act and the 1934 Act, including, but not
limited to, the filing with the Commission pursuant to a Current Report on Form
8-K, subject to Section 4 hereof, of all Computational Materials and ABS Term
Sheets in respect of the Certificates furnished by any Underwriter and
identified by it as such. Subject to compliance by each Underwriter with Section
4(b)(iv) hereof, the Company will file all such Computational Materials and ABS
Term Sheets within the time period allotted for such filing pursuant to the
No-Action Letters. Subject to compliance by each Underwriter with Section
4(b)(iv) hereof, the Company represents and warrants that, to the extent
required by the No-Action Letters, the Company has timely filed with the
Commission any Collateral Term Sheets previously delivered to it as contemplated
by Section 4(b)(iv) hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters hereunder to purchase the Certificates shall be subject to
the accuracy in all material respects of
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the representations and warranties on the part of the Company contained herein
as of the date hereof, as of the date of the effectiveness of any amendment to
the Registration Statement filed prior to the Closing Date, as of the date the
Prospectus Supplement or any supplement thereto is filed with the Commission
prior to the Closing Date and as of the Closing Date, to the accuracy of the
statements of the Company made in any certificates delivered pursuant to the
provisions hereof, to the performance in all material respects by the Company of
its obligations hereunder and to satisfaction, as of the Closing Date, of the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or, to
the Company's knowledge, threatened; and the Prospectus Supplement shall have
been filed or transmitted for filing with the Commission in accordance with Rule
424 under the 1933 Act.
(b) The Company shall have delivered to the Underwriters a certificate
of the Company, signed by an authorized officer of the Company and dated the
Closing Date, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date; and
(ii) the Company has in all material respects complied with all the agreements
and satisfied all the conditions on its part that are required hereby to be
performed or satisfied at or prior to the Closing Date.
(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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the
Company, to the Rating Agencies in connection
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with the issuance of the Certificates, accompanied in each case by a letter
signed by ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇ LLP, special counsel for the Company, a letter, dated the Closing Date,
substantially in the form attached hereto as Exhibit A-3, regarding certain
information in the Registration Statement and the Prospectus.
(i) The Underwriters shall have received from Deloitte & Touche LLP,
certified public accountants, a letter dated the Closing Date and satisfactory
in form and substance to the Underwriters and their counsel, to the following
effect:
(i) they have performed certain specified procedures as a
result of which they have determined that such information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement, as was agreed upon by the Underwriters, agrees with the
data sheet or computer tape prepared by or on behalf of the Mortgage
Loan Sellers, unless otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet
or computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed upon sampling of the Mortgage Loan
files and in such other sources as shall be specified by them, and
found such data and information to be in agreement in all material
respects, unless otherwise noted in such letter.
(j) The Underwriters shall have received, with respect to each of the
Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent, a
favorable opinion of counsel, dated the Closing Date, addressing: the valid
existence of such party under the laws of its jurisdiction of organization; the
due authorization, execution and delivery of the Pooling and Servicing Agreement
by such party; the enforceability of the Pooling and Servicing Agreement against
such party, subject to such limitations as are reasonably acceptable to the
Underwriters and their counsel; and such other matters as the Underwriters and
their counsel may reasonably request. Counsel rendering each such opinion may
express its reliance as to factual matters on representations and warranties
made by, and on certificates or other documents furnished by officers and/or
authorized representatives of, the parties to the Pooling and Servicing
Agreement and on certificates furnished by public officials and, further, may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party on
behalf of which such opinion is being rendered. Each such opinion need cover
only the laws of the State of New York, the laws of the jurisdiction of
organization for the party on behalf of which such opinion is being rendered
and the federal law of the United States.
(k) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by UBSREI, UBSPF and UBS
(USA) 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, UBS (USA) or any of their respective officers and
representatives, to the same extent that
-12-
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 Loans 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 ▇▇▇▇, 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
-13-
(including reasonable fees and disbursements of counsel) that shall have been
incurred by any of them in connection with the proposed purchase and sale of the
Certificates.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the Underwriters
and each person, if any, who controls each Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against:
(i) any and all losses, liabilities, claims, damages, costs
and expenses whatsoever, as incurred, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus
or any Preliminary Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) any and all losses, liabilities, claims, damages, costs
and expenses whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission or any such alleged untrue statement or omission, contemplated
by clause (i) above, if such settlement is effected with the written
consent of the Company or as otherwise provided in Section 8(c) hereof;
and
(iii) any and all expenses whatsoever, as incurred (including,
without limitation, the fees and disbursements of counsel chosen by the
Lead Underwriters), reasonably incurred in investigating, preparing for
or defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, contemplated by clause
(i) above, to the extent that any such expense is not paid under clause
(i) or (ii) above;
provided, however, that the Company shall not be liable under the indemnity
agreement in this subsection (a) for any such loss, liability, claim, damage,
cost or expense that arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission contemplated by clause (i)
above that was made in reliance upon and in conformity with written or
electronic information (as specified in Section 8(b) below) furnished to the
Company by any Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or in the Prospectus or any Preliminary Prospectus (or
any amendment or supplement thereto); and provided, further, that the Company
shall not be liable under the indemnity agreement in this subsection (a) for any
such loss, liability, claim, damage, cost or expense that arises out of or is
based upon any untrue statement or omission or alleged untrue statement or
omission contemplated by clause (i) above that was made in any Computational
Materials or ABS Term Sheets (or any amendments or supplements thereto) in
respect of the Certificates delivered to prospective investors by one or more of
the Underwriters and furnished to the Company by any of the Underwriters
pursuant to Section 4(b)(iv) hereof and made a part of the Registration
Statement or incorporated by reference in the Prospectus or any Preliminary
-14-
Prospectus; and provided, further, that the Company shall not be liable under
the indemnity agreement in this subsection (a) for any such loss, liability,
claim, damage, cost or expense that arises out of or is based upon (A) any
untrue statement or omission or alleged untrue statement or omission
contemplated by clause (i) above that was made in the Prospectus or any
Preliminary Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with (1) the Master Tape (it being acknowledged that the
Master Tape was used to prepare the Prospectus Supplement and any Preliminary
Prospectus Supplement, including, without limitation, Annex A-1, Annex A-2,
Annex A-3, Annex A-4 and Annex B thereto and the accompanying diskette), (2) the
representations and warranties of any Mortgage Loan Seller (or LBHI as
additional party to the LUBS Mortgage Loan Purchase Agreement) set forth in or
made pursuant to the related Mortgage Loan Purchase Agreement or (3) any other
information concerning the Mortgage Loan Seller Matters furnished to the Company
or the Underwriters by any Mortgage Loan Seller (or LBHI as additional party to
the LUBS Mortgage Loan Purchase Agreement), or (B) any untrue statement or
omission or alleged untrue statement or omission contemplated by clause (i)
above that was made in the Prospectus Supplement or any Preliminary Prospectus
Supplement (or any amendment or supplement thereto) concerning the Mortgage Loan
Seller Matters under the headings "Summary of Prospectus Supplement--The
Underlying Mortgage Loans and the Mortgaged Real Properties", "Risk
Factors--Risks Related to the Underlying Mortgage Loans" and "Description of the
Mortgage Pool" therein or on Annex A-1, Annex A-2, Annex A-3, Annex A-4 and/or
Annex B thereto or on the accompanying diskette, except to the extent that such
untrue statement or omission or alleged untrue statement or omission
contemplated by clause (i) above under such headings, on such annexes or on such
diskette was made as a result of an error in the manipulation of, or any
calculations based upon, or any aggregation of, such information regarding the
Mortgage Loan Seller Matters; and, provided, further, that the Company shall not
be liable to any Underwriter or any person controlling such Underwriter under
the indemnity agreement in this subsection (a) for any such loss, liability,
claim, damage, cost or expense that arises out of or is based upon any untrue
statement or omission contemplated by clause (i) above that was made in any
Preliminary Prospectus to the extent that such losses, liabilities, claims,
damages, costs or expenses result from the fact that such Underwriter sold
Certificates to a person as to whom it shall be established that there was not
sent or given, at or prior to the confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated therein by reference), such untrue
statement or omission had been corrected in the Prospectus and a sufficient
number of copies of the Prospectus had been provided by the Company to such
Underwriter prior to the confirmation of such sale.
(b) The respective Underwriters, severally and not jointly, each agrees
to indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all losses, liabilities, claims, damages, costs and
expenses described in clauses (i), (ii) and (iii) of Section 8(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, (i) made in the Prospectus or any Preliminary
Prospectus (or any amendment thereof or supplement thereto) in reliance upon
and in conformity with written or electronic information relating to such
Underwriter furnished to the Company by such Underwriter, or by a Lead
Underwriter on its behalf, expressly for use in the Prospectus or such
Preliminary Prospectus (or any amendment or supplement thereto), or (ii) made in
any Computational Materials or ABS Term Sheets in respect of the Certificates
that were prepared by such Underwriter and distributed by it or any other party
to prospective investors; provided, however, that such Underwriter shall not be
liable under the indemnity agreement in this subsection (b) for any such loss,
liability, claim, damage, cost or expense that arises out of or is based upon
any untrue statement or omission in any such Computational Materials or ABS
-15-
Term Sheets to the extent that such loss, liability, claim, damage or expense is
covered by the indemnity agreement included in Section 1(a) of either
Indemnification Agreement, unless it shall be established that such Underwriter
was notified electronically or in writing of such untrue statement or omission
prior to the time of confirmation of sale to the person that purchased the
Certificates that are the subject of such loss, liability, claim, damage or
expense, or action in respect thereof, and such Underwriter failed to deliver to
such person corrected Computational Materials or ABS Term Sheets (or, if the
superseding or correcting information is contained in the Prospectus, failed to
deliver to such person such Prospectus) prior to confirmation of such sale to
such person. Notwithstanding the foregoing, the indemnity in clause (ii) of the
immediately preceding sentence will only apply if such untrue statement or
omission was not also an untrue statement or omission in the Prospectus. It is
hereby acknowledged that (i) the statements set forth in the first, fourth and
fifth sentences of the penultimate paragraph, and the entire last paragraph,
above the bolded names of the Underwriters on the cover of the Prospectus
Supplement and any Preliminary Prospectus Supplement, (ii) the statements under
the caption "Summary of Prospectus Supplement--Relevant Parties--Underwriters"
in the Prospectus Supplement or any Preliminary Prospectus Supplement, and (iii)
the statements in the table and in the first sentence of each of the third and
fifth paragraphs, and the entire sixth paragraph, under the caption "Method of
Distribution" in the Prospectus Supplement or any Preliminary Prospectus
Supplement, constitute the only written or electronic information furnished to
the Company by the Underwriters (including, without limitation, by a Lead
Underwriter on behalf of another Underwriter) expressly for use in the
Prospectus or any Preliminary Prospectus.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of the indemnity agreement in
subsection (a) or (b), as applicable, of this Section 8. An indemnifying party
may participate at its own expense in the defense of any such action and, to the
extent that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from the indemnified party, to
assume the 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
-16-
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 any Underwriter be
responsible under this
-17-
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 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person, if any, who
controls any 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 any Underwriter, or by or on behalf of the
Company, or by or on behalf of any of the controlling persons and officers and
directors referred to in Sections 8 and 9 hereof, and shall survive delivery of
the Certificates to the Underwriters.
11. TERMINATION OF AGREEMENT; SURVIVAL.
(a) The 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,
-18-
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 any Underwriter shall fail to take up and pay for the amount of
the Certificates agreed by such Underwriter to be purchased under this
Agreement, upon tender of such Certificates in accordance with the terms hereof,
and the amount of the Certificates not purchased does not aggregate more than
10% of the total amount of the Certificates set forth in Schedule II hereof
(based on aggregate purchase price), then the remaining Underwriters shall be
obligated to take up and pay for the Certificates that the withdrawing or
defaulting Underwriter agreed but failed to purchase, on a pro rata basis in
accordance with the respective aggregate purchase prices to be paid by the
remaining Underwriters for the Certificates originally allocated thereto on
Schedule II.
(b) If any Underwriter shall fail to take up and pay for the amount of
the Certificates agreed by such Underwriter to be purchased under this Agreement
(such Underwriter being a "Defaulting Underwriter"), upon tender of such
Certificates in accordance with the terms hereof, and the amount of the
Certificates not purchased aggregates more than 10% of the total amount of the
Certificates set forth in Schedule II hereto (based on aggregate purchase
price), and arrangements satisfactory to the remaining Underwriters and the
Company for the purchase of such Certificates by other persons are not made
within 36 hours thereafter, this Agreement shall terminate. In the event of any
such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 5(g), Section 8 and
Section 9 hereof), nor shall the non-Defaulting Underwriters be under any
liability to the Company (except to the extent provided in Sections 8 and 9
hereof). Nothing herein shall be deemed to relieve any Defaulting Underwriter
from any liability it may have to the Company or the other Underwriters by
reason of its failure to take up and pay for Certificates as agreed by such
Defaulting Underwriter.
13. NOTICES. Any notice by the Company to any Underwriter shall be
sufficient if given in writing or by telegraph addressed to the address for such
Underwriter set forth on Schedule II hereto (or, in the case of any 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 any Underwriter to
the Company shall be sufficient if given in writing or by telegraph addressed to
the Company at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇ (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
-19-
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.
-20-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this instrument, along with all counterparts, and your acceptance
shall represent a binding agreement between the Company, the Underwriters and
the Mortgage Loan Sellers signing this Agreement for purposes of Section 5(g)
and 7.
Very truly yours,
STRUCTURED ASSET SECURITIES CORPORATION II
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Confirmed and accepted as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC. UBS SECURITIES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------- -------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. Friend
----------------------------------
Name: ▇▇▇▇▇▇ ▇. Friend
Title: Managing Director
Confirmed and accepted as of the date first above written, solely for purposes
of Sections 5(g) and 7:
UBS REAL ESTATE INVESTMENT INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
Confirmed and accepted as of the date first above written, solely for purposes
of Section 5(g):
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.,
DOING BUSINESS AS LEHMAN CAPITAL,
A DIVISION OF ▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
SCHEDULE I
Underwriting Agreement, dated as of July 16, 2003.
Title and Description of the Certificates: LB-UBS Commercial Mortgage Trust 2003-C5, Commercial Mortgage Pass-Through
Certificates, Series 2003-C5, Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D, Class E, Class F and Class G Certificates
Cut-off Date: July 11, 2003
Expected Closing Date: July 30, 200
CERTIFICATES
--------------------------------------------------------------------------------------------------------------------------
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4 CLASS B CLASS C CLASS D
--------- --------- --------- --------- ------- ------- -------
--------------------------------------------------------------------------------------------------------------------------
Initial Aggregate
Principal Amount $145,000,000 $503,000,000 $220,000,000 $328,064,000 $22,833,000 $24,588,000 $15,807,000
--------------------------------------------------------------------------------------------------------------------------
Initial Pass-Through
Rate 2.786% 3.478% 4.254% 4.685% 4.742% 4.762% 4.792%
--------------------------------------------------------------------------------------------------------------------------
Rating(1) AAA/AAA AAA/AAA AAA/AAA AAA/AAA AA+/AA+ AA/AA AA-/AA-
--------------------------------------------------------------------------------------------------------------------------
Purchase Price(2) 100.49703% 100.49981% 100.49543% 100.49358% 100.49319% 100.49552% 100.49903%
--------------------------------------------------------------------------------------------------------------------------
CERTIFICATES
----------------------------------------------------------------
CLASS E CLASS F CLASS G
------- ------- -------
----------------------------------------------------------------
Initial Aggregate
Principal Amount $15,807,000 $22,833,000 $17,563,000
----------------------------------------------------------------
Initial Pass-Through
Rate 4.811% 4.843% 4.893%
----------------------------------------------------------------
Rating(1) A+/A+ A/A A-/A-
----------------------------------------------------------------
Purchase Price(2) 100.49351% 100.49305% 100.49443%
----------------------------------------------------------------
---------------
(1) By Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. and Fitch, Inc., respectively.
(2) Expressed as a percentage of the initial aggregate stated principal
amount of each class of Certificates. There shall be added to the
Purchase Price for each class of Certificates accrued interest at the
initial Pass-Through Rate therefor on the initial aggregate principal
amount thereof from July 11, 2003 to but not including the Closing
Date.
SCHEDULE II
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
---------------------------- ----- ----------------------------
▇▇▇▇▇▇ Brothers Inc. A-1 $ 145,000,000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ A-2 $ 478,000,000
New York, New York 10019 A-3 $ 220,000,000
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ A-4 $ 328,064,000
B $ 22,833,000
C $ 24,588,000
D $ 15,807,000
E $ 15,807,000
F $ 22,833,000
G $ 17,563,000
UBS Securities LLC A-1 $ 0
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ Floor A-2 $ 0
New York, New York 10019 A-3 $ 0
Attention: ▇▇▇▇▇ ▇▇▇▇▇ A-4 $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
G $ 0
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated A-1 $ 0
1585 Broadway A-2 $ 25,000,000
New York, New York 10036 A-3 $ 0
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ A-4 $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
G $ 0
EXHIBIT A-1
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
SPECIAL COUNSEL FOR THE COMPANY
[LETTERHEAD OF ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP]
July 30, 2003
To the Parties Listed on Annex A hereto:
Re: LB-UBS Commercial Mortgage Trust 2003-C5
Commercial Mortgage Pass-Through Certificates, Series 2003-C5
-------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Structured Asset
Securities Corporation II (the "Depositor"), ▇▇▇▇▇▇ Brothers Inc. ("LBI"), LUBS
Inc. ("LUBS") and ▇▇▇▇▇▇ Brothers Holdings Inc., doing business as Lehman
Capital, a division of ▇▇▇▇▇▇ 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 (the "LBHI Mortgage
Loans"), pursuant to the LBHI Mortgage Loan Purchase Agreement, dated
as of July 16, 2003 (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
certain other multifamily and commercial mortgage loans (the "LUBS
Mortgage Loans"), pursuant to the LUBS Mortgage Loan Purchase
Agreement, dated as of July 16, 2003 (the "LUBS Mortgage Loan Purchase
Agreement"), between LUBS, as seller, the Depositor, as purchaser, and
LBHI, as an additional party;
(iii) the sale by UBS Real Estate Investments Inc. ("UBSREI"
and, together with LBHI and LUBS, the "Mortgage Loan Sellers"), and the
purchase by the Depositor, of certain other multifamily and commercial
mortgage loans (the "UBS Mortgage Loans" and, together with the LBHI
Mortgage Loans and the LUBS Mortgage Loans, the "Mortgage Loans"),
pursuant to the UBS Mortgage Loan Purchase Agreement, dated as of July
16, 2003 (the "UBS Mortgage Loan Purchase Agreement" and, together with
the LBHI Mortgage Loan Purchase Agreement and the LUBS Mortgage Loan
Purchase Agreement, the "Mortgage Loan Purchase Agreements"), between
UBSREI, as seller, the Depositor, as purchaser, and UBS Principal
Finance LLC, as an additional party;
(iv) the creation of a common law trust (the "Trust") and the
issuance of an aggregate $1,405,068,726 Certificate Principal Balance
of Commercial Mortgage Pass-Through Certificates, Series 2003-C5 (the
"Certificates"), consisting of multiple classes designated Class A-1,
Class A-2, Class A-3, Class A-4, Class X-CL, Class X-CP, Class B, Class
C, Class D, Class E, Class F, Class
A-1-1
G, Class H, Class J, Class K, Class L, Class M, Class N, Class P, Class
Q, Class S, Class T, Class R-I, Class R-II, Class R-III and Class V,
pursuant to the Pooling and Servicing Agreement, dated as of July 11,
2003 (the "Pooling and Servicing Agreement"), between the Depositor, as
depositor, Wachovia Bank, National Association, as master servicer,
Lennar Partners, Inc., as special servicer, LaSalle Bank National
Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as
fiscal agent;
(v) the transfer of the Mortgage Loans by the Depositor to the
Trust, pursuant to the Pooling and Servicing Agreement, in exchange for
the issuance of the Certificates at the direction of the Depositor;
(vi) the sale by the Depositor, and the purchase by LBI, UBS
Securities LLC ("UBSS") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇"
and, together with LBI and UBSS, in such capacity, the "Underwriters"),
of the Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D, Class E, Class F and Class G Certificates (collectively, the
"Publicly Offered Certificates"), pursuant to the Underwriting
Agreement, dated as of July 16, 2003 (the "Underwriting Agreement"),
between the Depositor and the Underwriters, and acknowledged, as to
certain sections, by UBSREI and LBHI;
(vii) the sale by the Depositor, and the purchase by LBI and
UBSS (together in such capacity, the "Initial Purchasers"), of the
Class X-CL, Class X-CP, Class H, Class J, Class K, Class L, Class M,
Class N, Class P, Class Q, Class S and Class T Certificates
(collectively, the "Privately Offered Certificates" and, collectively
with the Publicly Offered Certificates, the "Offered Certificates"),
together with the Class V Certificates, pursuant to the Certificate
Purchase Agreement, dated as of July 16, 2003 (the "Certificate
Purchase Agreement"), between the Depositor and the Initial Purchasers;
(viii) the negotiation and execution of the LBHI
Indemnification Agreement, dated as of July 16, 2003 (the "LBHI
Indemnification Agreement"), between LBHI, the Depositor and the
Underwriters/Initial Purchasers; and
(ix) the negotiation and execution of the UBS Indemnification
Agreement, dated as of July 16, 2003 (the "UBS Indemnification
Agreement" and, together with the LBHI Indemnification Agreement, the
"Indemnification Agreements"), between UBSREI, UBS (USA), Inc., the
Depositor and the Underwriters/Initial Purchasers.
In the course of our acting as special counsel to the
Depositor, LBI, LUBS and LBHI as described above, we prepared or reviewed the
Pooling and Servicing Agreement, the Underwriting Agreement, the Certificate
Purchase Agreement, the Mortgage Loan Purchase Agreements and the
Indemnification Agreements (collectively, the "Agreements"). Capitalized terms
not defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement and, to the extent not defined therein, in the other
Agreements.
In addition, with the knowledge and consent of the Depositor,
LBI and UBSS, we have acted as special counsel to those parties in connection
with the preparation or review of the following documents and all exhibits
thereto (collectively with the Agreements, the "Relevant Documents"):
A-1-2
(a) the Prospectus Supplement, dated July 16, 2003 (the
"Prospectus Supplement"), specifically relating to
the Publicly Offered Certificates and the Trust;
(b) the Prospectus, dated July 7, 2003, relating to
publicly offered mortgage-backed securities,
including mortgage pass-through certificates
evidencing interests in trust funds established by
the Depositor (the "Basic Prospectus" and, together
with the Prospectus Supplement, the "Prospectus");
(c) the Offering Memorandum, dated July 16, 2003 (the
"Memorandum") specifically relating to the Privately
Offered Certificates and the Trust; and
(d) the registration statement on Form S-3 (No.
333-105935) (the "Registration Statement") filed with
the Securities and Exchange Commission (the
"Commission").
For purposes of rendering the opinions set forth below, we
have also examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents and records as we have deemed relevant or
necessary as the basis for the opinions set forth below; we have obtained such
certificates from and made such inquiries of officers and representatives of the
parties to the Agreements and public officials as we have deemed relevant or
necessary as the basis for such opinions; and we have relied upon, and assumed
the accuracy of, such other documents and records, such certificates and the
statements made in response to such inquiries, with respect to the factual
matters upon which such opinions are based. We have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters contained in the Agreements, (ii) the legal capacity of natural
persons, (iii) the genuineness of all signatures, (iv) the authenticity of all
documents submitted to us as originals, (v) the conformity to authentic
originals of all documents submitted to us as certified, conformed or
photostatic copies, (vi) the due organization of each of the parties to the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) the power and authority of all
parties to the Agreements to enter into, perform under and consummate the
transactions contemplated by the Agreements, without any resulting conflict with
or violation of the organizational documents of any such party or with or of any
law, rule, regulation, order, writ or decree applicable to any such party or its
assets, and without any resulting default under or breach of any other agreement
or instrument by which any such party is bound or which is applicable to it or
its assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of each of the Agreements by all parties thereto, (ix)
the constitution of each of the Agreements as the legal, valid and binding
obligation of each party thereto, enforceable against such party in accordance
with its terms, (x) the compliance with the Agreements by all parties thereto
and, in the case of the Pooling and Servicing Agreement, by the registered
holders and beneficial owners of the Certificates, (xi) the conformity, to the
requirements of the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreements, of the Mortgage Notes, the Mortgages and the other
documents delivered to the Trustee by, on behalf of or at the direction of the
Depositor and the Mortgage Loan Sellers, and (xii) the absence of any other
agreement that supplements or otherwise modifies the express terms of the
Agreements.
When used in this opinion, the term "knowledge" or words of
similar import mean the actual knowledge of facts or other information of the
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP attorneys currently practicing law with this firm
who have been actively involved in the above-described representation of the
A-1-3
Depositor, LUBS, LBHI, LBI, UBSS and/or ▇▇▇▇▇▇. 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, the Basic Prospectus
and the Prospectus Supplement, as of their respective effective or
issue dates (other than the financial statements, schedules and other
financial and statistical information contained therein or omitted
therefrom and other than information incorporated therein by reference,
as to which we express no opinion), complied as to form in all material
respects with the applicable requirements of the 1933 Act and the rules
and regulations of the Commission thereunder.
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 "Servicing Under the 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
A-1-4
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 UBSS, the offer and sale of the Privately
Offered Certificates by the Depositor to LBI and UBSS, and by LBI and
UBSS to investors that purchase from them, in the manner contemplated
by the Memorandum, the Certificate Purchase Agreement and the Pooling
and Servicing Agreement, are transactions that do not require
registration under the 1933 Act.
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
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Securities LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
A-1-6
EXHIBIT A-2
FORM OF OPINION OF IN-HOUSE COUNSEL FOR THE COMPANY
[LETTERHEAD OF ▇▇▇▇▇▇ BROTHERS]
July 30, 2003
Structured Asset Securities Corporation II Standard & Poor's Ratings Services,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
New York, New York ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Securities LLC Fitch Ratings, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated Wachovia Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-1075
▇▇▇▇▇▇ Brothers Holdings Inc., Lennar Partners, Inc.
d/b/a Lehman Capital, a division of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Brothers Holdings Inc. Suite ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LUBS Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: LB-UBS Commercial Mortgage Trust 2003-C5
Commercial Mortgage Pass-Through Certificates, Series 2003-C5
-------------------------------------------------------------
Ladies and Gentlemen:
I am internal counsel to ▇▇▇▇▇▇ Brothers Inc. ("LBI") and, in
such capacity, have acted as counsel to Structured Asset Securities Corporation
II, a Delaware corporation ("SASCO II"), and am familiar with matters pertaining
to the following agreements (collectively, the "Agreements"): (i) the
A-2-1
Pooling and Servicing Agreement dated as of July 11, 2003, by and between SASCO
II, as depositor, Wachovia Bank, National Association, as master servicer,
Lennar Partners, Inc., as special servicer, LaSalle Bank National Association,
as trustee, and ABN AMRO Bank N.V., as fiscal agent; (ii) the LUBS Mortgage Loan
Purchase Agreement dated as of July 16, 2003, by and between SASCO II, LUBS Inc.
and ▇▇▇▇▇▇ Brothers Holdings Inc., doing business as Lehman Capital, a division
of ▇▇▇▇▇▇ Brothers Holdings Inc. ("LBHI"); (iii) the LBHI Mortgage Loan Purchase
Agreement dated as of July 16, 2003, by and between SASCO II and LBHI; (iv) the
UBS Mortgage Loan Purchase Agreement dated as of July 16, 2003, by and between
SASCO II, UBS Real Estate Investments, Inc. ("UBSREI"), and UBS Principal
Finance LLC, as an additional party; (v) the Underwriting Agreement dated as of
July 16, 2003, by and between SASCO II, LBI, UBS Securities LLC ("UBSS") and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, and acknowledged as to certain sections by
UBSREI and LBHI; and (vi) the Certificate Purchase Agreement dated as of July
16, 2003, by and between SASCO II, LBI and UBSS.
In connection with this opinion, I have examined, or have had
examined on my behalf, an executed copy of each of the Agreements, certificates
and statements of public officials and officers of ▇▇▇▇▇ ▇▇ 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 ▇▇▇▇▇ ▇▇.
3. The execution, delivery and performance of the
Agreements by ▇▇▇▇▇ ▇▇, (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 ▇▇▇▇▇ ▇▇ 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
A-2-2
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 ▇▇▇▇▇ ▇▇, (ii)
the legal capacity of all natural persons signing or delivering any
instrument, (iii) the authenticity of documents submitted to me as
originals and the conformity with the authentic original documents of
all documents submitted to me as copies, and (iv) the due execution and
delivery, pursuant to due authorization, of all documents by each party
other than SASCO II.
D. I have relied on originals or copies, certified or
otherwise identified to my satisfaction, of the certificate of
incorporation and by-laws of ▇▇▇▇▇ ▇▇, records of proceedings taken by
▇▇▇▇▇ ▇▇, 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 ▇▇▇▇▇ ▇▇.
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 ▇▇▇▇▇▇ Brothers Inc. and shall in no event
incur any personal liability in connection with the said opinions.
Very truly yours,
A-2-3
EXHIBIT A-3
FORM OF LETTER TO BE DELIVERED BY
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, SPECIAL COUNSEL TO THE COMPANY
REGARDING THE DISCLOSURE IN THE REGISTRATION STATEMENT
AND PROSPECTUS
[LETTERHEAD OF ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP]
July 30, 2003
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Securities LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: LB-UBS Commercial Mortgage Trust 2003-C5
Commercial Mortgage Pass-Through Certificates, Series 2003-C5
-------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Structured Asset
Securities Corporation II (the "Depositor"), ▇▇▇▇▇▇ Brothers Inc. ("LBI"), LUBS
Inc. ("LUBS") and ▇▇▇▇▇▇ Brothers Holdings Inc., doing business as Lehman
Capital, a division of ▇▇▇▇▇▇ 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 (the
"LBHI Mortgage Loans"), pursuant to the LBHI Mortgage Loan Purchase
Agreement, dated as of July 16, 2003 (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 certain multifamily and commercial mortgage loans (the
"LUBS Mortgage Loans"), pursuant to the LUBS Mortgage Loan Purchase
Agreement, dated as of July 16, 2003 (the "LUBS Mortgage Loan Purchase
A-3-1
Agreement"), between LUBS, as seller, the Depositor, as purchaser, and
LBHI, as an additional party;
(iii) the sale by UBS Real Estate Investments Inc.
("UBSREI" and, together with LBHI and LUBS, the "Mortgage Loan
Sellers"), and the purchase by the Depositor, of certain other
multifamily and commercial mortgage loans (the "UBS Mortgage Loans"
and, together with the LBHI Mortgage Loans and the LUBS Mortgage Loans,
the "Mortgage Loans"), pursuant to the UBS Mortgage Loan Purchase
Agreement, dated as of July 16, 2003 (the "UBS Mortgage Loan Purchase
Agreement" and, together with the LBHI Mortgage Loan Purchase Agreement
and the LUBS Mortgage Loan Purchase Agreement, the "Mortgage Loan
Purchase Agreements"), between UBSREI, as seller, the Depositor, as
purchaser, and UBS Principal Finance LLC, as an additional party;
(iv) the creation of a common law trust (the "Trust")
and the issuance of an aggregate $1,405,068,726 Certificate Principal
Balance of Commercial Mortgage Pass-Through Certificates, Series
2003-C5 (the "Certificates"), consisting of multiple classes designated
Class A-1, Class A-2, Class A-3, Class A-4, Class X-CL, Class X-CP,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class P, Class Q, Class S, Class T,
Class R-I, Class R-II, Class R-III and Class V, pursuant to the Pooling
and Servicing Agreement, dated as of July 11, 2003 (the "Pooling and
Servicing Agreement"), between the Depositor, as depositor, Wachovia
Bank, National Association, as master servicer, Lennar Partners, Inc.,
as special servicer, LaSalle Bank National Association, as trustee (the
"Trustee"), and ABN AMRO Bank N.V., as fiscal agent;
(v) the transfer of the Mortgage Loans by the
Depositor to the Trust, pursuant to the Pooling and Servicing
Agreement, in exchange for the issuance of the Certificates at the
direction of the Depositor;
(vi) the sale by the Depositor, and the purchase by
LBI, UBS Securities LLC ("UBSS") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇" and, together with LBI and UBSS, in such capacity, the
"Underwriters"), of the Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D, Class E, Class F and Class G Certificates
(collectively, the "Publicly Offered Certificates"), pursuant to the
Underwriting Agreement, dated as of July 16, 2003 (the "Underwriting
Agreement"), between the Depositor and the Underwriters, and
acknowledged, as to certain sections, by UBSREI and LBHI;
(vii) the negotiation and execution of the LBHI
Indemnification Agreement, dated as of July 16, 2003 (the "LBHI
Indemnification Agreement"), between LBHI, the Depositor and the
Underwriters/Initial Purchasers; and
(viii) the negotiation and execution of the UBS
Indemnification Agreement, dated as of July 16, 2003 (the "UBS
Indemnification Agreement" and, together with the LBHI Indemnification
Agreement, the "Indemnification Agreements"), between UBSREI, UBS
(USA), Inc., the Depositor and the Underwriters/Initial Purchasers.
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
A-3-2
Agreement, the Mortgage Loan Purchase Agreements and the Indemnification
Agreements (collectively, the "Agreements"). Capitalized terms not defined
herein have the respective meanings set forth in the Pooling and Servicing
Agreement and, to the extent not defined therein, in the other Agreements.
In addition, with the knowledge and consent of the Depositor
and the Underwriters, we have also acted as special counsel to those parties in
connection with the preparation or review of the following documents and all
exhibits thereto (collectively with the Agreements, the "Relevant Documents"):
(a) the Prospectus Supplement, dated July 16, 2003
(the "Prospectus Supplement"), specifically relating to the Publicly
Offered Certificates and the Trust;
(b) the Prospectus, dated July 7, 2003, relating to
publicly offered mortgage-backed securities, including mortgage
pass-through certificates evidencing interests in trust funds
established by the Depositor (the "Basic Prospectus" and, together with
the Prospectus Supplement, the "Prospectus");
(c) the registration statement on Form S-3 (No.
333-105935) (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission");
(d) the loan agreement, the Mortgage Note and
selected provisions of the Mortgage for the Mortgage Loan described in
the Prospectus Supplement as the "▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Mortgage Loan"; and
(e) asset summaries prepared and provided to us by
LBHI and/or LUBS with respect to the Mortgaged Properties securing the
LBHI Mortgage Loans and the LUBS Mortgage Loans.
Furthermore, we have discussed the information contained in
the Relevant Documents with certain representatives of the Depositor, the
Underwriters and the other parties to the Agreements and their respective
counsel (in addition to us).
For purposes of delivering this letter, we have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
such other documents and records as we have deemed relevant or necessary as the
basis for the statements made in this letter; we have obtained such certificates
from and made such inquiries of officers and representatives of the parties to
the Agreements and public officials as we have deemed relevant or necessary as
the basis for the statements made in this letter; and we have relied upon, and
assumed the accuracy of, such other documents and records, such certificates and
the statements made in response to such inquiries, with respect to the factual
matters upon which the statements made in this letter are based. We have also
assumed (i) the truthfulness and accuracy of each of the representations and
warranties as to factual matters contained in the Agreements, (ii) the legal
capacity of natural persons, (iii) the genuineness of all signatures, (iv) the
authenticity of all documents submitted to us as originals, (v) the conformity
to authentic originals of all documents submitted to us as certified, conformed
or photostatic copies, (vi) the due organization of each of the parties to the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) the power and authority of all
parties to the Agreements to enter into, perform under and consummate the
transactions contemplated by the Agreements, without any resulting conflict with
or violation of the organizational documents of any such party or with or of any
law, rule, regulation, order, writ or decree applicable to any such party or its
assets,
A-3-3
and without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of each of the Agreements by all parties thereto, (ix)
the constitution of each of the Agreements as the legal, valid and binding
obligation of each party thereto, enforceable against such party in accordance
with its terms, (x) the compliance with the Agreements by all parties thereto
and, in the case of the Pooling and Servicing Agreement, by the registered
holders and beneficial owners of the Certificates, (xi) the conformity, to the
requirements of the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreements, of the Mortgage Notes, the Mortgages and the other
documents delivered to the Trustee by, on behalf of or at the direction of the
Depositor and/or the Mortgage Loan Sellers, (xii) 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, and (xiii) the absence of any other agreement that supplements or otherwise
modifies the express terms of the Agreements. In rendering this letter, we do
not make any statement or express any view concerning the laws of any
jurisdiction other than the federal laws of the United States of America.
While we have made no independent check or verification of,
and do not assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the Prospectus, on
the basis of and subject to the foregoing, nothing has come to our attention
that has caused us to believe that (a) the Registration Statement, as of its
effective date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (b) the Prospectus, as of the date of the
Prospectus Supplement or as of the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that we express no view or
belief as to (w) any information contained in or omitted from the Prospectus
Supplement with respect to the UBS Mortgage Loans and the description of the
Mortgage Loans identified therein as the "▇▇▇▇ ▇▇▇▇▇▇▇ Tower Mortgage Loan", the
"Westfield Shoppingtown Plaza ▇▇▇▇▇▇ and Vancouver Mortgage Loan" and the "GGP
Mall Portfolio Mortgage Loans" and/or the description of the obligors under, and
the Mortgaged Properties relating to, the foregoing Mortgage Loans, (x) any
financial, statistical or numerical data set forth or referred to in or omitted
from the Registration Statement or the Prospectus, (y) the information set forth
on or omitted from any diskette that may accompany the Prospectus, or (z) any
documents or information incorporated by reference in the Registration Statement
or the Prospectus.
In connection with delivering this letter, we advise you that,
as to materiality, we have relied, to the extent that we may properly do so in
the discharge of our professional responsibilities as experienced law
practitioners, upon the judgment of officers and representatives of the
Depositor, the Underwriters and the Mortgage Loan Sellers. In addition, we call
to your attention that, with your knowledge and consent, we have not, except to
the limited extent described above, examined or otherwise reviewed any of the
Mortgage Files or any particular documents contained in such files or any other
document with respect to the Mortgage Loans. When used in this letter, the term
"attention" or words of similar import mean the conscious awareness of facts or
other information of the ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP attorneys currently
practicing law with this firm who have been actively involved in providing the
representation described above in connection with the Transactions.
The statements set forth herein are being made 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
A-3-4
that such changes may affect the statements made herein. This letter is being
delivered solely for the benefit of the persons to which it is addressed in
connection with the Transactions; accordingly, it may not be quoted or otherwise
delivered to or relied upon by any other person (including, without limitation,
any person who acquires Publicly Offered Certificates from any Underwriter),
filed with any governmental authority or other regulatory agency or otherwise
circulated or utilized for any other purpose without our prior written consent.
Very truly yours,
A-3-5