EXECUTION COPY
UBS MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of July 16, 2003
(the "Agreement"), between UBS Real Estate Investment Inc. (together with its
successors and permitted assigns hereunder, the "Seller"), UBS Principal Finance
LLC, as an additional party responsible for the Seller's obligations hereunder
(in such capacity, together with its successors and permitted assigns hereunder,
the "Additional Party"), and Structured Asset Securities Corporation II
(together with its successors and permitted assigns hereunder, the "Purchaser").
The Seller intends to sell and the Purchaser intends to
purchase certain multifamily and commercial mortgage loans (the "Mortgage
Loans") as provided herein. The Purchaser intends to deposit the Mortgage Loans,
together with certain other multifamily and commercial mortgage loans (the
"Other Loans"; and, together with the Mortgage Loans, the "Securitized Loans"),
into a trust fund (the "Trust Fund"), the beneficial ownership of which will be
evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates") to be identified as the LB-UBS Commercial
Mortgage Trust 2003-C5, Commercial Mortgage Pass-Through Certificates, Series
2003-C5. One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to the Trust Fund. The Certificates will be
issued pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), to be dated as of July 11, 2003, between the Purchaser, as
depositor, Wachovia Bank, National Association, as master servicer (the "Master
Servicer"), Lennar Partners, Inc., as special servicer (the "Special Servicer"),
LaSalle Bank National Association, as trustee (the "Trustee"), and ABN AMRO Bank
N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used but not
defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with Xxxxxx Brothers
Inc. ("Xxxxxx"), UBS Securities LLC ("UBSS") and Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx" and, together with Xxxxxx and UBSS in such capacity, the
"Underwriters"), whereby the Purchaser will sell to the Underwriters all of the
Certificates that are to be registered under the Securities Act of 1933, as
amended (the "Securities Act"). The Purchaser has also entered into a
Certificate Purchase Agreement (the "Certificate Purchase Agreement"), dated as
of the date hereof, with Xxxxxx and UBSS (together in such capacity, the
"Placement Agents"), whereby the Purchaser will sell to the Placement Agents all
of the remaining Certificates (other than the Residual Interest Certificates).
In connection with the transactions contemplated hereby, the
Seller, UBS (USA), Inc. (the "Co-Indemnitor"), the Purchaser, the Underwriters
and the Placement Agents have entered into an Indemnification Agreement (the
"Indemnification Agreement"), dated as of the date hereof.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans identified on the schedule (the
"Mortgage Loan Schedule") annexed hereto as Exhibit A. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans accepted by the
Purchaser pursuant to the terms hereof. The Mortgage Loans will have an
aggregate principal balance of $598,382,399 (the "Initial UBS Pool Balance") as
of the close of business on July 11, 2003 (the "Cut-off Date"), after giving
effect to any and all payments of principal due thereon on or before such date,
whether or not received. The purchase and sale of the Mortgage Loans shall take
place on July 30, 2003 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The consideration for the Mortgage Loans
shall consist of: (A) a cash amount equal to a percentage (mutually agreed upon
by the parties hereto) of the Initial UBS Pool Balance, plus interest accrued on
each Mortgage Loan at the related Net Mortgage Rate, for the period from and
including July 11, 2003 up to but not including the Closing Date, which cash
amount shall be paid to the Seller or its designee by wire transfer in
immediately available funds (or by such other method as shall be mutually
acceptable to the parties hereto) on the Closing Date; and (B) a 46.4668%
Percentage Interest in each Class of Residual Interest Certificates (all such
Residual Interest Certificates, the "Seller's Residual Interest Certificates").
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction or waiver of the
conditions to closing set forth in Section 7 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the Mortgage
Loans identified on the Mortgage Loan Schedule as of such date (other than the
primary servicing rights). The Mortgage Loan Schedule, as it may be amended,
shall conform to the requirements set forth in this Agreement and the Pooling
and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of the
initial Purchaser, deliver to and deposit with the Trustee a Mortgage File for
each Mortgage Loan in accordance with the terms of, and conforming to the
requirements set forth in, the Pooling and Servicing Agreement. Concurrently
with such delivery, the Seller shall deliver copies of the Mortgage Note,
Mortgage(s) and any reserve and cash management agreements with respect to each
Mortgage Loan to the Master Servicer and the Special Servicer.
(d) The Seller shall, through an Independent third party (the
"Recording/Filing Agent") retained by it, as and in the manner provided in the
Pooling and Servicing Agreement (and in any event within 45 days following the
later of the Closing Date and the date on which all necessary recording or
filing, as applicable, information is available to
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the Recording/Filing Agent), cause (i) each assignment of Mortgage, each
assignment of Assignment of Leases and each assignment of Uniform Commercial
Code financing statement, in favor of, and delivered as part of the related
Mortgage File to, the Trustee, to be submitted for recordation or filing, as the
case may be, in the appropriate public office for real property records or
Uniform Commercial Code financing statements, as appropriate, and (ii) such
assignments to be delivered to the Trustee following their return by the
applicable public recording or filing office, as the case may be, with copies of
any such returned assignments to be delivered by the Trustee to the Master
Servicer, upon the request of the Master Servicer and at the expense of the
Seller; provided that, in those instances where the public recording office
retains the original assignment of Mortgage or assignment of Assignment of
Leases, a certified copy of the recorded original shall be forwarded to the
Trustee. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, then the Seller shall
prepare a substitute therefor or cure such defect or cause such to be done, as
the case may be, and the Seller shall deliver such substitute or corrected
document or instrument to the Trustee (or, if the Mortgage Loan is then no
longer subject to the Pooling and Servicing Agreement, to the then holder of
such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all such
recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(e) All such other relevant documents and records that (a) relate to the
administration or servicing of the Mortgage Loans, (b) are reasonably necessary
for the ongoing administration and/or servicing of such Mortgage Loan by the
Master Servicer in connection with its duties under the Pooling and Servicing
Agreement, and (c) are in the possession or under the control of the Seller,
together with all unapplied Escrow Payments and Reserve Funds in the possession
or under the control of the Seller that relate to the Mortgage Loans and a
statement indicating which Escrow Payments and Reserve Funds are allocable to
each Mortgage Loan, shall be delivered or caused to be delivered by the Seller
to the Master Servicer (or, at the direction of the Master Servicer, to the
appropriate sub-servicer); provided that the Seller shall not be required to
deliver any draft documents, privileged or other communications, credit
underwriting or due diligence analyses, credit committee briefs or memoranda or
other internal approval documents or data or internal worksheets, memoranda,
communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser, as
provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all actions required under applicable law to
effectuate the transfer of the Mortgage Loans by the Seller to the Purchaser.
(g) The Seller shall provide to the Master Servicer the initial data with
respect to each Mortgage Loan for the CMSA Financial File and the CMSA Loan
Periodic Update File
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that are required to be prepared by the Master Servicer pursuant to the Pooling
and Servicing Agreement.
SECTION 3. Representations, Warranties and Covenants of Seller and
Additional Party.
(a) Each of the Seller and the Additional Party (each, for purposes of
this Section 3(a), a "Representing Party") hereby represent and warrant to and
covenant with the Purchaser, as of the date hereof, that:
(i) The Representing Party is duly organized or formed, as the case
may be, validly existing and in good standing as a legal entity under the
laws of the State of Delaware and possesses all requisite authority,
power, licenses, permits and franchises to carry on its business as
currently conducted by it and to execute, deliver and comply with its
obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Representing Party and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Representing Party, enforceable against the
Representing Party in accordance with its terms, except as such
enforcement may be limited by (A) bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws affecting the enforcement
of creditors' rights in general, and (B) general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(iii) The execution and delivery of this Agreement by the
Representing Party and the Representing Party's performance and compliance
with the terms of this Agreement will not (A) violate the Representing
Party's organizational documents, (B) violate any law or regulation or any
administrative decree or order to which the Representing Party is subject
or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any material contract, agreement or other instrument to which the
Representing Party is a party or by which the Representing Party is bound.
(iv) The Representing Party is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the Representing Party's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Representing Party or
its properties or have consequences that would materially and adversely
affect its performance hereunder.
(v) The Representing Party is not a party to or bound by any
agreement or instrument or subject to any organizational document or any
other corporate or limited liability company (as applicable) restriction
or any judgment, order, writ, injunction, decree, law or regulation that
would, in the Representing Party's reasonable
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and good faith judgment, materially and adversely affect the ability of the
Representing Party to perform its obligations under this Agreement or that
requires the consent of any third person to the execution and delivery of
this Agreement by the Representing Party or the performance by the
Representing Party of its obligations under this Agreement.
(vi) Except for the recordation and/or filing of assignments and
other transfer documents with respect to the Mortgage Loans, as
contemplated by Section 2(d) hereof, no consent, approval, authorization
or order of, registration or filing with, or notice to, any court or
governmental agency or body, is required for the execution, delivery and
performance by the Representing Party of or compliance by the Representing
Party with this Agreement or the consummation of the transactions
contemplated by this Agreement; and no bulk sale law applies to such
transactions.
(vii) No litigation is pending or, to the best of the Representing
Party's knowledge, threatened against the Representing Party that would,
in the Representing Party's good faith and reasonable judgment, prohibit
its entering into this Agreement or materially and adversely affect the
performance by the Representing Party of its obligations under this
Agreement.
(viii) No proceedings looking toward merger, liquidation, dissolution
or bankruptcy of the Representing Party are pending or contemplated.
In addition, the Seller hereby further represents and warrants to, and
covenants with, the Purchaser, as of the date hereof, that:
(i) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of the
Mortgage Loans to the Purchaser in exchange for the consideration
specified in Section 1 hereof. In connection with the foregoing, the
Seller shall cause all of its records to reflect such transfer as a sale
(as opposed to a secured loan). The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller. After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either
taken at their present fair saleable value or at fair valuation, will
exceed the amount of the Seller's debts and obligations, including
contingent and unliquidated debts and obligations of the Seller, and the
Seller will not be left with unreasonably small assets or capital with
which to engage in and conduct its business. The Mortgage Loans do not
constitute all or substantially all of the assets of the Seller. The
Seller does not intend to, and does not believe that it will, incur debts
or obligations beyond its ability to pay such debts and obligations as
they mature.
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(ii) The Seller will acquire the Seller's Residual Interest
Certificates for its own account and not with a view to, or sale or
transfer in connection with, any distribution thereof, in whole or in
part, in any manner that would violate the Securities Act or any
applicable state securities laws.
(iii) The Seller understands that (A) the Seller's Residual Interest
Certificates have not been and will not be registered under the Securities
Act or registered or qualified under any applicable state securities laws,
(B) neither the Purchaser nor any other party is obligated so to register
or qualify the Seller's Residual Interest Certificates and (C) neither the
Seller's Residual Interest Certificates nor any security issued in
exchange therefor or in lieu thereof may be resold or transferred unless
it is (1) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (2) sold or
transferred in a transaction which is exempt from such registration and
qualification and the Certificate Registrar has received the
certifications and/or opinions of counsel required by the Pooling and
Servicing Agreement.
(iv) The Seller understands that it may not sell or otherwise
transfer the Seller's Residual Interest Certificates, any security issued
in exchange therefor or in lieu thereof or any interest in the foregoing
except in compliance with the provisions of Section 5.02 of the Pooling
and Servicing Agreement, which provisions it has or, as of the Closing
Date, will have carefully reviewed, and that the Seller's Residual
Interest Certificates will bear legends that identify the transfer
restrictions to which such Certificates are subject.
(v) Neither the Seller nor anyone acting on its behalf has (A)
offered, transferred, pledged, sold or otherwise disposed of any Seller's
Residual Interest Certificate, any interest in a Seller's Residual
Interest Certificate or any other similar security to any person in any
manner, (B) solicited any offer to buy or accept a transfer, pledge or
other disposition of any Seller's Residual Interest Certificate, any
interest in a Seller's Residual Interest Certificate or any other similar
security from any person in any manner, (C) otherwise approached or
negotiated with respect to any Seller's Residual Interest Certificate, any
interest in a Seller's Residual Interest Certificate or any other similar
security with any person in any manner, (D) made any general solicitation
by means of general advertising or in any other manner, or (E) taken any
other action, that (in the case of any of the acts described in clauses
(A) through (E) above) would constitute a distribution of the Seller's
Residual Interest Certificates under the Securities Act, would render the
disposition of the Seller's Residual Interest Certificates a violation of
Section 5 of the Securities Act or any state securities law or would
require registration or qualification of the Seller's Residual Interest
Certificates pursuant thereto. The Seller will not act, nor has it
authorized nor will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to the Seller's Residual
Interest Certificates, any interest in the Seller's Residual Interest
Certificates or any other similar security.
(vi) The Seller has been furnished with all information regarding (A)
the Purchaser, (B) the Seller's Residual Interest Certificates and
distributions thereon,
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(C) the nature, performance and servicing of the Other Loans, (D) the
Pooling and Servicing Agreement and the Trust Fund, and (E) all related
matters, that it has requested.
(vii) The Seller is an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or
an entity in which all the equity owners come within such paragraphs and
has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the
Seller's Residual Interest Certificates; the Seller has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Seller is able to bear the economic
risks of such an investment and can afford a complete loss of such
investment.
(viii) The Seller is not a Plan and is not directly or indirectly
acquiring the Seller's Residual Interest Certificates on behalf of, as
named fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a
Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or as of such other date
expressly set forth therein, each of the representations and warranties set
forth on Exhibit B hereto.
(c) The Seller intends to transfer the Seller's Residual Interest
Certificates to Credit Suisse First Boston LLC on or about the Closing Date;
and, in connection therewith, the Seller will comply with all of the
requirements of Section 5.02 of the Pooling and Servicing Agreement, as in
effect on the Closing Date, and applicable law. The Seller hereby directs the
Purchaser to cause the Seller's Residual Interest Certificates to be registered
in the name of Credit Suisse First Boston LLC upon initial issuance.
SECTION 4. Representations and Warranties of the Purchaser. In order to
induce the Seller to enter into this Agreement, the Purchaser hereby represents
and warrants for the benefit of the Seller and the Additional Party as of the
date hereof that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to
acquire the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser and, assuming due authorization, execution
and delivery hereof by the Seller and the Additional Party, constitutes a
legal, valid and binding obligation of the Purchaser, enforceable against
the Purchaser in accordance with its terms, except as such enforcement may
be limited by (A) bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws affecting the enforcement of creditors'
rights in general, and (B) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
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(iii) The execution and delivery of this Agreement by the Purchaser
and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's organizational documents,
(B) violate any law or regulation or any administrative decree or order to
which the Purchaser is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Purchaser is a party or by which the
Purchaser is bound.
(iv) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required for the execution, delivery
and performance by the Purchaser of or compliance by the Purchaser with
this Agreement, or the consummation by the Purchaser of any transaction
described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof.
SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller or the Additional Party discovers or receives notice of
a Document Defect or a breach of any of its representations and warranties made
pursuant to Section 3(b) hereof (each such breach, a "Breach") relating to any
Mortgage Loan, and such Document Defect or Breach materially and adversely
affects the interests of the Purchaser (or, if and for so long as such Mortgage
Loan is part of the Trust Fund, the interests of the Certificateholders) in such
Mortgage Loan (in which case any such Document Defect or Breach would be a
"Material Document Defect" or a "Material Breach", as the case may be), then the
Seller shall, not later than 90 days after its receipt of a Mortgage Loan Seller
Notification (or, in the case of a Material Document Defect or Material Breach
that affects whether a Mortgage Loan was, as of the Closing Date, is or will
continue to be a "qualified mortgage" within the meaning of the REMIC
Provisions, not later than 90 days of any party discovering such Material
Document Defect or Material Breach) (such 90-day period, in either case, the
"Initial Resolution Period"), (i) cure such Material Document Defect or Material
Breach, as the case may be, in all material respects, which cure shall include
payment of any Additional Trust Fund Expenses associated therewith, or (ii)
repurchase the affected Mortgage Loan (or the related Mortgaged Property) from,
and in accordance with the directions of, the Purchaser or its designee, at a
price equal to the Purchase Price; provided that if (i) any such Material Breach
or Material Document Defect, as the case may be, does not affect whether the
Mortgage Loan was, as of the Closing Date, is or will continue to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code (a
"Qualified Mortgage"), (ii) such Material Breach or Material Document Defect, as
the case may be, is capable of being cured but not within the applicable Initial
Resolution Period, (iii) the Seller has commenced and is diligently proceeding
with the cure of such Material Breach or Material Document Defect, as the case
may be, within the applicable Initial Resolution Period, and (iv) the Seller
shall have delivered to the Purchaser a certification executed on behalf of the
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Seller by an officer thereof confirming that such Material Breach or Material
Document Defect, as the case may be, is not capable of being cured within the
applicable Initial Resolution Period, setting forth what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Material Breach or Material Document Defect, as the case
may be, will be cured within an additional period not to exceed 90 days beyond
the end of the applicable Initial Resolution Period, then the Seller shall have
such additional 90-day period (the "Resolution Extension Period") to complete
such cure or, failing such, to repurchase the affected Mortgage Loan (or the
related Mortgaged Property); and provided, further, that, if any such Material
Document Defect is still not cured after the Initial Resolution Period and any
such Resolution Extension Period solely due to the failure of the Seller to have
received a recorded document, then the Seller shall be entitled to continue to
defer its cure and repurchase obligations in respect of such Material Document
Defect so long as the Seller certifies to the Purchaser every six months
thereafter that the Material Document Defect is still in effect solely because
of its failure to have received the recorded document and that the Seller is
diligently pursuing the cure of such defect (specifying the actions being
taken). Any such repurchase of a Mortgage Loan shall be on a whole loan,
servicing released basis. The Seller and the Additional Party shall have no
obligation to monitor the Mortgage Loans regarding the existence of a Breach or
Document Defect, but if the Seller or the Additional Party discovers a Material
Breach or Material Document Defect with respect to a Mortgage Loan, it will
notify the Purchaser.
(b) If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Seller as contemplated
by Section 5(a), then, prior to the subject repurchase, the Purchaser or its
designee shall use reasonable efforts, subject to the terms of the related
Mortgage Loans, to prepare and, to the extent necessary and appropriate, have
executed by the related Mortgagor and record, such documentation as may be
necessary to terminate the cross-collateralization between the Mortgage Loans in
such Cross-Collateralized Group that are to be repurchased, on the one hand, and
the remaining Mortgage Loans therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto;
provided that, if such Cross-Collateralized Group is still subject to the
Pooling and Servicing Agreement, then no such termination shall be effected
unless and until (i) the Purchaser or its designee has received from the Seller
(A) an Opinion of Counsel to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to the Grantor Trust and (B) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Certificates and (ii)
the Controlling Class Representative (if one is acting) has consented (which
consent shall not be unreasonably withheld and shall be deemed to have been
given if no written objection is received by the Seller within 10 days of the
Controlling Class Representative's receipt of a written request for such
consent); and provided, further, that the Seller may, at its option, purchase
the entire Cross-Collateralized Group in lieu of terminating the
cross-collateralization. All costs and expenses incurred by the Purchaser or its
designee pursuant to this paragraph shall be included in the calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased. If the
cross-collateralization of any Cross-Collateralized Group is not or cannot be
terminated as contemplated by this paragraph, then, for purposes of (i)
determining whether any Breach or Document Defect, as the case may be,
materially and adversely affects the interests of the
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Purchaser (or, if and for so long as such Cross-Collateralized Group is part of
the Trust Fund, the interests of the Certificateholders) in any Mortgage Loan,
and (ii) the application of remedies, such Cross-Collateralized Group shall be
treated as a single Mortgage Loan.
(c) It shall be a condition to any repurchase of a Mortgage Loan by the
Seller pursuant to Section 5(a) that the Purchaser shall have executed and
delivered such instruments of transfer or assignment then presented to it by the
Seller (or as otherwise required to be prepared, executed and delivered under
the Pooling and Servicing Agreement), in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Mortgage Loan (including any property acquired in respect thereof or proceeds of
any insurance policy with respect thereto), to the extent that such ownership
interest was transferred to the Purchaser hereunder. If any Mortgage Loan is to
be repurchased as contemplated by Section 5(a), the Seller shall amend the
Mortgage Loan Schedule to reflect the removal of such Mortgage Loan and shall
forward such amended schedule to the Purchaser.
(d) It is understood and agreed that the obligations of the Seller set
forth in Section 5(a) to cure any Material Breach or Material Document Defect or
to repurchase the affected Mortgage Loan, constitute the sole remedies available
to the Purchaser with respect to any Breach or Document Defect.
SECTION 6. Obligations of the Additional Party. The Additional Party
hereby covenants and agrees with the Purchaser that the Additional Party shall
be liable to the Purchaser and any designee thereof to the same extent as the
Seller as set forth herein, for all the obligations of the Seller under Section
5 hereof. The Additional Party further agrees that the Purchaser shall not be
bound or obligated to initially request the Seller to perform any of its
obligations hereunder, but may instead initially request the Additional Party to
perform such obligations. Additionally, the Additional Party agrees that the
Purchaser shall not be bound or obligated in anyway to exhaust recourse against
the Seller before being entitled to demand the performance by the Additional
Party of its obligations hereunder. Performance by the Additional Party of any
of the Seller's obligations hereunder shall be deemed to be performance thereof
by the Seller.
SECTION 7. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on
the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller and the
Additional Party set forth in or made pursuant to Sections 3(a) and 3(b) of this
Agreement, and all of the representations and warranties of the Purchaser set
forth in Section 4 of this Agreement, shall be true and correct in all material
respects as of the Closing Date;
(b) Insofar as it affects the obligations of the Seller hereunder, the
Pooling and Servicing Agreement shall be in a form mutually acceptable to the
Purchaser and the Seller;
-10-
(c) All documents specified in Section 8 of this Agreement (the "Closing
Documents"), in such forms as are reasonably acceptable to the Purchaser, shall
be duly executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(d) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf), the Master Servicer and the Special Servicer all
documents and funds required to be delivered to the Trustee, the Master Servicer
and the Special Servicer, respectively, pursuant to Section 2 of this Agreement;
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects, and the Seller and Additional Party shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(f) The Seller shall have paid all fees and expenses payable by it to the
Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
All parties hereto agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents. The Closing Documents shall consist of the
following:
(a) This Agreement duly executed by the Purchaser, the Additional Party
and the Seller;
(b) The Pooling and Servicing Agreement duly executed by the parties
thereto;
(c) The Indemnification Agreement duly executed by the parties thereto;
(d) Certificates of each of the Seller and the Additional Party, executed
by a duly authorized officer of the Seller or the Additional Party, as the case
may be, and dated the Closing Date, and upon which the initial Purchaser, the
Underwriters and the Placement Agents may rely, to the effect that: (i) the
representations and warranties of the Seller or the Additional Party, as the
case may be, in this Agreement and, in the case of the Seller, in the
Indemnification Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on such date; and (ii)
the Seller or the Additional Party, as the case may be, has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
-11-
(e) An Officer's Certificate from an officer of each of the Seller and the
Additional Party, in his or her individual capacity, dated the Closing Date, and
upon which the initial Purchaser, the Underwriters and the Placement Agents may
rely, to the effect that each individual who, as an officer or representative of
the Seller or the Additional Party, as the case may be, signed this Agreement,
the Indemnification Agreement or any other document or certificate delivered on
or before the Closing Date in connection with the transactions contemplated
herein or, in the case of the Seller, in the Indemnification Agreement, 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;
(f) As certified by an officer of each of the Seller and the Additional
Party, true and correct copies of (i) the resolutions of the board of directors
authorizing the Seller's entering into the transactions contemplated by this
Agreement and, in the case of the Seller, the Indemnification Agreement, (ii)
the organizational documents of each of the Seller and the Additional Party, and
(iii) a certificate of good standing of each of the Seller and the Additional
Party, issued by the Secretary of State of the State of Delaware not earlier
than 10 days prior to the Closing Date;
(g) A Certificate of the Co-Indemnitor, executed by a duly authorized
officer of the Co-Indemnitor and dated the Closing Date, and upon which the
initial Purchaser, the Underwriters and the Placement Agents may rely, to the
effect that the representations and warranties of the Co-Indemnitor in the
Indemnification Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on such date;
(h) An Officer's Certificate from an officer of the Co-Indemnitor, in his
or her individual capacity, dated the Closing Date, and upon which the initial
Purchaser, the Underwriters and the Placement Agents may rely, to the effect
that each individual who, as an officer or representative of the Co-Indemnitor,
signed the Indemnification Agreement or any other document or certificate
delivered on or before the Closing Date in connection with the transactions
contemplated therein, 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;
(i) As certified by an officer of the Co-Indemnitor, true and correct
copies of (i) the resolutions of the board of directors authorizing the
Co-Indemnitor's entering into the transactions contemplated by the
Indemnification Agreement, (ii) the organizational documents of the
Co-Indemnitor, and (iii) a certificate of good standing of the Co-Indemnitor
issued by the Secretary of State of the State of Delaware not earlier than 10
days prior to the Closing Date;
(j) A favorable opinion of Cadwalader, Xxxxxxxxxx & Xxxx, special counsel
to the Seller, the Additional Party and the Co-Indemnitor, substantially in the
form attached hereto as Exhibit C-1, dated the Closing Date and addressed to the
initial Purchaser, the Underwriters, the Placement Agents, the Rating Agencies
and, upon request, the other parties to the Pooling and Servicing Agreement,
together with such other opinions of Cadwalader,
-12-
Xxxxxxxxxx & Xxxx as may be required by the Rating Agencies in connection with
the transactions contemplated hereby;
(k) A favorable opinion of in-house counsel to each of the Seller, the
Additional Party and the Co-Indemnitor, substantially in the form attached
hereto as Exhibit C-2, dated the Closing Date and addressed to the initial
Purchaser, the Underwriters, the Placement Agents, the Rating Agencies and, upon
request, the other parties to the Pooling and Servicing Agreement;
(l) In connection with the initial issuance of the Seller's Residual
Interest Certificates, a Transfer Affidavit and Agreement in the form
contemplated by the Pooling and Servicing Agreement from Credit Suisse First
Boston LLC;
(m) A Certificate of the Seller regarding origination of the Mortgage
Loans by specified originators as set forth in Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended; and
(n) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
SECTION 9. Costs. An amount equal to 46.4668% of all reasonable
out-of-pocket costs and expenses incurred by the Seller, the initial Purchaser,
the Underwriters, the Placement Agents and the seller of the Other Loans to the
Purchaser in connection with the securitization of the Securitized Loans and the
other transactions contemplated by this Agreement, the Underwriting Agreement
and the Certificate Purchase Agreement shall be payable by the Seller.
SECTION 10. Grant of a Security Interest. The parties hereto agree that it
is their express intent that the conveyance of the Mortgage Loans by the Seller
to the Purchaser as provided in Section 2 hereof be, and be construed as, a sale
of the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then
it is the express intent of the parties that: (i) such conveyance shall be
deemed to be a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller; (ii) this Agreement shall be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
applicable Uniform Commercial Code; (iii) the conveyance provided for in Section
2 hereof shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property; (iv) the assignment to the Trustee of the interest of the Purchaser in
and to the Mortgage Loans shall be deemed to be an assignment of any security
interest created hereunder; (v) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes for
the Mortgage Loans, and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be
-13-
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-313 of the applicable Uniform Commercial Code;
and (vi) notifications to persons (other than the Trustee) holding such
property, and acknowledgments, receipts or confirmations from such persons
holding such property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the secured party for the purpose of perfecting such security
interest under applicable law. The Seller and the Purchaser shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement and the Pooling and Servicing
Agreement; and, in connection with the foregoing, the Seller authorizes the
Purchaser to file any and all appropriate Uniform Commercial Code financing
statements.
SECTION 11. Notices. All notices, copies, requests, consents, demands and
other communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to any party, at such
other address as shall be designated by such party in a notice hereunder to the
other parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller, the Additional Party and/or the Co-Indemnitor submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans by the Seller to the Purchaser (and by
the initial Purchaser to the Trustee).
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
-14-
SECTION 15. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY IN SAID
STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SELLER, THE
ADDITIONAL PARTY AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY
WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE
FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.
SECTION 16. Further Assurances. The Seller, the Additional Party and the
Purchaser each agrees to execute and deliver such instruments and take such
further actions as any other such party may, from time to time, reasonably
request in order to effectuate the purposes and to carry out the terms of this
Agreement.
SECTION 17. Successors and Assigns. The rights and obligations of the
Seller and the Additional Party under this Agreement shall not be assigned by
the Seller or the Additional Party, as the case may be, without the prior
written consent of the Purchaser, except that any person into which the Seller
or the Additional Party may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller or
the Additional Party is a party, or any person succeeding to all or
substantially all of the business of the Seller or the Additional Party, shall
be the successor to the Seller or the Additional Party, as the case may be,
hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller, the Additional Party, the Purchaser, and their
respective successors and permitted assigns.
SECTION 18. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. The Seller's and the Additional Party's
obligations hereunder shall in no way be expanded, changed or otherwise affected
by any amendment of or modification to the Pooling and Servicing Agreement,
unless the Seller or the Additional Party, as applicable, has consented to such
amendment or modification in writing.
-15-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized officers as
of the date first above written.
SELLER
------
UBS REAL ESTATE INVESTMENT INC.
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxx Xxxxx
-------------------------------------------
Name: Xxxx Xxxxx
Title: Director
Address for Notices:
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopier No.: (000) 000-0000
ADDITIONAL PARTY
----------------
UBS PRINCIPAL FINANCE LLC
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxx Xxxxx
-------------------------------------------
Name: Xxxx Xxxxx
Title: Director
Address for Notices:
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopier No.: (000) 000-0000
PURCHASER
---------
STRUCTURED ASSET SECURITIES CORPORATION II
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
Address for Notices:
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
EXHIBIT A
MORTGAGE LOAN SCHEDULE
MORTGAGE LOAN
NUMBER PROPERTY NAME XXXXXXX XXXX XXXXX XXX XXXX
0 Xxxxxxxxx Xxxxxxxxxxxx Various Various Various Various
Plaza Xxxxxx/Vancouver
4 39 Broadway 00 Xxxxxxxx Xxx Xxxx XX 00000
7 0000 Xxxxxx Xxxxxxxxx 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
8 The Cable Building 000 Xxxxxxxx Xxx Xxxx XX 00000
11 The Mall at Steamtown 000 Xxxxxxxxxx Xxxxxx Xxxxxxxx XX 00000
13 Shoreview Corporate Center 1020, 1050 & 0000 Xxxxxx Xxxx X, Xxxxxxxxx XX 00000
0000 Xxxxxxx Xxxx, 0000 Xxxxxxxxx
Avenue
16 Reston 00000 Xxxxxx Xxxxx Xxxx Xxxxxx XX 00000
17 0000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
18 000 Xxxxx Xxxxxx 00 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
19 Illini Tower 000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
20 Xxxxxx Creek & Xxxxx Xxxx Various Various MI Various
Mobile Home Xxxxx
00 Xxxxxxx Xxxxxxx 000-0000 Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxx XX 00000
23 00-00 Xxxxx Xxxxxx 00-00 Xxxxx Xxxxxx Xxx Xxxx XX 00000
24 Balboa Genesee Corners 5210, 5222, 5230, 0000 & 0000 Xxx Xxxxx XX 00000
Xxxxxx Xxxxxx
00 000 Xxxxx 00 000 XX Xxxxx 00 Xxxxxxxx XX 00000
Lakes
00 Xx. Xxxxxxx Xxxxx 00000, 21078, 21090, 00000 Xx. Xxxx Xxxxx XX 00000
Xxxxxxx Xxxxxxxxx
00 Xxxxxxxxx Xxxxx I 0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxxxxxx XX 00000
52 Lawyer's Title Plaza 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx Xxx Xxxxx XX 00000
62 Casa Valencia Apartments 0000 Xxxxxxxxx 00xx Xxxxxx Xxxxxxxxxx XX 00000
67 Landmark Apartments 000 00xx Xxxxxx Xxxxxxx XX 00000
68 American Medical Building 0000 Xxxxxxxx Xxxxx Xxxxx XX 00000
69 1149 Promenade 0000 Xxxxx Xxxxxx Xxxxx Xxxxxx XX 00000
70 Orchard Lake 00000-00000 Xxxxxxx Xxxx Xxxx Xxxxxxxxxx XX 00000
Hills
71 Eckerd - Hickory 0000 00xx Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000
74 Eagle Harbor Shopping Center 0000 Xxxxxx Xxxx 000 Xxxxxx Xxxx XX 00000
76 Xxxxxxx Office 0000 Xxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000
00 Xxx Xxxx Xxxxxx 000 Xxxxxxx Xxxxxxx Xxxxxx XX 00000
Moriches
80 Wal-Mart Outparcel 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
(OfficeMax)
MORTGAGE LOAN CUT-OFF DATE MONTHLY P&I
NUMBER BALANCE PAYMENT
2 156,807,239.72 831,619.45
4 66,932,015.21 397,401.46
7 50,000,000.00 256,023.46
8 45,416,244.27 271,918.52
11 41,000,000.00 252,444.05
13 40,454,404.95 226,157.55
16 23,000,000.00 139,676.07
17 22,377,053.23 132,146.77
18 22,000,000.00 126,991.87
19 21,969,569.71 107,943.62
20 17,081,563.79 92,427.72
21 16,980,968.56 95,248.11
23 13,500,000.00 76,439.90
24 11,577,581.39 67,694.45
31 9,989,054.43 56,778.90
34 8,489,305.81 44,340.02
47 5,818,478.94 32,636.48
52 4,701,537.71 31,514.84
62 3,115,970.46 19,489.97
67 2,700,000.00 15,756.47
68 2,660,000.00 15,438.65
69 2,550,000.00 15,288.54
70 2,121,980.48 13,821.60
71 2,076,969.62 12,598.63
74 1,498,549.08 9,138.42
76 1,390,000.00 8,111.66
78 1,123,911.81 6,853.82
80 1,050,000.00 6,526.54
A-1
REMAINING REMAINING INTEREST PRIMARY
MORTGAGE LOAN MORTGAGE TERM TO MATURITY- AMORTIZATION ACCRUAL ADMINISTRATIVE SERVICING
NUMBER PROPERTY NAME RATE MATURITY ARD TERM BASIS COST RATE FEE
2 Westfield Shoppingtown 4.8830 119 6/11/2013 359 Act/360 0.03155 0.0300
Xxxxx Xxxxxx/Xxxxxxxxx
0 00 Xxxxxxxx 5.9000 119 6/11/2013 359 Act/360 0.03155 0.0300
7 0000 Xxxxxx Xxxxxxxxx 4.5900 120 7/11/2013 360 Act/360 0.03155 0.0300
8 The Cable Building 5.9700 118 5/11/2013 358 Act/360 0.03155 0.0300
11 The Mall at Steamtown 6.2500 120 7/11/2013 360 Act/360 0.03155 0.0300
13 Shoreview Corporate Center 5.3500 83 6/11/2010 359 Act/360 0.03155 0.0300
16 Reston 6.1200 60 7/11/2008 360 Act/360 0.03155 0.0300
17 0000 Xxxxx Xxxxxx 5.8500 119 6/11/2013 359 Act/360 0.03155 0.0300
18 000 Xxxxx Xxxxxx 5.6500 120 7/11/2013 360 Act/360 0.03155 0.0300
19 Illini Tower 4.2280 59 6/11/2008 359 Act/360 0.03155 0.0300
00 Xxxxxx Xxxxx & Xxxxx Xxxx 0.0000 58 5/11/2008 358 Act/360 0.03155 0.0300
Mobile Home Xxxxx
00 Xxxxxxx Xxxxxxx 5.3800 119 6/11/2013 359 Act/360 0.03155 0.0300
23 00-00 Xxxxx Xxxxxx 5.4750 120 7/11/2013 360 Act/360 0.03155 0.0300
24 Balboa Genesee Corners 5.7500 118 5/11/2013 358 Act/360 0.03155 0.0300
00 000 Xxxxx 00 5.5000 119 6/11/2013 359 Act/360 0.03155 0.0300
00 Xx. Xxxxxxx Xxxxx 4.7500 59 6/11/2008 359 Act/360 0.03155 0.0300
00 Xxxxxxxxx Xxxxx I 5.3800 119 6/11/2013 359 Act/360 0.03155 0.0300
52 Lawyer's Title Plaza 6.8400 118 5/11/2013 334 Act/360 0.03155 0.0300
62 Casa Valencia Apartments 5.6600 58 5/11/2008 298 Act/360 0.03155 0.0300
67 Landmark Apartments 5.7500 120 7/11/2013 360 Act/360 0.03155 0.0300
68 American Medical Building 5.7000 120 7/11/2013 360 Act/360 0.03155 0.0300
69 1149 Promenade 6.0000 120 7/11/2013 360 Act/360 0.03155 0.0300
70 Orchard Lake 6.1000 119 6/11/2013 299 Act/360 0.03155 0.0300
71 Eckerd - Hickory 6.1000 119 6/11/2013 359 Act/360 0.03155 0.0300
74 Eagle Harbor Shopping Center 6.1500 119 6/11/2013 359 Act/360 0.03155 0.0300
76 Xxxxxxx Office 5.7500 120 7/11/2013 360 Act/360 0.03155 0.0300
78 Old Neck Market 6.1500 119 6/11/2013 359 Act/360 0.03155 0.0300
80 Wal-Mart Outparcel 5.6250 120 7/11/2013 300 Act/360 0.03155 0.0300
(OfficeMax)
MORTGAGE LOAN MORTGAGE
NUMBER GROUND LEASE? LOAN SELLER
2 Fee Simple UBS
4 Fee Simple UBS
7 Fee Simple UBS
8 Fee Simple UBS
11 Fee Simple UBS
13 Fee Simple UBS
16 Fee Simple UBS
17 Fee Simple UBS
18 Fee Simple UBS
19 Fee Simple UBS
20 Fee Simple UBS
21 Fee Simple UBS
23 Fee Simple UBS
24 Fee Simple UBS
31 Fee Simple UBS
34 Fee Simple UBS
47 Fee Simple UBS
52 Fee Simple UBS
62 Fee Simple UBS
67 Fee Simple UBS
68 Fee Simple UBS
69 Fee Simple UBS
70 Fee Simple UBS
71 Fee Simple UBS
74 Fee Simple UBS
76 Fee Simple UBS
78 Fee Simple UBS
80 Fee Simple UBS
A-2
CREDIT LEASE
ARD LOAN (TENANT,
MORTGAGE LOAN MORTGAGE ANTICIPATED GUARANTOR OR
NUMBER PROPERTY NAME DEFEASANCE LOAN REPAYMENT DATE ARD SPREAD RATED PARTY)
0 Xxxxxxxxx Xxxxxxxxxxxx Xxxxxxxxxx Yes 6/11/2013 5% + Greater of No
Plaza Xxxxxx/Vancouver (Contract Rate
or Treasury)
4 39 Broadway Defeasance No No
7 1200 Harbor Boulevard Defeasance No No
8 The Cable Building Defeasance No No
11 The Mall at Steamtown Defeasance No No
13 Shoreview Corporate Center Defeasance No No
16 Reston Defeasance/Fixed No No
Penalty
17 1100 Xxxxx Avenue Greater of YM or Yes 6/11/2013 2% + Greater of No
1% (Contract Rate
or Treasury)
18 000 Xxxxx Xxxxxx Defeasance No No
19 Illini Tower Defeasance No No
20 Xxxxxx Creek & Xxxxx Xxxx Defeasance No No
Mobile Home Parks
21 Siemens Complex Defeasance Yes 6/11/2013 2% + Greater of No
(Contract Rate
or Treasury)
23 00-00 Xxxxx Xxxxxx Defeasance No No
24 Balboa Genesee Corners Defeasance No No
31 333 Route 46 Defeasance Xx Xx
00 Xx. Xxxxxxx Xxxxx Defeasance No No
47 Lafayette Point I Defeasance No No
52 Lawyer's Title Plaza Defeasance No No
62 Casa Valencia Apartments Defeasance No No
67 Landmark Apartments Defeasance No No
68 American Medical Building Defeasance Xx Xx
00 0000 Xxxxxxxxx Xxxxxxxxxx No No
70 Orchard Lake Defeasance No No
71 Eckerd - Hickory Defeasance No No
74 Eagle Harbor Shopping Center Defeasance No No
76 Xxxxxxx Office Defeasance No No
78 Old Neck Market Defeasance No No
80 Wal-Mart Outparcel Defeasance No No
(OfficeMax)
MORTGAGE
MORTGAGE LOAN CROSS LOAN SELLER
NUMBER COLLATERALIZED LOAN ID
2 No 1003
4 No 9043
7 No 9792
8 No 9647
11 No 9592
13 No 9648
16 No 9808
17 No 9756
18 No 9637
19 No 9736
20 No 9583
21 No 9703
23 No 9817
24 No 9680
31 No 9699
34 No 9746
47 No 9698
52 No 9707
62 No 9425
67 No 9526
68 No 9744
69 No 9568
70 No 9182
71 No 9760
74 No 9639
76 No 9735
78 No 9598
80 No 9733
A-3
EXHIBIT B
REPRESENTATIONS AND WARRANTIES
Except as set forth on the schedule of exceptions attached hereto as
Schedule I, the Seller hereby represents and warrants to the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or such other date
specified in the particular representation and warranty, that:
(i) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and
correct in all material respects as of its Due Date in July 2003.
(ii) Legal Compliance. If such Mortgage Loan was originated by
the Seller or an Affiliate of the Seller, then, as of the date of its
origination, such Mortgage Loan complied in all material respects with,
or was exempt from, all requirements of federal, state or local law
relating to the origination of such Mortgage Loan; and, if such
Mortgage Loan was not originated by the Seller or an Affiliate of the
Seller, then, to the Seller's actual knowledge, after having performed
the type of due diligence customarily performed by prudent
institutional commercial and multifamily mortgage lenders, as of the
date of its origination, such Mortgage Loan complied in all material
respects with, or was exempt from, all requirements of federal, state
or local law relating to the origination of such Mortgage Loan.
(iii) Ownership of Mortgage Loan. The Seller owns such
Mortgage Loan, has good title thereto, has full right, power and
authority to sell, assign and transfer such Mortgage Loan and is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges or security interests of any nature encumbering such
Mortgage Loan, exclusive of the servicing rights pertaining thereto; no
provision of the Mortgage Note, Mortgage(s) or other loan documents
relating to such Mortgage Loan prohibits or restricts the Seller's
right to assign or transfer such Mortgage Loan to the Trustee; no
governmental or regulatory approval or consent is required for the sale
of such Mortgage Loan by the Seller; and the Seller has validly
conveyed to the Trustee a legal and beneficial interest in and to such
Mortgage Loan free and clear of any lien, claim or encumbrance of any
nature.
(iv) No Holdback. The proceeds of such Mortgage Loan have been
fully disbursed (except in those cases where the full amount of such
Mortgage Loan has been disbursed but a portion thereof is being held in
escrow or reserve accounts to be released pending the satisfaction of
certain conditions relating to leasing, repairs or other matters with
respect to the related Mortgaged Property) and there is no requirement
for future advances thereunder.
(v) Loan Document Status. Each of the related Mortgage Note,
Mortgage(s), Assignment(s) of Leases, if separate from the related
Mortgage, and other
B-I-1
agreements executed in favor of the lender in connection therewith is
the legal, valid and binding obligation of the maker thereof (subject
to the non-recourse provisions therein and any state anti-deficiency
legislation), enforceable in accordance with its terms, except that
(A) such enforcement may be limited by (1) bankruptcy, insolvency,
receivership, reorganization, liquidation, voidable preference,
fraudulent conveyance and transfer, moratorium and/or other similar
laws affecting the enforcement of creditors' rights generally, and (2)
general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law), and (B) certain
provisions in the subject agreement or instrument may be further
limited or rendered unenforceable by applicable law, but subject to
the limitations set forth in the foregoing clause (A), such
limitations will not render that subject agreement or instrument
invalid as a whole or substantially interfere with the mortgagee's
realization of the principal benefits and/or security provided by the
subject agreement or instrument. Such Mortgage Loan is non-recourse to
the Mortgagor or any other Person except to the extent provided in
certain nonrecourse carveouts and/or in any applicable guarantees. If
such Mortgage Loan has a Cut-off Date Balance of $15 million or more,
the related Mortgagor or another Person has agreed, in effect, to be
liable for all liabilities, costs, losses, damages, expenses or claims
suffered or incurred by the mortgagee under such Mortgage Loan by
reason of or in connection with and to the extent of (A) any material
intentional fraud or material intentional misrepresentation by the
related Mortgagor and (B) any breach on the part of the related
Mortgagor of any environmental representations, warranties and
covenants contained in the related Mortgage Loan documents; provided
that, instead of any breach described in clause (B) of this sentence,
the related Mortgagor or such other Person may instead be responsible
for liabilities, costs, losses, damages, expenses and claims resulting
from a breach of the obligations and indemnities of the related
Mortgagor under the related Mortgage Loan documents relating to
hazardous or toxic substances, radon or compliance with environmental
laws.
(vi) No Right of Rescission. As of the date of origination,
subject to the limitations and exceptions as to enforceability set
forth in paragraph (v) above, there was no valid offset, defense,
counterclaim or right to rescission with respect to any of the related
Mortgage Note, Mortgage(s) or other agreements executed in connection
with such Mortgage Loan; and, as of the Closing Date, subject to the
limitations and exceptions as to enforceability set forth in paragraph
(v) above, there is no valid offset, defense, counterclaim or right to
rescission with respect to such Mortgage Note, Mortgage(s) or other
agreements executed in connection with such Mortgage Loan; and, to the
actual knowledge of the Seller, no such claim has been asserted.
(vii) Assignments. The assignment of the related Mortgage(s)
and Assignment(s) of Leases to the Trustee constitutes the legal,
valid, binding and, subject to the limitations and exceptions as to
enforceability set forth in paragraph (v) above, enforceable assignment
of such documents (provided that the unenforceability of any such
assignment based on bankruptcy, insolvency, receivership,
reorganization, liquidation, moratorium and/or other similar laws
affecting the enforcement of creditors' rights generally or based on
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) shall be a breach of
this
B-I-2
representation and warranty only upon the declaration by a court
with jurisdiction in the matter that such assignment is to be
unenforceable on such basis).
(viii) First Lien. Each related Mortgage is a valid and,
subject to the limitations and exceptions in paragraph (v) above,
enforceable first lien on the related Mortgaged Property and all
buildings thereon, which Mortgaged Property is free and clear of all
encumbrances and liens having priority over or on a parity with the
first lien of such Mortgage, except for the following (collectively,
the "Permitted Encumbrances"): (A) the lien for real estate taxes,
water charges, sewer rents and assessments not yet due and payable; (B)
covenants, conditions and restrictions, rights of way, easements and
other matters that are of public record or that are omitted as
exceptions in the related lender's title insurance policy (or, if not
yet issued, omitted as exceptions in a pro forma title policy or title
policy commitment); (C) exceptions and exclusions specifically referred
to in the related lender's title insurance policy (or, if not yet
issued, referred to in a pro forma title policy or title policy
commitment); (D) other matters to which like properties are commonly
subject; (E) the rights of tenants (as tenants only) under leases
(including subleases) pertaining to the related Mortgaged Property; (F)
condominium declarations of record and identified in the related
lender's title insurance policy (or, if not yet issued, identified in a
pro forma title policy or title policy commitment); and (G) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the
lien of the Mortgage for another Mortgage Loan contained in the same
Cross-Collateralized Group. With respect to each Mortgage Loan, such
Permitted Encumbrances do not, individually or in the aggregate,
materially and adversely interfere with the benefits of the security
intended to be provided by the related Mortgage, the current principal
use or operation of the related Mortgaged Property or the ability of
the related Mortgaged Property to generate sufficient cashflow to
enable the related Mortgagor to timely pay in full the principal and
interest on the related Mortgage Note (other than a Balloon Payment,
which would require a refinancing). If the related Mortgaged Property
is operated as a nursing facility or a hospitality property, the
related Mortgage, together with any security agreement, chattel
mortgage or similar agreement and UCC financing statement, if any,
establishes and creates a first priority, perfected security interest
(subject only to any prior purchase money security interest, revolving
credit lines and any personal property leases), to the extent such
security interest can be perfected by the recordation of a Mortgage or
the filing of a UCC financing statement, in all personal property
identified therein or on a schedule attached thereto, which is owned by
the Mortgagor and is used in, and reasonably necessary to, the
operation of the related Mortgaged Property.
(ix) Financing Statements. If the related Mortgaged Property
is operated as a hospitality property, the Seller has, or has caused to
be, filed and/or recorded, or submitted for filing and/or recording, in
appropriate public filing and recording offices, all UCC-1 financing
statements necessary to create and perfect a security interest in and
lien on the items of personal property described therein (such
description being generally consistent with the practices of prudent
commercial mortgage lenders) (which personal property includes all
furniture, fixtures, equipment and other personal property located at
the subject Mortgaged Property) that are owned by the related Mortgagor
and located at,
B-I-3
and necessary or material to the operation of, the subject Mortgaged
Property, to the extent perfection may be effected pursuant to
applicable law by recording or filing.
(x) Taxes and Assessments. All taxes, governmental
assessments, water charges, sewer rents or similar governmental charges
(which, in all such cases, were directly related to the Mortgaged
Property and could constitute liens on the Mortgaged Property prior to
the lien of the Mortgage) and all ground rents that prior to the
related Due Date in July 2003 became due and payable in respect of, and
materially affect, any related Mortgaged Property have been paid or are
escrowed for or are not yet delinquent, and the Seller knows of no
unpaid tax, assessment, ground rent, water charges or sewer rent,
which, in all such cases, were directly related to the Mortgaged
Property and could constitute liens on the Mortgaged Property prior to
the lien of the Mortgage, that prior to the Closing Date became due and
delinquent in respect of any related Mortgaged Property, or in any such
case an escrow of funds in an amount sufficient to cover such payments
has been established.
(xi) No Material Damage. As of the date of origination of such
Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, there was no pending proceeding for the total or partial
condemnation of any related Mortgaged Property that materially affects
the value thereof, and such Mortgaged Property is free of material
damage. If such Mortgage Loan has a Cut-off Date Balance of $15 million
or more, then (except for certain amounts not greater than amounts
which would be considered prudent by an institutional commercial
mortgage lender with respect to a similar mortgage loan and which are
set forth in the related Mortgage or other loan documents relating to
such Mortgage Loan, and subject to any rights of the lessor under any
related Ground Lease) the related Mortgage Loan documents provide that
any condemnation awards will be applied (or, at the discretion of the
mortgagee, will be applied) either to the repair or restoration of all
or part of the related Mortgaged Property or the reduction of the
outstanding principal balance of such Mortgage Loan.
(xii) Title Insurance. Each related Mortgaged Property is
covered by an ALTA (or its equivalent) lender's title insurance policy
issued by a nationally recognized title insurance company, insuring
that each related Mortgage is a valid first lien on such Mortgaged
Property in the original principal amount of such Mortgage Loan after
all advances of principal, subject only to Permitted Encumbrances, or
there is a binding commitment or binding pro forma from a title insurer
qualified and/or licensed in the applicable jurisdiction, as required,
to issue such policy; such title insurance policy, if issued, is in
full force and effect, all premiums have been paid, is freely
assignable and will inure to the benefit of the Trustee as mortgagee of
record, or any such commitment or binding pro forma is a legal, valid
and binding obligation of such insurer; no claims have been made by the
Seller under such title insurance policy, if issued; and neither the
Seller nor, to the best of the Seller's knowledge, any Affiliate of the
Seller (or any of its affiliates) has done, by act or omission,
anything that would materially impair the coverage of any such title
insurance policy; such policy or commitment or binding pro forma
contains no exclusion for (or alternatively it insures over such
exclusion, unless such coverage is unavailable in the relevant
jurisdiction) (A) access to a public road, (B) that there is no
material encroachment by any improvements on the Mortgaged Property,
B-I-4
and (C) that the land shown on the survey materially conforms to the
legal description of the Mortgaged Property.
(xiii) Property Insurance. As of the date of its origination
and, to the best of the Seller's knowledge, as of the Closing Date, all
insurance required under each related Mortgage (except where a tenant
under a lease is permitted to insure or self-insure) was in full force
and effect with respect to each related Mortgaged Property; such
insurance included (A) "all risk" or fire and extended perils
insurance, in an amount (subject to a customary deductible) at least
equal to the lesser of (i) 100% of the full insurable replacement cost
of the improvements located on such Mortgaged Property and (ii) the
initial principal balance of such Mortgage Loan, or the portion thereof
allocable to such Mortgaged Property, (B) business interruption or
rental loss insurance for a period of not less than 12 months, (C)
comprehensive general liability insurance in an amount not less than $1
million per occurrence, (D) workers' compensation insurance (if the
related Mortgagor has employees and if required by applicable law), and
(E) if (1) such Mortgage Loan is secured by a Mortgaged Property
located in the State of California in or "seismic zone" 3 or 4 and (2)
a seismic assessment revealed a maximum probable or bounded loss in
excess of 20% of the amount of the estimated replacement cost of the
improvements on such Mortgaged Property, earthquake insurance; it is an
event of default under such Mortgage Loan if the above-described
insurance coverage is not maintained by the related Mortgagor (except
where a tenant under a lease is permitted to insure or self-insure),
and any reasonable out-of-pocket costs and expenses incurred by the
mortgagee in connection with such default in obtaining such insurance
coverage are recoverable from the related Mortgagor; the related
Mortgage Loan documents require that the related insurance policies
provide that they may not be terminated without at least 10 days' prior
notice to the mortgagee and, to the Seller's knowledge, it has not
received any such notice; the related insurance certificates (other
than those limited to liability protection) name the mortgagee and its
successors as mortgagee or loss payee; no notice of termination or
cancellation with respect to any such insurance policy has been
received by the Seller; all premiums under any such insurance policy
have been paid through the related Due Date in July 2003; all such
insurance policies are required to be maintained with insurance
companies having "financial strength" or "claims paying ability"
ratings of at least "A:VII" from A.M. Best Company or at least "BBB+"
(or equivalent) from a nationally recognized statistical rating agency
(or, with respect to certain blanket insurance policies, such other
ratings as are in compliance with S&P's applicable criteria); and,
except for certain amounts not greater than amounts which would be
considered prudent by an institutional commercial mortgage lender with
respect to a similar mortgage loan and which are set forth in the
related Mortgage or other loan documents relating to such Mortgage
Loan, and subject to the rights of the lessor under any related Ground
Lease, the related Mortgage Loan documents provide that any property
insurance proceeds will be applied (or, at the discretion of the
mortgagee, will be applied) either to the repair or restoration of all
or part of the related Mortgaged Property or the reduction of the
outstanding principal balance of such Mortgage Loan; provided that the
related Mortgage Loan documents may entitle the related Mortgagor to
any portion of such proceeds remaining after completion of the repair
or restoration of the related Mortgaged Property or payment of amounts
due under such Mortgage Loan. Notwithstanding anything to the contrary
in this paragraph (xiii), with regard to insurance
B-I-5
for acts of terrorism, any such insurance and the amount thereof may
be limited by the commercial availability of such coverage, whether
the mortgagee may reasonably require such insurance, certain
limitations with respect to the cost thereof and/or whether such
hazards are at the time commonly insured against for property similar
to the related Mortgaged Property located in or around the region in
which the Mortgaged Property is located.
(xiv) No Material Defaults. Other than payments due but not
yet 30 days or more delinquent, there is, to the actual knowledge of
the Seller, (A) no material default, breach, violation or event of
acceleration existing under the related Mortgage Note, the related
Mortgage or other loan documents relating to such Mortgage Loan, and
(B) no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration under any of such
documents; provided, however, that this representation and warranty
does not cover any default, breach, violation or event of acceleration
that specifically pertains to or arises out of the subject matter
otherwise covered by any other representation and warranty made by the
Seller in this Exhibit B. If the Seller had knowledge of any material
default, breach, violation or event of acceleration under any of such
documents, the Seller has not waived any such material default, breach,
violation or event of acceleration. Under the terms of such Mortgage
Loan, no person or party other than the mortgagee or its servicing
agent may declare an event of default or accelerate the related
indebtedness under such Mortgage Loan.
(xv) No Payment Delinquency. As of the Closing Date, such
Mortgage Loan is not, and in the prior 12 months (or since the date of
origination if such Mortgage Loan has been originated within the past
12 months), has not been, 30 days or more past due in respect of any
Monthly Payment.
(xvi) Interest Accrual Basis. Such Mortgage Loan accrues
interest on an Actual/360 Basis or on a 30/360 Basis; and such Mortgage
Loan accrues interest (payable monthly in arrears) at a fixed rate of
interest throughout the remaining term thereof (except if such Mortgage
Loan is an ARD Mortgage Loan, in which case the accrual rate for
interest will increase after its Anticipated Repayment Date, and except
in connection with the occurrence of a default and the accrual of
default interest).
(xvii) Subordinate Debt. Each related Mortgage or other loan
document relating to such Mortgage Loan does not provide for or permit,
without the prior written consent of the holder of the related Mortgage
Note, any related Mortgaged Property to secure any other promissory
note or debt (other than another Mortgage Loan in the Trust Fund).
(xviii) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
Accordingly, either as of the date of origination or the Closing Date,
the fair market value of the real property securing such Mortgage Loan
was not less than 80% of the "adjusted issue price" (within the meaning
of the REMIC Provisions) of such Mortgage Loan. For purposes of the
preceding sentence, the fair market value of the real property securing
such Mortgage Loan was
B-I-6
first reduced by the amount of any lien on such real property that is
senior to the lien that secures such Mortgage Loan, and was further
reduced by a proportionate amount of any lien that is on a parity with
the lien that secures such Mortgage Loan.
(xix) Prepayment Consideration. Prepayment Premiums and Yield
Maintenance Charges payable with respect to such Mortgage Loan, if any,
constitute "customary prepayment penalties" within the meaning of
Treasury regulations section 1.860G-1(b)(2).
(xx) Environmental Conditions. One or more environmental site
assessments or transaction screens, or one or more updates of a
previously conducted environmental assessment or transaction screen,
were performed by an environmental consulting firm independent of the
Seller and the Seller's Affiliates with respect to each related
Mortgaged Property during the 12-month period preceding the Cut-off
Date, and the Seller, having made no independent inquiry other than to
review the report(s) prepared in connection with the assessment(s),
transaction screen(s) and/or update(s) referenced herein, has no
knowledge of, and has not received actual notice of, any material and
adverse environmental condition or circumstance affecting such
Mortgaged Property that was not disclosed in such report(s); all such
environmental site assessments and transaction screens met ASTM
requirements to the extent set forth in such report; and none of the
environmental reports reveal any circumstances or conditions that are
in violation of any applicable environmental laws, or if such report
does reveal such circumstances, then (1) the same have been remediated
in all material respects, (2) sufficient funds have been escrowed or a
letter of credit, guaranty or other instrument has been delivered for
purposes of covering the estimated costs of such remediation, (3) the
related Mortgagor or other responsible party is currently taking
remedial or other appropriate action to address the environmental issue
consistent with the recommendations in such site assessment, (4) the
cost of the environmental issue relative to the value of such Mortgaged
Property was de minimis, or (5) environmental insurance has been
obtained.
(xxi) Realization Against Real Estate Collateral. The related
Mortgage Note, Mortgage(s), Assignment(s) of Leases and other loan
documents securing such Mortgage Loan, if any, contain customary and,
subject to the limitations and exceptions as to enforceability in
paragraph (v) above, enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property or Properties of the
principal benefits of the security intended to be provided thereby,
including realization by judicial or, if applicable, non-judicial
foreclosure.
(xxii) Bankruptcy. As of the date of origination of such
Mortgage Loan, to the Seller's knowledge, after due inquiry, the
related Mortgagor is not a debtor in any bankruptcy, reorganization,
insolvency or comparable proceeding.
(xxiii) Loan Security. Such Mortgage Loan is secured by either
a mortgage on a fee simple interest or a leasehold estate in a
commercial property or multifamily
B-I-7
property, including the related Mortgagor's interest in the
improvements on the related Mortgaged Property.
(xxiv) Amortization. Such Mortgage Loan does not provide for
negative amortization unless such Mortgage Loan is an ARD Mortgage
Loan, in which case it may occur only after the Anticipated Repayment
Date.
(xxv) Whole Loan. Such Mortgage Loan is a whole loan, contains
no equity participation by the lender or shared appreciation feature
and does not provide for any contingent interest in the form of
participation in the cash flow of the related Mortgaged Property.
(xxvi) Due-on-Encumbrance. Each Mortgage Loan contains
provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of
the mortgagee or Rating Agency confirmation that an Adverse Rating
Event would not occur, any related Mortgaged Property or direct
controlling interest therein, is directly encumbered in connection with
subordinate financing. To the Seller's knowledge, no related Mortgaged
Property is encumbered in connection with subordinate financing;
however, if the related Mortgaged Property is listed on Schedule
II-xxvi, then certain direct controlling equity holders in the related
Mortgagor have the right to incur, or are known to the Seller to have
incurred, debt secured by their ownership interest in the related
Mortgagor.
(xxvii) Due-on-Sale. Except with respect to transfers of
certain non-controlling and/or minority interests in the related
Mortgagor as specified in the related Mortgage or with respect to
transfers of interests in the related Mortgagor between immediate
family members and with respect to transfers by devise, by descent or
by operation of law or otherwise upon the death or incapacity of a
person having an interest in the related Mortgagor, each Mortgage Loan
contains either (A) provisions for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan if any related
Mortgaged Property or interest therein is directly or indirectly
transferred or sold without the prior written consent of the mortgagee
or rating agency confirmation, or (B) provisions for the acceleration
of the payment of the unpaid principal balance of such Mortgage Loan if
any related Mortgaged Property or interest therein is directly or
indirectly transferred or sold without the related Mortgagor having
satisfied certain conditions specified in the related Mortgage with
respect to permitted transfers (which conditions are consistent with
the practices of prudent commercial mortgage lenders).
(xxviii) Mortgagor Concentration. Such Mortgage Loan, together
with any other Mortgage Loan made to the same Mortgagor or to an
Affiliate of such Mortgagor, does not represent more than 5% of the
Initial Pool Balance.
(xxix) Waivers; Modifications. Except as set forth in a
written instrument included in the related Mortgage File, the (a) terms
of the related Mortgage Note, the related Mortgage(s) and any related
loan agreement and/or lock-box agreement have not been waived,
modified, altered, satisfied, impaired, canceled, subordinated or
rescinded by mortgagee in any manner, and (b) no portion of a related
Mortgaged Property has been
B-I-8
released from the lien of the related Mortgage, in the case of (a)
and/or (b), to an extent or in a manner that in any such event
materially and adversely interferes with the mortgagee's realization
of the principal benefits and/or security intended to be provided by
such document or instrument.
(xxx) Inspection. Each related Mortgaged Property was
inspected by or on behalf of the related originator during the
six-month period prior to the related origination date.
(xxxi) Property Release. The terms of the related Mortgage
Note, Mortgage(s) or other loan document securing such Mortgage Loan do
not provide for the release from the lien of such Mortgage of any
material portion of the related Mortgaged Property that is necessary to
the operation of such Mortgaged Property and was given material value
in the underwriting of such Mortgage Loan at origination, without (A)
payment in full of such Mortgage Loan, (B) delivery of Defeasance
Collateral in the form of "government securities" within the meaning of
Section 2(a)(16) of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), (C) delivery of substitute real property
collateral, or (D) payment of a release price equal to at least 110% of
the amount of such Mortgage Loan allocated to the related Mortgaged
Property subject to the release.
(xxxii) Qualifications; Licensing; Zoning. The related
Mortgagor has covenanted in the Mortgage Loan documents to maintain the
related Mortgaged Property in compliance in all material respects with,
to the extent it is not grandfathered under, all applicable laws,
zoning ordinances, rules, covenants and restrictions affecting the
construction, occupancy, use and operation of such Mortgaged Property,
and the related originator performed the type of due diligence in
connection with the origination of such Mortgage Loan customarily
performed by prudent institutional commercial and multifamily mortgage
lenders with respect to the foregoing matters; the Seller has received
no notice of any material violation of, to the extent is has not been
grandfathered under, any applicable laws, zoning ordinances, rules,
covenants or restrictions affecting the construction, occupancy, use or
operation of the related Mortgaged Property (unless affirmatively
covered by the title insurance referred to in paragraph (xi) above (or
an endorsement thereto)); to the Seller's knowledge (based on surveys,
opinions, letters from municipalities and/or title insurance obtained
in connection with the origination of such Mortgage Loan), no
improvement that was included for the purpose of determining the
appraised value of the related Mortgaged Property at the time of
origination of such Mortgage Loan lay outside the boundaries and
building restriction lines of such property, in effect at the time of
origination of such Mortgage Loan, to an extent which would have a
material adverse affect on the related Mortgagor's use and operation of
such Mortgaged Property (unless grandfathered with respect thereto or
affirmatively covered by the title insurance referred to in paragraph
(xi) above (or an endorsement thereto)), and no improvements on
adjoining properties encroached upon such Mortgaged Property to any
material extent.
(xxxiii) Property Financial Statements. The related Mortgagor
has covenanted in the related Mortgage Loan documents to deliver to the
mortgagee quarterly and/or annual operating statements and rent rolls
of each related Mortgaged Property.
B-I-9
(xxxiv) Single Purpose Entity. If such Mortgage Loan has a
Cut-off Date Balance in excess of $15 million, then the related
Mortgagor is obligated by its organizational documents and/or the
related Mortgage Loan documents to be a Single Purpose Entity for so
long as such Mortgage Loan is outstanding; and if such Mortgage Loan
has a Cut-off Date Balance less than $15 million, the related Mortgagor
is obligated by its organizational documents and/or the related
Mortgage Loan documents to own the related Mortgaged Property and no
other material asset unrelated to such Mortgaged Property and, except
as permitted by the related Mortgage Loan documents, not to incur other
financing for so long as such Mortgage Loan is outstanding.
(xxxv) Advancing of Funds. No advance of funds has been made,
directly or indirectly, by the originator or the Seller to the related
Mortgagor other than pursuant to the related Mortgage Note; and, to the
actual knowledge of the Seller, no funds have been received from any
Person other than such Mortgagor for or on account of payments due on
the related Mortgage Note.
(xxxvi) Legal Proceedings. To the Seller's actual knowledge,
there are no pending actions, suits or proceedings by or before any
court or governmental authority against or affecting the related
Mortgagor or any related Mortgaged Property that, if determined
adversely to such Mortgagor or Mortgaged Property, would materially and
adversely affect the value of such Mortgaged Property or the ability of
such Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvii) Originator Duly Authorized. To the extent required
under applicable law, the originator of such Mortgage Loan was
qualified and authorized to do business in each jurisdiction in which a
related Mortgaged Property is located at all times when it held such
Mortgage Loan to the extent necessary to ensure the enforceability of
such Mortgage Loan.
(xxxviii) Trustee under Deed of Trust. If the related Mortgage
is a deed of trust, a trustee, duly qualified under applicable law to
serve as such, is properly designated and serving under such Mortgage,
and no fees and expenses are payable to such trustee except in
connection with a trustee sale of the related Mortgaged Property
following a default or in connection with the release of liens securing
such Mortgage Loan.
(xxxix) Cross-Collateralization. The related Mortgaged
Property is not, to the Seller's knowledge, collateral or security for
any mortgage loan that is not in the Trust Fund and, if such Mortgage
Loan is cross-collateralized, it is cross-collateralized only with
other Mortgage Loans in the Trust Fund. The security interest/lien on
each material item of collateral for such Mortgage Loan has been
assigned to the Trustee.
(xl) Flood Hazard Insurance. None of the improvements on any
related Mortgaged Property are located in a flood hazard area as
defined by the Federal Insurance Administration or, if they are, the
related Mortgagor has obtained flood hazard insurance.
B-I-10
(xli) Engineering Assessments. One or more engineering
assessments or updates of a previously conducted engineering assessment
were performed by an Independent engineering consulting firm with
respect to each related Mortgaged Property during the 12-month period
preceding the Cut-off Date, and the Seller, having made no independent
inquiry other than to review the report(s) prepared in connection with
such assessment(s) and or update(s), does not have any knowledge of any
material and adverse engineering condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s); and,
to the extent such assessments revealed deficiencies, deferred
maintenance or similar conditions, either (A) the estimated cost has
been escrowed or a letter of credit has been provided, (B) repairs have
been made or (C) the scope of the deferred maintenance relative to the
value of such Mortgaged Property was de minimis.
(xlii) Escrows. All escrow deposits and payments relating to
such Mortgage Loan are under control of the Seller or the servicer of
such Mortgage Loan and all amounts required as of the date hereof under
the related Mortgage Loan documents to be deposited by the related
Mortgagor have been deposited. The Seller is transferring to the
Trustee all of its right, title and interest in and to such amounts.
(xliii) Licenses, Permits and Authorizations. The related
Mortgagor has represented in the related Mortgage Loan documents that,
and, to the actual knowledge of the Seller, as of the date of
origination of such Mortgage Loan, all material licenses, permits and
authorizations then required for use of the related Mortgaged Property
by such Mortgagor, the related lessee, franchisor or operator have been
issued and were valid and in full force and effect.
(xliv) Origination, Servicing and Collection Practices. The
origination, servicing and collection practices used by the Seller or
any prior holder of the related Mortgage Note have been in all respects
legal and have met customary industry standards.
(xlv) Fee Simple. Such Mortgage Loan is secured in whole or in
material part by a fee simple interest.
(xlvi) Leasehold Interest Only. If such Mortgage Loan is
secured in whole or in material part by the interest of the related
Mortgagor as a lessee under a Ground Lease but not by the related fee
interest, then:
a. such Ground Lease or a memorandum thereof has been
or will be duly recorded and such Ground Lease permits the
interest of the lessee thereunder to be encumbered by the
related Mortgage or, if consent of the lessor thereunder is
required, it has been obtained prior to the Closing Date;
b. upon the foreclosure of such Mortgage Loan (or
acceptance of a deed in lieu thereof), the Mortgagor's
interest in such Ground Lease is assignable to the Trustee
without the consent of the lessor thereunder (or, if any such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it
B-I-11
is so assigned, is further assignable by the Trustee and its
successors without a need to obtain the consent of such
lessor (or, if any such consent is required, it has been
obtained prior to the Closing Date or may not be
unreasonably withheld);
c. such Ground Lease may not be amended or modified
without the prior written consent of the mortgagee under such
Mortgage Loan and any such action without such consent is not
binding on such mortgagee, its successors or assigns;
d. unless otherwise set forth in such Ground Lease,
such Ground Lease does not permit any increase in the amount
of rent payable by the ground lessee thereunder during the
term of such Mortgage Loan;
e. such Ground Lease was in full force and effect as
of the date of origination of the such Mortgage Loan, and to
the actual knowledge of the Seller, at the Closing Date, such
Ground Lease is in full force and effect; to the actual
knowledge of the Seller, except for payments due but not yet
30 days or more delinquent, (1) there is no material default
under such Ground Lease, and (2) there is no event which, with
the passage of time or with notice and the expiration of any
grace or cure period, would constitute a material default
under such Ground Lease;
f. such Ground Lease, or an estoppel or consent
letter received by the mortgagee under such Mortgage Loan from
the lessor, requires the lessor thereunder to give notice of
any default by the lessee to such mortgagee; and such Ground
Lease, or an estoppel or consent letter received by the
mortgagee under such Mortgage Loan from the lessor, further
provides either (1) that no notice of termination given under
such Ground Lease is effective against such mortgagee unless a
copy has been delivered to the mortgagee in the manner
described in such Ground Lease, estoppel or consent letter or
(2) that upon any termination of such Ground Lease the lessor
will enter into a new lease with such mortgagee upon such
mortgagee's request;
g. based upon the related policy of title insurance,
the ground lessee's interest in such Ground Lease is not
subject to any liens or encumbrances superior to, or of equal
priority with, the related Mortgage, other than the related
ground lessor's related fee interest and any Permitted
Encumbrances;
h. the mortgagee under such Mortgage Loan is
permitted a reasonable opportunity to cure any curable default
under such Ground Lease (not less than the time provided to
the related lessee under such ground lease to cure such
default) before the lessor thereunder may terminate or cancel
such Ground Lease;
i. such Ground Lease has a currently effective term
(exclusive of any unexercised extension options set forth
therein) that extends not less than 20 years beyond the Stated
Maturity Date of such Mortgage Loan;
B-I-12
j. under the terms of such Ground Lease, any estoppel
or consent letter received by the mortgagee under such
Mortgage Loan from the lessor and the related Mortgage Loan
documents, taken together, any related insurance proceeds,
other than de minimis amounts for minor casualties, with
respect to the leasehold interest, or condemnation proceeds
will be applied either to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee or
a trustee appointed by it having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another
party to hold and disburse such proceeds would not be viewed
as commercially unreasonable by a prudent commercial mortgage
lender), or to the payment of the outstanding principal
balance of such Mortgage Loan, together with any accrued
interest thereon;
k. such Ground Lease does not impose any restrictions
on use or subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender;
l. upon the request of the mortgagee under such
Mortgage Loan, the ground lessor under such Ground Lease is
required to enter into a new lease upon termination of the
Ground Lease for any reason prior to the expiration of the
term thereof, including as a result of the rejection of the
Ground Lease in a bankruptcy of the related Mortgagor unless
the mortgagee under such Mortgage Loan fails to cure a default
of the lessee under such Ground Lease following notice thereof
from the lessor; and
m. the terms of the related Ground Lease have not
been waived, modified, altered, satisfied, impaired, canceled,
subordinated or rescinded in any manner which materially
interferes with the security intended to be provided by such
Mortgage, except as set forth in an instrument or document
contained in the related Mortgage File.
(xlvii) Fee Simple and Leasehold Interest. If such Mortgage
Loan is secured in whole or in part by the interest of the related
Mortgagor under a Ground Lease and by the related fee interest, then
(A) such fee interest is subject, and subordinated of record, to the
related Mortgage, (B) the related Mortgage does not by its terms
provide that it will be subordinated to the lien of any other mortgage
or other lien upon such fee interest, and (C) upon occurrence of a
default under the terms of the related Mortgage by the related
Mortgagor, the mortgagee under such Mortgage Loan has the right
(subject to the limitations and exceptions set forth in paragraph (v)
above) to foreclose upon or otherwise exercise its rights with respect
to such fee interest.
(xlviii) Tax Lot; Utilities. Each related Mortgaged Property
constitutes one or more complete separate tax lots (or the related
Mortgagor has covenanted to obtain separate tax lots and an escrow of
funds in an amount sufficient to pay taxes resulting from a breach
thereof has been established) or is subject to an endorsement under the
related title insurance policy; and each related Mortgaged Property is
served by a public
B-I-13
or other acceptable water system, a public sewer (or, alternatively, a
septic) system, and other customary utility facilities.
(xlix) Defeasance. If such Mortgage Loan is a Defeasance
Mortgage Loan, the related Mortgage Loan documents require the related
Mortgagor to pay all reasonable costs associated with the defeasance
thereof, and either: (A) require the prior written consent of, and
compliance with the conditions set by, the holder of such Mortgage Loan
for defeasance or (B) require that (1) defeasance may not occur prior
to the second anniversary of the Closing Date, (2) the Defeasance
Collateral must be government securities within the meaning of Treasury
regulations section 1.860G-2(a)(8)(i) and must be sufficient to make
all scheduled payments under the related Mortgage Note when due
(assuming for each ARD Mortgage Loan that it matures on its Anticipated
Repayment Date or on the date when any open prepayment period set forth
in the related Mortgage Loan documents commences) or, in the case of a
partial defeasance that effects the release of a material portion of
the related Mortgaged Property, to make all scheduled payments under
the related Mortgage Note on that part of such Mortgage Loan equal to
at least 110% of the allocated loan amount of the portion of the
Mortgaged Property being released, (3) an independent accounting firm
(which may be the Mortgagor's independent accounting firm) certify that
the Defeasance Collateral is sufficient to make such payments, (4) such
Mortgage Loan be assumed by a successor entity designated by the holder
of such Mortgage Loan (or by the Mortgagor with the approval of such
lender), and (5) counsel provide an opinion letter to the effect that
the Trustee has a perfected security interest in such Defeasance
Collateral prior to any other claim or interest.
(l) Primary Servicing Rights. No Person has been granted or
conveyed the right to primary service such Mortgage Loan or receive any
consideration in connection therewith except (A) as contemplated in
this Agreement with respect to primary servicers that are to be
sub-servicers of the Master Servicer, (B) as has been conveyed to
Wachovia, in its capacity as a primary servicer, or (C) as has been
terminated.
(li) Mechanics' and Materialmen's Liens. To the Seller's
knowledge, as of origination (A) the related Mortgaged Property is free
and clear of any and all mechanics' and materialmen's liens that are
not bonded, insured against or escrowed for, and (B) no rights are
outstanding that under law could give rise to any such lien that would
be prior or equal to the lien of the related Mortgage (unless
affirmatively covered by the title insurance referred to in paragraph
(xi) above (or an endorsement thereto)). The Seller has not received
actual notice with respect to such Mortgage Loan that any mechanics'
and materialmen's liens have encumbered such Mortgaged Property since
origination that have not been released, bonded, insured against or
escrowed for.
(lii) Due Date. The Due Date for such Mortgage Loan is
scheduled to be the eighth day or the eleventh day of each month.
(liii) Assignment of Leases. Subject only to Permitted
Encumbrances, the related Assignment of Leases set forth in or separate
from the related Mortgage and delivered in connection with such
Mortgage Loan establishes and creates a valid and, subject only to the
exceptions in paragraph (v) above, enforceable first priority lien and
B-I-14
first priority security interest in the related Mortgagor's right to
receive payments due under any and all leases, subleases, licenses or
other agreements pursuant to which any Person is entitled to occupy,
use or possess all or any portion of the related Mortgaged Property
subject to the related Mortgage, except that a license may have been
granted to the related Mortgagor to exercise certain rights and perform
certain obligations of the lessor under the relevant lease or leases;
and each assignor thereunder has the full right to assign the same.
(liv) Mortgagor Formation or Incorporation. To the Seller's
knowledge, the related Mortgagor is a Person formed or incorporated in
a jurisdiction within the United States.
(lv) No Ownership Interest in Mortgagor. The Seller has no
ownership interest in the related Mortgaged Property or the related
Mortgagor other than as the holder of such Mortgage Loan being sold and
assigned, and neither the Seller nor any affiliate of the Seller has
any obligation to make any capital contributions to the related
Mortgagor under the Mortgage or any other related Mortgage Loan
document.
(lvi) No Undisclosed Common Ownership. To the Seller's
knowledge, no two properties securing Mortgage Loans are directly or
indirectly under common ownership except to the extent that such common
ownership has been specifically disclosed in the Mortgage Loan
Schedule.
(lvii) Mortgage Loan Outstanding. Such Mortgage Loan has not
been satisfied in full, and except as expressly contemplated by the
related loan agreement or other documents contained in the related
Mortgage File, no material portion of the related Mortgaged Property
has been released.
(lviii) Usury. Such Mortgage Loan complied with or was exempt
from all applicable usury laws in effect at its date of origination.
(lix) ARD Mortgage Loan. If such Mortgage Loan is an ARD
Mortgage Loan and has a Cut-off Date Balance of $15,000,000 or more,
then:
a. the related Anticipated Repayment Date is not less
than five years from the origination date for such Mortgage
Loan;
b. such Mortgage Loan provides that from the related
Anticipated Repayment Date through the maturity date for such
Mortgage Loan, all excess cash flow (net of normal monthly
debt service on such Mortgage Loan, monthly expenses
reasonably related to the operation of the related Mortgaged
Property, amounts due for reserves established under such
Mortgage Loan, and payments for any other expenses, including
capital expenses, related to such Mortgaged Property which are
approved by mortgagee) will be applied to repay principal due
under such Mortgage Loan; and
c. no later than the related Anticipated Repayment
Date, the related Mortgagor is required (if it has not
previously done so) to enter into a "lockbox
B-I-15
agreement" whereby all revenue from the related Mortgaged
Property will be deposited directly into a designated
account controlled by the mortgagee under such Mortgage
Loan.
(lx) Appraisal. An appraisal of the related Mortgaged Property
was conducted in connection with the origination of such Mortgage Loan;
and such appraisal satisfied either (A) the requirements of the
"Uniform Standards of Professional Appraisal Practice" as adopted by
the Appraisal Standards Board of the Appraisal Foundation, or (B) the
guidelines in Title XI of the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, in either case as in effect on the date
such Mortgage Loan was originated.
B-I-16
SCHEDULE I TO EXHIBIT B
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
LB-UBS 2003-C5
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
------ -------- -----
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (v): LOAN DOCUMENT STATUS
--------------------
----------------------------------------------------------------------------------------------------------------------
16 Reston In lieu of primary liability under the
environmental indemnity, the borrower and the
principals obtained an Chubb Secured Creditor
Policy for the benefit of Lender. The borrower is
secondarily liable on the environmental indemnity
in the event that Lender fails to recover under the
Secured Creditor Policy. The mortgage loan is 50%
recourse to a principal of the borrower.
----------------------------------------------------------------------------------------------------------------------
20 Xxxxxx Creek & Xxxxx Xxxx Mobile Home Parks The mortgage loan is recourse to a principal of the
borrower until NCF reaches $1,654,000 for the
trailing 12 months.
----------------------------------------------------------------------------------------------------------------------
62 Casa Valencia Apartments The property was legal non-conforming but, due to a
transfer of the property in connection with the
acquisition by the borrower, the property became
non-conforming. The property will become legal
non-conforming again provided that within six
months from closing (1) the borrower brings the
parking up to the current standards or (2) the
borrower obtains a variance. The borrower is
making a prompt application for a variance. Until
such time the variance is granted, the loan is
recourse to the borrower and the guarantors. In
addition, a $50,000 escrow was established to cover
any potential costs associated with obtaining such
variance.
----------------------------------------------------------------------------------------------------------------------
B-I-17
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
------ -------- -----
----------------------------------------------------------------------------------------------------------------------
67 Landmark Apartments The mortgage loan is recourse to a principal of the
borrower. The recourse guaranty may be terminated
in the event of a conveyance of the fee interest in
the mortgaged property if certain conditions set
forth in the guaranty are satisfied
----------------------------------------------------------------------------------------------------------------------
69 1149 Promenade The mortgage loan is recourse to a principal of the
borrower.
----------------------------------------------------------------------------------------------------------------------
78 Old Neck Market The mortgage loan is 50% recourse to a principal of
the borrower.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (xiii): PROPERTY INSURANCE
------------------
----------------------------------------------------------------------------------------------------------------------
20 Xxxxxx Creek & Xxxxx Xxxx Mobile Home Parks EMC Insurance Companies, rated BBB/ A-:IX, covers all
insurance for this property.
----------------------------------------------------------------------------------------------------------------------
00 Xx. Xxxxxxx Travelers, rated AA-/A++:XV, covers the first
$1,000,000 of liability and excess insurance for up
to two occurrences. Ohio Casualty, rated BBB/A-:X
covers the remainder up to $5,000,000. In
addition, insurance to be maintained by two ground
tenants may not comply with these requirements and
proceeds from such insurance may be paid to tenants
rather than restoration or reduction of the
mortgage loan.
----------------------------------------------------------------------------------------------------------------------
B-I-18
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
------ -------- -----
----------------------------------------------------------------------------------------------------------------------
All Properties With respect to certain mortgage loans, the lender
accepted comprehensive liability insurance in an
amount less than that required by the loan documents.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (xvii): SUBORDINATE DEBT
----------------
----------------------------------------------------------------------------------------------------------------------
11 The Mall at Steamtown The borrower has incurred additional debt with an
approximate current aggregate outstanding principal
balance of $27,150,000, secured by subordinate
liens on the related mortgaged real property. The
subordinate loans were initially made, and are
currently held by, local and state governmental
entities and may not be transferred or assigned by
such entities, provided that a collateral
assignment of one of the subordinate loans to
another governmental entity is permitted.
----------------------------------------------------------------------------------------------------------------------
All Properties The loan documents allow the borrower to incur certain
trade payables up to a predetermined amount, which is
generally less than 5% of the loan amount.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (xx): ENVIRONMENTAL CONDITIONS
------------------------
----------------------------------------------------------------------------------------------------------------------
18 000 Xxxxx Xxxxxx The environmental report was obtained on July 3,
2002.
----------------------------------------------------------------------------------------------------------------------
B-I-19
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
------ -------- -----
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (xxvi): DUE-ON-ENCUMBRANCE
------------------
----------------------------------------------------------------------------------------------------------------------
11 The Mall at Steamtown The borrower has incurred additional debt with an
approximate current aggregate outstanding principal
balance of $27,150,000, secured by subordinate
liens on the related mortgaged real property. The
subordinate loans were initially made, and are
currently held by, local and state governmental
entities and may not be transferred or assigned by
such entities, provided that a collateral
assignment of one of the subordinate loans to
another governmental entity is permitted.
----------------------------------------------------------------------------------------------------------------------
13 Shoreview Corporate Center Non-recourse subordinate debt secured by a pledge
of the equity (mezzanine debt) in the approximate
total amount of $5,250,000 was incurred. The
subordinate lender entered into an intercreditor
agreement with the lender. The subordinate lender
must obtain consent of the rating agencies before
enforcing on its equity pledge, unless the equity
is transferred to a permitted transferee, the
property is managed by a qualified manager under
the intercreditor agreement and the related
mortgage loan has a hard lockbox is in place.
----------------------------------------------------------------------------------------------------------------------
18 000 Xxxxx Xxxxxx Non-recourse subordinate debt secured by a pledge
of the equity (mezzanine debt) in the approximate
total amount of $4,500,000 was incurred. The
subordinate lender entered into an intercreditor
agreement with the lender. No rating agency
consent is required for the subordinate lender to
enforce its equity pledge.
----------------------------------------------------------------------------------------------------------------------
B-I-20
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
------ -------- -----
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (xxvii): DUE-ON-SALE
-----------
----------------------------------------------------------------------------------------------------------------------
2 Westfield Shopping Plaza The loan documents allow transfers of controlling
Xxxxxx/Vancouver interests of the borrower to certain affiliates.
----------------------------------------------------------------------------------------------------------------------
78 Old Neck Market The loan documents allow the member of the borrower
to transfer its equity interest to the guarantor.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (xxviii): MORTGAGOR CONCENTRATION
-----------------------
----------------------------------------------------------------------------------------------------------------------
0 Xxxxxxxxx Xxxxxxxxxxxx Xxxxx Xxxxxx/Xxxxxxxxx Xxxxxxxx loan represents 11.16% of initial pool
balance.
----------------------------------------------------------------------------------------------------------------------
3 00 Xxxxxx Xxxxxx, Xxxxxxxx loans have affiliated borrowers and
represent, in the aggregate, 9.60% of initial pool
7 0000 Xxxxxx Xxxxxxxxx balance.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (xxxi): PROPERTY RELEASE
----------------
----------------------------------------------------------------------------------------------------------------------
0x Xxxxxxxxx Xxxxxxxxxxxx Xxxxx Xxxxxx The borrower has obtained the release of a certain
parking lot parcel pursuant to the loan documents.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (xxxii): QUALIFICATIONS; LICENSING; ZONING
---------------------------------
----------------------------------------------------------------------------------------------------------------------
19 Illini Tower Not ADA compliant with respect to parking, ramp and
drinking fountain.
----------------------------------------------------------------------------------------------------------------------
B-I-21
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
------ -------- -----
----------------------------------------------------------------------------------------------------------------------
23 00-00 Xxxxx Xxxxxx There is only a temporary certificate of occupancy
for the building shell. Borrower is obligated to
obtain a permanent certificate of occupancy upon
completion of all tenant improvement work. There
is a non-recourse carve-out for any loss suffered
by the lender by reason of the failure of there
being issued by the applicable governmental entity
a final unconditional permanent certificate of
occupancy for the building, or (A) the cancellation
or revocation of the temporary certificate of
occupancy for the building, or (B) the expiration
of the temporary certificate of occupancy for the
building without the renewal thereof, or (C) the
termination of the temporary certificate of
occupancy for the building for any reason, in each
case prior to the issuance of the final
unconditional permanent certificate of occupancy
for the building.
----------------------------------------------------------------------------------------------------------------------
00 Xx. Xxxxxxx Xxxxx The property is non-conforming due to an improper
setback on the corner of the building (10 feet as
opposed to 15 feet). A principal of the borrower
has recourse liability for any loss, cost or damage
incurred in connection with this non-conformity.
----------------------------------------------------------------------------------------------------------------------
B-I-22
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
------ -------- -----
----------------------------------------------------------------------------------------------------------------------
62 Casa Valencia Apartments The property was legal non-conforming but, due to a
transfer of the property in connection with the
acquisition by the borrower, the property became
non-conforming. The property will become legal
non-conforming again provided that within six
months from closing (1) the borrower brings the
parking up to the current standards or (2) the
borrower obtains a variance. The borrower is
making a prompt application for a variance. Until
such time the variance is granted, the loan is
recourse to the borrower and the guarantors. In
addition, a $50,000 escrow was established to cover
any potential costs associated with obtaining such
variance.
----------------------------------------------------------------------------------------------------------------------
78 Old Neck Market The property is non-conforming due to the lack of
four parking spots.
----------------------------------------------------------------------------------------------------------------------
80 Wal-Mart Outparcel (OfficeMax) Missing certificate of occupancy for Integrity
Sports.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (xli): ENGINEERING ASSESSMENTS
-----------------------
----------------------------------------------------------------------------------------------------------------------
18 000 Xxxxx Xxxxxx Engineering Assessment performed on July 8, 2002.
----------------------------------------------------------------------------------------------------------------------
B-I-23
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
------ -------- -----
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (xliii): LICENSES; PERMITS AND AUTHORIZATIONS
------------------------------------
----------------------------------------------------------------------------------------------------------------------
23 00-00 Xxxxx Xxxxxx There is only a temporary certificate of occupancy
for the building shell as the borrower cannot
obtain the permanent certificate of occupancy until
all tenant improvement work is completed. There is
a non-recourse carve-out for any loss suffered by
the lender by reason of the failure of there being
issued by the applicable governmental entity a
final unconditional permanent certificate of
occupancy for the building, or (A) the cancellation
or revocation of the temporary certificate of
occupancy for the building, or (B) the expiration
of the temporary certificate of occupancy for the
building without the renewal thereof, or (C) the
termination of the temporary certificate of
occupancy for the building for any reason, in each
case prior to the issuance of the final
unconditional permanent certificate of occupancy
for the building.
----------------------------------------------------------------------------------------------------------------------
62 Casa Valencia Apartments The property was legal non-conforming but, due to a
transfer of the property in connection with the
acquisition by the borrower, the property became
non-conforming. The property will become legal
non-conforming again provided that within six
months from closing (1) the borrower brings the
parking up to the current standards or (2) the
borrower obtains a variance. The borrower is
making a prompt application for a variance. Until
such time the variance is granted, the loan is
recourse to the borrower and the guarantors. In
addition, a $50,000 escrow was established to cover
any potential costs associated with obtaining such
variance.
----------------------------------------------------------------------------------------------------------------------
B-I-24
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
------ -------- -----
----------------------------------------------------------------------------------------------------------------------
80 Wal-Mart Outparcel (OfficeMax) Missing certificate of occupancy for Integrity
Sports.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (xlviii): TAX LOT; UTILITIES
------------------
----------------------------------------------------------------------------------------------------------------------
20a Xxxxxx Creek Mobile Home Park One tax lot contains a small portion of a property
not owned by the borrower. A proceeding has been
commenced to sever the tax lot.
----------------------------------------------------------------------------------------------------------------------
00 Xxxxxxxxx Xxxxx I Mortgaged property was recently subdivided and the
tax lot for the mortgaged property includes the
property from which the property was subdivided. A
proceeding has been commenced to sever the tax lot.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (lv): NO OWNERSHIP INTEREST IN MORTGAGOR
----------------------------------
----------------------------------------------------------------------------------------------------------------------
7 0000 Xxxxxx Xxxxxxxxx An affiliate of the Seller owns a minority
non-controlling interest in the borrower.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (lvi): NO UNDISCLOSED COMMON OWNERSHIP
-------------------------------
----------------------------------------------------------------------------------------------------------------------
3 00 Xxxxxx Xxxxxx, The properties are directly or indirectly under
common ownership.
7 0000 Xxxxxx Xxxxxxxxx
----------------------------------------------------------------------------------------------------------------------
B-I-25
EXHIBIT C-1
OPINION OF CADWALADER, XXXXXXXXXX & XXXX
C-1-1
July 30, 2003
Addressees listed on Schedule A
Re: LB-UBS Commercial Mortgage Trust 2003-C5, Commercial
Mortgage Pass-Through Certificates, Series 2003-C5
--------------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 8(j) of the Mortgage
Loan Purchase Agreement, dated as of July 16, 2003 (the "MLPA"), among UBS Real
Estate Investment Inc., as seller (the "Seller"), UBS Principal Finance LLC, as
an additional party ("UBSPF") and Structured Asset Securities Corporation II, as
purchaser ("SASC").
We have acted as special counsel to the Seller in connection with the
following transactions: (i) the sale by the Seller, and the purchase by SASC, of
multifamily and commercial mortgage loans in the principal amount of
approximately $598,382,399 (the "UBS Mortgage Loans"), pursuant to the MLPA;
(ii) the execution by the Seller of the UBS Indemnification Agreement, dated as
of July 16, 2003 (the "Indemnification Agreement"), by and among the Seller, UBS
(USA) Inc. ("UBS (USA)," and together with the Seller and UBSPF, the "UBS
Entities"), SASC and the Underwriters (as defined below); and (iii) the
acknowledgement by the Seller of certain sections of the Underwriting Agreement,
dated as of July 16, 2003 (the "Underwriting Agreement"), by and among SASC,
Xxxxxx Brothers Inc. ("Xxxxxx"), UBS Securities LLC ("UBSS") and Xxxxxx Xxxxxxx
& Co. Incorporated ("Xxxxxx", and together with Xxxxxx and UBSS, the
"Underwriters") and acknowledged with respect to certain sections by the Seller
and Xxxxxx Brothers Holdings Inc.
We have also acted as special counsel to UBS (USA) in connection with
the execution by UBS (USA) of the Indemnification Agreement and to UBSPF in
connection with the execution by UBSPF of the MLPA.
The MLPA, the Indemnification Agreement and Underwriting Agreement are
collectively referred to herein as the "Agreements." Capitalized terms not
defined herein have the respective meanings set forth in the MLPA.
In rendering the opinions set forth below, we have examined and, as to
factual matters relevant to the opinions set forth below, relied upon the
originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Agreements and such certificates, corporate and public
records, agreements, instruments and other documents, including, among other
things, the documents and agreements delivered at the closing of the purchase
and sale of the Certificates (the "Closing"), as we have deemed appropriate as a
basis for the opinions expressed below. In such examination we have assumed the
genuineness of all signatures, the authenticity of all documents, agreements and
instruments submitted to us as originals, the conformity to original documents,
agreements and instruments of all documents, agreements and instruments
submitted to us as copies or specimens, the authenticity of the originals of
such documents, agreements and instruments submitted to us as copies or
specimens, and the accuracy of the factual matters set forth in the documents,
agreements and instruments we reviewed. As to any facts material to the opinions
expressed below that were not known to us, we have relied
C-1-2
upon statements, certificates and representations of officers and other
representatives of the UBS Entities, SASC and the Underwriters, including those
contained in the Agreements and other documents, certificates, agreements and
opinions delivered at the Closing, and of public officials. Except as expressly
set forth herein, we have not undertaken any independent investigation
(including, without limitation, conducting any review, search or investigation
of any public files, records or dockets) to determine the existence or absence
of the facts that are material to our opinion, and no inference as to our
knowledge concerning such facts should be drawn from our reliance on the
representations of the UBS Entities and others in connection with the
preparation and delivery of this letter. We have examined such questions of law
as we have deemed necessary for purposes of these opinions.
We have also assumed that all documents, agreements and instruments
have been duly authorized, executed and delivered by all parties thereto, that
all such parties had the power and legal right to execute and deliver all such
documents, agreements and instruments, and, except as to the UBS Entities, that
such documents, agreements and instruments are legal, valid and binding
obligations of such parties, enforceable against such parties in accordance with
their respective terms. As used herein, "to our knowledge," "known to us" or
words of similar import mean the actual knowledge, without independent
investigation, of any lawyer in our firm actively involved in the transactions
contemplated by the Agreements.
We express no opinion concerning the laws of any jurisdiction other
than the laws of the State of New York and federal laws (without regard to
conflicts of laws principles) of the United States of America.
Based upon and subject to the foregoing, we are of the opinion that:
1. The MLPA and the Underwriting Agreement each constitutes the
legal, valid and binding agreement of the Seller, and the MLPA
constitutes the legal, valid and binding agreement of UBSPF,
enforceable against the Seller or UBSPF, as applicable, in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium,
receivership or other laws relating to or affecting creditors'
rights generally, and to general principles of equity (regardless
of whether enforcement is sought in a proceeding at law or in
equity), and except that (a) the enforcement of rights with
respect to indemnification and contribution obligations and (b)
provisions (i) purporting to waive or limit rights to trial by
jury, oral amendments to written agreements or rights of set off
or (ii) relating to submission to jurisdiction, venue or service
of process, may be limited by applicable law or considerations of
public policy.
2. None of the sale of the UBS Mortgage Loans, the consummation by
the Seller or UBSPF, as applicable, of any of the other
transactions contemplated by the Agreements to which it is a party
or the execution, delivery and performance of the terms of the
Agreements to which it is a party by the Seller or UBSPF, as
applicable, will conflict with, or result in
C-1-3
the violation of, any New York State or federal law that is
applicable to the Seller or UBSPF, as applicable.
3. The execution, delivery and performance of the terms of the
Indemnification Agreement by UBS (USA) will not conflict with, or
result in the violation of, any New York State or federal law that
is applicable to UBS (USA).
4. The execution, delivery and performance by (a) the Seller of the
Agreements, (b) UBSPF of the MLPA, and (c) UBS (USA) of the
Indemnification Agreement, and the consummation by the Seller,
UBSPF and UBS (USA), as applicable, of the transactions
contemplated under the Agreements, the MLPA and the
Indemnification Agreement, respectively, do not require any
consent, approval, license, authorization or validation of, or
filing, recording or registration with, any executive,
legislative, judicial, administrative or regulatory bodies of the
United States of America pursuant to those laws, rules and
regulations of the United States of America which, in our
experience, are normally applicable to transactions of the type
contemplated by (a) the Agreements, to be obtained on the part of
the Seller, (b) the MLPA, to be obtained by UBSPF and (c) the
Indemnification Agreement to be obtained by UBS (USA), except
those that may be required under state securities or blue sky
laws, and such other approvals that have been obtained and, to our
knowledge, are in effect.
We are furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. This letter is not to be
relied upon, used, circulated, quoted or otherwise referred to by any other
person or for any other purpose without our prior written consent. In addition,
we disclaim any obligation to update this letter for changes in fact or law, or
otherwise.
Very truly yours,
C-1-4
SCHEDULE A
----------
Structured Asset Securities Corporation II Standard and Poor's Ratings Services, a
000 Xxxxxxx Xxxxxx division of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. LaSalle Bank National Association
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10019 Xxxxxxx, Xxxxxxxx 00000
UBS Securities LLC Fitch, Inc.
1285 Avenue of the Americas Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
C-1-5
EXHIBIT C-2
OPINIONS OF IN-HOUSE COUNSEL TO THE SELLER, THE ADDITIONAL PARTY AND
THE CO-INDEMNITOR
C-2-1
July 30, 2003
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: LB-UBS Commercial Mortgage Trust 2003-C5, Commercial
Mortgage Pass-Through Certificates, Series 2003-C5
--------------------------------------------------------
Ladies and Gentlemen:
I am Executive Director and Counsel of UBS AG. UBS Real Estate
Investment Inc., a Delaware corporation ("UBSREI"), is a wholly owned subsidiary
of UBS AG. I have been asked to deliver this opinion in connection with (i) the
sale by UBSREI and the purchase by Structured Asset Securities Corporation II
("SASC") of certain multi-family and commercial mortgage loans, pursuant to a
Mortgage Loan Purchase Agreement, dated as of July 16, 2003 (the "Sale
Agreement"), by and among UBSREI, UBS Principal Finance LLC and SASC, (ii) the
execution by UBSREI of the Underwriting Agreement, dated as of July 16, 2003
(the "Underwriting Agreement"), by and among SASC, Xxxxxx Brothers Inc.
("Xxxxxx"), UBS Securities LLC ("UBSS") and Xxxxxx Xxxxxxx & Co. Incorporated
("Xxxxxx" and, together with Xxxxxx and UBSS, the "Underwriters") and
acknowledged with respect to certain sections by UBSREI and (iii) the execution
by UBSREI of the UBS Indemnification Agreement, dated as of July 16, 2003, by
and among UBSREI, SASC, UBS (USA) Inc. ("UBS (USA)") and the Underwriters (the
"Indemnification Agreement," and, together with the Sale Agreement and the
Underwriting Agreement, the "Agreements"). Capitalized terms used and not
otherwise defined herein have the meanings given to them in the Underwriting
Agreement.
I, or others under my supervision, have examined such documents as I
believe are necessary or appropriate for the purposes of this opinion, including
the articles of incorporation, by-laws and incumbency resolution adopted by the
directors of UBSREI and the Agreements and all exhibits thereto. In reaching
such opinions, I have assumed without investigation, except as expressly set
forth below, that there are no facts inconsistent with the assumptions made in
paragraphs A through D below.
A. All signatures of parties, other than UBSREI, on all documents are
genuine. Each person executing any such instrument, document or agreement,
whether individually or on behalf of a firm or other business entity, other than
UBSREI, is duly authorized to do so.
B. All documents submitted as original are authentic, and all
photostatic copies, and all copies certified by a governmental custodian or a
party to the transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf of a
business entity, are legally competent.
D. All other parties to documents, other than UBSREI, have the
requisite power and authority to consummate the transactions contemplated by the
Agreements and to execute and deliver the applicable documents.
C-2-2
Based on my review of the foregoing and such other considerations of
law and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
1. Each of the Agreements has been duly authorized, executed and
delivered by UBSREI.
2. UBSREI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has the requisite power
and authority to enter into and perform its obligations under the Agreements.
3. The execution, delivery and performance of the terms of the
Agreements will not result in the breach or violation of or a default under any
material order or decree of any court, regulatory body, administrative agency or
governmental body having jurisdiction over UBSREI and known to me as being
applicable to UBSREI.
4. There is no action, suit or proceeding against, or investigation of,
UBSREI pending or, to my knowledge, threatened against UBSREI before any court,
administrative agency or other tribunal which, either individually or in the
aggregate, (a) asserts the invalidity of the Agreements, (b) seeks to prevent
the consummation of any of the transactions contemplated by the Agreements or
(c) would materially and adversely affect (i) the performance by UBSREI of its
obligations under, or the validity or enforceability of, the Agreements, or (ii)
any rights with regard to the Mortgaged Properties or the Mortgage Loans.
5. No consent, approval, authorization or order of, and no filing or
registration with, any court or governmental agency or regulatory body, of which
I have actual knowledge, the absence of which would have a material adverse
effect on UBSREI or the transactions contemplated by the Agreements, is required
on the part of UBSREI for the execution, delivery or performance by UBSREI of
the Agreements, except those which have been obtained and are in full force and
effect.
6. The execution, delivery and performance by UBSREI of, and the
consummation of the transactions contemplated by, the Agreements do not and will
not result in a breach of any term or provision of the organizational documents
of UBSREI or in a breach of, constitute a default under, require any consent
under, or result in the acceleration or require prepayment of any indebtedness
pursuant to the terms of, any agreement or instrument, of which I have actual
knowledge, to which UBSREI is a party or by which it is bound or to which it is
subject, or result in the creation or imposition of any lien upon any property
of UBSREI pursuant to the terms of any such agreement or instrument, any of
which occurrences, either in any one instance or in the aggregate, would call
into question the validity of the Agreements or be reasonably likely to impair
materially the ability of UBSREI to perform under the terms of the Agreements.
In addition to the qualifications set forth above, the opinions herein
are also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the opinions
expressed herein concern only the laws of the State of New York, as currently in
effect, the
C-2-3
corporation law of the State of Delaware, as currently in effect, and solely
with respect to paragraphs 3 and 4 above, the federal laws of the United States
of America, as currently in effect.
2. I assume no obligation to supplement this opinion if, after the date
hereof, any applicable laws change or I become aware of any facts that might
change the opinions set forth herein.
3. The opinions are limited to the matters set forth in this letter. No
other opinions should be inferred beyond the matters expressly stated.
The opinions expressed in this letter may be relied upon solely by the
addressees hereof solely with respect to the transactions described in the
Agreements, and may not be relied upon by any other person or entity, without my
specific prior written consent.
Sincerely,
Xxxx Xxxxxx
Executive Director
C-2-4
SCHEDULE A
----------
UBS Securities LLC Structured Asset Securities Corporation II
1285 Avenue of the Americas 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. Standard and Poor's Ratings Services, a
000 Xxxxxxx Xxxxxx division of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10004
Xxxxxx Xxxxxxx & Co. Incorporated Fitch, Inc.
1221 Avenue of the Americas, 00xx Xxxxx Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
C-2-5
July 30, 2003
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: LB-UBS Commercial Mortgage Trust 2003-C5, Commercial
Mortgage Pass-Through Certificates, Series 2003-C5
--------------------------------------------------------
Ladies and Gentlemen:
I am Executive Director and Counsel of UBS AG. UBS Principal Finance
LLC, a Delaware limited liability company ("UBSPF"), is a wholly owned
subsidiary of UBS AG. I have been asked to deliver this opinion in connection
with (i) the sale by UBS Real Estate Investment Inc. ("UBSREI") and the purchase
by Structured Asset Securities Corporation II ("SASC") of certain multi-family
and commercial mortgage loans, pursuant to a Mortgage Loan Purchase Agreement,
dated as of July 16, 2003 (the "Agreement"), by and among SASC, as purchaser,
UBSREI, as seller, and UBSPF, as additional party. Capitalized terms used and
not otherwise defined herein have the meanings given to them in the Agreement.
I, or others under my supervision, have examined such documents as I
believe are necessary or appropriate for the purposes of this opinion, including
the certificate of formation, incumbency resolution and limited liability
company agreement adopted by the members of UBSPF and the Agreement and all
exhibits thereto. In reaching such opinions, I have assumed without
investigation, except as expressly set forth below, that there are no facts
inconsistent with the assumptions made in paragraphs A through D below.
A. All signatures of parties, other than UBSPF, on all documents are
genuine. Each person executing any such instrument, document or agreement,
whether individually or on behalf of a firm or other business entity, other than
UBSPF, is duly authorized to do so.
B. All documents submitted as original are authentic, and all
photostatic copies, and all copies certified by a governmental custodian or a
party to the transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf of a
business entity, are legally competent.
D. All other parties to documents, other than UBSPF, have the requisite
power and authority to consummate the transactions contemplated by the Agreement
and to execute and deliver the applicable documents.
Based on my review of the foregoing and such other considerations of
law and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
1. The Agreement has been duly authorized, executed and delivered by
UBSPF.
C-2-6
2. UBSPF is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the requisite power and authority to enter into and perform its obligations
under the Agreement.
3. The execution, delivery and performance of the terms of the
Agreement will not result in the breach or violation of or a default under any
material order or decree of any court, regulatory body, administrative agency or
governmental body having jurisdiction over UBSPF and known to me as being
applicable to UBSPF.
4. There is no action, suit or proceeding against, or investigation of,
UBSPF pending or, to my knowledge, threatened against UBSPF before any court,
administrative agency or other tribunal which, either individually or in the
aggregate, (a) asserts the invalidity of the Agreement, (b) seeks to prevent the
consummation of any of the transactions contemplated by the Agreement or (c)
would materially and adversely affect (i) the performance by UBSPF of its
obligations under, or the validity or enforceability of, the Agreement, or (ii)
any rights with regard to the Mortgaged Properties or the Mortgage Loans.
5. No consent, approval, authorization or order of, and no filing or
registration with, any court or governmental agency or regulatory body, of which
I have actual knowledge, the absence of which would have a material adverse
effect on UBSPF or the transactions contemplated by the Agreement, is required
on the part of UBSPF for the execution, delivery or performance by UBSPF of the
Agreement, except those which have been obtained and are in full force and
effect.
6. The execution, delivery and performance by UBSPF of, and the
consummation of the transactions contemplated by, the Agreement do not and will
not result in a breach of any term or provision of the certificate of formation
or limited liability company agreement of UBSPF or in a breach of, constitute a
default under, require any consent under, or result in the acceleration or
require prepayment of any indebtedness pursuant to the terms of, any agreement
or instrument, of which I have actual knowledge, to which UBSPF is a party or by
which it is bound or to which it is subject, or result in the creation or
imposition of any lien upon any property of UBSPF pursuant to the terms of any
such agreement or instrument, any of which occurrences, either in any one
instance or in the aggregate, would call into question the validity of the
Agreement or be reasonably likely to impair materially the ability of UBSPF to
perform under the terms of the Agreement.
In addition to the qualifications set forth above, the opinions herein
are also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the opinions
expressed herein concern only the laws of the State of New York, as currently in
effect, the limited liability company law of the State of Delaware, as currently
in effect, and solely with respect to paragraphs 3 and 4 above, the federal laws
of the United States of America, as currently in effect.
C-2-7
2. I assume no obligation to supplement this opinion if, after the date
hereof, any applicable laws change or I become aware of any facts that might
change the opinions set forth herein.
3. The opinions are limited to the matters set forth in this letter. No
other opinions should be inferred beyond the matters expressly stated.
The opinions expressed in this letter may be relied upon solely by the
addressees hereof solely with respect to the transactions described in the
Agreement, and may not be relied upon by any other person or entity, without my
specific prior written consent.
Sincerely,
Xxxx Xxxxxx
Executive Director
C-2-8
SCHEDULE A
----------
UBS Securities LLC Structured Asset Securities Corporation II
1285 Avenue of the Americas 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. Standard and Poor's Ratings Services, a
000 Xxxxxxx Xxxxxx division of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10004
Xxxxxx Xxxxxxx & Co. Incorporated Fitch, Inc.
1221 Avenue of the Americas, 00xx Xxxxx Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
C-2-9
July 30, 2003
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
RE: LB-UBS Commercial Mortgage Trust 2003-C5, Commercial
Mortgage Pass-Through Certificates, Series 2003-C5
---------------------------------------------------------
Ladies and Gentlemen:
I am Executive Director and Counsel of UBS AG. UBS (USA) Inc., a
Delaware corporation ("UBS (USA)"), is a wholly owned subsidiary of UBS AG, and
I have acted as counsel to UBS (USA) with respect to certain matters in
connection with the UBS Indemnification Agreement, dated as of July 16, 2003
(the "Indemnification Agreement"), by and among UBS Real Estate Investment Inc.,
UBS (USA), Structured Asset Securities Corporation II ("Depositor"), Xxxxxx
Brothers Inc. ("Xxxxxx"), UBS Securities LLC ("UBSS") and Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx", and together with Xxxxxx and UBSS, the "Underwriters").
Capitalized terms not defined herein have the meaning assigned to them in the
Indemnification Agreement.
I, or others under my supervision, have examined such documents as I
believe are necessary or appropriate for the purposes of this opinion, including
the certificate of incorporation and by-laws adopted by the board of directors
of UBS (USA) and the Indemnification Agreement and all exhibits thereto. In
reaching such opinions, I have assumed without investigation, except as
expressly set forth below, that there are no facts inconsistent with the
assumptions made in paragraphs A through D below.
A. All signatures of parties, other than UBS (USA), on all documents
are genuine. Each person executing any such instrument, document or agreement,
whether individually or on behalf of a firm or other business entity, other than
UBS (USA), is duly authorized to do so.
B. All documents submitted as original are authentic, and all
photostatic copies, and all copies certified by a governmental custodian or a
party to the transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf of a
business entity, are legally competent.
D. All other parties to documents, other than UBS (USA), have the
requisite power and authority to consummate the transactions contemplated by the
Indemnification Agreement and to execute and deliver the applicable documents.
Based on my review of the foregoing and such other considerations of
law and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
C-2-10
1. The Indemnification Agreement has been duly authorized, executed and
delivered by UBS (USA).
2. UBS (USA) is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has the requisite
power and authority to enter into and perform its obligations under the
Indemnification Agreement.
3. The execution, delivery and performance of the terms of the
Indemnification Agreement will not result in the breach or violation of or a
default under any material order or decree of any court, regulatory body,
administrative agency or governmental body having jurisdiction over UBS (USA)
and known to me as being applicable to UBS (USA).
4. There is no action, suit or proceeding against, or investigation of,
UBS (USA) pending or, to my knowledge, threatened against UBS (USA) before any
court, administrative agency or other tribunal which, either individually or in
the aggregate, (a) asserts the invalidity of the Indemnification Agreement, (b)
seeks to prevent the consummation of any of the transactions contemplated by the
Indemnification Agreement or (c) would materially and adversely affect the
performance by UBS (USA) of its obligations under, or the validity or
enforceability of, the Indemnification Agreement.
5. No consent, approval, authorization or order of, and no filing or
registration with, any court or governmental agency or regulatory body, of which
I have actual knowledge, the absence of which would have a material adverse
effect on UBS (USA) or the transactions contemplated by the Indemnification
Agreement, is required on the part of UBS (USA) for the execution, delivery or
performance by UBS (USA) of the Indemnification Agreement, except those which
have been obtained and are in full force and effect.
6. The execution, delivery and performance by UBS (USA) of, and the
consummation of the transactions contemplated by, the Indemnification Agreement
do not and will not result in the breach of any term or provision of the
certificate of incorporation or by-laws of UBS (USA) or in a breach of,
constitute a default under, require any consent under, or result in the
acceleration or require prepayment of any indebtedness pursuant to the terms of,
any agreement or instrument of which I have actual knowledge to which UBS (USA)
is a party or by which it is bound or to which it is subject, or result in the
creation or imposition of any lien upon any property of UBS (USA) pursuant to
the terms of any such agreement or instrument, any of which occurrences, either
in any one instance or in the aggregate, would call into question the validity
of the Indemnification Agreement or be reasonably likely to impair materially
the ability of UBS (USA) to perform under the terms of the Indemnification
Agreement.
In addition to the qualifications set forth above, the opinions herein
are also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the opinions
expressed herein concern only the laws of the State of New York, as currently in
effect, the corporate law of the State of Delaware, as currently in effect, and
solely with respect to paragraphs 3 and 4 above, the federal laws of the United
States of America, as currently in effect.
C-2-11
2. I assume no obligation to supplement this opinion if, after the date
hereof, any applicable laws change or I become aware of any facts that might
change the opinions set forth herein.
3. The opinions are limited to the matters set forth in this letter. No
other opinions should be inferred beyond the matters expressly stated.
4. The opinions expressed in this letter may be relied upon solely by
the addressees hereof solely with respect to the transactions described in the
Indemnification Agreement, and may not be relied upon by any other person or
entity, without my specific prior written consent.
Sincerely,
Xxxx Xxxxxx
Executive Director
C-2-12
SCHEDULE A
UBS Securities LLC Structured Asset Securities Corporation II
1285 Avenue of the Americas 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. Standard and Poor's Ratings Services, a
000 Xxxxxxx Xxxxxx division of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10004
Xxxxxx Xxxxxxx & Co. Incorporated Fitch, Inc.
1221 Avenue of the Americas, 00xx Xxxxx Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
C-2-13
