Exhibit 1.1
EXECUTION COPY
LB-UBS COMMERCIAL MORTGAGE TRUST 2003-C1,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2003-C1
UNDERWRITING AGREEMENT
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As of March 11, 2003
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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. ("▇▇▇▇▇▇") and UBS Warburg LLC ("UBSW", and, together with
▇▇▇▇▇▇, the "Underwriters"), the mortgage pass-through certificates that are
identified on Schedule I attached hereto (the "Certificates").
The Certificates will evidence beneficial ownership interests in a
trust fund (the "Trust Fund") to be formed by the Company and consisting
primarily of a segregated pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"). Certain of the Mortgage Loans
(the "UBS Mortgage Loans") will be acquired by the Company from UBS Warburg
Real Estate Investments Inc. ("UBSWREI"), pursuant to a mortgage loan purchase
agreement dated as of the date hereof (the "UBS Mortgage Loan Purchase
Agreement"), between the Company, UBSWREI and UBS Principal Finance LLC
("UBSPF"). Certain of the Mortgage Loans (the "LBHI Mortgage Loans") will be
acquired by the Company from ▇▇▇▇▇▇ Brothers Holdings Inc., doing business as
▇▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇ Brothers Holdings Inc. ("LBHI"), pursuant
to a mortgage loan purchase agreement dated as of the date hereof (the "LBHI
Mortgage Loan Purchase Agreement"), between the Company and LBHI. The other
Mortgage Loans (the "LUBS Mortgage Loans"; and, together with the LBHI Mortgage
Loans, the "▇▇▇▇▇▇ Mortgage Loans") will be acquired by the Company
simultaneously from LUBS Inc. ("LUBS"), pursuant to a mortgage loan purchase
agreement dated as of the date hereof (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. Each of LUBS, LBHI and
UBSWREI are referred to herein as a "Mortgage Loan Seller" and, collectively,
as the "Mortgage Loan Sellers."
In connection with the sale by UBSWREI to the Company of the UBS
Mortgage Loans, UBSWREI, UBS (USA), Inc. ("UBS (USA)"), the Company and the
Underwriters entered into an indemnification agreement dated as of the date
hereof (the "UBS Indemnification Agreement"). In connection with the sale 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 the date hereof (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 March 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. 333-100864) with
respect to the Certificates has been prepared by the Company and filed with the
Securities and Exchange Commission (the "Commission"), and complies as to form
in all material respects with the requirements of the Securities Act of 1933,
as amended (the "1933 Act"), and the rules and regulations of the Commission
thereunder, including Rule 415, and has become effective under the 1933 Act. As
used in this Underwriting Agreement (this "Agreement" or the "Underwriting
Agreement"), (i) "Registration Statement" means that registration statement and
all exhibits thereto, as amended or supplemented to the date of this Agreement;
(ii) "Basic Prospectus" means the prospectus included in the Registration
Statement at the time it became effective, or as subsequently filed with the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iii)
"Prospectus Supplement" means the prospectus supplement specifically relating
to the Certificates, as most recently filed with, or transmitted for filing to,
the Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iv)
"Prospectus" means the Basic Prospectus, together with the Prospectus
Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form
of the Prospectus Supplement that has heretofore been filed pursuant to
paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus"
means the Basic Prospectus, together with any Preliminary Prospectus
Supplement. The aggregate principal amount of the Certificates does not exceed
the remaining amount of mortgage-backed securities that may be offered and sold
under the Registration Statement as of the date hereof.
(b) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and on the date of this Agreement,
complied, and (in the case of any amendment or supplement to any such document
filed with the Commission after the date as of which this representation is
being made) will comply, as to form in all material respects with the
requirements of the 1933 Act and the rules and regulations of the Commission
thereunder; and the Registration Statement and the Prospectus do
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not, and (in the case of any amendment or supplement to any such document filed
with the Commission after the date as of which this representation is being
made) will not, contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company makes no
representation or warranty as to (i) information contained in or omitted from
the Registration Statement or the Prospectus, or any amendment or supplement
thereto, in reliance upon and in conformity with written or electronic
information furnished to the Company by the Underwriters specifically for
inclusion therein, (ii) the information contained in or omitted from the
Prospectus, or any amendment or supplement thereto, in reliance upon and
conformity with (A) the Master Tape (it being acknowledged that the Master Tape
was used to prepare the Prospectus Supplement and any Preliminary Prospectus
Supplement, including, without limitation, Annex ▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇,
Annex ▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇ (▇▇ any) 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
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
(as defined below) 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 ▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇, Annex ▇-▇, ▇▇▇▇▇
▇-▇, ▇▇▇▇▇ ▇-▇ and Annex B thereto or on the accompanying diskette, or (iv) the
information contained in or omitted from any Computational Materials or ABS
Term Sheets, or any amendment or supplement thereto, incorporated by reference
in the Registration Statement, any Preliminary Prospectus or the Prospectus (or
any amendment thereof or supplement thereto) by a reason of a filing made in
accordance with Section 5(h) hereof. The "Master Tape" consists of the
compilation of underlying information and data regarding the Mortgage Loans
covered by the Independent Accountants Report on Applying Agreed Upon
Procedures dated March 11, 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 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
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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 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
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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 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, 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 the Mortgage Loan Purchase Agreements or the
issuance and sale of the Certificates (other than such federal, state and local
taxes as may be payable on the income or gain recognized therefrom), have been
or will be paid at or prior to the Closing Date.
(n) Neither the Company nor the Trust Fund is, and neither the
issuance and sale of the Certificates in the manner contemplated by the
Prospectus nor the activities of the Trust Fund pursuant to the Pooling and
Servicing Agreement will cause the Company or the Trust Fund to be, an
"investment company" or under the control of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(o) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of
the interests in the Mortgage Loans evidenced by the Certificates. The
consideration received by the Company upon the sale of the Certificates to the
Underwriters will constitute at least reasonably equivalent value and fair
consideration for the Certificates. The Company will be solvent at all relevant
times prior to, and will not be rendered insolvent by, the transfer of the
Mortgage Loans to the Trustee on behalf of the Trust Fund and the sale of the
Certificates to the Underwriters. The Company is not selling the Certificates
to the
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Underwriters or transferring the Mortgage Loans to the Trustee on behalf of the
Trust Fund with any intent to hinder, delay or defraud any of the creditors of
the Company.
(p) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Company are pending or contemplated.
(q) At the Closing Date, the respective classes of Certificates shall
have been assigned ratings no lower than those set forth in Schedule I hereto
by the nationally recognized statistical rating organizations identified in
Schedule I hereto (the "Rating Agencies").
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth on
Schedule I hereto, Certificates of each class thereof having the actual
principal amount set forth next to the name of such Underwriter on Schedule II
hereto. Each of the Underwriters shall only be required to purchase the actual
principal amount of the Certificates of each class thereof set forth next to
such Underwriter's name on Schedule II hereto. There will be added to the
purchase price of the Certificates an amount equal to interest accrued thereon
pursuant to the terms thereof from March 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 Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. New York City
time, on March 20, 2003 or at such other location, time and date as shall be
mutually agreed upon by the Underwriters and the Company (such time and date of
closing, the "Closing Date"). Delivery of the Certificates shall be made
through the Same Day Funds Settlement System of the Depository Trust Company
("DTC"). Payment shall be made to the Company in immediately available Federal
funds wired to such bank as may be designated by the Company (or by such other
method of payment as may be mutually agreed upon by the Company and any
particular Underwriter), against delivery of the Certificates. The Certificates
will be made available for examination by the Underwriters not later than 3:00
p.m. New York City time on the last business day prior to the Closing Date.
References herein, including, without limitation, in the Schedules
hereto, to actions taken or to be taken following the Closing Date with respect
to any Certificates that are to be delivered through the facilities of DTC
shall include, if the context so permits, actions taken or to be taken with
respect to the interests in such Certificates as reflected on the books and
records of DTC.
4. Offering by the Underwriters.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale to the public, including, without limitation, in and from
the State of New York, as set forth in the Prospectus Supplement. It is further
understood that the Company, in reliance upon Policy Statement 105 has not and
will not file the offering pursuant to Section 352-e of the General Business
Law of the State of New York with respect to the Certificates which are not
"mortgage related securities" as defined in the 1934 Act (as
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defined below). Accordingly, each Underwriter covenants and agrees with the
Company that sales of such Certificates made by such Underwriter in the State
of New York will be made only to institutional investors within the meaning of
Policy Statement 105.
(b) The Underwriters may prepare and provide (and acknowledge that
they have prepared and provided) to prospective investors certain Computational
Materials or ABS Term Sheets in connection with the offering of the
Certificates. In this regard, each Underwriter represents and warrants to, and
covenants with, the Company that:
(i) Such Underwriter has complied and shall comply with the
requirements of the no-action letter, dated May 20, 1994, issued by the
Commission to ▇▇▇▇▇▇, Peabody Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
Co. Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in response
to the request of the Public Securities Association, dated May 27, 1994
(collectively, the "▇▇▇▇▇▇/PSA Letter"), and the requirements of the
no-action letter, dated February 17, 1995, issued by the Commission to the
Public Securities Association (the "PSA Letter" and, together with the
▇▇▇▇▇▇/PSA Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials", "ABS Term
Sheets," "Structural Term Sheets" and "Collateral Term Sheets" shall have
the respective meanings given such terms in the No-Action Letters.
(iii) All Computational Materials and ABS Term Sheets in respect
of the Certificates provided to prospective investors by such Underwriter
have borne or shall bear, as the case may be, a legend in a form
previously approved by the Company or its counsel.
(iv) Such Underwriter has not distributed and shall not
distribute any such Computational Materials or ABS Term Sheets in respect
of the Certificates, the forms and methodology of which are not in
accordance with this Agreement. Such Underwriter has provided or shall
provide, as the case may be, to the Company, for filing pursuant to a
Current Report on Form 8-K as provided in Section 5(h) hereof, copies (in
such format as required by the Company) of all such Computational
Materials and ABS Term Sheets. Such Underwriter may provide copies of the
foregoing in a consolidated or aggregated form including all information
required to be filed. All Computational Materials and ABS Term Sheets
described in this paragraph (b)(iv) must be or must have been, as
applicable, provided to the Company in paper or electronic format suitable
for filing with the Commission not later than 10:00 a.m. (New York City
time) at least one business day before filing thereof is or was, as the
case may be, required pursuant to the terms of the No-Action Letters.
(v) All information included in any Computational Materials and
ABS Term Sheets in respect of the Certificates provided to prospective
investors by such Underwriter has been or shall be generated based on
substantially the same methodology and assumptions as are used to
generate the information in the Prospectus Supplement as set forth
therein; provided that such Computational Materials and ABS Term Sheets
may include information based on alternative methodologies or assumptions
if specified therein. If any Computational Materials or ABS Term Sheets
in respect of the Certificates provided to prospective investors by such
Underwriter were based on assumptions with respect to the Mortgage Pool
that differ from the Prospectus Supplement in any material respect or on
Certificate structuring assumptions (except in the case of Computational
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Materials when the different structuring terms were hypothesized and so
described) that were revised in any material respect prior to the
printing of the Prospectus, then to the extent that it has not already
done so, such Underwriter shall immediately inform the Company and, upon
the direction of the Company, and if not corrected by the Prospectus,
shall prepare revised Computational Materials and/or ABS Term Sheets, as
the case may be, based on information regarding the Mortgage Pool and
Certificate structuring assumptions consistent with the Prospectus,
circulate such revised Computational Materials and ABS Term Sheets to all
recipients of the preliminary versions thereof, and include such revised
Computational Materials and ABS Term Sheets (marked, "as revised") in the
materials delivered to the Company pursuant to paragraph (b)(iv) above.
(vi) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined to
contain any material error or omission; provided that the Company will
file Computational Materials or ABS Term Sheets that contain a material
error or, when read together with the Prospectus, a material omission, if
clearly marked (A) "superseded by materials dated [specify date]" and
accompanied by corrected Computational Materials or ABS Term Sheets that
are marked "material previously dated [specify date], as corrected", or
(B) if the material error or omission is to be corrected in the
Prospectus, "superseded by materials contained in the Prospectus." If,
within the period during which the Prospectus relating to the Certificates
is required to be delivered under the 1933 Act and the rules and
regulations of the Commission thereunder, any Computational Materials or
ABS Term Sheets in respect of the Certificates provided to prospective
investors by such Underwriter are determined, in the reasonable judgment
of the Company or such Underwriter, to contain a material error or, when
read together with the Prospectus, a material omission, then (unless the
material error or omission was corrected in the Prospectus) such
Underwriter shall prepare, or cause the preparation of, a corrected
version of such Computational Materials or ABS Term Sheets, shall
circulate such corrected Computational Materials or ABS Term Sheets to all
recipients of the prior versions thereof, and shall deliver copies of such
corrected Computational Materials or ABS Term Sheets (marked, "as
corrected") to the Company for filing with the Commission in a subsequent
Current Report on Form 8-K submission (subject to the Company's obtaining
an accountant's comfort letter in respect of such corrected Computational
Materials and ABS Term Sheets, which shall be at the expense of such
Underwriter).
(vii) Such Underwriter has not (and, as of the Closing Date,
will not have) provided any prospective investors with any information in
written or electronic form in connection with the offering of the
Certificates except for (A) the Prospectus and any amendments or
supplements thereto, (B) any Preliminary Prospectus and (C) such
Computational Materials and/or ABS Term Sheets as either have been
provided to the Company pursuant to or as contemplated by paragraph
(b)(iv) above or are not required to be filed with the Commission in
accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by either
Underwriter to the Company of all Computational Materials and ABS Term
Sheets in respect of the Certificates required to be delivered in
accordance with or as contemplated by paragraph (b)(iv) above, the Company
shall have the right to delay the release of the Prospectus to investors
or to the Underwriters, to delay the Closing Date and to take other
appropriate actions in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 5(h) hereof to
file the Computational Materials and ABS Term Sheets by the time specified
therein.
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(ix) Computational Materials and ABS Term Sheets distributed by
such Underwriter through electronic means have been so distributed in
accordance with SEC Release No. 33-7233.
(c) Each Underwriter represents and agrees that: (i) it has not sold
or offered the Certificates in the United Kingdom, and it has not delivered or
communicated the Prospectus or any other invitation or inducement to buy or
participate in the Certificates in the United Kingdom, except to persons who
(A) have professional experience of participating in unregulated collective
investment schemes and of matters relating to investments falling within both
Article 14(5) of the Financial Services Markets ▇▇▇ ▇▇▇▇ (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 ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation to the
Certificates in, from or otherwise involving the United Kingdom.
5. Additional Covenants of the Company. The Company covenants with
the respective Underwriters that:
(a) During such period following the date of this Agreement in which
any Prospectus is required to be delivered under the 1933 Act (the "Prospectus
Delivery Period"), the Company will deliver to each Underwriter such number of
copies of each Prospectus as such Underwriter may reasonably request.
(b) During the Prospectus Delivery Period, the Company will file
promptly with the Commission any amendment or supplement to the Registration
Statement or any Prospectus relating to or covering the Certificates that may,
in the judgment of the Company or the Underwriters, be required by the 1933 Act
and the rules and regulations of the Commission thereunder or requested by the
Commission and approved by the Underwriters.
(c) Prior to filing with the Commission during the Prospectus
Delivery Period any amendment or supplement to the Registration Statement
relating to or covering the Certificates (other than an amendment by reason of
Rule 429 under the ▇▇▇▇ ▇▇▇) or any amendment or supplement to the Prospectus,
the Company will furnish a copy thereof to the Underwriters, and the Company
will not file any such amendment or supplement to which the Underwriters shall
reasonably object.
(d) The Company will advise the Underwriters promptly (i) when,
during the Prospectus Delivery Period, any post-effective amendment to the
Registration Statement relating to or covering the Certificates (other than any
amendment by reason of Rule 429 under the ▇▇▇▇ ▇▇▇) 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
-9-
in or addition to the Registration Statement or any Prospectus in order to make
any material statement therein not misleading.
(e) If, during the Prospectus Delivery Period, the Commission issues
an order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the lifting of that order
at the earliest possible time.
(f) The Company will endeavor to qualify the Certificates for offer
and sale under the securities laws of such jurisdictions as the Underwriters
may reasonably request; provided, however, that this Section 5(f) shall not
obligate the Company to file any general consent to service of process or to
qualify to do business in any jurisdiction or as a dealer in securities in any
jurisdiction in which it is not so qualified.
(g) The costs and expenses associated with the transactions
contemplated by this Agreement shall be payable by UBSWREI and LBHI, as and to
the extent provided in the respective Mortgage Loan Purchase Agreements.
(h) The Company will file any documents and any amendments thereof as
may be required to be filed by it pursuant to the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and
regulations of the Commission under the 1933 Act and the 1934 Act, including,
but not limited to, the filing with the Commission pursuant to a Current Report
on Form 8-K, subject to Section 4 hereof, of all Computational Materials and
ABS Term Sheets in respect of the Certificates furnished by either Underwriter
and identified by it as such. Subject to compliance by each Underwriter with
Section 4(b)(iv) 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 the representations and warranties on
the part of the Company contained herein as of the date hereof, as of the date
of the effectiveness of any amendment to the Registration Statement filed prior
to the Closing Date, as of the date the Prospectus Supplement or any supplement
thereto is filed with the Commission prior to the Closing Date and as of the
Closing Date, to the accuracy of the statements of the Company made in any
certificates delivered pursuant to the provisions hereof, to the performance in
all material respects by the Company of its obligations hereunder and to
satisfaction, as of the Closing Date, of the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or, to
the Company's knowledge, threatened; and the Prospectus Supplement shall have
been filed or transmitted for filing with the Commission in accordance with
Rule 424 under the ▇▇▇▇ ▇▇▇.
(b) The Company shall have delivered to the Underwriters a
certificate of the Company, signed by an authorized officer of the Company and
dated the Closing Date, to the effect that: (i) the representations and
warranties of the Company in this Agreement are true and correct in all
material respects at and as of the Closing Date with the same effect as if made
on the Closing Date; and (ii) the Company has
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in all material respects complied with all the agreements and satisfied all the
conditions on its part that are required hereby to be performed or satisfied at
or prior to the Closing Date.
(c) The Underwriters shall have received with respect to the Company
a good standing certificate from the Secretary of State of the State of
Delaware, dated not earlier than ten (10) days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an
assistant secretary of the Company, in his individual capacity, a certificate,
dated the Closing Date, to the effect that: (i) each individual who, as an
officer or representative of the Company, signed this Agreement, the Pooling
and Servicing Agreement, any of the Mortgage Loan Purchase Agreements or any
other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, in the Pooling and
Servicing Agreement or in any of the Mortgage Loan Purchase Agreements, was at
the respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (ii) no event (including,
without limitation, any act or omission on the part of the Company) has
occurred since the date of the good standing certificate referred to in
paragraph (c) above which has affected the good standing of the Company under
the laws of the State of Delaware. Such certificate shall be accompanied by
true and complete copies (certified as such by the Secretary or an assistant
secretary of the Company) of (i) the certificate of incorporation and by-laws
of the Company, as in effect on the Closing Date, and (ii) the resolutions of
the Company and any required shareholder consent relating to the transactions
contemplated in this Agreement, the Pooling and Servicing Agreement and the
Mortgage Loan Purchase Agreements.
(e) The Underwriters shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇ LLP, special counsel for the Company, a favorable opinion, dated the
Closing Date, substantially in the form attached hereto as Exhibit A-1.
(f) The Underwriters shall have received copies of all legal opinion
letters delivered by Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the
Company, to the Rating Agencies in connection with the issuance of the
Certificates, accompanied in each case by a letter signed by Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP stating that the Underwriters may rely on such opinion letter
as if it were addressed to them as of date thereof.
(g) The Underwriters shall have received from in-house counsel for
the Company, a favorable opinion, dated the Closing Date, substantially in the
form attached hereto as Exhibit A-2.
(h) The Underwriters shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇ 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
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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 UBSWREI, UBSPF and UBS
(USA) in connection with the sale by UBSWREI of the UBS Mortgage Loans to the
Company, pursuant to the UBS Mortgage Loan Purchase Agreement. The Underwriters
shall be entitled to rely on each such certificate executed and delivered by
UBSWREI, UBS (USA) or any of their respective officers and representatives, to
the same extent that the Company may so rely, and each such opinion addressed
to the Company shall also be addressed to the Underwriters.
(l) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by 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 LUBS,
LBHI or any of their respective officers and representatives, to the same
extent that the Company may so rely, and each such opinion addressed to the
Company shall also be addressed to the Underwriters.
-12-
(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
UBSWREI or any of its affiliates to perform in all material respects any
agreement in, or comply in all material respects with any provision of, 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 UBSWREI or any of its affiliates
to perform in all material respects any agreement in, or comply in all material
respects with any provision of, the UBS Mortgage Loan Purchase Agreement,
UBSWREI will reimburse the Underwriters upon demand, for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by any of them in connection with the proposed purchase and
sale of the Certificates.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls 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;
-13-
(ii) any and all losses, liabilities, claims, damages, costs and
expenses whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission, contemplated by clause (i) above, if
such settlement is effected with the written consent of the Company or as
otherwise provided in Section 8(c) hereof; and
(iii) any and all expenses whatsoever, as incurred (including,
without limitation, the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing for or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, contemplated by clause (i) above, to
the extent that any such expense is not paid under clause (i) or (ii)
above;
provided, however, that the Company shall not be liable under the indemnity
agreement in this subsection (a) for any such loss, liability, claim, damage,
cost or expense that arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission contemplated by clause (i)
above that was made in reliance upon and in conformity with written or
electronic information (as specified in Section 8(b) below) furnished to the
Company by either Underwriter expressly for use in the Registration Statement
(or any amendment thereto) or in the Prospectus or any Preliminary Prospectus
(or any amendment or supplement thereto); and provided, further, that the
Company shall not be liable under the indemnity agreement in this subsection
(a) for any such loss, liability, claim, damage, cost or expense that arises
out of or is based upon any untrue statement or omission or alleged untrue
statement or omission contemplated by clause (i) above that was made in any
Computational Materials or ABS Term Sheets (or any amendments or supplements
thereto) in respect of the Certificates delivered to prospective investors by
one or more of the Underwriters and furnished to the Company by any of the
Underwriters pursuant to Section 4(b)(iv) hereof and made a part of the
Registration Statement or incorporated by reference in the Prospectus or any
Preliminary Prospectus; and provided, further, that the Company shall not be
liable under the indemnity agreement in this subsection (a) for any such loss,
liability, claim, damage, cost or expense that arises out of or is based upon
(A) any untrue statement or omission or alleged untrue statement or omission
contemplated by clause (i) above that was made in the Prospectus or any
Preliminary Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with (1) the Master Tape (it being acknowledged that
the Master Tape was used to prepare the Prospectus Supplement and any
Preliminary Prospectus Supplement, including, without limitation, Annex ▇-▇,
▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇, Annex ▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇ (▇▇ any) and
Annex B thereto and the accompanying diskette), (2) the representations and
warranties of any Mortgage Loan Seller (or LBHI as an additional party to the
LUBS Mortgage Loan Purchase Agreement) set forth in or made pursuant to the
related Mortgage Loan Purchase Agreement or (3) any other information
concerning the Mortgage Loan Seller Matters furnished to the Company or the
Underwriters by any Mortgage Loan Seller (or LBHI as an additional party to
the LUBS Mortgage Loan Purchase Agreement), or (B) any untrue statement or
omission or alleged untrue statement or omission contemplated by clause (i)
above that was made in the Prospectus Supplement or any Preliminary Prospectus
Supplement (or any amendment or supplement thereto) concerning the Mortgage
Loan Seller Matters under the headings "Summary of Prospectus Supplement--The
Underlying Mortgage Loans and the Mortgaged Real Properties", "Risk
Factors--Risks Related to the Underlying Mortgage Loans" and "Description of
the Mortgage Pool" therein or on Annex ▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇, Annex ▇-▇,
▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇
-14-
and/or Annex B thereto or on the accompanying diskette, except to the extent
that such untrue statement or omission or alleged untrue statement or omission
contemplated by clause (i) above under such headings, on such annexes or on
such diskette was made as a result of an error in the manipulation of, or any
calculations based upon, or any aggregation of, such information regarding the
Mortgage Loan Seller Matters; and, provided, further, that the Company shall
not be liable to either Underwriter or any person controlling such Underwriter
under the indemnity agreement in this subsection (a) for any such loss,
liability, claim, damage, cost or expense that arises out of or is based upon
any untrue statement or omission contemplated by clause (i) above that was made
in any Preliminary Prospectus to the extent that such losses, liabilities,
claims, damages, costs or expenses result from the fact that such Underwriter
sold Certificates to a person as to whom it shall be established that there was
not sent or given, at or prior to the confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated therein by reference), such untrue
statement or omission had been corrected in the Prospectus and a sufficient
number of copies of the Prospectus had been provided by the Company to such
Underwriter prior to the confirmation of such sale.
(b) The respective Underwriters, severally and not jointly, each
agrees to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all losses, liabilities, claims,
damages, costs and expenses described in clauses (i), (ii) and (iii) of Section
8(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Prospectus or
any Preliminary Prospectus (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with written or electronic information relating
to such Underwriter furnished to the Company by such Underwriter, or by the
other Underwriter on its behalf, expressly for use in the Prospectus or such
Preliminary Prospectus (or any amendment or supplement thereto), or made in any
Computational Materials or ABS Term Sheets in respect of the Certificates that
were prepared by such Underwriter and distributed by it or any other party to
prospective investors; provided, however, that such Underwriter shall not be
liable under the indemnity agreement in this subsection (b) for any such loss,
liability, claim, damage, cost or expense that arises out of or is based upon
any untrue statement or omission in any such Computational Materials or ABS
Term Sheets to the extent that such loss, liability, claim, damage or expense
is covered by the indemnity agreement included in Section 1(a) of either
Indemnification Agreement, unless it shall be established that such Underwriter
was notified electronically or in writing of such untrue statement or omission
prior to the time of confirmation of sale to the person that purchased the
Certificates that are the subject of such loss, liability, claim, damage or
expense, or action in respect thereof, and such Underwriter failed to deliver
to such person corrected Computational Materials or ABS Term Sheets (or, if the
superseding or correcting information is contained in the Prospectus, failed to
deliver to such person such Prospectus) prior to confirmation of such sale to
such person. It is hereby acknowledged that (i) the statements set forth in the
first, fourth and fifth sentences of the penultimate paragraph, and the entire
last paragraph, above the emboldened 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
expressly for use in the Prospectus or any Preliminary Prospectus.
-15-
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of the indemnity
agreement in subsection (a) or (b), as applicable, of this Section 8. An
indemnifying party may participate at its own expense in the defense of any
such action and, to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have agreed to the retention
of such counsel, or (ii) the indemnifying party shall not have assumed the
defense of such action, with counsel satisfactory to the indemnified party,
within a reasonable period following the indemnifying party's receiving notice
of such action, or (iii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. In
no event shall the indemnifying party or parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from its or their own counsel to all indemnified parties in connection with any
one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
Notwithstanding anything herein to the contrary, an indemnifying
party shall not be liable under subsection (a) or (b) of this Section 8 for any
settlement or compromise or consent to the entry of any judgment with respect
to any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification could be sought under such subsection (a) or (b), as the
case may be, of this Section 8, effected without its written consent, unless
(i) at any time an indemnified party shall have requested such indemnifying
party to reimburse the indemnified party for fees and expenses of counsel for
which the indemnifying party is obligated under this Section 8, (ii) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (iii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification could be sought under subsection
(a) or (b), as applicable, of this Section 8 (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) The amount paid or payable by an indemnified party as a result of
the losses, liabilities, claims, damages, costs or expenses referred to in this
Section 8 shall be deemed to include any legal fees and disbursements or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim except where the indemnified party is
required to bear such expenses, which expenses the indemnifying party shall pay
as and when incurred, at the request of the indemnified party, to the extent
that it is reasonable to believe that the indemnifying party will be ultimately
-16-
obligated to pay such expenses. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne
by the indemnifying party hereunder, the party which received such payment
shall promptly refund the amount so paid to the party which made such payment.
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity agreements contained in this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or any of the Underwriters, and (iii) acceptance of and payment for any
of the Certificates.
9. Contribution.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8(a) or
Section 8(b) hereof is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, on the one hand, and the Underwriters, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages, costs and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company, on the one hand, or the Underwriters, on the other hand, as incurred,
(i) in such proportions as are appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, from the transactions contemplated by this Agreement, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages, costs and/or expenses, as well as any other relevant equitable
considerations; provided, however, that in no case shall either Underwriter be
responsible under this Section 9(a) for any amount in excess of the fees and/or
underwriting discounts received by such Underwriter in connection with the
underwriting of the Certificates, less any amount previously paid by such
Underwriter in respect of the subject losses, liabilities, claims, damages,
costs and/or expenses. For purposes of the foregoing, the benefits received by
the Company in connection with the transactions contemplated by this Agreement
shall be deemed to be equal to the total gross proceeds from the sale of the
Certificates (before deducting expenses, but excluding fees paid to the
Underwriters) received by the Company, and the benefits received by each
Underwriter in connection with the transactions contemplated by this Agreement
shall be deemed to be equal to the fees and/or underwriting discounts received
by such Underwriter in connection with the underwriting of the Certificates.
The relative fault of the Company, on the one hand, and the Underwriters, on
the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 9(a) were determined by
per capita allocation or by any other method of allocation that does not take
account of the considerations referred to in this Section 9(a).
(b) Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) 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
-17-
controls either Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
remedies provided for in this Section 9 are not exclusive and shall not limit
any rights or remedies that may otherwise be available at law or in equity to
any party entitled to contribution under this Section 9.
(c) The contribution agreements contained in this Section 9 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the
Underwriters, any of their respective directors or officers, or any person
controlling the Company or any of the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
10. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of either Underwriter, or by or on behalf of
the Company, or by or on behalf of any of the controlling persons and officers
and directors referred to in Sections 8 and 9 hereof, and shall survive
delivery of the Certificates to the Underwriters.
11. Termination of Agreement; Survival.
(a) The Underwriters may terminate their obligations under this
Agreement, by notice to the Company, at any time at or prior to the Closing
Date (i) if there has been, since the date of this Agreement or since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
outbreak of hostilities or escalation thereof or other calamity or crisis the
effect of which is such as to make it, in the reasonable judgment of the
Underwriters, impracticable to market the Certificates or to enforce contracts
for the sale of the Certificates, or (iii) if trading generally on the New York
Stock Exchange has been suspended, or if a banking moratorium has been declared
by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 11, such
termination shall be without liability of any party to any other party, except
that the provisions of Section 5(g) hereof regarding the payment of costs and
expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement.
12. Substitution of Underwriters.
(a) If either Underwriter shall fail to take up and pay for the
amount of the Certificates agreed by such Underwriter to be purchased under
this Agreement, upon tender of such Certificates in accordance with the terms
hereof, and the amount of the Certificates not purchased does not aggregate
more than 10% of the total amount of the Certificates set forth in Schedule II
hereof (based on aggregate purchase price), then the remaining Underwriter
shall be obligated to take up and pay for the Certificates that the withdrawing
or defaulting Underwriter agreed but failed to purchase.
-18-
(b) If either Underwriter shall fail to take up and pay for the
amount of the Certificates agreed by such Underwriter to be purchased under
this Agreement (such Underwriter being a "Defaulting Underwriter"), upon tender
of such Certificates in accordance with the terms hereof, and the amount of the
Certificates not purchased aggregates more than 10% of the total amount of the
Certificates set forth in Schedule II hereto (based on aggregate purchase
price), and arrangements satisfactory to the remaining Underwriter and the
Company for the purchase of such Certificates by other persons are not made
within 36 hours thereafter, this Agreement shall terminate. In the event of any
such termination, the Company shall not be under any liability to either
Underwriter (except to the extent provided in Section 5(g), Section 8 and
Section 9 hereof), nor shall the non-Defaulting Underwriter be under any
liability to the Company (except to the extent provided in Sections 8 and 9
hereof). Nothing herein shall be deemed to relieve any Defaulting Underwriter
from any liability it may have to the Company or the other Underwriter by
reason of its failure to take up and pay for Certificates as agreed by such
Defaulting Underwriter.
13. Notices. Any notice by the Company to either Underwriter shall be
sufficient if given in writing or by telegraph addressed to the address for
such Underwriter set forth on Schedule II hereto (or, in the case of either
Underwriter, to such other address as such Underwriter shall designate in
writing to the Company in accordance with this Section 13) and any notice by
either Underwriter to the Company shall be sufficient if given in writing or by
telegraph addressed to the Company at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, 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 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.
-19-
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 WARBURG LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------ --------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President Title: Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
Confirmed and accepted as of the date first above written, solely for purposes
of Sections 5(g) and 7:
UBS WARBURG REAL ESTATE INVESTMENTS INC.
By: /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 ▇▇▇▇▇▇ CAPITAL,
A DIVISION OF ▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
SCHEDULE I
Underwriting Agreement, dated as of March 11, 2003.
Title and Description of the Certificates: LB-UBS Commercial Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through Certificates,
Series 2003-C1, Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-4, Class B, Class C, Class D,
Class E, Class F and Class G Certificates
Cut-off Date: March 11, 2003
Expected Closing Date: March 20, 2003
CERTIFICATES
------------
-----------------------------------------------------------------------------------------------------------------------------
Class A-1 Class A-2 Class A-3 Class A-4 Class B Class C Class D
--------- --------- --------- --------- ------- ------- -------
-----------------------------------------------------------------------------------------------------------------------------
Initial Aggregate
Principal Amount $110,000,000 $180,000,000 $105,000,000 $537,549,000 $25,714,000 $25,713,000 $20,571,000
-----------------------------------------------------------------------------------------------------------------------------
Initial Pass-Through
Rate 2.720% 3.323% 4.095% 4.394% 4.479% 4.499% 4.538%
-----------------------------------------------------------------------------------------------------------------------------
Rating(1) AAA/AAA AAA/AAA AAA/AAA AAA/AAA AA+/AA+ AA/AA AA-/AA-
-----------------------------------------------------------------------------------------------------------------------------
Purchase Price(2) 100.49689% 100.49752% 100.49827% 100.49826% 100.49476% 100.49696% 100.49340%
-----------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------
Class E Class F Class G
------- ------- -------
-------------------------------------------------------------------
Initial Aggregate
Principal Amount $18,856,000 $17,143,000 $18,856,000
-------------------------------------------------------------------
Initial Pass-Through
Rate 4.568% 4.588% 4.647%
-------------------------------------------------------------------
Rating(1) A+/A+ A/A A-/A-
-------------------------------------------------------------------
Purchase Price (2) 100.49675% 100.49900% 100.49784%
-------------------------------------------------------------------
---------------
(1) By Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and Fitch, Inc., respectively.
(2) Expressed as a percentage of the initial aggregate stated
principal amount of each class of Certificates. There shall be added
to the Purchase Price for each class of Certificates accrued interest
at the initial Pass-Through Rate therefor on the initial aggregate
principal amount thereof from the Cut-off Date to but not including
the Closing Date.
SCHEDULE II
Principal Amount
of Relevant Class of
Underwriters (and Addresses) Class Certificates to be Purchased
---------------------------- ----- ----------------------------
▇▇▇▇▇▇ Brothers Inc. A-1 $ 110,000,000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ A-2 $ 180,000,000
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ A-3 $ 105,000,000
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ A-4 $ 537,549,000
B $ 25,714,000
C $ 25,713,000
D $ 20,571,000
E $ 18,856,000
F $ 17,143,000
G $ 18,856,000
UBS Warburg LLC A-1 $ 0
1285 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇ ▇-▇ $ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 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 SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
SPECIAL COUNSEL FOR THE COMPANY
[LETTERHEAD OF SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP]
March 20, 2003
Structured Asset Securities Standard & Poor's Ratings Services,
Corporation II a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. Fitch, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC LaSalle Bank National Association
1285 Avenue of the Americas ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LUBS Inc. Lennar Partners, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: LB-UBS Commercial Mortgage Trust 2003-C1
Commercial Mortgage Pass-Through Certificates, Series 2003-C1
-------------------------------------------------------------
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 ▇▇▇▇▇▇ 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 that certain Mortgage Loan Purchase Agreement, dated as of March
11, 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 that certain Mortgage Loan Purchase Agreement, dated as of March
11, 2003 (the "LBHI Mortgage Loan Purchase Agreement"), between LUBS as
seller, the Depositor as purchaser and LBHI as an additional party;
(iii) the sale by UBS Warburg Real Estate Investments Inc. ("UBSWREI"
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 "UBSWREI Mortgage Loans" and,
together with the LBHI Mortgage Loans and the LUBS Mortgage Loans, the
"Mortgage Loans"), pursuant to that certain Mortgage Loan Purchase Agreement,
dated as of March 11, 2003 (the "UBSWREI 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 UBSWREI, 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 $1,371,385,381 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2003-C1 (the
"Certificates"), consisting of multiple classes designated Class A-1, Class
A-2, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class X-CL, Class X-CP, Class A-1b, 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, Class R-LR and Class V, pursuant to that certain Pooling and
Servicing Agreement, dated as of March 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 and UBS
Warburg LLC ("UBSW" and, together with LBI, in such capacity, the
"Underwriters"), of the Class ▇-▇, ▇▇▇▇▇ ▇-▇, 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 that certain Underwriting
Agreement, dated as of March 11, 2003 (the "Underwriting Agreement"), between
the Depositor and the Underwriters, and acknowledged, as to certain sections,
by UBSWREI and LBHI;
(vii) the sale by the Depositor, and the purchase by LBI and UBSW
(together in such capacity, the "Initial Purchasers"), of the Class X-CL,
Class X-CP, Class A-1b, 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 R-I, Class
R-II, Class R-III, Class R-LR and Class V Certificates, pursuant to that
certain Certificate Purchase Agreement, dated as of March 11, 2003 (the
"Certificate Purchase Agreement"), between the Depositor and the Initial
Purchasers;
(viii) the negotiation and execution of that certain LBHI
Indemnification Agreement, dated as of March 11, 2003 (the "LBHI
Indemnification Agreement"), between LBHI, the Depositor and the
Underwriters/Initial Purchasers; and
(ix) the negotiation and execution of that certain UBS
Indemnification Agreement, dated as of March 11, 2003 (the "UBS
Indemnification Agreement" and, together with the LBHI Indemnification
Agreement, the "Indemnification Agreements"), between UBSWREI, UBS (USA), Inc.
("UBS (USA)"), 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 and the
Underwriters/Initial Purchasers, we have acted as special counsel to those
parties in connection with the preparation or review of the following
documents and all exhibits thereto (collectively with the Agreements, the
"Relevant Documents"):
(a) the Prospectus Supplement, dated March 11, 2003 (the
"Prospectus Supplement"), specifically relating to the Publicly Offered
Certificates and the Trust;
(b) the Prospectus, dated March 4, 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 March 11, 2003 (the
"Memorandum") specifically relating to the Privately Offered Certificates
and the Trust; and
(d) the registration statement on Form S-3 (No. 333-100864)
(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) except
as expressly addressed in opinion paragraph 5 below, 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 the Agreements by
all parties thereto, (ix) except as expressly addressed in opinion paragraph 6
below, 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.
Our opinions set forth below with respect to the enforceability of
any agreement or any particular right or obligation under any agreement are
subject to: (1) general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing and the doctrine of
estoppel; (2) the possible unavailability of specific performance and
injunctive relief, regardless of whether considered in a proceeding in equity
or at law; (3) the effect of certain laws, rules, regulations and judicial and
other decisions upon the enforceability of (a) any provision that purports to
waive (i) the application of any federal, state or local statute, rule or
regulation, (ii) the application of any general principles of equity or (iii)
the obligation of diligence, (b) any provision that purports to grant any
remedies that would not otherwise be available at law, to restrict access to
any particular legal or equitable remedies, to make any rights or remedies
cumulative and enforceable in addition to any other right or remedy, to
provide that the election of any particular remedy does not preclude recourse
to one or more other remedies, to provide that the failure to exercise or the
delay in exercising rights or remedies will not operate as a waiver of such
rights or remedies, to impose penalties or forfeitures, or to provide for
set-off in the absence of mutuality between the parties, (c) any provision
that purports to release, exculpate or exempt a party from, or indemnify a
party for, liability for any act or omission on its part that constitutes
negligence, recklessness or willful or unlawful conduct, (d) any provision
that purports to govern matters of civil procedure, including any such
provision that purports to establish evidentiary standards, to waive
objections to venue or forum, to confer subject matter jurisdiction on any
court that would not otherwise have such jurisdiction or to waive any right to
a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not in writing and executed by all
relevant parties, to sever any provision of any agreement, to appoint any
person or entity as the attorney-in-fact of any other person or entity or to
provide that any agreement or any particular provision thereof is to be
governed by or construed in accordance with the laws of any jurisdiction other
than the State of New York; (4) bankruptcy, insolvency, receivership,
reorganization, liquidation, voidable preference, fraudulent conveyance and
transfer, moratorium and other similar laws affecting the rights of creditors
or secured parties generally; and (5) public policy considerations underlying
the securities laws, to the extent that such public policy considerations
limit the enforceability of any provision of any agreement that purports or is
construed to provide indemnification with respect to securities law
violations.
When used in this opinion, the term "knowledge" or words of similar
import mean the actual knowledge of facts or other information of the Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP attorneys currently practicing law with this firm who
have been actively involved in the above-described representation of the
Depositor, LUBS, LBHI and/or the Underwriters/Initial Purchasers. 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 execution, delivery and performance by the Depositor of the
Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement, the
Underwriting Agreement and the Certificate Purchase Agreement do not conflict
with, or result in a violation of, any federal or State of New York statute,
or any rule or regulation promulgated thereunder or pursuant thereto, which
statute, rule or regulation is applicable to the Depositor (except for any
such conflict or violation as would not have a material adverse effect on the
performance by the Depositor of its obligations under those Agreements).
6. The Mortgage Loan Purchase Agreements, the Pooling and Servicing
Agreement, the Underwriting Agreement and the Certificate Purchase Agreement
are each a valid, legal and binding agreement of the Depositor, enforceable
against the Depositor in accordance with its terms.
7. The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for in accordance with the Underwriting Agreement or the
Certificate Purchase Agreement, as applicable, will be duly and validly issued
and outstanding and entitled to the benefits of the Pooling and Servicing
Agreement.
8. No consent, approval, authorization or order of any federal or
State of New York court, agency or other governmental body is required for the
consummation by the Depositor of the transactions contemplated by the terms of
the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement,
the Underwriting Agreement and the Certificate Purchase Agreement, except (a)
such as have been obtained and (b) such as may be required under state
securities laws or the "blue sky" laws of any jurisdiction in connection with
the purchase and the offer and sale of Offered Certificates by the
Underwriters/Initial Purchasers, as to which we express no opinion.
9. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
10. The Trust is not required to be registered under the Investment
Company Act of 1940, as amended.
11. 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
describe certain matters of federal law or legal conclusions with respect
thereto, while not purporting to discuss 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.
12. The statements set forth in the Prospectus Supplement under the
headings "Description of the Offered Certificates" and "Servicing of the
Underlying Mortgage Loans", in the Basic Prospectus under the headings
"Description of the Certificates" and "Description of the Governing Documents"
and in the Memorandum under the headings "Summary of Offering
Memorandum--Description of the Privately Offered Certificates" and "Transfer
and Exchange; Restrictions" insofar as such statements purport to summarize
certain material provisions of the Offered Certificates and the Pooling and
Servicing Agreement, are accurate in all material respects.
13. As described in the Prospectus and Memorandum, (a) each Loan
REMIC will qualify as a REMIC within the meaning of the REMIC Provisions, and
the related Loan REMIC Regular Interest will be the "regular interest" and the
Class R-LR Certificates will evidence the sole class of "residual interests"
in each Loan REMIC, (b) REMIC I will qualify as a REMIC within the meaning of
the REMIC Provisions, and the REMIC I Regular Interests will be "regular
interests" and the Class R-I Certificates will evidence the sole class of
"residual interests" in REMIC I, (c) REMIC II will qualify as a REMIC within
the meaning of the REMIC Provisions, and the REMIC II Regular Interests will
be "regular interests" and the Class R-II Certificates will evidence the sole
class of "residual interests" in REMIC II, and (d) REMIC III will qualify as a
REMIC within the meaning of the REMIC Provisions, and the Regular Interest
Certificates will evidence "regular interests" and the Class R-III
Certificates will evidence the sole class of "residual interests" in REMIC
III.
14. The portion of the Trust Fund consisting of the Grantor Trust
Assets will be classified as a grantor trust under subpart E, part I of
subchapter J of the Internal Revenue Code of 1986, as amended.
15. 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 UBSW, the
offer and sale of the Privately Offered Certificates by the Depositor to LBI
and UBSW, and by LBI and UBSW 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 Securities Act of 1933, as amended.
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 without our prior consent.
Very truly yours,
EXHIBIT A-2
FORM OF OPINION OF IN-HOUSE COUNSEL FOR THE COMPANY
[LETTERHEAD OF ▇▇▇▇▇▇ BROTHERS]
March 20, 2003
Structured Asset Securities Standard & Poor's Ratings Services,
Corporation II a division of The ▇▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC Fitch, Inc.
1285 Avenue of the Americas ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Holdings Inc., Lennar Partners, Inc.
d/b/a ▇▇▇▇▇▇ Capital, a division of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ Brothers Holdings Inc. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LUBS Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: LB-UBS Commercial Mortgage Trust 2003-C1
Commercial Mortgage Pass-Through Certificates, Series 2003-C1
-------------------------------------------------------------
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 Pooling
and Servicing Agreement dated as of March 11, 2003 (the "Pooling and Servicing
Agreement"), 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 March
11, 2003, by and between SASCO II, LUBS Inc. ("LUBS") and ▇▇▇▇▇▇ Brothers
Holdings Inc., doing business as ▇▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇ Brothers
Holdings Inc. ("LBHI"); (iii) the LBHI Mortgage Loan Purchase Agreement dated
as of March 11, 2003, by and between SASCO II and LBHI; (iv) the UBS Mortgage
Loan Purchase Agreement dated as of March 11, 2003, by and between SASCO II,
UBS Warburg Real Estate Investments, Inc. ("UBSWREI"), and UBS Principal
Finance LLC, as an additional party; (v) the Underwriting Agreement dated as
of ▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇ and UBS Warburg LLC ("UBSW")
and
acknowledged as to certain sections by UBSWREI and LUBS; and (vi) the
Certificate Purchase Agreement dated as of ▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇ and UBSW.
In connection with this opinion, I have examined, or have had
examined on my behalf, an executed copy of each of the Agreements,
certificates and statements of public officials and officers of SASCO II and
such other agreements, instruments, documents and records as I have deemed
necessary or appropriate for the purposes of this opinion.
Based on the foregoing but subject to the assumptions, exceptions,
qualifications and limitations hereinafter expressed, I am of the opinion
that:
1. SASCO II is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware,
with all requisite corporate power to enter into the Agreements.
2. Each of the Agreements has been duly authorized, executed
and delivered by SASCO II.
3. The execution, delivery and performance of the Agreements by
SASCO II, (i) to my knowledge, do not and will not result in a material
breach or violation of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to me to which SASCO II is a party,
(ii) do not contravene its certificate of incorporation or by-laws, and
(iii) to my knowledge, do not contravene any order of any court or
governmental agency that names SASCO II and is specifically directed to
its property (in each case, except for such breaches, violations,
defaults or contraventions as would not have a material adverse effect on
the ability of SASCO II to perform its obligations under the Agreements).
The foregoing opinions are subject to the following assumptions,
exceptions, qualifications and limitations:
A. I am a member of the Bar of the State of New York and render
no opinion as to the laws of any jurisdiction other than the laws of the
State of New York, the General Corporation Law of the State of Delaware
and the federal laws of the United States of America.
B. My opinions are limited to the present laws and to the facts
as they presently exist. I assume no obligation to revise or supplement
this opinion should the present laws of any jurisdiction referred to in
paragraph A. above be changed by legislative action, judicial decision or
otherwise.
C. I have assumed with your permission (i) the genuineness of
all signatures by each party other than SASCO II, (ii) the legal capacity
of all natural persons signing or delivering any instrument, (iii) the
authenticity of documents submitted to me as originals and the conformity
with the authentic original documents of all documents submitted to me as
copies, and (iv) the due execution and delivery, pursuant to due
authorization, of all documents by each party other than SASCO II.
D. I have relied on originals or copies, certified or otherwise
identified to my satisfaction, of the certificate of incorporation and
by-laws of SASCO II, records of proceedings
taken by SASCO II, and other corporate documents and records of SASCO II,
and have made such other investigations as I have deemed relevant or
necessary for the purpose of this opinion. I have relied, without
independent investigation, as to factual matters on the representations
and warranties contained in the Agreements and on certificates of public
officials and/or officers and other representatives of SASCO II.
This letter is rendered to you in connection with the
Agreements and the transactions related thereto and may not be relied upon by
any other person or by you in any other context or for any other purpose. This
letter may not be quoted in whole or in part, nor may copies thereof be
furnished or delivered to any other person, without my prior written consent.
The foregoing opinions are given on the express
understanding that the undersigned is an officer of ▇▇▇▇▇▇ Brothers Inc. and
shall in no event incur any personal liability in connection with the said
opinion.
Very truly yours,
EXHIBIT A-3
FORM OF LETTER TO BE DELIVERED BY
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
SPECIAL COUNSEL TO THE COMPANY AND COUNSEL TO THE UNDERWRITERS
REGARDING THE DISCLOSURE IN THE REGISTRATION STATEMENT
AND PROSPECTUS
[LETTERHEAD OF SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP]
March 20, 2003
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: LB-UBS Commercial Mortgage Trust 2003-C1
Commercial Mortgage Pass-Through Certificates, Series 2003-C1
-------------------------------------------------------------
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 ▇▇▇▇▇▇ 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 that certain Mortgage Loan Purchase Agreement, dated
as of March 11, 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 that certain Mortgage Loan Purchase Agreement, dated
as of March 11, 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 Warburg Real Estate Investments Inc.
("UBSWREI" 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 "UBSWREI Mortgage Loans"
and, together with the LBHI Mortgage Loans and the LUBS Mortgage Loans,
the "Mortgage Loans"), pursuant to that certain Mortgage Loan Purchase
Agreement, dated as of March 11, 2003 (the "UBSWREI 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 UBSWREI, 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 $1,371,385,381 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2003-C1 (the
"Certificates"), consisting of multiple classes designated Class A-1,
Class A-2, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class X-CL, Class X-CP, Class A-1b, 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, Class R-LR and Class V, pursuant to that certain
Pooling and Servicing Agreement, dated as of March 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 and UBS
Warburg LLC (together, the "Underwriters"), of the Class ▇-▇, ▇▇▇▇▇ ▇-▇,
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 that certain Underwriting Agreement, dated as of March 11,
2003 (the "Underwriting Agreement"), between the Depositor and the
Underwriters, and acknowledged, as to certain sections, by UBSWREI and
LBHI;
(vii) the negotiation and execution of that certain LBHI
Indemnification Agreement, dated as of March 11, 2003 (the "LBHI
Indemnification Agreement"), between LBHI, the Depositor and the
Underwriters; and
(viii) the negotiation and execution of that certain UBS
Indemnification Agreement, dated as of March 11, 2003 (the "UBS
Indemnification Agreement" and, together with the LBHI Indemnification
Agreement, the "Indemnification Agreements"), between UBSWREI, UBS (USA),
Inc., the Depositor and the Underwriters.
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 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 March 11, 2003 (the
"Prospectus Supplement"), specifically relating to the Publicly Offered
Certificates and the Trust;
(b) the Prospectus, dated March 4, 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. 333-100864)
(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 Loans described in the
Prospectus Supplement as the "Stonebriar Centre Mortgage Loan" and the
"▇▇▇▇▇▇▇ Tower 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,
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 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
description of the Mortgage Loans identified therein as the "Pennmark Mortgage
Loan" or the "▇▇▇▇▇▇▇▇▇▇▇▇ Mortgage Loan" and/or the description of the
obligors under, and the Mortgaged Properties relating to, the foregoing two
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 Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ 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 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,