EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of June 26, 2002
(the "Agreement"), between UBS Warburg Real Estate Investments Inc. (together
with its successors and permitted assigns hereunder, the "Seller"), UBS
Principal Finance LLC, a Delaware limited liability company, 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 (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 2002-C2, Commercial Mortgage Pass-Through Certificates, Series
2002-C2. One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to the Trust Fund. The Certificates will be
issued pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), to be dated as of June 11, 2002, Purchaser as depositor, Wachovia
Bank, National Association as master servicer (the "Master Servicer"), Lend
Lease Asset Management, L.P. as special servicer (the "Special Servicer"),
LaSalle Bank National Association as trustee (the "Trustee") and ABN AMRO Bank
N.V. as fiscal agent (the "Fiscal Agent"). Capitalized terms used but not
defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with Xxxxxx Brothers
Inc. ("Xxxxxx"), UBS Warburg LLC ("UBSW") and Deutsche Bank Securities Inc.
(collectively 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 UBSW (together in such
capacity, the "Placement Agents"), whereby the Purchaser will sell to the
Placement Agents all of the remaining Certificates (other than the Residual
Interest Certificates).
In connection with the transactions contemplated hereby, the
Seller, UBS (USA), Inc. (the "Co-Indemnitor"), the Purchaser, the Underwriters
and the Placement Agents have entered into an Indemnification Agreement (the
"Indemnification Agreement"), dated as of the date hereof.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans identified on the schedule (the
"Mortgage Loan Schedule") annexed hereto as Exhibit A. The Mortgage Loan
Schedule may be amended to reflect the actual
Mortgage Loans accepted by the Purchaser pursuant to the terms hereof. The
Mortgage Loans will have an aggregate principal balance of $469,623,746 (the
"Initial UBS Pool Balance") as of the close of business on June 11, 2002 (the
"Cut-off Date"), after giving effect to any and all payments of principal due
thereon on or before such date, whether or not received. The purchase and sale
of the Mortgage Loans shall take place on July 9, 2002 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 [_______]% of the Initial UBS Pool Balance, plus interest accrued on each
Mortgage Loan at the related Net Mortgage Rate, for the period from and
including the Cut-off Date 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) Certificates
representing a 38.80% Percentage Interest in each of the Class R-I, Class R-II
and Class R-III 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 5 hereof, the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse, all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date (other
than the primary servicing rights). The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive
all scheduled payments of principal and interest due after the Cut-off Date, and
all other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf
of the initial Purchaser, deliver to and deposit with the Trustee a Mortgage
File for each Mortgage Loan in accordance with the terms of, and conforming to
the requirements set forth in, the Pooling and Servicing Agreement. Concurrently
with such delivery, the Seller shall deliver copies of the Mortgage Note,
Mortgage(s) and any reserve and cash management agreements with respect to each
Mortgage Loan to the Master Servicer and the Special Servicer.
(d) The Seller shall, through an Independent third party (the
"Recording/Filing Agent") retained by it, as and in the manner provided in the
Pooling and Servicing Agreement (and in any event within 45 days following the
later of the Closing Date and the date on which all necessary recording or
filing, as applicable, information is available to the Recording/Filing Agent),
cause (i) each assignment of Mortgage, each assignment of Assignment of Leases
and each UCC-2 and UCC-3 assignment, in favor of, and delivered as part of the
related Mortgage File to, the Trustee, to be submitted for recordation or
filing, as the case may be, in the appropriate public office for real property
records or Uniform Commercial Code financing statements, as appropriate, and
(ii) such assignments to be delivered to the Trustee following their return by
the applicable public recording or filing office, as the case may be, with
copies of such returned assignments to be delivered to the Master Servicer on a
monthly basis. If any such document or instrument is lost or returned unrecorded
or unfiled, as the case may be, because of a defect therein, then the Seller
shall prepare a substitute therefor or cure such defect or cause such to be
done, as the case
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may be, and the Seller shall deliver such substitute or corrected document or
instrument to the Trustee (or, if the Mortgage Loan is then no longer subject to
the Pooling and Servicing Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of
all such recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(e) All such specified documents and records in the Seller's
possession that (a) relate to the Mortgage Loans, (b) are not required to be
part of the Mortgage File, (c) are reasonably requested by the Master Servicer
in connection with its duties under the Pooling and Servicing Agreement and (d)
are reasonably necessary for the servicing of the Mortgage Loans, together with
all unapplied Escrow Payments and Reserve Funds in the possession or under the
control of the Seller that relate to the Mortgage Loans and a statement
indicating which Escrow Payments and Reserve Funds are allocable to each
Mortgage Loan, shall be delivered or caused to be delivered by the Seller to the
Master Servicer (or, at the direction of the Master Servicer, to the appropriate
sub-servicer), provided that the Seller shall not be required to deliver any
draft documents, privileged or other communications, credit underwriting or due
diligence analyses or data.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) The Seller shall provide the Master Servicer the initial
data with respect to each Mortgage Loan for the CMSA Financial File and the CMSA
Loan Periodic Update File that are required to be prepared by the Master
Servicer pursuant to the Pooling and Servicing Agreement.
SECTION 3. Representations, Warranties and Covenants of Seller and
Additional Party.
(a) Each of the Seller and the Additional Party (each, for
purposes of this Section 3(a), a "Representing Party") hereby represent and
warrant to and covenant with the Purchaser, as of the date hereof, that:
(i) The Representing Party is duly organized or formed,
as the case may be, validly existing and in good standing as a legal
entity under the laws of the State of Delaware and possesses all
requisite authority, power, licenses, permits and franchises to carry
on its business as currently conducted by it and to execute, deliver
and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly
authorized, executed and delivered by the Representing Party and,
assuming due authorization, execution and delivery hereof by the
Purchaser, constitutes a legal, valid and binding obligation of the
Representing Party, enforceable against the Representing Party in
accordance with its terms, except as such
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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 Seller 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), 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:
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(i) Under generally accepted accounting principles
("GAAP") and for federal income tax purposes, the Seller will report
the transfer of the Mortgage Loans to the Purchaser, as provided
herein, as a sale of the Mortgage Loans to the Purchaser in exchange
for the consideration specified in Section 1 hereof. In connection with
the foregoing, the Seller shall cause all of its records to reflect
such transfer as a sale (as opposed to a secured loan). The
consideration received by the Seller upon the sale of the Mortgage
Loans to the Purchaser will constitute at least reasonably equivalent
value and fair consideration for the Mortgage Loans. The Seller will be
solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The
Seller is not selling the Mortgage Loans to the Purchaser with any
intent to hinder, delay or defraud any of the creditors of the Seller.
After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either
taken at their present fair saleable value or at fair valuation, will
exceed the amount of the Seller's debts and obligations, including
contingent and unliquidated debts and obligations of the Seller, and
the Seller will not be left with unreasonably small assets or capital
with which to engage in and conduct its business. The Mortgage Loans do
not constitute all or substantially all of the assets of the Seller.
The Seller does not intend to, and does not believe that it will, incur
debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(ix) 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.
(x) 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.
(xi) 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.
(xii) Neither the Seller nor anyone acting on its behalf
has (A) offered, transferred, pledged, sold or otherwise disposed of
any Seller's Residual Interest Certificate, any interest in a Seller's
Residual Interest Certificate or any other similar security to any
person in any manner, (B) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Seller's Residual Interest
Certificate, any interest in a Seller's Residual Interest Certificate
or any other similar security from any person in any manner, (C)
otherwise approached or negotiated with respect to any Seller's
Residual Interest Certificate, any interest in a Seller's Residual
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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.
(xiii) 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.
(xiv) The Seller is an "accredited investor" within the
meaning of paragraph (1), (2), (3) or (7) of Rule 501(a) under the
Securities Act or an entity in which all the equity owners come within
such paragraphs and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
an investment in the Seller's Residual Interest Certificates; the
Seller has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision; and the
Seller is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
(xv) 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.
(xvi) 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. ---------
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
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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 or the Additional Party discovers or
receives notice of a Document Defect or a breach of any of its representations
and warranties made pursuant to Section 3(b) hereof (each such breach, a
"Breach") relating to any Mortgage Loan, and such Document Defect or Breach
materially and adversely affects the interests of the Purchaser in such Mortgage
Loan (in which case any such Document Defect or Breach would be a "Material
Document Defect" or a "Material Breach", as the case may be), then (subject to
Section 5(b)) the Seller shall, within 90 days after its discovery or receipt of
notice of such Material Document Defect or Material Breach (or, in the case of a
Material Document Defect or Material Breach that affects whether a Mortgage Loan
was, as of the Closing Date, is or will continue to be a "qualified mortgage"
within the meaning of the REMIC Provisions, not later than 90 days of any party
discovering such Material Document Defect or Material Breach) (such 90-day
period, in either case, the "Initial Resolution Period"), (i) cure such Material
Document Defect or Material Breach, as the case may be, in all material
respects, which cure shall include payment of any Additional Trust Fund Expenses
associated therewith, or (ii) repurchase the affected Mortgage Loan (or the
related Mortgaged Property) from, and in accordance with the directions of, the
Purchaser or its designee, at a price equal to the Purchase Price; provided that
if (i) any such Material Breach or Material Document Defect, as the case may be,
does not affect whether the Mortgage Loan was, as of the Closing Date, is or
will continue to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) such Material Breach or
Material Document Defect, as the case may be, is capable of being cured but not
within the applicable Initial Resolution Period, (iii) the Seller has commenced
and is diligently proceeding with the cure of such Material Breach or Material
Document Defect, as the case may be, within the applicable Initial Resolution
Period, and (iv) the Seller shall have delivered to the Purchaser a
certification executed on behalf of the 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
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pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Material Breach or Material Document Defect, as the case
may be, will be cured within an additional period not to exceed 90 days beyond
the end of the applicable Initial Resolution Period, then the Seller shall have
such additional 90-day period (the "Resolution Extension Period") to complete
such cure or, failing such, to repurchase the affected Mortgage Loan (or the
related Mortgaged Property); and provided, further, that, if any such Material
Document Defect is still not cured after the initial 90- day period and any such
additional 90-day period solely due to the failure of the Seller to have
received the recorded document, then the Seller shall be entitled to continue to
defer its cure and repurchase obligations in respect of such Document Defect so
long as the Seller certifies to the Purchaser every 30 days thereafter that the
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), except that no such
deferral of cure or repurchase may continue beyond the second anniversary of the
Closing Date. Any such repurchase of a Mortgage Loan shall be on a whole loan,
servicing released basis. The Seller and the Additional Party shall have no
obligation to monitor the Mortgage Loans regarding the existence of a Breach or
Document Defect, but if the Seller or the Additional Party discovers a Material
Breach or Material Document Defect with respect to a Mortgage Loan, it will
notify the Purchaser.
(b) If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by the Seller as
contemplated by Section 5(a), then, prior to the subject repurchase, the
Purchaser or its designee shall use reasonable efforts, subject to the terms of
the related Mortgage Loans, to prepare and, to the extent necessary and
appropriate, have executed by the related Mortgagor and record, such
documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased, on the one hand, and the remaining Mortgage Loans therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that, if such Cross-Collateralized Group is
still subject to the Pooling and Servicing Agreement, then no such termination
shall be effected unless and until 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
provided, further, that the Seller may, at its option, purchase the entire
Cross-Collateralized Group in lieu of terminating the cross-collateralization.
All costs and expenses incurred by the Purchaser or its designee pursuant to
this paragraph shall be included in the calculation of Purchase Price for the
Mortgage Loan(s) to be repurchased. If the cross-collateralization of any
Cross-Collateralized Group is not or cannot be terminated as contemplated by
this paragraph, then, for purposes of (i) determining whether any Breach or
Document Defect, as the case may be, materially and adversely affects the
interests of the Purchaser in any Mortgage Loan, and (ii) the application of
remedies, such Cross-Collateralized Group shall be treated as a single Mortgage
Loan.
It shall be a condition to any repurchase of a Mortgage Loan
by the Seller pursuant to Section 5(a) that the Purchaser shall have executed
and delivered such instruments of transfer or assignment then presented to it by
the Seller, 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
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repurchased as contemplated by Section 5(a), the Seller shall amend the Mortgage
Loan Schedule to reflect the removal of such Mortgage Loan and shall forward
such amended schedule to the Purchaser.
(c) It is understood and agreed that the obligations of the
Seller set forth in Section 5(a) to cure any Material Breach or Material
Document Defect or to repurchase such Mortgage Loan, constitute the sole
remedies available to the Purchaser with respect to any Breach or Document
Defect.
SECTION 6. Obligations of the Additional Party. The Additional
Party hereby covenants and agrees with the Purchaser that the Additional Party
shall be liable to the Purchaser and any designee thereof to the same extent as
the Seller as set forth herein, for all the obligations of the Seller under
Section 5 hereof. The Additional Party further agrees that the Purchaser shall
not be bound or obligated to initially request the Seller to perform any of its
obligations hereunder, but may instead initially request the Additional Party to
perform such obligations. Additionally, the Additional Party agrees that the
Purchaser shall not be bound or obligated in anyway to exhaust recourse against
the Seller before being entitled to demand the performance by the Additional
Party of its obligations hereunder. Performance by the Additional Party of any
of the Seller's obligations hereunder shall be deemed to be performance thereof
by the Seller.
SECTION 7. Closing. The closing of the sale of the Mortgage
Loans (the "Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx
LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M., New York City
time, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller
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 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
-9-
(g) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents. The Closing Documents shall
consist of the following:
(a) This Agreement duly executed by the Purchaser, the
Additional Party and the Seller;
(b) The Pooling and Servicing Agreement duly executed by the
parties thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) Certificates of each of the Seller and the Additional
Party, executed by a duly authorized officer of the Seller or the Additional
Party, as the case may be, and dated the Closing Date, and upon which the
initial Purchaser, the Underwriters and the Placement Agents may rely, to the
effect that: (i) the representations and warranties of the Seller or the
Additional Party, as the case may be, in this Agreement and 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 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 the Indemnification Agreement, (ii) the organizational
documents of the Seller or the Additional Party, as the case may be, and (iii) a
certificate of good standing of the Seller or the Additional Party, as the case
may be, 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;
-10-
(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) 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;
(j) As certified by an officer of the Co-Indemnitor, true and
correct copies of (i) the resolutions of the board of directors authorizing the
Co-Indemnitor's entering into the transactions contemplated by the
Indemnification Agreement, (ii) the organizational documents of the
Co-Indemnitor, and (iii) a certificate of good standing of the Co-Indemnitor
issued by the Secretary of State of the State of Delaware not earlier than 10
days prior to the Closing Date;
(k) A favorable opinion of Cadwalader, Xxxxxxxxxx & Xxxx,
special counsel to the Seller, the Additional Party and the Co-Indemnitor,
substantially in the form attached hereto as Exhibit C-1, dated the Closing Date
and addressed to the initial Purchaser, the Underwriters, the Placement Agents,
the Rating Agencies and, upon request, the other parties to the Pooling and
Servicing Agreement, together with such other opinions of Cadwalader, Xxxxxxxxxx
& Xxxx as may be required by the Rating Agencies in connection with the
transactions contemplated hereby;
(l) A favorable opinion of in-house counsel to each of the
Seller, the Additional Party and the Co-Indemnitor, substantially in the form
attached hereto as Exhibit C-2, dated the Closing Date and addressed to the
initial Purchaser, the Underwriters, the Placement Agents, the Rating Agencies
and, upon request, the other parties to the Pooling and Servicing Agreement;
(m) In connection with the Seller's receipt of the Seller's
Residual Interest Certificates, a Transfer Affidavit and Agreement in the form
contemplated by the Pooling and Servicing Agreement; and
(n) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Costs. An amount equal to 38.30% 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
-11-
shall be deemed to be a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller; (ii) this
Agreement shall be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the applicable Uniform Commercial Code; (iii) the conveyance
provided for in Section 2 hereof shall be deemed to be a grant by the Seller to
the Purchaser of a security interest in all of the Seller's right, title and
interest in and to the Mortgage Loans, and all amounts payable to the holder of
the Mortgage Loans in accordance with the terms thereof, and all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property; (iv) the assignment to the Trustee of the interest
of the Purchaser in and to the Mortgage Loans shall be deemed to be an
assignment of any security interest created hereunder; (v) the possession by the
Trustee or any of its agents, including, without limitation, the Custodian, of
the Mortgage Notes for the Mortgage Loans, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-313 of the applicable Uniform Commercial
Code; and (vi) notifications to persons (other than the Trustee) holding such
property, and acknowledgments, receipts or confirmations from such persons
holding such property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the secured party for the purpose of perfecting such security
interest under applicable law. The Seller and the Purchaser shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement and the Pooling and Servicing
Agreement.
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 Purchaser to the Trustee).
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
-12-
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 AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY
WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE
FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.
SECTION 16. Further Assurances. The Seller, the Additional
Party and the Purchaser agree to execute and deliver such instruments and take
such further actions as any other party may, from time to time, reasonably
request in order to effectuate the purposes and to carry out the terms of this
Agreement.
SECTION 17. Successors and Assigns. The rights and obligations of the
Seller and the Additional Party under this Agreement shall not be assigned by
the Seller or the Additional Party without the prior written consent of the
Purchaser, except that any person into which the Seller or the Additional Party,
as the case may be, may be merged or consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Seller or the
Additional Party, as the case may be, 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 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.
-13-
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 WARBURG REAL ESTATE INVESTMENTS INC.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
Address for Notices:
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopier No.: (000) 000-0000
ADDITIONAL PARTY
UBS PRINCIPAL FINANCE LLC
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
Address for Notices:
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopier No.: (000) 000-0000
PURCHASER
STRUCTURED ASSET SECURITIES CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Senior Vice President
Address for Notices:
Structured Asset Securities Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
EXHIBIT A
MORTGAGE LOAN SCHEDULE
MORTGAGE
LOAN
NUMBER PROPERTY NAME ADDRESS
------------------------------------------------------------------------------------------------------------------------------
2 Square One Mall 000 Xxxxxxxxxxx Xxxxxx
4 0000 Xxxxxxxxxxxx Xxxxxx 0000 Xxxxxxxxxxxx Xxxxxx
5 Lembi Portfolio Various
0 Xxx Xxxxxx Xxxxxxxx 00-00 Xxxxxxxx Xxxxxxxxx
8 Bank of America Tower One Progress Plaza
11 Xxxxx Xxxxx Farms 3301, 3303, 3305, and 0000 Xxxxx Xxxxx Xxxxxxx
14 Greenbriar Club Apartments 0000 Xxxxxxxxxxxx Xxxxxx
16 Cendant Tower 0000 Xxxxxx Xxxxx
18 Market Square Shopping Center 5515 and 0000 Xxxxxxx Xxxx
19 000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
20 Little River Turnpike 7610-7630 Little River Turnpike
23 Home Depot Center 0000-0000 Xxxx Xxxxxxx Xxxxxx
24 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
30 000 Xxxx Xxxxx Xxxxx 000-000 Xxxx Xxxxx Xxxx
33 Anaheim Business Center 000-000 Xxxx Xxxxxxxx Xxxxxx
41 000 Xxxxx 00 Xxxxx 000 Xxxxx 00 Xxxxx
43 MATCO Portfolio Various
44 Computer Sciences Building 150 West Xxxx X. Xxxxxxxxx Freeway
46 Xxxxx Portfolio Various
47 Xxxxxxxx Heights Apartments 0000 Xxxxxxxx Xxxxxxxx Xxxx
59 South Dade Portfolio Various
60 One Royal Palm Place 0000 Xxxxx Xxxxxxx Xxxxxxx
00 Xxxxxxx Portfolio Various
69 00 Xxxxxx X 00 Xxxxxx X
00 Xxxxxxxxx - Xxxxxxxx 0000 Xxxxxxxxx Xxxxxxx
00 Xxxxxxx Xxxx Xxxx & Xxxxxxxx MHP Various
82 Westside Plaza Shopping Center 0000 Xxxx Xxxxxxxx
83 00X Xxxxx Xxxxxx 00X Xxxxx Xxxxxx
91 Beltway 8 Office Warehouses Numbers 7 and 8 0000 Xxxx Xxx Xxxxxxx Xxxxxxx
98 Xxxxxx Heights Apartments 3610 Xxxxxx Xxxxxxx
00 Xxx-Xxxx Xxxxx 000 Xxxxxxxxxx Xxxxxx
000 Xxxxxx Xxxxx Apartments 000 Xxxxxx Xxxxx Xxxxx
000 0000-0000 Burlingame Avenue 1461-1465 Xxxxxxxxxx Xxxxxx
000 Xxxx Xxxx Shopping Center 000 Xxxx Xxxxxx
105 Premier Centre Outparcel 0000-0000 X.X. Xxxxxxx 000
107 Hill & Xxxx Apartments 000-000 Xxxxxxxx Xxxxxx
000 Xxxx Xxxxx Self Storage 000 Xxxx Xxxxxx Xxxxxx
MORTGAGE
LOAN CUT-OFF DATE MONTHLY
NUMBER CITY STATE ZIP CODE BALANCE P&I PAYMENT
-------------------------------------------------------------------------------------------------------------------
2 Xxxxxx XX 0000 94,788,018.96 614,968.85
4 Xxxxxxxxxx XX 00000 50,000,000.00 341,393.42
5 San Francisco CA Various 36,800,000.00 238,837.54
0 Xxxx Xxxxxx Xxxx XX 00000 34,454,683.16 238,871.03
8 Xx. Xxxxxxxxxx XX 00000 33,899,534.79 248,315.62
11 Xxxxxxx XX 00000 25,986,440.25 183,043.64
14 Xxxxxxxxxxxx XX 00000 18,500,000.00 127,774.90
00 Xxxxx Xxxxx XX 00000 16,590,932.75 115,274.97
18 Xxxxxxxxxx XX 00000 16,500,000.00 113,343.55
19 Xxx Xxxxxxxx XX 00000 14,000,000.00 94,008.97
20 Xxxxxxxxx XX 00000 13,100,000.00 88,655.37
23 Xxxxxxx Xxxxx XX 00000 12,600,000.00 85,783.35
24 Xxx Xxxx XX 00000 12,484,513.82 88,517.22
30 Xxxx Xxxxx XX 00000 10,119,816.35 71,664.12
33 Xxxxxxx XX 00000 9,818,856.95 65,365.97
00 Xxxxxxxx Xxxx XX 0000 8,000,000.00 53,719.41
43 Various Various Various 6,350,000.00 44,052.79
44 Xxxxxx XX 00000 6,131,016.15 42,413.67
46 Various NM Various 5,794,897.87 43,809.07
47 Xxxxxxxx XX 00000 5,530,000.00 43,741.30
59 Various FL Various 4,396,000.00 30,317.15
60 Xxxx Xxxxx XX 00000 3,857,898.46 26,831.27
61 Xxxxxxx XX 00000 3,840,000.00 26,902.45
69 Xxx Xxxx XX 00000 3,177,720.03 22,123.42
74 Xxxxxxxx XX 00000 3,000,000.00 21,244.13
76 Various NY Various 2,913,507.62 20,632.19
82 Xxxxxxxx XX 00000 2,743,904.34 21,160.60
00 Xxxxxxxxxx XX 0000 2,700,000.00 18,130.30
91 Xxxxxxx XX 00000 2,013,086.40 15,650.96
98 Xxxxxxx XX 00000 1,500,000.00 12,881.65
00 Xxx Xxxxxxx XX 0000 1,474,202.20 10,273.04
000 Xxxxx Xxxxxx XX 00000 1,275,000.00 9,422.14
102 Xxxxxxxxxx XX 00000 1,200,000.00 7,788.18
103 XxXxxxxxx XX 00000 1,200,000.00 8,390.57
105 Xxxxxxxxxx XX 00000 1,125,000.00 7,997.53
107 Xxxxxxxxxx XX 00000 916,000.00 6,392.27
109 Xxxx Xxxxx XX 00000 842,715.76 8,014.40
MORTGAGE REMAINING REMAINING
LOAN MORTGAGE TERM TO MATURITY- AMORTIZATION INTEREST
NUMBER RATE MATURITY ARD TERM ACCRUAL BASIS
------------------------------------------------------------------------------------------------------------------------------
2 6.731 117 3/11/12 357 Act/360
4 7.259 120 6/11/12 360 Act/360
5 6.650 60 6/11/07 348 Act/360
7 7.400 70 4/11/08 358 Act/360
8 7.970 118 4/11/12 358 Act/360
11 7.570 119 5/11/12 359 Act/360
14 7.375 120 6/11/12 360 Act/360
16 7.430 119 5/11/12 359 Act/360
18 7.320 120 6/11/12 360 Act/360
19 7.092 84 6/11/09 360 Act/360
20 7.170 120 6/11/12 360 Act/360
23 7.230 120 6/11/12 360 Act/360
24 7.630 118 4/11/12 358 Act/360
30 7.625 119 5/11/12 359 Act/360
33 7.000 59 5/11/07 359 Act/360
41 7.092 84 6/11/09 360 Act/360
43 7.420 120 6/11/12 360 Act/360
44 7.360 116 2/11/12 356 Act/360
46 7.750 119 5/11/12 299 Act/360
47 7.260 120 6/11/12 240 Act/360
59 7.360 120 6/11/12 360 Act/360
60 7.440 119 5/11/12 359 Act/360
61 7.520 120 6/11/12 360 Act/360
69 7.385 110 8/11/11 350 Act/360
74 7.630 120 6/11/12 360 Act/360
76 7.625 119 5/11/12 359 Act/360
82 8.410 100 10/1/10 340 Act/360
83 7.092 84 6/11/09 360 Act/360
91 8.610 118 4/11/12 358 Act/360
98 7.330 120 6/11/12 204 Act/360
99 7.460 119 5/11/12 359 Act/360
100 7.500 120 6/11/12 300 Act/360
102 6.650 60 6/11/07 348 Act/360
103 7.500 84 6/11/09 360 Act/360
105 7.670 102 12/11/10 360 Act/360
107 7.480 120 6/11/12 360 Act/360
109 7.875 179 5/11/17 179 Act/360
MORTGAGE MORTGAGE
LOAN ADMINISTRATIVE MASTER GROUND LOAN
NUMBER COST RATE SERVICING FEE LEASE? SELLER DEFEASANCE
------------------------------------------------------------------------------------------------------------------------------------
2 0.0516 0.05 Fee Simple UBS Defeasance
4 0.0516 0.05 Fee Simple UBS Defeasance
5 0.0516 0.05 Fee Simple UBS Defeasance
7 0.0516 0.05 Fee Simple UBS Defeasance
8 0.0516 0.05 Fee Simple UBS Defeasance
11 0.0516 0.05 Fee Simple UBS Defeasance
14 0.0516 0.05 Fee Simple UBS Defeasance
16 0.0516 0.05 Fee Simple UBS Defeasance
18 0.0516 0.05 Fee Simple UBS Defeasance
19 0.0516 0.05 Fee Simple UBS Defeasance/Fixed Penalty
20 0.0516 0.05 Fee Simple UBS Defeasance
23 0.0516 0.05 Fee Simple UBS Defeasance
24 0.0516 0.05 Fee Simple UBS Defeasance
30 0.0516 0.05 Fee Simple UBS Defeasance
33 0.0516 0.05 Fee Simple UBS Defeasance
41 0.0516 0.05 Fee Simple UBS Defeasance/Fixed Penalty
43 0.0516 0.05 Fee Simple UBS Defeasance
44 0.0516 0.05 Fee Simple UBS Defeasance
46 0.0516 0.05 Fee Simple UBS Defeasance
47 0.0516 0.05 Fee Simple UBS Defeasance
59 0.0516 0.05 Fee Simple UBS Defeasance
60 0.0516 0.05 Fee Simple UBS Defeasance
61 0.0516 0.05 Fee Simple UBS Defeasance
69 0.0516 0.05 Fee Simple UBS Defeasance
74 0.0516 0.05 Fee Simple UBS Defeasance
76 0.0516 0.05 Fee Simple UBS Defeasance
82 0.0516 0.05 Fee Simple UBS Defeasance
83 0.0516 0.05 Fee Simple UBS Defeasance/Fixed Penalty
91 0.0516 0.05 Fee Simple UBS Greater of Yield Maintenance or 1%
98 0.0516 0.05 Fee Simple UBS Defeasance
99 0.0516 0.05 Fee Simple UBS Defeasance
100 0.0516 0.05 Fee Simple UBS Defeasance
102 0.0516 0.05 Fee Simple UBS Defeasance
103 0.0516 0.05 Fee Simple UBS Defeasance
105 0.0516 0.05 Fee Simple UBS Defeasance
107 0.0516 0.05 Fee Simple UBS Defeasance
109 0.0516 0.05 Fee Simple UBS Defeasance
CREDIT LEASE
MORTGAGE ARD LOAN (TENANT, LEASE
LOAN MORTGAGE ANTICIPATED ARD GUARANTOR OR ENHANCEMENT
NUMBER LOAN REPAYMENT DATE SPREAD RATED PARTY) POLICY
------------------------------------------------------------------------------------------------------------------------------
2 No 0.00 No
4 Yes 6/11/12 2.00 No
5 No 0.00 No
7 Yes 4/11/08 2.00 No
8 Yes 4/11/12 2.00 No
11 No 0.00 No
14 No 0.00 No
16 Yes 5/11/12 2.00 No
18 No 0.00 No
19 No 0.00 No
20 No 0.00 No
23 No 0.00 No
24 No 0.00 No
30 No 0.00 No
33 No 0.00 No
41 No 0.00 No
43 Yes 6/11/12 2.00 No
44 Yes 2/11/12 2.00 No
46 No 0.00 No
47 No 0.00 No
59 No 0.00 No
60 No 0.00 No
61 No 0.00 No
69 No 0.00 No
74 No 0.00 No
76 No 0.00 No
82 No 0.00 No
83 No 0.00 No
91 No 0.00 No
98 No 0.00 No
99 No 0.00 No
100 No 0.00 No
102 No 0.00 No
103 No 0.00 No
105 No 0.00 No
107 No 0.00 No
109 No 0.00 No
MORTGAGE MORTGAGE
LOAN RESIDUAL VALUE CROSS MORTGAGE
NUMBER INSURANCE COLLATERALIZED LOAN ID
---------------------------------------------------------------------------------
2 No No 8502
4 Yes No 8832
5 Yes Yes (A) 9001
7 Yes No 8787
8 Yes No 8745
11 Yes No 8841
14 Yes No 8763
16 Yes No 8876
18 Yes No 9999
19 Yes No 8906
20 Yes No 8918
23 Yes No 8872
24 Yes No 8786
30 Yes No 8439
33 Yes No 8727
41 Yes No 8937
43 Yes No 8799
44 Yes No 8730
46 Yes No 8747
47 Yes No 8764
59 Yes No 8898
60 Yes No 8705
61 Yes No 8674
69 Yes No 7719
74 No No 8854
76 Yes No 8604
82 Yes No 10896
83 Yes No 8952
91 Yes No 8788
98 Yes No 8765
99 No No 8710
100 Yes No 8843
102 Yes Yes (A) 9002
103 Yes No 8894
105 Yes No 8743
107 Yes No 8536
109 Yes No 8768
EXHIBIT B
Representations and Warranties
Except as set forth on the schedule of exceptions attached
hereto as Schedule I or as set forth on Schedule II, the Seller hereby
represents and warrants to the Purchaser, with respect to each Mortgage Loan, as
of the Closing Date or such other date specified in the particular
representation and warranty, that:
(i) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and
correct in all material respects as of its Due Date in June 2002.
(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 best of the Seller's actual knowledge, after
having performed the type of due diligence customarily performed by
prudent institutional commercial and multifamily mortgage lenders, as
of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination of such
Mortgage Loan.
(iii) Ownership of Mortgage Loan. The Seller owns such
Mortgage Loan, has good title thereto, has full right, power and
authority to sell, assign and transfer such Mortgage Loan and is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges or security interests of any nature encumbering such
Mortgage Loan, exclusive of the servicing rights pertaining thereto and
conveyed to Wachovia, in its capacity as a primary servicer; no
provision of the Mortgage Note, Mortgage(s) or other loan documents
relating to such Mortgage Loan prohibits or restricts the Seller's
right to assign or transfer such Mortgage Loan to the Trustee; no
governmental or regulatory approval or consent is required for the sale
of such Mortgage Loan by the Seller; and the Seller has validly
conveyed to the Trustee a legal and beneficial interest in and to such
Mortgage Loan free and clear of any lien, claim or encumbrance of any
nature.
(iv) No Holdback. The proceeds of such Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the
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 any, and other agreements
executed in favor of the lender in connection therewith is the legal,
valid and binding obligation of the maker thereof (subject to the
non-recourse provisions therein and any state anti-deficiency
legislation), enforceable in accordance with its terms, except that (A)
such enforcement may be limited by (1) bankruptcy, insolvency,
receivership, reorganization, liquidation, voidable preference,
fraudulent conveyance and transfer, moratorium and/or other similar
laws affecting the enforcement of creditors' rights generally, and (2)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and (B) certain
provisions in the subject agreement or instrument may be further
limited or rendered unenforceable by applicable law, but subject to the
limitations set forth in the foregoing clause (A), such limitations
will not render that subject agreement or instrument invalid as a whole
or substantially interfere with the mortgagee's realization of the
principal benefits and/or security provided by the subject agreement or
instrument. The Mortgage Loan is non-recourse to the Mortgagor or any
other Person except for certain nonrecourse carveouts and any
applicable guarantees. If such Mortgage Loan has a Cut-off Date Balance
of $15 million or more, the related Mortgagor or another Person has
agreed to be liable for all liabilities, costs, losses, damages,
expenses or claims suffered or incurred by the mortgagee under such
Mortgage Loan by reason of or in connection with and to the extent of
(A) any material intentional fraud or material intentional
misrepresentation by the related Mortgagor and (B) any breach on the
part of the related Mortgagor of any environmental representations,
warranties and covenants contained in the related Mortgage Loan
documents; provided that, instead of any breach described in clause (B)
of this sentence, the related Mortgagor or such other Person may
instead be responsible for liabilities, costs, losses, damages,
expenses and claims resulting from a breach of the obligations and
indemnities of the related Mortgagor under the related Mortgage Loan
documents relating to hazardous or toxic substances, radon or
compliance with environmental laws.
(vi) No Right of Rescission. As of the date of origination,
subject to the limitations and exceptions as to enforceability set
forth in paragraph (v) above, there was no valid offset, defense,
counterclaim or right to rescission with respect to any of the related
Mortgage Note, Mortgage(s) or other agreements executed in connection
with such Mortgage Loan; and, as of the Closing Date, to the Seller's
actual knowledge, subject to the limitations and exceptions as to
enforceability set forth in paragraph (v) above, there is no valid
offset, defense, counterclaim or right to rescission with respect to
such Mortgage Note, Mortgage(s) or other agreements executed in
connection with such Mortgage Loan; and, to the actual knowledge of the
Seller, no such claim has been asserted.
(vii) Assignments. The assignment of the related Mortgage(s)
and Assignment(s) of Leases to the Trustee constitutes the legal,
valid, binding and, subject to the limitations and exceptions as to
enforceability set forth in paragraph (v) above, enforceable assignment
of such documents.
(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
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Mortgaged Property and all buildings thereon, which Mortgaged Property
is free and clear of all encumbrances and liens having priority over or
on a parity with the first lien of such Mortgage, except for the
following (collectively, the "Permitted Encumbrances"): (A) the lien
for real estate taxes, water charges, sewer rents and assessments not
yet due and payable; (B) covenants, conditions and restrictions, rights
of way, easements and other matters that are of public record; (C)
exceptions and exclusions specifically referred to in the related
lender's title insurance policy (or, if not yet issued, referred to in
a pro forma title policy or title policy commitment); (D) other matters
to which like properties are commonly subject; (E) the rights of
tenants (as tenants only) under leases (including subleases) pertaining
to the related Mortgaged Property; (F) condominium declarations of
record and identified in the related lender's title insurance policy
(or, if not yet issued, identified in a pro forma title policy or title
policy commitment); and (G) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group.
With respect to each Mortgage Loan, such Permitted Encumbrances do not,
individually or in the aggregate, materially and adversely interfere
with the benefits of the security intended to be provided by the
related Mortgage, the current principal use or operation of the related
Mortgaged Property or the ability of the related Mortgaged Property to
generate sufficient cashflow to enable the related Mortgagor to timely
pay in full the principal and interest on the related Mortgage Note.
(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 Mortgaged
Property and could constitute liens on the Mortgaged Property prior to
the lien of the Mortgage and all ground rents that prior to the related
Due Date in June 2002 became due and payable in respect of, and
materially affect, any related Mortgaged Property have been paid or are
not yet delinquent, and the Seller knows of no unpaid tax, assessment,
ground rent, water charges or sewer rent 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 each
Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, there was no pending proceeding for the total or partial
condemnation of any related Mortgaged Property that materially affects
the value thereof, and such Mortgaged Property is free of material
damage. If such Mortgage Loan has a Cut-off Date Balance of $15 million
or more, then (except for certain amounts not greater than amounts
which would be considered prudent by an institutional commercial
mortgage lender with respect to a similar mortgage loan and which are
set forth in the related Mortgage or other loan documents relating to
such Mortgage Loan, and subject to any rights of the lessor under any
related Ground Lease) any condemnation awards 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.
(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
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title insurance company, insuring that each related Mortgage is a valid
first lien on such Mortgaged Property in the original principal amount
of such Mortgage Loan after all advances of principal, subject only to
Permitted Encumbrances, or there is a binding commitment or binding pro
forma from a title insurer qualified and/or licensed in the applicable
jurisdiction, as required, to issue such policy; such title insurance
policy, if issued, is in full force and effect, all premiums have been
paid, is freely assignable and will inure to the benefit of the Trustee
as mortgagee of record, or any such commitment or binding pro forma is
a legal, valid and binding obligation of such insurer; no claims have
been made by the Seller under such title insurance policy, if issued;
and neither the Seller nor, to the best of the Seller' knowledge, 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, unless such coverage is
unavailable in the relevant jurisdiction) (A) access to a public road,
(B) that there is no material encroachment by any improvements on the
Mortgaged Property, and (C) that the area shown on the survey
materially conforms to the legal description of the Mortgaged Property.
The related Mortgage has been submitted for recordation in the
applicable jurisdiction and all applicable mortgage recording taxes
have been paid or have been escrowed with the applicable title company
for payment.
(xii) Property Insurance. As of the date of its origination
and, to the best of the Seller's knowledge, as of the Closing Date, all
insurance required under each related Mortgage (except where a tenant
under a lease is permitted to self-insure) was in full force and effect
with respect to each related Mortgaged Property; such insurance
included (A) fire and extended perils insurance, in an amount (subject
to a customary deductible) at least equal to the lesser of (i) 100% of
the full insurable replacement cost of the improvements located on such
Mortgaged Property and (ii) the initial principal balance of such
Mortgage Loan, or the portion thereof allocable to such Mortgaged
Property, (B) business interruption or rental loss insurance for a
period of not less than 12 months, (C) comprehensive general liability
insurance in an amount not less than $1 million per occurrence, (D)
workers' compensation insurance (if the related Mortgagor has employees
and if required by applicable law), and (E) if (1) such Mortgage Loan
is secured by a Mortgaged Property located in the State of California
in or "seismic zone" 3 or 4 and (2) a seismic assessment revealed a
maximum probable or bounded loss in excess of 20% of the amount of the
estimated replacement cost of the improvements on such Mortgaged
Property, earthquake insurance; it is an event of default under such
Mortgage Loan if the above-described insurance coverage is not
maintained by the related Mortgagor, and any reasonable out-of-pocket
costs and expenses incurred by the mortgagee in connection with such
default in obtaining such insurance coverage are recoverable from the
related Mortgagor; the related Mortgage Loan documents require that the
related insurance policies provide that they may not be terminated
without at least 10 days' prior notice to the mortgagee and, to the
Seller's actual knowledge, it has not received any such notice; the
related insurance certificates (other than those limited to liability
protection) name the mortgagee and its successors as mortgagee or loss
payee; to the Seller's actual knowledge, all premiums under any such
insurance policy have been paid through the related Due Date in June
2002; all such insurance policies are required to be maintained with
insurance companies having "financial strength" or "claims paying
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ability" ratings of at least "A:VII" from A.M. Best Company or at least
"BBB+" (or equivalent) from a nationally recognized statistical rating
agency (or, with respect to certain blanket insurance policies, such
other ratings as are in compliance with S&P's applicable criteria);
and, except for certain amounts not greater than amounts which would be
considered prudent by an institutional commercial mortgage lender with
respect to a similar mortgage loan and which are set forth in the
related Mortgage or other loan documents relating to such Mortgage
Loan, and subject to the rights of the lessor under any related Ground
Lease, any insurance proceeds 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.
(xiii) No Material Defaults. Other than payments due but not
yet 30 days or more delinquent, there is, to the actual knowledge of
the Seller, (A) no material default, breach, violation or event of
acceleration existing under the related Mortgage Note, the related
Mortgage or other loan documents relating to such Mortgage Loan, and
(B) no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration under any of such
documents; provided, however, that this representation and warranty
does not cover any default, breach, violation or event of acceleration
that specifically pertains to or arises out of the subject matter
otherwise covered by any other representation and warranty made by the
Seller in this Section 2.04(b). 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 or on a 30/360 Basis as provided on the
Mortgage Loan Schedule; 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 to secure any other promissory
note or debt (other than another Mortgage Loan in the Trust Fund).
(xvii) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
Accordingly, either as of the date
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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.
(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 regulation 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 such
environmental site assessments and transaction screens met ASTM
requirements to the extent set forth in such report; and none of the
environmental reports (A) reveal any circumstances or conditions that
are in violation of any applicable environmental laws, (B) require any
expenditure material in relation to the principal balance of the
Mortgage Loan to achieve compliance in all material respects with any
environmental laws or (C) require substantial cleanup, remedial action
or other material response under any environmental laws or, if such
report does reveal any such circumstances set forth in (A), (B) or (C)
above, then (1) the same have been remediated in all material respects,
(2) sufficient funds have been escrowed or a letter of credit 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.
(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.
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(xxi) Bankruptcy. To the Seller's knowledge, the related
Mortgagor is not a debtor in any bankruptcy, reorganization, insolvency
or comparable proceeding.
(xxii) Loan Security. Such Mortgage Loan is secured by either
a mortgage on a fee simple interest or a leasehold estate in a
commercial property or multifamily property, including the related
Mortgagor's interest in the improvements on the related Mortgaged
Property.
(xxiii) Amortization. Such Mortgage Loan does not provide for
negative amortization unless such Mortgage Loan is an ARD Mortgage
Loan, in which case it may occur only after the Anticipated Repayment
Date.
(xxiv) Whole Loan. Such Mortgage Loan is a whole loan,
contains no equity participation by the lender or shared appreciation
feature and does not provide for any contingent interest in the form of
participation in the cash flow of the related Mortgaged Property.
(xxv) Due-on-Encumbrance. Each Mortgage Loan contains
provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of
the mortgagee or Rating Agency confirmation that an Adverse Rating
Event would not occur, any related Mortgaged Property or interest
therein, is directly encumbered in connection with subordinate
financing; no such consent has been granted by the Seller. The Mortgage
Loan documents generally require the related Mortgagor to pay all
reasonable fees and expenses relating to obtaining any such consent. To
the Seller's knowledge, no related Mortgaged Property is encumbered in
connection with subordinate financing; however, if the related
Mortgaged Property is listed on Schedule II-xxv, then certain 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
upon the death or incapacity of a person having an interest in the
related Mortgagor, each Mortgage Loan contains either (A) provisions
for the acceleration of the payment of the unpaid principal balance of
such Mortgage Loan if any related Mortgaged Property or interest
therein is directly or indirectly transferred or sold without the prior
written consent of the mortgagee or rating agency confirmation, or (B)
provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if any related Mortgaged Property or
interest therein is directly or indirectly transferred or sold without
the related Mortgagor having satisfied certain conditions specified in
the related Mortgage with respect to permitted transfers (which
conditions are consistent with the practices of prudent commercial
mortgage lenders). The Mortgage Loan documents generally require the
related Mortgagor to pay all reasonable fees and expenses relating to
obtaining any such consent.
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(xxvii) Borrower Concentration. Except as set forth on
Schedule II-xxvii, 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 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.
(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 and was given material value
in the underwriting of such Mortgage Loan at origination, without (A)
payment in full of such Mortgage Loan, (B) delivery of Defeasance
Collateral in the form of "government securities" within the meaning of
Section 2(a)(16) of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), (C) delivery of substitute real property
collateral, or (D) payment of a release price equal to at least 115% of
the amount of such Mortgage Loan allocated to the related Mortgaged
Property subject to the release.
(xxxi) Qualifications; Licensing; Zoning. The related
Mortgagor has covenanted in the Mortgage Loan documents to maintain the
related Mortgaged Property in compliance in all material respects with,
to the extent it is not grandfathered under, all applicable laws,
zoning ordinances, rules, covenants and restrictions affecting the
construction, occupancy, use and operation of such Mortgaged Property,
and the related originator performed the type of due diligence in
connection with the origination of such Mortgage Loan customarily
performed by prudent institutional commercial and multifamily mortgage
lenders with respect to the foregoing matters; the Seller has received
no notice of any material violation of, to the extent is has not been
grandfathered under, any applicable laws, zoning ordinances, rules,
covenants or restrictions affecting the construction, occupancy, use or
operation of the related Mortgaged Property (unless affirmatively
covered by the title insurance referred to in paragraph (xi) above (or
an endorsement thereto)); to the Seller's knowledge (based on surveys,
opinions, letters from municipalities and/or title insurance obtained
in connection with the origination of such Mortgage Loan), no
improvement that was included for the purpose of determining the
appraised value of the related Mortgaged Property at the time of
origination of such Mortgage Loan lay outside the boundaries and
building restriction lines of such property, in effect at the time of
origination of such Mortgage Loan, to an extent which would have
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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.
(xxxii) Property Financial Statements. The related Mortgagor
has covenanted in the Mortgage Loan documents to deliver to the
mortgagee quarterly and/or annual operating statements and rent rolls
of each related Mortgaged Property.
(xxxiii) Single Purpose Entity. If such Mortgage Loan has a
Cut-off Date Balance in excess of $15 million, then the related
Mortgagor is obligated by its organizational documents and/or the
related Mortgage Loan documents to be a Single Purpose Entity for so
long as such Mortgage Loan is outstanding; and if such Mortgage Loan
has a Cut-off Date Balance less than $15 million, the related Mortgagor
is obligated by its organizational documents and/or the related
Mortgage Loan documents to own the related Mortgaged Property and no
other material asset unrelated to such Mortgaged Property and, except
as permitted by the related Mortgage Loan documents, not to incur other
financing, for so long as such Mortgage Loan is outstanding.
(xxxiv) Advancing of Funds. No advance of funds has been made,
directly or indirectly, by the originator or the Seller to the related
Mortgagor other than pursuant to the related Mortgage Note; and, to the
actual knowledge of the Seller, no funds have been received from any
Person other than such Mortgagor for or on account of payments due on
the related Mortgage Note.
(xxxv) Legal Proceedings. To the Seller's actual knowledge,
there are no pending actions, suits or proceedings by or before any
court or governmental authority against or affecting the related
Mortgagor or any related Mortgaged Property that, if determined
adversely to such Mortgagor or Mortgaged Property, would materially and
adversely affect the value of such Mortgaged Property or the ability of
such Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvi) Originator Duly Authorized. To the extent required
under applicable law as of the Closing Date, the originator of such
Mortgage Loan was qualified and authorized to do business in each
jurisdiction in which a related Mortgaged Property is located at all
times when it held such Mortgage Loan to the extent necessary to ensure
the enforceability of such Mortgage Loan.
(xxxvii) Trustee under Deed of Trust. If the related Mortgage
is a deed of trust, a trustee, duly qualified under applicable law to
serve as such, is properly designated and serving under such Mortgage,
and no fees and expenses are payable to such trustee except in
connection with a trustee sale of the related Mortgaged Property
following a default or in connection with the release of liens securing
such Mortgage Loan.
(xxxviii) Cross-Collateralization. (a) The related Mortgaged
Property is not, to the Seller's knowledge, collateral or security for
any mortgage loan that is not in the
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Trust Fund and (b) if such Mortgage Loan is cross-collateralized, it is
cross-collateralized only with other Mortgage Loans in the Trust Fund.
The security interest/lien on each material item of collateral for such
Mortgage Loan has been assigned to the Trustee.
(xxxix) Flood Hazard Insurance. None of the improvements on
any related Mortgaged Property are located in a flood hazard area as
defined by the Federal Insurance Administration or, if they are, the
related Mortgagor has obtained flood hazard insurance.
(xl) Engineering Assessments. One or more engineering
assessments or updates of a previously conducted engineering assessment
were performed by an Independent engineering consulting firm with
respect to each related Mortgaged Property during the 12-month period
preceding the Cut-off Date, and the Seller, having made no independent
inquiry other than to review the report(s) prepared in connection with
such assessment(s) and or update(s), does not have any knowledge of any
material and adverse engineering condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s); and,
to the extent such assessments revealed deficiencies, deferred
maintenance or similar conditions, either (A) the estimated cost has
been escrowed or a letter of credit has been provided, (B) repairs have
been made or (C) the scope of the deferred maintenance relative to the
value of such Mortgaged Property was de minimis.
(xli) Escrows. All escrow deposits and payments relating to
such Mortgage Loan are under control of the Seller or the servicer of
such Mortgage Loan and all amounts required as of the date hereof under
the related Mortgage Loan documents to be deposited by the related
Mortgagor have been deposited. The Seller is transferring to the
Trustee all of its right, title and interest in and to such amounts.
(xlii) Licenses, Permits and Authorizations. The related
Mortgagor has represented in the related Mortgage Loan documents that,
and to the actual knowledge of the Seller, as of the date of
origination of such Mortgage Loan, all material licenses, permits and
authorizations then required for use of the related Mortgaged Property
by such Mortgagor, the related lessee, franchisor or operator have been
issued and were valid and in full force and effect.
(xliii) Origination, Servicing and Collection Practices. The
origination, servicing and collection practices used by the Seller or
any prior holder of the Mortgage Note have been in all respects legal
and have met customary industry standards.
(xliv) Fee Simple. Such Mortgage Loan is secured in whole or
in material part by a fee simple interest.
(xlv) Fee Simple and Leasehold Interest. If such Mortgage Loan
is secured in whole or in part by the interest of the related Mortgagor
under a Ground Lease and by the related fee interest, then (A) such fee
interest is subject, and subordinated of record, to the related
Mortgage, (B) the related Mortgage does not by its terms provide that
it will be subordinated to the lien of any other mortgage or other lien
upon such fee interest, and
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(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.
(xlvi) Tax Lot; Utilities. Each related Mortgaged Property
constitutes one or more complete separate tax lots (or the related
Borrower 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.
(xlvii) Defeasance. If such Mortgage Loan is a Defeasance
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,
(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 regulation section
1.860G-2(a)(8)(i) and must be sufficient to make all scheduled payments
under the related Mortgage Note when due (assuming for each ARD
Mortgage Loan that it matures on its Anticipated Repayment Date or on
the date when any open prepayment period set forth in the related
Mortgage Loan documents commences) or, in the case of a partial
defeasance that effects the release of a material portion of the
related Mortgaged Property, to make all scheduled payments under the
related Mortgage Note on that part of such Mortgage Loan equal to at
least 115% 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) the
Mortgage Loan be assumed by a successor entity designated by the holder
of such Mortgage Loan, and (5) counsel provide an opinion letter to the
effect that the Trustee has a perfected security interest in such
Defeasance Collateral prior to any other claim or interest, or (C) if
such Mortgage Loan has a Cut-off Date Balance in excess of $15,000,000,
provide that the defeasance of such Mortgage Loan is subject to rating
confirmation by the Rating Agencies.
(xlviii) Primary Servicing Rights. No Person has been granted
or conveyed the right to primary service such Mortgage Loan or receive
any consideration in connection therewith except (A) as contemplated in
this Agreement with respect to primary servicers that are to be
sub-servicers of the Master Servicer, (B) as has been conveyed to
Wachovia, in its capacity as a primary servicer, or (C) as has been
terminated.
(xlix) Mechanics' and Materialmen's Liens. To the Seller's
knowledge, as of origination (A) the related Mortgaged Property is free
and clear of any and all mechanics' and materialmen's liens that are
not bonded, insured against or escrowed for, and (B) no rights are
outstanding that under law could give rise to any such lien that would
be prior or equal to the lien of the related Mortgage (unless
affirmatively covered by the title
-11-
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.
(l) Due Date. The Due Date for such Mortgage Loan is scheduled
to be the first day, the eighth day, the tenth day or the eleventh day
of each month.
(li) Assignment of Leases. Subject only to Permitted
Encumbrances, the related Assignment of Leases set forth in or separate
from the related Mortgage and delivered in connection with such
Mortgage Loan establishes and creates a valid and, subject only to the
exceptions in paragraph (v) above, enforceable first priority lien and
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.
Subject to applicable law and the limitations and exceptions set forth
in paragraph (v) above, the related Mortgage Loan documents permit the
mortgagee to seek the appointment of a receiver for rents, or allow the
mortgagee to enter into possession to collect rents or provide for
rents to be paid directly to the mortgagee under certain circumstances.
(lii) Borrower Formation or Incorporation. To the Seller's
knowledge, the related Mortgagor is a Person formed or incorporated in
a jurisdiction within the United States.
(liii) No Ownership Interest in Borrower. The Seller has no
ownership interest in the related Mortgaged Property or the related
Borrower 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
Borrower under the Mortgage or any other related Mortgage Loan
document.
(liv) No Undisclosed Common Ownership. To the Seller's
knowledge, no two properties securing Mortgage Loans are directly or
indirectly under common ownership except to the extent that such common
ownership has been specifically disclosed in the Mortgage Loan
Schedule.
(lv) 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.
(lvi) Usury. Such Mortgage Loan complied with or was exempt
from all applicable usury laws in effect at its date of origination.
-12-
(lvii) ARD Mortgage Loan. If such Mortgage Loan is an ARD
Mortgage Loan and has a Cut-off Date Balance of $15,000,000 or more,
then:
(A) the related Anticipated Repayment Date is not less
than five years from the origination date for such Mortgage
Loan;
(B) such Mortgage Loan provides that from the related
Anticipated Repayment Date through the maturity date for such
Mortgage Loan, all excess cash flow (net of normal monthly
debt service on such Mortgage Loan, monthly expenses
reasonably related to the operation of the related Mortgaged
Property, amounts due for reserves established under such
Mortgage Loan, and payments for any other expenses, including
capital expenses, related to such Mortgaged Property which are
approved by mortgagee) will be applied to repay principal due
under such Mortgage Loan; and
(C) no later than the related Anticipated Repayment
Date, the related Mortgagor is required (if it has not
previously done so) to enter into a "lockbox 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.
(lviii) 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.
-13-
SCHEDULE I TO EXHIBIT B
Exceptions to the Representations and Warranties
CONTROL
NUMBER PROPERTY ISSUE
------- -------- -----
EXCEPTIONS TO REPRESENTATION (V): LOAN DOCUMENT STATUS
----------------------------------------------------------------------------------------------------------------------------------
61 Xxxxxxx Portfolio The Mortgage Loan is fully recourse to a principal of the Borrower.
----------------------------------------------------------------------------------------------------------------------------------
107 Hill and Xxxx Apartments The Mortgage Loan is fully recourse to a principal of the Borrower.
----------------------------------------------------------------------------------------------------------------------------------
109 Lake Orion Self Storage The Mortgage Loan is fully recourse to a principal of the Borrower.
----------------------------------------------------------------------------------------------------------------------------------
30 000 Xxxx Xxxxx Xxxxx The Mortgage Loan is fully recourse to principals of the Borrower for the first
two years of the loan.
----------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XII): PROPERTY INSURANCE
----------------------------------------------------------------------------------------------------------------------------------
46 Xxxxx Portfolio The current insurance carrier ratings are BBB and B+ VIII; upon expiration of
those policies in July, 2002, the mortgagor is required to maintain insurance
from carriers which satisfy with the ratings specified in this representation.
----------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XX): ENVIRONMENTAL CONDITIONS
----------------------------------------------------------------------------------------------------------------------------------
69 29 Avenue C The environmental site assessment was performed more than 12 months prior to the
Cut-off Date.
----------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx The environmental site assessment was performed more than 12 months prior to the
Cut-off Date.
----------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXXI): QUALIFICATIONS, LICENSING, ZONING
----------------------------------------------------------------------------------------------------------------------------------
46 Xxxxx Portfolio Two of the six properties which are collateral for this mortgage loan may not
have sufficient parking to comply with current parking requirements. In the event
of an enforcement action, borrower is obligated to provide sufficient parking
spaces to satisfy current requirements or obtain a variance to comply.
In addition, an individual principal of the borrowing entity is personally liable
for losses resulting from the failure to comply with applicable parking
requirements.
----------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XX): ENGINEERING ASSESSMENTS
----------------------------------------------------------------------------------------------------------------------------------
69 29 Avenue C The engineering assessment was performed more than 12 months prior to the
Cut-off Date.
----------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx The engineering assessment was performed more than 12 months prior to the
Cut-off Date.
----------------------------------------------------------------------------------------------------------------------------------
SCHEDULE II TO EXHIBIT B
Exceptions to the Representations and Warranties
SCHEDULE II-XXV: DUE-ON-ENCUMBRANCE
----------------------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
------- -------- -----
----------------------------------------------------------------------------------------------------------------------------------
33 Anaheim Business Center Interests in the related Mortgagor has been pledged to secure mezzanine debt.
----------------------------------------------------------------------------------------------------------------------------------
SCHEDULE II-XXVII: BORROWER CONCENTRATION
----------------------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
------- -------- -----
----------------------------------------------------------------------------------------------------------------------------------
2 Square One Mall A principal in the Square One Mall Borrower is also a principal in the Dadeland
Mall Borrower.
----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT X-0
XXXXXXX XX XXXXXXXXXX, XXXXXXXXXX & XXXX
July 9, 2002
Addressees listed on Schedule A
RE: LB-UBS Commercial Mortgage Trust 2002-C2, Commercial Mortgage
Pass-Through Certificates, Series 2002-C2
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 8(k) of the
Mortgage Loan Purchase Agreement dated as of June 26, 2002 (the "MLPA"), among
UBS Warburg Real Estate Investments Inc., as seller (the "Seller"), UBS
Principal Finance LLC, as an additional party ("UBSPF") and Structured Asset
Securities Corporation, 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 $469,623,746 (the "UBS Mortgage Loans"), pursuant to the MLPA;
(ii) the execution by the Seller of the UBS Indemnification Agreement dated as
of June 26, 2002 (the "Indemnification Agreement"), by and among the Seller, UBS
(USA) Inc. ("UBS (USA)," and together with the Seller and UBSPF, the "UBS
Entities"), SASC and the Underwriters (as defined below); and (iii) the
acknowledgement by the Seller of certain sections of the Underwriting Agreement
dated as of June 26, 2002 (the "Underwriting Agreement"), by and among SASC,
Xxxxxx Brothers Inc. ("Xxxxxx"), Deutsche Bank Securities Inc. ("Deutsche Bank")
and UBS Warburg LLC ("UBSW," and together with Xxxxxx and Deutsche Bank, the
"Underwriters") and acknowledged with respect to certain sections by the Seller
and Xxxxxx Brothers Holdings Inc.
We have also acted as special counsel to UBS (USA) in
connection with the execution by UBS (USA) of the Indemnification Agreement and
to UBSPF in connection with the execution by UBSPF of the MLPA.
The MLPA, the Indemnification Agreement and Underwriting
Agreement are collectively referred to herein as the "Agreements." Capitalized
terms not defined herein have the respective meanings set forth in the MLPA.
In rendering the opinions set forth below, we have examined
and, as to factual matters relevant to the opinions set forth below, relied upon
the originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Agreements and such certificates,
corporate and public records, agreements, instruments and other documents,
including, among other things, the documents and agreements delivered at the
closing of the purchase and sale of the Certificates (the "Closing"), as we have
deemed appropriate as a basis for the opinions expressed below. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens, and the accuracy of the factual matters
set forth in the documents, agreements and instruments we reviewed. As to any
facts material to the opinions expressed below that were not known to us, we
have relied upon statements, certificates and representations of officers and
other representatives of the UBS Entities, SASC and the Underwriters, including
those contained in the Agreements and other documents, certificates, agreements
and opinions delivered at the Closing, and of public officials. Except as
expressly set forth herein, we have not undertaken any independent investigation
(including, without limitation, conducting any review, search or investigation
of any public files, records or dockets) to determine the existence or absence
of the facts that are material to our opinion, and no inference as to our
knowledge concerning such facts should be drawn from our reliance on the
representations of the UBS Entities and others in connection with the
preparation and delivery of this letter. We have examined such questions of law
as we have deemed necessary for purposes of these opinions.
We have also assumed that all documents, agreements and
instruments have been duly authorized, executed and delivered by all parties
thereto, that all such parties had the power and legal right to execute and
deliver all such documents, agreements and instruments, and, except as to the
UBS Entities, that such documents, agreements and instruments are valid, binding
and enforceable obligations of such parties. As used herein, "to our knowledge,"
"known to us" or words of similar import mean the actual knowledge, without
independent investigation, of any lawyer in our firm actively involved in the
transactions contemplated by the Agreements.
We express no opinion concerning the laws of any jurisdiction
other than the laws of the State of New York and federal laws (without regard to
conflicts of laws principles) of the United States of America.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The MLPA and the Underwriting Agreement each constitutes
the legal, valid and binding agreement of the Seller,
and the MLPA constitutes the legal, valid and binding
agreement of UBSPF, enforceable against the Seller or
UBSPF, as applicable, in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, receivership or
other laws relating to or affecting creditors' rights
generally, and to general principles of equity
(regardless of whether enforceability is considered in a
proceeding in equity or at law), and except that the
enforcement of rights with respect to indemnification
and contribution obligations and provisions (a)
purporting to waive or limit rights to trial by jury,
oral amendments to written agreements or rights of
set off or (b) relating to submission to jurisdiction,
venue or service of process, may be limited by
applicable law and considerations of public policy.
2. None of the sale of the UBS Mortgage Loans, the
consummation by the Seller or UBSPF, as applicable, of
any of the other transactions contemplated by the
Agreements to which it is a party or the execution,
delivery and performance of the terms of the Agreements
to which it is a party by the Seller or UBSPF, as
applicable, will conflict with, or result in the
violation of, any New York State or federal law that is
applicable to the Seller or UBSPF, as applicable.
3. The execution, delivery and performance of the terms of
the Indemnification Agreement by UBS (USA) will not
conflict with, or result in the violation of, any New
York State or federal law that is applicable to UBS
(USA).
4. The execution, delivery and performance by (a) the
Seller of the Agreements, (b) UBSPF of the MLPA, and (c)
UBS (USA) of the Indemnification Agreement, and the
consummation by the Seller, UBSPF and UBS (USA), as
applicable, of the transactions contemplated under the
Agreements, the MLPA and the Indemnification Agreement,
respectively, do not require any consent, approval,
license, authorization or validation of, or filing,
recording or registration with, any executive,
legislative, judicial, administrative or regulatory
bodies of the United States of America pursuant to those
laws, rules and regulations of the United States of
America which, in our experience, are normally
applicable to transactions of the type contemplated by
(a) the Agreements, to be obtained on the part of the
Seller, (b) the MLPA, to be obtained by UBSPF and (c)
the Indemnification Agreement to be obtained by UBS
(USA), except those that may be required under state
securities or blue sky laws, and such other approvals
that have been obtained and, to our knowledge, are in
effect.
We are furnishing this opinion letter to you solely for your
benefit in connection with the transactions referred to herein. This opinion
letter is not to be relied upon, used, circulated, quoted or otherwise referred
to by any other person or for any other purpose without our prior written
consent. In addition, we disclaim any obligation to update this opinion letter
for changes in fact or law, or otherwise.
Very truly yours,
SCHEDULE A
Structured Asset Securities Corporation Standard and Poor's Ratings Services, a
000 Xxxxxxx Xxxxxx division of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. LaSalle Bank National Association
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10019 Xxxxxxx, Xxxxxxxx 00000
UBS Warburg LLC Xxxxx'x Investors Service, Inc.
1285 Avenue of the Americas 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Deutsche Bank Securities Inc. Lend Lease Asset Management, L.P.
00 Xxxx 00xx Xxxxxx 000 Xxxxx Xxxxx Xxxxxx, Xxxx 0000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx, Xxxxx 00000
EXHIBIT C-2
OPINIONS OF IN-HOUSE COUNSEL TO THE SELLER, THE ADDITIONAL PARTY AND THE CO-
INDEMNITOR
July 9, 2002
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: LB-UBS Commercial Mortgage Trust 2002-C2, Commercial
Mortgage Pass-Through Certificates, Series 2002-C2
Ladies and Gentlemen:
I am Managing Director and Counsel of UBS AG. UBS Warburg Real
Estate Investments Inc., a Delaware corporation ("UBSREI"), is a wholly owned
subsidiary of UBS AG. I have been asked to deliver this opinion in connection
with (i) the sale by UBSREI and the purchase by Structured Asset Securities
Corporation ("SASC") of certain multi-family and commercial mortgage loans,
pursuant to a Mortgage Loan Purchase Agreement dated as of June 26, 2002 (the
"Sale Agreement"), by and among UBSREI, UBS Principal Finance LLC and SASC, (ii)
the execution by UBSREI of the Underwriting Agreement dated as of June 26, 2002,
(the "Underwriting Agreement"), by and among SASC, Xxxxxx Brothers Inc.
("Xxxxxx"), Deutsche Bank Securities Inc. ("Deutsche Bank") and UBS Warburg LLC
("UBSW" and, together with Xxxxxx and Deutsche Bank, the "Underwriters") and
acknowledged with respect to certain sections by UBSREI, and (iii) the execution
by UBSREI of the UBS Indemnification Agreement dated as of June 26, 2002, by and
among UBSREI, SASC, UBS (USA) Inc. and the Underwriters (the "Indemnification
Agreement", and, together with the Sale Agreement and the Underwriting
Agreement, the "Agreements"). Capitalized terms used and not otherwise defined
herein have the meanings given to them in the Underwriting Agreement.
I, or others under my supervision, have examined such
documents as I believe are necessary or appropriate for the purposes of this
opinion, including the articles of incorporation, by-laws and incumbency
resolution adopted by the directors of UBSREI and the Agreements and all
exhibits thereto. In reaching such opinions, I have assumed without
investigation, except as expressly set forth below, that there are no facts
inconsistent with the assumptions made in paragraphs A through D below.
A. All signatures of parties, other than UBSREI, on all
documents are genuine. Each person executing any such instrument, document or
agreement, whether individually or on behalf of a firm or other business entity,
other than UBSREI, is duly authorized to do so.
B. All documents submitted as original are authentic, and all
photostatic copies, and all copies certified by a governmental custodian or a
party to the transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf
of a business entity, are legally competent.
D. All other parties to documents, other than UBSREI, have the
requisite power and authority to consummate the transactions contemplated by the
Agreements and to execute and deliver the applicable documents.
Based on my review of the foregoing and such other
considerations of law and fact as I believe to be relevant, and subject to the
limitations, assumptions and qualifications set forth herein, I am of the
opinion that:
1. Each of the Agreements has been duly authorized, executed
and delivered by UBSREI.
2. UBSREI is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and has the
requisite power and authority to enter into and perform its obligations under
the Agreements.
3. The execution, delivery and performance of the terms of the
Agreements will not result in the breach or violation of or a default under any
material order or decree of any court, regulatory body, administrative agency or
governmental body having jurisdiction over UBSREI and known to me as being
applicable to UBSREI.
4. There is no action, suit or proceeding against, or
investigation of, UBSREI pending or, to my knowledge, threatened against UBSREI
before any court, administrative agency or other tribunal which, either
individually or in the aggregate, (a) asserts the invalidity of the Agreements,
(b) seeks to prevent the consummation of any of the transactions contemplated by
the Agreements or (c) would materially and adversely affect (i) the performance
by UBSREI of its obligations under, or the validity or enforceability of, the
Agreements, or (ii) any rights with regard to the Mortgaged Properties or the
Mortgage Loans.
5. No consent, approval, authorization or order of, and no
filing or registration with, any court or governmental agency or regulatory
body, of which I have actual knowledge, the absence of which would have a
material adverse effect on UBSREI or the transactions contemplated by the
Agreements, is required on the part of UBSREI for the execution, delivery or
performance by UBSREI of the Agreements, except those which have been obtained
and are in full force and effect.
6. The execution, delivery and performance by UBSREI of, and
the consummation of the transactions contemplated by, the Agreements do not and
will not result in a breach of any term or provision of the organizational
documents of UBSREI or in a breach of, constitute a default under, require any
consent under, or result in the acceleration or require prepayment of any
indebtedness pursuant to the terms of, any agreement or instrument, of which I
have actual knowledge, to which UBSREI is a party or by which it is bound or to
which it is subject, or result in the creation or imposition of any lien upon
any property of UBSREI pursuant to the terms of any such agreement or
instrument, any of which occurrences, either in any one instance or in the
aggregate,
would call into question the validity of the Agreements or be reasonably likely
to impair materially the ability of UBSREI to perform under the terms of the
Agreements.
In addition to the qualifications set forth above, the
opinions herein are also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the
opinions expressed herein concern only the laws of the State of New York, as
currently in effect, the corporation law of the State of Delaware, as currently
in effect, and solely with respect to paragraphs 3 and 4 above, the federal laws
of the United States of America, as currently in effect.
2. I assume no obligation to supplement this opinion if, after
the date hereof, any applicable laws change or I become aware of any facts that
might change the opinions set forth herein.
3. The opinions are limited to the matters set forth in this
letter. No other opinions should be inferred beyond the matters expressly
stated.
The opinions expressed in this letter may be relied upon
solely by the addressees hereof solely with respect to the transactions
described in the Agreements, and may not be relied upon by any other person or
entity, without my specific prior written consent.
Sincerely,
Xxxx Xxxxxx
Executive Director
SCHEDULE A
UBS Warburg LLC Standard and Poor's Ratings Services, a Division
1285 Avenue of the Americas of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, XX 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Brothers Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Deutsche Bank Securities Inc. Structured Asset Securities Corporation
00 Xxxx 00xx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Lend Lease Asset Management, L.P.
000 Xxxxx Xxxxx Xxxxxx, Xxxx 0000
Xxxxxx, XX 00000
July 9, 2002
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: LB-UBS Commercial Mortgage Trust 2002-C2, Commercial
Mortgage Pass-Through Certificates, Series 2002-C2
Ladies and Gentlemen:
I am Managing 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 Warburg Real Estate Investments Inc. and the purchase
by Structured Asset Securities Corporation ("SASC") of certain multi-family and
commercial mortgage loans, pursuant to a Mortgage Loan Purchase Agreement dated
as of June 26, 2002 (the "Agreement"), by and among SASC, as purchaser, UBS
Warburg Real Estate Investments Inc., as seller, and UBSPF, as additional party.
Capitalized terms used and not otherwise defined herein have the meanings given
to them in the Agreement.
I, or others under my supervision, have examined such
documents as I believe are necessary or appropriate for the purposes of this
opinion, including the certificate of formation, incumbency resolution and
limited liability company agreement adopted by the members of UBSPF and the
Agreement and all exhibits thereto. In reaching such opinions, I have assumed
without investigation, except as expressly set forth below, that there are no
facts inconsistent with the assumptions made in paragraphs A through D below.
A. All signatures of parties, other than UBSPF, on all
documents are genuine. Each person executing any such instrument, document or
agreement, whether individually or on behalf of a firm or other business entity,
other than UBSPF, is duly authorized to do so.
B. All documents submitted as original are authentic, and all
photostatic copies, and all copies certified by a governmental custodian or a
party to the transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf
of a business entity, are legally competent.
D. All other parties to documents, other than UBSPF, have the
requisite power and authority to consummate the transactions contemplated by the
Agreement and to execute and deliver the applicable documents.
Based on my review of the foregoing and such other considerations of
law and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
1. The Agreement has been duly authorized, executed and
delivered by UBSPF.
2. UBSPF is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has the requisite power and authority to enter into and perform its
obligations under the Agreement.
3. The execution, delivery and performance of the terms of the
Agreement will not result in the breach or violation of or a default under any
material order or decree of any court, regulatory body, administrative agency or
governmental body having jurisdiction over UBSPF and known to me as being
applicable to UBSPF.
4. There is no action, suit or proceeding against, or
investigation of, UBSPF pending or, to my knowledge, threatened against UBSPF
before any court, administrative agency or other tribunal which, either
individually or in the aggregate, (a) asserts the invalidity of the Agreement,
(b) seeks to prevent the consummation of any of the transactions contemplated by
the Agreement or (c) would materially and adversely affect (i) the performance
by UBSPF of its obligations under, or the validity or enforceability of, the
Agreement, or (ii) any rights with regard to the Mortgaged Properties or the
Mortgage Loans.
5. No consent, approval, authorization or order of, and no
filing or registration with, any court or governmental agency or regulatory
body, of which I have actual knowledge, the absence of which would have a
material adverse effect on UBSPF or the transactions contemplated by the
Agreement, is required on the part of UBSPF for the execution, delivery or
performance by UBSPF of the Agreement, except those which have been obtained and
are in full force and effect.
6. The execution, delivery and performance by UBSPF of, and
the consummation of the transactions contemplated by, the Agreement do not and
will not result in a breach of any term or provision of the certificate of
formation or limited liability company agreement of UBSPF or in a breach of,
constitute a default under, require any consent under, or result in the
acceleration or require prepayment of any indebtedness pursuant to the terms of,
any agreement or instrument, of which I have actual knowledge, to which UBSPF is
a party or by which it is bound or to which it is subject, or result in the
creation or imposition of any lien upon any property of UBSPF pursuant to the
terms of any such agreement or instrument, any of which occurrences, either in
any one instance or in the aggregate, would call into question the validity of
the Agreement or be reasonably likely to impair materially the ability of UBSPF
to perform under the terms of the Agreement.
In addition to the qualifications set forth above, the
opinions herein are also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the
opinions expressed herein concern only the laws of the State of New York, as
currently in effect, the limited liability company law of the State of Delaware,
as currently in effect, and solely with respect to paragraphs 3 and 4 above, the
federal laws of the United States of America, as currently in effect.
2. I assume no obligation to supplement this opinion if, after
the date hereof, any applicable laws change or I become aware of any facts that
might change the opinions set forth herein.
3. The opinions are limited to the matters set forth in this
letter. No other opinions should be inferred beyond the matters expressly
stated.
The opinions expressed in this letter may be relied upon
solely by the addressees hereof solely with respect to the transactions
described in the Agreement, and may not be relied upon by any other person or
entity, without my specific prior written consent.
Sincerely,
Xxxx Xxxxxx
Executive Director
SCHEDULE A
UBS Warburg LLC Standard and Poor's Ratings Services, a Division
1285 Avenue of the Americas of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, XX 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Brothers Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Deutsche Bank Securities Inc. Structured Asset Securities Corporation
00 Xxxx 00xx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Lend Lease Asset Management, L.P.
000 Xxxxx Xxxxx Xxxxxx, Xxxx 0000
Xxxxxx, XX 00000
July 9, 2002
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
RE: LB-UBS Commercial Mortgage Trust 2002-C2, Commercial
Mortgage Pass-Through Certificates, Series 2002-C2
Ladies and Gentlemen:
I am Managing Director and Counsel of UBS AG. UBS (USA) Inc.,
a Delaware corporation ("UBS(USA)"), is a wholly owned subsidiary of UBS AG, and
I have acted as counsel to UBS(USA) with respect to certain matters in
connection with the UBS Indemnification Agreement dated as of June 26, 2002 (the
"Indemnification Agreement") by and among UBS Warburg Real Estate Investments
Inc. ("UBSREI"), UBS(USA), Structured Asset Securities Corporation
("Depositor"), Xxxxxx Brothers Inc. ("Xxxxxx"), UBS Warburg LLC ("UBSW") and
Deutsche Bank Securities Inc. ("Deutsche Bank" and, together with Xxxxxx and
USBW, the "Underwriters"). Capitalized terms not defined herein have the meaning
assigned to them in the Indemnification Agreement.
I, or others under my supervision, have examined such
documents as I believe are necessary or appropriate for the purposes of this
opinion, including the certificate of incorporation and by-laws adopted by the
board of directors of UBS(USA) and the Indemnification Agreement and all
exhibits thereto. In reaching such opinions, I have assumed without
investigation, except as expressly set forth below, that there are no facts
inconsistent with the assumptions made in paragraphs A through D below.
A. All signatures of parties, other than UBS(USA), on all
documents are genuine. Each person executing any such instrument, document or
agreement, whether individually or on behalf of a firm or other business entity,
other than UBS(USA), is duly authorized to do so.
B. All documents submitted as original are authentic, and all
photostatic copies, and all copies certified by a governmental custodian or a
party to the transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf
of a business entity, are legally competent.
D. All other parties to documents, other than UBS(USA), have
the requisite power and authority to consummate the transactions contemplated by
the Indemnification Agreement and to execute and deliver the applicable
documents.
Based on my review of the foregoing and such other considerations of
law and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
1. The Indemnification Agreement has been duly authorized,
executed and delivered by UBS(USA).
2. UBS(USA) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and has the
requisite power and authority to enter into and perform its obligations under
the Indemnification Agreement.
3. The execution, delivery and performance of the terms of the
Indemnification Agreement will not result in the breach or violation of or a
default under any material order or decree of any court, regulatory body,
administrative agency or governmental body having jurisdiction over UBS(USA) and
known to me as being applicable to UBS(USA).
4. There is no action, suit or proceeding against, or
investigation of, UBS(USA) pending or, to my knowledge, threatened against
UBS(USA) before any court, administrative agency or other tribunal which, either
individually or in the aggregate, (a) asserts the invalidity of the
Indemnification Agreement, (b) seeks to prevent the consummation of any of the
transactions contemplated by the Indemnification Agreement or (c) would
materially and adversely affect the performance by UBS(USA) of its obligations
under, or the validity or enforceability of, the Indemnification Agreement.
5. No consent, approval, authorization or order of, and no
filing or registration with, any court or governmental agency or regulatory
body, of which I have actual knowledge, the absence of which would have a
material adverse effect on UBS(USA) or the transactions contemplated by the
Indemnification Agreement, is required on the part of UBS(USA) for the
execution, delivery or performance by UBS(USA) of the Indemnification Agreement,
except those which have been obtained and are in full force and effect.
6. The execution, delivery and performance by UBS(USA) of, and
the consummation of the transactions contemplated by, the Indemnification
Agreement do not and will not result in the breach of any term or provision of
the certificate of incorporation or by-laws of UBS(USA) or in a breach of,
constitute a default under, require any consent under, or result in the
acceleration or require prepayment of any indebtedness pursuant to the terms of,
any agreement or instrument of which I have actual knowledge to which UBS(USA)
is a party or by which it is bound or to which it is subject, or result in the
creation or imposition of any lien upon any property of UBS(USA) pursuant to the
terms of any such agreement or instrument, any of which occurrences, either in
any one instance or in the aggregate, would call into question the validity of
the Indemnification Agreement or be reasonably likely to impair materially the
ability of UBS(USA) to perform under the terms of the Indemnification Agreement.
In addition to the qualifications set forth above, the
opinions herein are also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the
opinions expressed herein concern only the laws of the State of New York, as
currently in effect, the corporate law of the State of Delaware, as currently in
effect, and solely with respect to paragraphs 3 and 4 above, the federal laws of
the United States of America, as currently in effect.
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 Indemnification Agreement, and may not be relied upon by any
other person or entity, without my specific prior written consent.
Sincerely,
Xxxx Xxxxxx
Executive Director
SCHEDULE A
UBS Warburg LLC Standard and Poor's Ratings Services, a Division
1285 Avenue of the Americas of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, XX 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx Brothers Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Deutsche Bank Securities Inc. Structured Asset Securities Corporation
00 Xxxx 00xx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Lend Lease Asset Management, L.P.
000 Xxxxx Xxxxx Xxxxxx, Xxxx 0000
Xxxxxx, XX 00000
