LB-UBS COMMERCIAL MORTGAGE TRUST 2002-C2,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2002-C2
UNDERWRITING AGREEMENT
As of June 26, 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
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Structured Asset Securities Corporation, a Delaware
corporation (the "Company"), proposes to cause the issuance of, and to sell to
Xxxxxx Brothers Inc. ("Xxxxxx"), UBS Warburg LLC ("UBSW"; and, together with
Xxxxxx, the "Lead Underwriters") and Deutsche Bank Securities Inc. ("Deutsche
Bank"; and, collectively with Xxxxxx and UBSW, the "Underwriters"), the mortgage
pass-through certificates that are identified on Schedule I attached hereto (the
"Certificates").
The Certificates will evidence beneficial ownership interests
in a trust fund (the "Trust Fund") to be formed by the Company and consisting
primarily of a segregated pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"). Certain of the Mortgage Loans
(the "UBS Mortgage Loans") will be acquired by the Company from UBS Warburg Real
Estate Investments Inc. ("UBSWREI"), pursuant to a mortgage loan purchase
agreement dated as of the date hereof (the "UBS Mortgage Loan Purchase
Agreement"), between the Company, UBSWREI and UBS Principal Finance LLC
("UBSPF"). The other Mortgage Loans (the "Holdings Mortgage Loans") will be
acquired by the Company from 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 June 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"), Lend Lease Asset Management, L.P. as special
servicer (the "Special Servicer") and ABN AMRO Bank N.V. as fiscal agent (the
"Fiscal Agent"). The Certificates and the Mortgage Loans are described more
fully in the Prospectus (as defined below), which the Company has furnished to
the Underwriters. Capitalized terms used but not defined herein have the
respective meanings assigned thereto in the Prospectus.
The Certificates are part of a series of mortgage pass-through
certificates that evidence beneficial ownership interests in the Trust Fund and
are being issued pursuant to the Pooling and Servicing Agreement. The other
certificates of such series will be retained by the Company or privately placed
with a limited number of institutional investors.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
The Company represents, warrants and agrees with the respective Underwriters
that:
(a) A registration statement on Form S-3 (No. 333-73338) 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
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required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company makes no representation or
warranty as to (i) information contained in or omitted from the Registration
Statement or the Prospectus, or any amendment or supplement thereto, in reliance
upon and in conformity with written or electronic information furnished to the
Company by the Underwriters specifically for inclusion therein, (ii) the
information contained in or omitted from the Prospectus, or any amendment or
supplement thereto, in reliance upon and conformity with (A) the Master Tape (it
being acknowledged that the Master Tape was used to prepare the Prospectus
Supplement and any Preliminary Prospectus Supplement, including, without
limitation, Annex 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 and Annex B thereto or on the accompanying diskette,
or contained in or omitted from the Special Dadeland Mall Financial Information
or the Special Square One Mall Financial Information, which financial
information was filed as part of the Registration Statement as an exhibit to a
current report on Form 8-K and incorporated by reference into the Prospectus, 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 July 17, 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. "Special Dadeland Mall Financial
Information" means the financial information relating to the Dadeland Mall
Mortgaged Property referred to in the Prospectus Supplement under the headings
"Incorporation by Reference" and "Description of the Mortgage Pool--Significant
Underlying Mortgage Loans--The Dadeland Mall Mortgage Loan--Additional Financial
Information"; and "Special Square One Mall Financial Information" means the
financial information relating to the Square One Mall Mortgaged Property
referred to in the Prospectus Supplement under the headings "Incorporation by
Reference" and "Description of the Mortgage Pool--Significant Underlying
Mortgage Loans--The Square One Mall Mortgage Loan--Additional Financial
Information".
(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.
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(d) As of the date hereof, as of the date on which the
Prospectus Supplement is first filed pursuant to Rule 424 under the 1933 Act, as
of the date on which, prior to the Closing Date, any amendment to the
Registration Statement becomes effective, as of the date on which any supplement
to the Prospectus Supplement is filed with the Commission, and as of the Closing
Date, there has not and will not have been (i) any request by the Commission for
any further amendment to the Registration Statement or the Prospectus or for any
additional information, (ii) any issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threat of any proceeding for that purpose or (iii) any notification with respect
to the suspension of the qualification of the Certificates for sale in any
jurisdiction or any initiation or threat of any proceeding for such purpose.
(e) This Agreement has been duly authorized, executed and
delivered by the Company, and the Pooling and Servicing Agreement and the
respective Mortgage Loan Purchase Agreements, when executed and delivered as
contemplated hereby and thereby, will have been duly authorized, executed and
delivered by the Company; and, assuming due authorization, execution and
delivery hereof and thereof by the other parties hereto and thereto, this
Agreement constitutes, and the Pooling and Servicing Agreement and the
respective Mortgage Loan Purchase Agreements, when so executed and delivered
will constitute, legal, valid and binding agreements of the Company, enforceable
against the Company in accordance with their respective terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws affecting the enforcement of the
rights of creditors generally, (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and (iii) public
policy considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of any
such agreement that purport or are construed to provide indemnification for
securities law liabilities.
(f) As of the Closing Date, the Certificates and the Pooling
and Servicing Agreement will conform in all material respects to the respective
descriptions thereof contained in the Prospectus. As of the Closing Date, the
Certificates will be duly and validly authorized and, when duly and validly
executed, authenticated and delivered in accordance with the Pooling and
Servicing Agreement to the Underwriters against payment therefor as provided
herein, will be duly and validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement.
(g) At the Closing Date, each of the representations and
warranties of the Company set forth in the Pooling and Servicing Agreement will
be true and correct in all material respects.
(h) The Company is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture or
instrument the effect of which violation or default would be material to the
Company or which violation or default would have a material adverse affect on
the performance of its obligations under this Agreement, the Pooling and
Servicing Agreement or either of the Mortgage Loan Purchase Agreements. The
execution, delivery and performance by the Company of this Agreement, the
Pooling and Servicing Agreement and the respective Mortgage Loan Purchase
Agreements do not and will not conflict with or result in a breach of any term
or provision of the certificate of incorporation or by-laws of the Company or
conflict with, result in a breach, violation or acceleration of, or constitute a
default under, the terms of any indenture or other agreement or instrument to
which the Company is a party or by which it or any of its material assets is
bound, or any statute, order, 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.
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(i) There is no action, suit or proceeding against the Company
pending, or, to the knowledge of the Company, threatened, before any court,
arbitrator, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, the Pooling and Servicing Agreement, either of the Mortgage
Loan Purchase Agreements or the Certificates, (ii) seeking to prevent the
issuance of the Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement or either of
the Mortgage Loan Purchase Agreements, (iii) that might materially and adversely
affect the performance by the Company of its obligations under, or the validity
or enforceability of, this Agreement, the Pooling and Servicing Agreement,
either of the Mortgage Loan Purchase Agreements or the Certificates or (iv)
seeking to affect adversely the federal income tax attributes of the
Certificates as described in the Prospectus.
(j) There are no contracts, indentures or other documents of a
character required by the 1933 Act or by the rules and regulations thereunder to
be described or referred to in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(k) No authorization, approval or consent of or filing with
any court or governmental authority or agency is necessary in connection with
the offering, issuance or sale of the Certificates pursuant to or as
contemplated by this Agreement and the Pooling and Servicing Agreement, except
such as have been, or as of the Closing Date will have been, obtained or
completed, as applicable, or such as may otherwise be required under applicable
state securities laws in connection with the purchase and the offer and sale of
the Certificates by the Underwriters, and except any recordation or filing of
the respective assignments of the Mortgage Loans to the Trustee pursuant to the
Pooling and Servicing Agreement that have not been completed.
(l) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Company has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company.
(m) Any taxes, fees and other governmental charges payable by
the Company in connection with the execution and delivery of this Agreement, the
Pooling and Servicing Agreement or either of the Mortgage Loan Purchase
Agreements or the issuance and sale of the Certificates (other than such
federal, state and local taxes as may be payable on the income or gain
recognized therefrom), have been or will be paid at or prior to the Closing
Date.
(n) Neither the Company nor the Trust Fund is, and neither the
issuance and sale of the Certificates in the manner contemplated by the
Prospectus nor the activities of the Trust Fund pursuant to the Pooling and
Servicing Agreement will cause the Company or the Trust Fund to be, an
"investment company" or under the control of an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(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
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interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriters
will constitute at least reasonably equivalent value and fair consideration for
the Certificates. The Company will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund and the sale of the Certificates to the
Underwriters. The Company is not selling the Certificates to the Underwriters or
transferring the Mortgage Loans to the Trustee on behalf of the Trust Fund with
any intent to hinder, delay or defraud any of the creditors of the Company.
(p) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Company are pending or contemplated.
(q) At the Closing Date, the respective classes of
Certificates shall have been assigned ratings no lower than those set forth in
Schedule I hereto by the nationally recognized statistical rating organizations
identified in Schedule I hereto (the "Rating Agencies").
2. PURCHASE AND SALE. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth on Schedule I hereto, Certificates of each class thereof having the
actual principal amount set forth next to the name of such Underwriter on
Schedule II hereto. Each of the Underwriters shall only be required to purchase
the actual principal amount of the Certificates of each class thereof set forth
next to such Underwriter's name on Schedule II hereto. There will be added to
the purchase price of the Certificates an amount equal to interest accrued
thereon pursuant to the terms thereof from June 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 July 9, 2002 or at such other location, time and date as shall be
mutually agreed upon by the Lead Underwriters and the Company (such time and
date of closing, the "Closing Date"). Delivery of the Certificates shall be made
through the Same Day Funds Settlement System of the Depository Trust Company
("DTC"). Payment shall be made to the Company in immediately available Federal
funds wired to such bank as may be designated by the Company (or by such other
method of payment as may be mutually agreed upon by the Company and any
particular Underwriter), against delivery of the Certificates. The Certificates
will be made available for examination by the Underwriters not later than 3:00
p.m. New York City time on the last business day prior to the Closing Date.
References herein, including, without limitation, in the
Schedules hereto, to actions taken or to be taken following the Closing Date
with respect to any Certificates that are to be delivered through the facilities
of DTC shall include, if the context so permits, actions taken or to be taken
with respect to the interests in such Certificates as reflected on the books and
records of DTC.
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4. OFFERING BY THE UNDERWRITERS.
(a) It is understood that the Underwriters propose to offer
the Certificates for sale to the public, including, without limitation, in and
from the State of New York, as set forth in the Prospectus Supplement. It is
further understood that the Company, in reliance upon Policy Statement 105 has
not and will not file the offering pursuant to Section 352-e of the General
Business Law of the State of New York with respect to the Certificates which are
not "mortgage related securities" as defined in the 1934 Act (as defined below).
Accordingly, each Underwriter covenants and agrees with the Company that sales
of such Certificates made by such Underwriter in the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
(b) The Underwriters may prepare and provide (and acknowledge
that they have prepared and provided) to prospective investors certain
Computational Materials or ABS Term Sheets in connection with the offering of
the Certificates. In this regard, each Underwriter represents and warrants to,
and covenants with, the Company that:
(i) Such Underwriter has complied and shall comply with
the requirements of the no-action letter, dated May 20, 1994, issued by
the Commission to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx,
Peabody & 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
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or shall be generated based on substantially the same methodology and
assumptions as are used to generate the information in the Prospectus
Supplement as set forth therein; provided that such Computational
Materials and ABS Term Sheets may include information based on
alternative methodologies or assumptions if specified therein. If any
Computational Materials or ABS Term Sheets in respect of the
Certificates provided to prospective investors by such Underwriter were
based on assumptions with respect to the Mortgage Pool that differ from
the Prospectus Supplement in any material respect or on Certificate
structuring assumptions (except in the case of Computational Materials
when the different structuring terms were hypothesized and so
described) that were revised in any material respect prior to the
printing of the Prospectus, then to the extent that it has not already
done so, such Underwriter shall immediately inform the Company and,
upon the direction of the Company, and if not corrected by the
Prospectus, shall prepare revised Computational Materials and/or ABS
Term Sheets, as the case may be, based on information regarding the
Mortgage Pool and Certificate structuring assumptions consistent with
the Prospectus, circulate such revised Computational Materials and ABS
Term Sheets to all recipients of the preliminary versions thereof, and
include such revised Computational Materials and ABS Term Sheets
(marked, "as revised") in the materials delivered to the Company
pursuant to paragraph (b)(iv) above.
(vi) The Company shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined to
contain any material error or omission, provided that the Company will
file Computational Materials or ABS Term Sheets that contain a material
error or, when read together with the Prospectus, a material omission,
if clearly marked (A) "superseded by materials dated [specify date]"
and accompanied by corrected Computational Materials or ABS Term Sheets
that are marked "material previously dated [specify date], as
corrected", or (B) if the material error or omission is to be corrected
in the Prospectus, "superseded by materials contained in the
Prospectus." If, within the period during which the Prospectus relating
to the Certificates is required to be delivered under the 1933 Act and
the rules and regulations of the Commission thereunder, any
Computational Materials or ABS Term Sheets in respect of the
Certificates provided to prospective investors by such Underwriter are
determined, in the reasonable judgment of the Company or such
Underwriter, to contain a material error or, when read together with
the Prospectus, a material omission, then (unless the material error or
omission was corrected in the Prospectus) such Underwriter shall
prepare, or cause the preparation of, a corrected version of such
Computational Materials or ABS Term Sheets, shall circulate such
corrected Computational Materials or ABS Term Sheets to all recipients
of the prior versions thereof, and shall deliver copies of such
corrected Computational Materials or ABS Term Sheets (marked, "as
corrected") to the Company for filing with the Commission in a
subsequent Current Report on Form 8-K submission (subject to the
Company's obtaining an accountant's comfort letter in respect of such
corrected Computational Materials and ABS Term Sheets, which shall be
at the expense of such Underwriter).
(vii) Such Underwriter has not (and, as of the Closing
Date, will not have) provided any prospective investors with any
information in written or electronic form in connection with the
offering of the Certificates except for (A) the Prospectus and any
amendments or supplements thereto, (B) any Preliminary Prospectus and
(C) such Computational Materials and/or ABS Term Sheets as either have
been provided to the Company pursuant to or as contemplated by
paragraph (b)(iv) above or are not required to be filed with the
Commission in accordance with the No-Action Letters.
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(viii) In the event of any delay in the delivery by any
Underwriter to the Company of all Computational Materials and ABS Term
Sheets in respect of the Certificates required to be delivered in
accordance with or as contemplated by paragraph (b)(iv) above, the
Company shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Closing Date and to take
other appropriate actions in each case as necessary in order to allow
the Company to comply with its agreement set forth in Section 5(h)
hereof to file the Computational Materials and ABS Term Sheets by the
time specified therein.
(ix) Computational Materials and ABS Term Sheets
distributed by such Underwriter through electronic means have been so
distributed in accordance with SEC Release No. 33-7233.
(c) Each Underwriter represents and agrees that: (i) it has
not sold or offered the Certificates in the United Kingdom, and it has not
delivered or communicated the Prospectus or any other invitation or inducement
to buy or participate in the Certificates in the United Kingdom, except to
persons who (A) have professional experience of participating in unregulated
collective investment schemes and of matters relating to investments falling
within both Article 14(5) of the Financial Services Markets 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 Lead Underwriters,
be required by the 1933 Act and the rules and regulations of the Commission
thereunder or requested by the Commission and approved by the Lead Underwriters.
(c) Prior to filing with the Commission during the Prospectus
Delivery Period any amendment or supplement to the Registration Statement
relating to or covering the Certificates (other than an amendment by reason of
Rule 429 under the 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 Lead 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
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Statement (insofar as the amendment or supplement relates to or covers the
Certificates), for any amendment or supplement to the Prospectus or for any
additional information with respect to the Certificates, (iii) of the issuance
by the Commission, during the Prospectus Delivery Period, of any stop order
suspending the effectiveness of the Registration Statement or the initiation or
threat of any such stop order proceeding, (iv) of receipt by the Company of any
notification with respect to the suspension of the qualification of the
Certificates for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose and (v) of the happening, during the Prospectus
Delivery Period, of any event that makes untrue any statement of a material fact
made in the Registration Statement or any Prospectus or that requires the making
of a change in or addition to the Registration Statement or any Prospectus in
order to make any material statement therein not misleading.
(e) If, during the Prospectus Delivery Period, the Commission
issues an order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the lifting of that order at
the earliest possible time.
(f) The Company will endeavor to qualify the Certificates for
offer and sale under the securities laws of such jurisdictions as the Lead
Underwriters may reasonably request, provided, however, that this Section 5(f)
shall not obligate the Company to file any general consent to service of process
or to qualify to do business in any jurisdiction or as a dealer in securities in
any jurisdiction in which it is not so qualified.
(g) The costs and expenses associated with the transactions
contemplated by this Agreement shall be payable by the Mortgage Loan Sellers as
and to the extent provided in the respective Mortgage Loan Purchase Agreements.
Deutsche Bank shall be responsible for the costs and expenses (including, but
not limited to, the fees and expenses of any counsel retained thereby that are
in excess of the amount set forth in the following sentence) actually incurred
by it in connection with the transactions contemplated by this Agreement. The
Mortgage Loan Sellers shall be responsible, up to a limit of $20,000, for the
reasonable fees and expenses of any counsel retained by Deutsche Bank in
connection with the transactions contemplated by this Agreement.
(h) The Company will file any documents and any amendments
thereof as may be required to be filed by it pursuant to the 1933 Act and the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules and
regulations of the Commission under the 1933 Act and the 1934 Act, including,
but not limited to, the filing with the Commission pursuant to a Current Report
on Form 8-K, subject to Section 4 hereof, of all Computational Materials and ABS
Term Sheets in respect of the Certificates furnished by any Underwriter and
identified by it as such. Subject to compliance by each Underwriter with Section
4(b)(iv) hereof, the Company will file all such Computational Materials and ABS
Term Sheets within the time period allotted for such filing pursuant to the
No-Action Letters. Subject to compliance by each Underwriter with Section
4(b)(iv) hereof, the Company represents and warrants that, to the extent
required by the No-Action Letters, the Company has timely filed with the
Commission any Collateral Term Sheets previously delivered to it as contemplated
by Section 4(b)(iv) hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters hereunder to purchase the Certificates
shall be subject to the accuracy in all material respects of the representations
and warranties on the part of the Company contained herein as of the date
hereof, as of the date of the effectiveness of any amendment to the Registration
Statement filed prior to the Closing Date, as of the date the Prospectus
Supplement or any supplement thereto is filed with the Commission prior to the
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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 10 days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or
an assistant secretary of the Company, in his individual capacity, a
certificate, dated the Closing Date, to the effect that: (i) each individual
who, as an officer or representative of the Company, signed this Agreement, the
Pooling and Servicing Agreement, either of the Mortgage Loan Purchase Agreements
or any other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, in the Pooling and
Servicing Agreement or in either of the Mortgage Loan Purchase Agreements, was
at the respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (ii) no event (including,
without limitation, any act or omission on the part of the Company) has occurred
since the date of the good standing certificate referred to in paragraph (c)
above which has affected the good standing of the Company under the laws of the
State of Delaware. Such certificate shall be accompanied by true and complete
copies (certified as such by the Secretary or an assistant secretary of the
Company) of (i) the certificate of incorporation and by-laws of the Company, as
in effect on the Closing Date, and (ii) the resolutions of the Company and any
required shareholder consent relating to the transactions contemplated in this
Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements.
(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.
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(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 Lead Underwriters and their counsel,
to the following effect:
(i) they have performed certain specified procedures as a
result of which they have determined that such information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement, as was agreed upon by the Underwriters, agrees with the
data sheet or computer tape prepared by or on behalf of the Mortgage
Loan Sellers, unless otherwise noted in such letter; and
(ii) they have compared the data contained in the data
sheet or computer tape referred to in the immediately preceding clause
(i) to information contained in an agreed upon sampling of the Mortgage
Loan files and in such other sources as shall be specified by them, and
found such data and information to be in agreement in all material
respects, unless otherwise noted in such letter.
(j) The Underwriters shall have received, with respect to each
of the Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent,
a favorable opinion of counsel, dated the Closing Date, addressing: the valid
existence of such party under the laws of its jurisdiction of organization; the
due authorization, execution and delivery of the Pooling and Servicing Agreement
by such party; the enforceability of the Pooling and Servicing Agreement against
such party, subject to such limitations as are reasonably acceptable to the Lead
Underwriters and their counsel; and such other matters as the Lead Underwriters
and their counsel may reasonably request. Counsel rendering each such opinion
may express its reliance as to factual matters on representations and warranties
made by, and on certificates or other documents furnished by officers and/or
authorized representatives of, the parties to the Pooling and Servicing
Agreement and on certificates furnished by public officials and, further, may
assume the due 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.
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(l) The Underwriters shall have been furnished with all
documents, certificates and opinions required to be delivered by Holdings in
connection with the sale by Holdings of its Mortgage Loans to the Company,
pursuant to the Holdings Mortgage Loan Purchase Agreement. The Underwriters
shall be entitled to rely on each such certificate executed and delivered by
Holdings or any of its officers and representatives, to the same extent that the
Company may so rely, and each such opinion addressed to the Company shall also
be addressed to the Underwriters.
(m) The Underwriters shall have been furnished with such other
documents and opinions as the Lead Underwriters may reasonably require, for the
purpose of enabling them to pass upon the issuance and sale of the Certificates
as herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained.
(n) The Certificates shall have been assigned ratings no less
than those set forth on Schedule I and such ratings shall not have been
qualified, downgraded or withdrawn.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, if the Company is in material breach of any covenants or agreements
contained herein or if any of the opinions and certificates referred to above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Lead Underwriters and their counsel,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Closing Date by the Lead
Underwriters. Notice of such cancellation shall be given to the Company in
writing, or by telephone or telegraph confirmed in writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform in all material respects any agreement herein or comply in all material
respects with any provision hereof, other than by reason of a default by the
Underwriters or a refusal, inability or failure on the part of UBSWREI or any of
its affiliates to perform in all material respects any agreement in, or comply
in all material respects with any provision of, 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 any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against:
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(i) any and all losses, liabilities, claims, damages,
costs and expenses whatsoever, as incurred, arising out of or based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus or any Preliminary Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) any and all losses, liabilities, claims, damages,
costs and expenses whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission or any such alleged untrue statement or
omission, contemplated by clause (i) above, if such settlement is
effected with the written consent of the Company or as otherwise
provided in Section 8(c) hereof; and
(iii) any and all expenses whatsoever, as incurred
(including, without limitation, the fees and disbursements of counsel
chosen by the Lead Underwriters), reasonably incurred in investigating,
preparing for or defending against any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, contemplated by clause (i) above, to the extent that any such
expense is not paid under clause (i) or (ii) above;
provided, however, that the Company shall not be liable under the indemnity
agreement in this subsection (a) for any such loss, liability, claim, damage,
cost or expense that arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission contemplated by clause (i)
above that was made in reliance upon and in conformity with written or
electronic information (as specified in Section 8(b) below) furnished to the
Company by any Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or in the Prospectus or any Preliminary Prospectus (or
any amendment or supplement thereto); and provided, further, that the Company
shall not be liable under the indemnity agreement in this subsection (a) for any
such loss, liability, claim, damage, cost or expense that arises out of or is
based upon any untrue statement or omission or alleged untrue statement or
omission contemplated by clause (i) above that was made in any Computational
Materials or ABS Term Sheets (or any amendments or supplements thereto) in
respect of the Certificates delivered to prospective investors by one or more of
the Underwriters and furnished to the Company by any of the Underwriters
pursuant to Section 4(b)(iv) hereof and made a part of the Registration
Statement or incorporated by reference in the Prospectus or any Preliminary
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 and Annex B thereto and the accompanying diskette), (2) the
representations and warranties of either Mortgage Loan Seller set forth in or
made pursuant
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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 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, or (C) any untrue statement or omission or alleged untrue statement or
omission contemplated by clause (i) above that was made in the Special Dadeland
Mall Financial Information and/or the Special Square One Mall Financial
Information (insofar as such financial information was made a part of the
Registration Statement or incorporated by reference in the Prospectus or any
Preliminary Prospectus (or any amendment or supplement thereto)); and, provided,
further, that the Company shall not be liable to any Underwriter or any person
controlling such Underwriter under the indemnity agreement in this subsection
(a) for any such loss, liability, claim, damage, cost or expense that arises out
of or is based upon any untrue statement or omission contemplated by clause (i)
above that was made in any Preliminary Prospectus to the extent that such
losses, liabilities, claims, damages, costs or expenses result from the fact
that such Underwriter sold Certificates to a person as to whom it shall be
established that there was not sent or given, at or prior to the confirmation of
such sale, a copy of the Prospectus (excluding documents incorporated therein by
reference), such untrue statement or omission had been corrected in the
Prospectus and a sufficient number of copies of the Prospectus had been provided
by the Company to such Underwriter prior to the confirmation of such sale.
(b) The respective Underwriters, severally and not jointly,
each agrees to indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all losses, liabilities, claims, damages,
costs and expenses described in clauses (i), (ii) and (iii) of Section 8(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Prospectus or any
Preliminary Prospectus (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with written or electronic information relating
to such Underwriter furnished to the Company by such Underwriter, or by either
of the Lead Underwriters on its behalf, expressly for use in the Prospectus or
such Preliminary Prospectus (or any amendment or supplement thereto), or made in
any Computational Materials or ABS Term Sheets in respect of the Certificates
that were prepared by such Underwriter and distributed by it or any other party
to prospective investors; provided, however, that such Underwriter shall not be
liable under the indemnity agreement in this subsection (b) for any such loss,
liability, claim, damage, cost or expense that arises out of or is based upon
any untrue statement or omission in any such Computational Materials or ABS Term
Sheets to the extent that such loss, liability, claim, damage or expense is
covered by the indemnity agreement included in Section 1(a) of either
Indemnification Agreement, unless it shall be established that such Underwriter
was notified electronically or in writing of such untrue statement or omission
prior to the time of confirmation of sale to the person that purchased the
Certificates that are the subject of such loss, liability, claim, damage or
expense, or action in respect thereof, and such Underwriter failed to deliver to
such person corrected Computational Materials or ABS Term Sheets (or, if the
superseding or correcting
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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, including, without limitation, by either of the
Lead Underwriters on behalf of any other Underwriter, expressly for use in the
Prospectus or any Preliminary Prospectus.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of the indemnity
agreement in subsection (a) or (b), as applicable, of this Section 8. An
indemnifying party may participate at its own expense in the defense of any such
action and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of such
counsel, or (ii) the indemnifying party shall not have assumed the defense of
such action, with counsel satisfactory to the indemnified party, within a
reasonable period following the indemnifying party's receiving notice of such
action, or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In no event shall
the indemnifying party or parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from its or their own
counsel to all indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
Notwithstanding anything herein to the contrary, an
indemnifying party shall not be liable under subsection (a) or (b) of this
Section 8 for any settlement or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification could be sought under such
subsection (a) or (b), as the case may be, of this Section 8, effected without
its written consent, unless (i) at any time an indemnified party shall have
requested such indemnifying party to reimburse the indemnified party for fees
and expenses of counsel for which the indemnifying party is obligated under this
Section 8, (ii) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (iii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
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whatsoever in respect of which indemnification could be sought under subsection
(a) or (b), as applicable, of this Section 8 (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) The amount paid or payable by an indemnified party as a
result of the losses, liabilities, claims, damages, costs or expenses referred
to in this Section 8 shall be deemed to include any legal fees and disbursements
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such claim except where the indemnified
party is required to bear such expenses, which expenses the indemnifying party
shall pay as and when incurred, at the request of the indemnified party, to the
extent that it is reasonable to believe that the indemnifying party will be
ultimately obligated to pay such expenses. In the event that any expenses so
paid by the indemnifying party are subsequently determined to not be required to
be borne by the indemnifying party hereunder, the party which received such
payment shall promptly refund the amount so paid to the party which made such
payment.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity agreements contained in this Section 8 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or any of the Underwriters, and (iii) acceptance of and payment for any
of the Certificates.
9. CONTRIBUTION.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8(a) or
Section 8(b) hereof is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, on the one hand, and the Underwriters, on the other hand, shall
contribute to the aggregate losses, liabilities, claims, damages, costs and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company, on the one hand, or the Underwriters, on the other hand, as incurred,
(i) in such proportions as are appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, from the transactions contemplated by this Agreement, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages, costs and/or expenses, as well as any other relevant equitable
considerations; provided, however, that in no case shall any Underwriter be
responsible under this 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
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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 any Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. The remedies provided for in this Section 9 are not exclusive and shall
not limit any rights or remedies that may otherwise be available at law or in
equity to any party entitled to contribution under this Section 9.
(c) The contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Company, the
Underwriters, any of their respective directors or officers, or any person
controlling the Company or any of the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter, or by or on behalf
of the Company, or by or on behalf of any of the controlling persons and
officers and directors referred to in Sections 8 and 9 hereof, and shall survive
delivery of the Certificates to the Underwriters.
11. TERMINATION OF AGREEMENT; SURVIVAL.
(a) The Lead Underwriters may terminate the obligations of the
Underwriters under this Agreement, by notice to the Company, at any time at or
prior to the Closing Date (i) if there has been, since the date of this
Agreement or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which is such as to make it, in the reasonable
judgment of the Lead Underwriters, impracticable to market the Certificates or
to enforce contracts for the sale of the Certificates, or (iii) if trading
generally on the New York Stock Exchange has been suspended, or if a banking
moratorium has been declared by either federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section
11, such termination shall be without liability of any party to any other party,
except that the provisions of Section 5(g) hereof regarding
-18-
the payment of costs and expenses and the provisions of Sections 8 and 9 hereof
shall survive the termination of this Agreement.
12. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter shall fail to take up and pay for the
amount of the Certificates agreed by such Underwriter to be purchased under this
Agreement, upon tender of such Certificates in accordance with the terms hereof,
and the amount of the Certificates not purchased does not aggregate more than
10% of the total amount of the Certificates set forth in Schedule II hereof
(based on aggregate purchase price), then the remaining Lead Underwriter (or, in
the case that Deutsche Bank is the withdrawing or defaulting Underwriter, the
Lead Underwriters) shall be obligated to take up and pay for the Certificates
that the withdrawing or defaulting Underwriter agreed but failed to purchase (it
being understood and agreed that if Deutsche Bank is the withdrawing or
defaulting Underwriter, then the Lead Underwriters' obligations under this
Section 12(a) shall be allocated between them, on a pro rata basis, in
accordance with the respective aggregate purchase prices to be paid by the Lead
Underwriters for the Certificates originally allocated thereto on Schedule II).
(b) If any Underwriter shall fail to take up and pay for the
amount of the Certificates agreed by such Underwriter to be purchased under this
Agreement (such Underwriter being a "Defaulting Underwriter"), upon tender of
such Certificates in accordance with the terms hereof, and the amount of the
Certificates not purchased aggregates more than 10% of the total amount of the
Certificates set forth in Schedule II hereto (based on aggregate purchase
price), and arrangements satisfactory to the remaining Underwriters and the
Company for the purchase of such Certificates by other persons are not made
within 36 hours thereafter, this Agreement shall terminate. In the event of any
such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 5(g), Section 8 and
Section 9 hereof), nor shall any Underwriter (other than the Defaulting
Underwriter) be under any liability to the Company (except to the extent
provided in Sections 8 and 9 hereof). Nothing herein shall be deemed to relieve
any Defaulting Underwriter from any liability it may have to the Company or the
other Underwriters by reason of its failure to take up and pay for Certificates
as agreed by such Defaulting Underwriter.
13. NOTICES. Any notice by the Company to any Underwriter
shall be sufficient if given in writing or by telegraph addressed to the address
for such Underwriter set forth on Schedule II hereto (or, in the case of any
Underwriter, to such other address as such Underwriter shall designate in
writing to the Company in accordance with this Section 13) and any notice by any
Underwriter to the Company shall be sufficient if given in writing or by
telegraph addressed to the Company at 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
-19-
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
15. BUSINESS DAY. For purposes of this Agreement, "business
day" means any day on which the New York Stock Exchange is open for trading.
16. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York, applicable to
contracts negotiated, made and to be performed entirely in said State.
17. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
18. WAIVERS, MODIFICATIONS AND AMENDMENTS. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
except by a writing signed by the party against whom enforcement of such change,
waiver, discharge or termination is sought.
-20-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this instrument, along with all counterparts, and your acceptance
shall represent a binding agreement between the Company, the Underwriters and
the Mortgage Loan Sellers signing this Agreement for purposes of Section 5(g)
and 7.
Very truly yours,
STRUCTURED ASSET SECURITIES CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
Confirmed and accepted as of the date first above written:
XXXXXX BROTHERS INC. UBS WARBURG LLC
By: /s/ Xxxx Xxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------- ----------------------------
Name: Xxxx Xxx Xxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: Authorized Signatory Title: Director
By: /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
Title: Director
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
By: /S/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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/ Xxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxx
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 Section 5(g):
XXXXXX BROTHERS HOLDINGS INC.,
DOING BUSINESS AS XXXXXX CAPITAL,
A DIVISION OF XXXXXX BROTHERS HOLDINGS INC.
By: /S/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
SCHEDULE I
Underwriting Agreement, dated as of June 26, 2002.
itle and Description of the Certificates: LB-UBS Commercial Mortgage Trust 2002-C2, Commercial Mortgage Pass-Through
Certificates, Series 2002-C2, 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: June 11, 2002
Expected Closing Date: July 9, 2002
CERTIFICATES
-------------------------------------------------------------------------------------------------------------------------
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4 CLASS B CLASS C
--------- --------- --------- --------- ------- -------
-------------------------------------------------------------------------------------------------------------------------
Initial Aggregate Principal Amount $64,000,000 $240,000.000 $144,100,000 $33,879,000 $16,644,000 $27,235,000
-------------------------------------------------------------------------------------------------------------------------
Initial Pass-Through Rate 3.834% 4.904% 5.386% 5.594% 5.666% 5.696%
-------------------------------------------------------------------------------------------------------------------------
Rating(1) XXX/Xxx XXX/Xxx XXX/Xxx XXX/Xxx XXx/Xx0 XX/Xx0
-------------------------------------------------------------------------------------------------------------------------
Purchase Price(2) 100.49792% 100.49769% 100.49505% 100.49510% 100.49262% 100.49680%
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
CLASS D CLASS E CLASS F CLASS G
------- ------- ------- -------
-------------------------------------------------------------------------------------------
Initial Aggregate Principal Amount $18,157,000 $18,157,000 $24,209,000 $12,104,000
-------------------------------------------------------------------------------------------
Initial Pass-Through Rate 5.735% 5.774% 5.794% 5.873%
-------------------------------------------------------------------------------------------
Rating(1) AA-/Aa3 Xx/X0 X/X0 X-/X0
-------------------------------------------------------------------------------------------
Purchase Price(2) 100.49482% 100.49290% 100.49573% 100.49960%
-------------------------------------------------------------------------------------------
---------------
(1) By Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. and Xxxxx'x Investors Service, Inc., respectively.
(2) Expressed as a percentage of the initial aggregate stated principal
amount of each class of Certificates. There shall be added to the
Purchase Price for each class of Certificates accrued interest at the
initial Pass-Through Rate therefor on the initial aggregate principal
amount thereof from the Cut-off Date to but not including the Closing
Date.
NY1 5194914v6
SCHEDULE II
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
---------------------------- ----- ----------------------------
Xxxxxx Brothers Inc. A-1 $ 64,000,000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
A-2 $ 240,000,000
A-3 $ 144,100,000
A-4 $ 508,879,000
B $ 16,644,000
C $ 27,235,000
D $ 18,157,000
E $ 18,157,000
F $ 24,209,000
G $ 12,104,000
UBS Warburg LLC A-1 $ 0
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
A-2 $ 0
A-3 $ 0
A-4 $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
G
Deutsche Bank Securities Inc. A-1 $ 0
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
A-2 $ 0
A-3 $ 0
A-4 $ 25,000,000
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
July 9, 2002
Structured Asset Securities Corporation 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. Xxxxx'x Investors Service, Inc.
000 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
UBS Warburg LLC LaSalle Bank National Association
Deutsche Bank Securities Inc. 000 Xxxxx XxXxxxx Xxxxxx
00 Xxxx 00xx Xxxxxx Xxxxxxx, Xxxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Re: LB-UBS Commercial Mortgage Trust 2002-C2
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
Ladies and Gentlemen:
We have acted as special counsel to Structured Asset Securities
Corporation (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 June 26, 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 June 26, 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 $1,210,452,837 Certificate Principal
Balance of Commercial Mortgage Pass-Through Certificates, Series
2002-C2 (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 X-D, 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 and Class V,
pursuant to that certain Pooling and Servicing Agreement, dated as of
June 11, 2002 (the
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Structured Asset Securities Corporation
Xxxxxx Brothers Inc.
UBS Warburg LLC
Deutsche Bank Securities Inc.
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
LaSalle Bank National Association
July 9, 2002
Page 2
"Pooling and Servicing Agreement"), between the Depositor as depositor,
Wachovia Bank, National Association as master servicer, Lend Lease
Asset Management, L.P. as special servicer, LaSalle Bank National
Association as trustee (the "Trustee") and ABN AMRO Bank N.V. as fiscal
agent;
(iv) the transfer of the Mortgage Loans by the Depositor
to the Trust, pursuant to the Pooling and Servicing Agreement, in
exchange for the issuance of the Certificates at the direction of the
Depositor;
(v) the sale by the Depositor, and the purchase by LBI,
UBS Warburg LLC ("UBSW") and Deutsche Bank Securities Inc. ("DBS"; DBS,
collectively with LBI and UBSW 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 June 26, 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 X-D, 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 June 26, 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 June 26, 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 June 26, 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.
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Structured Asset Securities Corporation
Xxxxxx Brothers Inc.
UBS Warburg LLC
Deutsche Bank Securities Inc.
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
LaSalle Bank National Association
July 9, 2002
Page 3
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 June 26, 2002 (the
"Prospectus Supplement"), specifically relating to the Publicly Offered
Certificates and the Trust;
(b) the Prospectus, dated June 17, 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 June 26, 2002 (the
"Memorandum") specifically relating to the Privately Offered
Certificates and the Trust; and
(d) the registration statement on Form S-3 (No. 333-73338)
(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
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Structured Asset Securities Corporation
Xxxxxx Brothers Inc.
UBS Warburg LLC
Deutsche Bank Securities Inc.
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
LaSalle Bank National Association
July 9, 2002
Page 4
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
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Structured Asset Securities Corporation
Xxxxxx Brothers Inc.
UBS Warburg LLC
Deutsche Bank Securities Inc.
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
LaSalle Bank National Association
July 9, 2002
Page 5
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).
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Structured Asset Securities Corporation
Xxxxxx Brothers Inc.
UBS Warburg LLC
Deutsche Bank Securities Inc.
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
LaSalle Bank National Association
July 9, 2002
Page 6
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" (exclusive of the statements set forth under the
sub-heading "-Considerations for All Investors") 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" (exclusive of the
statements set forth under the sub-heading "-Considerations for All
Investors") 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
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
Structured Asset Securities Corporation
Xxxxxx Brothers Inc.
UBS Warburg LLC
Deutsche Bank Securities Inc.
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
LaSalle Bank National Association
July 9, 2002
Page 7
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) REMIC I
will qualify as a REMIC within the meaning of the REMIC Provisions, and
the REMIC I Regular Interests will be "regular interests" and the Class
R-I Certificates will evidence the sole class of "residual interests"
in REMIC I, (b) REMIC II will qualify as a REMIC within the meaning of
the REMIC Provisions, and the REMIC II Regular Interests will be
"regular interests" and the Class R-II Certificates will evidence the
sole class of "residual interests" in REMIC II, and (c) REMIC III will
qualify as a REMIC within the meaning of the REMIC Provisions, and the
Regular Interest Certificates will evidence "regular interests" and the
Class R-III Certificates will evidence the sole class of "residual
interests" in REMIC III.
14. The portion of the Trust Fund consisting of the Grantor
Trust Assets will be classified as a grantor trust under subpart E,
part I of subchapter J of the Internal Revenue Code of 1986.
15. Assuming the accuracy of the deemed representations set
forth under the heading "Notice to Investors" in the Memorandum on the
part of investors that purchase Privately Offered Certificates from LBI
and UBSW, the offer and sale of the Privately Offered Certificates by
the Depositor to LBI and UBSW, and by LBI and UBSW to investors that
purchase from them, 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
July 9, 2002
Structured Asset Securities Corporation 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 Xxxxx'x Investors Service, Inc.
1285 Avenue of the Americas 00 Xxxxxx Xxxxxx
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
Deutsche Bank Securities Inc. Xxxxxx Brothers Holdings Inc.,
00 Xxxx 00xx Xxxxxx d/b/a Xxxxxx Capital, a division of
Xxx Xxxx, XX 00000 Xxxxxx Brothers Holdings Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: LB-UBS Commercial Mortgage Trust 2002-C2
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
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, a
Delaware corporation ("SASCO"), and am familiar with matters pertaining to the
following agreements (collectively, the "Agreements"): (i) the Pooling and
Servicing Agreement dated as of June 11, 2002 (the "Pooling and Servicing
Agreement"), by and between SASCO, as depositor, Wachovia Bank, National
Association, as master servicer, Lend Lease Asset Management, L.P., 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 June 26,
2002, by and between SASCO 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 June 26, 2002, by and between
SASCO, UBS Warburg Real Estate Investments, Inc. ("UBSWREI"), and UBS Principal
Finance LLC as an additional party; (iv) the Underwriting Agreement dated as of
June 26, 2002, by and between SASCO, LBI, UBS Warburg LLC ("UBSW") and Deutsche
Bank Securities Inc. and
Structured Asset Securities Corporation
Xxxxxx Brothers Inc.
UBS Warburg LLC
Deutsche Bank Securities Inc.
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
LaSalle Bank National Association
Xxxxxx Brothers Holdings Inc.
July 9, 2002
Page 2
acknowledged as to certain sections by UBSWREI and LBHI; and (v) the Certificate
Purchase Agreement dated as of June 26, 2002 by and between SASCO, 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 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 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.
3. The execution, delivery and performance of the Agreements
by SASCO, (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 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 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 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.
Structured Asset Securities Corporation
Xxxxxx Brothers Inc.
UBS Warburg LLC
Deutsche Bank Securities Inc.
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
LaSalle Bank National Association
Xxxxxx Brothers Holdings Inc.
July 9, 2002
Page 3
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) 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.
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, records of proceedings taken by
SASCO, and other corporate documents and records of SASCO, 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.
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
July 9, 2002
Xxxxxx Brothers Inc. UBS Warburg LLC
000 Xxxxxxx Xxxxxx 1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Re: LB-UBS Commercial Mortgage Trust 2002-C2
Commercial Mortgage Pass-Through Certificates, Series 2002-C2
Ladies and Gentlemen:
We have acted as special counsel to Structured Asset Securities
Corporation (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 June 26, 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 June 26, 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 $1,210,452,837 Certificate Principal Balance
of Commercial Mortgage Pass-Through Certificates, Series 2002-C2 (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 X-D,
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 and Class V, pursuant to
that certain Pooling and Servicing Agreement, dated as of June 11, 2002
(the "Pooling and Servicing Agreement"), between the Depositor as
depositor, Wachovia Bank, National Association as master servicer, Lend
Lease Asset Management, L.P. as special servicer, LaSalle Bank National
Association as trustee (the "Trustee") and ABN AMRO Bank N.V. as fiscal
agent;
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
UBS Warburg LLC
Xxxxxx Brothers Inc.
July 9, 2002
Page 2
(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"), of the Class X-CL, Class X-CP, Class X-D, 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"), together with the Class V Certificates,
pursuant to that certain Certificate Purchase Agreement, dated as of
June 26, 2002 (the "Certificate Purchase Agreement"), between the
Depositor, LBI and UBSW;
(vi) the negotiation and execution of that certain LBHI
Indemnification Agreement, dated as of June 26, 2002 (the "LBHI
Indemnification Agreement"), between LBHI, the Depositor, LBI, UBSW and
Deutsche Bank Securities Inc. ("Deutsche Bank"); and
(vii) the negotiation and execution of that certain UBS
Indemnification Agreement, dated as of June 26, 2002 (the "UBS
Indemnification Agreement" and, together with the LBHI Indemnification
Agreement, the "Indemnification Agreements"), between UBSWREI,
UBS(USA), Inc., the Depositor, LBI, UBSW and Deutsche Bank.
In the course of our acting as special counsel to the Depositor, LBI
and LBHI as described above, we prepared or reviewed: (i) the Pooling and
Servicing Agreement, the Certificate Purchase Agreement, the Mortgage Loan
Purchase Agreements and the Indemnification Agreements (collectively, the
"Agreements"); and (ii) the Offering Memorandum dated June 26, 2002 (including
all exhibits and annexes thereto, the "Memorandum"), specifically relating to
the Privately Offered Certificates and the Trust. 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.
Furthermore, we have discussed the information contained in the
Agreements and the Memorandum with certain representatives of the Depositor,
LBI, UBSW 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,
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
UBS Warburg LLC
Xxxxxx Brothers Inc.
July 9, 2002
Page 3
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, and (xii) 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 Memorandum, on the basis of and subject to the
foregoing, nothing has come to our attention that has caused us to believe that
the Memorandum, as of the date thereof 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 (v) the statements in the Memorandum under the heading
"Certain ERISA Considerations--Considerations for All Investors," (w) any
financial, statistical or numerical data set forth or referred to in or omitted
from the Memorandum, (x) the information set forth on or omitted from any
diskette that may accompany the Memorandum, (y) any documents or information
incorporated by reference in the Memorandum or (z) any information set forth or
referred to in or omitted from the Memorandum with respect to the description of
the Mortgage Loans, the
SIDLEY XXXXXX XXXXX & XXXX LLP NEW YORK
UBS Warburg LLC
Xxxxxx Brothers Inc.
July 9, 2002
Page 4
borrowers and other obligors thereunder, and the real property and other
collateral securing the Mortgage Loans.
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, LBI, UBSW
and the Mortgage Loan Sellers. In addition, we call to your attention that, with
your knowledge and consent, we have not, for purposes of delivering this letter,
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 representing the Depositor, LBI and LBHI 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 Privately Offered Certificates from either LBI or UBSW) or utilized for
any other purpose without our prior written consent.
Very truly yours,
