EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of April 3, 2006 (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
2006-C3, Commercial Mortgage Pass-Through Certificates, Series 2006-C3. 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, dated as of March 13, 2006 (the "Pooling and
Servicing Agreement"), between the Purchaser, as depositor, Wachovia Bank,
National Association, as master servicer (the "Master Servicer"), CWCapital
Asset Management LLC., as special servicer (the "Special Servicer"), and LaSalle
Bank National Association, 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 $764,023,236 (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
10, 2006 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
Cost Rate), for the period from and including March 11, 2006 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 45.01042% 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 (other than the
primary servicing rights) in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date. 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 (i) the Trustee or a Custodian
appointed thereby, 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, with copies of each Mortgage File to be delivered by the
Trustee to, upon request, the Master Servicer (at the expense of the Trustee),
within 10 Business Days of such request; and (ii) the Master Servicer (or, at
the direction of the Master Servicer, to the appropriate Sub-Servicer) or, in
the case of the Outside Serviced Trust Mortgage Loan, the applicable Outside
Servicer, all unapplied Escrow Payments and Reserve Funds in the possession or
under the control of the Seller that relate to the Mortgage Loans. In addition,
the Seller shall deliver to and deposit with the Master Servicer, within 30 days
of the Closing Date, a copy of the mortgage file that was delivered to the
related Outside Serviced Trustee with respect to the 000 Xxxxxxx Xxxxxx Trust
Mortgage Loan under the related Non-Trust Mortgage Loan Securitization
Agreement.
(d) The Seller shall, retain, with respect to each Mortgage Loan
(except in the case of the Outside Serviced Trust Mortgage Loan), an Independent
third party (the "Recording Agent"),
-2-
through which it shall: (i) 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 information is
available to the subject Recording Agent), submit for recording in the
appropriate public office for real property records each related assignment of
Mortgage and assignment of Assignment of Leases, in favor of, and delivered
under clause (a)(iv) of the definition of "Mortgage File" to the Trustee, and
(ii) cause each such assignment of Mortgage and assignment of Assignment of
Leases to be delivered to the Trustee following its return by the appropriate
public office for real property records, with copies of any such returned
assignments to be delivered by the 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, the Trustee shall obtain a certified copy of the recorded
original. Notwithstanding the foregoing, the Seller may request the Trustee to
submit for recording any of the assignments of Mortgage or assignments of
Assignment of Leases referred to in this paragraph, and in such event, the
Seller shall cause any such unrecorded document to be delivered to the Trustee.
If any such assignment of Mortgage and/or assignment of Assignment of
Leases referred to in the preceding paragraph is lost or returned unrecorded
because of a defect therein, then the Seller shall prepare or cause the
preparation of a substitute therefor or cure such defect, 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 and delivery contemplated in the preceding two paragraphs, including,
without limitation, any out-of-pocket costs and expenses that may be incurred by
the Trustee in connection with any such recording or delivery performed by the
Trustee at the Seller's request and the fees of the Recording Agent.
Pursuant to the Pooling and Servicing Agreement and a letter agreement
dated April 10, 2006 (the "Letter Agreement") between Redwood Trust, Inc., the
Depositor, the Seller and the Trustee, the Trustee, through a third party (the
"Filing Agent") retained by it, as and in the manner provided in the Pooling and
Servicing Agreement and at the expense of Redwood Trust, Inc. (and in any event
within 45 days following the later of the Closing Date and the date on which all
necessary filing information is available to the Filing Agent), is required,
with respect to each Mortgage Loan (other than the Outside Serviced Trust
Mortgage Loan), to cause (i) each assignment of UCC Financing Statements
prepared by the Seller, in favor of, and delivered as part of the related
Mortgage File to the Trustee, to be submitted for filing in the appropriate
public office, and (ii) such assignments to be delivered to the Trustee
following their return by the applicable public filing office, with copies of
any such returned assignments to be delivered by the 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). The Seller hereby agrees to
reasonably cooperate with the Trustee and the Filing Agent with respect to the
filing of the assignments of UCC Financing Statements as described in this
paragraph and to forward to the Trustee filing confirmation, if any, received in
connection with such UCC Financing Statements filed in accordance with this
paragraph. Notwithstanding the foregoing, to the extent the Trustee provides
Redwood Trust, Inc., pursuant to the Letter Agreement, with an invoice
-3-
for the expenses (i) reasonably to be incurred in connection with the filings
referred to in this paragraph and (ii) required to be paid by Redwood Trust,
Inc. pursuant to the Letter Agreement, and such expenses are not paid by Redwood
Trust, Inc. in advance of such filings, the Trustee, pursuant to the Pooling and
Servicing Agreement and the Letter Agreement and at the expense of the Seller
(with respect to each Mortgage Loan, other than the Outside Serviced Trust
Mortgage Loan), shall only be required to cause the filing agent to file the
assignments of such UCC Financing Statements with respect to Mortgage Loans
secured by hotel or hospitality properties.
(e) With respect to any Mortgage Loan (other than the Outside Serviced
Trust Mortgage Loan), the following documents (other than any document that
constitutes part of the Mortgage File for such Mortgage Loan): copies of any
final appraisal, final survey, final engineering report, final environmental
report, opinion letters of counsel to the related mortgagor delivered in
connection with the closing of such Mortgage Loan, escrow agreements, reserve
agreements, organization documentation for the related mortgagor, organizational
documentation for any related guarantor or indemnitor (if the related guarantor
or indemnitor is an entity), insurance certificates or insurance review reports,
leases for tenants representing 10% or more of the annual income with respect to
the related Mortgaged Property, final seismic report and property management
agreements, rent roll, property operating statement and financial statements for
the related guarantor or indemnitor, cash management or lockbox agreement,
zoning letters or zoning reports and the documents, if any, specifically set
forth on Exhibit C hereto (collectively, the "Mortgage Origination Documents"),
but in each case, only if the subject document (a) was in fact obtained in
connection with the origination of such Mortgage Loan, (b) relates to the
administration or servicing of such Mortgage Loan, (c) is reasonably necessary
for the ongoing administration and/or servicing of such Mortgage Loan by the
Master Servicer or Special Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (d) is in the possession or under the
control of the Seller shall, within 45 days of the Closing Date, be delivered or
caused to be delivered by the Seller to the Master Servicer (or, at the
direction of the Master Servicer, to and with the applicable Sub-Servicer);
provided that the Seller shall not be required to deliver any draft documents,
privileged or other communications or correspondence, credit underwriting or due
diligence analyses or information, credit committee briefs or memoranda or other
internal approval documents or data or internal worksheets, memoranda,
communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) 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 (other than the Outside Serviced Trust Mortgage Loan) that
is secured by the interests of the related Mortgagor in a hospitality property
(identified on Schedule VI to the Pooling and Servicing Agreement) and each
Mortgage Loan (other than the Outside Serviced Trust Mortgage Loan) that has a
related letter of credit, the Seller shall deliver to and deposit with the
Master Servicer, on or before the Closing Date, any related franchise agreement,
franchise comfort letter and the original of such letter of credit. Further, in
-4-
the event, with respect to a Mortgage Loan (other than the Outside Serviced
Trust 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.
(h) Pursuant to the Pooling and Servicing Agreement, the Master
Servicer shall review the documents with respect to each Mortgage Loan delivered
by the Seller pursuant to or as contemplated by Section 2(e) and provide the
Seller with a certificate (the "Master Servicer Certification") within 90 days
of the Closing Date acknowledging: (i) its (or, if the Master Servicer has
directed that such documents be delivered only to the applicable Sub-Servicer,
the applicable Sub-Servicer's) receipt as of the date of the Master Servicer
Certification of such documents actually received, provided that such review
shall be limited to identifying the document received, the Mortgage Loan to
which it purports to relate, that it appears regular on its face and that it
appears to have been executed (where appropriate); and (ii) in the event the
Seller has, in its sole discretion, elected to deliver a Mortgage Loan Checklist
(as defined in Section 5(b)(i)) with respect to any Mortgage Loan, its (or the
appropriate Sub-Servicer's) receipt as of the date of the Master Servicer
Certification of such Mortgage Loan Checklist, provided that, if the Seller
delivers a Mortgage Loan Checklist, as referred to in this clause (ii), on or
prior to the 90th day following the Closing Date, then the Master Servicer may
instead deliver the Master Servicer Certification within the later of (x) 90
days of the Closing Date and (y) five (5) Business Days of its receipt of such
Mortgage Loan Checklist. Notwithstanding anything to the contrary set forth
herein, to the extent the Seller has not been notified in writing of its failure
to deliver any document with respect to a Mortgage Loan required to be delivered
pursuant to or as contemplated by Section 2(e) hereof prior to the first
anniversary of the date of the Master Servicer Certification, the Seller shall
have no obligation to provide such document.
(i) In addition, on the Closing Date, the Seller shall deliver to the
Master Servicer for deposit in the Pool Custodial Account the Initial Deposit
relating to each Mortgage Loan that is an Initial Deposit Mortgage Loan.
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
-5-
enforcement may be limited by (A) bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws affecting the enforcement of
creditors' rights in general, and (B) general equity principles (regardless
of whether such enforcement is considered in a proceeding in equity or at
law).
(iii) The execution and delivery of this Agreement by the
Representing Party and the Representing Party's performance and compliance
with the terms of this Agreement will not (A) violate the Representing
Party's organizational documents, (B) violate any law or regulation or any
administrative decree or order to which the Representing Party is subject
or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any material contract, agreement or other instrument to which the
Representing Party is a party or by which the Representing Party is bound.
(iv) The Representing Party is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the Representing Party's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Representing Party or
its properties or have consequences that would materially and adversely
affect its performance hereunder.
(v) The Representing Party is not a party to or bound by any
agreement or instrument or subject to any organizational document or any
other corporate or limited liability company (as applicable) restriction or
any judgment, order, writ, injunction, decree, law or regulation that
would, in the Representing Party's reasonable 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:
-6-
(ix) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of the
Mortgage Loans to the Purchaser in exchange for the consideration specified
in Section 1 hereof. In connection with the foregoing, the Seller shall
cause all of its records to reflect such transfer as a sale (as opposed to
a secured loan). The consideration received by the Seller upon the sale of
the Mortgage Loans to the Purchaser will constitute at least reasonably
equivalent value and fair consideration for the Mortgage Loans. The Seller
will be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller
is not selling the Mortgage Loans to the Purchaser with any intent to
hinder, delay or defraud any of the creditors of the Seller. After giving
effect to its transfer of the Mortgage Loans to the Purchaser, as provided
herein, the value of the Seller's assets, either taken at their present
fair saleable value or at fair valuation, will exceed the amount of the
Seller's debts and obligations, including contingent and unliquidated debts
and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct
its business. The Mortgage Loans do not constitute all or substantially all
of the assets of the Seller. The Seller does not intend to, and does not
believe that it will, incur debts or obligations beyond its ability to pay
such debts and obligations as they mature.
(x) 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.
(xi) 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.
(xii) 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.
(xiii) 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
-7-
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.
(xiv) 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, 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.
(xv) 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 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.
(xvi) 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.
(xvii) 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated upon initial
issuance.
-8-
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).
(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 receives written notice with respect to any Mortgage
Loan (i) that any document constituting a part of clauses (a)(i) through
(a)(xiii) (or, in the case of the Outside Serviced Trust Mortgage Loan,
clause(b)(i)) of the definition of Mortgage File or a document, if any,
specifically set forth on Exhibit D hereto has not been executed (if applicable)
or is missing (a "Document Defect") or (ii) of a breach of any of the Seller's
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, as of the date specified in Section 5(b)(ii) below, materially and
adversely affects the value of
-9-
the Mortgage Loan, then such Document Defect shall constitute a "Material
Document Defect" or such Breach shall constitute a "Material Breach", as the
case may be. Then, following receipt of a Seller/Depositor Notification with
respect to such Material Document Defect or Material Breach, as the case may be,
the Seller shall (subject to Sections 5(f), (g) and (h)), (A) not later than 90
days after (1) the Seller and the Purchaser have agreed upon the existence of
such Material Document Defect or Material Breach or (2) a court of competent
jurisdiction makes a final non-appealable determination that a Material Document
Defect or Material Breach exists or (B) 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 (a "Qualified Mortgage"), not later than 90 days
following the discovery by any party of such Material Document Defect or
Material Breach (either such 90-day period, in the case of clause (A) or (B), as
applicable, 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 out-of-pocket expenses that are reasonably
incurred and directly attributable to pursuing such a claim based on such
Material Document Defect or Material Breach associated therewith), or (ii) if
such Material Document Defect or Material Breach, as the case may be, cannot be
cured within the Initial Resolution Period, 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 (a) 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, (b) 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, (c) 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 (d) the Seller shall have 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). The parties acknowledge that neither delivery of a
certification or schedule of exceptions to the Seller pursuant to Section
2.02(b) of the Pooling and Servicing Agreement or otherwise nor possession of
such certification or schedule by the Seller shall, in and of itself, constitute
delivery of notice of any Material Document Defect or Material Breach or
knowledge or awareness by the Seller of any Material Document Defect or Material
Breach.
If, during the period of deferral by the Seller of its cure and
repurchase obligations as contemplated by the last proviso of the penultimate
sentence 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
-10-
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 actual out-of-pocket costs and expenses in
connection with the applicable servicer's effecting such cure.
(b) (i) Provided that the Seller provides a materially complete and
accurate list of the Mortgage Origination Documents applicable to each Mortgage
Loan (a "Mortgage Loan Checklist") within 90 days of the Closing Date, then all
Seller/Depositor Notifications relative to Material Document Defects with
respect to such Mortgage Loan must be given within twelve (12) month of the
first anniversary of the later of (i) the initial Custodial Certification given
pursuant to the Pooling and Servicing Agreement and (ii) the date of delivery of
the related Mortgage Loan Checklist. Nothing in this Section 5(b)(i) shall be
construed to obligate the Seller to deliver a Mortgage Loan Checklist with
respect to any Mortgage Loan and in the event the Seller, in its sole
discretion, delivers a Mortgage Loan Checklist in respect of any Mortgage Loan,
the delivery thereof shall not give rise to any liability whatsoever on the part
of the Seller to the Purchaser, the Trustee or any other Person.
(ii) Provided that any Seller/Depositor Notification with respect
to a Material Document Defect or Material Breach is received by the Seller
(in accordance with the provisions of the Pooling and Servicing Agreement)
within 24 months of the Closing Date, the material and adverse effect of
the related Document Defect or Breach shall be determined as of the date
hereof. After the expiration of 24 months following the Closing Date, the
material and adverse effect of any Document Defect or Breach that was not
the subject of another Seller/Depositor Notification, received by the
Seller (in accordance with the provisions of the Pooling and Servicing
Agreement) within 24 months of the Closing Date, shall be determined as of
the date of such Seller/Depositor Notification.
(iii) 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 (A) 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 (B) 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
-11-
Mortgage Loan Schedule as directly corresponding thereto; provided that, if such
Cross-Collateralized Group is still subject to the Pooling and Servicing
Agreement, then no such termination shall be effected unless and until (i) the
Purchaser or its designee has received from the Seller (A) an Opinion of Counsel
to the effect that such termination will not cause an Adverse REMIC Event to
occur with respect to any REMIC Pool or an Adverse Grantor Trust Event with
respect to the Grantor Trust and (B) written confirmation from each Rating
Agency that such termination will not cause an Adverse Rating Event to occur
with respect to any Class of Certificates and (ii) the Controlling Class
Representative (if one is acting) has consented (which consent shall not be
unreasonably withheld and shall be deemed to have been given if no written
objection is received by the Seller within 10 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 the subject Breach
or Document Defect, as the case may be, materially and adversely affects the
value of any one or more Mortgage Loans in such Cross-Collateralized Group, 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. It is understood and agreed that the
obligations of the Seller set forth in this Section 5 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 (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 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
-12-
"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. Amounts deposited in the Pool
Custodial Account pursuant to this paragraph shall constitute "Liquidation
Proceeds" for all purposes of the Pooling and Servicing Agreement (other than
Section 3.11(c) of the Pooling and Servicing Agreement).
(g) Subject to Section 5(f) and the last three sentences of this
paragraph, if the Seller determines that a Material Breach (other than a
Material Breach of a representation or warranty on the part of the Seller set
forth in and made pursuant to paragraph (xvii) of Exhibit B to this Agreement)
or a Material Document Defect with respect to a Mortgage Loan is not capable of
being cured in accordance with Section 5(a) hereof, then in lieu of repurchasing
such Mortgage Loan the Seller may, at its sole option, pay a cash amount equal
to the loss of value (each such payment, a "Loss of Value Payment") with respect
to such Mortgage Loan, which loss of value is directly attributed to such
Material Breach or Material Document Defect, as the case may be. The amount of
each such Loss of Value Payment shall be determined either (i) by mutual
agreement of the Special Servicer on behalf of the Trust with respect to the
subject Material Breach or Material Document Defect, as the case may be, and the
Seller, or (ii) by judicial decision; provided that, in the event there is a
legal action for determining the existence of a Material Breach or a Material
Document Defect with respect to any Mortgage Loan, such legal action must also
include a determination of the amount of the loss of value to such Mortgage Loan
directly attributed to such Material Breach or such Material Document Defect, as
the case may be. Provided that such payment is made, this paragraph describes
the sole remedy available to the Purchaser regarding any such Material Breach or
Material Document Defect and the Seller shall not be obligated to otherwise cure
such Material Breach or Material Document Defect or repurchase the affected
Mortgage Loan based on such Material Breach or Material Document Defect under
any circumstances. Notwithstanding the foregoing provisions of this Section
5(g), if 95% or more of the loss of value to a Mortgage Loan was caused by a
Material Breach or Material Document Defect, which Material Breach or Material
Document Defect is not capable of being cured, this Section 5(g) shall not
apply, and the Seller shall be obligated to repurchase the affected Mortgage
Loan at the applicable Purchase Price in accordance with Section 5(a); and,
furthermore, the Seller shall not have the option of delivering Loss of Value
Payments in connection with any Material Breach relating to a Mortgage Loan's
failure to be a Qualified Mortgage. In the eve nt there is a Loss of Value
Payment made by the Seller in accordance with this Section 5(g), the amount of
such Loss of Value Payment shall be deposited into the Loss of Value Reserve
Fund to be applied in accordance with Section 3.05(e) of the Pooling and
Servicing Agreement.
In the event the amount of any Loss of Value Payment is determined by
judicial decision, then such Loss of Value Payment shall also include the
payment of any costs and expenses (including costs incurred in establishing the
amount of any related loss of value to the subject Mortgage Loan, including
reasonable legal fees) that are reasonably incurred in good faith by the Master
Servicer, the Special Servicer and/or the Trustee (on behalf of the Trust) in
enforcing the rights of the Trust against the Seller with respect to the subject
Material Breach or Material Document Defect, as the case may be; provided that,
that in the event the Seller tenders a loss of value payment in a specified
amount in connection with a Material Breach or Material Document Defect, as the
case may be, prior to the institution of legal proceedings and that offer is
rejected and an amount equal to or less than the loss of value payment
originally tendered by the Seller is ultimately determined by judicial decision
to be the actual amount of the Loss of Value Payment attributed to such Material
Breach or Material Document
-13-
Defect, as the case may be, then that Loss of Value Payment shall not include
the payment of any costs or expenses incurred in enforcing the rights of the
Trust against the Seller with respect to the subject Material Breach or Material
Document Defect, as the case may be; and provided, further, that if the Special
Servicer request a loss of value payment from the Seller of a specified amount
in connection with a Material Breach or Material Document Defect, as the case
may be, and the Seller refuses to pay that amount and an amount equal to or
greater than the loss of value payment originally requested by the Special
Servicer is ultimately determined by judicial decision to be the actual Loss of
Value Payment attributable to such Material Document Defect or Material Breach,
then that Loss of Value Payment shall also include the payment of any costs or
expenses reasonably incurred in good faith in enforcing the rights of the Trust
against the Seller with respect to the subject Material Breach or Material
Document Defect, as the case may be; and provided, further, that, if the Seller
tenders a loss of value payment in connection with a Material Breach or Material
Document Defect, as the case may be, in a specified amount, and the Special
Servicer rejects such tender and requests a greater loss of value payment
amount, and an amount in between the respective amounts tendered and requested
is ultimately determined by judicial decision to be the actual Loss of Value
Payment attributable to such Material Breach or Material Document Defect, as the
case may be, then that Loss of Value Payment shall also include the payment of
an amount equal to the product of (i) all costs and expenses reasonably incurred
in connection with that judicial determination, multiplied by (ii) a fraction,
the numerator of which is the excess of the amount determined by judicial
decision over the amount tendered by the Seller, and the denominator of which is
the excess of the amount requested by the Special Servicer over the amount
tendered by the Seller. Notwithstanding the foregoing, in the event any Loss of
Value Payment is determined by the parties hereto by mutual agreement (and not
by a judicial decision), that Loss of Value Payment shall not include any costs
and expenses incurred by the Master Servicer, the Special Servicer or the
Trustee unless such costs and expenses were specifically included in such mutual
agreement.
(h) Notwithstanding the foregoing, if there exists a Material Breach
of the representation or warranty on the part of the Seller set forth in and
made pursuant to paragraph (xvii) of Exhibit B to this Agreement, and the
subject Mortgage Loan becomes a Qualified Mortgage prior to the expiration of
the Initial Resolution Period applicable to a Material Document Defect or
Material Breach that affects whether a Mortgage Loan is a Qualified Mortgage,
and without otherwise causing an Adverse REMIC Event or an Adverse Grantor Trust
Event, then such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such Breach.
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.
-14-
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Sidley Austin 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
(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 Seller and the
Additional Party;
(b) The Pooling and Servicing Agreement duly executed by the parties
thereto;
-15-
(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-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-
-16-
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 LLP ("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 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.
SECTION 9. Costs.
An amount equal to 45.01042% 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
-17-
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-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
-18-
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, TO THE EXCLUSION OF ALL OTHER COURTS, WITH
RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES
THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING SHALL BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS, TO THE EXCLUSION OF ALL
OTHER COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN
INCONVENIENT FORUM IN CONNECTION WITH SUCH ACTION OR PROCEEDING COMMENCED IN
SUCH NEW YORK STATE OR FEDERAL COURTS; 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;
PROVIDED, THAT IN THE EVENT NEITHER A NEW YORK STATE NOR FEDERAL COURT SITTING
IN NEW YORK IN WHICH AN ACTION OR PROCEEDING HAS BEEN DULY AND PROPERLY
COMMENCED BY ANY PARTY TO THIS AGREEMENT REGARDING A MATTER ARISING OUT OF OR
RELATING TO THIS AGREEMENT HAS REFUSED TO ACCEPT JURISDICTION OVER OR OTHERWISE
HAS NOT ACCEPTED SUCH ACTION OR PROCEEDING WITHIN, IN THE CASE OF EACH SUCH
COURT, 60 DAYS OF THE COMMENCEMENT OR FILING THEREOF, THEN THE WORDS "TO THE
EXCLUSION OF ALL OTHER COURTS" IN CLAUSE (I) AND CLAUSE (II) OF THIS SENTENCE
SHALL NOT APPLY WITH REGARD TO SUCH ACTION OR PROCEEDING AND THE REFERENCE TO
"SHALL" IN CLAUSE (II) OF THIS SECTION SHALL BE DEEMED TO BE "MAY".
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.
-19-
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller and the Additional Party
under this Agreement shall not be assigned by the Seller or the Additional
Party, as the case may be, without the prior written consent of the Purchaser,
except that any person into which the Seller or the Additional Party may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Seller or the Additional Party is a party, or any
person succeeding to all or substantially all of the business of the Seller or
the Additional Party, shall be the successor to the Seller or the Additional
Party, as the case may be, hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part, as may be required to effect
the purposes of the Pooling and Servicing Agreement, and the assignee shall, to
the extent of such assignment, succeed to the rights and obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the Seller, the Additional Party, the
Purchaser, and their respective successors and permitted assigns.
SECTION 18. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced. The Seller's and the Additional Party's obligations hereunder shall in
no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, unless the Seller or the
Additional Party, as applicable, has consented to such amendment or modification
in writing.
-20-
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 X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Director
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
Address for Notices:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
-21-
ADDITIONAL PARTY
UBS PRINCIPAL FINANCE LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Director
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
Address for Notices:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
-22-
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
-23-
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached]
Exh A-1
MORTGAGE LOAN NUMBER PROPERTY NAME ADDRESS
-------------------- ------------------------------------ ------------------------------------------------------------------------
1 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
0 Xxxxxxx Xxxxx II 000 Xxxxxx Xxxxxx, Xxxxxxxxx
9 1 Xxxxx Xxxxxxx Drive 1 Xxxxx Xxxxxxx Drive
10 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx
11 Queensbury Portfolio Various
12 Dacra Portfolio Various
14 University Towers 000 Xxxxx Xxxxxx Xxxxxx
15 Rio Santa Fe Apartments 13015 West Rancho Santa Fe Boulevard
16 Rochester Apartments Various
17 Advance Tower 0000 Xxxxxx Xxxxx
00 Xxxxx Xxxx Xxxxxxxxxx 00000 Xxxxxxxx Xxxxxxxxx
00 000 Xxxxxxx Xxxxxxx 000 Xxxxxxx Xxxxxxx
23 Xxxxxxx at Xxxxxxxxx 000 Xxxxxxxxx Xxxxx Xxxxx
24 Westwood Office Center 0000 Xxxxxxxx Xxxxxx Xxxxx
26 Green Caye 0000 Xxxxxxxx Xxxxxx
33 5435 Balboa 5435 and 0000 Xxxxxx Xxxxxxxxx
38 000 Xxxxx Xxxxxxxxx 000 Xxxxx Xxxxxxxxx Xxxxxxxxx
00 Xxxxx Xxxxx Hospital Xxxxxxxx 0 Xxxxxx Xxxxxx
40 Xxxx Building 000 Xxxxxx Xxxxxx
53 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx
54 Quality Inn Xxxxxxxxx 00 Xxxxxxxxxxx - Xxxxxxxxx Xxxx
55 Kuakini Self Storage 00-0000 Xxxxx Xxxx
59 Peachtree Square Industrial 2675, 2687, 2691, 2692, 2695, 2696 & 0000 Xxxxxxxxx Xxxxxx
00 Xxxxxxxxx 00xx Xxxxxx 0000 Xxxxxxxxx 00xx Xxxxxx
68 Colony Park Apartments 0000 Xxxx Xxxxxxxxx
73 The Waterfront 0000 Xxxxxxxxxxx Xxxxxxxxx
75 Ken's Korner Shopping Center 00000 Xxxxx Xxxxx 000
76 Metropolitan Apartments 000 Xxxxxxxx Xxxxxx
84 Capital Self Storage - Mechanicsburg 0000 Xxxx Xxxxxxx Xxxx
86 Xxxxx Fargo 000 Xxxxx Xxxxxxxx Xxxxxx
00 Xxxxxxxxx - Xxxxxx 0000 Xxxxx Xxx Xxxxxxx Xxxxxxx Xxxx
88 Southampton 0000 Xxxxxx Xxxxx
89 CVS - Nashville 000 Xxxxx Xxx Xxxxx Xxxxxx
00 Xxxxxx - Xxxxxx 0000 Xxxxx Xxxx
92 Capital Self Storage - Enola 00 Xxxxxxxx Xxxxxx
95 Tropical Village Apartments 000 Xxxx Xxxxxx Xxxxxx
100 Woischke MHP 00000 Xxxxxxxxx Xxxx
103 Capital Self Storage - Dover 0000X Xxxxxxxx Xxxx
104 Capital Self Storage - Hanover 000 Xxxx Xxxxxxx Xxxxxx
108 Best Western - Amsterdam 00 Xxxxxx Xxxxxx
000 Xxxxx Xxxx Xxxxx Apartments 31,37, 43, 00 Xxxxxxxx Xxxx; 44, 00 Xxxxx Xxxx; and 0000 Xxxxxxxx Xxxxxx
115 Liberty Point 0000-0000 Xxxxxxx Xxxxxx, 0-0 Xx. Xxxxx Xxxxx,
0000-0000 Xxxxxx Xxxxxx, 3422-3432 Xxxxx Xxxxxx
000 Xxxxxxx Xxxxxxx 00 Xxxx Xxxx
119 Xxxxx Plaza 2449 XxXxxxxx Booth Road
120 Alcom Industrial 00 Xxxxxxxxxx Xxxx
REMAINING
MORTGAGE LOAN NUMBER CITY STATE ZIP CODE CUT-OFF DATE BALANCE MONTHLY P&I PAYMENT MORTGAGE RATE TERM TO MATURITY
-------------------- ---------------- ----- -------- -------------------- ------------------- ------------- ----------------
1 Xxx Xxxx XX 00000 145,894,000.00 703,237.79 5.70500 000
0 Xxxxxxxxxx XX 00000 105,870,750.53 698,116.14 6.90000 119
9 Xxxxxxxx Xxxxxxx XX 00000 52,700,000.00 254,247.00 5.71000 120
10 Xxx Xxxxx XX 00000 40,000,000.00 230,821.66 5.58000 119
11 Various NY Various 37,250,000.00 234,862.73 6.49000 000
00 Xxxxx XX 00000 34,000,000.00 210,007.69 6.28000 120
14 Xxx Xxxxx XX 00000 31,500,000.00 184,553.99 5.80000 120
15 Xxxxxxxx XX 00000 26,700,000.00 159,418.46 5.99000 120
16 Various NY Various 25,883,000.00 159,366.08 6.25000 000
00 Xxxxx Xxxxx XX 00000 25,600,000.00 153,419.92 6.01000 000
00 Xxxxxxx XX 00000 23,350,000.00 140,639.42 6.07000 000
00 Xxxxxxx XX 00000 18,500,000.00 108,250.23 5.80000 118
23 Xxxxxxxx XX 00000 17,840,000.00 108,570.83 6.14000 000
00 Xxxxxx XX 00000 16,983,000.00 99,202.33 5.77000 000
00 Xxxxxxxxx XX 00000 14,730,116.75 87,110.47 5.86000 000
00 Xxxxxx XX 00000 11,000,000.00 65,385.86 5.92000 000
00 Xxxxxxxxx Xxxxx XX 00000 9,750,000.00 55,993.16 5.61000 000
00 Xxxxx Xxxxx XX 00000 9,700,000.00 46,714.93 5.70000 121
40 Xxxxxx Xxxx XX 00000 9,450,000.00 62,364.18 6.92000 121
53 Xxx Xxxx XX 00000 8,000,000.00 37,040.74 5.48000 121
54 Xxxxxxxxx XX 00000 7,500,000.00 47,500.75 5.82000 000
00 Xxxxxx-Xxxx XX 00000 7,317,000.00 44,104.60 6.05000 121
59 Xxxxxxxxx XX 00000 6,920,000.00 41,622.46 6.03000 119
61 Xxxxxxxx Xxxxxxx XX 00000 6,750,000.00 42,089.15 6.37000 000
00 Xxxxxxx Xxxxx XX 00000 6,159,358.60 34,280.81 5.25000 000
00 Xxxxxxxxx XX 00000 5,700,000.00 32,722.50 5.60000 116
75 Xxxxxxx XX 00000 5,492,857.62 33,792.94 6.23000 000
00 Xxx Xxxxxx XX 00000 5,376,606.24 30,966.22 5.59000 116
84 Xxxxxxxxxxxxx XX 00000 4,550,000.00 26,465.92 5.72000 000
00 Xxxxx Xxxxx XX 00000 4,200,000.00 20,227.08 5.70000 119
87 Xxxxxx XX 00000 3,868,000.00 20,392.96 6.24000 000
00 Xxxxxxxx XX 00000 3,750,000.00 22,991.93 6.21000 120
89 Xxxxxxxxx XX 00000 3,750,000.00 18,820.31 5.94000 120
90 Xxxxxx XX 00000 3,731,000.00 17,337.92 5.50000 000
00 Xxxxx XX 00000 3,550,000.00 20,649.23 5.72000 000
00 Xxxxxxxxxxx XX 00000 3,386,369.17 20,384.72 6.00000 000
000 Xxxx Xxxx XX 00000 2,993,646.48 18,228.32 6.12500 118
103 Xxxxx XX 00000 2,500,000.00 14,541.71 5.72000 120
104 Xxxxxxx XX 00000 2,400,000.00 13,960.04 5.72000 000
000 Xxxxxxxxx XX 00000 2,188,701.08 15,269.59 6.80000 116
111 Xxxxxxxxxxx XX 00000 2,025,000.00 12,114.87 5.98000 000
000 Xxxxxxxxxx XX 00000 1,700,000.00 10,115.98 5.93000 000
000 Xxxxxxxxxxx XX 00000 1,395,717.89 9,020.22 6.00000 82
119 Xxxxxxxxxx XX 00000 1,118,111.82 7,611.38 6.57000 000
000 Xxxxxxx XX 00000 1,000,000.00 8,574.23 6.25000 121
PRIMARY
MORTGAGE LOAN NUMBER MATURITY DATE REMAINING AMORTIZATION TERM INTEREST ACCRUAL BASIS ADMINISTRATIVE COST RATE SERVICING FEE
-------------------- ------------- --------------------------- ---------------------- ------------------------ -------------
1 1/11/2016 0 Act/360 0.02110 0.00
2 2/11/2036 359 Act/360 0.02110 0.00
9 3/11/2016 0 Act/360 0.02110 0.00
10 2/11/2016 0 Act/360 0.02110 0.00
11 4/11/2016 0 Act/360 0.02110 0.00
12 3/11/2016 360 Act/360 0.02110 0.00
14 3/11/2016 0 Act/360 0.02110 0.00
15 3/11/2016 0 Act/360 0.02110 0.00
16 2/11/2016 360 Act/360 0.02110 0.00
17 3/11/2016 0 Act/360 0.02110 0.00
18 4/11/2016 0 Act/360 0.02110 0.00
20 1/11/2016 0 Act/360 0.02110 0.00
23 2/11/2016 360 Act/360 0.02110 0.00
24 2/11/2016 0 Act/360 0.02110 0.00
26 2/11/2016 359 Act/360 0.02110 0.00
33 4/11/2016 360 Act/360 0.02110 0.00
38 2/11/2016 0 Act/360 0.02110 0.00
39 4/11/2016 0 Act/360 0.02110 0.00
40 4/11/2016 360 Act/360 0.02110 0.00
53 4/11/2016 0 Act/360 0.02110 0.00
54 3/11/2016 300 Act/360 0.02110 0.00
55 4/11/2016 360 Act/360 0.02110 0.00
59 2/11/2016 360 Act/360 0.02110 0.00
61 3/11/2016 360 Act/360 0.02110 0.00
68 8/11/2015 353 Act/360 0.02110 0.00
73 11/11/2015 360 Act/360 0.02110 0.00
75 2/11/2016 359 Act/360 0.02110 0.00
76 11/11/2015 356 Act/360 0.02110 0.00
84 3/11/2016 360 Act/360 0.02110 0.00
86 2/11/2016 0 Act/360 0.02110 0.00
87 3/11/2016 0 Act/360 0.02110 0.00
88 3/11/2016 360 Act/360 0.02110 0.00
89 3/11/2016 0 Act/360 0.02110 0.00
90 11/11/2015 0 Act/360 0.02110 0.00
92 3/11/2016 360 Act/360 0.02110 0.00
95 11/11/2015 356 Act/360 0.02110 0.00
100 1/11/2016 358 Act/360 0.02110 0.00
103 3/11/2016 360 Act/360 0.02110 0.00
104 3/11/2016 360 Act/360 0.02110 0.00
108 11/11/2015 296 Act/360 0.02110 0.00
111 2/11/2016 360 Act/360 0.02110 0.00
115 3/11/2016 360 Act/360 0.02110 0.00
118 1/11/2013 298 Act/360 0.02110 0.00
119 2/11/2016 299 Act/360 0.02110 0.00
120 4/11/2016 180 Act/360 0.02110 0.00
ARD
MORTGAGE LOAN NUMBER GROUND LEASE? MORTGAGE LOAN SELLER DEFEASANCE MORTGAGE LOAN
-------------------- -------------------- -------------------- -------------------------------------------------- -------------
1 Leasehold UBS Defeasance N/A
2 Fee Simple UBS Defeasance Yes
9 Fee Simple UBS Yield Maintenance, Defeasance or Yield Maintenance N/A
10 Fee Simple/Leasehold UBS Defeasance N/A
11 Fee Simple UBS Defeasance N/A
12 Fee Simple UBS Defeasance N/A
14 Fee Simple UBS Defeasance N/A
15 Fee Simple UBS Defeasance N/A
16 Fee Simple UBS Defeasance N/A
17 Fee Simple UBS Defeasance N/A
18 Fee Simple UBS Defeasance N/A
20 Fee Simple UBS Defeasance N/A
23 Fee Simple UBS Defeasance N/A
24 Fee Simple UBS Defeasance N/A
26 Fee Simple UBS Defeasance N/A
33 Fee Simple UBS Defeasance N/A
38 Fee Simple UBS Defeasance N/A
39 Leasehold UBS Defeasance N/A
40 Fee Simple UBS Defeasance N/A
53 Fee Simple UBS Defeasance N/A
54 Fee Simple UBS Defeasance N/A
55 Fee Simple UBS Defeasance N/A
59 Fee Simple UBS Defeasance N/A
61 Fee Simple UBS Defeasance N/A
68 Fee Simple UBS Defeasance N/A
73 Fee Simple UBS Defeasance N/A
75 Fee Simple UBS Defeasance N/A
76 Fee Simple UBS Defeasance N/A
84 Fee Simple UBS Defeasance N/A
86 Fee Simple UBS Defeasance N/A
87 Fee Simple UBS Defeasance N/A
88 Fee Simple UBS Yield Maintenance N/A
89 Fee Simple UBS Defeasance N/A
90 Fee Simple UBS Defeasance N/A
92 Fee Simple UBS Defeasance N/A
95 Fee Simple UBS Defeasance N/A
100 Fee Simple UBS Defeasance N/A
103 Fee Simple UBS Defeasance N/A
104 Fee Simple UBS Defeasance N/A
108 Fee Simple UBS Defeasance N/A
111 Fee Simple UBS Defeasance N/A
115 Fee Simple UBS Defeasance N/A
118 Fee Simple UBS Defeasance N/A
119 Fee Simple UBS Defeasance N/A
120 Fee Simple UBS Defeasance N/A
MORTGAGE LOAN NUMBER ANTICIPATED REPAYMENT DATE ARD SPREAD CROSS COLLATERALIZED MORTGAGE LOAN SELLER LOAN ID
-------------------- -------------------------- ------------------ -------------------- ----------------------------
1 N/A N/A No UBS15
2 2/11/2016 2% + Xxxxxxxx Xxxx Xx XXX0
0 X/X X/X Xx 00000
10 X/X X/X Xx 00000
00 X/X X/X No 11183
12 X/X X/X Xx 00000
00 X/X X/X No 11140
15 N/A N/A No 11178
16 X/X X/X Xx 00000
00 X/X X/X No 11078
18 X/X X/X Xx 00000
00 X/X X/X No 11157
23 N/A N/A No 11094
24 X/X X/X Xx 00000
00 X/X X/X No 11093
33 N/A N/A No UBS2
38 X/X X/X Xx 00000
00 X/X X/X No 10967
40 N/A N/A No UBS1
53 X/X X/X Xx 00000
00 X/X X/X No 11103
55 N/A X/X Xx XXX00
00 X/X X/X Xx 00000
61 X/X X/X Xx 00000
00 X/X X/X No 10953
73 X/X X/X Xx 00000
00 X/X X/X No 10926
76 X/X X/X Xx 00000
00 X/X X/X No 11124
86 X/X X/X Xx 00000
00 X/X X/X No 11057
88 X/X X/X Xx 00000
00 X/X X/X No 11110
90 N/A N/A No UBS25
92 X/X X/X Xx 00000
00 X/X X/X No 11000
000 X/X X/X Xx 0000
000 X/X X/X No 11126
000 X/X X/X Xx 00000
000 X/X X/X No 10916
000 X/X X/X Xx 00000
000 X/X X/X No 11031
000 X/X X/X Xx 00000
000 X/X X/X No 11085
120 N/A N/A No UBS21
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 the Cut-off Date.
(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 in the origination of comparable mortgage loans by
the Seller, 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 (except in the case of the 000 Xxxxxxx Xxxxxx
Loan Combination, which may, pursuant to the related Co-Lender Agreement,
require notice to one or more rating agencies or another lender which, if
required, has already been provided); 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
1
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 liable 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 material 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 and
covenants 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, instead of any breach described in clause (B) of this
paragraph, such entity (or individual) may instead be liable for
liabilities, costs, losses, damages, expenses and claims resulting from a
breach of the obligations and indemnities of the related mortgagor under
the related Mortgage Loan documents relating to hazardous or toxic
substances, radon or compliance with environmental laws.
(vi) No Right of Rescission. As of the date of origination,
subject to the limitations and exceptions as to enforceability set forth in
paragraph (v) above, there was no valid offset, defense, counterclaim or
right to rescission, abatement of amounts due under the Mortgage Note or
diminution of amounts due under the Mortgage Note with respect to any of
the related Mortgage Note, Mortgage(s) or other agreements executed in
connection with such Mortgage Loan; and, as of the Closing Date, subject to
the limitations and exceptions as to enforceability set forth in paragraph
(v) above, there is no valid offset, defense, counterclaim or right of
rescission, abatement of amounts due under the Mortgage Note or diminution
of amounts due under the Mortgage Note with respect to any of the related
Mortgage Note, Mortgage(s) or other agreements executed in connection with
such Mortgage Loan.
(vii) Assignments. The assignment of the related Mortgage(s) and
Assignment(s) of Leases to the Trustee (or, in the case of the Outside
Serviced Trust Mortgage Loan, to the related Outside Serviced 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
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).
2
(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
(other than any tenant owned improvements), 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) exceptions and exclusions specifically referred to
in the related lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy or title policy commitment); (D)
other matters to which like properties are commonly subject, (E) the rights
of tenants (as tenants only) under leases (including subleases) pertaining
to the related Mortgaged Property; (F) condominium declarations of record
and identified in the related lender's title insurance policy (or, if not
yet issued, identified in a pro forma title policy or title policy
commitment); and (G) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group; provided
that, in the case of the 000 Xxxxxxx Xxxxxx Mortgage Loan, such Mortgage
also secures the other mortgage loan(s) in the 000 Xxxxxxx Xxxxxx Loan
Combination. 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, 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.
(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
3
the Cut-off Date became due and payable in respect of, and materially
affect, any related Mortgaged Property have been paid or are escrowed for
or are not yet delinquent, and the Seller knows of no unpaid tax,
assessment, ground rent, water charges or sewer rent, which, in all such
cases, were directly related to the 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, (and subject to any rights of the
lessor under any related Ground Lease) the related Mortgage Loan documents
provide that any condemnation awards will be applied (or, at the discretion
of the mortgagee, will be applied) 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 (or, in the case of the 000 Xxxxxxx
Xxxxxx Mortgage Loan, in the original principal amount of the 000 Xxxxxxx
Xxxxxx Loan Combination) after all advances of principal, subject only to
Permitted Encumbrances and, in the case of a Mortgage Loan that is part of
a Loan Combination, further subject to the fact that the related Mortgage
also secures the related Non-Trust Mortgage Loan(s) (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 is in full force and effect, all premiums have been
paid, is freely assignable and will inure to the benefit of the Trustee
(or, in the case of the Outside Serviced Trust Mortgage Loan, the benefit
of the related Outside Serviced 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
under such title insurance; 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 the related
Mortgaged Property, and (C) that the land shown on the survey materially
conforms to the legal description of the related Mortgaged Property.
4
(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 an investment grade
tenant or a tenant representing less than 10% of the net operating income
with respect to the related Mortgaged Property 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 value of the improvements located on such Mortgaged Property and
(2) the outstanding principal balance of such Mortgage Loan or the portion
thereof allocable to such Mortgaged Property) and, if applicable, the
related hazard insurance policies or certificates of insurance 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 an
investment grade tenant or a tenant representing less than 10% of the net
operating income with respect to the related Mortgaged Property is
permitted to insure or self-insure under a lease) and the related loan
documents provide (in either a general cost and expense recovery provision
or a specific provision with respect to recovery of insurance costs and
expenses) 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; 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:VII" from A.M. Best Company or at least "BBB+" (or equivalent) from a
nationally recognized statistical rating agency (or, with respect to
certain blanket insurance policies, such other ratings as are in compliance
with S&P's applicable criteria 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 applied (or, at the discretion
of the mortgagee, will be applied) either to the repair or restoration of
all or part of the related Mortgaged Property or the reduction of the
outstanding principal balance of such Mortgage Loan; provided that the
related Mortgage Loan documents may entitle the related Mortgagor to any
portion of such proceeds remaining after completion of the repair or
restoration of the related Mortgaged Property or payment of amounts due
under such Mortgage Loan. Notwithstanding anything to the contrary
5
in this paragraph (xii), with regard to insurance for acts of terrorism,
any such insurance and the amount thereof may be limited by the commercial
availability of such coverage, whether the mortgagee may reasonably require
such insurance, certain limitations with respect to the cost thereof and/or
whether such hazards are at the time commonly insured against for property
similar to the related Mortgaged Property. 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. The Seller has not 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, an Actual/Actual 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 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 and, if such Mortgage Loan is part
of a Loan Combination, the other mortgage loan(s) that are part of such
Loan Combination, as applicable).
6
(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 860G-2(b), (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 transaction screens, or one or more updates of a previously
conducted environmental assessment or transaction screen, were performed by
an environmental consulting firm independent of the Seller and the Seller's
Affiliates with respect to each related Mortgaged Property during the
12-month period preceding the Cut-off Date, and the Seller, having made no
independent inquiry other than to review the report(s) prepared in
connection with the assessment(s), transaction screen(s) and/or update(s)
referenced herein, has no knowledge of, and has not received actual notice
of, any material and adverse environmental condition or circumstance
affecting such Mortgaged Property that was not disclosed in such report(s);
all of such environmental site assessments and transaction screens met ASTM
requirements to the extent set forth in such report; and none of the above
referenced environmental reports reveal any circumstances or conditions
that are in violation of any applicable environmental laws, or if such
report does reveal such circumstances, then (1) the same have been
remediated in all material respects, (2) sufficient funds have been
escrowed or a letter of credit, guaranty or other instrument has been
delivered for purposes of covering the estimated costs of such remediation,
(3) the related Mortgagor or other responsible party is currently taking
remedial or other appropriate action to address the environmental issue
consistent with the recommendations in such site assessment, (4) the cost
of the environmental issue relative to the value of such Mortgaged Property
was de minimis, or (5) environmental insurance has been obtained.
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,
7
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 successors 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
of 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 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 a fee simple interest and/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
8
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 or any direct controlling
interest in the Mortgagor is directly encumbered in connection with
subordinate financing; and except in the case of a Mortgage Loan that is
part of a Loan Combination (for which such consent has been granted with
respect to the other mortgage loan(s) in such Loan Combination), 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 (except that each Mortgaged Property
securing a Mortgage Loan that is part of a Loan Combination also secures
the other mortgage loan(s) in such Loan Combination); 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. The Mortgage (under either specific or
general expense provisions) requires the Mortgagor to pay all reasonable
fees and expenses associated with securing the consent or approval of the
holder of the Mortgage for all actions involving the transfer of interest
in such Mortgagor requiring such consent or approval under the Mortgage.
(xxvii) Mortgagor Concentration. Except in the case of the
Mortgage Loans listed on Schedule I, 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 (if any) as to which,
since the latest date any related due diligence materials were delivered to
CWCapital Investments LLC (or its designee), there has been (in writing)
given, made or consented to a material alteration,
9
material modification or material assumption of the terms of the related
Mortgage Note, Mortgage(s) or any related loan agreement and/or lock-box
agreement.
(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 material
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) delivery of substitute real property collateral, or (D) payment
of a release price equal to at least 125% of the amount of such Mortgage
Loan allocated to the related Mortgaged Property subject to the release or
(E) the satisfaction of certain underwriting and legal requirements which
the Seller required in the origination of comparable mortgage loans.
(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 of such Mortgage Loan customarily performed by such originator
in the origination of comparable mortgage loans 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
10
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 $15 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 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
11
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.
(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, except that a Mortgage Loan that is part of a Loan
Combination is secured by one or more Mortgaged Properties that also secure
the related Non-Trust Mortgage Loan(s). The security interest/lien on each
material item of collateral for such Mortgage Loan has been assigned to the
Trustee (or, in the case of the Outside Serviced Trust Mortgage Loan, to
the related Outside Serviced 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 (or, in the
case
12
of the Outside Serviced Trust Mortgage Loan, to the related Outside
Serviced 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) Servicing and Collection Practices. The servicing and
collection practices used by the Seller or, to the Seller's knowledge, 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.
(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 (or, in the case
of the Outside Serviced Trust Mortgage Loan, to the related
Outside Serviced 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 (or,
in the case of the Outside Serviced Trust Mortgage Loan, by
the related Outside Serviced 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;
13
(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 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
14
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 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
15
Loan equal to at least 110% of the allocated loan amount of the portion of
the Mortgaged Property being released, (3) an independent accounting firm
(which may be the Mortgagor's independent accounting firm) certify that the
Defeasance Collateral is sufficient to make such payments, (4) such
Mortgage Loan be assumed by a successor entity designated by the holder of
such Mortgage Loan (or by the Mortgagor with the approval of such lender),
and (5) counsel provide an opinion letter to the effect that the Trustee
(or, in the case of the Outside Serviced Trust Mortgage Loan, the related
Outside Serviced Trustee) has a perfected security interest in such
Defeasance Collateral prior to any other claim or interest.
(xlix) Primary Servicing Rights. Except with respect to the
Outside Servicers, 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 the Pooling and
Servicing Agreement with respect to primary servicers that are to be
sub-servicers of the Master Servicer, (B) as has been conveyed to the
Master Servicer, or (C) as has been terminated.
(l) Mechanics' and Materialmen's Liens. As of origination and, to
the Seller's actual 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. Subject to any business day convention imposed by
the related loan documents, the Due Date for such Mortgage Loan is
scheduled to be the first day, the seventh day, the tenth 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 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.
16
(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 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 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.
17
SCHEDULE I - SCHEDULE OF EXCEPTIONS
-----------------------------------
LB-UBS 2006-C3
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
40 (v) Xxxx Building The loan is full recourse.
61 Loan Document Xxxxxxxxx 00xx
Xxxxxx Xxxxxx
120 Alcom Industrial
000 Xxxxx Xxxxx
--------------------------------------------------------------------------------
90 (v) Xxxxxx-Xxxxxx There is no indemnity and
guaranty for nonrecourse
9 Loan Document 1 Xxxxx Xxxxxxx carveouts by any guarantor.
Status
--------------------------------------------------------------------------------
68 (v) Colony Park The loan is full recourse as of
origination, but such recourse
Loan Document decreases in an amount equal to
Status 25% of the original lead balance
per annum. The loan becomes full
recourse again if the debt
service coverage ratio on a
trailing 12 month basis for 2
consecutive quarters falls below
1.10x.
--------------------------------------------------------------------------------
N/A (v) All Properties With respect to the nonrecourse
Loan Document carveout guarantee concerning
Status fraud, certain of the guarantors
have only agreed to be liable 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 mortgagor.
With respect to the nonrecourse
carveout covering misapplication
or misappropriation, some
guarantors have agreed to cover
"misapplication or conversion" or
"misappropriation or
Sch I-1
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
conversion" and some such
non-recourse carve-outs apply
only during the continuance of
an event of default.
--------------------------------------------------------------------------------
100 (viii) Woischke MHP The property is comprised of 4
distinct parcels, one of which
First Lien has significant issues about its
proper legal description. This
could affect the location (and
possibly borrower's ownership) of
two mobile home pads. Although a
separate pari passu mortgage was
placed on the parcel on which
these pads are located, income
from these pads was not included
in the underwriting for the
loan.
--------------------------------------------------------------------------------
87 (ix) Walgreens Humble The mortgaged property lies in a
tax lot that includes land other
Taxes and than the mortgaged property.
Assessments According to the tax, the
mortgaged property will be shown
as a separate tax lot for the
2006 tax year and subsequent
years.
--------------------------------------------------------------------------------
11 (xi) Queensbury A partial survey, which included
all improvements, was provided at
Title Insurance closing. A complete survey for
the Meadowbrook Gardens property
was not provided at closing but
is required to be provided within
90 days post-closing. The lender
may declare an event of default
upon the borrower's failure to
timely provide the complete
survey.
--------------------------------------------------------------------------------
18 (xi) Maple Hill There is a regulatory agreement
Apartments of record that obligated the
Title Insurance developer to lease approximately
20% of the units to low income
families until certain conditions
were satisfied. According to the
related borrower, those
conditions have been satisfied.
Although the title company did
not take an exception for this
regulatory agreement, no proof of
its termination has been
provided. If the borrower does
not provide reasonable evidence
of the termination of the
agreement within 90
Sch I-2
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
days from the origination date of
the loan, the loan will be fully
recourse to the borrower and the
sponsor for any losses of the
lender related thereto.
--------------------------------------------------------------------------------
87 (xii) Walgreens-Humble Tenant self insures.
Property Xxxxxx- Xxxxxx
90 Insurance
--------------------------------------------------------------------------------
87 (xii) Walgreens-Humble Business interruption insurance
is not required because rent does
Property not xxxxx in the event of a
Insurance casualty.
--------------------------------------------------------------------------------
61 (xii) Northwest 36th Borrower's commercial general
Street liability insurance may be
Property maintained with Xxxxxx, which is
Insurance rated A-XIII by AM Best and/or
Ohio Casualty, which is rated BBB
by Standard and Poors and A-XI by
AM Best, until the date, if ever,
upon which the applicable
insurance company's rating is
downgraded below the rating set
forth above, at which point
borrower shall obtain insurance
with an alternative carrier having
a minimum rating equal to that
specified above.
--------------------------------------------------------------------------------
88 (xii) Southampton Borrower's casualty insurance may
be maintained with Ohio Casualty,
Property which is rated BBB by Standard
Insurance and Poors and A-XI by AM Best
until the earlier of (1)
expiration of the existing policy
or (2) the date upon which Ohio
Casualty's rating is downgraded
below the rating set forth above.
--------------------------------------------------------------------------------
Sch I-3
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
1 (xii) Certain The business interruption policy
Properties, is in an amount sufficient to
Property including 888 provide proceeds which will cover
Insurance Seventh Avenue the actual loss of income
sustained during the actual
period of restoration.
--------------------------------------------------------------------------------
N/A (xii) All Properties With respect to certain mortgage
loans, the lender accepted
Property comprehensive liability insurance
Insurance in an amount less than that
required by the loan documents,
provided, that this exception does
not apply to the 000 Xxxxxxx
Xxxxxx, Xxxxxxx Xxxxx II,
University Tower, 1 Xxxxx Xxxxxxx
Drive, 0000 Xxxxxx Xxxxxx, Advance
Tower and Rochester Apartment
loans, provided further, 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.
--------------------------------------------------------------------------------
1 (xvi) 000 Xxxxxxx Xxxxxx There is a subordinate B note
secured by the mortgaged property.
Subordinate Debt
--------------------------------------------------------------------------------
2 (xvi) Station Place II The borrowers are permitted to
procure mezzanine debt subject to
9 Subordinate Debt 1 Xxxxx Xxxxxxx the terms of the loan
Drive documents.
90 Xxxxxx-Xxxxxx
11 Queensbury
15 Rio-Sante Fe
--------------------------------------------------------------------------------
24 (xvi) Westwood The loan documents permit an
intracompany loan in a principal
Subordinate Debt amount not to exceed $300,000
secured by a pledge of indirect
membership interests in borrower
upon satisfaction of conditions.
--------------------------------------------------------------------------------
N/A (xvi) All Properties The loan documents allow the
borrower
--------------------------------------------------------------------------------
Sch I-4
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
to incur certain trade payables
Subordinate Debt and equipment financing up to
a predetermined amount, which is
generally less than or equal to
5% of the loan amount.
--------------------------------------------------------------------------------
1 (xix) 888 Seventh There is no natural person who
Avenue is an indemnitor under the
Environmental environmental indemnity
90 Conditions Xxxxxx-Xxxxxx agreement.
9 1 Xxxxx Xxxxxxx
--------------------------------------------------------------------------------
2 (xxv) Station Place II The borrowers are permitted to
procure mezzanine debt subject to
9 Due-on- 1 Xxxxx Xxxxxxx the terms of the loan
Encumbrance Drive documents.
90 Xxxxxx-Xxxxxx
11 Queensbury
15 Rio Sante Fe
--------------------------------------------------------------------------------
24 (xxv) Westwood The loan documents permit an
intracompany loan in a principal
Due-on- amount not to exceed $300,000
Encumbrance secured by a pledge of indirect
membership interests in borrower
upon satisfaction of conditions.
--------------------------------------------------------------------------------
N/A (xxv) All Properties The loan documents allow the
borrower to incur certain trade
Due-on- payables and equipment
Encumbrance financing up to a predetermined
amount, which is generally less
than or equal to 5% of the loan
amount.
--------------------------------------------------------------------------------
Sch I-5
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
The borrower and all controlling
9 (xxvi) 1 Xxxxx Xxxxxxx and non-controlling owners of the
borrower have substantial
Due-on-Sale flexibility to transfer interests.
--------------------------------------------------------------------------------
Interests in borrower may be
90 (xxvi) Xxxxxx-Xxxxxx transferred to any entity in
which UBS Real Estate Investments
Due-on-Sale Inc. ("UBSREI") or UBS AG (or any
of their respective affiliates)
holds any interests or
investment in and to any entity
in which UBSREI or UBS AG is
merged into or consolidated
with. Additionally, UBSREI may,
without the consent of lender,
transfer or assign, or cause the
transfer or assignment of, all or
any portion of the direct or
indirect interests in borrower or
may permit a transfer, directly or
indirectly, of any direct or
indirect interest in UBSREI or
borrower, to (x) any fund advised
by UBSREI or an "affiliate" of
UBSREI, or (y) any other entity
as long as, in the case of this
clause (y) only, UBSREI, an
affiliate of UBSREI, or a fund
advised by UBSREI or an affiliate
of UBSREI either directly or
indirectly (1) "controls" such
entity or (2) is empowered to
conduct, (or directly or
indirectly controls an entity
that is empowered to conduct),
all day-to-day management of
the Mortgaged Property and,
subject to obtaining the consent
of other persons or entities that
may have an interest therein, has
the right to participate in (or
directly or indirectly controls
an entity that has the right to
participate in), all day-to-day
management of the Mortgaged
Property.
Additionally, nothing in the loan
documents restricts the right of
UBSREI to engage in repurchase
transactions or any pledge,
hypothecation, or re-hypothecation
transaction with respect to its
indirect ownership of the
partnership interests in borrower.
--------------------------------------------------------------------------------
Sch I-6
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
76 (xxvi) Metropolitan The borrower has the right to
Apartments effectuate a tenants in common
Due-on-Sale roll up provided that the
conditions set forth in the deed
of trust are satisfied.
--------------------------------------------------------------------------------
14 (xxvi) University Tower Tranfers for estate planning
purposes and in the event of the
Due-on-Sale death of Xxxxx Xxxxxxx are
allowable transfers provided
rating agency guidelines are
satisfied and a substitute
guarantor/controlling member is
approved.
--------------------------------------------------------------------------------
15 (xxvi) Rio Santa Fe GEBAM, Inc. (the equity entity
Apartments owned by GEEC) has the right to
Due-on-Sale purchase the interest in borrower
held by Xxxx Xxxxxx and/or Xxxxxx
Xxxx without consent or fee,
provided the borrower structure
must conform to a typical conduit
structure and if there is a
change in day to day effective
control a substitute guarantor
must be provided for the
obligation of the key principals
under the carve-out guaranty and
the hazardous substances
indemnity agreement.
--------------------------------------------------------------------------------
88 (xxvi) Southampton The loan documents permit Xxxxxxx
Xxxxxx to acquire the interests
Due-on-Sale of Xxxxxx & Associates, Inc. in
the borrower. As Xxxxxx is the
day to day manager, if such
control is changed Berlin and
Shanri Holdings must then become
substitute guarantors on the
conditions set forth in the loan
documents.
--------------------------------------------------------------------------------
N/A (xxvi) All Properties Most of the loan documents
provide that transfers of direct
Due-on-Sale and/or indirect interest in the
related mortgagor and/or the
related mortgaged property upon
the death of any natural person
which holds such interest(s) will
not constitute a transfer of
direct and/or indirect interest
in mortgagor and/or mortgaged
property so long as, among other
things as set
--------------------------------------------------------------------------------
Sch I-7
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
forth in loan documents: (i) all
of the direct and/or indirect
interests of such decedent in the
mortgagor and/or the mortgaged
property are held and remain the
property of the legal
representative of such decedent's
estate; (ii) the mortgaged
property continues to be managed
in a manner acceptable to the
mortgagee and (iii) within
thirty (30) days of such death,
mortgagor delivers notice thereof
to the mortgagee and thereafter
provides the mortgagee with such
information as may be reasonably
requested by the mortgagee as to
the continued management of the
mortgaged property.
--------------------------------------------------------------------------------
1 (xxvii) 000 Xxxxxxx Xxxxxx Mortgage loan, alone or together
with other mortgage loans made to
Mortgagor Station Place II the same mortgagor or to an
2 Concentration affiliate of such mortgagor,
represents more than 5%
of the aggregate cut-off
date balance of the
mortgage pool.
--------------------------------------------------------------------------------
87 (xxxi) Walgreens Humble A Storm Water Quality Permit was
issued, but is not in the
Qualifications; borrower's name. The borrower is
Licensing; required to use good faith
Zoning efforts to obtain a
Storm Water Quality
Permit in borrower's
name as expeditiously as
possible.
--------------------------------------------------------------------------------
90 (xxxi) Xxxxxx - Xxxxxx The borrower is not qualified to
do business in the state in which
33 Qualifications; 5435 Balboa the property is located. The
Licensing; borrower is required to obtain
Zoning such qualification within the
time frame set forth in the loan
documents, if applicable
--------------------------------------------------------------------------------
115 (xxxi) Liberty Point The property is legal
nonconforming as to setbacks,
Qualifications; parking and lot size with no
Licensing; clear right to rebuild after a
Zoning casualty or condemnation. A
principal of the borrower
provided an indemnity against
losses, costs and damages that
may result if borrower is not
permitted to rebuild all or any
--------------------------------------------------------------------------------
Sch I-8
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
portion of the improvements after
a casualty, as they exist at the
property on the date of closing
(including, without limitation,
restoring the same number of
rental units that exist on the
date hereof).
--------------------------------------------------------------------------------
12 (xxxi) Dacra Portfolio There are various open building
permits with respect to certain
Qualifications; work performed at the Mortgaged
Licensing; Property, some of which permits
Zoning were marked "final" by the City
of Miami and duly closed, and no
certificates of completion and/or
certificates of occupancy may
exist with respect to that work
(which work does not pertain to
the actual building shells). It
is the tenant's obligation to
obtain permits. The borrower
acknowledged and agreed to (x)
finalize and close out all such
open permits described in the
preceding sentence, (y) use best
efforts to obtain (or cause to be
obtained) all such certificates
of completion and/or certificates
of occupancy described in the
preceding sentence, and (z) once
obtained, maintain all such
permits, certifications of
completion and/or certificates of
occupancy, that are required for
the legal use, occupancy and
operation by any tenants of the
Mortgaged Property. The loan is
recourse to the extent lender
suffers any losses as a result of
a breach of any of the foregoing.
--------------------------------------------------------------------------------
53 (xxxi) 151 West 25th A small portion of the building
Street is used for residential
Qualifications; purposes. Currently, there is no
Licensing; residential certificate of
Zoning occupancy and certain work need
to be completed at the property
in order to obtain the
residential certificate of
occupancy. A reserve was
established, the balance of which
shall not be returned to the
borrower until such time as the
residential certificate of
occupancy is obtained.
--------------------------------------------------------------------------------
Sch I-9
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
Borrower acknowledges and agrees
to (x) use best efforts to obtain
(or cause to be obtained) the
residential certificate of
occupancy in accordance with the
loan documents, and (y) once
obtained, maintain the
residential certificate of
occupancy that is required for
the legal use, occupancy and
operation by residential tenants
of the property. The loan is
recourse to the extent lender
suffers any losses as a result of
a breach of any of the foregoing.
--------------------------------------------------------------------------------
20 (xxxi) 000 Xxxxxxx Two to three of the tenants at
the property do not have a zoning
Qualifications; inspection permit for their
Licensing; respective spaces. It is the
Zoning tenant's obligation to obtain
permits. Borrower has agreed to
use its best efforts to obtain
the zoning inspection permits and
deliver them to lender on or
before June 30, 2006. In
furtherance of the same, the
borrower has agreed to diligently
and continuously pursue obtaining
zoning inspection permits, and
further agreed to pay all costs
and expenses in connection with
the foregoing. Borrower has made
a representation that
notwithstanding the foregoing,
all certifications, permits,
licenses, authorizations and
approvals, including, without
limitation, certificates of
completion and occupancy permits
required for the legal use,
occupancy and operation of the
property have been obtained and
are in full force and effect
(including, without limitation,
any such certifications, permits,
licenses, authorizations and
approvals required with respect
to the use of the property by
any tenants, franchisors or
operators). The loan is recourse
to the extent lender suffers any
losses as a result of the failure
of borrower to disclose a
material fact with respect to the
foregoing.
--------------------------------------------------------------------------------
Sch I-10
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
68 (xxxi) Colony Park Certificates of occupancy are not
available. Absence of the
Qualifications; certificates of occupancy is not
Licensing; a violation according to local
Zoning officials and the loan is
recourse to a principal for loss,
costs or damages resulting
therefrom.
--------------------------------------------------------------------------------
120 (xxxi) Alcom Industrial Certificates of occupancy are not
available. Absence of the
Qualifications; certificates of occupancy is not
Licensing; a violation according to local
Zoning officials and the loan is full
recourse.
--------------------------------------------------------------------------------
92 (xxxi) Capital Self Some of the self storage
Storage Enola buildings do not have
Qualifications; certificates of occupancy,
104 Licensing; Capital Self although there is no violation
Zoning Storage Dover according to local officials for
those that are missing. The loan
is recourse to a principal for any
loss, cost or damage for missing
certificates of occupancy.
--------------------------------------------------------------------------------
33 (xxxi) 5435 Balboa The requirement to provide
certificates of occupancy is a
Qualifications; post-closing requirement. The
Licensing; mortgage loan is recourse to the
Zoning borrower for losses in
connection with the missing
certificate of occupancy.
--------------------------------------------------------------------------------
10 (xxxiii) 0000 Xxxxxx Xxxxxx The borrowers are under common
control. A non-consolidation
Single Purpose 5435 Balboa opinion was obtained with respect
33 Entity to the 5435 Balboa loan but not
the 0000 Xxxxxx Xxxxxx mortgage
loan.
--------------------------------------------------------------------------------
N/A (xxxiii) All Properties Certain borrowers may be recycled
entities.
Single Purpose
Entity
--------------------------------------------------------------------------------
Sch I-11
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
87 (xlii) Walgreens Humble A Storm Water Quality Permit was
issued, but is not in the
Licenses, borrower's name. The borrower is
Permits and required to use good faith
Authorizations efforts to obtain a Storm Water
Quality Permit in borrower's
name as expeditiously as
possible.
--------------------------------------------------------------------------------
90 (xlii) Xxxxxx - Xxxxxx The borrower is not qualified to
do business in the state in which
Licenses, the property is located. The
Permits and borrower is required to obtain
Authorizations such qualification within the
time frame set forth in the loan
documents, if applicable.
--------------------------------------------------------------------------------
115 (xlii) Liberty Point The property is legal
nonconforming as to setbacks,
Licenses, parking and lot size with no
Permits and clear right to rebuild after a
Authorizations casualty or condemnation. A
principal of the borrower
provided an indemnity against
losses, costs and damages that
may result if borrower is not
permitted to rebuild all or any
portion of the improvements after
a casualty, as they exist at the
property on the date of closing
(including, without limitation,
restoring the same number of
rental units that exist on the
date hereof).
--------------------------------------------------------------------------------
12 (xlii) Dacra Portfolio There are various open building
permits with respect to certain
Licenses, work performed at the Mortgaged
Permits and Property, some of which permits
Authorizations were marked "final" by the City
of Miami and duly closed, and no
certificates of completion and/or
certificates of occupancy may
exist with respect to that work
(which work does not pertain to
the actual building shells). It
is the tenant's obligation to
obtain permits. The borrower
acknowledged and agreed to (x)
finalize and close out all such
open permits described in the
preceding sentence, (y) use best
efforts to obtain (or cause to be
obtained) all such certificates
of completion and/or
--------------------------------------------------------------------------------
Sch I-12
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
certificates of occupancy
described in the preceding
sentence, and (z) once obtained,
maintain all such permits,
certifications of completion
and/or certificates of
occupancy, that are required for
the legal use, occupancy and
operation by any tenants of the
Mortgaged Property. The loan is
recourse to the extent lender
suffers any losses as a result of
a breach of any of the foregoing.
--------------------------------------------------------------------------------
53 (xlii) 151 West 25th A small portion of the building
Street is used for residential
Licenses, purposes. Currently, there is no
Permits and residential certificate of
Authorizations occupancy and certain work need
to be completed at the property
in order to obtain the
residential certificate of
occupancy. A reserve was
established, the balance of which
shall not be returned to the
borrower until such time as the
residential certificate of
occupancy is obtained. Borrower
acknowledges and agrees to (x)
use best efforts to obtain (or
cause to be obtained) the
residential certificate of
occupancy in accordance with the
loan documents, and (y) once
obtained, maintain the
residential certificate of
occupancy that is required for
the legal use, occupancy and
operation by residential tenants
of the property. The loan is
recourse to the extent lender
suffers any losses as a result of
a breach of any of the foregoing.
--------------------------------------------------------------------------------
20 (xlii) 000 Xxxxxxx Two to three of the tenants at
the property do not have a zoning
Licenses, inspection permit for their
Permits and respective spaces. It is the
Authorizations tenant's obligation to obtain
permits. Borrower has agreed to
use its best efforts to obtain
the zoning inspection permits and
deliver them to lender on or
before June 30, 2006. In
furtherance of the same, the
borrower has agreed to
--------------------------------------------------------------------------------
Sch I-13
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
diligently and continuously
pursue obtaining zoning
inspection permits, and further
agreed to pay all costs and
expenses in connection with
the foregoing. Borrower has made
a representation that
notwithstanding the foregoing,
all certifications, permits,
licenses, authorizations and
approvals, including, without
limitation, certificates of
completion and occupancy permits
required for the legal use,
occupancy and operation of the
property have been obtained and
are in full force and effect
(including, without limitation,
any such certifications, permits,
licenses, authorizations and
approvals required with respect
to the use of the property by
any tenants, franchisors or
operators). The loan is recourse
to the extent lender suffers any
losses as a result of the failure
of borrower to disclose a
material fact with respect to the
foregoing.
--------------------------------------------------------------------------------
68 (xlii) Colony Park Certificates of occupancy are not
available. Absence of the
Licenses, certificates of occupancy is not
Permits and a violation according to local
Authorizations officials and the loan is
recourse to a principal for loss,
costs or damages resulting
therefrom.
--------------------------------------------------------------------------------
120 (xlii) Alcom Industrial Certificates of occupancy are not
available. Absence of the
Licenses, certificates of occupancy is not
Permits and a violation according to local
Authorizations officials and the loan is full
recourse.
--------------------------------------------------------------------------------
92 (xlii) Capital Self Some of the self storage
Storage Enola buildings do not have
Licenses, certificates of occupancy,
103 Permits and Capital Self although there is no violation
Authorizations Storage Dover according to local officials for
those that are missing. The loan
is recourse to a principal for
any loss, cost or damage for
missing certificates of
occupancy.
--------------------------------------------------------------------------------
Sch I-14
--------------------------------------------------------------------------------
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
33 (xlii) 5435 Balboa The requirement to provide
certificates of occupancy is a
Licenses, post-closing requirement. The
Permits and mortgage loan is recourse to the
Authorizations borrower for losses in
connection with the missing
certificate of occupancy.
--------------------------------------------------------------------------------
87 (xlvii) Walgreens Humble The Mortgaged Property lies in a
tax lot that includes land other
Tax Lot; than the Mortgaged Property.
Utilities According to information from the
borrower, the assessor will
split-out the Mortgaged Property
as a separate tax lot for the
2006 tax year and subsequent
years. Tenant pays real estate
taxes. At the closing of the
loan, the title company
collected the balance of
the tax payment currently due on
the entire tax lot. Additionally
the borrower has covenanted
to separate the tax parcels and
the loan is recourse to the
borrower for any taxes on any
other parcel included in the tax
xxxx that is not a part of the
collateral.
--------------------------------------------------------------------------------
11 (xlvii) Queensbury The Deer Run property was part of
a larger tax lot but, according
Tax Lot; to the tax assessor, the property
Utilities has been provided with a separate
tax lot number and the next tax
map to be issued will reflect
that the property is a separate
tax parcel.
--------------------------------------------------------------------------------
1 (xlviii) Certain The defeasance collateral can
Properties consist of, in addition to what
Defeasance including 888 is listed in representation
Seventh Avenue (xlviii), non-callable
instruments, which (a) will not
cause the REMIC trust to fail to
maintain its status as a "real
estate mortgage investment
conduit," (b) will not result in
a ratings reduction, downgrade or
withdrawal, (c) are then
outstanding and (d) are then
being generally accepted by the
rating agencies without any
reduction, downgrade or
withdrawal of the applicable
ratings.
--------------------------------------------------------------------------------
Sch I-15
CONTROL REPRESENTATION PROPERTY ISSUE
NO.
--------------------------------------------------------------------------------
90 (liv) Xxxxxx-Xxxxxx The mortgagor is an affiliate of
the lender.
9 No Ownership 1 Xxxxx Xxxxxxx
Interest in
Mortgagor
--------------------------------------------------------------------------------
90 (lv) Xxxxxx-Xxxxxx Seller owns indirect interests in
the borrowers with respect to
9 No Undisclosed 1 Xxxxx Xxxxxxx these mortgage loans.
Common Ownership
--------------------------------------------------------------------------------
Sch I-16
EXHIBIT C
NONE
EXHIBIT C-1
OPINION OF CADWALADER, XXXXXXXXXX & XXXX LLP
[CADWALADER, XXXXXXXXXX & XXXX LLP LETTERHEAD]
April 10, 2006
Addressees listed on Schedule A
Re: LB-UBS Commercial Mortgage Trust 2006-C3, Commercial Mortgage
Pass-Through Certificates, Series 2006-C3
Ladies and Gentlemen:
We are rendering this opinion pursuant to the Mortgage Loan
Purchase Agreement, dated as of April 3, 2006 (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 $764,023,236 (the "UBS Mortgage Loans"), pursuant to the MLPA;
(ii) the execution by the Seller of the UBS Indemnification Agreement, dated as
of April 3, 2006 (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 April 3, 2006 (the "Underwriting Agreement"), by and among SASC, UBS
Securities and Xxxxxx, and acknowledged with respect to certain sections by the
Seller and 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, 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
Exh C-1-1
the Certificates (the "Closing"), as we have deemed appropriate as a basis for
the opinions expressed below. In such examination we have assumed the
genuineness of all signatures, the authenticity of all documents, agreements and
instruments submitted to us as originals, the conformity to original documents,
agreements and instruments of all documents, agreements and instruments
submitted to us as copies or specimens, the authenticity of the originals of
such documents, agreements and instruments submitted to us as copies or
specimens and the accuracy of the 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:
1. the MLPA;
2. the Underwriting Agreement;
3. the Indemnification Agreement;
4. the officer's certificate of Seller, dated the
date hereof (the "Seller Officer's Certificate"); and
5. 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 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
Exh C-1-2
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
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties are validly existing and
in good standing under the laws of their respective jurisdictions of
organization, that all such parties had the power and legal right to execute and
deliver all such documents, agreements and instruments, and, except as to the
UBS Entities 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
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.
Exh C-1-3
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 or (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 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
Exh C-1-4
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. Without our prior
written consent, this letter is not to be relied upon, used, circulated, quoted
or otherwise referred to by, or assigned to, any other person (including any
person that acquires any Certificates from you or that seeks to assert your
rights in respect of this letter (other than your successor in interest by means
of merger, consolidation, transfer of a business or other similar transaction))
or for any other purpose. In addition, we disclaim any obligation to update this
letter for changes in fact or law, or otherwise.
Very truly yours,
Exh C-1-5
SCHEDULE A
Structured Asset Securities Corporation II Standard & Poor's Rating Services
000 Xxxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. LaSalle Bank National Association
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10019 Xxxxxxx, Xxxxxxxx 00000
UBS Securities LLC Xxxxx'x Investors Service, Inc.
1285 Avenue of the Americas 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Exh C-1-6
EXHIBIT C-2
OPINION OF IN-HOUSE COUNSEL TO ADDITIONAL PARTY
[UBS PRINCIPAL FINANCE LLC LETTERHEAD]
April 10, 2006
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: LB-UBS Commercial Mortgage Trust 2006-C3, Commercial Mortgage
Pass-Through Certificates, Series 2006-C3
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 April 3, 2006 (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.
Exh C-2-1
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,
Exh C-2-2
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
Managing Director
Exh C-2-3
SCHEDULE A
UBS Securities LLC Standard & Poor's Rating Services
1285 Avenue of the Americas 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 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 LaSalle Bank National Association
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10019 Xxxxxxx, Xxxxxxxx 00000
Exh X-0-0
XXXXXXX X
XXXX
Xxx X-0
