LB-UBS COMMERCIAL MORTGAGE TRUST 2007-C1,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-C1
UNDERWRITING AGREEMENT
As of February 15, 2007
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS Global Asset Management (US) Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Wachovia Capital Markets, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Structured Asset Securities Corporation II, a Delaware corporation
(the "Company"), proposes to cause the issuance of, and to sell to ▇▇▇▇▇▇
Brothers Inc. ("LBI"), UBS Global Asset Management (US) Inc. ("UBS-AM") and
Wachovia Capital Markets, LLC ("Wachovia Capital" and, collectively with LBI and
UBS-AM, the "Underwriters"), the mortgage pass-through certificates that are
identified on Schedule I attached hereto (the "Certificates").
The Certificates will evidence beneficial ownership interests in a
trust fund (the "Trust Fund") to be formed by the Company and consisting
primarily of a segregated pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans"). Certain of the Mortgage Loans
(the "UBS Mortgage Loans") will be acquired by the Company from UBS Real Estate
Investments Inc. ("UBSREI"), pursuant to a mortgage loan purchase agreement
dated as of February 15, 2007 (the "UBS Mortgage Loan Purchase Agreement"),
between the Company and UBSREI. Certain of the Mortgage Loans (the "▇▇▇▇▇▇
Mortgage Loans") will be acquired by the Company from ▇▇▇▇▇▇ Brothers Holdings
Inc. ("LBHI"), pursuant to a mortgage loan purchase agreement dated as of
February 15, 2007 (the "LBHI Mortgage Loan Purchase Agreement"), between the
Company and LBHI; provided that one or more of the ▇▇▇▇▇▇ Mortgage Loans may be
acquired by the Company from an affiliate of LBHI (the "LBHI-Affiliated Mortgage
Loan Seller"), pursuant to a mortgage loan purchase agreement dated as of
February 15, 2007 (the "Additional Mortgage Loan Purchase Agreement"), between
the Company, the LBHI-Affiliated Mortgage Loan Seller and LBHI. The remaining
Mortgage Loan (the "Wachovia Mortgage Loan") will be acquired
by the Company from Wachovia Bank, National Association. ("Wachovia"), pursuant
to a mortgage loan purchase agreement dated as of February 15, 2007 (the
"Wachovia Mortgage Loan Purchase Agreement"). LBHI, any LBHI-Affiliated Mortgage
Loan Seller, UBSREI and Wachovia are each referred to herein as a "Mortgage Loan
Seller" and are collectively referred to herein as the "Mortgage Loan Sellers."
The LBHI Mortgage Loan Purchase Agreement, any Additional Mortgage Loan Purchase
Agreement, the UBS Mortgage Loan Purchase Agreement and the Wachovia Mortgage
Loan Agreement are each referred to herein as a "Mortgage Loan Purchase
Agreement" and are collectively referred to herein as the "Mortgage Loan
Purchase Agreements".
In connection with the sale by UBSREI to the Company of the UBS
Mortgage Loans, UBSREI, the Company, LBI, UBS-AM and Wachovia Capital entered
into an indemnification agreement dated as of February 15, 2007 (the "UBS
Indemnification Agreement"). In connection with the sale by LBHI and any
LBHI-Affiliated Mortgage Loan Seller to the Company of the ▇▇▇▇▇▇ Mortgage
Loans, LBHI, the Company, LBI, UBS-AM and Wachovia Capital also entered into an
indemnification agreement dated as of February 15, 2007 (the "LBHI
Indemnification Agreement"). In connection with the sale by Wachovia to the
Company of the Wachovia Mortgage Loan, Wachovia, the Company, LBI, Wachovia
Capital and UBS-AM entered into an indemnification agreement dated as of
February 15, 2007 (the "Wachovia Indemnification Agreement" and, together with
the UBS Indemnification Agreement and the LBHI Indemnification Agreement, the
"Mortgage Loan Seller Indemnification Agreements").
The Certificates will be issued under a pooling and servicing
agreement to be dated as of February 12, 2007 (the "Pooling and Servicing
Agreement"), among the Company, as depositor, KeyCorp Real Estate Capital
Markets, Inc. ("KeyCorp"), as master servicer (in such capacity, the "Master
Servicer"), Midland Loan Services, Inc. ("Midland"), as special servicer (in
such capacity, the "Special Servicer"), and LaSalle Bank National Association
("LaSalle"), as trustee (in such capacity, the "Trustee"). The Certificates and
the Mortgage Loans are described more fully in the Prospectus (as defined
below), which the Company has furnished to the Underwriters. 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.
In connection with the execution and delivery of the Pooling and
Servicing Agreement: (i) LaSalle, the Company, LBI , UBS-AM and Wachovia Capital
entered into an indemnification agreement dated as of February 15, 2007 (the
"Trustee Indemnification Agreement"); (ii) KeyCorp, the Company, LBI, UBS-AM and
Wachovia Capital entered into an indemnification agreement dated as of February
15, 2007 (the "Master Servicer Indemnification Agreement"); and (iii) Midland,
the Company, LBI, UBS-AM and Wachovia entered into an indemnification agreement
dated as of February 15, 2007 (the "Special Servicer Indemnification Agreement";
and, collectively with the Trustee Indemnification Agreement, the Master
Servicer Indemnification Agreement and the Mortgage Loan Seller Indemnification
Agreements, the "Indemnification Agreements").
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-129844) for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective. The rules
and regulations of the Commission promulgated under the 1933 Act are
collectively referred to in this Agreement as the "1933 Act Rules." As used in
this Underwriting Agreement (this "Agreement" or this "Underwriting Agreement"):
(i) "Registration Statement" means the foregoing registration statement and all
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exhibits thereto, as amended or supplemented to the date of this Agreement,
together with any information that is contained in the Prospectus (as defined
below) that is deemed to be a part of and included in that registration
statement pursuant to Rule 430B under the 1933 Act as of the date hereof; (ii)
"Basic Prospectus" means the base prospectus included in the Registration
Statement at the time it became effective, as amended or supplemented up to the
date of filing of the Prospectus Supplement (as defined below) by any base
prospectus filed with the Commission pursuant to paragraph (b) of Rule 424 under
the 1933 Act; (iii) "Prospectus Supplement" means the prospectus supplement to
the Basic Prospectus, specifically relating to the Certificates, filed or to be
filed with the Commission pursuant to paragraph (b) of Rule 424 under the 1933
Act, that is deemed to be part of and included in the Registration Statement on
the date hereof in accordance with paragraph (f) under Rule 430B of the 1933
Act; and (iv) "Prospectus" means the Basic Prospectus, together with the
Prospectus Supplement.
At or prior to the time when sales to purchasers of the Publicly
Offered Certificates were first made in accordance with Rule 159 under the 1933
Act, which was approximately 12:30 p.m. (New York City time) on February 15,
2007 (the "Time of Sale"), the Company had prepared the following information,
which is collectively referred to as the "Time of Sale Information": (i) the
Basic Prospectus dated February 6, 2007; (ii) the Free Writing Prospectus (as
defined below), dated February 8, 2007 relating to the Certificates and filed by
the Company on February 8, 2007 pursuant to Rule 433 under the 1933 Act (the
"Offering Prospectus"), which Free Writing Prospectus refers to itself therein
as "this offering prospectus", consists of over 308 printed pages plus the
annexes thereto and was accompanied by the Basic Prospectus; and (iii) any other
Issuer Free Writing Prospectuses (as defined below) relating to the Certificates
that have been conveyed to prospective investors prior to the Time of Sale and
that have been or will be filed by the Company with the Commission pursuant to
Rule 433 under the 1933 Act. If, subsequent to the date of this Agreement, the
Company and the Underwriters determine that, as to the investors in one or more
Classes of the Publicly Offered Certificates, such initial Time of Sale
Information includes an untrue statement of material fact or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the Underwriters
terminate their old purchase contracts and enter into new purchase contracts
with investors in the Publicly Offered Certificates, then "Time of Sale
Information" shall refer to the information conveyed to investors at the time of
entry into the last such new purchase contract, including any information that
corrects such material misstatements or omissions ("Corrective Information").
For the purposes of this Underwriting Agreement, "Free Writing Prospectus" means
a "free writing prospectus" within the meaning of Rule 405 under the 1933 Act;
and "Issuer Free Writing Prospectus" means an "issuer free writing prospectus"
within the meaning of Rule 433 under the 1933 Act.
Capitalized terms used but not defined herein have the respective
meanings assigned thereto in the Prospectus.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents, warrants and agrees with the respective Underwriters that:
(a) The Registration Statement has become effective under the
1933 Act. 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. The Registration
Statement, as of the date it was declared effective (its "Effective Date"), and
the portion of the Registration Statement relating to the Certificates
(including, without limitation, the Prospectus), as of the deemed effective date
thereof pursuant to Rule 430B under the 1933 Act (its "Deemed Effective Date")
complied,
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complies and/or will comply, as applicable, as to form in all material respects
with the requirements of the 1933 Act and the 1933 Act Rules; and the
information in the Registration Statement, as of its Effective Date, and the
information in the portion of the Registration Statement relating to the
Certificates (including, without limitation, the Prospectus), as of its Deemed
Effective Date, did not, does not and/or will not, as applicable, contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and the information in the Prospectus as of the date hereof, does not, and as of
the Closing Date (as hereinafter defined), will not, contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representation or warranty as to the Excluded Information (as defined below).
The "Excluded Information" shall mean, collectively, the information
contained in or omitted from the Registration Statement or the Prospectus or the
Time of Sale Information or any Issuer Free Writing Prospectus or any Issuer
Information (as defined below), or any revision, amendment or supplement to any
of the foregoing, (i) in reliance upon and in conformity with written or
electronic information furnished to the Company by any Underwriter specifically
for use in connection with the preparation of the Prospectus, or any revision,
amendment or supplement thereto, the Time of Sale Information or any such Issuer
Free Writing Prospectus (collectively, the "Underwriter Information"), or (ii)
to which the indemnities provided for in Section 2 of any of the Indemnification
Agreements are applicable in accordance with the respective terms thereof
(collectively, the "Third-Party Information"). It is hereby acknowledged that
the information set forth on Schedule III hereto constitutes the only
Underwriter Information in the Offering Prospectus and the Prospectus.
(b) If and to the extent that it has not done so already, the
Company will make a good faith and reasonable effort to file the Prospectus with
the Commission within the time period required under Rule 424 and, in the event
that it fails to do so, the Company shall file the Prospectus with the
Commission as soon as practicable thereafter.
(c) The Time of Sale Information, at the Time of Sale, did not,
and at the Closing Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representation and
warranty with respect to any Excluded Information.
(d) The Company (including its agents and representatives other
than the Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to, and will not make, use, prepare, authorize,
approve or refer to, any "written communication" (as defined in Rule 405 under
the 1933 Act) that constitutes an offer to sell or solicitation of an offer to
buy the Certificates other than (i) the Prospectus, (ii) any document not
constituting a prospectus under Section 2(a)(10)(a) of the 1933 Act, including,
without limitation, any document that complies with Rule 134 under the 1933 Act,
(iii) the Time of Sale Information, and (iv) any other Free Writing Prospectus
approved in advance by the Underwriters either in writing or in any other manner
mutually agreed to by the Underwriters and the Company. Each Issuer Free Writing
Prospectus (as defined below) included under clause (iv) above that was prepared
by or on behalf of the Company or its affiliates complied or, if used after the
date hereof, will comply, in all material respects with the 1933 Act and the
1933 Act Rules and each Issuer Free Writing Prospectus prepared by or on behalf
of the Company or its affiliates or delivered to the Company for filing in
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accordance with Section 4 has been filed or will be filed in accordance with
Section 4 (to the extent required thereby). Each Issuer Free Writing Prospectus
included under clause (iv) above, at the Time of Sale, did not, and at the
Closing Date will not, contain any untrue statements of a material fact or (when
read in conjunction with the other Time of Sale Information) omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, that the
Company makes no representation and warranty with respect to any Excluded
Information.
(e) 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.
(f) 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, 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.
(g) 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.
(h) 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.
(i) 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.
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(j) 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 effect on
the performance of its obligations under this Agreement, the Pooling and
Servicing Agreement or any of the Mortgage Loan Purchase Agreements. The
execution, delivery and performance by the Company of this Agreement, the
Pooling and Servicing Agreement and the 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.
(k) 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, any 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 any of the Mortgage Loan
Purchase Agreements, (iii) that might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement, the Pooling and Servicing Agreement, any of
the Mortgage Loan Purchase Agreements or the Certificates or (iv) seeking to
affect adversely the federal income tax attributes of the Certificates as
described in the Prospectus.
(l) There are no contracts, indentures or other documents of a
character required by the 1933 Act or the 1933 Act Rules to be described or
referred to in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that have not been so described or
referred to therein or so filed or incorporated by reference as exhibits thereto
or that may be filed as exhibits thereto subsequent to the Closing Date (which
the Company will do within a reasonable period following the Closing Date);
provided, that the Company makes no representation as to any such contracts,
indentures or other documents or related information as to which any party would
be obligated to indemnify the Underwriters under the Indemnification Agreements
in accordance with the respective terms thereof.
(m) 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.
(n) 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
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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.
(o) Any taxes, fees and other governmental charges payable by the
Company in connection with the execution and delivery of this Agreement, the
Pooling and Servicing Agreement or any of the Mortgage Loan Purchase Agreements
or the issuance and sale of the Certificates (other than such federal, state and
local taxes as may be payable on the income or gain recognized therefrom), have
been or will be paid at or prior to the Closing Date.
(p) 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.
(q) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of the
interests in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Company upon the sale of the Certificates to the Underwriters
will constitute at least reasonably equivalent value and fair consideration for
the Certificates. The Company will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the transfer of the Mortgage Loans to the
Trustee on behalf of the Trust Fund and the sale of the Certificates to the
Underwriters. The Company is not selling the Certificates to the Underwriters or
transferring the Mortgage Loans to the Trustee on behalf of the Trust Fund on
account of an antecedent debt or with any intent to hinder, delay or defraud any
of the creditors of the Company.
(r) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Company are pending or contemplated.
(s) 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").
(t) The Company is not, and on the date on which the first bona
fide offer of the Certificates is made (within the meaning of Rule 164(h)(2)
under the 1933 Act) will not be, an "ineligible issuer," as defined in Rule 405
under the 1933 Act.
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 (plus any
accrued interest) 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.
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.
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3. PAYMENT AND DELIVERY. The closing for the purchase and sale
of the Certificates hereunder shall occur at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, 2 World Financial Center, New York, New York 10281, at 10:00 a.m. New
York City time, on the "Expected Closing Date" identified on Schedule I hereto
or at such other location, time and date as shall be mutually agreed upon by the
Underwriters and the Company (such time and date of closing, the "Closing
Date"). Delivery of the Certificates shall be made through the Same Day Funds
Settlement System of the Depository Trust Company ("DTC"). Payment shall be made
to the Company in immediately available Federal funds wired to such bank as may
be designated by the Company (or by such other method of payment as may be
mutually agreed upon by the Company and any particular Underwriter), against
delivery of the Certificates. The Certificates will be made available for
examination by the Underwriters not later than 3:00 p.m. New York City time on
the last business day prior to the Closing Date.
References herein, including, without limitation, in the Schedules
hereto, to actions taken or to be taken following the Closing Date with respect
to any Certificates that are to be delivered through the facilities of DTC shall
include, if the context so permits, actions taken or to be taken with respect to
the interests in such Certificates as reflected on the books and records of DTC.
4. OFFERING BY THE UNDERWRITERS; FREE WRITING PROSPECTUSES.
(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 any Underwriter in the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
(b) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors Free Writing
Prospectuses, or portions thereof, which the Company is required to file with
the Commission in electronic format and will use reasonable efforts to provide
to the Company such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except to the
extent that the Company, in its sole discretion, waives such requirements,
subject to the following conditions and any additional conditions set forth in
subsections (f), (g), (h), (i) and (j) of this Section 4 (to which conditions
and additional conditions each Underwriter agrees (provided that no Underwriter
shall be responsible for any breach of the following conditions by any other
Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication (other
than the Prospectus) to any person in connection with the initial offering
of the Certificates, unless such written communication (1) is made in
reliance on Rule 134 under the 1933 Act, (2) constitutes Time of Sale
Information, or (3) constitutes an Underwriter Free Writing Prospectus (as
defined below) (that does not constitute Time of Sale Information) that
has been approved by the Company in advance of its use.
(ii) Each Underwriter shall deliver (and, if used on or prior
to the date hereof, represents and warrants that it has delivered) to the
Company, no later than two business days prior to the date of first use
thereof or such later date as may be agreed to by the Company: (i) any
Free
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Writing Prospectus that was prepared by or on behalf of such Underwriter
or any affiliate thereof (each, an "Underwriter Free Writing Prospectus")
and that contains any "issuer information," as defined in Rule 433(h)
under the 1933 Act and footnote 271 of the Commission's Securities
Offering Reform Release No. 33-8591 ("Issuer Information") (which the
parties hereto agree includes, without limitation, information relating to
Mortgage Loan Seller Matters, as such term is collectively defined in the
Mortgage Loan Seller Indemnification Agreements); and (ii) any Free
Writing Prospectus or portion thereof prepared by or on behalf of such
Underwriter that contains only a description of the final terms of the
Certificates. Notwithstanding the foregoing, any Free Writing Prospectus
that contains only ABS Informational and Computational Materials may be
delivered by any Underwriter to the Company not later than the later of
(A) two business days prior to the due date for filing of the Prospectus
with the Commission pursuant to Rule 424(b) under the 1933 Act or such
later date as may be agreed to by the Company and (B) the date of first
use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that:
(i) The Underwriter Free Writing Prospectuses that were
prepared by or on behalf of such Underwriter or an affiliate thereof
complied or, if used after the date hereof, will comply, in all material
respects with the 1933 Act and the 1933 Act Rules.
(ii) The Free Writing Prospectuses furnished or to be
furnished to the Company by such Underwriter pursuant to or as
contemplated by Section 4(b)(ii) hereof will constitute all Free Writing
Prospectuses of the type described in such Section that were furnished to
prospective investors by such Underwriter in connection with its offer and
sale of the Certificates.
(iii) The Free Writing Prospectuses furnished or to be
furnished to the Company by such Underwriter pursuant to or as
contemplated by Section 4(b)(ii) will constitute all Free Writing
Prospectuses that were furnished to a sponsor or servicer (as such terms
are defined in Item 1101 of Regulation AB (17 C.F.R. ss. 1100, et seq.))
for use or referral by any such person in connection with its offer and
sale of the Certificates.
(iv) Each Free Writing Prospectus provided or required to be
provided by any Underwriter to the Company pursuant to or as contemplated
by Section 4(b)(ii) hereof did not, as of the Time of Sale, and will not,
as of the Closing Date, contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements contained
therein (when read in conjunction with the other Time of Sale
Information), in light of the circumstances under which they were made,
not misleading; provided, however, that any such Underwriter makes no
representation to the extent such misstatements or omissions were the
result of any inaccurate Issuer Information, which information was not
corrected by Corrective Information subsequently supplied by the Company,
any other Underwriter or any Mortgage Loan Seller to such Underwriter
within a reasonable period of time prior to the Time of Sale.
(v) Each Underwriter has not and will not convey any ABS
Informational and Computational Material in reliance upon Rule 167 and
Rule 426 under the 1933 Act. ABS Informational and Computational Material
shall mean "ABS informational and computational material" as defined in
Item 1101 of Regulation AB.
9
(d) The Company agrees to file with the Commission the following:
(i) each Issuer Free Writing Prospectus that was prepared by
or on behalf of the Company or its affiliates or delivered to the Company
for filing;
(ii) any Free Writing Prospectus or portion thereof delivered
by any Underwriter to the Company pursuant to Section 4(b)(ii) hereof; and
(iii) any Free Writing Prospectus for which the Company or any
person acting on its behalf provided, authorized or approved information
that is prepared and published or disseminated by a person unaffiliated
with the Company or any other offering participant that is in the business
of publishing, radio or television broadcasting or otherwise disseminating
communications;
provided, however, that the Company shall not be required to file with the
Commission (1) Issuer Information contained in any Underwriter Free Writing
Prospectus or Free Writing Prospectus of any offering participant other than the
Company, if such information is included or incorporated by reference in a
prospectus or Free Writing Prospectus previously filed with the Commission that
relates to the offering of the Certificates, or (2) any Free Writing Prospectus
or portion thereof that contains a description of the Certificates or the
offering of the Certificates which does not reflect the final terms thereof or
(3) any Free Writing Prospectus that does not contain substantive changes from
or additions to a Free Writing Prospectus previously filed with the Commission.
(e) Any Free Writing Prospectus required to be filed pursuant to
Section 4(d) hereof by the Company shall be filed with the Commission not later
than the date of first use of the Free Writing Prospectus (subject, in the case
of any Free Writing Prospectus required to be filed pursuant to Section 4(d)(ii)
hereof, to compliance by the Underwriters with Section 4(b)(ii)), except that:
(i) any Free Writing Prospectus or portion thereof required
to be filed that contains only the description of the final terms of the
Certificates shall be filed by the Company with the Commission within two
days of the later of the date such final terms have been established for
all classes of Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS Informational and Computational
Material shall be filed by the Company with the Commission not later than
the later of the due date for filing the final Prospectus relating to the
Certificates pursuant to Rule 424(b) under the 1933 Act or two business
days after the first use of such Free Writing Prospectus; and
(iii) any Free Writing Prospectus required to be filed
pursuant to Section 4(d)(iii) shall, if no payment has been made or
consideration has been given by or on behalf of the Company for the Free
Writing Prospectus or its dissemination, be filed by the Company with the
Commission not later than four business days after the Company becomes
aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus.
10
(f) Each Underwriter shall file with the Commission the following:
(i) any Free Writing Prospectus that is used or referred to
by it and distributed by or on behalf of such Underwriter in a manner
reasonably designed to lead to its broad, unrestricted dissemination, not
later than the date of the first use of such Free Writing Prospectus; and
(ii) any Free Writing Prospectus for which such Underwriter
or any person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a person
unaffiliated with the Company or any other offering participant that is in
the business of publishing, radio or television broadcasting or otherwise
disseminating written communications and for which no payment was made or
consideration given by or on behalf of the Company or any other offering
participant, not later than four business days after any Underwriter
becomes aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus;
provided, however, that no Underwriter shall be required to file (1) any Free
Writing Prospectus to the extent that the information contained therein is
included in a prospectus or Free Writing Prospectus previously filed with the
Commission that relates to the offering of the Certificates, or (2) any Free
Writing Prospectus that does not contain substantive changes from or additions
to a Free Writing Prospectus previously filed with the Commission.
(g) The Company and each Underwriter agree that any Free Writing
Prospectuses prepared by it shall contain the following legend:
The depositor has filed a registration statement
(including a prospectus) with the SEC (SEC File No.
333-129844) for the offering to which this
communication relates. Before you invest, you should
read the prospectus in that registration statement
and other documents the depositor has filed with the
SEC for more complete information about the
depositor, the issuing entity and this offering. You
may get these documents for free by visiting ▇▇▇▇▇
on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively,
the depositor, any underwriter or any dealer
participating in the offering will arrange to send
you the prospectus if you request it by calling
▇-▇▇▇-▇▇▇-▇▇▇▇ or by emailing ▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇.
(h) The Company and the Underwriters agree that each of them shall
retain all Free Writing Prospectuses that it has used and not filed with the
Commission for a period of three years following the initial bona fide offering
of the Certificates.
(i) In the event that the Company becomes aware that, as of the
Time of Sale, any information in an Issuer Free Writing Prospectus or any Issuer
Information contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein (when
read in conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading (a "Defective Issuer
Free Writing Prospectus"), the Company shall notify the Underwriters of such
untrue statement or omission within one business day after discovery and the
Company shall, if requested by the Underwriters, prepare and deliver to the
Underwriters a Free Writing Prospectus that corrects the material misstatement
or omission in the Defective Issuer Free Writing
11
Prospectus (such corrected Issuer Free Writing Prospectus, a "Corrected Issuer
Free Writing Prospectus"). In the event that any Underwriter becomes aware that,
as of the Time of Sale, any Underwriter Free Writing Prospectus delivered to an
investor in any Certificates contained any untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
contained therein (when read in conjunction with the Time of Sale Information),
in light of the circumstances under which they were made, not misleading (a
"Defective Underwriter Free Writing Prospectus" and, together with a Defective
Issuer Free Writing Prospectus, a "Defective Free Writing Prospectus"), such
Underwriter shall notify the Company of such untrue statement or omission within
one business day after discovery.
The Underwriters shall, if requested by the Company:
(i) If the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing Prospectus
that corrects the material misstatement in or omission from the Defective
Free Writing Prospectus (together with a Corrected Issuer Free Writing
Prospectus, a "Corrected Free Writing Prospectus");
(ii) Either (A) deliver the Corrected Free Writing Prospectus
to each investor which received the Defective Free Writing Prospectus
prior to entering into a contract of sale with such investor, clearly
identifying or highlighting the Corrective Information, or (B) deliver the
Corrected Free Writing Prospectus to each investor which received the
Defective Free Writing Prospectus, clearly identifying or highlighting the
Corrective Information, and (x) notify in writing each such investor in a
prominent fashion that the prior contract of sale with such investor has
been terminated, and of such investor's rights as a result of termination
of such agreement and (y) provide such investor with an opportunity to
affirmatively agree in writing to purchase the Certificates on the terms
described in the Corrected Free Writing Prospectus; and
(iii) Comply with any other requirements for reformation of
the original contract of sale with such investor, as described in Section
IV.A.2.c of Commission's Securities Offering Reform Release No. 33-8591.
In the event that the Defective Free Writing Prospectus was an Issuer Free
Writing Prospectus and the defective information was not provided by any party
that would be obligated to indemnify the Underwriters under the Indemnification
Agreements, and the Underwriters shall in good faith incur any costs to an
investor in connection with the reformation of the contract of sale with the
investor, the Company agrees to reimburse the Underwriters for such costs;
provided that, before incurring such costs, the Underwriters first permit the
Company access to the applicable investor and an opportunity to attempt to
mitigate such costs through direct negotiation with such investor.
(j) Each Underwriter covenants with the Company that after the
Prospectus is available such Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless such
information is preceded or accompanied by the Prospectus.
(k) Each of LBHI, UBSREI and Wachovia Capital covenants with the
Company that it will not prepare or have prepared on its behalf, or use or refer
to, any Free Writing Prospectus that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the Company, and each of LBHI,
UBSREI and Wachovia Capital represents and warrants to the Company that it has
not previously done so. In the event the Company consents in writing to, in
advance of, such preparation, use or referral of
12
a Free Writing Prospectus by a Mortgage Loan Seller, such Mortgage Loan Seller
will deliver such Free Writing Prospectus to the Company for filing in
accordance with the timeframes set forth in Section 4(e).
(l) Each Underwriter hereby represents and warrants to and
covenants with the Company that:
(i) such Underwriter has only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the
meaning of section 21 of the Financial Services and Markets Act 2000 (the
"FSMA")) received by such Underwriter in connection with the issue or sale
of any Certificates in circumstances in which section 21(1) of the FSMA
does not apply to the Company; and
(ii) such Underwriter has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by such
Underwriter in relation to the Certificates in, from or otherwise
involving the United Kingdom.
(m) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), each Underwriter hereby represents and warrants to and covenants with
the Company that with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the "Relevant
Implementation Date") such Underwriter has not made and will not make an offer
of Certificates to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Certificates which has been
approved by the competent authority in that Relevant Member State or, where
appropriate, approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, all in accordance with the
Prospectus Directive, except that such Underwriter may, with effect from and
including the Relevant Implementation Date, make an offer of Certificates to the
public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year, (2) a
total balance sheet of more than (euro)43,000,000 and (3) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(iii) in any other circumstances which do not require the
publication by the Company of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this provision, the expression an "offer of
Certificates to the public" in relation to any Certificates in any Relevant
Member State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Certificates so as to enable an
investor to decide to purchase or subscribe to the Certificates, as the same may
be varied in that Member State by any measure implementing the Prospectus
Directive in that Member State and the expression "Prospectus Directive" means
Directive 2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
13
(n) Each of the Underwriters hereby confirms that it is aware that
no German sales prospectus (Verkaufsprospekt) has been or will be published in
respect of the offering of the Certificates, and each of the Underwriters hereby
represents, warrants and agrees that it will comply with the German Securities
Sales Prospectus Act (Wertpapier-Verkaufsprospektgesetz) or any other laws
applicable in Germany governing the issue, offering and sale of the
Certificates. In particular, each of the Underwriters agrees not to engage in a
public offering (Offentliches Angebot) in Germany with respect to any of the
Certificates otherwise than in accordance with the German Securities Sales
Prospectus Act and any other act replacing or supplementing it and all other
applicable laws and regulations.
(o) No Underwriter shall take any action relating to the offer or
sale of any of the Certificates in any jurisdiction that would result in the
Company being obligated to register or file any further prospectus or
corresponding document relating to the Certificates in such jurisdiction, other
than as expressly contemplated hereby.
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 the Prospectus, and any amendment thereof or supplement
thereto, 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 the Prospectus relating to or covering the Certificates that may,
in the judgment of the Company or the Underwriters, be required by the 1933 Act
and the 1933 Act Rules or requested by the Commission and approved by the
Underwriters.
(c) Prior to filing with the Commission during the Prospectus
Delivery Period any amendment or supplement to the Registration Statement
relating to or covering the Certificates (other than an amendment by reason of
Rule 429 under the 1933 Act) or any amendment or supplement to the Prospectus,
the Company will furnish a copy thereof to the Underwriters, and the Company
will not file any such amendment or supplement to which the 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 1933 Act) becomes effective, (ii) of
any request or proposed request by the Commission for any amendment or
supplement to the Registration Statement (insofar as the amendment or supplement
relates to or covers the Certificates), for any amendment or supplement to the
Prospectus or for any additional information with respect to the Certificates,
(iii) of the issuance by the Commission, during the Prospectus Delivery Period,
of any stop order suspending the effectiveness of the Registration Statement or
the initiation or threat of any such stop order proceeding, (iv) of receipt by
the Company of any notification with respect to the suspension of the
qualification of the Certificates for sale in any jurisdiction or the initiation
or threat of any proceeding for that purpose and (v) of the occurrence, 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.
14
(e) If, during the Prospectus Delivery Period, the Commission
issues an order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the lifting of that order at
the earliest possible time.
(f) The Company will endeavor to qualify the Certificates for
offer and sale under the securities laws of such jurisdictions as the
Underwriters may reasonably request; provided, however, that this Section 5(f)
shall not obligate the Company to file any general consent to service of process
or to qualify to do business in any jurisdiction or as a dealer in securities in
any jurisdiction in which it is not so qualified.
(g) The costs and expenses associated with the transactions
contemplated by this Agreement shall be payable by UBSREI, LBHI and Wachovia as
and to the extent provided in the respective Mortgage Loan Purchase Agreements.
(h) The Company will file any documents and any amendments thereof
as may be required to be filed by it pursuant to the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations
of the Commission under the 1933 Act and the 1934 Act, including, but not
limited to, the filing with the Commission, to the extent required under Rule
433 of the 1933 Act Rules, all Free Writing Prospectuses that the Company is
required to file under Section 4(d) hereof, within the time frames set forth in
Section 4(e) hereof. Subject to compliance by each Underwriter with the
requirements of Section 4(b) hereof, the Company represents and warrants that,
to the extent required by Rule 433 under the 1933 Act, the Company has timely
filed with the Commission any Free Writing Prospectuses contemplated to be filed
by it under Section 4(d) hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters hereunder to purchase the Certificates shall be
subject to the accuracy in all material respects of the representations and
warranties on the part of the Company contained herein as of the date hereof, as
of the date of the effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date, as of the date the Prospectus Supplement or any
supplement thereto is filed with the Commission prior to the Closing Date and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates delivered pursuant to the provisions hereof, to the performance
in all material respects by the Company of its obligations hereunder and to
satisfaction, as of the Closing Date, of the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or, to
the Company's knowledge, threatened; the Prospectus Supplement shall have been
filed or transmitted for filing with the Commission in accordance with Rule 424
under the 1933 Act; and any Free Writing Prospectuses contemplated to be filed
by the Company under Section 4(d) hereof shall have been filed or transmitted
for filing with the Commission in accordance with Rule 433 under the 1933 Act,
to the extent required to be filed thereunder.
(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.
15
(c) The Underwriters shall have received with respect to the
Company a good standing certificate from the Secretary of State of the State of
Delaware, dated not earlier than ten (10) days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an
assistant secretary of the Company, in his individual capacity, a certificate,
dated the Closing Date, to the effect that: (i) each individual who, as an
officer or representative of the Company, signed this Agreement, the Pooling and
Servicing Agreement, any of the Mortgage Loan Purchase Agreements or any other
document or certificate delivered on or before the Closing Date in connection
with the transactions contemplated herein, in the Pooling and Servicing
Agreement or in any of the Mortgage Loan Purchase Agreements, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (ii) no event (including,
without limitation, any act or omission on the part of the Company) has occurred
since the date of the good standing certificate referred to in paragraph (c)
above which has affected the good standing of the Company under the laws of the
State of Delaware. Such certificate shall be accompanied by true and complete
copies (certified as such by the Secretary or an assistant secretary of the
Company) of (i) the certificate of incorporation and by-laws of the Company, as
in effect on the Closing Date, and (ii) the resolutions of the Company and any
required shareholder consent relating to the transactions contemplated in this
Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements.
(e) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, special counsel for the Company, one or more favorable opinions, dated
the Closing Date, in form and substance reasonably acceptable to the
Underwriters (taking into account comparable opinions rendered by such counsel
on behalf of the Company in similar commercial mortgage securitization
transactions involving the Company and the Underwriters).
(f) The Underwriters shall have received copies of all legal
opinion letters delivered by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp, special counsel for
the Company, to the Rating Agencies in connection with the issuance of the
Certificates, accompanied in each case by a letter signed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇ LLP stating that the Underwriters may rely on such opinion letter as if it
were addressed to them as of date thereof.
(g) The Underwriters shall have received from in-house counsel for
the Company, a favorable opinion, dated the Closing Date, in form and substance
reasonably acceptable to the Underwriters (taking into account comparable
opinions rendered by such counsel on behalf of the Company in similar commercial
mortgage securitization transactions involving the Company and the
Underwriters).
(h) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, special counsel for the Company, a letter, dated the Closing Date,
containing a statement substantially to the effect that, based on discussions
with certain representatives of the Company, the Mortgage Loan Sellers, the
Underwriters, the Trustee, the Master Servicer, the Special Servicer and their
respective counsel, and (with limited exception) without having reviewed any of
the mortgage notes, mortgages or other documents relating to the Mortgage Loans,
or any documents, records, agreements, ratings or portfolio data or any other
information regarding the business or operations of the sponsors, the Trustee,
the Master Servicer or the Special Servicer (other than the Pooling and
Servicing Agreement), and without having made any independent check or
verification of the statements contained in the Prospectus or the Time of Sale
Information, nothing has come to such counsel's attention that would lead it to
believe that the Offering
16
Prospectus, at the Time of Sale, or the Prospectus, at the date of the
Prospectus Supplement or at the Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that such counsel need not
comment on (i) any financial, statistical or numerical data set forth or
referred to therein or omitted therefrom, (ii) any information set forth on or
omitted from any diskette or CD-ROM that may accompany the Prospectus, (iii) any
documents or information incorporated therein by reference, or (iv) any
Third-Party Information contained therein or omitted therefrom.
(i) The Underwriters shall have received from Deloitte & Touche
LLP, certified public accountants, a letter dated the date of the Prospectus
Supplement and satisfactory in form and substance to the Underwriters and their
counsel, to the following effect:
(i) they have performed certain specified procedures as a
result of which they have determined that such information of an
accounting, financial or statistical nature set forth in the Time of Sale
Information, 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;
(ii) 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
(iii) they have compared the data contained in the data sheet
or computer tape referred to in the immediately preceding clauses (i) and
(ii) 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 and the Trustee, a favorable opinion
of counsel, dated the Closing Date, addressing: the valid existence of such
party under the laws of its jurisdiction of organization; the due authorization,
execution and delivery of the Pooling and Servicing Agreement by such party; the
enforceability of the Pooling and Servicing Agreement against such party,
subject to such limitations as are reasonably acceptable to the Underwriters and
their counsel; and such other matters as the Underwriters and their counsel may
reasonably request. Counsel rendering each such opinion may express its reliance
as to factual matters on representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of, the parties to the Pooling and Servicing Agreement and on
certificates furnished by public officials and, further, may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the party on behalf of which such
opinion is being rendered. Each such opinion need cover only the laws of the
State of New York, the laws of the jurisdiction of organization for the party on
behalf of which such opinion is being rendered and the federal law of the United
States.
(k) The Underwriters shall have been furnished with all documents,
certificates and opinions required to be delivered by each Mortgage Loan Seller
and/or any affiliate thereof in connection with the sale of Mortgage Loans by
such Mortgage Loan Seller to the Company, pursuant to the related
17
Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to rely on
each such certificate executed and delivered by a Mortgage Loan Seller, any
affiliate thereof or any of their respective officers and representatives, to
the same extent that the Company may so rely, and each such opinion addressed to
the Company shall also be addressed to the Underwriters.
(l) The Underwriters shall have been furnished with such other
documents and opinions as the Underwriters may reasonably require, for the
purpose of enabling them to pass upon the issuance and sale of the Certificates
as herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained.
(m) The Certificates shall have been assigned ratings no less than
those set forth on Schedule I and such ratings shall not have been qualified,
downgraded or withdrawn.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in material breach of any covenants or agreements contained
herein or if any of the opinions and certificates referred to above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to the Underwriters and their counsel, this Agreement and
all obligations of the Underwriters hereunder may be cancelled at, or at any
time prior to, the Closing Date by the Underwriters. Notice of such cancellation
shall be given to the Company in writing, or by telephone or telegraph confirmed
in writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES.
(a) If the sale of the Certificates provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform in all material respects any
agreement herein or comply in all material respects with any provision hereof,
other than by reason of a default by the Underwriters or a refusal, inability or
failure on the part of UBSREI or any of its affiliates, or Wachovia 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 applicable Mortgage Loan
Purchase Agreement, the Company will reimburse the Underwriters upon demand, for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by any of them in connection with the
proposed purchase and sale of the Certificates. If the sale of the Certificates
provided for herein is not consummated because of a refusal, inability or
failure on the part of UBSREI or any of its affiliates to perform in all
material respects any agreement in, or comply in all material respects with any
provision of, the UBS Mortgage Loan Purchase Agreement, UBSREI will reimburse
the Underwriters upon demand, for all out-of-pocket expenses (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 Wachovia
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 Wachovia Mortgage
Loan Purchase Agreement, Wachovia 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. An Underwriter will be entitled
to the benefits of this Section 7 notwithstanding that it does not have an
allocation of Certificates.
18
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the
Underwriters and each person, if any, who controls each Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against:
(i) any and all losses, liabilities, claims, damages, costs
and expenses whatsoever, as incurred (A) 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 (B)
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the 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 or
(C) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Issuer Free Writing
Prospectus prepared by or on behalf of the Company or any Issuer
Information contained in any Underwriter Free Writing Prospectus, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein (when read in
conjunction with the other Time of Sale Information), in light of the
circumstances under which they were made, not misleading, which was not
corrected by Corrective Information subsequently supplied by the Company
or any Mortgage Loan Seller to any Underwriter within a reasonable period
of time prior to the Time of Sale;
(ii) any and all losses, liabilities, claims, damages, costs
and expenses whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission or
any such alleged untrue statement or omission, contemplated by clause (i)
above, if such settlement is effected with the written consent of the
Company or as otherwise provided in Section 8(c) hereof; and
(iii) any and all expenses whatsoever, as incurred (including,
without limitation, the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing for or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, contemplated by clause (i) above, to
the extent that any such expense is not paid under clause (i) or (ii)
above;
provided, however, that the Company shall not be liable under the indemnity
agreement in this subsection (a) for any such loss, liability, claim, damage,
cost or expense that arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission contemplated by clause (i)
above that was made in the Excluded Information; 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 as
to which any Underwriter has agreed to indemnify the Company pursuant to Section
8(b).
19
(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 (i) untrue statements or
omissions, or alleged untrue statements or omissions made in the Underwriter
Information (insofar as the Underwriter Information relates to or was provided
by such Underwriter and was not corrected by subsequent Underwriter Information
relating to or provided by such Underwriter supplied to the Company by such
Underwriter within a reasonable period of time prior to the Time of Sale) or
(ii) untrue statements or omissions made in any Underwriter Free Writing
Prospectus prepared by or on behalf of such Underwriter or omissions or alleged
omissions to state in such Underwriter Free Writing Prospectus a material fact
necessary in order to make the statements therein (when read in conjunction with
the Time of Sale Information), in the light of the circumstances under which
they were made, not misleading; 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 are caused by a
misstatement or omission resulting from an error or omission in (i) the Issuer
Information which was not corrected by Corrective Information subsequently
supplied by the Company or any Mortgage Loan Seller to any Underwriter within a
reasonable period of time prior to the Time of Sale or (ii) any Third Party
Information as to which the Company would be entitled to indemnification by the
Servicer, the Special Servicer or the Trustee pursuant to Section 2 of the
related Indemnification Agreement.
(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
20
reimburse the indemnified party for fees and expenses of counsel for which the
indemnifying party is obligated under this Section 8, (ii) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (iii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement.
No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification could be sought under subsection
(a) or (b), as applicable, of this Section 8 (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) The amount paid or payable by an indemnified party as a result
of the losses, liabilities, claims, damages, costs or expenses referred to in
this Section 8 shall be deemed to include any legal fees and disbursements or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim except where the indemnified party is
required to bear such expenses pursuant to this Section 8, 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
21
Section 9(a) for any amount in excess of the fees and/or underwriting discounts
received by such Underwriter in connection with the underwriting of the
Certificates, less any amount previously paid by such Underwriter in respect of
the subject losses, liabilities, claims, damages, costs and/or expenses. For
purposes of the foregoing, the benefits received by the Company in connection
with the transactions contemplated by this Agreement shall be deemed to be equal
to the total gross proceeds from the sale of the Certificates (before deducting
expenses, but excluding fees paid to the Underwriters) received by the Company,
and the benefits received by each Underwriter in connection with the
transactions contemplated by this Agreement shall be deemed to be equal to the
fees and/or underwriting discounts received by such Underwriter in connection
with the underwriting of the Certificates. The relative fault of the Company, on
the one hand, and the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section 9(a)
were determined by per capita allocation or by any other method of allocation
that does not take account of the considerations referred to in this Section
9(a).
(b) Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The remedies
provided for in this Section 9 are not exclusive and shall not limit any rights
or remedies that may otherwise be available at law or in equity to any party
entitled to contribution under this Section 9.
(c) The contribution agreements contained in this Section 9 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or any of the Underwriters, and (iii) acceptance of and payment for any
of the Certificates.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter, or by or on behalf
of the Company, or by or on behalf of any of the controlling persons and
officers and directors referred to in Sections 8 and 9 hereof, and shall survive
delivery of the Certificates to the Underwriters.
11. TERMINATION OF AGREEMENT; SURVIVAL.
(a) The Underwriters may terminate their obligations under this
Agreement, by notice to the Company, at any time at or prior to the Closing Date
(i) if there has been, since the date of this Agreement or since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
outbreak of
22
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in the reasonable judgment of the Underwriters,
impracticable to market the Certificates or to enforce contracts for the sale of
the Certificates, or (iii) if trading generally on the New York Stock Exchange
has been suspended, or if a banking moratorium has been declared by either
federal or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 11,
such termination shall be without liability of any party to any other party,
except that the provisions of Section 5(g) hereof regarding the payment of costs
and expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement.
12. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter shall fail to take up and pay for the
amount of the Certificates agreed by such Underwriter to be purchased under this
Agreement, upon tender of such Certificates in accordance with the terms hereof,
and the amount of the Certificates not purchased does not aggregate more than
10% of the total amount of the Certificates set forth in Schedule II hereof
(based on aggregate purchase price), then the remaining Underwriter(s) shall be
obligated to take up and pay for the Certificates that the withdrawing or
defaulting Underwriter agreed but failed to purchase.
(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, a "Defaulting Underwriter"), upon tender of such
Certificates in accordance with the terms hereof, and the amount of the
Certificates not purchased aggregates more than 10% of the total amount of the
Certificates set forth in Schedule II hereto (based on aggregate purchase
price), and arrangements satisfactory to the remaining Underwriter(s) and the
Company for the purchase of such Certificates by other persons are not made
within 36 hours thereafter, this Agreement shall terminate. In the event of any
such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 5(g), Section 8 and
Section 9 hereof), nor shall the non-Defaulting Underwriter(s) be under any
liability to the Company (except to the extent provided in Sections 8 and 9
hereof). Nothing herein shall be deemed to relieve any Defaulting Underwriter
from any liability it may have to the Company or the other Underwriter(s) 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 to such other address as any
such Underwriter shall designate in writing to the Company in accordance with
this Section 13) and any notice by any Underwriter to the Company shall be
sufficient if given in writing or by telegraph addressed to the Company at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (or to such
other address as the Company shall designate in writing to the Underwriters in
accordance with this Section 13).
14. BENEFICIARIES. This Agreement shall be binding upon the
Underwriters, the Company and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except that the indemnity agreement of the Underwriters contained in Section 8
hereof and the contribution agreement of the Underwriters contained in Section 9
hereof shall each be deemed to be 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
23
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 14, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
15. BUSINESS DAY. For purposes of this Agreement, "business day"
means any day on which the New York Stock Exchange is open for trading.
16. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York, applicable to
contracts negotiated, made and to be performed entirely in said State.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and, if executed in more than one counterpart, the executed
counterparts shall together constitute a single instrument.
18. WAIVERS, MODIFICATIONS AND AMENDMENTS. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought.
24
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 4(k),
5(g) and 7.
Very truly yours,
STRUCTURED ASSET SECURITIES
CORPORATION II
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
Confirmed and accepted as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
UBS GLOBAL ASSET MANAGEMENT (US) INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Director
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇ Jr.
----------------------------
Name: ▇. ▇▇▇▇▇ ▇▇▇▇ Jr.
Title: Vice President
Confirmed and accepted as of the date first above written, solely for purposes
of Sections 4(k), 5(g) and 7:
UBS REAL ESTATE INVESTMENTS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Director
Confirmed and accepted as of the date first above written, solely for purposes
of Section 4(k) and 5(g):
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
Confirmed and accepted as of the date first above written, solely for purposes
of Section 4(k) and 5(g) and 7:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇ Jr.
---------------------------------
Name: ▇. ▇▇▇▇▇ ▇▇▇▇ Jr.
Title: Vice President
SCHEDULE I
Underwriting Agreement, dated as of February 15, 2007
Title and Description of LB-UBS Commercial Mortgage Trust 2007-C1,
the Certificates: Commercial Mortgage Pass-Through
Certificates, Series 2007-C1, Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4,
Class A-1A, Class A-M, Class A-J, Class B,
Class C, Class D, Class E Class F, Class
X-CP, and Class X-W Certificates
Cut-off Date: As defined in the Pooling and Servicing Agreement.
Expected Closing Date: February 27, 2007
CERTIFICATES
---------------------------------------------------------------------------------------------------------------
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-AB CLASS A-4
---------------------------------------------------------------------------------------------------------------
Initial Aggregate
Principal Amount $ 62,000,000 $ 211,000,000 $ 225,000,000 $ 95,000,000 $ 1,156,051,000
---------------------------------------------------------------------------------------------------------------
Initial Pass-
Through Rate 5.39100% 5.31800% 5.39800% 5.40300% 5.42400%
---------------------------------------------------------------------------------------------------------------
Rating(1) AAA/AAA AAA/AAA AAA/AAA AAA/AAA AAA/AAA
---------------------------------------------------------------------------------------------------------------
Purchase Price(2) 100.49752 100.49916 100.49671 100.49854 100.49267
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
CLASS A-1A CLASS A-M CLASS A-J CLASS B CLASS C
---------------------------------------------------------------------------------------------------------------
Initial Aggregate
Principal Amount $ 850,172,000 $ 371,318,000 $ 315,620,000 $ 27,849,000 $ 55,697,000
---------------------------------------------------------------------------------------------------------------
Initial Pass-
Through Rate 5.39100% 5.45500% 5.48400% 5.51400% 5.53300%
---------------------------------------------------------------------------------------------------------------
Rating(1) AAA/AAA AAA/AAA AAA/AAA AA+/AA+ AA/AA
---------------------------------------------------------------------------------------------------------------
Purchase Price(2) 100.49469 100.49953 100.49591 100.49994 100.49502
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
CLASS D CLASS E CLASS F CLASS X-CP CLASS X-W
---------------------------------------------------------------------------------------------------------------
Initial Aggregate
Principal Amount $ 37,132,000 $ 18,566,000 $ 32,490,000 $ 861,922,250 $ 2,784,882,625
---------------------------------------------------------------------------------------------------------------
Initial Pass-
Through Rate 5.56300% 5.58200% 5.61200% 0.45706% 0.48306%
---------------------------------------------------------------------------------------------------------------
Rating(1) AA-/AA- A+/A+ A/A AAA/AAA AAA/AAA
---------------------------------------------------------------------------------------------------------------
Purchase Price(2) 100.49909 100.49421 100.49831 2.56758 3.60843
---------------------------------------------------------------------------------------------------------------
_____________________
(1) By Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. and Fitch, Inc., respectively.
(2) Expressed as a percentage of the initial aggregate stated principal amount
of each class of Certificates. There shall be added to the Purchase Price
for each class of Certificates accrued interest at the initial
Pass-Through Rate therefor on the initial aggregate principal amount
thereof from and including February 11, 2007 to but not including the
Closing Date.
(3) Notional Amount.
(4) Approximate.
SCHEDULE II
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
------------------------------------------ ------------- ----------------------------------
▇▇▇▇▇▇ Brothers Inc. A-1 $ 62,000,000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ A-2 $ 211,000,000
New York, New York 10019 A-3 $ 225,000,000
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ A-AB $ 95,000,000
A-4 $ 1,156,051,000
A-1A $ 850,172,000
A-M $ 371,318,000
A-J $ 315,620,000
B $ 27,849,000
C $ 55,697,000
D $ 37,132,000
E $ 18,566,000
F $ 32,490,000
X-CP $ 861,922,250(1)
X-W $ 2,784,882,625 (1)
UBS Global Asset Management (US) Inc. A-1 $ 0
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇-▇ $ 0
New York, New York 10019 A-3 $ 0
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ A-AB $ 0
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ A-4 N/A
A-1A $ 0
with a copy to: A-M $ 0
A-J $ 0
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ B $ 0
New York, New York 10019 C $ 0
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ D $ 0
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ E $ 0
F $ 0
X-CP $ 0(1)
X-W $ 0(1)
(1) Notional Amount
A-2-1
PRINCIPAL AMOUNT
OF RELEVANT CLASS OF
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
------------------------------------------ ------------- ----------------------------------
Wachovia Capital Markets, LLC A-1 $ 0
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ A-2 $ 0
One Wachovia Center A-3 $ 0
Charlotte, North Carolina 28288 A-AB $ 0
Attention: LB-UBS Commercial Mortgage A-4 $ 0
Trust 2007-C1 A-1A $ 0
A-M $ 0
A-J $ 0
B $ 0
C $ 0
D $ 0
E $ 0
F $ 0
X-CP $ 0(1)
X-W $ 0(1)
(1) Notional Amount
A-2-2
SCHEDULE III
The Underwriter Information in the Offering Prospectus and the
Prospectus Supplement consists of: (i) the statements set forth in the first,
second, fifth and sixth sentences of the penultimate paragraph, and the entire
last paragraph, above the bolded names of the Underwriters on the cover of each
of the Offering Prospectus and the Prospectus Supplement; and (ii) the
statements in the table (if any) and in the second sentence of the first
paragraph, the first sentence of each of the third and eighth paragraphs, and
the entire fourth, fifth and ninth paragraphs, under the caption "Method of
Distribution" in each of the Offering Prospectus and the Prospectus Supplement.
A-2-1
