EXECUTION COPY
LB-UBS COMMERCIAL MORTGAGE TRUST 2001-C7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-C7
UNDERWRITING AGREEMENT
As of December 5, 2001
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Structured Asset Securities Corporation, a Delaware corporation (the
"Company"), proposes to cause the issuance of, and to sell to ▇▇▇▇▇▇ Brothers
Inc. ("▇▇▇▇▇▇"), UBS Warburg LLC ("UBSW"; and, together with ▇▇▇▇▇▇, the "Lead
Underwriters") and Credit Suisse First Boston Corporation ("CSFB"; and,
collectively with ▇▇▇▇▇▇ and UBSW, 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"). The other Mortgage
Loans (the "Holdings Mortgage Loans") will be acquired by the Company from
▇▇▇▇▇▇ Brothers Holdings Inc., doing business as ▇▇▇▇▇▇ Capital, a division of
▇▇▇▇▇▇ Brothers Holdings Inc. ("Holdings" and, together with UBSWREI, the
"Mortgage Loan Sellers"), pursuant to a mortgage loan purchase agreement dated
as of the date hereof (the "Holdings Mortgage Loan Purchase Agreement"; and,
together with the UBS Mortgage Loan Purchase Agreement, the "Mortgage Loan
Purchase Agreements"), between the Company and Holdings. In connection with the
sale of the UBS Mortgage Loans by UBSWREI to the Company, 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 of the Holdings Mortgage Loans by Holdings to the
Company, Holdings, the Company and the Underwriters also entered into an
indemnification agreement dated as of the date hereof (the "Holdings
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 December 11, 2001 (the "Pooling and Servicing Agreement"), among
the Company as depositor, LaSalle Bank, National Association as trustee (the
"Trustee"), First Union National Bank as master servicer (the "Master
Servicer"), Lend Lease Asset Management, L.P. 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. 333-58562) 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
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amendment or supplement to any such document filed with the Commission after the
date as of which this representation is being made) will comply, as to form in
all material respects with the requirements of the 1933 Act and the rules and
regulations of the Commission thereunder; and the Registration Statement and the
Prospectus do not, and (in the case of any amendment or supplement to any such
document filed with the Commission after the date as of which this
representation is being made) will not, contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that the Company makes no representation or warranty as to (i) information
contained in or omitted from the Registration Statement or the Prospectus, or
any amendment or supplement thereto, in reliance upon and in conformity with
written or electronic information 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 ▇-▇, ▇▇▇▇▇ ▇-▇,
▇▇▇▇▇ ▇-▇ 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 either Mortgage
Loan Seller 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 either Mortgage Loan
Seller, (iii) the information regarding the Mortgage Loan Seller Matters
contained in or omitted from the Prospectus Supplement, or any amendment or
supplement thereto, under the headings "Summary of Prospectus Supplement--The
Underlying Mortgage Loans and the Mortgaged Real Properties", "Risk
Factors--Risks Related to The Underlying Mortgage Loans" and "Description of the
Mortgage Pool" or on Annex ▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇ 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 December 5, 2001, 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
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amendment to the Registration Statement becomes effective, as of the date on
which any supplement to the Prospectus Supplement is filed with the Commission,
and as of the Closing Date, there has not and will not have been (i) any request
by the Commission for any further amendment to the Registration Statement or the
Prospectus or for any additional information, (ii) any issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threat of any proceeding for that purpose or
(iii) any notification with respect to the suspension of the qualification of
the Certificates for sale in any jurisdiction or any initiation or threat of any
proceeding for such purpose.
(e) This Agreement has been duly authorized, executed and delivered by the
Company, and the Pooling and Servicing Agreement and the respective Mortgage
Loan Purchase Agreements, when executed and delivered as contemplated hereby and
thereby, will have been duly authorized, executed and delivered by the Company;
and, assuming due authorization, execution and delivery hereof and thereof by
the other parties hereto and thereto, this Agreement constitutes, and the
Pooling and Servicing Agreement and the respective Mortgage Loan Purchase
Agreements, when so executed and delivered will constitute, legal, valid and
binding agreements of the Company, enforceable against the Company in accordance
with their respective terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of the rights of creditors generally,
(ii) general principles of equity, whether enforcement is sought in a proceeding
in equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of the provisions of any such agreement that purport or are
construed to provide indemnification for securities law liabilities.
(f) As of the Closing Date, the Certificates and the Pooling and Servicing
Agreement will conform in all material respects to the respective descriptions
thereof contained in the Prospectus. As of the Closing Date, the Certificates
will be duly and validly authorized and, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement to the Underwriters against payment therefor as provided herein, will
be duly and validly issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement.
(g) At the Closing Date, each of the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(h) The Company is not in violation of its certificate of incorporation or
by-laws or in default under any agreement, indenture or instrument the effect of
which violation or default would be material to the Company or which violation
or default would have a material adverse affect on the performance of its
obligations under this Agreement, the Pooling and Servicing Agreement or either
of the Mortgage Loan Purchase Agreements. The execution, delivery and
performance by the Company of this Agreement, the Pooling and Servicing
Agreement and the respective Mortgage Loan Purchase Agreements do not and will
not conflict with or result in a breach of any term or provision of the
certificate of incorporation or by-laws of the Company or conflict with, result
in a breach, violation or acceleration of, or constitute a default under, the
terms of any indenture or other agreement or instrument to which the Company is
a party or by which it or any of its material assets is bound, or any statute,
order or regulation applicable to the Company of any state or Federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Company.
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(i) There is no action, suit or proceeding against the Company pending, or,
to the knowledge of the Company, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the invalidity of this
Agreement, the Pooling and Servicing Agreement, either of the Mortgage Loan
Purchase Agreements or the Certificates, (ii) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions contemplated by
this Agreement, the Pooling and Servicing Agreement or either of the Mortgage
Loan Purchase Agreements, (iii) that might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement, the Pooling and Servicing Agreement, either
of the Mortgage Loan Purchase Agreements or the Certificates or (iv) seeking to
affect adversely the federal income tax attributes of the Certificates as
described in the Prospectus.
(j) There are no contracts, indentures or other documents of a character
required by the 1933 Act or by the rules and regulations thereunder to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(k) No authorization, approval or consent of or filing with any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Certificates pursuant to or as contemplated by this
Agreement and the Pooling and Servicing Agreement, except such as have been, or
as of the Closing Date will have been, obtained or completed, as applicable, or
such as may otherwise be required under applicable state securities laws in
connection with the purchase and the offer and sale of the Certificates by the
Underwriters, and except any recordation or filing of the respective assignments
of the Mortgage Loans to the Trustee pursuant to the Pooling and Servicing
Agreement that have not been completed.
(l) The Company possesses all material licenses, certificates, authorities
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it, and the
Company has not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company.
(m) Any taxes, fees and other governmental charges payable by the Company
in connection with the execution and delivery of this Agreement, the Pooling and
Servicing Agreement or either of the Mortgage Loan Purchase Agreements or the
issuance and sale of the Certificates (other than such federal, state and local
taxes as may be payable on the income or gain recognized therefrom), have been
or will be paid at or prior to the Closing Date.
(n) Neither the Company nor the Trust Fund is, and neither the issuance and
sale of the Certificates in the manner contemplated by the Prospectus nor the
activities of the Trust Fund pursuant to the Pooling and Servicing Agreement
will cause the Company or the Trust Fund to be, an "investment company" or under
the control of an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
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(o) Under generally accepted accounting principles ("GAAP") and for federal
income tax purposes, the Company will report the transfer of the Mortgage Loans
to the Trustee in exchange for the Certificates and the sale of the Certificates
to the Underwriters pursuant to this Agreement as a sale of the interests in the
Mortgage Loans evidenced by the Certificates. The consideration received by the
Company upon the sale of the Certificates to the Underwriters will constitute at
least reasonably equivalent value and fair consideration for the Certificates.
The Company will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the transfer of the Mortgage Loans to the Trustee on
behalf of the Trust Fund and the sale of the Certificates to the Underwriters.
The Company is not selling the Certificates to the Underwriters or transferring
the Mortgage Loans to the Trustee on behalf of the Trust Fund with any intent to
hinder, delay or defraud any of the creditors of the Company.
(p) No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Company are pending or contemplated.
(q) At the Closing Date, the respective classes of Certificates shall have
been assigned ratings no lower than those set forth in Schedule I hereto by the
nationally recognized statistical rating organizations identified in Schedule I
hereto (the "Rating Agencies").
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth on
Schedule I hereto, Certificates of each class thereof having the actual
principal amount set forth next to the name of such Underwriter on Schedule II
hereto. Each of the Underwriters shall only be required to purchase the actual
principal amount of the Certificates of each class thereof set forth next to
such Underwriter's name on Schedule II hereto. There will be added to the
purchase price of the Certificates an amount equal to interest accrued thereon
pursuant to the terms thereof from December 11, 2001 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 ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. New York City time, on
December 18, 2001 or at such other location, time and date as shall be mutually
agreed upon by the Lead Underwriters and the Company (such time and date of
closing, the "Closing Date"). Delivery of the Certificates shall be made through
the Same Day Funds Settlement System of the Depository Trust Company ("DTC").
Payment shall be made to the Company in immediately available Federal funds
wired to such bank as may be designated by the Company (or by such other method
of payment as may be mutually agreed upon by the Company and any particular
Underwriter), against delivery of the Certificates. The Certificates will be
made available for examination by the Underwriters not later than 3:00 p.m. New
York City time on the last business day prior to the Closing Date.
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References herein, including, without limitation, in the Schedules hereto,
to actions taken or to be taken following the Closing Date with respect to any
Certificates that are to be delivered through the facilities of DTC shall
include, if the context so permits, actions taken or to be taken with respect to
the interests in such Certificates as reflected on the books and records of DTC.
4. OFFERING BY THE UNDERWRITERS.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale to the public, including, without limitation, in and from
the State of New York, as set forth in the Prospectus Supplement. It is further
understood that the Company, in reliance upon Policy Statement 105 has not and
will not file the offering pursuant to Section 352-e of the General Business Law
of the State of New York with respect to the Certificates which are not
"mortgage related securities" as defined in the 1934 Act (as defined below).
Accordingly, each Underwriter covenants and agrees with the Company that sales
of such Certificates made by such Underwriter in the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
(b) The Underwriters may prepare and provide (and 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
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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 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
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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 any Underwriter to
the Company of all Computational Materials and ABS Term Sheets in respect
of the Certificates required to be delivered in accordance with or as
contemplated by paragraph (b)(iv) above, the Company shall have the right
to delay the release of the Prospectus to investors or to the Underwriters,
to delay the Closing Date and to take other appropriate actions in each
case as necessary in order to allow the Company to comply with its
agreement set forth in Section 5(h) hereof to file the Computational
Materials and ABS Term Sheets by the time specified therein.
(ix) Computational Materials and ABS Term Sheets distributed by such
Underwriter through electronic means have been so distributed in accordance
with SEC Release No. 33-7233.
5. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants with the
respective Underwriters that:
(a) During such period following the date of this Agreement in which any
Prospectus is required to be delivered under the 1933 Act (the "Prospectus
Delivery Period"), the Company will deliver to each Underwriter such number of
copies of each Prospectus as such Underwriter may reasonably request.
(b) During the Prospectus Delivery Period, the Company will file promptly
with the Commission any amendment or supplement to the Registration Statement or
any Prospectus relating to or covering the Certificates that may, in the
judgment of the Company or the Lead Underwriters, be required by the 1933 Act
and the rules and regulations of the Commission thereunder or requested by the
Commission and approved by the Lead Underwriters.
(c) Prior to filing with the Commission during the Prospectus Delivery
Period any amendment or supplement to the Registration Statement relating to or
covering the Certificates (other than an amendment by reason of Rule 429 under
the ▇▇▇▇ ▇▇▇) or any amendment or supplement to the Prospectus, the Company will
furnish a copy thereof to the Underwriters, and the Company will not file any
such amendment or supplement to which the Lead Underwriters shall reasonably
object.
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(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 in or addition to the Registration Statement or any Prospectus in
order to make any material statement therein not misleading.
(e) If, during the Prospectus Delivery Period, the Commission issues an
order suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the lifting of that order at the
earliest possible time.
(f) The Company will endeavor to qualify the Certificates for offer and
sale under the securities laws of such jurisdictions as the Lead Underwriters
may reasonably request, provided, however, that this Section 5(f) shall not
obligate the Company to file any general consent to service of process or to
qualify to do business in any jurisdiction or as a dealer in securities in any
jurisdiction in which it is not so qualified.
(g) The costs and expenses associated with the transactions contemplated by
this Agreement shall be payable by the Mortgage Loan Sellers as and to the
extent provided in the respective Mortgage Loan Purchase Agreements. CSFB shall
be responsible for the costs and expenses (including, but not limited to, the
costs of any counsel retained thereby) actually incurred by it in connection
with the transactions contemplated by this Agreement. CSFB shall be entitled to
receive as a fee from the Mortgage Loan Sellers, the sum of $[o].
(h) The Company will file any documents and any amendments thereof as may
be required to be filed by it pursuant to the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations
of the Commission under the 1933 Act and the 1934 Act, including, but not
limited to, the filing with the Commission pursuant to a Current Report on Form
8-K, subject to Section 4 hereof, of all Computational Materials and ABS Term
Sheets in respect of the Certificates furnished by any Underwriter and
identified by it as such. Subject to compliance by each Underwriter with Section
4(b)(iv) hereof, the Company will file all such Computational Materials and ABS
Term Sheets within the time period allotted for such filing pursuant to the
No-Action Letters. Subject to compliance by each Underwriter with Section
4(b)(iv) hereof, the Company represents and warrants that, to the extent
required by the No-Action Letters, the Company has timely filed with the
Commission any Collateral Term Sheets previously delivered to it as contemplated
by Section 4(b)(iv) hereof.
10
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several 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 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 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, either 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
either 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.
11
(e) The Underwriters shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
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 ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, 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 ▇▇▇▇▇▇ ▇▇▇▇▇
& ▇▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
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 Lead Underwriters and their counsel, to the
following effect:
(i) they have performed certain specified procedures as a result of
which they have determined that the information of an accounting, financial
or statistical nature set forth in the Prospectus Supplement under the
captions "Summary of the Prospectus Supplement," "Description of the
Mortgage Pool" and "Yield and Maturity Considerations" and on Annex ▇-▇,
▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇ and Annex B agrees with the data sheet or computer
tape prepared by or on behalf of the Mortgage Loan Sellers, except for such
non-material deviations as are 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 agreed upon documents that are part 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, except for such non-material deviations as are 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 Lead
Underwriters and their counsel; and such other matters as the Lead 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
12
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 Holdings in connection
with the sale by Holdings of its Mortgage Loans to the Company, pursuant to the
Holdings Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to
rely on each such certificate executed and delivered by Holdings 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 such other documents
and opinions as the Lead 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.
(n) 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 Lead 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 Lead 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, its Mortgage Loan Purchase Agreement, the
13
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. UBSWREI has agreed that, 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, its 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 any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against:
(i) any and all losses, liabilities, claims, damages, costs and
expenses whatsoever, as incurred, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading, or arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus or any Preliminary Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) any and all losses, liabilities, claims, damages, costs and
expenses whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission, contemplated by clause (i) above, if
such settlement is effected with the written consent of the Company or as
otherwise provided in Section 8(c) hereof; and
(iii) any and all expenses whatsoever, as incurred (including, without
limitation, the fees and disbursements of counsel chosen by the Lead
Underwriters), reasonably incurred in investigating, preparing 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
14
that was made in reliance upon and in conformity with written or electronic
information (as specified in Section 8(b) below) furnished to the Company by any
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or in the Prospectus or any Preliminary Prospectus (or any amendment or
supplement thereto); and provided, further, that the Company shall not be liable
under the indemnity agreement in this subsection (a) for any such loss,
liability, claim, damage, cost or expense that arises out of or is based upon
any untrue statement or omission or alleged untrue statement or omission
contemplated by clause (i) above that was made in any Computational Materials or
ABS Term Sheets (or any amendments or supplements thereto) in respect of the
Certificates delivered to prospective investors by one or more of the
Underwriters and furnished to the Company by any of the Underwriters pursuant to
Section 4(b)(iv) hereof and made a part of the Registration Statement or
incorporated by reference in the Prospectus or any Preliminary 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 ▇-▇, ▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇ and Annex B thereto and the
accompanying diskette), (2) the representations and warranties of either
Mortgage Loan Seller 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 either Mortgage
Loan Seller, 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 ▇-▇,
▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇-▇ and/or Annex B thereto or on the accompanying diskette,
except to the extent that such untrue statement or omission or alleged untrue
statement or omission contemplated by clause (i) above under such headings, on
such annexes or on such diskette was made as a result of an error in the
manipulation of, or any calculations based upon, or any aggregation of, such
information regarding the Mortgage Loan Seller Matters; and, provided, further,
that the Company shall not be liable to any Underwriter or any person
controlling such Underwriter under the indemnity agreement in this subsection
(a) for any such loss, liability, claim, damage, cost or expense that arises out
of or is based upon any untrue statement or omission contemplated by clause (i)
above that was made in any Preliminary Prospectus to the extent that such
losses, liabilities, claims, damages, costs or expenses result from the fact
that such Underwriter sold Certificates to a person as to whom it shall be
established that there was not sent or given, at or prior to the confirmation of
such sale, a copy of the Prospectus (excluding documents incorporated therein by
reference), such untrue statement or omission had been corrected in the
Prospectus and a sufficient number of copies of the Prospectus had been provided
by the Company to such Underwriter prior to the confirmation of such sale.
(b) The respective Underwriters, severally and not jointly, each agrees to
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or
15
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 either
of the Lead Underwriters 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
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,
including, without limitation, by either of the Lead Underwriters on behalf of
any other Underwriter, expressly for use in the Prospectus or any Preliminary
Prospectus.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of the indemnity agreement in
subsection (a) or (b), as applicable, of this Section 8. An indemnifying party
may participate at its own expense in the defense of any such action and, to the
extent that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from the indemnified party, to
assume the defense thereof, with counsel satisfactory to such indemnified party.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have agreed to the retention of such counsel, or (ii) the
indemnifying party shall not have assumed the defense of such action, with
counsel satisfactory to the indemnified party, within a reasonable period
following the indemnifying party's receiving notice of such action, or (iii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the
16
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 or contribution could be sought
under this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) The amount paid or payable by an indemnified party as a result of the
losses, liabilities, claims, damages, costs or expenses referred to in this
Section 8 shall be deemed to include any legal fees and disbursements or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim except where the indemnified party is
required to bear such expenses, which expenses the indemnifying party shall pay
as and when incurred, at the request of the indemnified party, to the extent
that it is reasonable to believe that the indemnifying party will be ultimately
obligated to pay such expenses. In the event that any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment.
(e) The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity agreements contained in this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by the Company, the Underwriters, any of
their respective directors or officers, or any person controlling the Company or
any of the Underwriters, and (iii) acceptance of and payment for any of the
Certificates.
17
9. CONTRIBUTION.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8(a) or
Section 8(b) hereof is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, on the one hand, and the Underwriters, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages, costs and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company, on the one hand, or the Underwriters, on the other hand, as incurred,
(i) in such proportions as are appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, from the transactions contemplated by this Agreement, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages, costs and/or expenses, as well as any other relevant equitable
considerations; provided, however, that in no case shall any Underwriter be
responsible under this Section 9(a) for any amount in excess of the fees
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 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
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The remedies
provided for in this Section 9 are not exclusive and shall not limit any rights
or remedies that may otherwise be available at law or in equity to any party
entitled to contribution under this Section 9.
18
(c) The contribution agreements contained in this Section 9 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by the Company, the Underwriters, any of
their respective directors or officers, or any person controlling the Company or
any of the Underwriters, and (iii) acceptance of and payment for any of the
Certificates.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, or by or on behalf of the
Company, or by or on behalf of any of the controlling persons and officers and
directors referred to in Sections 8 and 9 hereof, and shall survive delivery of
the Certificates to the Underwriters.
11. TERMINATION OF AGREEMENT; SURVIVAL.
(a) The Lead Underwriters may terminate the obligations of the Underwriters
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 Lead Underwriters, impracticable to market the Certificates or to enforce
contracts for the sale of the Certificates, or (iii) if trading generally on the
New York Stock Exchange has been suspended, or if a banking moratorium has been
declared by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 11, such
termination shall be without liability of any party to any other party, except
that the provisions of Section 5(g) hereof regarding the payment of costs and
expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement.
12. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter shall fail to take up and pay for the amount of the
Certificates agreed by such Underwriter to be purchased under this Agreement,
upon tender of such Certificates in accordance with the terms hereof, and the
amount of the Certificates not purchased does not aggregate more than 10% of the
total amount of the Certificates set forth in Schedule II hereof (based on
aggregate purchase price), then the remaining Lead Underwriter (or, in the case
that CSFB is the withdrawing or defaulting Underwriter, the Lead Underwriters)
shall be obligated to take up and pay for the Certificates that the withdrawing
or defaulting Underwriter agreed but failed to purchase (it being understood and
agreed that if CSFB is the withdrawing or defaulting Underwriter, then the Lead
Underwriters' obligations under this Section 12(a) shall be allocated between
them, on a pro rata basis, in accordance with the respective aggregate purchase
prices to be paid by the Lead Underwriters for the Certificates originally
allocated thereto on Schedule II).
19
(b) If any Underwriter shall fail to take up and pay for the amount of the
Certificates agreed by such Underwriter to be purchased under this Agreement
(such Underwriter being a "Defaulting Underwriter"), upon tender of such
Certificates in accordance with the terms hereof, and the amount of the
Certificates not purchased aggregates more than 10% of the total amount of the
Certificates set forth in Schedule II hereto (based on aggregate purchase
price), and arrangements satisfactory to the remaining Underwriters and the
Company for the purchase of such Certificates by other persons are not made
within 36 hours thereafter, this Agreement shall terminate. In the event of any
such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 5(g), Section 8 and
Section 9 hereof), nor shall any Underwriter (other than the 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 Underwriters by reason of its failure to take up and pay for Certificates
as agreed by such Defaulting Underwriter.
13. NOTICES. Any notice by the Company to any Underwriter shall be
sufficient if given in writing or by telegraph addressed to the address for such
Underwriter set forth on Schedule II hereto and any notice by any Underwriter to
the Company shall be sufficient if given in writing or by telegraph addressed to
the Company at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, attention of
the President.
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.
20
18. WAIVERS, MODIFICATIONS AND AMENDMENTS. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought.
21
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
instrument, along with all counterparts, and your acceptance shall represent a
binding agreement between the Company and the Underwriters.
Very truly yours,
STRUCTURED ASSET SECURITIES CORPORATION
By:
---------------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC. UBS WARBURG LLC
By: By:
------------------------- -----------------------------
Name: Name:
Title: Title
By:
-----------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
--------------------------
Name:
Title:
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:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
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:
--------------------------
Name:
Title:
SCHEDULE I
Underwriting Agreement, dated as of December 5, 2001.
Title and Description of the Certificates: LB-UBS Commercial Mortgage Trust 2001-C7, Commercial Mortgage Pass-Through Certificates,
Series 2001-C7, Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-4, Class A-5, Class B, Class C,
Class D and Class E Certificates
Cut-off Date: December 11, 2001
Expected Closing Date: December 18, 2001
CERTIFICATES
-------------------- ----------- ----------- ------------ ----------- ------------ ----------- ----------- ----------- ------------
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4 CLASS A-5 CLASS B CLASS C CLASS D CLASS E
--------- --------- --------- --------- --------- ------- ------- ------- -------
Initial Aggregate $33,020,000 $60,674,000 $300,000,000 $57,722,000 $540,708,000 $49,909,000 $16,636,000 $39,300,000 $12,100,000
Principal Amount
-------------------- ----------- ----------- ------------ ----------- ------------ ----------- ----------- ----------- ------------
Initial Pass-Through 4.87200% 5.53300% 5.64200% 5.93400% 6.13300% 6.29900% 6.37700% 6.51400% 6.63200%
Rate
-------------------- ----------- ----------- ------------ ----------- ------------ ----------- ----------- ----------- ------------
Rating(1) AAA/Aaa AAA/Aaa AAA/Aaa AAA/Aaa AAA/Aaa AA/Aa2 AA-/Aa3 A/A2 A-/A3
-------------------- ----------- ----------- ------------ ----------- ------------ ----------- ----------- ----------- ------------
% % % % % % % % %
-------------------- ----------- ----------- ------------ ----------- ------------ ----------- ----------- ----------- ------------
---------------
(1) By Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. and ▇▇▇▇▇'▇ Investors Service, Inc., respectively.
(2) Expressed as a percentage of the initial aggregate stated principal
amount of each class of Certificates. There shall be added to the
Purchase Price for each class of Certificates accrued interest at the
initial Pass-Through Rate therefor on the initial aggregate principal
amount thereof from 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 $33,020,000
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ A-2 $60,674,000
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ A-3 $300,000,000
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ A-4 $57,722,000
A-5 $515,708,000
B $49,909,000
C $16,636,000
D $39,300,000
E $12,100,000
UBS Warburg LLC A-1 $0
1285 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇ ▇-▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ A-3 $0
Attention: ▇▇▇▇▇ ▇▇▇▇▇ A-4 $0
A-5 $0
B $0
C $0
D $0
E $0
Credit Suisse First Boston Corporation A-1 $0
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ A-2 $0
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ A-3 $0
Attention: ▇▇▇ ▇▇▇▇▇ A-4 $0
A-5 $25,000,000
B $0
C $0
D $0
E $0
EXHIBIT A-1
FORM OF OPINION OF SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
SPECIAL COUNSEL FOR THE COMPANY
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
CHICAGO ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
DALLAS TELEPHONE ▇▇▇ ▇▇▇ ▇▇▇▇ HONG KONG
FACSIMILE ▇▇▇ ▇▇▇ ▇▇▇▇
LOS ANGELES ▇▇▇.▇▇▇▇▇▇.▇▇▇ LONDON
SAN FRANCISCO FOUNDED 1866 SHANGHAI
SEATTLE SINGAPORE
WASHINGTON, D.C. TOKYO
December 18, 2001
Structured Asset Securities Corporation Standard & Poor's Ratings Services,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ a division of The ▇▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Companies, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC LaSalle Bank National Association
1285 Avenue of the Americas ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: LB-UBS Commercial Mortgage Trust 2001-C7
Commercial Mortgage Pass-Through Certificates, Series 2001-C7
-------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Structured Asset Securities Corporation
(the "Depositor"), ▇▇▇▇▇▇ Brothers Inc. ("LBI") 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
December 5, 2001 (the "LBHI Mortgage Loan Purchase Agreement"), between
LBHI as seller and the Depositor as purchaser;
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ NEW YORK
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
Standard & Poor's Ratings Services
▇▇▇▇▇'▇ Investors Service, Inc.
LaSalle Bank National Association
December 18, 2001
Page 2
(ii) the sale by UBS Warburg Real Estate Securities Inc. ("UBSWREI"
and, together with LBHI, 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,
the "Mortgage Loans"), pursuant to that certain Mortgage Loan Purchase
Agreement, dated as of December 5, 2001 (the "UBSWREI Mortgage Loan
Purchase Agreement" and, together with the LBHI 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;
(iii) the creation of a common law trust (the "Trust") and the
issuance of an aggregate $1,209,908,173 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-C7 (the
"Certificates"), consisting of 26 classes designated Class ▇-▇, ▇▇▇▇▇ ▇-▇,
Class A-3, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class X-CL, Class X-CP, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class Q, Class S, Class R-I, Class R-II, Class
R-III and Class V, pursuant to that certain Pooling and Servicing
Agreement, dated as of December 11, 2001 (the "Pooling and Servicing
Agreement"), between the Depositor as depositor, First Union National Bank
as master servicer, Lend Lease Asset Management, L.P., as special servicer,
LaSalle Bank, National Association as trustee (the "Trustee") and ABN AMRO
Bank N.V. as fiscal agent;
(iv) 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;
(v) the sale by the Depositor, and the purchase by LBI, UBS Warburg
LLC ("UBSW") and Credit Suisse First Boston Corporation (collectively with
LBI and UBSW in such capacity, the "Underwriters"), of the Class ▇-▇, ▇▇▇▇▇
▇-▇, Class A-3, Class A-4, Class A-5, Class B, Class C, Class D and Class E
Certificates (collectively, the "Publicly Offered Certificates"), pursuant
to that certain Underwriting Agreement, dated as of December 5, 2001 (the
"Underwriting Agreement"), between the Depositor and the Underwriters, and
acknowledged, as to certain sections, by UBSWREI and LBHI;
(vi) the sale by the Depositor, and the purchase by LBI and UBSW
(collectively in such capacity, the "Initial Purchasers"), of the Class
X-CL, Class X-CP, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class Q, Class S and Class V Certificates
(collectively the "Privately Offered Certificates" and,
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ NEW YORK
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
Standard & Poor's Ratings Services
▇▇▇▇▇'▇ Investors Service, Inc.
LaSalle Bank National Association
December 18, 2001
Page 3
collectively with the Publicly Offered Certificates, the "Offered
Certificates"), pursuant to that certain Certificate Purchase Agreement,
dated as of December 5, 2001 (the "Certificate Purchase Agreement"),
between the Depositor and the Initial Purchasers.
(vii) the negotiation and execution of that certain LBHI
Indemnification Agreement, dated as of December 5, 2001 (the "LBHI
Indemnification Agreement"), between LBHI, the Depositor and the
Underwriters/Initial Purchasers; and
(viii) the negotiation and execution of that certain UBS
Indemnification Agreement, dated as of December 5, 2001 (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 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"):
(i) the Prospectus Supplement, dated December 5, 2001 (the "Prospectus
Supplement"), specifically relating to the Publicly Offered Certificates
and the Trust;
(ii) the Prospectus, dated November 19, 2001, 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");
(iii) the Private Placement Memorandum, dated December 5, 2001 (the
"Memorandum") specifically relating to the Privately Offered Certificates
and the Trust; and
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ NEW YORK
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
Standard & Poor's Ratings Services
▇▇▇▇▇'▇ Investors Service, Inc.
LaSalle Bank National Association
December 18, 2001
Page 4
(iv) the registration statement on Form S-3 (No. 333-58562) (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
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ NEW YORK
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
Standard & Poor's Ratings Services
▇▇▇▇▇'▇ Investors Service, Inc.
LaSalle Bank National Association
December 18, 2001
Page 5
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 ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ attorneys currently practicing law with this firm who have been
actively involved in the above-described representation of the Depositor, 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
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ NEW YORK
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
Standard & Poor's Ratings Services
▇▇▇▇▇'▇ Investors Service, Inc.
LaSalle Bank National Association
December 18, 2001
Page 6
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
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ NEW YORK
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
Standard & Poor's Ratings Services
▇▇▇▇▇'▇ Investors Service, Inc.
LaSalle Bank National Association
December 18, 2001
Page 7
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
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ NEW YORK
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
Standard & Poor's Ratings Services
▇▇▇▇▇'▇ Investors Service, Inc.
LaSalle Bank National Association
December 18, 2001
Page 8
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 the Private Placement
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) 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, (b) 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 (c) 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.
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,
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ NEW YORK
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
Standard & Poor's Ratings Services
▇▇▇▇▇'▇ Investors Service, Inc.
LaSalle Bank National Association
December 18, 2001
Page 9
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
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
EXHIBIT A-2
FORM OF OPINION OF IN-HOUSE COUNSEL FOR THE COMPANY
[LETTERHEAD OF ▇▇▇▇▇▇ BROTHERS]
December 18, 2001
Structured Asset Securities Corporation Standard & Poor's Ratings Services,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ a division of The ▇▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Companies, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC LaSalle Bank National Association
1285 Avenue of the Americas ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation ▇▇▇▇▇▇ Brothers Holdings Inc.,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ d/b/a ▇▇▇▇▇▇ Capital, a division of
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Brothers Holdings Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: LB-UBS Commercial Mortgage Trust 2001-C7
Commercial Mortgage Pass-Through Certificates, Series 2001-C7
-------------------------------------------------------------
Ladies and Gentlemen:
I am internal counsel to ▇▇▇▇▇▇ Brothers Holdings Inc., doing business
as ▇▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇ Brothers Holdings Inc. ("▇▇▇▇▇▇") and am
familiar with matters pertaining to the following agreements (together, the
"Agreements"): (i) the Mortgage Loan Purchase Agreement dated as of December 5,
2001 (the "Mortgage Loan Purchase Agreement"), between ▇▇▇▇▇▇ and Structured
Asset Securities Corporation ("SASCO"); and (ii) the LBHI Indemnification
Agreement dated as of December 5, 2001 (the "Indemnification Agreement"),
between ▇▇▇▇▇▇, SASCO, ▇▇▇▇▇▇ Brothers Inc., UBS Warburg LLC and Credit Suisse
First Boston Corporation.
You have asked for, among other things, my opinion regarding the due
authorization of ▇▇▇▇▇▇ to enter into the Agreements.
As to matters of fact material to this opinion, I have relied, without
independent investigation on (i) the representations and warranties of ▇▇▇▇▇▇ in
the Agreements, (ii) the relevant
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
Standard & Poor's Ratings Services
▇▇▇▇▇'▇ Investors Service, Inc.
LaSalle Bank National Association
▇▇▇▇▇▇ Brothers Holdings Inc.
December 18, 2001
Page 2
resolutions of the Board of Directors of ▇▇▇▇▇▇, (iii) certificates of
responsible officers of ▇▇▇▇▇▇, and (iv) certificates of public officials. In
this connection, I have examined or have caused to be examined on my behalf, a
copy of each of the Agreements and such other documents and instruments which I
have deemed necessary or appropriate in connection with this opinion.
I have relied on originals or copies, certified or otherwise
identified to my satisfaction, of the certificate of incorporation and by-laws
of ▇▇▇▇▇▇, records of proceedings taken by ▇▇▇▇▇▇ and other corporate documents
and records of ▇▇▇▇▇▇, and have made such other investigations as I have deemed
relevant or necessary for the purpose of this opinion. I have assumed, without
independent investigation, the genuineness of all signatures (other than those
of officers of ▇▇▇▇▇▇), the authenticity of all documents submitted to me as
originals and the conformity to authentic original documents of all documents
submitted to me as certified, conformed or reproduction copies.
On the basis of and subject to the foregoing, it is my opinion that:
(1) ▇▇▇▇▇▇ is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, with the requisite corporate
power and authority to transact business in the manner described in the
Agreements and to consummate the transactions contemplated by the Agreements.
(2) Each Agreement has been duly authorized, executed and delivered by
▇▇▇▇▇▇.
(3) The execution, delivery and performance of the Agreements by ▇▇▇▇▇▇,
(i) to my knowledge, do not and will not result in a material breach or
violation of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to me to which ▇▇▇▇▇▇ is a party, (ii) do not contravene its
articles of incorporation or by-laws, and (iii) to my knowledge, do not
contravene any order of any court or governmental agency that names ▇▇▇▇▇▇ and
is specifically directed to its property (in each case, except for such
breaches, violations, defaults or contraventions as would not have a material
adverse effect on the ability of ▇▇▇▇▇▇ to perform its obligations under the
Agreements).
The foregoing opinions are subject to the following additional
assumptions, exceptions, qualifications and limitations:
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
Standard & Poor's Ratings Services
▇▇▇▇▇'▇ Investors Service, Inc.
LaSalle Bank National Association
▇▇▇▇▇▇ Brothers Holdings Inc.
December 18, 2001
Page 3
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.
This opinion is being delivered to you for your sole use in connection
with the Agreements and the related transactions and may not be used or relied
upon by any other person, firm or entity in any other context for any other
purpose. This opinion may not be quoted in whole or part, nor may copies be
furnished or delivered to any other person without my express written consent.
The foregoing opinions are given on the express understanding that the
undersigned is an officer of ▇▇▇▇▇▇ Brothers Inc. and shall in no event incur
any personal liability in connection with the said opinions.
Very truly yours,
EXHIBIT A-3
FORM OF LETTER TO BE DELIVERED BY SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
SPECIAL COUNSEL TO THE COMPANY AND COUNSEL TO THE UNDERWRITERS
REGARDING THE DISCLOSURE IN THE
REGISTRATION STATEMENT AND PROSPECTUS
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
CHICAGO ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
DALLAS TELEPHONE ▇▇▇ ▇▇▇ ▇▇▇▇ HONG KONG
FACSIMILE ▇▇▇ ▇▇▇ ▇▇▇▇
LOS ANGELES ▇▇▇.▇▇▇▇▇▇.▇▇▇ LONDON
SAN FRANCISCO FOUNDED 1866 SHANGHAI
SEATTLE SINGAPORE
WASHINGTON, D.C. TOKYO
December 18, 2001
Structured Asset Securities Corporation ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
UBS Warburg LLC Credit Suisse First Boston Corporation
1285 Avenue of the Americas ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: LB-UBS Commercial Mortgage Trust 2001-C7
Commercial Mortgage Pass-Through Certificates, Series 2001-C7
-------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Structured Asset Securities Corporation
(the "Depositor"), ▇▇▇▇▇▇ Brothers Inc. ("LBI") 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
December 5, 2001 (the "LBHI Mortgage Loan Purchase Agreement"), between
LBHI as seller and the Depositor as purchaser;
(ii) the sale by UBS Warburg Real Estate Investments Inc. ("UBSWREI"
and, together with LBHI, 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,
the "Mortgage Loans"), pursuant to that certain Mortgage Loan Purchase
Agreement, dated as of December 5, 2001 (the "UBSWREI Mortgage Loan
Purchase Agreement" and, together with the LBHI Mortgage Loan Purchase
Agreement, the "Mortgage Loan Purchase Agreements"),
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ NEW YORK
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
December 18, 2001
Page 2
between UBSWREI as seller, the Depositor as purchaser and UBS Principal
Finance LLC as an additional party;
(iii) the creation of a common law trust (the "Trust") and the
issuance of an aggregate $1,209,908,173 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2001-C7 (the
"Certificates"), consisting of 26 classes designated Class ▇-▇, ▇▇▇▇▇ ▇-▇,
Class A-3, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class X-CL, Class X-CP, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class P, Class Q, Class S, Class R-I, Class R-II, Class
R-III and Class V, pursuant to that certain Pooling and Servicing
Agreement, dated as of December 11, 2001 (the "Pooling and Servicing
Agreement"), between the Depositor as depositor, First Union National Bank
as master servicer, Lend Lease Asset Management, L.P., as special servicer,
LaSalle Bank, National Association as trustee (the "Trustee") and ABN AMRO
Bank N.V. as fiscal agent;
(iv) 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;
(v) the sale by the Depositor, and the purchase by LBI, UBS Warburg
LLC and Credit Suisse First Boston Corporation (collectively, the
"Underwriters"), of the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3, Class A-4, Class
A-5, Class B, Class C, Class D and Class E Certificates (collectively, the
"Publicly Offered Certificates"), pursuant to that certain Underwriting
Agreement, dated as of December 5, 2001 (the "Underwriting Agreement"),
between the Depositor and the Underwriters, and acknowledged, as to certain
sections, by UBSWREI and LBHI;
(vi) the negotiation and execution of that certain LBHI
Indemnification Agreement, dated as of December 5, 2001 (the "LBHI
Indemnification Agreement"), between LBHI, the Depositor and the
Underwriters; and
(vii) the negotiation and execution of that certain UBS
Indemnification Agreement, dated as of December 5, 2001 (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.
In the course of our acting as special counsel to the Depositor, LBI 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
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ NEW YORK
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
December 18, 2001
Page 3
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"):
(i) the Prospectus Supplement, dated December 5, 2001 (the "Prospectus
Supplement"), specifically relating to the Publicly Offered Certificates
and the Trust;
(ii) the Prospectus, dated November 19, 2001, 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");
(iii) the registration statement on Form S-3 (No. 333-58562) (the
"Registration Statement") filed with the Securities and Exchange Commission
(the "Commission"); and
(iv) loan summaries prepared and provided to us by LBHI with respect
to the LBHI 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,
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ NEW YORK
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
December 18, 2001
Page 4
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
causes 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 (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.
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ NEW YORK
Structured Asset Securities Corporation
▇▇▇▇▇▇ Brothers Inc.
UBS Warburg LLC
Credit Suisse First Boston Corporation
December 18, 2001
Page 5
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 ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ 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. It may not be quoted, 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,
