LB-UBS COMMERCIAL MORTGAGE TRUST 2002-C7,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2002-C7
UNDERWRITING AGREEMENT
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As of December 18, 2002
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Warburg LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Structured Asset Securities Corporation II, a Delaware
corporation (the "Company"), proposes to cause the issuance of, and to sell to
Xxxxxx Brothers Inc. ("Xxxxxx") and UBS Warburg LLC ("UBSW", and, together with
Xxxxxx, the "Underwriters"), the mortgage pass-through certificates that are
identified on Schedule I attached hereto (the "Certificates").
The Certificates will evidence beneficial ownership interests
in a trust fund (the "Trust Fund") to be formed by the Company and consisting
primarily of a segregated pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"). Certain of the Mortgage Loans
(the "UBS Mortgage Loans") will be acquired by the Company from UBS 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 Xxxxxx Brothers Holdings Inc., doing business as
Xxxxxx Capital, a division of Xxxxxx 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 by UBSWREI to the Company of the UBS
Mortgage Loans, UBSWREI, UBS (USA), Inc. ("UBS (USA)"), the Company and the
Underwriters entered into an indemnification agreement dated as of the date
hereof (the "UBS Indemnification Agreement"). In connection with the sale by
Holdings to the Company of the Holdings Mortgage Loans, 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, 2002 (the "Pooling and Servicing
Agreement"), among the Company, as depositor, LaSalle Bank, National
Association, as trustee (the "Trustee"), Wachovia Bank, National Association, as
master servicer (the "Master Servicer"), Lennar Partners, Inc., as special
servicer (the "Special Servicer"), and ABN AMRO Bank N.V., as fiscal agent (the
"Fiscal Agent"). The Certificates and the Mortgage Loans are described more
fully in the Prospectus (as defined below), which the Company has furnished to
the Underwriters. Capitalized terms used but not defined herein have the
respective meanings assigned thereto in the Prospectus.
The Certificates are part of a series of mortgage pass-through
certificates that evidence beneficial ownership interests in the Trust Fund and
are being issued pursuant to the Pooling and Servicing Agreement. The other
certificates of such series will be retained by the Company or privately placed
with a limited number of institutional investors.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
COMPANY. The Company represents, warrants and agrees with the respective
Underwriters that:
(a) A registration statement on Form S-3 (No. 333-100864)
with respect to the Certificates has been prepared by the Company and filed with
the Securities and Exchange Commission (the "Commission"), and complies as to
form in all material respects with the requirements of the Securities Act of
1933, as amended (the "1933 Act"), and the rules and regulations of the
Commission thereunder, including Rule 415, and has become effective under the
1933 Act. As used in this Underwriting Agreement (this "Agreement" or the
"Underwriting Agreement"), (i) "Registration Statement" means that registration
statement and all exhibits thereto, as amended or supplemented to the date of
this Agreement; (ii) "Basic Prospectus" means the prospectus included in the
Registration Statement at the time it became effective, or as subsequently filed
with the Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iii)
"Prospectus Supplement" means the prospectus supplement specifically relating to
the Certificates, as most recently filed with, or transmitted for filing to, the
Commission pursuant to paragraph (b) of Rule 424 of the 1933 Act; (iv)
"Prospectus" means the Basic Prospectus, together with the Prospectus
Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form
of the Prospectus Supplement that has heretofore been filed pursuant to
paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus"
means the Basic Prospectus, together with any Preliminary Prospectus Supplement.
The aggregate principal amount of the Certificates does not exceed the remaining
amount of mortgage-backed securities that may be offered and sold under the
Registration Statement as of the date hereof.
(b) The Registration Statement and the Prospectus, at the
time the Registration Statement became effective and on the date of this
Agreement, complied, and (in the case of any amendment or supplement to any such
document filed with the Commission after the date as of which this
representation is being made) will comply, as to form in all material respects
with the requirements of the 1933 Act and the rules and regulations of the
Commission thereunder; and the Registration Statement and the Prospectus do 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
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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 X-0, Xxxxx X-0, Xxxxx X-0, Annex A-4, Annex X-0, Xxxxx X-0,
Xxxxx X-0 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 (as
defined below) contained in or omitted from the Prospectus Supplement, or any
amendment or supplement thereto, under the headings "Summary of Prospectus
Supplement--The Underlying Mortgage Loans and the Mortgaged Real Properties",
"Risk Factors--Risks Related to the Underlying Mortgage Loans" and "Description
of the Mortgage Pool" or on Annex X-0, Xxxxx X-0, Xxxxx X-0, Xxxxx A-4, Annex
X-0, Xxxxx X-0, Xxxxx X-0 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 18, 2002, as supplemented to the Closing Date, and
rendered by Deloitte & Touche LLP. The "Mortgage Loan Seller Matters" consist of
the following matters: the Mortgage Loans and the underlying real properties
securing the Mortgage Loans; the related loan documents and the obligors
thereunder; and the Mortgage Loan Sellers.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease or operate its
properties and to conduct its business as now conducted by it and to enter into
and perform its obligations under this Agreement, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreements; and the Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business.
(d) As of the date hereof, as of the date on which the
Prospectus Supplement is first filed pursuant to Rule 424 under the 1933 Act, as
of the date on which, prior to the Closing Date, any amendment to the
Registration Statement becomes effective, as of the date on which any supplement
to the Prospectus Supplement is filed with the Commission, and as of the Closing
Date, there has not and will not have been (i) any request by the Commission for
any further amendment to the Registration Statement or the Prospectus 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,
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when executed and delivered as contemplated hereby and thereby, will have been
duly authorized, executed and delivered by the Company; and, assuming due
authorization, execution and delivery hereof and thereof by the other parties
hereto and thereto, this Agreement constitutes, and the Pooling and Servicing
Agreement and the respective Mortgage Loan Purchase Agreements, when so executed
and delivered will constitute, legal, valid and binding agreements of the
Company, enforceable against the Company in accordance with their respective
terms, except as enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting the
enforcement of the rights of creditors generally, (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law, and
(iii) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of any such agreement that purport or are construed to provide
indemnification for securities law liabilities.
(f) As of the Closing Date, the Certificates and the
Pooling and Servicing Agreement will conform in all material respects to the
respective descriptions thereof contained in the Prospectus. As of the Closing
Date, the Certificates will be duly and validly authorized and, when duly and
validly executed, authenticated and delivered in accordance with the Pooling and
Servicing Agreement to the Underwriters against payment therefor as provided
herein, will be duly and validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement.
(g) At the Closing Date, each of the representations and
warranties of the Company set forth in the Pooling and Servicing Agreement will
be true and correct in all material respects.
(h) The Company is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument the effect of which violation or default would be material to the
Company or which violation or default would have a material adverse affect on
the performance of its obligations under this Agreement, the Pooling and
Servicing Agreement or the Mortgage Loan Purchase Agreements. The execution,
delivery and performance by the Company of this Agreement, the Pooling and
Servicing Agreement and the respective Mortgage Loan Purchase Agreements do not
and will not conflict with or result in a breach of any term or provision of the
certificate of incorporation or by-laws of the Company or conflict with, result
in a breach, violation or acceleration of, or constitute a default under, the
terms of any indenture or other agreement or instrument to which the Company is
a party or by which it or any of its material assets is bound, or any statute,
order, rule or regulation applicable to the Company of any state or federal
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Company.
(i) There is no action, suit or proceeding against the
Company pending, or, to the knowledge of the Company, threatened, before any
court, arbitrator, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, the Pooling and Servicing Agreement, the Mortgage
Loan Purchase Agreements or the Certificates, (ii) seeking to prevent the
issuance of the Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement or the
Mortgage Loan Purchase Agreements, (iii) that might materially and adversely
affect the performance by the Company of its obligations under, or the validity
or enforceability of, this Agreement, the Pooling and Servicing Agreement, the
Mortgage Loan Purchase Agreements or the Certificates or (iv) seeking to affect
adversely the federal income tax attributes of the Certificates as described in
the Prospectus.
(j) There are no contracts, indentures or other documents
of a character required by the 1933 Act or by the rules and regulations
thereunder to be described or referred to in the Registration
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Statement or the Prospectus or to be filed as exhibits to the Registration
Statement which have not been so described or referred to therein or so filed or
incorporated by reference as exhibits thereto.
(k) No authorization, approval or consent of or filing
with any court or governmental authority or agency is necessary in connection
with the offering, issuance or sale of the Certificates pursuant to or as
contemplated by this Agreement and the Pooling and Servicing Agreement, except
such as have been, or as of the Closing Date will have been, obtained or
completed, as applicable, or such as may otherwise be required under applicable
state securities laws in connection with the purchase and the offer and sale of
the Certificates by the Underwriters, and except any recordation or filing of
the respective assignments of the Mortgage Loans to the Trustee pursuant to the
Pooling and Servicing Agreement that have not been completed.
(l) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such license, certificate,
authority or permit which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company.
(m) Any taxes, fees and other governmental charges
payable by the Company in connection with the execution and delivery of this
Agreement, the Pooling and Servicing Agreement or the Mortgage Loan Purchase
Agreements or the issuance and sale of the Certificates (other than such
federal, state and local taxes as may be payable on the income or gain
recognized therefrom), have been or will be paid at or prior to the Closing
Date.
(n) Neither the Company nor the Trust Fund is, and
neither the issuance and sale of the Certificates in the manner contemplated by
the Prospectus nor the activities of the Trust Fund pursuant to the Pooling and
Servicing Agreement will cause the Company or the Trust Fund to be, an
"investment company" or under the control of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(o) Under generally accepted accounting principles
("GAAP") and for federal income tax purposes, the Company will report the
transfer of the Mortgage Loans to the Trustee in exchange for the Certificates
and the sale of the Certificates to the Underwriters pursuant to this Agreement
as a sale of the interests in the Mortgage Loans evidenced by the Certificates.
The consideration received by the Company upon the sale of the Certificates to
the Underwriters will constitute at least reasonably equivalent value and fair
consideration for the Certificates. The Company will be solvent at all relevant
times prior to, and will not be rendered insolvent by, the transfer of the
Mortgage Loans to the Trustee on behalf of the Trust Fund and the sale of the
Certificates to the Underwriters. The Company is not selling the Certificates to
the 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.
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(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, 2002 to but excluding
the Closing Date.
Each Underwriter hereby represents and warrants that, under
GAAP and for federal income tax purposes, it will report its acquisition of
Certificates, pursuant to this Agreement, as a purchase of assets and not as a
secured lending.
3. PAYMENT AND DELIVERY. The closing for the purchase
and sale of the Certificates hereunder shall occur at the offices of Sidley
Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
a.m. New York City time, on December 27, 2002 or at such other location, time
and date as shall be mutually agreed upon by the Underwriters and the Company
(such time and date of closing, the "Closing Date"). Delivery of the
Certificates shall be made through the Same Day Funds Settlement System of the
Depository Trust Company ("DTC"). Payment shall be made to the Company in
immediately available Federal funds wired to such bank as may be designated by
the Company (or by such other method of payment as may be mutually agreed upon
by the Company and any particular Underwriter), against delivery of the
Certificates. The Certificates will be made available for examination by the
Underwriters not later than 3:00 p.m. New York City time on the last business
day prior to the Closing Date.
References herein, including, without limitation, in the
Schedules hereto, to actions taken or to be taken following the Closing Date
with respect to any Certificates that are to be delivered through the facilities
of DTC shall include, if the context so permits, actions taken or to be taken
with respect to the interests in such Certificates as reflected on the books and
records of DTC.
4. OFFERING BY THE UNDERWRITERS.
(a) It is understood that the Underwriters propose to
offer the Certificates for sale to the public, including, without limitation, in
and from the State of New York, as set forth in the Prospectus Supplement. It is
further understood that the Company, in reliance upon Policy Statement 105 has
not and will not file the offering pursuant to Section 352-e of the General
Business Law of the State of New York with respect to the Certificates which are
not "mortgage related securities" as defined in the 1934 Act (as 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
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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 Xxxxxx, Peabody Acceptance Corporation I,
Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx 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 "Xxxxxx/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 Xxxxxx/PSA
Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials", "ABS
Term Sheets," "Structural Term Sheets" and "Collateral Term Sheets"
shall have the respective meanings given such terms in the No-Action
Letters.
(iii) All Computational Materials and ABS Term Sheets in
respect of the Certificates provided to prospective investors by such
Underwriter have borne or shall bear, as the case may be, a legend in
a form previously approved by the Company or its counsel.
(iv) Such Underwriter has not distributed and shall not
distribute any such Computational Materials or ABS Term Sheets in
respect of the Certificates, the forms and methodology of which are
not in accordance with this Agreement. Such Underwriter has provided
or shall provide, as the case may be, to the Company, for filing
pursuant to a Current Report on Form 8-K as provided in Section 5(h)
hereof, copies (in such format as required by the Company) of all
such Computational Materials and ABS Term Sheets. Such Underwriter
may provide copies of the foregoing in a consolidated or aggregated
form including all information required to be filed. All
Computational Materials and ABS Term Sheets described in this
paragraph (b)(iv) must be or must have been, as applicable, provided
to the Company in paper or electronic format suitable for filing with
the Commission not later than 10:00 a.m. (New York City time) at
least one business day before filing thereof is or was, as the case
may be, required pursuant to the terms of the No-Action Letters.
(v) All information included in any Computational
Materials and ABS Term Sheets in respect of the Certificates provided
to prospective investors by such Underwriter has been or shall be
generated based on substantially the same methodology and assumptions
as are used to generate the information in the Prospectus Supplement
as set forth therein; provided that such Computational Materials and
ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any
Computational Materials or ABS Term Sheets in respect of the
Certificates provided to prospective investors by such Underwriter
were based on assumptions with respect to the Mortgage Pool that
differ from the Prospectus Supplement in any material respect or on
Certificate structuring assumptions (except in the case of
Computational 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
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Computational Materials and ABS Term Sheets to all recipients of the
preliminary versions thereof, and include such revised Computational
Materials and ABS Term Sheets (marked, "as revised") in the materials
delivered to the Company pursuant to paragraph (b)(iv) above.
(vi) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined
to contain any material error or omission; provided that the Company
will file Computational Materials or ABS Term Sheets that contain a
material error or, when read together with the Prospectus, a material
omission, if clearly marked (A) "superseded by materials dated
[specify date]" and accompanied by corrected Computational Materials
or ABS Term Sheets that are marked "material previously dated
[specify date], as corrected", or (B) if the material error or
omission is to be corrected in the Prospectus, "superseded by
materials contained in the Prospectus." If, within the period during
which the Prospectus relating to the Certificates is required to be
delivered under the 1933 Act and the rules and regulations of the
Commission thereunder, any Computational Materials or ABS Term Sheets
in respect of the Certificates provided to prospective investors by
such Underwriter are determined, in the reasonable judgment of the
Company or such Underwriter, to contain a material error or, when
read together with the Prospectus, a material omission, then (unless
the material error or omission was corrected in the Prospectus) such
Underwriter shall prepare, or cause the preparation of, a corrected
version of such Computational Materials or ABS Term Sheets, shall
circulate such corrected Computational Materials or ABS Term Sheets
to all recipients of the prior versions thereof, and shall deliver
copies of such corrected Computational Materials or ABS Term Sheets
(marked, "as corrected") to the Company for filing with the
Commission in a subsequent Current Report on Form 8-K submission
(subject to the Company's obtaining an accountant's comfort letter in
respect of such corrected Computational Materials and ABS Term
Sheets, which shall be at the expense of such Underwriter).
(vii) Such Underwriter has not (and, as of the Closing
Date, will not have) provided any prospective investors with any
information in written or electronic form in connection with the
offering of the Certificates except for (A) the Prospectus and any
amendments or supplements thereto, (B) any Preliminary Prospectus and
(C) such Computational Materials and/or ABS Term Sheets as either
have been provided to the Company pursuant to or as contemplated by
paragraph (b)(iv) above or are not required to be filed with the
Commission in accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by
either Underwriter to the Company of all Computational Materials and
ABS Term Sheets in respect of the Certificates required to be
delivered in accordance with or as contemplated by paragraph (b)(iv)
above, the Company shall have the right to delay the release of the
Prospectus to investors or to the Underwriters, to delay the Closing
Date and to take other appropriate actions in each case as necessary
in order to allow the Company to comply with its agreement set forth
in Section 5(h) hereof to file the Computational Materials and ABS
Term Sheets by the time specified therein.
(ix) Computational Materials and ABS Term Sheets
distributed by such Underwriter through electronic means have been so
distributed in accordance with SEC Release No. 33-7233.
(c) Each Underwriter represents and agrees that: (i) it
has not sold or offered the Certificates in the United Kingdom, and it has not
delivered or communicated the Prospectus or any other
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invitation or inducement to buy or participate in the Certificates in the United
Kingdom, except to persons who (A) have professional experience of participating
in unregulated collective investment schemes and of matters relating to
investments falling within both Article 14(5) of the Financial Services Markets
Xxx 0000 (Promotion of Collective Investment Schemes) (Exemptions) Order 2001
(the "CIS Order") and Article 19(5) of the Financial Services and Markets Act
(Financial Promotion) Order 2001 (the "FP order") or (B) fall within Article
22(2)(a) through (d) ("high net worth companies, unincorporated associations,
etc.") of the CIS Order and Article 49(2)(a) though (d) of the FP Order; and
(ii) it has complied and will comply with all applicable provisions of the
Financial Services and Markets Xxx 0000 with respect to anything done by it in
relation to the Certificates in, from or otherwise involving the United Kingdom.
5. ADDITIONAL COVENANTS OF THE COMPANY. The Company
covenants with the respective Underwriters that:
(a) During such period following the date of this
Agreement in which any Prospectus is required to be delivered under the 1933 Act
(the "Prospectus Delivery Period"), the Company will deliver to each Underwriter
such number of copies of each Prospectus as such Underwriter may reasonably
request.
(b) During the Prospectus Delivery Period, the Company
will file promptly with the Commission any amendment or supplement to the
Registration Statement or any Prospectus relating to or covering the
Certificates that may, in the judgment of the Company or the Underwriters, be
required by the 1933 Act and the rules and regulations of the Commission
thereunder or requested by the Commission and approved by the Underwriters.
(c) Prior to filing with the Commission during the
Prospectus Delivery Period any amendment or supplement to the Registration
Statement relating to or covering the Certificates (other than an amendment by
reason of Rule 429 under the 0000 Xxx) or any amendment or supplement to the
Prospectus, the Company will furnish a copy thereof to the Underwriters, and the
Company will not file any such amendment or supplement to which the Underwriters
shall reasonably object.
(d) The Company will advise the Underwriters promptly (i)
when, during the Prospectus Delivery Period, any post-effective amendment to the
Registration Statement relating to or covering the Certificates (other than any
amendment by reason of Rule 429 under the 0000 Xxx) becomes effective, (ii) of
any request or proposed request by the Commission for any amendment or
supplement to the Registration Statement (insofar as the amendment or supplement
relates to or covers the Certificates), for any amendment or supplement to the
Prospectus or for any additional information with respect to the Certificates,
(iii) of the issuance by the Commission, during the Prospectus Delivery Period,
of any stop order suspending the effectiveness of the Registration Statement or
the initiation or threat of any such stop order proceeding, (iv) of receipt by
the Company of any notification with respect to the suspension of the
qualification of the Certificates for sale in any jurisdiction or the initiation
or threat of any proceeding for that purpose and (v) of the 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.
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(f) The Company will endeavor to qualify the Certificates
for offer and sale under the securities laws of such jurisdictions as the
Underwriters may reasonably request; provided, however, that this Section 5(f)
shall not obligate the Company to file any general consent to service of process
or to qualify to do business in any jurisdiction or as a dealer in securities in
any jurisdiction in which it is not so qualified.
(g) The costs and expenses associated with the
transactions contemplated by this Agreement shall be payable by the Mortgage
Loan Sellers as and to the extent provided in the respective Mortgage Loan
Purchase Agreements.
(h) The Company will file any documents and any
amendments thereof as may be required to be filed by it pursuant to the 1933 Act
and the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the
rules and regulations of the Commission under the 1933 Act and the 1934 Act,
including, but not limited to, the filing with the Commission pursuant to a
Current Report on Form 8-K, subject to Section 4 hereof, of all Computational
Materials and ABS Term Sheets in respect of the Certificates furnished by either
Underwriter and identified by it as such. Subject to compliance by each
Underwriter with Section 4(b)(iv) hereof, the Company will file all such
Computational Materials and ABS Term Sheets within the time period allotted for
such filing pursuant to the No-Action Letters. Subject to compliance by each
Underwriter with Section 4(b)(iv) hereof, the Company represents and warrants
that, to the extent required by the No-Action Letters, the Company has timely
filed with the Commission any Collateral Term Sheets previously delivered to it
as contemplated by Section 4(b)(iv) hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters hereunder to purchase the Certificates shall
be subject to the accuracy in all material respects of the representations and
warranties on the part of the Company contained herein as of the date hereof, as
of the date of the effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date, as of the date the Prospectus Supplement or any
supplement thereto is filed with the Commission prior to the Closing Date and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates delivered pursuant to the provisions hereof, to the performance
in all material respects by the Company of its obligations hereunder and to
satisfaction, as of the Closing Date, of the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and
not withdrawn and no proceedings for that purpose shall have been instituted or,
to the Company's knowledge, threatened; and the Prospectus Supplement shall have
been filed or transmitted for filing with the Commission in accordance with Rule
424 under the 0000 Xxx.
(b) The Company shall have delivered to the Underwriters
a certificate of the Company, signed by an authorized officer of the Company and
dated the Closing Date, to the effect that: (i) the representations and
warranties of the Company in this Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on the
Closing Date; and (ii) the Company has in all material respects complied with
all the agreements and satisfied all the conditions on its part that are
required hereby to be performed or satisfied at or prior to the Closing Date.
(c) The Underwriters shall have received with respect to
the Company a good standing certificate from the Secretary of State of the State
of Delaware, dated not earlier than ten (10) days prior to the Closing Date.
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(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.
(e) The Underwriters shall have received from Sidley
Xxxxxx Xxxxx & Xxxx LLP, special counsel for the Company, a favorable opinion,
dated the Closing Date, substantially in the form attached hereto as Exhibit
A-1.
(f) The Underwriters shall have received copies of all
legal opinion letters delivered by Sidley Xxxxxx Xxxxx & Xxxx LLP, special
counsel for the Company, to the Rating Agencies in connection with the issuance
of the Certificates, accompanied in each case by a letter signed by Sidley
Xxxxxx Xxxxx & Xxxx LLP stating that the Underwriters may rely on such opinion
letter as if it were addressed to them as of date thereof.
(g) The Underwriters shall have received from in-house
counsel for the Company, a favorable opinion, dated the Closing Date,
substantially in the form attached hereto as Exhibit A-2.
(h) The Underwriters shall have received from Sidley
Xxxxxx Xxxxx & Xxxx LLP, special counsel for the Company, a letter, dated the
Closing Date, substantially in the form attached hereto as Exhibit A-3,
regarding certain information in the Registration Statement and the Prospectus.
(i) The Underwriters shall have received from Deloitte &
Touche LLP, certified public accountants, a letter dated the Closing Date and
satisfactory in form and substance to the Underwriters and their counsel, to the
following effect:
(i) they have performed certain specified procedures
as a result of which they have determined that such information of an
accounting, financial or statistical nature set forth in the
Prospectus Supplement, as was agreed upon by the Underwriters, agrees
with the data sheet or computer tape prepared by or on behalf of the
Mortgage Loan Sellers, unless otherwise noted in such letter; and
(ii) they have compared the data contained in the
data sheet or computer tape referred to in the immediately preceding
clause (i) to information contained in an agreed upon sampling of the
Mortgage Loan files and in such other sources as shall be specified
by them, and
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found such data and information to be in agreement in all material
respects, unless otherwise noted in such letter.
(j) The Underwriters shall have received, with respect to
each of the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent, a favorable opinion of counsel, dated the Closing Date, addressing: the
valid existence of such party under the laws of its jurisdiction of
organization; the due authorization, execution and delivery of the Pooling and
Servicing Agreement by such party; the enforceability of the Pooling and
Servicing Agreement against such party, subject to such limitations as are
reasonably acceptable to the Underwriters and their counsel; and such other
matters as the Underwriters and their counsel may reasonably request. Counsel
rendering each such opinion may express its reliance as to factual matters on
representations and warranties made by, and on certificates or other documents
furnished by officers and/or authorized representatives of, the parties to the
Pooling and Servicing Agreement and on certificates furnished by public
officials and, further, may assume the due authorization, execution and delivery
of the instruments and documents referred to therein by the parties thereto
other than the party on behalf of which such opinion is being rendered. Each
such opinion need cover only the laws of the State of New York, the laws of the
jurisdiction of organization for the party on behalf of which such opinion is
being rendered and the federal law of the United States.
(k) The Underwriters shall have been furnished with all
documents, certificates and opinions required to be delivered by UBSWREI, UBSPF
and UBS (USA) in connection with the sale by UBSWREI of the UBS Mortgage Loans
to the Company, pursuant to the UBS Mortgage Loan Purchase Agreement. The
Underwriters shall be entitled to rely on each such certificate executed and
delivered by UBSWREI, UBS (USA) or any of their respective officers and
representatives, to the same extent that the Company may so rely, and each such
opinion addressed to the Company shall also be addressed to the Underwriters.
(l) The Underwriters shall have been furnished with all
documents, certificates and opinions required to be delivered by 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 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 Underwriters and their counsel, this
Agreement and all obligations of the Underwriters hereunder may be
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cancelled at, or at any time prior to, the Closing Date by the Underwriters.
Notice of such cancellation shall be given to the Company in writing, or by
telephone or telegraph confirmed in writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale
of the Certificates provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform in all material respects any agreement herein or comply in
all material respects with any provision hereof, other than by reason of a
default by the Underwriters or a refusal, inability or failure on the part of
UBSWREI or any of its affiliates to perform in all material respects any
agreement in, or comply in all material respects with any provision of, the UBS
Mortgage Loan Purchase Agreement, the Company will reimburse the Underwriters
upon demand, for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by any of them in
connection with the proposed purchase and sale of the Certificates. If the sale
of the Certificates provided for herein is not consummated because of a refusal,
inability or failure on the part of UBSWREI or any of its affiliates to perform
in all material respects any agreement in, or comply in all material respects
with any provision of, the UBS Mortgage Loan Purchase Agreement, UBSWREI will
reimburse the Underwriters upon demand, for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by any of them in connection with the proposed purchase and sale of the
Certificates.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls each Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against:
(i) any and all losses, liabilities, claims, damages,
costs and expenses whatsoever, as incurred, arising out of or based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of or based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus or any Preliminary Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) any and all losses, liabilities, claims,
damages, costs and expenses whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission or any such alleged untrue statement or
omission, contemplated by clause (i) above, if such settlement is
effected with the written consent of the Company or as otherwise
provided in Section 8(c) hereof; and
(iii) any and all expenses whatsoever, as incurred
(including, without limitation, the fees and disbursements of counsel
chosen by the Underwriters), reasonably incurred in investigating,
preparing for or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission,
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contemplated by clause (i) above, to the extent that any such expense
is not paid under clause (i) or (ii) above;
provided, however, that the Company shall not be liable under the indemnity
agreement in this subsection (a) for any such loss, liability, claim, damage,
cost or expense that arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission contemplated by clause (i)
above that was made in reliance upon and in conformity with written or
electronic information (as specified in Section 8(b) below) furnished to the
Company by either Underwriter expressly for use in the Registration Statement
(or any amendment thereto) or in the Prospectus or any Preliminary Prospectus
(or any amendment or supplement thereto); and provided, further, that the
Company shall not be liable under the indemnity agreement in this subsection (a)
for any such loss, liability, claim, damage, cost or expense that arises out of
or is based upon any untrue statement or omission or alleged untrue statement or
omission contemplated by clause (i) above that was made in any Computational
Materials or ABS Term Sheets (or any amendments or supplements thereto) in
respect of the Certificates delivered to prospective investors by one or more of
the Underwriters and furnished to the Company by any of the Underwriters
pursuant to Section 4(b)(iv) hereof and made a part of the Registration
Statement or incorporated by reference in the Prospectus or any Preliminary
Prospectus; and provided, further, that the Company shall not be liable under
the indemnity agreement in this subsection (a) for any such loss, liability,
claim, damage, cost or expense that arises out of or is based upon (A) any
untrue statement or omission or alleged untrue statement or omission
contemplated by clause (i) above that was made in the Prospectus or any
Preliminary Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with (1) the Master Tape (it being acknowledged that the
Master Tape was used to prepare the Prospectus Supplement and any Preliminary
Prospectus Supplement, including, without limitation, Annex X-0, Xxxxx X-0,
Xxxxx X-0, Annex A-4, Annex X-0, Xxxxx X-0, Xxxxx X-0 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 X-0,
Xxxxx X-0, Xxxxx X-0, Annex A-4, Annex X-0, Xxxxx X-0, Xxxxx X-0 and/or Annex B
thereto or on the accompanying diskette, except to the extent that such untrue
statement or omission or alleged untrue statement or omission contemplated by
clause (i) above under such headings, on such annexes or on such diskette was
made as a result of an error in the manipulation of, or any calculations based
upon, or any aggregation of, such information regarding the Mortgage Loan Seller
Matters; and, provided, further, that the Company shall not be liable to either
Underwriter or any person controlling such Underwriter under the indemnity
agreement in this subsection (a) for any such loss, liability, claim, damage,
cost or expense that arises out of or is based upon any untrue statement or
omission contemplated by clause (i) above that was made in any Preliminary
Prospectus to the extent that such losses, liabilities, claims, damages, costs
or expenses result from the fact that such Underwriter sold Certificates to a
person as to whom it shall be established that there was not sent or given, at
or prior to the confirmation of such sale, a copy of the Prospectus (excluding
documents incorporated therein by reference), such untrue statement or omission
had been corrected in the Prospectus and a sufficient number of copies of the
Prospectus had been provided by the Company to such Underwriter prior to the
confirmation of such sale.
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(b) The respective Underwriters, severally and not
jointly, each agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act against any and all losses, liabilities, claims,
damages, costs and expenses described in clauses (i), (ii) and (iii) of Section
8(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Prospectus or
any Preliminary Prospectus (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with written or electronic information relating
to such Underwriter furnished to the Company by such Underwriter, or by the
other Underwriter on its behalf, expressly for use in the Prospectus or such
Preliminary Prospectus (or any amendment or supplement thereto), or made in any
Computational Materials or ABS Term Sheets in respect of the Certificates that
were prepared by such Underwriter and distributed by it or any other party to
prospective investors; provided, however, that such Underwriter shall not be
liable under the indemnity agreement in this subsection (b) for any such loss,
liability, claim, damage, cost or expense that arises out of or is based upon
any untrue statement or omission in any such Computational Materials or ABS Term
Sheets to the extent that such loss, liability, claim, damage or expense is
covered by the indemnity agreement included in Section 1(a) of either
Indemnification Agreement, unless it shall be established that such Underwriter
was notified electronically or in writing of such untrue statement or omission
prior to the time of confirmation of sale to the person that purchased the
Certificates that are the subject of such loss, liability, claim, damage or
expense, or action in respect thereof, and such Underwriter failed to deliver to
such person corrected Computational Materials or ABS Term Sheets (or, if the
superseding or correcting information is contained in the Prospectus, failed to
deliver to such person such Prospectus) prior to confirmation of such sale to
such person. It is hereby acknowledged that (i) the statements set forth in the
first, fourth and fifth sentences of the penultimate paragraph, and the entire
last paragraph, above the emboldened names of the Underwriters on the cover of
the Prospectus Supplement and any Preliminary Prospectus Supplement, (ii) the
statements under the caption "Summary of Prospectus Supplement--Relevant
Parties--Underwriters" in the Prospectus Supplement or any Preliminary
Prospectus Supplement, and (iii) the statements in the table and in the first
sentence of each of the third and fifth paragraphs, and the entire sixth
paragraph, under the caption "Method of Distribution" in the Prospectus
Supplement or any Preliminary Prospectus Supplement, constitute the only written
or electronic information furnished to the Company by the Underwriters expressly
for use in the Prospectus or any Preliminary Prospectus.
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of the indemnity
agreement in subsection (a) or (b), as applicable, of this Section 8. An
indemnifying party may participate at its own expense in the defense of any such
action and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of such
counsel, or (ii) the indemnifying party shall not have assumed the defense of
such action, with counsel satisfactory to the indemnified party, within a
reasonable period following the indemnifying party's receiving notice of such
action, or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In no event shall
-15-
the indemnifying party or parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from its or their own
counsel to all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
Notwithstanding anything herein to the contrary, an
indemnifying party shall not be liable under subsection (a) or (b) of this
Section 8 for any settlement or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification could be sought under such
subsection (a) or (b), as the case may be, of this Section 8, effected without
its written consent, unless (i) at any time an indemnified party shall have
requested such indemnifying party to reimburse the indemnified party for fees
and expenses of counsel for which the indemnifying party is obligated under this
Section 8, (ii) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (iii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification could be sought under subsection
(a) or (b), as applicable, of this Section 8 (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) The amount paid or payable by an indemnified party as
a result of the losses, liabilities, claims, damages, costs or expenses referred
to in this Section 8 shall be deemed to include any legal fees and disbursements
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such claim except where the indemnified
party is required to bear such expenses, which expenses the indemnifying party
shall pay as and when incurred, at the request of the indemnified party, to the
extent that it is reasonable to believe that the indemnifying party will be
ultimately obligated to pay such expenses. In the event that any expenses so
paid by the indemnifying party are subsequently determined to not be required to
be borne by the indemnifying party hereunder, the party which received such
payment shall promptly refund the amount so paid to the party which made such
payment.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity agreements contained in this Section 8
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Company, the
Underwriters, any of their respective directors or officers, or any person
controlling the Company or any of the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
9. CONTRIBUTION.
(a) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8(a) or Section 8(b) hereof is for any reason held to be
-16-
unenforceable by the indemnified parties although applicable in accordance with
its terms, the Company, on the one hand, and the Underwriters, on the other
hand, shall contribute to the aggregate losses, liabilities, claims, damages,
costs and expenses of the nature contemplated by said indemnity agreement
incurred by the Company, on the one hand, or the Underwriters, on the other
hand, as incurred, (i) in such proportions as are appropriate to reflect the
relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the transactions contemplated by this
Agreement, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages, costs and/or expenses, as well as any other
relevant equitable considerations; provided, however, that in no case shall
either Underwriter be responsible under this Section 9(a) for any amount in
excess of the fees and/or underwriting discounts received by such Underwriter in
connection with the underwriting of the Certificates, less any amount previously
paid by such Underwriter in respect of the subject losses, liabilities, claims,
damages, costs and/or expenses. For purposes of the foregoing, the benefits
received by the Company in connection with the transactions contemplated by this
Agreement shall be deemed to be equal to the total gross proceeds from the sale
of the Certificates (before deducting expenses, but excluding fees paid to the
Underwriters) received by the Company, and the benefits received by each
Underwriter in connection with the transactions contemplated by this Agreement
shall be deemed to be equal to the fees and/or underwriting discounts received
by such Underwriter in connection with the underwriting of the Certificates. The
relative fault of the Company, on the one hand, and the Underwriters, on the
other hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 9(a) were determined by per capita allocation or by any
other method of allocation that does not take account of the considerations
referred to in this Section 9(a).
(b) Notwithstanding the foregoing, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 9, each person,
if any, who controls either Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The remedies provided for in this Section 9 are not exclusive and shall
not limit any rights or remedies that may otherwise be available at law or in
equity to any party entitled to contribution under this Section 9.
(c) The contribution agreements contained in this Section
9 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Company, the
Underwriters, any of their respective directors or officers, or any person
controlling the Company or any of the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of
-17-
officers of the Company submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
either Underwriter, or by or on behalf of the Company, or by or on behalf of any
of the controlling persons and officers and directors referred to in Sections 8
and 9 hereof, and shall survive delivery of the Certificates to the
Underwriters.
11. TERMINATION OF AGREEMENT; SURVIVAL.
(a) The Underwriters may terminate their obligations
under this Agreement, by notice to the Company, at any time at or prior to the
Closing Date (i) if there has been, since the date of this Agreement or since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any outbreak of hostilities or escalation thereof or other calamity or
crisis the effect of which is such as to make it, in the reasonable judgment of
the Underwriters, impracticable to market the Certificates or to enforce
contracts for the sale of the Certificates, or (iii) if trading generally on the
New York Stock Exchange has been suspended, or if a banking moratorium has been
declared by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this
Section 11, such termination shall be without liability of any party to any
other party, except that the provisions of Section 5(g) hereof regarding the
payment of costs and expenses and the provisions of Sections 8 and 9 hereof
shall survive the termination of this Agreement.
12. SUBSTITUTION OF UNDERWRITERS.
(a) If either Underwriter shall fail to take up and pay
for the amount of the Certificates agreed by such Underwriter to be purchased
under this Agreement, upon tender of such Certificates in accordance with the
terms hereof, and the amount of the Certificates not purchased does not
aggregate more than 10% of the total amount of the Certificates set forth in
Schedule II hereof (based on aggregate purchase price), then the remaining
Underwriter shall be obligated to take up and pay for the Certificates that the
withdrawing or defaulting Underwriter agreed but failed to purchase.
(b) If either Underwriter shall fail to take up and pay
for the amount of the Certificates agreed by such Underwriter to be purchased
under this Agreement (such Underwriter being a "Defaulting Underwriter"), upon
tender of such Certificates in accordance with the terms hereof, and the amount
of the Certificates not purchased aggregates more than 10% of the total amount
of the Certificates set forth in Schedule II hereto (based on aggregate purchase
price), and arrangements satisfactory to the remaining Underwriter and the
Company for the purchase of such Certificates by other persons are not made
within 36 hours thereafter, this Agreement shall terminate. In the event of any
such termination, the Company shall not be under any liability to either
Underwriter (except to the extent provided in Section 5(g), Section 8 and
Section 9 hereof), nor shall the non-Defaulting Underwriter be under any
liability to the Company (except to the extent provided in Sections 8 and 9
hereof). Nothing herein shall be deemed to relieve any Defaulting Underwriter
from any liability it may have to the Company or the other Underwriter by reason
of its failure to take up and pay for Certificates as agreed by such Defaulting
Underwriter.
13. NOTICES. Any notice by the Company to either
Underwriter shall be sufficient if given in writing or by telegraph addressed to
the address for such Underwriter set forth on Schedule II hereto (or,
-18-
in the case of either Underwriter, to such other address as such Underwriter
shall designate in writing to the Company in accordance with this Section 13)
and any notice by either Underwriter to the Company shall be sufficient if given
in writing or by telegraph addressed to the Company at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxx (or to such other address as the
Company shall designate in writing to the Underwriters in accordance with this
Section 13).
14. BENEFICIARIES. This Agreement shall be binding upon
the Underwriters, the Company and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
persons, except that the indemnity agreement of the Underwriters contained in
Section 8 hereof and the contribution agreement of the Underwriters contained in
Section 9 hereof shall each be deemed to be also for the benefit of directors of
the Company, officers of the Company who have signed the Registration Statement
and any person controlling the Company; and the indemnity agreement of the
Company contained in Section 8 hereof and the contribution agreement of the
Company contained in Section 9 hereof shall each be deemed to be also for the
benefit of any person controlling an Underwriter. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 14, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
15. BUSINESS DAY. For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange is open for
trading.
16. APPLICABLE LAW. This Agreement will be governed by
and construed in accordance with the laws of the State of New York, applicable
to contracts negotiated, made and to be performed entirely in said State.
17. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, and, if executed in more than one counterpart, the
executed counterparts shall together constitute a single instrument.
18. WAIVERS, MODIFICATIONS AND AMENDMENTS. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
except by a writing signed by the party against whom enforcement of such change,
waiver, discharge or termination is sought.
-19-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this instrument, along with all counterparts, and your acceptance
shall represent a binding agreement between the Company, the Underwriters and
the Mortgage Loan Sellers signing this Agreement for purposes of Section 5(g)
and 7.
Very truly yours,
STRUCTURED ASSET SECURITIES
CORPORATION II
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
Confirmed and accepted as of the date first above written:
XXXXXX BROTHERS INC. UBS WARBURG LLC
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------- ---------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory Title: Director
By: /s/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
Title: Director
Confirmed and accepted as of the date first above written, solely for purposes
of Sections 5(g) and 7:
UBS WARBURG REAL ESTATE INVESTMENTS INC.
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
Confirmed and accepted as of the date first above written, solely for purposes
of Section 5(g):
XXXXXX BROTHERS HOLDINGS INC.,
DOING BUSINESS AS XXXXXX CAPITAL,
A DIVISION OF XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxx Xxx
----------------------------
Name: Xxx Xxx
Title: Authorized Signatory
SCHEDULE I
Underwriting Agreement, dated as of December 18, 2002.
Title and Description of the Certificates: LB-UBS Commercial Mortgage Trust
2002-C7, Commercial Mortgage
Pass-Through Certificates, Series
2002-C7, Class A-1, Class X-0,
Xxxxx X-0, Class A-4, Class B,
Class C, Class D, Class E, Class F
and Class G Certificates
Cut-off Date: December 11, 2002
Expected Closing Date: December 27, 2002
CERTIFICATES
------------
--------------------------------------------------------------------------------------------------------------------------
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4 CLASS B
--------- --------- --------- --------- -------
--------------------------------------------------------------------------------------------------------------------------
Initial Aggregate Principal Amount $63,000,000 $190,000,000 $100,000,000 $394,367,000 $20,779,000
--------------------------------------------------------------------------------------------------------------------------
Initial Pass-Through Rate 3.170% 3.899% 4.659% 4.960% 5.081%
--------------------------------------------------------------------------------------------------------------------------
Rating(1) AAA/AAA AAA/AAA AAA/AAA AAA/AAA AA+/AA+
--------------------------------------------------------------------------------------------------------------------------
Purchase Price(2) 100.49787% 100.49573% 100.49456% 100.49647% 100.49612%
--------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
CLASS C CLASS D CLASS E CLASS F CLASS G
------- ------- ------- ------- -------
-------------------------------------------------------------------------------------------------------------------------
Initial Aggregate Principal Amount $17,811,000 $17,811,000 $14,843,000 $14,843,000 $14,842,000
-------------------------------------------------------------------------------------------------------------------------
Initial Pass-Through Rate 5.101% 5.160% 5.209% 5.248% 5.333%
-------------------------------------------------------------------------------------------------------------------------
Rating(1) AA/AA AA-/AA- A+/A+ A/A A-/A-
-------------------------------------------------------------------------------------------------------------------------
Purchase Price(2) 100.49863% 100.49842% 100.49702% 100.49442% 100.49452%
-------------------------------------------------------------------------------------------------------------------------
---------------
(1) By Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. and Fitch, Inc., respectively.
(2) Expressed as a percentage of the initial aggregate stated principal
amount of each class of Certificates. There shall be added to the
Purchase Price for each class of Certificates accrued interest at the
initial Pass-Through Rate therefor on the initial aggregate principal
amount thereof from 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
---------------------------- ----- ----------------------------
Xxxxxx Brothers Inc. A-1 $ 63,000,000
000 Xxxxxxx Xxxxxx A-2 $190,000,000
Xxx Xxxx, Xxx Xxxx 00000 A-3 $100,000,000
Attention: Xxxxx Xxxxxxx A-4 $394,367,000
B $ 20,779,000
C $ 17,811,000
D $ 17,811,000
E $ 14,843,000
F $ 14,843,000
G $ 14,842,000
UBS Warburg LLC A-1 $ 0
1285 Avenue of the Americas, 00xx Xxxxx X-0 $ 0
Xxx Xxxx, Xxx Xxxx 00000 A-3 $ 0
Attention: Xxxxx Xxxxx A-4 $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
G $ 0
EXHIBIT A-1
FORM OF OPINION OF SIDLEY XXXXXX XXXXX & XXXX LLP,
SPECIAL COUNSEL FOR THE COMPANY
[LETTERHEAD OF SIDLEY XXXXXX XXXXX & XXXX LLP]
December 27, 2002
Structured Asset Securities Corporation II Standard & Poor's Ratings Services,
000 Xxxxxxx Xxxxxx a division of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. Fitch, Inc.
000 Xxxxxxx Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
UBS Warburg LLC LaSalle Bank National Association
1285 Avenue of the Americas 000 Xxxxx XxXxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Re: LB-UBS Commercial Mortgage Trust 2002-C7
Commercial Mortgage Pass-Through Certificates, Series 2002-C7
-------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Structured Asset Securities
Corporation II (the "Depositor"), Xxxxxx Brothers Inc. ("LBI") and Xxxxxx
Brothers Holdings Inc., doing business as Xxxxxx Capital, a division of Xxxxxx
Brothers Holdings Inc. ("LBHI"), in connection with the following transactions
(collectively, the "Transactions"):
(i) the sale by LBHI, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "LBHI Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement, dated
as of December 18, 2002 (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 18, 2002 (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 $1,186,963,272 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2002-C7 (the
"Certificates"), consisting of multiple classes designated Class A-1,
Class A-2, Class X-0, Xxxxx X-0, Class X-CL, Class X-CP, Class A-1b,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class P, Class Q, Class S, Class T,
Class U, Class R-I, Class R-II, Class R-III, Class R-LR and Class V,
pursuant to that certain Pooling and Servicing Agreement, dated as of
December 11, 2002 (the "Pooling and Servicing Agreement"), between the
Depositor, as depositor, Wachovia Bank, National Association, as master
servicer, Lennar Partners, Inc., as special servicer, LaSalle Bank
National Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V.,
as fiscal agent;
(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 and UBS
Warburg LLC ("UBSW" and, together with LBI, in such capacity, the
"Underwriters"), of the Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class
B, Class C, Class D, Class E, Class F and Class G Certificates
(collectively, the "Publicly Offered Certificates"), pursuant to that
certain Underwriting Agreement, dated as of December 18, 2002 (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
(together in such capacity, the "Initial Purchasers"), of the Class X-CL,
Class X-CP, Class A-1b, Class H, Class J, Class K, Class L, Class M,
Class N, Class P, Class Q, Class S, Class T and Class U Certificates
(collectively, the "Privately Offered Certificates" and, collectively
with the Publicly Offered Certificates, the "Offered Certificates"),
together with the Class V Certificates, pursuant to that certain
Certificate Purchase Agreement, dated as of December 18, 2002 (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 18, 2002 (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 18, 2002 (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"):
(a) the Prospectus Supplement, dated December 18, 2002 (the
"Prospectus Supplement"), specifically relating to the Publicly Offered
Certificates and the Trust;
(b) the Prospectus, dated October 28, 2002, relating to publicly
offered mortgage-backed securities, including mortgage pass-through certificates
evidencing interests in trust funds established by the Depositor (the "Basic
Prospectus" and, together with the Prospectus Supplement, the "Prospectus");
(c) the Offering Memorandum, dated December 18, 2002 (the
"Memorandum") specifically relating to the Privately Offered Certificates and
the Trust; and
(d) the registration statement on Form S-3 (No. 333-100864) (the
"Registration Statement") filed with the Securities and Exchange Commission (the
"Commission").
For purposes of rendering the opinions set forth below, we have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents and records as we have deemed relevant or
necessary as the basis for the opinions set forth below; we have obtained such
certificates from and made such inquiries of officers and representatives of the
parties to the Agreements and public officials as we have deemed relevant or
necessary as the basis for such opinions; and we have relied upon, and assumed
the accuracy of, such other documents and records, such certificates and the
statements made in response to such inquiries, with respect to the factual
matters upon which such opinions are based. We have also assumed (i) the
truthfulness and accuracy of each of the representations and warranties as to
factual matters contained in the Agreements, (ii) the legal capacity of natural
persons, (iii) the genuineness of all signatures, (iv) the authenticity of all
documents submitted to us as originals, (v) the conformity to authentic
originals of all documents submitted to us as certified, conformed or
photostatic copies, (vi) the due organization of each of the parties to the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) except as expressly addressed in
opinion paragraph 5 below, the power and authority of all parties to the
Agreements to enter into, perform under and consummate the transactions
contemplated by the Agreements, without any resulting conflict with or violation
of the organizational documents of any such party or with or of any law, rule,
regulation, order, writ or decree applicable to any such party or its assets,
and without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreements by all parties thereto, (ix) except as
expressly addressed in opinion paragraph 6 below, the constitution of each of
the Agreements as the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms, (x) the compliance
with the Agreements by all parties thereto and, in the case of the Pooling and
Servicing Agreement, by the registered holders and beneficial owners of the
Certificates, (xi) the conformity, to the requirements of the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements, of the Mortgage
Notes, the Mortgages and the other documents
delivered to the Trustee by, on behalf of or at the direction of the Depositor
and the Mortgage Loan Sellers, and (xii) the absence of any other agreement that
supplements or otherwise modifies the express terms of the Agreements.
Our opinions set forth below with respect to the enforceability of
any agreement or any particular right or obligation under any agreement are
subject to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not in writing and executed by all
relevant parties, to sever any provision of any agreement, to appoint any person
or entity as the attorney-in-fact of any other person or entity or to provide
that any agreement or any particular provision thereof is to be governed by or
construed in accordance with the laws of any jurisdiction other than the State
of New York; (4) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws affecting the rights of creditors or secured parties
generally; and (5) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
any provision of any agreement that purports or is construed to provide
indemnification with respect to securities law violations.
When used in this opinion, the term "knowledge" or words of similar
import mean the actual knowledge of facts or other information of the Sidley
Xxxxxx Xxxxx & Xxxx LLP 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 referred to below, the federal laws of the
United States of America (in each case, without regard to conflicts of law
principles). In addition, we do not express any opinion with respect to the tax,
securities or "doing business" laws of any particular State, including the State
of New York, or with respect to any matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Registration Statement has become effective under the Securities Act of
1933, as amended (the "1933 Act").
2. To our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn, and no proceedings
for that purpose have been instituted or threatened and not terminated.
3. The Registration Statement, the Basic Prospectus and the Prospectus
Supplement, as of their respective effective or issue dates (other than the
financial statements, schedules and other financial and statistical
information contained therein or omitted therefrom and other than
information incorporated therein by reference, as to which we express no
opinion), complied as to form in all material respects with the applicable
requirements of the 1933 Act and the rules and regulations of the Commission
thereunder.
4. To our knowledge, there are no material contracts, indentures or other
documents relating to the Publicly Offered Certificates of a character
required to be described or referred to in the Registration Statement or the
Prospectus Supplement or to be filed as exhibits to the Registration
Statement, other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
5. The execution, delivery and performance by the Depositor of the Mortgage
Loan Purchase Agreements, the Pooling and Servicing Agreement, the
Underwriting Agreement and the Certificate Purchase Agreement do not
conflict with, or result in a violation of, any federal or State of New York
statute, or any rule or regulation promulgated thereunder or pursuant
thereto, which statute, rule or regulation is applicable to the Depositor
(except for any such conflict or violation as would not have a material
adverse effect on the performance by the Depositor of its obligations under
those Agreements).
6. The Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement,
the Underwriting Agreement and the Certificate Purchase Agreement are each a
valid, legal and binding agreement of the Depositor, enforceable against the
Depositor in accordance with its terms.
7. The Offered Certificates, when duly and validly executed, authenticated and
delivered in accordance with the Pooling and Servicing Agreement and paid
for in accordance with the Underwriting Agreement or the Certificate
Purchase Agreement, as applicable, will be duly and validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement.
8. No consent, approval, authorization or order of any federal or State of New
York court, agency or other governmental body is required for the
consummation by the Depositor of the transactions contemplated by the terms
of the Mortgage Loan Purchase Agreements, the Pooling and Servicing
Agreement, the Underwriting Agreement and the Certificate Purchase
Agreement, except (a) such as have been obtained and (b) such as may be
required under state securities laws or the "blue sky" laws of any
jurisdiction in connection with the purchase and the offer and sale of
Offered Certificates by the Underwriters/Initial Purchasers, as to which we
express no opinion.
9. The Pooling and Servicing Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended.
10. The Trust is not required to be registered under the Investment Company Act
of 1940, as amended.
11. The statements set forth in the Prospectus Supplement under the headings
"Federal Income Tax Consequences", "ERISA Considerations" and "Legal
Investment", in the Basic Prospectus under the headings "Federal Income Tax
Consequences", "ERISA Considerations" and "Legal Investment" and in the
Memorandum under the headings "Certain Federal Income Tax Consequences",
"Certain ERISA Considerations" and "Legal Investment", to the extent that
they describe certain matters of federal law or legal conclusions with
respect thereto, while not purporting to discuss all possible consequences
of an investment in the Offered Certificates to all investors, provide an
accurate summary of such matters and conclusions set forth under such
headings.
12. The statements set forth in the Prospectus Supplement under the headings
"Description of the Offered Certificates" and "Servicing of the Underlying
Mortgage Loans", in the Basic Prospectus under the headings "Description of
the Certificates" and "Description of the Governing Documents" and in the
Memorandum under the headings "Summary of Offering Memorandum--Description
of the Privately Offered Certificates" and "Transfer and Exchange;
Restrictions" insofar as such statements purport to summarize certain
material provisions of the Offered Certificates and the Pooling and
Servicing Agreement, are accurate in all material respects.
13. As described in the Prospectus and Memorandum, (a) each Loan REMIC will
qualify as a REMIC within the meaning of the REMIC Provisions, and the
related Loan REMIC Regular Interest will be the "regular interest" and the
Class R-LR Certificates will evidence the sole class of "residual interests"
in each Loan REMIC, (b) REMIC I will qualify as a REMIC within the meaning
of the REMIC Provisions, and the REMIC I Regular Interests will be "regular
interests" and the Class R-I Certificates will evidence the sole class of
"residual interests" in REMIC I, (c) REMIC II will qualify as a REMIC within
the meaning of the REMIC Provisions, and the REMIC II Regular Interests will
be "regular interests" and the Class R-II Certificates will evidence the
sole class of "residual interests" in REMIC II, and (d) REMIC III will
qualify as a REMIC within the meaning of the REMIC Provisions, and the
Regular Interest Certificates will evidence "regular interests" and the
Class R-III Certificates will evidence the sole class of "residual
interests" in REMIC III.
14. The portion of the Trust Fund consisting of the Grantor Trust Assets will be
classified as a grantor trust under subpart E, part I of subchapter J of the
Internal Revenue Code of 1986, as amended.
15. Assuming the accuracy of the deemed representations set forth under the
heading "Notice to Investors" in the Memorandum on the part of investors
that purchase Privately Offered Certificates from LBI and UBSW, the offer
and sale of the Privately Offered Certificates by the Depositor to LBI and
UBSW, and by LBI and UBSW to investors that purchase from them, in the
manner contemplated by the Memorandum, the Certificate Purchase Agreement
and the Pooling and Servicing Agreement, are transactions that do not
require registration under the Securities Act of 1933, as amended.
The opinions expressed herein are being delivered to you as of the
date hereof, and we assume no obligation to advise you of any changes of law or
fact that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Transactions and may not be
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 XXXXXX BROTHERS]
December 27, 2002
Structured Asset Securities Corporation II Standard & Poor's Ratings Services,
000 Xxxxxxx Xxxxxx a division of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Warburg LLC Fitch, Inc.
1285 Avenue of the Americas Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. LaSalle Bank National Association
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Xxxxxx Brothers Holdings Inc.,
d/b/a Xxxxxx Capital, a division of
Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: LB-UBS Commercial Mortgage Trust 2002-C7 Commercial Mortgage
------------------------------------------------------------
Pass-Through Certificates, Series 2002-C7
-----------------------------------------
Ladies and Gentlemen:
I am internal counsel to Xxxxxx Brothers Inc. ("LBI") and, in such
capacity, have acted as counsel to Structured Asset Securities Corporation II, a
Delaware corporation ("SASCO II"), and am familiar with matters pertaining to
the following agreements (collectively, the "Agreements"): (i) the Pooling and
Servicing Agreement dated as of December 11, 2002 (the "Pooling and Servicing
Agreement"), by and between SASCO II, as depositor, Wachovia Bank, National
Association, as master servicer, Lennar Partners, Inc., as special servicer,
LaSalle Bank National Association, as trustee, and ABN AMRO Bank N.V., as fiscal
agent; (ii) the Mortgage Loan Purchase Agreement dated as of December 18, 2002,
by and between SASCO II and Xxxxxx Brothers Holdings Inc., doing business as
Xxxxxx Capital, a division of Xxxxxx Brothers Holdings Inc. ("LBHI"); (iii) the
Mortgage Loan Purchase Agreement dated as of December 18, 2002, by and between
SASCO II, UBS Warburg Real Estate Investments, Inc. ("UBSWREI"), and UBS
Principal Finance LLC, as an additional party; (iv) the Underwriting Agreement
dated as of December 18, 2002, by and between SASCO II, LBI and UBS
Warburg LLC ("UBSW") and acknowledged as to certain sections by UBSWREI and
LBHI; and (v) the Certificate Purchase Agreement dated as of December 18, 2002,
by and between SASCO II, LBI and UBSW.
In connection with this opinion, I have examined, or have had
examined on my behalf, an executed copy of each of the Agreements, certificates
and statements of public officials and officers of SASCO II and such other
agreements, instruments, documents and records as I have deemed necessary or
appropriate for the purposes of this opinion.
Based on the foregoing but subject to the assumptions, exceptions,
qualifications and limitations hereinafter expressed, I am of the opinion that:
1. SASCO II is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, with all requisite
corporate power to enter into the Agreements.
2. Each of the Agreements has been duly authorized, executed and
delivered by SASCO II.
3. The execution, delivery and performance of the Agreements by
SASCO II, (i) to my knowledge, do not and will not result in a material breach
or violation of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to me to which SASCO II is a party, (ii) do not contravene its
certificate of incorporation or by-laws, and (iii) to my knowledge, do not
contravene any order of any court or governmental agency that names SASCO II and
is specifically directed to its property (in each case, except for such
breaches, violations, defaults or contraventions as would not have a material
adverse effect on the ability of SASCO II to perform its obligations under the
Agreements).
The foregoing opinions are subject to the following assumptions,
exceptions, qualifications and limitations:
A. I am a member of the Bar of the State of New York and render no
opinion as to the laws of any jurisdiction other than the laws of the State of
New York, the General Corporation Law of the State of Delaware and the federal
laws of the United States of America.
B. My opinions are limited to the present laws and to the facts as
they presently exist. I assume no obligation to revise or supplement this
opinion should the present laws of any jurisdiction referred to in paragraph A.
above be changed by legislative action, judicial decision or otherwise.
C. I have assumed with your permission (i) the genuineness of all
signatures by each party other than SASCO II, (ii) the legal capacity of all
natural persons signing or delivering any instrument, (iii) the authenticity of
documents submitted to me as originals and the conformity with the authentic
original documents of all documents submitted to me as copies, and (iv) the due
execution and delivery, pursuant to due authorization, of all documents by each
party other than SASCO II.
D. I have relied on originals or copies, certified or otherwise
identified to my satisfaction, of the certificate of incorporation and by-laws
of SASCO II, records of proceedings taken by SASCO II, and other corporate
documents and records of SASCO II, and have made such other
investigations as I have deemed relevant or necessary for the purpose of this
opinion. I have relied, without independent investigation, as to factual matters
on the representations and warranties contained in the Agreements and on
certificates of public officials and/or officers and other representatives of
SASCO II.
This letter is rendered to you in connection with the Agreements and
the transactions related thereto and may not be relied upon by any other person
or by you in any other context or for any other purpose. This letter may not be
quoted in whole or in part, nor may copies thereof be furnished or delivered to
any other person, without my prior written consent.
The foregoing opinions are given on the express understanding that
the undersigned is an officer of Xxxxxx Brothers Inc. and shall in no event
incur any personal liability in connection with the said opinion.
Very truly yours,
EXHIBIT A-3
FORM OF LETTER TO BE DELIVERED BY
SIDLEY XXXXXX XXXXX & XXXX LLP, SPECIAL COUNSEL
TO THE COMPANY AND COUNSEL TO THE UNDERWRITERS
REGARDING THE DISCLOSURE IN THE REGISTRATION STATEMENT
AND PROSPECTUS
[Letterhead of Sidley Xxxxxx Xxxxx & Xxxx LLP]
December 27, 2002
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Warburg LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: LB-UBS Commercial Mortgage Trust 2002-C7
Commercial Mortgage Pass-Through Certificates, Series 2002-C7
-------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Structured Asset Securities
Corporation II (the "Depositor"), Xxxxxx Brothers Inc. ("LBI") and Xxxxxx
Brothers Holdings Inc., doing business as Xxxxxx Capital, a division of Xxxxxx
Brothers Holdings Inc. ("LBHI"), in connection with the following transactions
(collectively, the "Transactions"):
(i) the sale by LBHI, and the purchase by the Depositor, of
certain multifamily and commercial mortgage loans (the "LBHI Mortgage
Loans"), pursuant to that certain Mortgage Loan Purchase Agreement, dated
as of December 18, 2002 (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 18, 2002 (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 $1,186,963,272 Certificate Principal Balance of
Commercial Mortgage Pass-Through Certificates, Series 2002-C7 (the
"Certificates"), consisting of multiple classes designated Class A-1,
Class A-2, Class X-0, Xxxxx X-0, Class X-CL, Class X-CP, Class A-1b, Class
B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P, Class Q, Class S, Class T, Class U,
Class R-I, Class R-II, Class R-III, Class R-LR and Class V, pursuant to
that certain Pooling and Servicing Agreement, dated as of December 11,
2002 (the "Pooling and Servicing Agreement"), between the Depositor, as
depositor, Wachovia Bank, National Association, as master servicer, Lennar
Partners, Inc., as special servicer, LaSalle Bank National Association, as
trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent;
(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 and UBS
Warburg LLC (together, the "Underwriters"), of the Class X-0, Xxxxx X-0,
Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F and
Class G Certificates (collectively, the "Publicly Offered Certificates"),
pursuant to that certain Underwriting Agreement, dated as of December 18,
2002 (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 18, 2002 (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 18, 2002 (the "UBS
Indemnification Agreement" and, together with the LBHI Indemnification
Agreement, the "Indemnification Agreements"), between UBSWREI, UBS (USA),
Inc., the Depositor and the Underwriters.
In the course of our acting as special counsel to the Depositor, LBI
and LBHI as described above, we prepared or reviewed the Pooling and Servicing
Agreement, the Underwriting Agreement, the Mortgage Loan Purchase Agreements and
the Indemnification Agreements (collectively, the "Agreements"). Capitalized
terms not defined herein have the respective meanings set forth in the Pooling
and Servicing Agreement and, to the extent not defined therein, in the other
Agreements.
In addition, with the knowledge and consent of the Depositor and the
Underwriters, we have also acted as special counsel to those parties in
connection with the preparation or review of the following documents and all
exhibits thereto (collectively with the Agreements, the "Relevant Documents"):
(a) the Prospectus Supplement, dated December 18, 2002 (the
"Prospectus Supplement"), specifically relating to the Publicly Offered
Certificates and the Trust;
(b) the Prospectus, dated October 28, 2002, relating to
publicly offered mortgage-backed securities, including mortgage
pass-through certificates evidencing interests in trust funds established
by the Depositor (the "Basic Prospectus" and, together with the Prospectus
Supplement, the "Prospectus");
(c) the registration statement on Form S-3 (No. 333-100864)
(the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission");
(d) the loan agreement, the Mortgage Note and selected
provisions of the Mortgage for the Mortgage Loan described in the
Prospectus Supplement as the "Union Bank Plaza Mortgage Loan"; and
(e) asset summaries prepared and provided to us by LBHI with
respect to the Mortgaged Properties securing 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, conformed
or photostatic copies, (vi) the due organization of each of the parties to the
Agreements and the valid existence of each such party in good standing under the
laws of its jurisdiction of organization, (vii) the power and authority of all
parties to the Agreements to enter into, perform under and consummate the
transactions contemplated by the Agreements, without any resulting conflict with
or violation of the organizational documents of any such party or with or of any
law, rule, regulation, order, writ or decree applicable to any such party or its
assets, and without any resulting default under or breach of any other agreement
or instrument by which any such party is bound or which is applicable to it or
its assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of the Agreements by all parties thereto, (ix) the
constitution of each of the Agreements as the legal, valid and binding
obligation of each party thereto, enforceable against such party in accordance
with its terms, (x) the compliance with the Agreements by all parties thereto
and, in the case of the Pooling and Servicing Agreement, by the registered
holders and beneficial owners of the Certificates, (xi) the conformity, to the
requirements of the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreements, of the Mortgage Notes, the Mortgages and the other
documents delivered to the Trustee by, on behalf of or at the direction of the
Depositor and/or the Mortgage Loan Sellers, (xii) the conformity of the text of
each document filed with the Commission through the Commission's Electronic Data
Gathering, Analysis and Retrieval System to the printed documents reviewed by
us, and (xiii) the absence of any other agreement that supplements or otherwise
modifies the express terms of the Agreements. In rendering this letter, we do
not make any statement or express any view concerning the laws of any
jurisdiction other than the federal laws of the United States of America.
While we have made no independent check or verification of, and do
not assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, on the
basis of and subject to the foregoing, nothing has come to our attention that
has caused us to believe that (a) the Registration Statement, as of its
effective date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (b) the Prospectus, as of the date of the
Prospectus Supplement or as of the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that we express no view or belief as to (w) any information contained in
or omitted from the Prospectus Supplement with respect to the description of the
Mortgage Loans identified therein as "The Capitol at Chelsea Mortgage Loan" or
the "Westfield Shoppingtown Independence Mortgage Loan" and/or the description
of the obligors under, and the Mortgaged Properties relating to, the foregoing
two Mortgage Loans, (x) any financial, statistical or numerical data set forth
or referred to in or omitted from the Registration Statement or the Prospectus,
(y) the information set forth on or omitted from any diskette that may accompany
the Prospectus, or (z) any documents or information incorporated by reference in
the Registration Statement or the Prospectus.
In connection with delivering this letter, we advise you that, as to
materiality, we have relied, to the extent that we may properly do so in the
discharge of our professional responsibilities as experienced law practitioners,
upon the judgment of officers and representatives of the Depositor, the
Underwriters and the Mortgage Loan Sellers. In addition, we call to your
attention that, with your knowledge and consent, we have not, except to the
limited extent described above, examined or otherwise reviewed any of the
Mortgage Files or any particular documents contained in such files or any other
document with respect to the Mortgage Loans. When used in this letter, the term
"attention" or words of similar import mean the conscious awareness of facts or
other information of the Sidley Xxxxxx Xxxxx & Xxxx LLP attorneys currently
practicing law with this firm who have been actively involved in providing the
representation described above in connection with the Transactions.
The statements set forth herein are being made to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the statements made herein. This letter is being delivered solely for the
benefit of the persons to which it is addressed in connection with the
Transactions; accordingly, it may not be quoted or otherwise delivered to or
relied upon by any other person (including, without limitation, any person who
acquires Publicly Offered Certificates from any Underwriter), filed with any
governmental authority or other regulatory agency or otherwise circulated or
utilized for any other purpose without our prior written consent.
Very truly yours,
