EXECUTION COPY
UBS MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of March 23, 2004 (the
"Agreement"), between UBS Real Estate Investments 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
2004-C2, Commercial Mortgage Pass-Through Certificates, Series 2004-C2. 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 March 11, 2004, between the Purchaser, as depositor, Midland Loan
Services, Inc., as master servicer (in such capacity, the "Master Servicer") and
as special servicer (in such capacity, the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee"). 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")
and UBS Securities LLC ("UBSS" and, together with Xxxxxx 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
Americas 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 $274,069,842 (the "Initial UBS Pool Balance") as
of the close of business on 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 April 7, 2004 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 Mortgage Rate (net of
the related Administrative Fee Rate), for the period from and including March
11, 2004 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 [22.19884355%] 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 (i) 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 and (ii) all
unapplied Escrow Payments and Reserve Funds in the possession or under the
control of the Seller that relate to the Mortgage Loans to the Master Servicer
(or, at the direction of the Master Servicer, to the appropriate sub-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 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
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Trustee to the Master Servicer, at the expense of the Seller, at least every 90
days after the Closing Date (or at additional times upon the request of the
Master Servicer if reasonably necessary for the ongoing administration and/or
servicing of the related Mortgage Loan by the Master Servicer); 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 (other than any document
in a Mortgage File, which shall be delivered pursuant to Section 2(c) above)
that (i) relate to the administration or servicing of the Mortgage Loans, (ii)
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 (iii) are in the possession or under the
control of the Seller, shall, upon the written request of the Master Servicer,
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, to the extent the Seller has not received a written request for
any such document or record (other than any document in a Mortgage File, which
shall be delivered pursuant to or as contemplated by Section 2(c) above) prior
to the first anniversary of the Closing Date, the Seller shall have no
obligation to provide such document; and provided, further, 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) Notwithstanding Section 2(e) above, the Seller shall, in the case of
each Mortgage Loan, use reasonable efforts to deliver to and deposit with the
Master Servicer, as soon as reasonably practicable following the Closing Date
(but in any event not later than 45 days following the Closing Date and without
need of a written request within such initial 45-day period (except as provided
in the following proviso)), the Mortgage Loan Origination Documents that relate
to such Mortgage Loan; provided that, to the extent the Seller has not received
a written request for any such document or record that constitutes a Mortgage
Loan Origination Document (other than any document in that constitutes part of
the Mortgage File for such Mortgage Loan) prior to the first anniversary of the
Closing Date, the Seller shall have no obligation to provide such document.
(g) 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
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required under applicable law to effectuate the transfer of the Mortgage Loans
by the Seller to the Purchaser.
(h) In connection with the obligations of the Master Servicer under
Sections 3.01(e) and 3.19(c) of the Pooling and Servicing Agreement, with regard
to each Mortgage Loan that is secured by the interests of the related Mortgagor
in a hospitality property and each Mortgage Loan that has a related letter of
credit, the Seller shall deliver to and deposit with the Master Servicer [(with
the cooperation of the Purchaser in obtaining requisite signatures, if
applicable)], on or before the Closing Date, any related franchise agreement,
franchise comfort letter and the original of such letter of credit. Further, in
the event, with respect to a Mortgage Loan with a related letter of credit, the
Master Servicer determines that a draw under such letter of credit has become
necessary under the terms thereof prior to the assignment of such letter of
credit having been effected in accordance with Section 3.01(e) of the Pooling
and Servicing Agreement, the Seller shall, upon the written direction of the
Master Servicer, use its best efforts to make such draw or to cause such draw to
be made on behalf of the Trustee.
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
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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 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
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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.
(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, (C) the nature,
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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 either (a) a "qualified institutional buyer" within
the meaning of Rule 144A under the Securities Act or (b) an "accredited
investor" as defined in any of paragraphs (1), (2), (3) and (7) of Rule
501(a) under the Securities Act or an entity in which all of its equity
owners are "accredited investors" as defined in 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 JPMorgan Chase Bank 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 JPMorgan
Chase Bank 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 the Certificateholders in such
Mortgage Loan, which material and adverse effect shall be determined as of the
date of such notice with respect to any Document Defect or Breach for which the
Seller or the Additional Party receives notice more than 24 months from the date
hereof (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 (subject to
Section 5(b)) the Seller shall, not later than 90 days after the earlier of (i)
the date on which the Seller and the Purchaser have agreed upon the existence of
such Material Document Defect or Material Breach and (ii) 120 days after the
Seller's receipt of a Seller/Depositor 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
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delivered to the Purchaser a certification executed on behalf of the 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
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).
If, during the period of deferral by the Seller of its cure and repurchase
obligations as contemplated by the last proviso of the preceding paragraph, the
Mortgage Loan that is the subject of the Material Document Defect either becomes
a Specially Serviced Mortgage Loan or becomes the subject of a proposed or
actual assumption of the obligations of the related Mortgagor under such
Mortgage Loan, then, following receipt by the Seller of a Seller/Depositor
Notification providing notice of such event, the Seller shall cure the subject
Material Document Defect within the time period specified in such
Seller/Depositor Notification. If, upon the expiration of such period, the
Seller has failed to cure the subject Material Document Defect, the Master
Servicer or the Special Servicer, as applicable, shall be entitled (but not
obligated) to perform the obligations of the Seller with respect to curing the
subject Material Document Defect and, in the event of such an election, the
Seller shall pay all reasonable costs and expenses in connection with the
applicable servicer's effecting such cure.
(b) In the event the Seller is obligated to repurchase any Mortgage Loan
pursuant to this Section 5, such obligation shall extend to any successor REO
Mortgage Loan with respect thereto as to which (i) the subject Material Breach
existed as to the subject predecessor Mortgage Loan prior to the date the
related Mortgaged Property became an REO Property or within 90 days thereafter,
and (ii) as to which the Seller had received, no later than 90 days following
the date on which the related Mortgaged Property became an REO Property, a
Seller/Depositor Notification from the Trustee regarding the occurrence of the
applicable Material Breach and directing the Seller to repurchase the subject
Mortgage Loan.
(c) 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 Seller 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
-9-
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 Business 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 Purchaser or the
Certificateholders in any Mortgage Loan, and (ii) the application of remedies,
such Cross-Collateralized Group shall be treated as a single Mortgage Loan.
(d) It shall be a condition to any repurchase of a Mortgage Loan by the
Seller pursuant to this Section 5 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 this Section 5, 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.
(e) Any repurchase of a Mortgage Loan pursuant to this Section 5 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. It is understood and agreed that,
subject to Section 5(f) hereof, the obligations of the Seller set forth in this
Section 5 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.
(f) Notwithstanding the foregoing, if there exists a Breach of that portion
of the representation or warranty on the part of the Seller set forth in, or
made pursuant to, paragraph (xxvi) or paragraph (xlviii) of Exhibit B to this
Agreement, specifically relating to whether or not the Mortgage Loan documents
or any particular Mortgage Loan document for any Mortgage Loan requires the
related Mortgagor to bear the reasonable costs and expenses associated with the
subject matter of such representation or warranty, as set forth in such
representation or warranty, then the Purchaser or its designee will direct the
Seller in writing to wire transfer to the Custodial Account, within 90 days of
receipt of such direction, the amount of any such reasonable costs and expenses
incurred by the Trust that (i) are due from the Mortgagor, (ii) otherwise would
have been required to be paid by the Mortgagor if such representation or
warranty with respect to such costs and expenses had in fact been true, as set
-10-
forth in the related representation or warranty, (iii) have not been paid by the
Mortgagor, (iv) are the basis of such Breach and (v) constitute "Covered Costs".
Upon payment of such costs, the Seller shall be deemed to have cured such Breach
in all respects. Provided that such payment is made, this paragraph describes
the sole remedy available to the Purchaser regarding any such Breach, regardless
of whether it constitutes a Material Breach, and the Seller shall not be
obligated to otherwise cure such Breach or repurchase the affected Mortgage Loan
under any circumstances.
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;
(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
-11-
(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;
(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-
-12-
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 ("CWT"), 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 CWT as may be required by the
Rating Agencies in connection with the transactions contemplated hereby;
(k) An Officer's Certificate from an officer of each of the Seller and the
Co-Indemnitor, in his or her individual capacity, in each case delivered in
connection with the opinion of CWT to be delivered pursuant to Section 8(j)
above, in form and substance satisfactory to the addressees of such opinion and
upon which such addressees may rely;
(l) A favorable opinion of in-house counsel to the Additional Party,
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;
(m) 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 Seller and from the
transferee of the Seller;
(n) In the event any of the Certificates are mortgage related securities
within the meaning of the Secondary Mortgage Market Enhancement Act of 1984, as
amended, 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
(o) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
-13-
SECTION 9. Costs. An amount equal to [22.19884355]% 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 "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-
-14-
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.
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
-15-
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.
-16-
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 INVESTMENTS 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/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
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
[See Attached]
A-1
UBS MORTGAGE LOAN SCHEDULE
MORTGAGE
LOAN
NUMBER PROPERTY NAME ADDRESS
------ ------------- -------
4 Maritime Plaza I & II 0000 X Xxxxxx and 0000 00xx Xxxxxx, Xxxxxxxxx
7 Farmers Market 0000 Xxxx Xxxxx Xxxxxx
10 The Village at Manahawkin Commons 000 Xxxxxxxxxx Xxxxxx, 693, 701, 715, 733 and 000 Xxxxx 00 Xxxx
13 0000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx
00 Xxxxx Xxxxx Xxxx 000 Xxxxxxx 00
16 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx
24 274 Riverside 000 Xxxxxxxxx Xxxxxx
25 Xxxxxxxxxx Village MHC 0000 Xxxxxxx Xxxxxx
29 Eckerd Portfolio Various
31 Brookdale Village Apartments 0000 Xxxx Xxxxxxx
00 Xxxxxx Xxxxxxx Retail Center 000-000 Xxxxx Xxxxxx Xxxxxxx
47 Fairview Apartments 000 Xxxxxxxxx 0xx Xxxxxx
49 Windsor Village 0000 Xxxxxxxxx Xxxxxxxxx
00 Xxxxxxxxx - Xxxxxxxxxxx 0000 Xxxx Xxxx Xxxxxx
61 Windsor Center 19000-19030 Ventura Boulevard
00 Xxxxxxxxxx Xxxxxx 000 Xxxx Xxxxxx
64 Good Life and Windsor Heights MHP Various
69 Acorn Self Storage 000 Xxxxxxxx Xxxx
70 Storage Inn and Xxxxxxx Self Storage Various
73 Manchester Multifamily Portfolio Various
00 Xxxx Xxxxxx Multifamily 00-00 Xxxx Xxxxxx and 00-00 Xxxxxxx Xxxxxx
00 Xxxxxx - Xxxxxxxxx 000 Xxxxx Xxxx Xxxxxx
00 Xxxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxx Xxxxxx
81 East Xxxxxxxx Apartments 000 Xxxx Xxxxxxxx Xxxx
83 High Street Apartments 411 High Street
MORTGAGE
LOAN
NUMBER CITY STATE ZIP CODE
------ ---- ----- --------
4 Xxxxxxxxxx XX 00000
7 Xxx Xxxxxxx XX 00000
10 Xxxxxxxxxx XX 00000
13 Xxx Xxxxxxxxx XX 00000
00 Xxxxxx Xxxxx XX 00000
16 Xxx Xxxx XX 00000
24 Xxxxxxxx XX 00000
25 Xxxxxxxxxxxx XX 00000
29 Xxxxxxx Xxxxxxx Xxxxxxx
00 Xxxxxxx XX 00000
36 Xxxxxxxx XX 00000
47 Xxxxxxx Xxxxx XX 00000
00 Xxx Xxxx XX 00000
00 Xxxxxxxxxxx XX 00000
61 Xxxxxxx XX 00000
00 Xxxxxxxxxxx XX 00000
64 Xxxxxxx XX Xxxxxxx
00 Xxxxxxxxx XX 00000
70 Xxxxxxxxxxxx XX 00000
00 Xxxxxxxxxx XX Xxxxxxx
00 Xxxxxxxxx XX 00000
75 Xxxxxxxxx XX 00000
00 Xxxx Xxxxxxxx XX 00000
81 Xxxxxxxx XX 00000
83 Xxxxxxxxxx XX 00000
A-2
MORTGAGE REMAINING REMAINING INTEREST
LOAN CUT-OFF DATE MONTHLY P&I TERM TO MATURITY AMORTIZATION ACCRUAL
NUMBER BALANCE PAYMENT MORTGAGE RATE MATURITY DATE TERM BASIS
------ ------- ------- ------------- -------- ---- ---- -----
4 77,200,000.00 431,095.37 5.35000 120 3/11/2034 360 Act/360
7 45,000,000.00 244,742.33 5.11500 120 3/11/2014 360 Act/360
10 31,000,000.00 183,872.32 5.90000 84 3/11/2011 360 Act/360
13 18,000,000.00 106,189.37 5.85000 60 3/11/2009 360 Act/360
15 15,000,000.00 93,011.06 5.60000 120 3/11/2014 300 Act/360
16 14,982,951.97 91,481.36 6.16000 119 2/11/2014 359 Act/360
24 10,500,000.00 63,522.54 5.78000 82 1/11/2011 331 Act/360
25 10,250,000.00 55,337.86 5.05000 84 3/11/2011 360 Act/360
29 7,530,000.00 34,073.25 5.43000 120 3/11/2014 0 30/360
31 6,735,027.65 38,072.04 5.44000 58 1/11/2009 358 Act/360
36 5,700,000.00 32,830.41 5.63000 120 3/11/2014 360 Act/360
47 4,104,571.01 25,033.55 6.12500 56 11/11/2008 356 Act/360
49 3,945,412.63 23,694.95 6.00500 119 2/11/2014 359 Act/360
51 3,681,631.21 21,768.76 5.86000 119 2/11/2014 359 Act/360
61 2,696,864.33 16,196.55 6.00500 119 2/11/2014 359 Act/360
62 2,600,000.00 15,172.89 5.75000 120 3/11/2014 360 Act/360
64 2,545,956.69 16,625.08 6.12500 119 2/11/2014 299 Act/360
69 2,250,000.00 14,141.30 5.74000 120 3/11/2014 300 Act/360
70 2,100,000.00 14,442.91 6.70000 120 3/11/2014 300 Act/360
73 1,725,000.00 10,044.73 5.73000 120 3/11/2014 360 Act/360
74 1,700,000.00 11,361.95 6.39000 120 3/11/2014 300 Act/360
75 1,527,495.16 9,727.29 5.86000 119 2/11/2014 299 Act/360
77 1,388,863.42 9,296.75 6.39000 119 2/11/2014 299 Act/360
81 1,149,232.06 7,692.71 6.39000 119 2/11/2014 299 Act/360
83 756,835.72 5,066.09 6.39000 119 2/11/2014 299 Act/360
A-3
MORTGAGE PRIMARY MORTGAGE ARD ANTICIPATED
LOAN ADMINISTRATIVE SERVICING GROUND LOAN MORTGAGE REPAYMENT
NUMBER COST RATE FEE LEASE SELLER DEFEASANCE LOAN DATE
------ --------- --- ----- ------ ---------- ---- ----
4 0.0319 0.0300 Leasehold UBS Defeasance Yes 3/11/2014
7 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
10 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
13 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
15 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
16 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
24 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
25 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
29 0.0319 0.0300 Fee Simple UBS Yield Maintenance No N/A
31 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
36 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
47 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
49 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
51 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
61 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
62 0.0319 0.0300 Fee Simple/ UBS Defeasance No N/A
Leasehold
64 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
69 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
70 0.0319 0.0300 Fee Simple UBS Yield Maintenance No N/A
73 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
74 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
75 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
77 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
81 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
83 0.0319 0.0300 Fee Simple UBS Defeasance No N/A
A-4
MORTGAGE
LOAN CREDIT LEASE LOAN CROSS MORTGAGE LOAN
NUMBER ARD SPREAD (TENANT, GUARANTOR OR RATED PARTY) COLLATERALIZED SELLER LOAN ID
------ ---------- ---------------------------------- -------------- --------------
4 2% + Greater of (Contract Rate or Treasury) No No 10137
7 N/A No No 10040
10 N/A No No 10136
13 N/A No No 10120
15 N/A No No 10199
16 N/A No No 9987
24 N/A No No 10050
25 N/A No No 10128
29 N/A No No 10054
31 N/A No No 10048
36 N/A No No 9823
47 N/A No No 9749
49 N/A No No 10027
51 N/A No No 10088
61 N/A No No 10028
62 N/A No No 10138
64 N/A No No 9825
69 N/A No No 10118
70 N/A No No 10108
73 N/A No No 10012
74 N/A No No 10042
75 N/A No No 10111
77 N/A No Yes (UBS-E) 10114a
81 N/A No Yes (UBS-E) 10114b
83 N/A No Yes (UBS-E) 10114c
A-5
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 (the heading set forth
herein with respect to each representation and warranty being for the
convenience of reference only and in no way limiting, expanding or otherwise
affecting the scope or subject matter thereof), 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 March 2004.
(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 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. A natural person as individual guarantor has agreed, in effect,
to be jointly and severally liable with the related Mortgagor, for all
liabilities, costs, losses, damages or expenses suffered or incurred by the
mortgagee under such Mortgage Loan by reason of or in connection with and
to the extent of (A) any intentional fraud or material intentional
misrepresentation by the related Mortgagor; (B) any breach on the part of
the related Mortgagor of any environmental representations warranties,
covenants or indemnity contained in the related Mortgage Loan documents,
(C) misapplication or misappropriation of rents (received after an event of
default), insurance proceeds or condemnation awards; and (D) the filing of
a voluntary bankruptcy or insolvency proceeding by the related Mortgagor;
provided that, in the case of any breach described in clause (B) of this
paragraph, such entity (or individual) may instead cover through
environmental insurance 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. 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, abatement or
diminution 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, 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
-7-
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 including all improvements thereon
and appurtenances and rights related thereto, 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 fully binding pro forma title policy or title
policy commitment); (C) the rights of tenants (as tenants only) under
leases (including subleases) pertaining to the related Mortgaged Property;
(D) 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 (E) 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 such 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 material
personal property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property as presently
operated by the Mortgagor, and that is located on the related Mortgaged
Property, which personal property includes, in the case of Mortgaged
Properties operated by the related Mortgagor as a nursing facility or
hospitality property, all furniture, fixtures, equipment and other personal
property located at the subject Mortgaged Property that are owned by the
related Mortgagor and reasonably necessary or material to the operation of
the subject Mortgaged Property. In the case of any Mortgage Loan secured by
a hotel, the related loan documents contain such provisions as are
necessary and UCC financing statements have been filed as necessary, in
each case, to perfect a valid first priority security interest, to the
extent such security interest can be perfected by the inclusion of such
provisions and the filing of a UCC financing statement, in the Mortgagor's
right to receive related hotel room revenues with respect to such Mortgaged
Property.
-8-
(ix) 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 related Mortgaged Property and
could constitute liens on the related Mortgaged Property prior to the lien
of the related Mortgage, together with all ground rents, that prior to the
related Due Date in March 2004 became due and payable in respect of, and
materially affect, any related Mortgaged Property have been paid 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 subject Mortgaged Property and could constitute liens on the
subject Mortgaged Property prior to the lien of the related 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.
(x) 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. 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, the related Mortgage Loan
documents provide that any condemnation awards will be applied (or, at the
discretion of the mortgagee, will be applied) to either 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.
(xi) 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 if such policy has not yet been
issued, such insurance may be evidenced by a binding commitment or binding
pro forma marked as binding and signed (either thereon or on a related
escrow letter attached thereto) by the title insurer or its authorized
agent ) from a title insurer qualified and/or licensed in the applicable
jurisdiction, as required, to issue such policy; such title insurance
policy is in full force and effect, all premiums have been paid, is freely
assignable and will inure to the benefit of the Trustee as sole insured 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 or any prior holder of such Mortgage Loan under such
title insurance policy; and neither the Seller nor any Affiliate of the
Seller 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 related Mortgaged Property either
to or from any adjoining property or across any easements on
-9-
the related Mortgaged Property, and (C) that the land shown on the survey
materially conforms to the legal description of the related Mortgaged
Property.
(xii) Property Insurance. As of the date of its origination and,
to the Seller's actual knowledge, as of the Cut-off Date, all insurance
required under each related Mortgage (except where a tenant, having an
investment grade rating, is permitted to insure or self-insure under a
lease) was in full force and effect with respect to each related Mortgaged
Property; such insurance included (A) fire and extended perils insurance
included within the classification "All Risk of Physical Loss" or the
equivalent thereof in an amount (subject to a customary deductible) at
least equal to the lesser of (1) 100% of the full insurable replacement
cost of the improvements located on such Mortgaged Property without
reduction for depreciation (except to the extent not permitted by
applicable law) and (2) the initial principal balance of such Mortgage Loan
or the portion thereof allocable to such Mortgaged Property), and if
applicable, the related hazard insurance policies contain appropriate
endorsements to avoid application of co-insurance, (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 or in "seismic zone" 3 or 4 and (2) a seismic
assessment as described below 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, seismic 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,
having an investment grade rating, is permitted to insure or self-insure
under a lease) and the related loan documents provide that any reasonable
out-of-pocket costs and expenses incurred by the mortgagee in connection
with such default in obtaining such insurance coverage may be recovered
from the related Mortgagor; the related Evidence of Property Insurance and
certificate of liability insurance (which may be in the form of an Xxxxx 27
or an Xxxxx 25, respectively), or forms substantially similar thereto,
provide that the related insurance policy may not be terminated or reduced
without at least 10 days prior notice to the mortgagee and (other than
those limited to liability protection) name the mortgagee and its
successors as loss payee; no notice of termination or cancellation with
respect to any such insurance policy has been received by the Seller or, to
the actual knowledge of Seller, by any prior mortgagee under the subject
Mortgage Loan; all premiums under any such insurance policy have been paid
through the Cut-off Date; the insurance policies specified in clauses (A),
(B) and (C) above are required to be maintained with insurance companies
having "financial strength" or "claims paying ability" ratings of at least
"A:V" from A.M. Best Company or at least "A-" (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 for rating the Certificates); 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
related exception schedules, the related Mortgage Loan documents provide
that any property insurance proceeds will be
-10-
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. If the related
Mortgaged Property is located in the State of California or in "seismic
zone" 3 or 4, then: (A) either a seismic assessment was conducted with
respect to the related Mortgaged Property in connection with the
origination of such Mortgage Loan or earthquake insurance was obtained; and
(B) the probable maximum loss for the related Mortgaged Property as
reflected in such seismic assessment, if any, was determined based upon a
return period of not less than 475 years, an exposure period of 50 years
and a 10% probability of incidence. Schedule I-xii attached hereto is true
and correct in all material respects.
(xiii) No Material Defaults. Other than payments due but not yet
30 days or more delinquent, there is (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), to the knowledge of the Seller, 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 (A) 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 or (B)
with respect to which: (1) the Seller has no actual knowledge and (2)
written notice of the discovery thereof is not delivered to the Seller by
the Trustee or the Master Servicer on or prior to the date occurring twelve
months after the Closing Date. Neither the Seller nor any prior holder of
the subject Mortgage Loan has waived, in writing or with knowledge, any
material default, breach, violation or event of acceleration under any of
such documents. 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.
(xiv) 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.
(xv) Interest Accrual Basis. Such Mortgage Loan accrues interest
on an Actual/360 Basis or 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).
(xvi) Subordinate Debt. Each related Mortgage or other loan
document relating to such Mortgage Loan does not provide for or permit,
without the prior written
-11-
consent of the holder of the related Mortgage Note, any related Mortgaged
Property or any direct controlling interest in the Mortgagor to secure any
other promissory note or debt (other than another Mortgage Loan in the
Trust Fund).
(xvii) 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 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. No action that occurs by operation of
the terms of such Mortgage Loan would cause such Mortgage Loan to cease to
be a "qualified mortgage" and such Mortgage Loan does not permit the
release or substitution of collateral if such release or substitution (A)
would constitute a "significant modification" of such Mortgage Loan within
the meaning of Treasury regulations section 1.1001-3, (B) would cause such
Mortgage Loan not to be a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code (without regard to clauses (A)(i) or (A)(ii)
thereof) or (C) would cause a "prohibited transaction" within the meaning
of Section 860F(a)(2) of the Code. The related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code.
(xviii) 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).
(xix) Environmental Conditions. One or more environmental site
assessments (or updates thereof) in each instance meeting American Society
of Testing and Materials requirements 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) 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); 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 responsible party set forth on Schedule I
(which responsible party has been reasonably determined by the Seller to
have the creditworthiness to do so) is currently taking remedial or other
appropriate action to address the environmental issue consistent with
-12-
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.
The Mortgagor with respect to such Mortgage Loan has represented,
warranted and covenanted generally to the effect that, to its knowledge,
except as set forth in the environmental reports described above, it has
not used, caused or permitted to exist, and will not use, cause or permit
to exist, on the related Mortgaged Property, any Hazardous Materials in any
manner which violates applicable federal, state or local laws governing the
use, storage, handling, production or disposal of Hazardous Materials at
the related Mortgaged Property and (A) the related Mortgagor and a natural
person have agreed to indemnify the mortgagee under such Mortgage Loan, and
its successor and assigns, against any losses, liabilities, damages,
penalties, fines, claims and reasonable out-of-pocket expenses (excluding
lost profits, consequential damages and diminution of value of the related
Mortgaged Property, provided that no Mortgage Loan with an original
principal balance equal to or greater than $15,000,000 contains an
exclusion for "diminution in value" of the related Mortgaged Property)
paid, suffered or incurred by such mortgagee resulting from such
Mortgagor's material violation of any environmental law or a material
breach of the environmental representations and warranties or covenants
given by the related Mortgagor in connection with such Mortgage Loan or (B)
environmental insurance has been obtained. If such Mortgage Loan is a
Mortgage Loan as to which neither a natural person has provided the
indemnity set forth above nor environmental insurance has been obtained,
such Mortgage Loan is set forth on Schedule I.
The Seller has not taken any action with respect to such Mortgage
Loan or the related Mortgaged Property that could subject the Seller or its
successors and assigns in respect of such Mortgage Loan to liability under
CERCLA or any other applicable federal, state or local environmental law.
The related Mortgage or other loan documents require the related Mortgagor
to comply with all applicable federal, state and local environmental laws
and regulations.
(xx) 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.
(xxi) Bankruptcy. The related Mortgagor is not a debtor in any
bankruptcy, reorganization, insolvency or comparable proceeding; provided,
however, that this representation and warranty does not cover any such
bankruptcy, reorganization, insolvency or comparable proceeding with
respect to which: (1) the Seller has no actual knowledge and (2) written
notice of the discovery thereof is not delivered to the Seller by
-13-
the Trustee or the Master Servicer on or prior to the date occurring twelve
months after the Closing Date.
(xxii) Loan Security. Such Mortgage Loan is secured by a Mortgage
on either a fee simple interest or a leasehold estate in a commercial
property or multifamily property, including the related Mortgagor's
interest in the improvements on the related Mortgaged Property.
(xxiii) 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.
(xxiv) 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.
(xxv) 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 with respect to any
Class of Certificates would not occur, any related Mortgaged Property, any
direct interest therein or any direct controlling interest in the Mortgagor
is directly encumbered in connection with subordinate financing; [and
except for the respective Mortgage Loans secured by the Mortgaged
Properties listed on Schedule I (for which such consent has been granted
with respect to mezzanine debt),] no such consent has been granted by the
Seller. 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 I, certain direct
controlling equity holders in the related Mortgagor are known to the Seller
to have incurred debt secured by their ownership interest in the related
Mortgagor.
(xxvi) 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). The Mortgage (under
either specific or general expense provisions) requires the Mortgagor to
pay all reasonable fees and expenses associated with securing the consent
-14-
or approval of the holder of the Mortgage for all actions involving the
transfer of interests in such Mortgagor or the related Mortgaged Property
requiring such consent or approval under the Mortgage including the cost of
any required counsel opinions relating to REMIC or other securitization and
tax issues.
(xxvii) Mortgagor Concentration. Except in the case of the
Maritime Plaza I & II Mortgage Loan, 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.
(xxviii) Waivers; Modifications. Except as set forth in a written
instrument included in the related Mortgage File, the (A) material 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 the
mortgagee in any manner, and (B) no portion of a related Mortgaged Property
has been 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
interferes with the security intended to be provided by such document or
instrument. Schedule I identifies each Mortgage Loan as to which, since the
latest date the related due diligence materials were delivered to
___________________________, there has been given, made or consented to an
alteration, modification or assumption of the terms of the related Mortgage
Note, Mortgage(s) or any related loan agreement and/or lock-box agreement
and/or as to which, since such date, there has been a waiver other than as
related to routine operational matters or minor covenants.
(xxix) 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.
(xxx) 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 portion of
the related Mortgaged Property that is necessary to the operation of such
Mortgaged Property or 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) payment
of a release price equal to at least 125% of the amount of such Mortgage
Loan allocated to the related Mortgaged Property or (D) the satisfaction of
certain underwriting and legal requirements which would be considered
reasonable by a prudent institutional commercial mortgage lender.
(xxxi) Qualifications; Licensing; Zoning. The related Mortgagor
has covenanted in the related 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
-15-
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. For purposes of this paragraph, a
Mortgaged Property shall be deemed "grandfathered" with respect to any
laws, zoning ordinances, rules, covenants or restrictions affecting the
construction, occupancy, use or operation of the related Mortgaged
Property, if and to the extent that any of the construction, occupancy, use
and operation of such Mortgaged Property: (A) conformed in all material
respects with such laws, zoning ordinances, rules, covenants and
restrictions affecting the improvements on the related Mortgaged Property
at the time the improvements on the related Mortgaged Property were
initially constructed or put into operation; and/or (B) was not addressed
or otherwise prohibited by any such laws, zoning ordinances, rules,
covenants and restrictions affecting the related Mortgaged Property at the
time the improvements on the related Mortgaged Property were initially
constructed or put into operation.
(xxxii) Property Financial Statements. The related Mortgagor has
covenanted in the related Mortgage Loan documents to deliver to the
mortgagee annual operating statements, rent rolls and related information
of each related Mortgaged Property and annual financial statements. If such
Mortgage Loan had an original principal balance greater than $3 million,
the related Mortgagor has covenanted to provide such operating statements,
rent rolls and related information on a quarterly basis. If such Mortgage
Loan has an original principal balance equal to or greater than $20
million, the related Mortgagor, if it obtains an audited financial
statement, is required to provide a copy thereof to the holder of such
Mortgage Loan at the related mortgagee's request.
(xxxiii) Single Purpose Entity. If such Mortgage Loan has a
Cut-off Date Balance in excess of $25 million, then the related Mortgagor
is obligated by its organizational documents and 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
greater than $5 million and less than $25 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
assets, except such as are incidental to the ownership of such Mortgaged
Property for so
-16-
long as such Mortgage Loan is outstanding. For purposes of this
representation, "Single Purpose Entity" means an entity whose
organizational documents or the related Mortgage Loan documents provide
substantially to the effect that such entity: (A) is formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing such Mortgage Loan, (B) may not engage in any business
unrelated to the related Mortgaged Property or Mortgaged Properties, (C)
does not have any material assets other than those related to its interest
in and operation of such Mortgaged Property or Mortgaged Properties and (D)
may not incur indebtedness other than as permitted by the related Mortgage
or other Mortgage Loan documents. If such Mortgage Loan has an initial
principal balance of $25 million and above and the related Mortgagor is a
single member limited liability company, such Mortgagor's organizational
documents provide that such Mortgagor shall not dissolve or liquidate upon
the bankruptcy, dissolution, liquidation or death of its sole member and is
organized in a jurisdiction that provides for such continued existence and
there was obtained opinion of counsel confirming such continued existence.
If such Mortgage Loan has, or is part of a group of Mortgage Loans with
affiliated Mortgagors having, a Cut-off Date Balance equal to or greater
than 2% of the Initial Pool Balance, or if such Mortgage Loan has an
original principal balance equal to or greater than $25 million, there was
obtained an opinion of counsel regarding non-consolidation of such
Mortgagor.
(xxxiv) 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.
(xxxv) 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.
(xxxvi) Originator Duly Authorized. To the extent required under
applicable law as of the Closing Date, 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.
(xxxvii) 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 and any
such fees and expenses are the obligation of the Mortgagor under the terms
of the Mortgage.
-17-
(xxxviii) 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.
(xxxix) 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 any portion of the improvements
on the related Mortgaged Property are in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards falling within zones A or V in the national flood insurance
program, the Mortgagor has obtained and is required to maintain flood
insurance.
(xl) 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.
(xli) 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.
(xlii) 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.
(xliii) Origination, Servicing and Collection Practices. The
origination, servicing and collection practices used by the Seller or any
prior holder of the related Mortgage Note with respect to such Mortgage
Loan have been in all respects legal and have met customary industry
standards.
-18-
(xliv) Fee Simple. Unless such Mortgage Loan is covered by the
representation and warranty in the immediately following paragraph (xlv),
such Mortgage Loan is secured in whole or material part by a fee simple
interest.
(xlv) 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 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 related Mortgage Loan and, 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
-19-
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 (including
any options exercisable by the holder of the related
Mortgage) that extends not less than 20 years beyond the
Stated Maturity Date of the related Mortgage Loan;
(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 the 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
-20-
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.
(xlvi) Fee Simple and Leasehold Interest. If such Mortgage Loan
is secured 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.
(xlvii) 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
or other acceptable water system, a public sewer (or, alternatively, a
septic) system, and other customary utility facilities.
(xlviii) 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
-21-
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.
(xlix) 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 Midland, in its capacity
as a primary servicer, or (C) as has been terminated.
(l) Mechanics' and Materialmen's Liens. As of origination and, to
the Seller's knowledge, as of the Closing Date, (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.
(li) Due Date. The Due Date for such Mortgage Loan is scheduled
to be the first day or the eighth day or the eleventh day of each month.
(lii) 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
and limitations in paragraph (v) above, enforceable first priority lien and
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.
(liii) 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.
(liv) 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
-22-
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.
(lv) No Undisclosed Common Ownership. To the Seller's knowledge,
except where multiple properties secure an individual Mortgage Loan and
except for properties securing Mortgage Loans that are cross-defaulted and
cross-collateralized, no two properties securing Mortgage Loans are
directly or indirectly under common ownership.
(lvi) 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.
(lvii) Usury. Such Mortgage Loan complied with or was exempt from
all applicable usury laws in effect at its date of origination.
(lviii) ARD Mortgage Loan. If such Mortgage Loan is an ARD
Mortgage Loan, 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 and accrued interest due under such Mortgage
Loan;
(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 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 and
(D) the interest rate of such Mortgage Loan will increase by at
least two (2) percentage points in connection with the
passage of its Anticipated Repayment Date.
(lix) 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
-23-
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.
For purposes of the foregoing representations and warranties, the
phrases "to the knowledge of the Seller" or "to the Seller's knowledge" shall
mean, except where otherwise expressly set forth below, the actual state of
knowledge of the Seller regarding the matters referred to, in each case (i)
after having conducted such inquiry and due diligence into such matters as would
be customarily performed by prudent institutional commercial or multifamily (as
applicable) mortgage lenders, and in all events as required by the Seller's
underwriting practices, at the time of the origination of the particular
Mortgage Loan, with respect to the origination of multifamily or commercial (as
applicable) mortgage loans intended for securitization and (ii) subsequent to
such origination, utilizing such servicing and monitoring practices as would
satisfy the Servicing Standard; and the phrases "to the actual knowledge of the
Seller" or "to the Seller's actual knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of the Seller's knowledge without
any express or implied obligation to make inquiry. All information contained in
documents which are part of or required to be part of a Mortgage File shall be
deemed to be within the knowledge and the actual knowledge of the Seller.
Wherever there is a reference to receipt by, or possession of, the Seller of any
information or documents, or to any action taken by the Seller or not taken by
the Seller or its agents or employees, such reference shall include the receipt
or possession of such information or documents by, or the taking or not taking
of such action by either the Seller or any servicer acting on its behalf.
-24-
SCHEDULE I TO EXHIBIT B
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
CONTROL
NUMBER PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (V): LOAN DOCUMENT STATUS.
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx'x Market No natural person is liable for non-recourse carveouts. The X.X.
Xxxxxxx Company executed the non-recourse carveout guaranty agreement.
Additionally, there is no recourse to the guarantor with respect to the
filing of a voluntary bankruptcy or insolvency proceeding by the
borrower or a material misrepresentation by the borrower.
------------------------------------------------------------------------------------------------------------------------------------
Maritime Plaza I & II No natural person is liable for non-recourse carveouts. Consortium
Three, L.P. executed the non-recourse carveout guaranty agreement.
------------------------------------------------------------------------------------------------------------------------------------
Eckerd - Concord No natural person is liable for non-recourse carveouts. Inland Retail
Real Estate Trust, Inc. executed the non-recourse carveout guaranty
Eckerd - Tega Cay agreement.
Xxxxxx - Xxxxxxxx
Xxxxxx - Xxxxx Creek
Xxxxxx - Xxxxxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
All Properties With respect to the non-recourse carveout guarantee concerning fraud,
certain of the guarantors have only agreed to be, in connection with
and to the extent of any material fraud or material intentional fraud
or material misrepresentations or material intentional
misrepresentation by the related borrower.
------------------------------------------------------------------------------------------------------------------------------------
-25-
CONTROL
NUMBER PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
With respect to the non-recourse carve-out covering misapplication or
misappropriation, some guarantors have agreed to cover "misapplication
or conversion" or "misappropriation or conversion" and some such
non-recourse carve-outs apply only during the continuance of an event
of default.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (VIII): FIRST LIEN.
------------------------------------------------------------------------------------------------------------------------------------
Manahawkin S.C. One tenant, McDonalds, owns its own improvements.
------------------------------------------------------------------------------------------------------------------------------------
All Properties Certain other improvements are owned by the occupants thereof.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (X): NO MATERIAL DAMAGE.
------------------------------------------------------------------------------------------------------------------------------------
Manahawkin S.C. A potential roadway project by the New Jersey Department of
Transportation may force relocation of the entrance of the mortgaged
property. The mortgage is recourse to the borrower for losses in
connection with such relocation.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XII): PROPERTY INSURANCE.
------------------------------------------------------------------------------------------------------------------------------------
Yalesville Square The current umbrella liability insurance policy is provided by an
insurer with a claims paying ability rating of "A:VII." Upon expiration
of this policy, borrower is required to obtain umbrella liability
insurance from an insurer with a claims paying ability rating of at
least "A:X" from A.M. Best Company.
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx - Xxxxxxxxx The borrower is not required to carry business interruption insurance.
------------------------------------------------------------------------------------------------------------------------------------
-26-
CONTROL
NUMBER PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
307-311 Merrimack Street/399 Maple The borrower is permitted to obtain insurance from an insurer with a
Street claims paying ability rating of at least "A:-VI" from A.M. Best Company
or "A" from a nationally recognized 00-00 Xxxxx Xxxxxx statistical
rating agency.
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxx Village MHC The borrower is permitted to obtain insurance from an insurer with a
claims paying ability rating of "A:VII."
------------------------------------------------------------------------------------------------------------------------------------
Windsor Village The borrower is permitted to obtain insurance from an insurer with a
claims paying ability rating of at least "A:X" from A.M. Best Company.
------------------------------------------------------------------------------------------------------------------------------------
Windsor Center The borrower is permitted to obtain insurance from an insurer with a
claims paying ability rating of at least "A:X" from A.M. Best Company.
------------------------------------------------------------------------------------------------------------------------------------
Walgreens Xxxxxxxxxxx The borrower is permitted to obtain insurance from an insurer with a
claims paying ability rating of at least "A:X" from A.M. Best Company.
------------------------------------------------------------------------------------------------------------------------------------
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, provided, however, that all the mortgage loans
provide a primary general liability policy of at least $1,000,000 per
occurrence with $2,000,000 in the aggregate.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XVI): SUBORDINATE DEBT.
------------------------------------------------------------------------------------------------------------------------------------
All Properties The loan documents allow the borrower to incur certain trade payables
up to a predetermined amount, which is generally less than or equal to
5% of the loan amount.
------------------------------------------------------------------------------------------------------------------------------------
-27-
CONTROL
NUMBER PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XIX): ENVIRONMENTAL CONDITIONS.
------------------------------------------------------------------------------------------------------------------------------------
Maritime Plaza I & II No natural person has agreed to provide an indemnity for the borrower's
material violation of any environmental laws or material breach of any
representations, warranties or covenants given by the borrower in
connection with the mortgage loan. Consortium Three, L.P. executed a
recourse guaranty that includes liability for breach of environmental
representations, warranties and indemnities.
------------------------------------------------------------------------------------------------------------------------------------
Eckerd - Concord In lieu of an environmental site assessment, a transaction screen was
performed.
Eckerd - Tega Xxx
Xxxxxx - Xxxxxxxx
Xxxxxx - Xxxxx Creek
Xxxxxx - Xxxxxxxxxx
Yalesville Square
Goodlife MHP
Windsor Heights MHP
Acorn Self Storage
Storage Inn Self Storage
Xxxxxxx Self Storage
000-000 Xxxxxxxxx Xxxxxx/000 Xxxxx Xxxxxx
61-79 Xxxxx Street
West Street Multifamily
Xxxxxx - Xxxxxxxxx
Westwood Court Apartments
East Xxxxxxxx Apartments
High Street Apartments
------------------------------------------------------------------------------------------------------------------------------------
-28-
CONTROL
NUMBER PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
Eckerd - Concord No natural person has agreed to provide an indemnity for the borrower's
material violation of any environmental laws or material breach of any
Eckerd - Tega Cay representations, warranties or covenants given by the borrower in
connection with the mortgage loan. Inland Retail Real Estate Trust,
Xxxxxx - Xxxxxxxx Inc. executed a recourse guaranty that includes liability for breach of
environmental representations, warranties and indemnities.
Xxxxxx - Xxxxx Creek
Xxxxxx - Xxxxxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx'x Market No natural person has agreed to provide an indemnity for the borrower's
material violation of any environmental laws or material breach of any
representations, warranties or covenants given by the borrower in
connection with the mortgage loan. X.X. Xxxxxxx Company executed a
recourse guaranty that includes liability for breach of environmental
representations, warranties and indemnities, but such guarantee
contains a limit of $45,000,000.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXII): LOAN SECURITY.
------------------------------------------------------------------------------------------------------------------------------------
Yalesville Square The borrower has both a fee simple and leasehold interest in the
mortgaged property. The leasehold interest encompasses 0.7 acres of the
mortgaged property and includes 4 of the 86 pads located on the
mortgaged property. The rent under the ground lease is $1.00 per annum.
------------------------------------------------------------------------------------------------------------------------------------
The related mortgage encumbers both the borrower's fee simple interest
Xxxxxx - Xxxxxxxx in the related mortgaged property and its leasehold interest in 14
parking spaces on property adjoining the mortgaged property.
------------------------------------------------------------------------------------------------------------------------------------
-29-
CONTROL
NUMBER PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXV): DUE-ON-ENCUMBRANCE.
------------------------------------------------------------------------------------------------------------------------------------
High Street Apartments Each of the related mortgaged properties is encumbered by a second
mortgage, in favor of UBS Real Estate Investments Inc., that secures
East Xxxxxxxx Apartments the obligations of each borrower pursuant to a cross-collateralization
agreement whereby each borrower guarantees the mortgage of the other
Westwood Court Apartments two borrowers.
------------------------------------------------------------------------------------------------------------------------------------
All Properties The loan documents allow the borrower to incur certain trade payables
up to a predetermined amount, which is generally less than or equal to
5% of the loan amount.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXVI): DUE-ON-SALE.
------------------------------------------------------------------------------------------------------------------------------------
Eckerd - Concord The loan documents allow the borrower, on and after the date 12 months
following the closing of the mortgage loan, and for so long as no event
Eckerd - Tega Cay of default exists, to transfer, (i) up to 49% of the direct or indirect
interests in the borrower, (ii) more than 49% of the direct or indirect
Xxxxxx - Xxxxxxxx interests in the related borrower to qualified entities set forth in
the loan documents, or (iii) the mortgaged property in its entirety in
Xxxxxx - Xxxxx Creek one transaction to an SPE wholly owned by Inland Retail Real Estate
Trust, Inc., in each case without the payment of an assumption fee. In
Xxxxxx - Xxxxxxxxxx addition, the loan documents allow the issuance, sale and/or transfer
of interests in Inland Retail Real Estate Trust, Inc. without the
lender's consent.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXVII): BORROWER CONCENTRATION.
------------------------------------------------------------------------------------------------------------------------------------
Maritime Plaza I & II The mortgage loan represents 6.25% of the initial pool balance.
------------------------------------------------------------------------------------------------------------------------------------
-30-
CONTROL
NUMBER PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXVIII): WAIVERS; MODIFICATIONS.
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx'x Market The borrower and lender will execute a side letter dated as of March
12, 2004 to correct a scrivener's error in the mortgage loan documents.
The side letter provides that the borrower is only required to deposit
funds into the rollover escrow fund if the DSCR is less than 1.25x for
3 consecutive quarters on a trailing 12 month basis.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXX): PROPERTY RELEASE.
------------------------------------------------------------------------------------------------------------------------------------
Eckerd - Concord After the lockout period and for so long as no event of default exists,
the borrower may obtain a release of any of the related mortgage
Eckerd - Tega Cay properties in connection with the sale of a related mortgaged property
provided it has satisfied certain conditions including, but not limited
Xxxxxx - Xxxxxxxx to (i) after giving effect to such release, the debt service coverage
ratio is equal to at least 2.75x or the debt service coverage ratio
Xxxxxx - Xxxxx Creek prior to such release, whichever is greater, (ii) after giving effect
to such release, the loan to value is not greater than 44.40% or the
Xxxxxx - Xxxxxxxxxx loan to value prior to such release, whichever is lower, (iii) the
payment of all costs and expenses in connection with such release, (iv)
the payment of a release amount equal to the greater of 125% of the
allocated loan amount with respect to such released mortgaged real
property and 95% of the sale proceeds from the sale of such released
mortgaged real property, (v) the delivery of a rating agency
confirmation from each rating agency and (vi) the delivery of an
opinion of counsel reasonably satisfactory to a prudent lender that the
release does not constitute a "significant modification" of the
mortgage loan and the release will not cause any REMIC to fail to
maintain its status as a REMIC.
------------------------------------------------------------------------------------------------------------------------------------
-31-
CONTROL
NUMBER PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
After the lockout period and for so long as no event of default exists,
the borrower may substitute other properties for certain of the related
mortgaged properties upon the satisfaction of certain conditions
including, but not limited to (i) a limit of two such substitutions
during the term of the mortgage loan, (ii) the substitute properties
being triple net leased to, and occupied in their entirety by, Eckerd
Corporation and Eckerd Corporation having comparable credit quality and
financial strength as Eckerd Corporation had on the date the mortgage
loan was closed, (iii) after giving effect to the substitution, the
aggregate debt service coverage ratio for the mortgage loan is not less
than the aggregate debt service coverage ratio on the date the mortgage
loan was closed or the aggregate debt service coverage ratio as of the
date immediately preceding the substitution, (iv) the net operating
income does not show a downgrade trend over three consecutive years
immediately prior to the date of substitution, (v) the net operating
income and debt service coverage ratio (for the trailing 12 month
period) for the replacement property is greater than 125% of the net
operating income and debt service coverage ratio (for the trailing 12
month period) for the substitute property, (vi) the delivery of a
rating agency confirmation from each rating agency and (vii) the
delivery of an opinion of counsel acceptable to the rating agencies
that the substitution does not constitute a "significant modification"
of the mortgage loan or otherwise cause a tax to be imposed on a
"prohibited transaction" by any of the REMICs.
------------------------------------------------------------------------------------------------------------------------------------
-32-
CONTROL
NUMBER PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXXI): QUALIFICATIONS; LICENSING; ZONING.
------------------------------------------------------------------------------------------------------------------------------------
There are fire department violations that are the responsibility of the
Xxxxxx - Xxxxx Creek tenant. The borrower has covenanted to cure these violations within 60
days of the date of closing.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXXV): LEGAL PROCEEDINGS.
------------------------------------------------------------------------------------------------------------------------------------
Manahawkin S.C. The related borrower has declared a default under Northeast Cinema's
lease for assuming such lease without first obtaining borrower's
consent. Northeast Cinemas has sued the borrower seeking a judicial
declaration that the lease is not in default. The guarantor under the
mortgage loan has agreed to indemnify the lender for losses, costs and
damages related to this litigation.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XLII): LICENSES, PERMITS AND AUTHORIZATIONS.
------------------------------------------------------------------------------------------------------------------------------------
Certain portions of the mortgaged property are subject to a temporary
Xxxxxx'x Market certificate of occupancy. X.X. Xxxxxxx Company is responsible for
loss, cost or damage resulting from the failure to obtain a permanent
certificate of occupancy.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XLIV): FEE SIMPLE.
------------------------------------------------------------------------------------------------------------------------------------
The related mortgage encumbers both the borrower's fee simple interest
Xxxxxx - Xxxxxxxx in the related mortgaged property and its leasehold interest in 14
parking spaces on property adjoining the mortgaged property.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLVII): TAX LOT; UTILITIES.
------------------------------------------------------------------------------------------------------------------------------------
Manahawkin S.C. One of the tax lots comprising the mortgaged property includes property
and improvements not covered by the mortgage loan.
------------------------------------------------------------------------------------------------------------------------------------
-33-
CONTROL
NUMBER PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
The leasehold portion of the mortgaged property does not constitute a
Xxxxxx - Xxxxxxxx separate tax lot.
------------------------------------------------------------------------------------------------------------------------------------
Yalesville Square The leasehold portion of the mortgaged property does not constitute a
separate tax lot.
------------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LV): NO UNDISCLOSED COMMON OWNERSHIP.
------------------------------------------------------------------------------------------------------------------------------------
Windsor Center The Windsor Center mortgaged property is under common ownership with
the Windsor Village mortgaged property.
Windsor Village
------------------------------------------------------------------------------------------------------------------------------------
Eckerd - Concord Each such mortgaged property is under common ownership with each of the
other mortgaged properties.
Eckerd - Tega Xxx
Xxxxxx - Xxxxxxxx
Xxxxxx - Xxxxx Creek
Xxxxxx - Xxxxxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
Good Life Mobile Home Park Each such mortgaged property is under common ownership with the other
mortgaged property.
Windsor Heights Mobile Home Park
------------------------------------------------------------------------------------------------------------------------------------
Storage Inn Self Storage Each such mortgaged property is under common ownership with the other
mortgaged property.
Summit Self Storage
------------------------------------------------------------------------------------------------------------------------------------
000-000 Xxxxxxxxx Xxxxxx/ Each such mortgaged property is under common ownership
000 Xxxxx Xxxxxx with the other mortgaged property.
00-00 Xxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
High Street Apartments Each such mortgaged property is under common ownership with
each of the other mortgaged properties.
East Xxxxxxxx Apartments
Westwood Court Apartments
------------------------------------------------------------------------------------------------------------------------------------
-00-
XXXXXXX X-0
XXXXXXX XX XXXXXXXXXX, XXXXXXXXXX & XXXX
[Letterhead of Cadwalader, Xxxxxxxxxx & Xxxx]
April 7, 2004
Addressees listed on Schedule A
Re: LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2
------------------------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 8(j) of the Mortgage
Loan Purchase Agreement, dated as of March 23, 2004 (the "MLPA"), among UBS Real
Estate Investments 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 $274,069,842 (the "UBS Mortgage Loans"), pursuant to the MLPA;
(ii) the execution by the Seller of the UBS Indemnification Agreement, dated as
of March 23, 2004 (the "Indemnification Agreement"), by and among the Seller,
UBS Americas Inc. ("UBS Americas" and, together with the Seller, 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 March 23, 2004 (the "Underwriting Agreement"), by and among SASC,
UBS Securities LLC ("UBS Securities") and Xxxxxx Brothers Inc. ("Xxxxxx", and
together with UBS Securities, the "Underwriters"), and acknowledged with respect
to certain sections by the Seller and Xxxxxx Brothers Holdings Inc. ("LBHI").
We have also acted as special counsel to UBS Americas in connection
with the execution by UBS Americas of the Indemnification Agreement and to UBSPF
in connection with the execution by UBSPF of the MLPA.
The MLPA, the Indemnification Agreement and the 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,
-35-
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, the conformity of the text
of each document filed with the Securities and Exchange Commission through its
Electronic Data Gathering, Analysis and Retrieval System to the printed document
reviewed by us, and the accuracy of the 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 upon statements,
certificates and representations of officers and other representatives of the
UBS Entities, UBSPF, 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. In addition, with respect to the
opinions referred to in paragraphs 8(c), 8(d) and 9 below, such opinions are
based solely on the Seller Officer's Certificate and the UBS Americas Officer's
Certificate referred to below, a review of the items, if any, identified as
exceptions in the exhibits to such certificates, conversation with internal
counsel for each of the UBS Entities, and the actual knowledge of attorneys who
conducted such review, had such conversations and/or customarily represent the
UBS Entities in real estate lending transactions, financing transactions, and/or
transactions similar to those contemplated by the Agreements. 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, UBSPF and others in connection with the
preparation and delivery of this letter.
In particular, we have examined and relied upon:
(i) the MLPA;
(ii) the Underwriting Agreement;
(iii) the Indemnification Agreement;
(iv) the officer's certificate of Seller, dated the date hereof (the
"Seller Officer's Certificate"); and
(v) the officer's certificate of UBS Americas, dated the date hereof
(the "UBS Americas Officer's Certificate").
References in this letter to "Applicable Laws" shall mean those laws,
rules and regulations of the State of New York and of the United States of
America which, in our
-36-
experience, are normally applicable to transactions of the type contemplated by
the Agreements, as well as the General Corporation Law of the State of Delaware
with respect to the opinions referred to in paragraphs 1 through 4, 8(a),
8(b)(i), 8(c) and 8(d) below. While we are not licensed to practice law in the
State of Delaware, we have reviewed applicable provisions of the Delaware
General Corporation Law as we have deemed appropriate in connection with the
opinions expressed herein. Except as described we have neither examined nor do
we express any opinion with respect to Delaware law. References in this letter
to the term "Governmental Authorities" means executive, legislative, judicial,
administrative or regulatory bodies of the State of New York or the United
States of America. References in this letter to the term "Governmental Approval"
means any consent, approval, license, authorization or validation of, or filing,
recording or registration with, any Governmental Authority pursuant to
Applicable Laws.
We have also assumed, except as to the UBS Entities, that all parties
who executed any documents, agreements and instruments in connection with the
transactions contemplated by the Agreements had the power and legal right to
execute and deliver all such documents, agreements and instruments, and, except
as to the UBS Entities and UBSPF, 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 (except as expressly set
forth herein), of any lawyer in our firm actively involved in the transactions
contemplated by the Agreements.
We express no opinion concerning any law other than Applicable Law.
Based upon and subject to the foregoing, we are of the opinion that:
1. Each of the Agreements has been duly authorized, executed and
delivered by the Seller.
2. The Indemnification Agreement has been duly authorized, executed and
delivered by UBS Americas.
3. The Seller is a corporation validly existing and in good standing
under the laws of the State of Delaware, with corporate power and authority
to enter into and perform its obligations under the Agreements.
4. UBS Americas is a corporation validly existing and in good standing
under the laws of the State of Delaware, with corporate power and authority
to enter into and perform its obligations under the Indemnification
Agreement.
5. Each of the MLPA and the Underwriting Agreement 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
-37-
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.
6. Neither the consummation by UBSPF of any of the transactions
contemplated by the MLPA nor the execution, delivery and performance of the
terms of the MLPA by UBSPF will conflict with, or result in the violation
of, any New York State or federal law that is applicable to UBSPF.
7. The execution, delivery and performance by UBSPF of the MLPA and the
consummation by UBSPF of the transactions contemplated under the MLPA 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 the MLPA, to be obtained by UBSPF 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.
8. None of the sale of the UBS Mortgage Loans, the consummation by
either UBS Entity of any of the other transactions contemplated by the
Agreements to which it is a party or the execution, delivery and
performance by each UBS Entity of the terms of the Agreements to which it
is a party, (a) will require any Governmental Approval to be obtained or
made on the part of either UBS Entity, the absence of which would have a
material adverse effect on such UBS Entity or the transactions contemplated
by the Agreements, except those that may be required under state securities
or blue sky laws, and except for such other approvals that have been
obtained and, to our knowledge, are in full force and effect, (b) will
conflict with, or result in a violation of, any provision of (i) either UBS
Entity's certificate of incorporation or bylaws or (ii) any Applicable Laws
applicable to either UBS Entity, (c) will, to our knowledge, breach,
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 to which either UBS Entity 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 either UBS Entity
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 any Agreement to which it is a party or be
reasonably likely to impair materially the ability of such UBS Entity to
perform under the terms of any Agreement to which it is a party and (d)
will, to our knowledge, breach or result in a violation of, or default
under, any material judgment, decree or order that is applicable to either
UBS Entity and is issued by any Governmental Authority having jurisdiction
over either UBS Entity or any of its properties.
9. To our actual knowledge, there is no legal or governmental action,
investigation or proceeding pending or threatened against either UBS Entity
(a) asserting the invalidity of the Agreements to which it is a party, (b)
seeking to prevent the consummation of any of the transactions provided for
in the Agreements, or (c) that
-38-
would materially and adversely affect (i) the ability of either UBS Entity
to perform its obligations under, or the validity or enforceability (with
respect to either UBS Entity) of, the Agreements to which it is a party or
(ii) any rights with regard the Mortgaged Properties or the Mortgage Loans.
For purposes of the opinion set forth in this paragraph, we have not
regarded any legal or governmental actions, investigations or proceedings
to be "threatened" unless the potential litigant or governmental authority
has communicated in writing to a UBS Entity a present intention to initiate
such actions, investigations or proceedings against such UBS Entity.
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,
-39-
SCHEDULE A
----------
Structured Asset Securities Corporation II Standard and Poor's Ratings
000 Xxxxxxx Xxxxxx Services, a division of
Xxx Xxxx, Xxx Xxxx 00000 The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. Xxxxx Fargo Bank, N.A.
000 Xxxxxxx Xxxxxx 0000 Xxx Xxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxx, Xxxxxxxx 00000-0000
UBS Securities LLC Xxxxx'x Investors Service, Inc.
1285 Avenue of the Americas 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 sNew Xxxx, Xxx Xxxx 00000
C-1-1
EXHIBIT C-2
OPINION OF IN-HOUSE COUNSEL TO ADDITIONAL PARTY
[Letterhead of UBS]
April 7, 2004
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: LB-UBS Commercial Mortgage Trust 2004-C2, Commercial Mortgage
Pass-Through Certificates, Series 2004-C2
-----------------------------------------------------------------
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 Investments 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 March 23, 2004 (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.
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,
3
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.
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
4
SCHEDULE A
UBS Securities LLC Standard and Poor's Ratings
1285 Avenue of the Americas Services, a division of Xxx
Xxx Xxxx, Xxx Xxxx 00000 XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
C-2-1
