EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of April 11, 2005
(the "Agreement"), between UBS Real Estate Investments Inc. (together with its
successors and permitted assigns hereunder, the "Seller"), UBS Principal Finance
LLC, as an additional party responsible for the Seller's obligations hereunder
(in such capacity, together with its successors and permitted assigns hereunder,
the "Additional Party"), and Structured Asset Securities Corporation II
(together with its successors and permitted assigns hereunder, the "Purchaser").
The Seller intends to sell and the Purchaser intends to
purchase certain multifamily and commercial mortgage loans (the "Mortgage
Loans") as provided herein. The Purchaser intends to deposit the Mortgage Loans,
together with certain other multifamily and commercial mortgage loans (the
"Other Loans"; and, together with the Mortgage Loans, the "Securitized Loans"),
into a trust fund (the "Trust Fund"), the beneficial ownership of which will be
evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates") to be identified as the LB-UBS Commercial
Mortgage Trust 2005-C2, Commercial Mortgage Pass-Through Certificates, Series
2005-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 to be dated as of April 11,
2005 (the "Pooling and Servicing Agreement"), between the Purchaser, as
depositor, Xxxxx Fargo Bank, National Association, as master servicer (the
"Master Servicer"), Lennar Partners, Inc., as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee"), and
ABN AMRO Bank N.V., as fiscal agent. Capitalized terms used but not defined
herein have the respective meanings set forth in the Pooling and Servicing
Agreement, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with Xxxxxx Brothers
Inc. ("Xxxxxx") and UBS Securities LLC ("UBS Securities" and, together with
Xxxxxx in such capacity, the "Underwriters"), whereby the Purchaser will sell to
the Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Purchaser has
also entered into a Certificate Purchase Agreement (the "Certificate Purchase
Agreement"), dated as of the date hereof, with Xxxxxx and UBS Securities
(together in such capacity, the "Placement Agents"), whereby the Purchaser will
sell to the Placement Agents all of the remaining Certificates (other than the
Residual Interest Certificates).
In connection with the transactions contemplated hereby, the
Seller, UBS Americas Inc. (the "Co-Indemnitor"), the Purchaser, the Underwriters
and the Placement Agents have entered into an Indemnification Agreement (the
"Indemnification Agreement"), dated as of the date hereof.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to
purchase, the Mortgage Loans identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Exhibit A. The Mortgage
Loan Schedule may be amended to reflect the actual Mortgage Loans accepted by
the Purchaser pursuant to the terms hereof. The Mortgage Loans will have an
aggregate principal balance of $878,046,090 (the "Initial UBS Pool Balance")
as of the close of business on the Cut-off Date, after giving effect to any and
all payments of principal due thereon on or before such date, whether or not
received. The purchase and sale of the Mortgage Loans shall take place on April
20, 2005 or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The consideration for the Mortgage Loans shall
consist of: (A) a cash amount equal to a percentage (mutually agreed upon by the
parties hereto) of the Initial UBS Pool Balance, plus interest accrued on each
Mortgage Loan at the related Mortgage Rate (net of the related Administrative
Cost Rate), for the period from and including April 11, 2005 up to but not
including the Closing Date, which cash amount shall be paid to the Seller or its
designee by wire transfer in immediately available funds (or by such other
method as shall be mutually acceptable to the parties hereto) on the Closing
Date; and (B) a 39.36390% Percentage Interest in each Class of Residual Interest
Certificates (all such Residual Interest Certificates, the "Seller's Residual
Interest Certificates").
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt
of the purchase price referred to in Section 1 hereof and satisfaction or waiver
of the conditions to closing set forth in Section 7 hereof, the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse, all the right, title and interest of the Seller (other than
the primary servicing rights) in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive
all scheduled payments of principal and interest due after the Cut-off Date, and
all other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf
of the initial Purchaser, deliver to and deposit with (i) the Trustee or a
Custodian appointed thereby, a Mortgage File for each Mortgage Loan in
accordance with the terms of, and conforming to the requirements set forth in,
the Pooling and Servicing Agreement, with copies of each Mortgage File to be
delivered by the Trustee to, upon request, the Master Servicer (at the expense
of the Trustee), within 10 Business Days of such request; and (ii) the Master
Servicer (or, at the direction of the Master Servicer, to the appropriate
Sub-Servicer), all unapplied Escrow Payments and Reserve Funds in the possession
or under the control of the Seller that relate to the Mortgage Loans.
(d) The Seller shall retain,with respect to each Mortgage
Loan, an Independent third party (the "Recording/Filing Agent"), through which
it shall: (i) as and in the manner provided in the Pooling and Servicing
Agreement (and in any event within 45 days following the later of the Closing
Date and the date on which all necessary recording or filing, as applicable,
information is available to the subject Recording/Filing Agent), submit for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC Financing Statements, as applicable (A) each
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related assignment of Mortgage and assignment of Assignment of Leases in favor
of, and delivered under clause (iv) of the definition of Mortgage File to, the
Trustee, and (B) solely with respect to nursing facilities and hospitality
properties (identified on Schedule VI to the Pooling and Servicing Agreement),
each assignment of UCC Financing Statement, in favor of, and delivered under
clause (iv) of the definition of Mortgage File to, the Trustee; and (ii) cause
each such assignment of Mortgage, assignment of Assignment of Leases and
assignment of UCC Financing Statement to be delivered to the Trustee following
its return by the appropriate public office for real property records or UCC
Financing Statements, as applicable, with copies of any such returned
assignments to be delivered by the Trustee to the Master Servicer, at the
expense of the Seller, at least every 90 days after the Closing Date (or at
additional times upon the request of the Master Servicer if reasonably necessary
for the ongoing administration and/or servicing of the related Mortgage Loan by
the Master Servicer); provided that, in those instances where the public
recording office retains the original assignment of Mortgage or assignment of
Assignment of Leases, the Trustee shall obtain a certified copy of the recorded
original.
If any such assignment of Mortgage, assignment of Assignment
of Leases and/or assignment of UCC Financing Statement referred to in the
preceding paragraph is lost or returned unrecorded or unfiled, as the case may
be, because of a defect therein, then the Seller shall prepare or cause the
preparation of a substitute therefor or cure such defect, as the case may be,
and the Seller shall deliver such substitute or corrected document or instrument
to the Trustee (or, if the Mortgage Loan is then no longer subject to the
Pooling and Servicing Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of
all such recording, filing and delivery contemplated in the preceding two
paragraphs, including, without limitation, any out-of-pocket costs and expenses
that may be incurred by the Trustee in connection with any such recording,
filing or delivery performed by the Trustee at the Seller's request and the fees
of the Recording/Filing Agent.
(e) With respect to any Mortgage Loan, the following documents
(other than any document that constitutes part of the Mortgage File for such
Mortgage Loan): copies of any final appraisal, final survey, final engineering
report, final environmental report, opinion letters of counsel to the related
mortgagor delivered in connection with the closing of such Mortgage Loan, escrow
agreements, organization documentation for the related mortgagor, organizational
documentation for any related guarantor or indemnitor, if the related guarantor
or indemnitor is an entity, insurance certificates, leases for tenants
representing 25% or more of the annual income with respect to the related
Mortgaged Property, final seismic report and property management agreements, but
in each case, only if the subject document (a) was in fact obtained in
connection with the origination of such Mortgage Loan, (b) relates to the
administration or servicing of such Mortgage Loan, (c) is reasonably necessary
for the ongoing administration and/or servicing of such Mortgage Loan by the
Master Servicer or Special Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (d) is in the possession or under the
control of the Seller shall, within 45 days of the Closing Date, be delivered or
caused to be delivered by the Seller to the Master Servicer (or, at the
direction of the Master Servicer, to the applicable Sub-Servicer); provided that
the Seller shall not be required to deliver any draft documents, privileged or
other communications or correspondence, credit underwriting or due diligence
analyses or information, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations.
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(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) In connection with the obligations of the Master Servicer
under Sections 3.01(g) and 3.19(c) of the Pooling and Servicing Agreement, with
regard to each Mortgage Loan that is secured by the interests of the related
Mortgagor in a hospitality property (identified on Schedule VI to the Pooling
and Servicing Agreement) and each Mortgage Loan that has a related letter of
credit, the Seller shall deliver to and deposit with the Master Servicer, on or
before the Closing Date, any related franchise agreement, franchise comfort
letter and the original of such letter of credit. Further, in the event, with
respect to a Mortgage Loan with a related letter of credit, the Master Servicer
determines that a draw under such letter of credit has become necessary under
the terms thereof prior to the assignment of such letter of credit having been
effected in accordance with Section 3.01(g) of the Pooling and Servicing
Agreement, the Seller shall, upon the written direction of the Master Servicer,
use its best efforts to make such draw or to cause such draw to be made on
behalf of the Trustee.
(h) Pursuant to the Pooling and Servicing Agreement, the
Master Servicer shall review the documents with respect to each Mortgage Loan
delivered by the Seller pursuant to or as contemplated by Section 2(e) and
provide the Seller with a certificate (the "Master Servicer Certification")
within 90 days of the Closing Date acknowledging its receipt as of the date of
the Master Servicer Certification of such documents actually received; provided
that such review shall be limited to identifying the document received, the
Mortgage Loan to which it purports to relate, that it appears regular on its
face and that it appears to have been executed (where appropriate).
Notwithstanding anything to the contrary set forth herein, to the extent the
Seller has not been notified in writing of its failure to deliver any document
with respect to a Mortgage Loan required to be delivered pursuant to or as
contemplated by Section 2(e) hereof prior to the first anniversary of the date
of the Master Servicer Certification, the Seller shall have no obligation to
provide such document.
(i) In addition, on the Closing Date, the Seller shall deliver
to the Master Servicer for deposit in the Pool Custodial Account the Initial
Deposits relating to the Mortgage Loans.
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.
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(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Representing Party and, assuming
due authorization, execution and delivery hereof by the
Purchaser, constitutes a legal, valid and binding obligation of
the Representing Party, enforceable against the Representing
Party in accordance with its terms, except as such enforcement
may be limited by (A) bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws affecting the
enforcement of creditors' rights in general, and (B) general
equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Representing Party and the Representing Party's performance and
compliance with the terms of this Agreement will not (A)
violate the Representing Party's organizational documents, (B)
violate any law or regulation or any administrative decree or
order to which the Representing Party is subject, or (C)
constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result
in the breach of, any material contract, agreement or other
instrument to which the Representing Party is a party or by
which the Representing Party is bound.
(iv) The Representing Party is not in default with respect
to any order or decree of any court or any order, regulation or
demand of any federal, state, municipal or other governmental
agency or body, which default might have consequences that
would, in the Representing Party's reasonable and good faith
judgment, materially and adversely affect the condition
(financial or other) or operations of the Representing Party or
its properties or have consequences that would materially and
adversely affect its performance hereunder.
(v) The Representing Party is not a party to or bound by
any agreement or instrument or subject to any organizational
document or any other corporate or limited liability company
(as applicable) restriction or any judgment, order, writ,
injunction, decree, law or regulation that would, in the
Representing Party's reasonable and good faith judgment,
materially and adversely affect the ability of the Representing
Party to perform its obligations under this Agreement or that
requires the consent of any third person to the execution and
delivery of this Agreement by the Representing Party or the
performance by the Representing Party of its obligations under
this Agreement.
(vi) Except for the recordation and/or filing of
assignments and other transfer documents with respect to the
Mortgage Loans, as contemplated by Section 2(d) hereof, no
consent, approval, authorization or order of, registration or
filing with, or notice to, any court or governmental agency or
body, is required for the execution, delivery and performance
by the Representing Party of or compliance by the Representing
Party with this Agreement or the consummation of the
transactions contemplated by this Agreement; and no bulk sale
law applies to such transactions.
(vii) No litigation is pending or, to the best of the
Representing Party's knowledge, threatened against the
Representing Party that would, in the Representing Party's good
faith and reasonable judgment, prohibit its entering into this
Agreement or materially and adversely affect the performance by
the Representing Party of its obligations under this Agreement.
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(viii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Representing Party are pending
or contemplated.
In addition, the Seller hereby further represents and warrants
to, and covenants with, the Purchaser, as of the date hereof, that:
(i) Under generally accepted accounting principles
("GAAP") and for federal income tax purposes, the Seller will
report the transfer of the Mortgage Loans to the Purchaser, as
provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in
Section 1 hereof. In connection with the foregoing, the Seller
shall cause all of its records to reflect such transfer as a
sale (as opposed to a secured loan). The consideration received
by the Seller upon the sale of the Mortgage Loans to the
Purchaser will constitute at least reasonably equivalent value
and fair consideration for the Mortgage Loans. The Seller will
be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of
the creditors of the Seller. After giving effect to its
transfer of the Mortgage Loans to the Purchaser, as provided
herein, the value of the Seller's assets, either taken at their
present fair saleable value or at fair valuation, will exceed
the amount of the Seller's debts and obligations, including
contingent and unliquidated debts and obligations of the
Seller, and the Seller will not be left with unreasonably small
assets or capital with which to engage in and conduct its
business. The Mortgage Loans do not constitute all or
substantially all of the assets of the Seller. The Seller does
not intend to, and does not believe that it will, incur debts
or obligations beyond its ability to pay such debts and
obligations as they mature.
(ii) The Seller will acquire the Seller's Residual
Interest Certificates for its own account and not with a view
to, or sale or transfer in connection with, any distribution
thereof, in whole or in part, in any manner that would violate
the Securities Act or any applicable state securities laws.
(iii) The Seller understands that (A) the Seller's
Residual Interest Certificates have not been and will not be
registered under the Securities Act or registered or qualified
under any applicable state securities laws, (B) neither the
Purchaser nor any other party is obligated so to register or
qualify the Seller's Residual Interest Certificates and (C)
neither the Seller's Residual Interest Certificates nor any
security issued in exchange therefor or in lieu thereof may be
resold or transferred unless it is (1) registered pursuant to
the Securities Act and registered or qualified pursuant to any
applicable state securities laws or (2) sold or transferred in
a transaction which is exempt from such registration and
qualification and the Certificate Registrar has received the
certifications and/or opinions of counsel required by the
Pooling and Servicing Agreement.
(iv) The Seller understands that it may not sell or
otherwise transfer the Seller's Residual Interest Certificates,
any security issued in exchange therefor or in lieu thereof or
any interest in the foregoing except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing
Agreement, which provisions it has or, as of the Closing Date,
will have carefully reviewed, and that the Seller's Residual
Interest Certificates will bear legends that identify the
transfer restrictions to which such Certificates are subject.
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(v) Neither the Seller nor anyone acting on its behalf has
(A) offered, transferred, pledged, sold or otherwise disposed
of any Seller's Residual Interest Certificate, any interest in
a Seller's Residual Interest Certificate or any other similar
security to any person in any manner, (B) solicited any offer
to buy or accept a transfer, pledge or other disposition of any
Seller's Residual Interest Certificate, any interest in a
Seller's Residual Interest Certificate or any other similar
security from any person in any manner, (C) otherwise
approached or negotiated with respect to any Seller's Residual
Interest Certificate, any interest in a Seller's Residual
Interest Certificate or any other similar security with any
person in any manner, (D) made any general solicitation by
means of general advertising or in any other manner, or (E)
taken any other action, that (in the case of any of the acts
described in clauses (A) through (E) above) would constitute a
distribution of the Seller's Residual Interest Certificates
under the Securities Act, would render the disposition of the
Seller's Residual Interest Certificates a violation of Section
5 of the Securities Act or any state securities law or would
require registration or qualification of the Seller's Residual
Interest Certificates pursuant thereto. The Seller will not
act, nor has it authorized nor will it authorize any person to
act, in any manner set forth in the foregoing sentence with
respect to the Seller's Residual Interest Certificates, any
interest in the Seller's Residual Interest Certificates or any
other similar security.
(vi) The Seller has been furnished with all information
regarding (A) the Purchaser, (B) the Seller's Residual Interest
Certificates and distributions thereon, (C) the nature,
performance and servicing of the Other Loans, (D) the Pooling
and Servicing Agreement and the Trust Fund, and (E) all related
matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act
or (b) an "accredited investor" as defined in any of paragraphs
(1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all its equity owners are "accredited
investors" as defined in such paragraphs and has such knowledge
and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in
the Seller's Residual Interest Certificates. The Seller has
sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision;
and the Seller is able to bear the economic risks of such an
investment and can afford a complete loss of such investment.
(viii) The Seller is not a Plan and is not directly or
indirectly acquiring the Seller's Residual Interest
Certificates on behalf of, as named fiduciary of, as trustee of
or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a
Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser,
with respect to each Mortgage Loan, as of the Closing Date or as of such other
date expressly set forth therein, each of the representations and warranties set
forth on Exhibit B hereto.
(c) The Seller intends to transfer the Seller's Residual
Interest Certificates to JPMorgan Chase Bank, National Association on or about
the Closing Date; and, in connection therewith, the Seller will comply with all
of the requirements of Section 5.02 of the Pooling and Servicing Agreement, as
in effect on the Closing Date, and applicable law. The Seller hereby directs the
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Purchaser to cause the Seller's Residual Interest Certificates to be registered
in the name of JPMorgan Chase Bank, National Association upon initial issuance.
SECTION 4. Representations and Warranties of the Purchaser.
In order to induce the Seller to enter into this Agreement,
the Purchaser hereby represents and warrants for the benefit of the Seller and
the Additional Party as of the date hereof that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The Purchaser has the full corporate power and
authority and legal right to acquire the Mortgage Loans from
the Seller and to transfer the Mortgage Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser and, assuming due
authorization, execution and delivery hereof by the Seller and
the Additional Party, constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser
in accordance with its terms, except as such enforcement may be
limited by (A) bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws affecting the
enforcement of creditors' rights in general, and (B) general
equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with
the terms of this Agreement will not (A) violate the
Purchaser's organizational documents, (B) violate any law or
regulation or any administrative decree or order to which the
Purchaser is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute
a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Purchaser
is a party or by which the Purchaser is bound.
(iv) Except as may be required under federal or state
securities laws (and which will be obtained on a timely basis),
no consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or
court, is required for the execution, delivery and performance
by the Purchaser of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loans by the
Seller to the Purchaser, as provided herein, as a sale of the
Mortgage Loans to the Purchaser in exchange for the
consideration specified in Section 1 hereof.
SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller receives written notice with respect to any
Mortgage Loan (i) that any document constituting a part of clauses (i) through
(x) of the definition of Mortgage File has not been executed or is missing (a
"Document Defect") or (ii) of a breach of any of the Seller's representations
and warranties made pursuant to Section 3(b) hereof (each such breach, a
"Breach") relating to any
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Mortgage Loan, and such Document Defect or Breach materially and adversely
affects the value of the Mortgage Loan at the time of such notice, then such
Document Defect shall constitute a "Material Document Defect" or such Breach
shall constitute a "Material Breach", as the case may be. Then, following
receipt of a Seller/Depositor Notification with respect to such Material
Document Defect or Material Breach, as the case may be, the Seller shall
(subject to Sections 5(f), (g) and (h)), (A) not later than 90 days after (1)
the Seller and the Purchaser have agreed upon the existence of such Material
Document Defect or Material Breach or (2) a court of competent jurisdiction
makes a final non-appealable determination that a Material Document Defect or
Material Breach exists or (B) in the case of a Material Document Defect or
Material Breach that affects whether a Mortgage Loan was, as of the Closing
Date, is or will continue to be a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the
discovery by any party of such Material Document Defect or Material Breach
(either such 90-day period, in the case of (A) or (B), as applicable, an
"Initial Resolution Period"): (i) cure such Material Document Defect or Material
Breach, as the case may be, in all material respects (which cure shall include
payment of any out-of-pocket expenses that are reasonably incurred and directly
attributable to pursuing such a claim based on such Material Document Defect or
Material Breach associated therewith), or (ii) if such Material Document Defect
or Material Breach, as the case may be, cannot be cured within the Initial
Resolution Period, repurchase the affected Mortgage Loan (or the related
Mortgaged Property) from, and in accordance with the directions of, the
Purchaser or its designee, at a price equal to the Purchase Price; provided that
if (a) such Material Breach or Material Document Defect, as the case may be, is
capable of being cured but not within the applicable Initial Resolution Period,
(b) any such Material Breach or Material Document Defect, as the case may be,
does not affect whether the Mortgage Loan was, as of the Closing Date, is or
will continue to be a Qualified Mortgage, (c) the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(d) the Seller shall have delivered to the Purchaser a certification executed on
behalf of the Seller by an officer thereof confirming that such Material Breach
or Material Document Defect, as the case may be, is not capable of being cured
within the applicable Initial Resolution Period, setting forth what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed 90 days
beyond the end of the Initial Resolution Period, then the Seller shall have such
additional 90-day period (the "Resolution Extension Period"), to complete such
cure or, failing such, to repurchase the affected Mortgage Loan (or the related
Mortgaged Property); and provided, further, that, if any such Material Document
Defect is still not cured after the Initial Resolution Period and any such
Resolution Extension Period solely due to the failure of the Seller to have
received a recorded document, then the Seller shall be entitled to continue to
defer its cure and repurchase obligations in respect of such Material Document
Defect so long as the Seller certifies to the Purchaser every six months
thereafter that the Material Document Defect is still in effect solely because
of its failure to have received the recorded document and that the Seller is
diligently pursuing the cure of such defect (specifying the actions being
taken). The parties acknowledge that neither delivery of a certification or
schedule of exceptions to the Seller pursuant to Section 2.02(b) of the Pooling
and Servicing Agreement or otherwise nor possession of such certification or
schedule by the Seller shall, in and of itself, constitute delivery of notice of
any Material Document Defect or Material Breach or knowledge or awareness by the
Seller of any Material Document Defect or Material Breach.
If, during the period of deferral by the Seller of its cure
and repurchase obligations as contemplated by the last proviso of the
penultimate sentence of the preceding paragraph, the Mortgage
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Loan that is the subject of the Material Document Defect either becomes a
Specially Serviced Mortgage Loan or becomes the subject of a proposed or actual
assumption of the obligations of the related Mortgagor under such Mortgage Loan,
then, following receipt by the Seller of a Seller/Depositor Notification
providing notice of such event, the Seller shall cure the subject Material
Document Defect within the time period specified in such Seller/Depositor
Notification. If, upon the expiration of such period, the Seller has failed to
cure the subject Material Document Defect, the Master Servicer or the Special
Servicer, as applicable, shall be entitled (but not obligated) to perform the
obligations of the Seller with respect to curing the subject Material Document
Defect and, in the event of such an election, the Seller shall pay all
reasonable actual out-of-pocket costs and expenses in connection with the
applicable servicer's effecting such cure.
(b) [Reserved.]
(c) If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by the Seller as
contemplated by Section 5(a), then, prior to the subject repurchase, the Seller
or its designee shall use reasonable efforts, subject to the terms of the
related Mortgage Loans, to prepare and, to the extent necessary and appropriate,
have executed by the related Mortgagor and record, such documentation as may be
necessary to terminate the cross-collateralization between the Mortgage Loans in
such Cross-Collateralized Group that are to be repurchased, on the one hand, and
the remaining Mortgage Loans therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto;
provided that, if such Cross-Collateralized Group is still subject to the
Pooling and Servicing Agreement, then no such termination shall be effected
unless and until (i) the Purchaser or its designee has received from the Seller
(A) an Opinion of Counsel to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to the Grantor Trust and (B) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Certificates and (ii)
the Controlling Class Representative (if one is acting) has consented (which
consent shall not be unreasonably withheld and shall be deemed to have been
given if no written objection is received by the Seller within 10 Business Days
of the Controlling Class Representative's receipt of a written request for such
consent); and provided, further, that the Seller may, at its option, purchase
the entire Cross-Collateralized Group in lieu of terminating the
cross-collateralization. All costs and expenses incurred by the Purchaser or its
designee pursuant to this paragraph shall be included in the calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased. If the
cross-collateralization of any Cross-Collateralized Group is not or cannot be
terminated as contemplated by this paragraph, then, for purposes of (i)
determining whether the subject Breach or Document Defect, as the case may be,
materially and adversely affects the value of such Cross-Collateralized Group,
and (ii) the application of remedies, such Cross-Collateralized Group shall be
treated as a single Mortgage Loan.
(d) It shall be a condition to any repurchase of a Mortgage
Loan by the Seller pursuant to this Section 5 that the Purchaser shall have
executed and delivered such instruments of transfer or assignment then presented
to it by the Seller (or as otherwise required to be prepared, executed and
delivered under the Pooling and Servicing Agreement), in each case without
recourse, as shall be necessary to vest in the Seller the legal and beneficial
ownership of such Mortgage Loan (including any property acquired in respect
thereof or proceeds of any insurance policy with respect thereto), to the extent
that such ownership interest was transferred to the Purchaser hereunder. If any
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Mortgage Loan is to be repurchased as contemplated by this Section 5, the Seller
shall amend the Mortgage Loan Schedule to reflect the removal of such Mortgage
Loan and shall forward such amended schedule to the Purchaser.
(e) Any repurchase of a Mortgage Loan pursuant to this Section
5 shall be on a whole loan, servicing released basis. The Seller and the
Additional Party shall have no obligation to monitor the Mortgage Loans
regarding the existence of a Breach or Document Defect. It is understood and
agreed that the obligations of the Seller set forth in this Section 5 constitute
the sole remedies available to the Purchaser with respect to any Breach or
Document Defect.
(f) Notwithstanding the foregoing, if there exists a Breach of
that portion of the representation or warranty on the part of the Seller set
forth in, or made pursuant to, paragraph (xlviii) of Exhibit B to this
Agreement, specifically relating to whether or not the Mortgage Loan documents
or any particular Mortgage Loan document for any Mortgage Loan requires the
related Mortgagor to bear the reasonable costs and expenses associated with the
subject matter of such representation or warranty, as set forth in such
representation or warranty, then the Purchaser or its designee will direct the
Seller in writing to wire transfer to the Custodial Account, within 90 days of
receipt of such direction, the amount of any such reasonable costs and expenses
incurred by the Trust that (i) are due from the Mortgagor, (ii) otherwise would
have been required to be paid by the Mortgagor if such representation or
warranty with respect to such costs and expenses had in fact been true, as set
forth in the related representation or warranty, (iii) have not been paid by the
Mortgagor, (iv) are the basis of such Breach and (v) constitute "Covered Costs".
Upon payment of such costs, the Seller shall be deemed to have cured such Breach
in all respects. Provided that such payment is made, this paragraph describes
the sole remedy available to the Purchaser regarding any such Breach, regardless
of whether it constitutes a Material Breach, and the Seller shall not be
obligated to otherwise cure such Breach or repurchase the affected Mortgage Loan
under any circumstances. Amounts deposited in the Pool Custodial Account
pursuant to this paragraph shall constitute "Liquidation Proceeds" for all
purposes of the Pooling and Servicing Agreement (other than Section 3.11(c) of
the Pooling and Servicing Agreement).
(g) Subject to Section 5(f) and the last three sentences of
this paragraph, if the Seller determines that a Material Breach (other than a
Material Breach of a representation or warranty on the part of the Seller set
forth in and made pursuant to paragraph (xvii) of Exhibit B to this Agreement)
or a Material Document Defect with respect to a Mortgage Loan is not capable of
being cured in accordance with Section 5(a) hereof, then in lieu of repurchasing
such Mortgage Loan the Seller may, at its sole option, pay a cash amount equal
to the loss of value (each such payment, a "Loss of Value Payment") with respect
to such Mortgage Loan, which loss of value is directly attributed to such
Material Breach or Material Document Defect, as the case may be. The amount of
each such Loss of Value Payment shall be determined either (i) by mutual
agreement of the Special Servicer on behalf of the Trust with respect to the
subject Material Breach or Material Document Defect, as the case may be, and the
Seller, or (ii) by judicial decision; provided that, in the event there is a
legal action for determining the existence of a Material Breach or a Material
Document Defect with respect to any Mortgage Loan, such legal action must also
include a determination of the amount of the loss of value to such Mortgage Loan
directly attributed to such Material Breach or such Material Document Defect, as
the case may be. Provided that such payment is made, this paragraph describes
the sole remedy available to the Purchaser regarding any such Material Breach or
Material Document Defect and the Seller shall not be obligated to otherwise cure
such Material Breach or Material Document Defect or repurchase the affected
Mortgage Loan based on such Material Breach or Material Document Defect under
any circumstances. Notwithstanding
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the foregoing provisions of this Section 5(g), if substantially all of the loss
of value to a Mortgage Loan was caused by a Material Breach or Material Document
Defect, which Material Breach or Material Document Defect is not capable of
being cured, this Section 5(g) shall not apply and the Seller shall be obligated
to repurchase the affected Mortgage Loan at the applicable Purchase Price in
accordance with Section 5(a). Furthermore, the Seller shall not have the option
of delivering Loss of Value Payments in connection with any Material Breach
relating to a Mortgage Loan's failure to be a Qualified Mortgage. In the event
there is a Loss of Value Payment made by the Seller in accordance with this
Section 5(g), the amount of such Loss of Value Payment shall be deposited into
the Loss of Value Reserve Fund to be applied in accordance with Section 3.05(e)
of the Pooling and Servicing Agreement.
In the event the amount of any Loss of Value Payment is
determined by judicial decision, then such Loss of Value Payment shall also
include the payment of any costs and expenses (including costs incurred in
establishing the amount of any related loss of value to the subject Mortgage
Loan) that are: (i) reasonably incurred in good faith by the Master Servicer,
the Special Servicer and/or the Trustee (on behalf of the Trust) in enforcing
the rights of the Trust against the Seller with respect to the subject Material
Breach or Material Document Defect, as the case may be; and (ii) directly
attributable to the enforcement of the rights of the Trust with respect to the
subject Material Breach or Material Document Defect, as the case may be;
provided that, that in the event the Seller tenders a loss of value payment in a
specified amount in connection with a Material Breach or Material Document
Defect, as the case may be, prior to the institution of legal proceedings and
that offer is rejected and an amount equal to or less than the loss of value
payment originally tendered by the Seller is ultimately determined by judicial
decision to be the actual amount of the Loss of Value Payment attributed to such
Material Breach or Material Document Defect, as the case may be, then that Loss
of Value Payment shall not include the payment of any costs or expenses incurred
by the Master Servicer, the Special Servicer and/or the Trustee in connection
with the subject litigation; provided, further, that if the Special Servicer
request a loss of value payment from the Seller of a specified amount in
connection with a Material Breach or Material Document Defect, as the case may
be, and the Seller refuses to pay that amount and an amount equal to or greater
than the loss of value payment originally requested by the Special Servicer is
ultimately determined by judicial decision to be the actual Loss of Value
Payment attributable to such Material Document Defect or Material Breach, then
that Loss of Value Payment shall also include the payment of all costs and
expenses reasonably incurred in connection with that judicial determination; and
provided, further, that, if the Seller tenders a loss of value payment in
connection with a Material Breach or Material Document Defect, as the case may
be, in a specified amount, and the Special Servicer rejects such tender and
requests a greater loss of value payment amount, and an amount in between the
respective amounts tendered and requested is ultimately determined by judicial
decision to be the actual Loss of Value Payment attributable to such Material
Breach or Material Document Defect, as the case may be, then that Loss of Value
Payment shall also include the payment of an amount equal to the product of (i)
all costs and expenses reasonably incurred in connection with that judicial
determination, multiplied by (ii) a fraction, the numerator of which is the
excess of the amount determined by judicial decision over the amount tendered by
the Seller, and the denominator of which is the excess of the amount requested
by the Special Servicer over the amount tendered by the Seller. Notwithstanding
the foregoing, in the event any Loss of Value Payment is determined by the
parties hereto by mutual agreement (and not by a judicial decision), that Loss
of Value Payment shall not include any costs and expenses incurred by the Master
Servicer, the Special Servicer or the Trustee unless such costs and expenses
were specifically included in such mutual agreement.
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(h) Notwithstanding the foregoing, if there exists a Material
Breach of the representation or warranty on the part of the Seller set forth in
and made pursuant to paragraph (xvii) of Exhibit B to this Agreement, and the
subject Mortgage Loan becomes a Qualified Mortgage prior to the expiration of
the Initial Resolution Period applicable to a Material Document Defect or
Material Breach that affects whether a Mortgage Loan is a Qualified Mortgage,
and without otherwise causing an Adverse REMIC Event or an Adverse Grantor Trust
Event, then such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such Breach.
SECTION 6. Obligations of the Additional Party.
The Additional Party hereby covenants and agrees with the
Purchaser that the Additional Party shall be liable to the Purchaser and any
designee thereof to the same extent as the Seller as set forth herein, for all
the obligations of the Seller under Section 5 hereof. The Additional Party
further agrees that the Purchaser shall not be bound or obligated to initially
request the Seller to perform any of its obligations hereunder, but may instead
initially request the Additional Party to perform such obligations.
Additionally, the Additional Party agrees that the Purchaser shall not be bound
or obligated in anyway to exhaust recourse against the Seller before being
entitled to demand the performance by the Additional Party of its obligations
hereunder. Performance by the Additional Party of any of the Seller's
obligations hereunder shall be deemed to be performance thereof by the Seller.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller
and the Additional Party set forth in or made pursuant to Sections 3(a) and 3(b)
of this Agreement, and all of the representations and warranties of the
Purchaser set forth in Section 4 of this Agreement, shall be true and correct in
all material respects as of the Closing Date;
(b) Insofar as it affects the obligations of the Seller
hereunder, the Pooling and Servicing Agreement shall be in a form mutually
acceptable to the Purchaser and the Seller;
(c) All documents specified in Section 8 of this Agreement
(the "Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the
Trustee (or a Custodian on its behalf), the Master Servicer and the Special
Servicer all documents and funds required to be delivered to the Trustee, the
Master Servicer and the Special Servicer, respectively, pursuant to Section 2 of
this Agreement;
(e) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been complied with
in all material respects, and the Seller and
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Additional Party shall have the ability to comply with all terms and conditions
and perform all duties and obligations required to be complied with or performed
after the Closing Date;
(f) The Seller shall have paid all fees and expenses payable
by it to the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its terms.
All parties hereto agree to use their best efforts to perform
their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed by the Purchaser, the Seller
and the Additional Party;
(b) The Pooling and Servicing Agreement duly executed by the
parties thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) Certificates of each of the Seller and the Additional
Party, executed by a duly authorized officer of the Seller or the Additional
Party, as the case may be, and dated the Closing Date, and upon which the
initial Purchaser, the Underwriters and the Placement Agents may rely, to the
effect that: (i) the representations and warranties of the Seller or the
Additional Party, as the case may be, in this Agreement and, in the case of the
Seller, in the Indemnification Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on such
date; and (ii) the Seller or the Additional Party, as the case may be, has, in
all material respects, complied with all the agreements and satisfied all the
conditions on its part that are required under this Agreement to be performed or
satisfied at or prior to the Closing Date;
(e) An Officer's Certificate from an officer of each of the
Seller and the Additional Party, in his or her individual capacity, dated the
Closing Date, and upon which the initial Purchaser, the Underwriters and the
Placement Agents may rely, to the effect that each individual who, as an officer
or representative of the Seller or the Additional Party, as the case may be,
signed this Agreement, the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein or, in the case of the Seller, in the
Indemnification Agreement, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed, qualified
and acting as such officer or representative, and the signatures of such persons
appearing on such documents and certificates are their genuine signatures;
(f) As certified by an officer of each of the Seller and the
Additional Party, true and correct copies of (i) the resolutions of the board of
directors authorizing the Seller's entering into the transactions contemplated
by this Agreement and, in the case of the Seller, the Indemnification Agreement,
(ii) the organizational documents of each of the Seller and the Additional
Party, and (iii) a
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certificate of good standing of each of the Seller and the Additional Party,
issued by the Secretary of State of the State of Delaware not earlier than 10
days prior to the Closing Date;
(g) A Certificate of the Co-Indemnitor, executed by a duly
authorized officer of the Co-Indemnitor and dated the Closing Date, and upon
which the initial Purchaser, the Underwriters and the Placement Agents may rely,
to the effect that the representations and warranties of the Co-Indemnitor in
the Indemnification Agreement are true and correct in all material respects at
and as of the Closing Date with the same effect as if made on such date;
(h) An Officer's Certificate from an officer of the
Co-Indemnitor, in his or her individual capacity, dated the Closing Date, and
upon which the initial Purchaser, the Underwriters and the Placement Agents may
rely, to the effect that each individual who, as an officer or representative of
the Co-Indemnitor, signed the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated therein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(i) As certified by an officer of the Co-Indemnitor, true and
correct copies of (i) the resolutions of the board of directors authorizing the
Co-Indemnitor's entering into the transactions contemplated by the
Indemnification Agreement, (ii) the organizational documents of the
Co-Indemnitor, and (iii) a certificate of good standing of the Co-Indemnitor
issued by the Secretary of State of the State of Delaware not earlier than 10
days prior to the Closing Date;
(j) A favorable opinion of Cadwalader, Xxxxxxxxxx & Xxxx LLP
("CWT"), special counsel to the Seller, the Additional Party and the
Co-Indemnitor, substantially in the form attached hereto as Exhibit C-1, dated
the Closing Date and addressed to the initial Purchaser, the Underwriters, the
Placement Agents, the Rating Agencies and, upon request, the other parties to
the Pooling and Servicing Agreement, together with such other opinions of CWT as
may be required by the Rating Agencies in connection with the transactions
contemplated hereby;
(k) An Officer's Certificate from an officer of each of the
Seller and the Co-Indemnitor, in each case delivered in connection with the
opinion of CWT to be delivered pursuant to Section 8(j) above, in form and
substance satisfactory to the addressees of such opinion and upon which such
addressees may rely;
(l) A favorable opinion of in-house counsel to the Additional
Party, substantially in the form attached hereto as Exhibit C-2, dated the
Closing Date and addressed to the initial Purchaser, the Underwriters, the
Placement Agents, the Rating Agencies and, upon request, the other parties to
the Pooling and Servicing Agreement;
(m) In connection with the initial issuance of the Seller's
Residual Interest Certificates, a Transfer Affidavit and Agreement in the form
contemplated by the Pooling and Servicing Agreement from Seller and from the
transferee of the Seller;
(n) In the event any of the Certificates are mortgage related
securities within the meaning of the Secondary Mortgage Market Enhancement Act
of 1984, as amended, a Certificate of the
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Seller regarding origination of the Mortgage Loans by specified originators as
set forth in Section 3(a)(41) of the Securities Exchange Act of 1934, as
amended; and
(o) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Costs.
An amount equal to 39.36390% of all reasonable out-of-pocket
costs and expenses incurred by the Seller, the initial Purchaser, the
Underwriters, the Placement Agents and the seller of the Other Loans to the
Purchaser in connection with the securitization of the Securitized Loans and the
other transactions contemplated by this Agreement, the Underwriting Agreement
and the Certificate Purchase Agreement shall be payable by the Seller.
SECTION 10. Grant of a Security Interest.
The parties hereto agree that it is their express intent that
the conveyance of the Mortgage Loans by the Seller to the Purchaser as provided
in Section 2 hereof be, and be construed as, a sale of the Mortgage Loans by the
Seller to the Purchaser and not as a pledge of the Mortgage Loans by the Seller
to the Purchaser to secure a debt or other obligation of the Seller. However,
if, notwithstanding the aforementioned intent of the parties, the Mortgage Loans
are held to be property of the Seller, then it is the express intent of the
parties that: (i) such conveyance shall be deemed to be a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller; (ii) this Agreement shall be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the applicable Uniform Commercial Code; (iii)
the conveyance provided for in Section 2 hereof shall be deemed to be a grant by
the Seller to the Purchaser of a security interest in all of the Seller's right,
title and interest in and to the Mortgage Loans, and all amounts payable to the
holder of the Mortgage Loans in accordance with the terms thereof, and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property; (iv) the assignment to the
Trustee of the interest of the Purchaser in and to the Mortgage Loans shall be
deemed to be an assignment of any security interest created hereunder; (v) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes for the Mortgage Loans, and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest pursuant to Section 9-313 of the
applicable Uniform Commercial Code; and (vi) notifications to persons (other
than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from such persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement; and, in connection with the foregoing, the
Seller authorizes the Purchaser to file any and all appropriate Uniform
Commercial Code financing statements.
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SECTION 11. Notices.
All notices, copies, requests, consents, demands and other
communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to any party, at such
other address as shall be designated by such party in a notice hereunder to the
other parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller, the Additional Party and/or the
Co-Indemnitor submitted pursuant hereto, shall remain operative and in full
force and effect and shall survive delivery of the Mortgage Loans by the Seller
to the Purchaser (and by the initial Purchaser to the Trustee).
SECTION 13. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be an original, but which together shall constitute one and
the same agreement.
SECTION 15. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED,
MADE AND TO BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, THE SELLER, THE ADDITIONAL PARTY AND THE PURCHASER EACH
HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND
FEDERAL COURTS SITTING IN NEW YORK CITY, TO THE EXCLUSION OF ALL OTHER COURTS,
WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING SHALL BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR
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XXXXXXX XXXXXX, TO THE EXCLUSION OF ALL OTHER COURTS; (III) WAIVES, TO THE
FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM IN CONNECTION WITH
SUCH ACTION OR PROCEEDING COMMENCED IN SUCH NEW YORK STATE OR FEDERAL COURTS;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW; PROVIDED, THAT IN THE EVENT NEITHER A NEW
YORK STATE NOR FEDERAL COURT SITTING IN NEW YORK IN WHICH AN ACTION OR
PROCEEDING HAS BEEN DULY AND PROPERLY COMMENCED BY ANY PARTY TO THIS AGREEMENT
REGARDING A MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT HAS REFUSED TO
ACCEPT JURISDICTION OVER OR OTHERWISE HAS NOT ACCEPTED SUCH ACTION OR PROCEEDING
WITHIN, IN THE CASE OF EACH SUCH COURT, 60 DAYS OF THE COMMENCEMENT OR FILING
THEREOF, THEN THE WORDS "TO THE EXCLUSION OF ALL OTHER COURTS" IN CLAUSE (I) AND
CLAUSE (II) OF THIS SENTENCE SHALL NOT APPLY WITH REGARD TO SUCH ACTION OR
PROCEEDING AND THE REFERENCE TO "SHALL" IN CLAUSE (II) OF THIS SECTION SHALL BE
DEEMED TO BE "MAY".
SECTION 16. Further Assurances.
The Seller, the Additional Party and the Purchaser each agrees
to execute and deliver such instruments and take such further actions as any
other such party may, from time to time, reasonably request in order to
effectuate the purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller and the Additional
Party under this Agreement shall not be assigned by the Seller or the Additional
Party, as the case may be, without the prior written consent of the Purchaser,
except that any person into which the Seller or the Additional Party may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Seller or the Additional Party is a party, or any
person succeeding to all or substantially all of the business of the Seller or
the Additional Party, shall be the successor to the Seller or the Additional
Party, as the case may be, hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part, as may be required to effect
the purposes of the Pooling and Servicing Agreement, and the assignee shall, to
the extent of such assignment, succeed to the rights and obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the Seller, the Additional Party, the
Purchaser, and their respective successors and permitted assigns.
SECTION 18. Amendments.
No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by a duly
authorized officer of the party against whom such waiver or modification is
sought to be enforced. The Seller's and the Additional Party's obligations
hereunder shall in no way be expanded, changed or otherwise affected by any
amendment of or modification to the Pooling and Servicing Agreement, unless the
Seller or the Additional Party, as applicable, has consented to such amendment
or modification in writing.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized officers as
of the date first above written.
SELLER
UBS REAL ESTATE INVESTMENTS INC.
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxx Xxxxx
--------------
Name: Xxxx Xxxxx
Title: Director
Address for Notices:
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
ADDITIONAL PARTY
UBS PRINCIPAL FINANCE LLC
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxx Xxxxx
--------------
Name: Xxxx Xxxxx
Title: Director
Address for Notices:
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
PURCHASER
STRUCTURED ASSET SECURITIES CORPORATION II
By: /s/ Xxxxx Xxxx
--------------
Name: Xxxxx Xxxx
Title: Senior Vice President
Address for Notices:
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
EXHIBIT B
REPRESENTATIONS AND WARRANTIES
Except as set forth on the schedule of exceptions attached
hereto as Schedule I, the Seller hereby represents and warrants to the
Purchaser, with respect to each Mortgage Loan, as of the Closing Date or such
other date specified in the particular representation and warranty (the heading
set forth herein with respect to each representation and warranty being for the
convenience of reference only and in no way limiting, expanding or otherwise
affecting the scope or subject matter thereof), that:
(i) Mortgage Loan Schedule. The information
pertaining to such Mortgage Loan set forth in the Mortgage Loan
Schedule was true and correct in all material respects as of its Due
Date in April 2005.
(ii) Legal Compliance. If such Mortgage Loan was
originated by the Seller or an Affiliate of the Seller, then, as of the
date of its origination, such Mortgage Loan complied in all material
respects with, or was exempt from, all requirements of federal, state
or local law relating to the origination of such Mortgage Loan; and, if
such Mortgage Loan was not originated by the Seller or an Affiliate of
the Seller, then, to the Seller's actual knowledge, after having
performed the type of due diligence customarily performed in the
origination of comparable mortgage loans by the Seller, as of the date
of its origination, such Mortgage Loan complied in all material
respects with, or was exempt from, all requirements of federal, state
or local law relating to the origination of such Mortgage Loan.
(iii) Ownership of Mortgage Loan. The Seller owns
such Mortgage Loan, has good title thereto, has full right, power and
authority to sell, assign and transfer such Mortgage Loan and is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges or security interests of any nature encumbering such
Mortgage Loan, exclusive of the servicing rights pertaining thereto; no
provision of the Mortgage Note, Mortgage(s) or other loan documents
relating to such Mortgage Loan prohibits or restricts the Seller's
right to assign or transfer such Mortgage Loan to the Trustee (except
in the case of a Loan Combination, which may, pursuant to the related
Co-Lender Agreement, require notice to one or more rating agencies or
another lender which, if required, has already been provided); no
governmental or regulatory approval or consent is required for the sale
of such Mortgage Loan by the Seller; and the Seller has validly
conveyed to the Trustee a legal and beneficial interest in and to such
Mortgage Loan free and clear of any lien, claim or encumbrance of any
nature.
(iv) No Holdback. The proceeds of such Mortgage Loan
have been fully disbursed (except in those cases where the full amount
of such Mortgage Loan has been disbursed but a portion thereof is being
held in escrow or reserve accounts to be released pending the
satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property) and there
is no requirement for future advances thereunder.
(v) Loan Document Status. Each of the related
Mortgage Note, Mortgage(s), Assignment(s) of Leases, if separate from
the related Mortgage, and other agreements executed in favor of the
lender in connection therewith is the legal, valid and binding
obligation of the maker thereof (subject to the non-recourse provisions
therein and any state anti-
B-1
deficiency legislation), enforceable in accordance with its terms,
except that (A) such enforcement may be limited by (1) bankruptcy,
insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and/or other
similar laws affecting the enforcement of creditors' rights generally,
and (2) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and (B)
certain provisions in the subject agreement or instrument may be
further limited or rendered unenforceable by applicable law, but
subject to the limitations set forth in the foregoing clause (A), such
limitations will not render that subject agreement or instrument
invalid as a whole or substantially interfere with the mortgagee's
realization of the principal benefits and/or security provided by the
subject agreement or instrument. Such Mortgage Loan is non-recourse to
the Mortgagor or any other Person except to the extent provided in
certain nonrecourse carveouts and/or in any applicable guarantees. If
such Mortgage Loan has a Cut-off Date Balance of $15 million or more,
the related Mortgagor or another Person has agreed, in effect, to be
liable for all liabilities, costs, losses, damages or expenses suffered
or incurred by the mortgagee under such Mortgage Loan by reason of or
in connection with and to the extent of (A) any material intentional
fraud or material intentional misrepresentation by the related
mortgagor; (B) any breach on the part of the related mortgagor of any
environmental representations warranties and covenants contained in the
related Mortgage Loan documents; and (C) the filing of a voluntary
bankruptcy or insolvency proceeding by the related mortgagor; provided
that, instead of any breach described in clause (B) of this paragraph,
the related Mortgagor or such other Person may instead be liable for
liabilities, costs, losses, damages, expenses and claims resulting from
a breach of the obligations and indemnities of the related Mortgagor
under the related Mortgage Loan documents relating to hazardous or
toxic substances, radon or compliance with environmental laws.
(vi) No Right of Rescission. As of the date of
origination, subject to the limitations and exceptions as to
enforceability set forth in paragraph (v) above, there was no valid
offset, defense, counterclaim or right to rescission, abatement of
amounts due under the Mortgage Note or diminution of amounts due under
the Mortgage Note with respect to any of the related Mortgage Note,
Mortgage(s) or other agreements executed in connection with such
Mortgage Loan; and, as of the Closing Date, subject to the limitations
and exceptions as to enforceability set forth in paragraph (v) above,
there is no valid offset, defense, counterclaim or right of rescission,
abatement of amounts due under the Mortgage Note or diminution of
amounts due under the Mortgage Note with respect to any of the related
Mortgage Note, Mortgage(s) or other agreements executed in connection
with such Mortgage Loan.
(vii) Assignments. The assignment of the related
Mortgage(s) and Assignment(s) of Leases to the Trustee constitutes the
legal, valid, binding and, subject to the limitations and exceptions as
to enforceability set forth in paragraph (v) above, enforceable
assignment of such documents (provided that the unenforceability of any
such assignment based on bankruptcy, insolvency, receivership,
reorganization, liquidation, moratorium and/or other similar laws
affecting the enforcement of creditors' rights generally or based on
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) shall be a breach of
this representation and warranty only upon the declaration by a court
with jurisdiction in the matter that such assignment is to be
unenforceable on such basis).
B-2
(viii) First Lien. Each related Mortgage is a valid
and, subject to the limitations and exceptions in paragraph (v) above,
enforceable first lien on the related Mortgaged Property including all
improvements thereon (other than any tenant owned improvements), which
Mortgaged Property is free and clear of all encumbrances and liens
having priority over or on a parity with the first lien of such
Mortgage, except for the following (collectively, the "Permitted
Encumbrances"): (A) the lien for real estate taxes, water charges,
sewer rents and assessments not yet due and payable; (B) covenants,
conditions and restrictions, rights of way, easements and other matters
that are of public record or that are omitted as exceptions in the
related lender's title insurance policy (or, if not yet issued, omitted
as exceptions in a pro forma title policy or title policy commitment);
(C) exceptions and exclusions specifically referred to in the related
lender's title insurance policy (or, if not yet issued, referred to in
a pro forma title policy or title policy commitment); (D) other matters
to which like properties are commonly subject, (E) the rights of
tenants (as tenants only) under leases (including subleases) pertaining
to the related Mortgaged Property; (F) condominium declarations of
record and identified in the related lender's title insurance policy
(or, if not yet issued, identified in a pro forma title policy or title
policy commitment); and (G) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group;
provided that, in the case of a Trust Mortgage Loan that is part of a
Loan Combination, such Mortgage also secures the other mortgage loan(s)
in such Loan Combination. With respect to such Mortgage Loan, such
Permitted Encumbrances do not, individually or in the aggregate,
materially and adversely interfere with the benefits of the security
intended to be provided by the related Mortgage, the current principal
use or operation of the related Mortgaged Property or the ability of
the related Mortgaged Property to generate sufficient cashflow to
enable the related Mortgagor to timely pay in full the principal and
interest on the related Mortgage Note (other than a Balloon Payment,
which would require a refinancing). If the related Mortgaged Property
is operated as a nursing facility or a hospitality property, the
related Mortgage, together with any security agreement, chattel
mortgage or similar agreement and UCC financing statement, if any,
establishes and creates a first priority, perfected security interest
(subject only to any prior purchase money security interest, revolving
credit lines and any personal property leases), to the extent such
security interest can be perfected by the recordation of a Mortgage or
the filing of a UCC financing statement, in all material personal
property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property, and that
is located on the related Mortgaged Property, which personal property
includes, in the case of Mortgaged Properties operated by the related
Mortgagor as a nursing facility or hospitality property, all furniture,
fixtures, equipment and other personal property located at the subject
Mortgaged Property that are owned by the related Mortgagor and
reasonably necessary or material to the operation of the subject
Mortgaged Property. In the case of any Mortgage Loan secured by a
hotel, the related loan documents contain such provisions as are
necessary and UCC financing statements have been filed as necessary, in
each case, to perfect a valid first priority security interest, to the
extent such security interest can be perfected by the inclusion of such
provisions and the filing of a UCC financing statement, in the
Mortgagor's right to receive related hotel room revenues with respect
to such Mortgaged Property.
(ix) Taxes and Assessments. All taxes, governmental
assessments, water charges, sewer rents or similar governmental charges
which, in all such cases, were directly related to the related
Mortgaged Property and could constitute liens on the related Mortgaged
B-3
Property prior to the lien of the related Mortgage, together with all
ground rents, that prior to the related Due Date in April 2005 became
due and payable in respect of, and materially affect, any related
Mortgaged Property have been paid or are escrowed for or are not yet
delinquent, and the Seller knows of no unpaid tax, assessment, ground
rent, water charges or sewer rent, which, in all such cases, were
directly related to the subject Mortgaged Property and could constitute
liens on the subject Mortgaged Property prior to the lien of the
related Mortgage that prior to the Closing Date became due and
delinquent in respect of any related Mortgaged Property, or in any such
case an escrow of funds in an amount sufficient to cover such payments
has been established.
(x) No Material Damage. As of the date of origination
of such Mortgage Loan and, to the actual knowledge of the Seller, as of
the Closing Date, there was no pending proceeding for the total or
partial condemnation of any related Mortgaged Property that materially
affects the value thereof and such Mortgaged Property is free of
material damage. Except for certain amounts not greater than amounts
which would be considered prudent by an institutional commercial
mortgage lender with respect to a similar mortgage loan and which are
set forth in the related Mortgage or other loan documents relating to
such Mortgage Loan, (and subject to any rights of the lessor under any
related Ground Lease) the related Mortgage Loan documents provide that
any condemnation awards will be applied (or, at the discretion of the
mortgagee, will be applied) to either the repair or restoration of all
or part of the related Mortgaged Property or the reduction of the
outstanding principal balance of such Mortgage Loan.
(xi) Title Insurance. Each related Mortgaged Property
is covered by an ALTA (or its equivalent) lender's title insurance
policy issued by a nationally recognized title insurance company,
insuring that each related Mortgage is a valid first lien on such
Mortgaged Property in the original principal amount of such Mortgage
Loan (or, if such Mortgage Loan is part of a Loan Combination, in the
original principal amount of such Loan Combination) after all advances
of principal, subject only to Permitted Encumbrances and, in the case
of a Trust Mortgage Loan that is part of a Loan Combination, further
subject to the fact that the related Mortgage also secures the related
Non-Trust Mortgage Loan(s) (or if such policy has not yet been issued,
such insurance may be evidenced by a binding commitment or binding pro
forma marked as binding and signed (either thereon or on a related
escrow letter attached thereto) by the title insurer or its authorized
agent) from a title insurer qualified and/or licensed in the applicable
jurisdiction, as required, to issue such policy; such title insurance
is in full force and effect, all premiums have been paid, is freely
assignable and will inure to the benefit of the Trustee as sole insured
as mortgagee of record, or any such commitment or binding pro forma is
a legal, valid and binding obligation of such insurer; no claims have
been made by the Seller under such title insurance; and neither the
Seller nor any Affiliate of the Seller has done, by act or omission,
anything that would materially impair the coverage of any such title
insurance policy; such policy or commitment or binding pro forma
contains no exclusion for (or alternatively it insures over such
exclusion, unless such coverage is unavailable in the relevant
jurisdiction) (A) access to a public road, (B) that there is no
material encroachment by any improvements on the related Mortgaged
Property either to or from any adjoining property or across any
easements on the related Mortgaged Property, and (C) that the land
shown on the survey materially conforms to the legal description of the
related Mortgaged Property.
B-4
(xii) Property Insurance. As of the date of its
origination and, to the Seller's actual knowledge, as of the Cut-off
Date, all insurance required under each related Mortgage (except where
a tenant under a lease is permitted to insure or self-insure under a
lease) was in full force and effect with respect to each related
Mortgaged Property; such insurance included (A) fire and extended
perils insurance included within the classification "All Risk of
Physical Loss" or the equivalent thereof in an amount (subject to a
customary deductible) at least equal to the lesser of (1) 100% of the
full insurable value of the improvements located on such Mortgaged
Property and (2) the outstanding principal balance of such Mortgage
Loan or the portion thereof allocable to such Mortgaged Property), (B)
business interruption or rental loss insurance for a period of not less
than 12 months, (C) comprehensive general liability insurance in an
amount not less than $1 million per occurrence, (D) workers'
compensation insurance (if the related Mortgagor has employees and if
required by applicable law), and (E) if (1) such Mortgage Loan is
secured by a Mortgaged Property located in the State of California or
in "seismic zone" 3 or 4 and (2) a seismic assessment as described
below revealed a maximum probable or bounded loss in excess of 20% of
the amount of the estimated replacement cost of the improvements on
such Mortgaged Property, seismic insurance; it is an event of default
under such Mortgage Loan if the above-described insurance coverage is
not maintained by the related Mortgagor (except where a tenant under a
lease is permitted to insure or self-insure under a lease) and the
related loan documents provide (in either a general cost and expense
recovery provision or a specific provision with respect to recovery of
insurance costs and expenses) that any reasonable out-of-pocket costs
and expenses incurred by the mortgagee in connection with such default
in obtaining such insurance coverage may be recovered from the related
Mortgagor; the related Evidence of Property Insurance and certificate
of liability insurance (which may be in the form of an Xxxxx 27 or an
Xxxxx 25, respectively), or forms substantially similar thereto,
provide that the related insurance policy may not be terminated or
reduced without at least 10 days prior notice to the mortgagee and
(other than those limited to liability protection) name the mortgagee
and its successors as loss payee; no notice of termination or
cancellation with respect to any such insurance policy has been
received by the Seller; all premiums under any such insurance policy
have been paid through the Cut-off Date; the insurance policies
specified in clauses (A), (B) and (C) above are required to be
maintained with insurance companies having "financial strength" or
"claims paying ability" ratings of at least "A:VII" from A.M. Best
Company or at least "BBB+" (or equivalent) from a nationally recognized
statistical rating agency (or, with respect to certain blanket
insurance policies, such other ratings as are in compliance with S&P's
applicable criteria for rating the Certificates); and, except for
certain amounts not greater than amounts which would be considered
prudent by an institutional commercial mortgage lender with respect to
a similar mortgage loan and which are set forth in the related Mortgage
or other loan documents relating to such Mortgage Loan, and subject to
the related exception schedules, the related Mortgage Loan documents
provide that any property insurance proceeds will be applied (or, at
the discretion of the mortgagee, will be applied) either to the repair
or restoration of all or part of the related Mortgaged Property or the
reduction of the outstanding principal balance of such Mortgage Loan;
provided that the related Mortgage Loan documents may entitle the
related Mortgagor to any portion of such proceeds remaining after
completion of the repair or restoration of the related Mortgaged
Property or payment of amounts due under such Mortgage Loan.
Notwithstanding anything to the contrary in this paragraph (xii), with
regard to insurance for acts of terrorism, any such insurance and the
amount thereof may be limited by the commercial availability of such
coverage, whether the mortgagee may reasonably require such insurance,
certain limitations with respect to the cost thereof and/or whether
such hazards are at the time
B-5
commonly insured against for property similar to the related Mortgaged
Property. If the related Mortgaged Property is located in the State of
California or in "seismic zone" 3 or 4, then: (A) either a seismic
assessment was conducted with respect to the related Mortgaged Property
in connection with the origination of such Mortgage Loan or earthquake
insurance was obtained; and (B) the probable maximum loss for the
related Mortgaged Property as reflected in such seismic assessment, if
any, was determined based upon a return period of not less than 475
years, an exposure period of 50 years and a 10% probability of
incidence. Schedule I-xii attached hereto is true and correct in all
material respects.
(xiii) No Material Defaults. Other than payments due
but not yet 30 days or more delinquent, there is (A) no material
default, breach, violation or event of acceleration existing under the
related Mortgage Note, the related Mortgage or other loan documents
relating to such Mortgage Loan, and (B), to the knowledge of the
Seller, no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration under any of such
documents; provided, however, that this representation and warranty
does not cover any default, breach, violation or event of acceleration
(A) that specifically pertains to or arises out of the subject matter
otherwise covered by any other representation and warranty made by the
Seller in this Exhibit B or (B) with respect to which the Seller has no
actual knowledge. The Seller has not waived, in writing or with
knowledge, any material default, breach, violation or event of
acceleration under any of such documents. Under the terms of such
Mortgage Loan, no person or party other than the mortgagee or its
servicing agent may declare an event of default or accelerate the
related indebtedness under such Mortgage Loan.
(xiv) No Payment Delinquency. As of the Closing Date,
such Mortgage Loan is not, and in the prior 12 months (or since the
date of origination if such Mortgage Loan has been originated within
the past 12 months), has not been, 30 days or more past due in respect
of any Monthly Payment.
(xv) Interest Accrual Basis. Such Mortgage Loan
accrues interest on an Actual/360 Basis, an Actual/Actual Basis or a
30/360 Basis; and such Mortgage Loan accrues interest (payable monthly
in arrears) at a fixed rate of interest throughout the remaining term
thereof (except if such Mortgage Loan is an ARD Mortgage Loan, in which
case the accrual rate for interest will increase after its Anticipated
Repayment Date, and except in connection with the occurrence of a
default and the accrual of default interest).
(xvi) Subordinate Debt. Each related Mortgage or
other loan document relating to such Mortgage Loan does not provide for
or permit, without the prior written consent of the holder of the
related Mortgage Note, any related Mortgaged Property or any direct
controlling interest in the Mortgagor to secure any other promissory
note or debt (other than another Mortgage Loan in the Trust Fund and,
if such Mortgage Loan is part of a Loan Combination, the other mortgage
loan(s) that are part of such Loan Combination, as applicable).
(xvii) Qualified Mortgage. Such Mortgage Loan is a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code. Accordingly, either as of the date of origination or the Closing
Date, the fair market value of the real property securing such Mortgage
Loan was not less than 80% of the "adjusted issue price" (within the
meaning of the
B-6
REMIC Provisions) of such Mortgage Loan. For purposes of the preceding
sentence, the fair market value of the real property securing such
Mortgage Loan was first reduced by the amount of any lien on such real
property that is senior to the lien that secures such Mortgage Loan,
and was further reduced by a proportionate amount of any lien that is
on a parity with the lien that secures such Mortgage Loan. No action
that occurs by operation of the terms of such Mortgage Loan would cause
such Mortgage Loan to cease to be a "qualified mortgage" and such
Mortgage Loan does not permit the release or substitution of collateral
if such release or substitution (A) would constitute a "significant
modification" of such Mortgage Loan within the meaning of Treasury
regulations section 1.1001-3, (B) would cause such Mortgage Loan not to
be a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code (without regard to clauses (A)(i) or (A)(ii) thereof) or (C)
would cause a "prohibited transaction" within the meaning of Section
860F(a)(2) of the Code. The related Mortgaged Property, if acquired in
connection with the default or imminent default of such Mortgage Loan,
would constitute "foreclosure property" within the meaning of Section
860G(a)(8) of the Code.
(xviii) Prepayment Consideration. Prepayment Premiums
and Yield Maintenance Charges payable with respect to such Mortgage
Loan, if any, constitute "customary prepayment penalties" within the
meaning of Treasury regulations section 1.860G-1(b)(2).
(xix) Environmental Conditions. One or more
environmental site assessments or transaction screens, or one or more
updates of a previously conducted environmental assessment or
transaction screen, were performed by an environmental consulting firm
independent of the Seller and the Seller's Affiliates with respect to
each related Mortgaged Property during the 12-month period preceding
the Cut-off Date, and the Seller, having made no independent inquiry
other than to review the report(s) prepared in connection with the
assessment(s), transaction screen(s) and/or update(s) referenced
herein, has no knowledge of, and has not received actual notice of, any
material and adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s); all
of such environmental site assessments and transaction screens met ASTM
requirements to the extent set forth in such report; and none of the
above referenced environmental reports reveal any circumstances or
conditions that are in violation of any applicable environmental laws,
or if such report does reveal such circumstances, then (1) the same
have been remediated in all material respects, (2) sufficient funds
have been escrowed or a letter of credit, guaranty or other instrument
has been delivered for purposes of covering the estimated costs of such
remediation, (3) the related Mortgagor or other responsible party is
currently taking remedial or other appropriate action to address the
environmental issue consistent with the recommendations in such site
assessment, (4) the cost of the environmental issue relative to the
value of such Mortgaged Property was de minimis, or (5) environmental
insurance has been obtained.
The Mortgagor with respect to such Mortgage Loan has
represented, warranted and covenanted generally to the effect that, to
its knowledge, except as set forth in the environmental reports
described above, it has not used, caused or permitted to exist, and
will not use, cause or permit to exist, on the related Mortgaged
Property, any Hazardous Materials in any manner which violates
applicable federal, state or local laws governing the use, storage,
handling, production or disposal of Hazardous Materials at the related
Mortgaged Property and (A) the related Mortgagor and a natural person
have agreed to indemnify the mortgagee under such Mortgage Loan, and
its successors and assigns, against any losses, liabilities, damages,
penalties,
B-7
fines, claims and reasonable out of pocket expenses (excluding lost
profits, consequential damages and diminution of value of the related
Mortgaged Property, provided that no Mortgage Loan with an original
principal balance equal to or greater than $15,000,000 contains an
exclusion for "diminution of value" of the related Mortgaged Property)
paid, suffered or incurred by such mortgagee resulting from such
Mortgagor's material violation of any environmental law or a material
breach of the environmental representations and warranties or covenants
given by the related Mortgagor in connection with such Mortgage Loan or
(B) environmental insurance has been obtained. If such Mortgage Loan is
a Mortgage Loan as to which neither a natural person has provided the
indemnity set forth above nor environmental insurance has been
obtained, such Mortgage Loan is set forth on Schedule I.
The Seller has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject the
Seller or its successors and assigns in respect of such Mortgage Loan
to liability under CERCLA or any other applicable federal, state or
local environmental law. The related Mortgage or other loan documents
require the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations.
(xx) Realization Against Real Estate Collateral. The
related Mortgage Note, Mortgage(s), Assignment(s) of Leases and other
loan documents securing such Mortgage Loan, if any, contain customary
and, subject to the limitations and exceptions as to enforceability in
paragraph (v) above, enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property or Properties of the
principal benefits of the security intended to be provided thereby,
including realization by judicial or, if applicable, non-judicial
foreclosure.
(xxi) Bankruptcy. The related Mortgagor is not a
debtor in any bankruptcy, reorganization, insolvency or comparable
proceeding; provided, however, that this representation and warranty
does not cover any such bankruptcy, reorganization, insolvency or
comparable proceeding with respect to which: (1) the Seller has no
actual knowledge and (2) written notice of the discovery thereof is not
delivered to the Seller by the Trustee or the Master Servicer on or
prior to the date occurring twelve months after the Closing Date.
(xxii) Loan Security. Such Mortgage Loan is secured
by a Mortgage on a fee simple interest and/or a leasehold estate in a
commercial property or multifamily property, including the related
Mortgagor's interest in the improvements on the related Mortgaged
Property.
(xxiii) Amortization. Such Mortgage Loan does not
provide for negative amortization unless such Mortgage Loan is an ARD
Mortgage Loan, in which case it may occur only after the Anticipated
Repayment Date.
(xxiv) Whole Loan. Such Mortgage Loan is a whole
loan, contains no equity participation by the lender or shared
appreciation feature and does not provide for any contingent interest
in the form of participation in the cash flow of the related Mortgaged
Property.
(xxv) Due-on-Encumbrance. Each Mortgage Loan contains
provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without
B-8
the prior written consent of the mortgagee or Rating Agency
confirmation that an Adverse Rating Event with respect to any Class of
Certificates would not occur, any related Mortgaged Property or any
direct controlling interest in the Mortgagor is directly encumbered in
connection with subordinate financing; and except in the case of a
Trust Mortgage Loan that is part of a Loan Combination (for which such
consent has been granted with respect to the other mortgage loan(s) in
such Loan Combination), and except for the respective Mortgage Loans
secured by the Mortgaged Properties listed on Schedule I (for which
such consent has been granted with respect to mezzanine debt), no such
consent has been granted by the Seller. To the Seller's knowledge, no
related Mortgaged Property is encumbered in connection with subordinate
financing; however, if the related Mortgaged Property is listed on
Schedule I, certain direct controlling equity holders in the related
Mortgagor are known to the Seller to have incurred debt secured by
their ownership interest in the related Mortgagor.
(xxvi) Due-on-Sale. Except with respect to transfers
of certain non-controlling and/or minority interests in the related
Mortgagor as specified in the related Mortgage or with respect to
transfers of interests in the related Mortgagor between immediate
family members and with respect to transfers by devise, by descent or
by operation of law or otherwise upon the death or incapacity of a
person having an interest in the related Mortgagor, each Mortgage Loan
contains either (A) provisions for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan if any related
Mortgaged Property or interest therein is directly or indirectly
transferred or sold without the prior written consent of the mortgagee
or rating agency confirmation, or (B) provisions for the acceleration
of the payment of the unpaid principal balance of such Mortgage Loan if
any related Mortgaged Property or interest therein is directly or
indirectly transferred or sold without the related Mortgagor having
satisfied certain conditions specified in the related Mortgage with
respect to permitted transfers.
(xxvii) Mortgagor Concentration. Except in the case
of the Mortgage Loan identified on the Trust Mortgage Loan Schedule
under the headings preceded by "The Woodbury Office Portfolio II" and
"Macquarie DDR Portfolio II", such Mortgage Loan, together with any
other Mortgage Loan made to the same Mortgagor or to an Affiliate of
such Mortgagor, does not represent more than 5% of the Initial Pool
Balance.
(xxviii) Waivers; Modifications. Except as set forth
in a written instrument included in the related Mortgage File, the (A)
material terms of the related Mortgage Note, the related Mortgage(s)
and any related loan agreement and/or lock-box agreement have not been
waived, modified, altered, satisfied, impaired, canceled, subordinated
or rescinded by the mortgagee in any manner, and (B) no portion of a
related Mortgaged Property has been released from the lien of the
related Mortgage, in the case of (A) and/or (B), to an extent or in a
manner that in any such event materially interferes with the security
intended to be provided by such document or instrument.
(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
B-9
the operation of such Mortgaged Property or was given material value in
the underwriting of such Mortgage Loan at origination, without (A)
payment in full of such Mortgage Loan, (B) delivery of Defeasance
Collateral in the form of "government securities" within the meaning of
Section 2(a)(16) of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), (C) delivery of substitute real property
collateral, or (D) payment of a release price equal to at least 125% of
the of the amount of such Mortgage Loan allocated to the related
Mortgaged Property subject to the release or (E) the satisfaction of
certain underwriting and legal requirements which the Seller required
in the origination of comparable mortgage loans.
(xxxi) Qualifications; Licensing; Zoning. The related
Mortgagor has covenanted in the related Mortgage Loan documents to
maintain the related Mortgaged Property in compliance in all material
respects with, to the extent it is not grandfathered under, all
applicable laws, zoning ordinances, rules, covenants and restrictions
affecting the construction, occupancy, use and operation of such
Mortgaged Property, and the related originator performed the type of
due diligence in connection with the origination of such Mortgage Loan
customarily performed by such originator in the origination of
comparable mortgage loans with respect to the foregoing matters; the
Seller has received no notice of any material violation of, to the
extent is has not been grandfathered under, any applicable laws, zoning
ordinances, rules, covenants or restrictions affecting the
construction, occupancy, use or operation of the related Mortgaged
Property (unless affirmatively covered by the title insurance referred
to in paragraph (xi) above (or an endorsement thereto)); to the
Seller's knowledge (based on surveys, opinions, letters from
municipalities and/or title insurance obtained in connection with the
origination of such Mortgage Loan), no improvement that was included
for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay
outside the boundaries and building restriction lines of such property,
in effect at the time of origination of such Mortgage Loan, to an
extent which would have a material adverse affect on the related
Mortgagor's use and operation of such Mortgaged Property (unless
grandfathered with respect thereto or affirmatively covered by the
title insurance referred to in paragraph (xi) above (or an endorsement
thereto)), and no improvements on adjoining properties encroached upon
such Mortgaged Property to any material extent.
(xxxii) Property Financial Statements. The related
Mortgagor has covenanted in the related Mortgage Loan documents to
deliver to the mortgagee annual operating statements and rent rolls of
each related Mortgaged Property. If such Mortgage Loan had an original
principal balance greater than $15 million, the related Mortgagor has
covenanted to provide such operating statements and rent rolls on a
quarterly basis.
(xxxiii) Single Purpose Entity. If such Mortgage Loan
has a Cut-off Date Balance in excess of $25 million, then the related
Mortgagor is obligated by its organizational documents and the related
Mortgage Loan documents to be a Single Purpose Entity for so long as
such Mortgage Loan is outstanding; and, if such Mortgage Loan has a
Cut-off Date Balance greater than $5 million and less than $25 million,
then the related Mortgagor is obligated by its organizational documents
and/or the related Mortgage Loan documents to own the related Mortgaged
Property and no other material assets, except such as are incidental to
the ownership of such Mortgaged Property for so long as such Mortgage
Loan is outstanding. For purposes of this representation, "Single
Purpose Entity" means an entity whose organizational documents or the
related Mortgage Loan documents provide substantially to the effect
that such entity: (A) is
B-10
formed or organized solely for the purpose of owning and operating one
or more of the Mortgaged Properties securing such Mortgage Loan, (B)
may not engage in any business unrelated to the related Mortgaged
Property or Mortgaged Properties, (C) does not have any material assets
other than those related to its interest in and operation of such
Mortgaged Property or Mortgaged Properties and (D) may not incur
indebtedness other than as permitted by the related Mortgage or other
Mortgage Loan documents. If such Mortgage Loan has an initial principal
balance of $25 million and above and the related Mortgagor is a single
member limited liability company, such Mortgagor's organizational
documents provide that such Mortgagor shall not dissolve or liquidate
upon the bankruptcy, dissolution, liquidation or death of its sole
member and is organized in a jurisdiction that provides for such
continued existence and there was obtained opinion of counsel
confirming such continued existence. If such Mortgage Loan has, or is
part of a group of Mortgage Loans with affiliated Mortgagors having, a
Cut-off Date Balance equal to or greater than 2% of the Initial Pool
Balance, or if such Mortgage Loan has an original principal balance
equal to or greater than $25 million, there was obtained an opinion of
counsel regarding non-consolidation of such Mortgagor.
(xxxiv) Advancing of Funds. No advance of funds has
been made, directly or indirectly, by the originator or the Seller to
the related Mortgagor other than pursuant to the related Mortgage Note;
and, to the actual knowledge of the Seller, no funds have been received
from any Person other than such Mortgagor for or on account of payments
due on the related Mortgage Note.
(xxxv) Legal Proceedings. To the Seller's actual
knowledge, there are no pending actions, suits or proceedings by or
before any court or governmental authority against or affecting the
related Mortgagor or any related Mortgaged Property that, if determined
adversely to such Mortgagor or Mortgaged Property, would materially and
adversely affect the value of such Mortgaged Property or the ability of
such Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvi) Originator Duly Authorized. To the extent
required under applicable law as of the Closing Date, the originator of
such Mortgage Loan was qualified and authorized to do business in each
jurisdiction in which a related Mortgaged Property is located at all
times when it held such Mortgage Loan to the extent necessary to ensure
the enforceability of such Mortgage Loan.
(xxxvii) Trustee under Deed of Trust. If the related
Mortgage is a deed of trust, a trustee, duly qualified under applicable
law to serve as such, is properly designated and serving under such
Mortgage, and no fees and expenses are payable to such trustee except
in connection with a trustee sale of the related Mortgaged Property
following a default or in connection with the release of liens securing
such Mortgage Loan.
(xxxviii) Cross-Collateralization. The related
Mortgaged Property is not, to the Seller's knowledge, collateral or
security for any mortgage loan that is not in the Trust Fund and, if
such Mortgage Loan is cross-collateralized, it is cross-collateralized
only with other Mortgage Loans in the Trust Fund, except that a Trust
Mortgage Loan that is part of a Loan Combination is secured by one or
more Mortgaged Properties that also secure the related Non-Trust
Mortgage
B-11
Loan(s). The security interest/lien on each material item of collateral
for such Mortgage Loan has been assigned to the Trustee.
(xxxix) Flood Hazard Insurance. None of the
improvements on any related Mortgaged Property are located in a flood
hazard area as defined by the Federal Insurance Administration or, if
any portion of the improvements on the related Mortgaged Property are
in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards falling within zones
A or V in the national flood insurance program, the Mortgagor has
obtained and is required to maintain flood insurance.
(xl) Engineering Assessments. One or more engineering
assessments or updates of a previously conducted engineering assessment
were performed by an Independent engineering consulting firm with
respect to each related Mortgaged Property during the 12-month period
preceding the Cut-off Date, and the Seller, having made no independent
inquiry other than to review the report(s) prepared in connection with
such assessment(s) and or update(s), does not have any knowledge of any
material and adverse engineering condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s); and,
to the extent such assessments revealed deficiencies, deferred
maintenance or similar conditions, either (A) the estimated cost has
been escrowed or a letter of credit has been provided, (B) repairs have
been made or (C) the scope of the deferred maintenance relative to the
value of such Mortgaged Property was de minimis.
(xli) Escrows. All escrow deposits and payments
relating to such Mortgage Loan are under control of the Seller or the
servicer of such Mortgage Loan and all amounts required as of the date
hereof under the related Mortgage Loan documents to be deposited by the
related Mortgagor have been deposited. The Seller is transferring to
the Trustee all of its right, title and interest in and to such
amounts.
(xlii) Licenses, Permits and Authorizations. The
related Mortgagor has represented in the related Mortgage Loan
documents that, and to the actual knowledge of the Seller, as of the
date of origination of such Mortgage Loan, all material licenses,
permits and authorizations then required for use of the related
Mortgaged Property by such Mortgagor, the related lessee, franchisor or
operator have been issued and were valid and in full force and effect.
(xliii) Servicing and Collection Practices. The
servicing and collection practices used by the Seller or, to the
Seller's knowledge, any prior holder of the related Mortgage Note with
respect to such Mortgage Loan have been in all respects legal and have
met customary industry standards.
(xliv) Fee Simple. Unless such Mortgage Loan is
covered by the representation and warranty in the immediately following
paragraph (xlv), such Mortgage Loan is secured in whole or material
part by a fee simple interest.
(xlv) Leasehold Interest Only. If such Mortgage Loan
is secured in whole or in material part by the interest of the related
Mortgagor as a lessee under a Ground Lease but not by the related fee
interest, then:
(A) such Ground Lease or a memorandum thereof has
been or will be duly
B-12
recorded and such Ground Lease permits the
interest of the lessee thereunder to be
encumbered by the related Mortgage or, if consent
of the lessor thereunder is required, it has been
obtained prior to the Closing Date;
(B) upon the foreclosure of such Mortgage Loan (or
acceptance of a deed in lieu thereof), the
Mortgagor's interest in such Ground Lease is
assignable to the Trustee without the consent of
the lessor thereunder (or, if any such consent is
required, it has been obtained prior to the
Closing Date) and, in the event that it is so
assigned, is further assignable by the Trustee
and its successors without a need to obtain the
consent of such lessor (or, if any such consent
is required, it has been obtained prior to the
Closing Date or may not be unreasonably
withheld);
(C) such Ground Lease may not be amended or modified
without the prior written consent of the
mortgagee under such Mortgage Loan and any such
action without such consent is not binding on
such mortgagee, its successors or assigns;
(D) unless otherwise set forth in such Ground Lease,
such Ground Lease does not permit any increase in
the amount of rent payable by the ground lessee
thereunder during the term of such Mortgage Loan;
(E) such Ground Lease was in full force and effect as
of the date of origination of the related
Mortgage Loan and, at the Closing Date, such
Ground Lease is in full force and effect; to the
actual knowledge of the Seller, except for
payments due but not yet 30 days or more
delinquent, (1) there is no material default
under such Ground Lease, and (2) there is no
event which, with the passage of time or with
notice and the expiration of any grace or cure
period, would constitute a material default under
such Ground Lease;
(F) such Ground Lease, or an estoppel or consent
letter received by the mortgagee under such
Mortgage Loan from the lessor, requires the
lessor thereunder to give notice of any default
by the lessee to such mortgagee; and such Ground
Lease, or an estoppel or consent letter received
by the mortgagee under such Mortgage Loan from
the lessor, further provides either (1) that no
notice of termination given under such Ground
Lease is effective against such mortgagee unless
a copy has been delivered to the mortgagee in the
manner described in such Ground Lease, estoppel
or consent letter or (2) that upon any
termination of such Ground Lease the lessor will
enter into a new lease with such mortgagee upon
such mortgagee's request;
(G) based upon the related policy of title insurance,
the ground lessee's interest in such Ground Lease
is not subject to any liens or encumbrances
superior to, or of equal priority with, the
related Mortgage, other than the related ground
lessor's related fee interest and any Permitted
Encumbrances;
B-13
(H) the mortgagee under such Mortgage Loan is
permitted a reasonable opportunity to cure any
curable default under such Ground Lease (not less
than the time provided to the related lessee
under such Ground Lease to cure such default)
before the lessor thereunder may terminate or
cancel such Ground Lease;
(I) such Ground Lease has a currently effective term
(including any options exercisable by the holder
of the related Mortgage) that extends not less
than 20 years beyond the Stated Maturity Date of
the related Mortgage Loan;
(J) under the terms of such Ground Lease, any
estoppel or consent letter received by the
mortgagee under such Mortgage Loan from the
lessor and the related Mortgage Loan documents,
taken together, any related insurance proceeds,
other than de minimis amounts for minor
casualties, with respect to the leasehold
interest, or condemnation proceeds will be
applied either to the repair or restoration of
all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it
having the right to hold and disburse such
proceeds as the repair or restoration progresses
(except in such cases where a provision entitling
another party to hold and disburse such proceeds
would not be viewed as commercially unreasonable
by a prudent commercial mortgage lender), or to
the payment of the outstanding principal balance
of the Mortgage Loan, together with any accrued
interest thereon;
(K) such Ground Lease does not impose any
restrictions on use or subletting which would be
viewed as commercially unreasonable by a prudent
commercial mortgage lender;
(L) upon the request of the mortgagee under such
Mortgage Loan, the ground lessor under such
Ground Lease is required to enter into a new
lease upon termination of the Ground Lease for
any reason prior to the expiration of the term
thereof, including as a result of the rejection
of the Ground Lease in a bankruptcy of the
related Mortgagor unless the mortgagee under such
Mortgage Loan fails to cure a default of the
lessee under such Ground Lease following notice
thereof from the lessor; and
(M) the terms of the related Ground Lease have not
been waived, modified, altered, satisfied,
impaired, canceled, subordinated or rescinded in
any manner which materially interferes with the
security intended to be provided by such
Mortgage, except as set forth in an instrument or
document contained in the related Mortgage File.
(xlvi) Fee Simple and Leasehold Interest. If such
Mortgage Loan is secured by the interest of the related Mortgagor under
a Ground Lease and by the related fee interest, then (A) such fee
interest is subject, and subordinated of record, to the related
Mortgage, (B) the related Mortgage does not by its terms provide that
it will be subordinated to the lien of any other mortgage or other lien
upon such fee interest, and (C) upon occurrence of a default under the
B-14
terms of the related Mortgage by the related Mortgagor, the mortgagee
under such Mortgage Loan has the right (subject to the limitations and
exceptions set forth in paragraph (v) above) to foreclose upon or
otherwise exercise its rights with respect to such fee interest.
(xlvii) Tax Lot; Utilities. Each related Mortgaged
Property constitutes one or more complete separate tax lots (or the
related Mortgagor has covenanted to obtain separate tax lots and an
escrow of funds in an amount sufficient to pay taxes resulting from a
breach thereof has been established) or is subject to an endorsement
under the related title insurance policy; and each related Mortgaged
Property is served by a public or other acceptable water system, a
public sewer (or, alternatively, a septic) system, and other customary
utility facilities.
(xlviii) Defeasance. If such Mortgage Loan is a
Defeasance Mortgage Loan, the related Mortgage Loan documents require
the related Mortgagor to pay all reasonable costs associated with the
defeasance thereof, and either: (A) require the prior written consent
of, and compliance with the conditions set by, the holder of such
Mortgage Loan for defeasance or (B) require that (1) defeasance may not
occur prior to the second anniversary of the Closing Date, (2) the
Defeasance Collateral must be government securities within the meaning
of Treasury regulations section 1.860G-2(a)(8)(i) and must be
sufficient to make all scheduled payments under the related Mortgage
Note when due (assuming for each ARD Mortgage Loan that it matures on
its Anticipated Repayment Date or on the date when any open prepayment
period set forth in the related Mortgage Loan documents commences) or,
in the case of a partial defeasance that effects the release of a
material portion of the related Mortgaged Property, to make all
scheduled payments under the related Mortgage Note on that part of such
Mortgage Loan equal to at least 110% of the allocated loan amount of
the portion of the Mortgaged Property being released, (3) an
independent accounting firm (which may be the Mortgagor's independent
accounting firm) certify that the Defeasance Collateral is sufficient
to make such payments, (4) such Mortgage Loan be assumed by a successor
entity designated by the holder of such Mortgage Loan (or by the
Mortgagor with the approval of such lender), and (5) counsel provide an
opinion letter to the effect that the Trustee has a perfected security
interest in such Defeasance Collateral prior to any other claim or
interest.
(xlix) Primary Servicing Rights. No Person has been
granted or conveyed the right to primary service such Mortgage Loan or
receive any consideration in connection therewith except (A) as
contemplated in the Pooling and Servicing Agreement with respect to
primary servicers that are to be sub-servicers of the Master Servicer,
(B) as has been conveyed to the Master Servicer, or (C) as has been
terminated.
(l) Mechanics' and Materialmen's Liens. As of
origination, (A) the related Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are not bonded,
insured against or escrowed for, and (B) no rights are outstanding that
under law could give rise to any such lien that would be prior or equal
to the lien of the related Mortgage (unless affirmatively covered by
the title insurance referred to in paragraph (xi) above (or an
endorsement thereto)). The Seller has not received actual notice with
respect to such Mortgage Loan that any mechanics' and materialmen's
liens have encumbered the related Mortgaged Property since origination
that have not been released, bonded, insured against or escrowed for.
B-15
(li) Due Date. Subject to any business day convention
imposed by the related loan documents, the Due Date for such Mortgage
Loan is scheduled to be the first day, the sixth day, the tenth day or
the eleventh day of each month.
(lii) Assignment of Leases. Subject only to Permitted
Encumbrances, the related Assignment of Leases set forth in or separate
from the related Mortgage and delivered in connection with such
Mortgage Loan establishes and creates a valid and, subject only to the
exceptions and limitations in paragraph (v) above, enforceable first
priority lien and first priority security interest in the related
Mortgagor's right to receive payments due under any and all leases,
subleases, licenses or other agreements pursuant to which any Person is
entitled to occupy, use or possess all or any portion of the related
Mortgaged Property subject to the related Mortgage, except that a
license may have been granted to the related Mortgagor to exercise
certain rights and perform certain obligations of the lessor under the
relevant lease or leases; and each assignor thereunder has the full
right to assign the same.
(liii) Mortgagor Formation or Incorporation. To the
Seller's knowledge, the related Mortgagor is a Person formed or
incorporated in a jurisdiction within the United States.
(liv) No Ownership Interest in Mortgagor. The Seller
has no ownership interest in the related Mortgaged Property or the
related Mortgagor other than as the holder of such Mortgage Loan being
sold and assigned, and neither the Seller nor any affiliate of the
Seller has any obligation to make any capital contributions to the
related Mortgagor under the Mortgage or any other related Mortgage Loan
document.
(lv) No Undisclosed Common Ownership. To the Seller's
knowledge, except where multiple properties secure an individual
Mortgage Loan and except for properties securing Mortgage Loans that
are cross-defaulted and cross-collateralized and, except as listed on
Schedule I no two properties securing Mortgage Loans are directly or
indirectly under common ownership.
(lvi) Loan Outstanding. Such Mortgage Loan has not
been satisfied in full, and except as expressly contemplated by the
related loan agreement or other documents contained in the related
Mortgage File, no material portion of the related Mortgaged Property
has been released.
(lvii) Usury. Such Mortgage Loan complied with or was
exempt from all applicable usury laws in effect at its date of
origination.
(lviii) ARD Mortgage Loan. If such Mortgage Loan is
an ARD Mortgage Loan 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
B-16
Mortgaged Property, amounts due for reserves
established under such Mortgage Loan, and
payments for any other expenses, including
capital expenses, related to such Mortgaged
Property which are approved by mortgagee) will be
applied to repay principal due under such
Mortgage Loan;
(C) no later than the related Anticipated Repayment
Date, the related Mortgagor is required (if it
has not previously done so) to enter into a
"lockbox agreement" whereby all revenue from the
related Mortgaged Property will be deposited
directly into a designated account controlled by
the mortgagee under such Mortgage Loan; and
(D) the interest rate of such Mortgage Loan will
increase by at least two (2) percentage points in
connection with the passage of its Anticipated
Repayment Date.
(lix) Appraisal. An appraisal of the related
Mortgaged Property was conducted in connection with the origination of
such Mortgage Loan; and such appraisal satisfied either (A) the
requirements of the "Uniform Standards of Professional Appraisal
Practice" as adopted by the Appraisal Standards Board of the Appraisal
Foundation, or (B) the guidelines in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, in either
case as in effect on the date such Mortgage Loan was originated.
B-17
SCHEDULE I
LB-UBS 2005-C2
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (V): LOAN DOCUMENT STATUS.
----------------------------------------------------------------------------------------------------------------------
1 000 Xxxxx Xxx. The recourse guarantor is not a natural person. In
addition, the recourse for standard carve-outs is
subject to a 10% cap.
---------------- ----------------------------------------------- -----------------------------------------------------
3 Macquarie DDR Portfolio II The recourse guarantor is not a natural person.
---------------- ----------------------------------------------- -----------------------------------------------------
11 Lembi Portfolio The outstanding principal balance of the mortgage
loan is full recourse to the guarantors thereof
23 until such time as, among other things, the related
mortgage loan plus the related mezzanine loan
32 achieve a DSCR of 1.20x. At such time, the
mortgage loan shall remain full recourse, but only
38 with respect to $5,250,000.
---------------- ----------------------------------------------- -----------------------------------------------------
13 Bank of America Place The recourse guarantor is not a natural person.
---------------- ----------------------------------------------- -----------------------------------------------------
24 Xxxxx Fee Portfolio The recourse guarantor is not a natural person.
---------------- ----------------------------------------------- -----------------------------------------------------
44 Valley Center Mall The loan is fully recourse until the United States
Postal Service renews its lease or the lease is
replaced.
---------------- ----------------------------------------------- -----------------------------------------------------
75 Walgreens-Raleigh The loan is fully recourse until Borrower has
performed all of the required duties and has
delivered to Lender a new estoppel from Walgreens
which states that there is no work required to be
performed by Borrower.
---------------- ----------------------------------------------- -----------------------------------------------------
Sch I - 1
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
93 Xxxxxxxxxx Portfolio The loan is fully recourse.
---------------- ----------------------------------------------- -----------------------------------------------------
All Properties With respect to the non-recourse carveout guarantee
concerning fraud, certain of the guarantors have
only agreed to be, in connection with and to the
extent of any material fraud or material
intentional fraud or material misrepresentations or
material intentional misrepresentation by the
related borrower.
With respect to the non-recourse carve-out covering
misapplication or misappropriation, some guarantors
have agreed to cover "misapplication or conversion"
or "misappropriation or conversion" and some such
non-recourse carve-outs apply only during the
continuance of an event of default.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (VIII): FIRST LIEN.
----------------------------------------------------------------------------------------------------------------------
3 Macquarie DDR Portfolio II The Mortgage Loan is one of two notes secured by
the related Mortgaged Property. The two notes are
generally pari passu; provided that, except in
connection with an event of default, any repayment
or prepayment of the pari passu notes, including in
connection with a casualty or condemnation, will be
applied first to the other note until repaid in
full.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XII): PROPERTY INSURANCE.
----------------------------------------------------------------------------------------------------------------------
For all three properties in the Xxxxx Fee
24 Xxxxx Fee Portfolio Portfolio: a) pursuant to the mortgage, the
borrower is not required to maintain property
insurance. Pursuant to the three ground leases
encumbering each of the three respective
properties, the tenants are
-----------------------------------------------------------------------------------------------------------------------
Sch I - 2
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
obligated to maintain the property insurance. The
related insurance policies may be terminated
without prior notice to the mortgagee.
Furthermore, under these insurance policies, the
mortgagee is not named as the loss payee.
Pursuant to the lease with Linens n' Things, the
tenant is required to insure the property for the
full replacement value instead of the full
insurable value.
Pursuant to the leases with BRE/Homestead and
BRE/Amerisuites, insurance polices are required to
be maintained with insurance companies having
ratings of at least A from A.M. Best Company.
Terrorism insurance is not specifically required
for any of the three properties. In addition,
business interruption insurance is not required
for any of the three properties.
---------------- ----------------------------------------------- -----------------------------------------------------
Under the lease, the sole tenant, Walgreens, is
75 Walgreens-Raleigh self-insuring. Because rent does not xxxxx upon a
casualty or condemnation, for so long as Walgreens
is rated investment grade, no business interruption
insurance is required.
---------------- ----------------------------------------------- -----------------------------------------------------
Kmart-Parkersburg
102 The sole tenant, Kmart, maintains the insurance
with respect to the property. The insurance
carriers with respect to such insurance are not
required to meet the criteria of the
representation. One of the current carriers is
rated BBB.
---------------- ----------------------------------------------- -----------------------------------------------------
All Properties
With respect to certain mortgage loans, the lender
accepted comprehensive liability insurance in an
amount less than that required by the loan
documents, provided, however, that all the
mortgage loans provide a primary general liability
policy of at least $1,000,000 per occurrence with
----------------------------------------------------------------------------------------------------------------------
Sch I - 3
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
$2,000,000 in the aggregate. This exception does
not apply to the following mortgage loans: 000
Xxxxx Xxxxxx, Xxxxxxxxx DDR Portfolio II, The
Woodbury Office Portfolio II, The Woodbury Office
Portfolio I, Lembi Portfolio and Bank of America
Place.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XIII): NO MATERIAL DEFAULT.
----------------------------------------------------------------------------------------------------------------------
One of the tenants, Forest Laboratories, Inc., did
1 000 Xxxxx Xxxxxx not provide a tenant estoppel due to a dispute with
the borrower regarding elevator service. The
borrower provided a guaranty at closing with
respect to any losses in connection with the
failure of Forest Laboratories, Inc. to pay rent
due to such dispute.
---------------- ----------------------------------------------- -----------------------------------------------------
The related loan documents contained a post-closing
19 000 Xxxxx Xxxxxxx obligation requiring that the items below be
satisfied within 30 days of loan closing. Lender
has waived such 30-day time period and extended the
time period for completion of the items listed
below to within 120 days of loan closing.
1. The borrower is required to use commercially
reasonable efforts to deliver within 90 days from
the date of the loan an executed amended and
restated lease with Citigroup Global Markets Inc.
("Citigroup"), to lease premises located in the
Mortgaged Property and in no other property.
2. The borrower is required to obtain an estoppel
certificate from Citigroup indicating the
satisfaction or release of the Citigroup's claim
with respect to a tenant improvement allowance.
The lender is holding $6,915, the amount claimed
by Citigroup to be owed in connection with the
tenant improvement allowance, in escrow pending
the delivery of such estoppel. The lender has the
right to pay
----------------------------------------------------------------------------------------------------------------------
Sch I - 4
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
Citigroup if Citigroup fails to execute such an
estoppel within ninety 90 days from the date of
the loan closing.
3. The borrower is required to use commercially
reasonable efforts to enter into and deliver to
lender within 90 days from the date of the loan an
executed Subordination Nondisturbance and
Attornment Agreement with Citigroup in form and
substance reasonably acceptable to lender.
---------------- ----------------------------------------------- -----------------------------------------------------
A tenant at the property, 1-800-Flowers, is in a
22 000 Xxxx 00xx Xxxxxx dispute with the landlord concerning the alleged
lack of heat in its first floor space due to air
coming in through a loading dock door. The lender
escrowed $50,000 at closing in connection with
this dispute.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XVI): SUBORDINATE DEBT.
----------------------------------------------------------------------------------------------------------------------
2 The Woodbury Office Portfolio II Equity holders of the related borrowers have
pledged 100% of their equity interests in the
related borrowers to secure a mezzanine loan in the
amount of $20,355,625. The mezzanine loan is the
subject of an intercreditor agreement between the
mezzanine lender and the lender under the related
mortgage loan.
---------------- ----------------------------------------------- -----------------------------------------------------
3 Macquarie DDR Portfolio II The Mortgage Loan is one of two notes secured by
the related Mortgaged Property. The two notes are
generally pari passu; provided that, except in
connection with an event of default, any repayment
or prepayment of the pari passu notes, including in
connection with a casualty or condemnation, will be
applied first to the other note until repaid in
full.
---------------- ----------------------------------------------- -----------------------------------------------------
Sch I - 5
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
10 The Woodbury Office Portfolio I Equity holders of the related borrowers have
pledged 100% of their equity interests in the
related borrowers to secure a mezzanine loan in the
amount of $8,031,250. The mezzanine loan is the
subject of an intercreditor agreement between the
mezzanine lender and the lender under the related
mortgage loan.
---------------- ----------------------------------------------- -----------------------------------------------------
11 Lembi Multifamily Portfolio The equity holders of the related borrowers have
pledged 100% of the equity interests in the related
23 borrowers to secure mezzanine loans in the
aggregate amount of $14,000,000. Each such
32 mezzanine loan is the subject of an intercreditor
agreement between the mezzanine lender and the
38 lender under the related mortgage loans.
---------------- ----------------------------------------------- -----------------------------------------------------
All Properties The loan documents allow the borrower to incur
certain trade payables up to a predetermined
amount, which is generally less than or equal to 5%
of the loan amount.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XIX): ENVIRONMENTAL CONDITIONS.
----------------------------------------------------------------------------------------------------------------------
1 000 Xxxxx Xxxxxx No natural person has given an environmental
indemnity.
---------------- ----------------------------------------------- -----------------------------------------------------
3 Macquarie DDR Portfolio II No natural person has given an environmental
indemnity.
---------------- ----------------------------------------------- -----------------------------------------------------
13 Bank of America Place No natural person has given an environmental
indemnity.
---------------- ----------------------------------------------- -----------------------------------------------------
24 Xxxxx Fee Portfolio No natural person has given an environmental
indemnity.
----------------------------------------------------------------------------------------------------------------------
Sch I - 6
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXV): DUE-ON-ENCUMBRANCE.
----------------------------------------------------------------------------------------------------------------------
All Properties The loan documents allow the borrower to incur
certain trade payables up to a predetermined
amount, which is generally less than or equal to 5%
of the loan amount.
---------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXVII): MORTGAGOR CONCENTRATION.
----------------------------------------------------------------------------------------------------------------------
1 000 Xxxxx Xxxxxx The 000 Xxxxx Xxxxxx Mortgage Loan represents 11.6%
of the Initial Pool Balance.
---------------- ----------------------------------------------- -----------------------------------------------------
2 The Woodbury Office Portfolio II The Woodbury Office Portfolio II Mortgage Loan
represents 8.4% of the Initial Pool Balance.
---------------- ----------------------------------------------- -----------------------------------------------------
3 Macquarie DDR Portfolio II The Macquarie DDR Portfolio II Mortgage Loan
represents 8.1% of the Initial Pool Balance.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXXI): QUALIFICATIONS, LICENSING, ZONING.
----------------------------------------------------------------------------------------------------------------------
51 Golden Shoppes The borrower is required obtain permanent
certificates of occupancy for all spaces within the
Mortgaged Property within 90 days of closing. The
borrower is required to maintain temporary
certificates of occupancy prior to such time. The
loan becomes recourse to principals of the borrower
if the borrower fails to comply with such
requirements.
---------------- ----------------------------------------------- -----------------------------------------------------
62 Park Manor Apartments The property is illegal non-conforming due to the
construction of two extra living units without the
construction of an additional row of parking. The
borrower has applied for a re-zoning approval for
the units. Two units have been converted to
storage pending a re-zoning approval and the
---------------- ----------------------------------------------- -----------------------------------------------------
Sch I - 7
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
borrower is required to construct the additional
row of parking post-closing. The estimated cost of
the construction of such parking was escrowed at
closing.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXXIII): SINGLE PURPOSE ENTITY.
----------------------------------------------------------------------------------------------------------------------
The non-consolidation opinion contains
1 000 Xxxxx Xxxxxx qualifications.
---------------- ----------------------------------------------- -----------------------------------------------------
The borrowers under the related mortgage loans are
11 Lembi Multifamily Portfolio special purpose entities, but the lender did not
receive an opinion of non-consolidation with
23 respect to such borrowers.
32
38
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XL): ENGINEERING ASSESSMENTS.
----------------------------------------------------------------------------------------------------------------------
3 Macquarie DDR Portfolio II Although engineering assessment revealed
deficiencies, no deferred maintenance escrow was
established. The borrower's obligation to complete
the deferred maintenance has been guaranteed by the
related sponsor.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLII): LICENSES, PERMITS AND AUTHORIZATIONS.
----------------------------------------------------------------------------------------------------------------------
Xxxxx Fee Portfolio
24 As of the closing date, one of the ground lessees
has not commenced construction of the building nor
received a building permit. The payment of rent is
not contingent upon receipt of a construction
permit.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLVII): TAX LOT, UTILITIES.
----------------------------------------------------------------------------------------------------------------------
93 Xxxxxxxxxx Portfolio One tax lot with respect to the Forestdale Mobile
Home Park contains property not included within the
Mortgaged Property. However, the mortgage loan
documents require the related borrower to escrow
taxes with respect to the entire tax lot, including
the property which is not part of the mortgaged
property.
----------------------------------------------------------------------------------------------------------------------
Sch I - 8
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LI): DUE DATE.
----------------------------------------------------------------------------------------------------------------------
3 Macquarie DDR Portfolio II The due date is the fifth day of each month.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LII): ASSIGNMENT OF LEASES.
----------------------------------------------------------------------------------------------------------------------
1 000 Xxxxx Xxxxxx Such valid and enforceable first priority lien and
first priority security interest is created pursuant
to an Assignment of Leases and an Assignment of Post
Office Rents, in combination.
---------------- ---------------------------------------------- ------------------------------------------------------
Sch I - 9
EXHIBIT X-0
XXXXXXX XX XXXXXXXXXX, XXXXXXXXXX & XXXX LLP
[CADWALADER, XXXXXXXXXX & XXXX LLP LETTERHEAD]
April 20, 2005
Addressees listed on Schedule A
Re: LB-UBS Commercial Mortgage Trust 2005-C2 Commercial Mortgage Pass-Through
Certificates, Series 2005-C2
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 8(j) of the
Mortgage Loan Purchase Agreement, dated as of April 11, 2005 (the "MLPA"), among
UBS Real Estate Investments Inc., as seller (the "Seller"), UBS Principal
Finance LLC, as an additional party ("UBSPF") and Structured Asset Securities
Corporation II, as purchaser ("SASC").
We have acted as special counsel to the Seller in connection
with the following transactions: (i) the sale by the Seller, and the purchase by
SASC, of multifamily and commercial mortgage loans in the principal amount of
approximately $878,046,090 (the "UBS Mortgage Loans"), pursuant to the MLPA;
(ii) the execution by the Seller of the UBS Indemnification Agreement, dated as
of April 11, 2005 (the "Indemnification Agreement"), by and among the Seller,
UBS Americas Inc. ("UBS Americas" and, together with the Seller, the "UBS
Entities"), SASC and the Underwriters (as defined below); and (iii) the
acknowledgement by the Seller of certain sections of the Underwriting Agreement,
dated as of April 11, 2005 (the "Underwriting Agreement"), by and among SASC,
UBS Securities LLC ("UBS Securities") and Xxxxxx Brothers Inc. ("Xxxxxx", and
together with UBS Securities, the "Underwriters"), and acknowledged with respect
to certain sections by the Seller and Xxxxxx Brothers Holdings Inc. ("LBHI").
We have also acted as special counsel to UBS Americas in
connection with the execution by UBS Americas of the Indemnification Agreement
and to UBSPF in connection with the execution by UBSPF of the MLPA.
The MLPA, the Indemnification Agreement and the Underwriting
Agreement are collectively referred to herein as the "Agreements." Capitalized
terms not defined herein have the respective meanings set forth in the MLPA.
In rendering the opinions set forth below, we have examined
and, as to factual matters relevant to the opinions set forth below, relied upon
the originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Agreements and such certificates,
corporate and public records, agreements, instruments and other documents,
including, among other things, the documents and agreements delivered at the
closing of the purchase and sale of the Certificates (the "Closing"), as we have
deemed appropriate as a basis for the opinions expressed below. In such
examination we have assumed the genuineness of all signatures, the authenticity
of all documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens, the conformity of the text of each
document filed with the Securities and Exchange Commission through its
Electronic Data Gathering, Analysis and Retrieval System to the printed document
reviewed by us, and the accuracy of the matters set forth in the documents,
agreements and instruments we reviewed. As to any facts material to the opinions
expressed below that were not known to us, we have relied upon statements,
certificates and representations of officers and other representatives of the
UBS Entities, UBSPF, SASC and the Underwriters, including those contained in the
Agreements and other documents, certificates, agreements and opinions delivered
at the Closing, and of public officials. In addition, with respect to the
opinions referred to in paragraphs 8(c), 8(d) and 9 below, such opinions are
based solely on the Seller Officer's Certificate and the UBS Americas Officer's
Certificate referred to below, a review of the items, if any, identified as
exceptions in the exhibits to such certificates, conversation with internal
counsel for each of the UBS Entities, and the actual knowledge of attorneys who
conducted such review, had such conversations and/or customarily represent the
UBS Entities in real estate lending transactions, financing transactions, and/or
transactions similar to those contemplated by the Agreements. Except as
expressly set forth herein, we have not undertaken any independent investigation
(including, without limitation, conducting any review, search or investigation
of any public files, records or dockets) to determine the existence or absence
of the facts that are material to our opinion, and no inference as to our
knowledge concerning such facts should be drawn from our reliance on the
representations of the UBS Entities, UBSPF and others in connection with the
preparation and delivery of this letter.
In particular, we have examined and relied upon:
(i) the MLPA;
(ii) the Underwriting Agreement;
(iii) the Indemnification Agreement;
(iv) the officer's certificate of Seller, dated the date
hereof (the "Seller Officer's Certificate"); and
(v) the officer's certificate of UBS Americas, dated the
date hereof (the "UBS Americas Officer's Certificate").
References in this letter to "Applicable Laws" shall mean
those laws, rules and regulations of the State of New York and of the United
States of America which, in our experience, are normally applicable to
transactions of the type contemplated by the Agreements, as well as the General
Corporation Law of the State of Delaware with respect to the opinions
-11-
referred to in paragraphs 1 through 4, 8(a), 8(b)(i), 8(c) and 8(d) below. While
we are not licensed to practice law in the State of Delaware, we have reviewed
applicable provisions of the Delaware General Corporation Law as we have deemed
appropriate in connection with the opinions expressed herein. Except as
described we have neither examined nor do we express any opinion with respect to
Delaware law. References in this letter to the term "Governmental Authorities"
means executive, legislative, judicial, administrative or regulatory bodies of
the State of New York or the United States of America. References in this letter
to the term "Governmental Approval" means any consent, approval, license,
authorization or validation of, or filing, recording or registration with, any
Governmental Authority pursuant to Applicable Laws.
We have also assumed, except as to the UBS Entities, that all
parties who executed any documents, agreements and instruments in connection
with the transactions contemplated by the Agreements had the power and legal
right to execute and deliver all such documents, agreements and instruments,
and, except as to the UBS Entities and UBSPF, that such documents, agreements
and instruments are legal, valid and binding obligations of such parties,
enforceable against such parties in accordance with their respective terms. As
used herein, "to our knowledge," "known to us" or words of similar import mean
the actual knowledge, without independent investigation (except as expressly set
forth herein), of any lawyer in our firm actively involved in the transactions
contemplated by the Agreements.
We express no opinion concerning any law other than Applicable
Law.
Based upon and subject to the foregoing, we are of the opinion
that:
1. Each of the Agreements has been duly authorized, executed
and delivered by the Seller.
2. The Indemnification Agreement has been duly authorized,
executed and delivered by UBS Americas.
3. The Seller is a corporation validly existing and in good
standing under the laws of the State of Delaware, with corporate
power and authority to enter into and perform its obligations under
the Agreements.
4. UBS Americas is a corporation validly existing and in good
standing under the laws of the State of Delaware, with corporate
power and authority to enter into and perform its obligations under
the Indemnification Agreement.
5. Each of the MLPA and the Underwriting Agreement constitutes
the legal, valid and binding agreement of the Seller, and the MLPA
constitutes the legal, valid and binding agreement of UBSPF,
enforceable against the Seller or UBSPF, as applicable, in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium,
receivership or other laws relating to or affecting creditors'
rights generally, and to general principles of equity (regardless
of whether enforcement is sought in a proceeding at law or in
equity), and except that (a) the enforcement of rights with respect
to indemnification and contribution obligations and (b) provisions
(i) purporting to waive or limit rights to trial by jury, oral
amendments to
-12-
written agreements or rights of set off or (ii) relating to
submission to jurisdiction, venue or service of process, may be
limited by applicable law or considerations of public policy.
6. Neither the consummation by UBSPF of any of the
transactions contemplated by the MLPA nor the execution, delivery
and performance of the terms of the MLPA by UBSPF will conflict
with, or result in the violation of, any New York State or federal
law that is applicable to UBSPF.
7. The execution, delivery and performance by UBSPF of the
MLPA and the consummation by UBSPF of the transactions contemplated
under the MLPA do not require any consent, approval, license,
authorization or validation of, or filing, recording or
registration with, any executive, legislative, judicial,
administrative or regulatory bodies of the United States of America
pursuant to those laws, rules and regulations of the United States
of America which, in our experience are normally applicable to
transactions of the type contemplated by the MLPA, to be obtained
by UBSPF except those that may be required under state securities
or blue sky laws, and such other approvals that have been obtained
and, to our knowledge, are in effect.
8. None of the sale of the UBS Mortgage Loans, the
consummation by either UBS Entity of any of the other transactions
contemplated by the Agreements to which it is a party or the
execution, delivery and performance by each UBS Entity of the terms
of the Agreements to which it is a party, (a) will require any
Governmental Approval to be obtained or made on the part of either
UBS Entity, the absence of which would have a material adverse
effect on such UBS Entity or the transactions contemplated by the
Agreements, except those that may be required under state
securities or blue sky laws, and except for such other approvals
that have been obtained and, to our knowledge, are in full force
and effect, (b) will conflict with, or result in a violation of,
any provision of (i) either UBS Entity's certificate of
incorporation or bylaws or (ii) any Applicable Laws applicable to
either UBS Entity, (c) will, to our knowledge, breach, constitute a
default under, require any consent under, or result in the
acceleration or require prepayment of any indebtedness pursuant to
the terms of, any agreement or instrument to which either UBS
Entity is a party or by which it is bound or to which it is
subject, or result in the creation or imposition of any lien upon
any property of either UBS Entity pursuant to the terms of any such
agreement or instrument, any of which occurrences, either in any
one instance or in the aggregate, would call into question the
validity of any Agreement to which it is a party or be reasonably
likely to impair materially the ability of such UBS Entity to
perform under the terms of any Agreement to which it is a party and
(d) will, to our knowledge, breach or result in a violation of, or
default under, any material judgment, decree or order that is
applicable to either UBS Entity and is issued by any Governmental
Authority having jurisdiction over either UBS Entity or any of its
properties.
9. To our actual knowledge, there is no legal or governmental
action, investigation or proceeding pending or threatened against
either UBS Entity (a) asserting the invalidity of the Agreements to
which it is a party, (b) seeking to prevent the consummation of any
of the transactions provided for in the Agreements, or (c) that
would materially and adversely affect (i) the ability of either UBS
Entity to perform its obligations under, or the validity or
enforceability (with respect to either UBS Entity) of,
-13-
the Agreements to which it is a party or (ii) any rights with
regard the Mortgaged Properties or the Mortgage Loans. For purposes
of the opinion set forth in this paragraph, we have not regarded
any legal or governmental actions, investigations or proceedings to
be "threatened" unless the potential litigant or governmental
authority has communicated in writing to a UBS Entity a present
intention to initiate such actions, investigations or proceedings
against such UBS Entity.
We are furnishing this letter to you solely for your benefit
in connection with the transactions referred to herein. This letter is not to be
relied upon, used, circulated, quoted or otherwise referred to by any other
person or for any other purpose without our prior written consent. In addition,
we disclaim any obligation to update this letter for changes in fact or law, or
otherwise.
Very truly yours,
-14-
SCHEDULE A
Structured Asset Securities Corporation II Fitch, Inc.
000 Xxxxxxx Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. LaSalle Bank National Association
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10019 Xxxxxxx, Xxxxxxxx 00000
UBS Securities LLC Xxxxx'x Investors Service, Inc.
1285 Avenue of the Americas 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Bank N.V
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Exhibit C-1-1
EXHIBIT C-2
OPINION OF IN-HOUSE COUNSEL TO ADDITIONAL PARTY
[UBS LETTERHEAD]
[TO COME]
Exhibit C-2-1
Exhibit C-2-2
MORTGAGE LOAN NUMBER PROPERTY NAME ADDRESS
-------------------------------------------------------------------------------------------------------------------------
1 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
2 The Woodbury Office Portfolio II Various
3 Macquarie DDR Portfolio II Various
9 The Woodbury Office Portfolio I Various
11 Lembi Portfolio - Citi Properties I LLC Various
13 Bank of America Place 000 Xxxxxxx Xxxxxx
18 iPark on the Xxxxxx 00 Xxxxx Xxxxxx
00 000 Xxxxx Xxxxxxx 000 Xxxxx Xxxxxxx Xxxx
20 000 Xxxxxxxx 000 Xxxxxxxx
21 000 Xxxx 00xx Xxxxxx 000-000 Xxxx 00xx Xxxxxx
22 Schubiner Portfolio Various
23 Lembi Portfolio - Trophy Properties I LLC Various
24 Xxxxx Fee Portfolio Various
00 Xxxxx Xxxxxxxxx - Xxxxxxx Xxxxxx LLC 00 Xxxxxxx Xxxxxx
00 Xxxxx Xxxxxxxxx - Xxxxxx Xxxxxx Associates I 000 Xxxxxx Xxxxxx
40 Brooklyn Multifamily Various
00 Xxxxxx Xxxxxx Xxxx 000 Xxxxx Xxxxxxx Avenue
50 Acadian House and Willow Bend Apartments Various
51 Golden Shoppes 0000 Xxxxxxxxxx Xxxxxxxxx
61 Imperial Parks 000 Xxxx Xxxxxx Xxxxxx and 000 Xxxxxxx Xxxx
62 Park Manor Apartments 0000 Xxxx Xxxxxxx Xxxxx
00 Xxxxxxxxxxxxx Xxxxxx 3555 Xxxxxxx 000
00 Xxxxxxxxx - Xxxxxxx 0000 Falls of Xxxxx Xxxx
00 Terrace Club Apartments 0000 Xxxxxxxx Xxxxx Xxxxx
00 Xxxxx Self Storage 000 Xxxxxxxxxx Xxxxx
86 Northmark Office 000 Xxxxxx Xxxxxx Xxxxx
00 Flagship Properties Various
90 Turtle Creek Apartments 3114 Xxx Xxxxx Drive
93 Xxxxxxxxxx Portfolio Various
101 Executive House Apartments 0000 Xxxx Xxxxxxxxx Xxxx
102 Kmart - Parkersburg 0000 Xxxxxxxx Xxxxxx
MORTGAGE LOAN NUMBER CITY STATE ZIP CODE CUT-OFF DATE BALANCE
----------------------------------------------------------------------------------------------------------------------------
1 Xxx Xxxx XX 00000 225,000,000.00
2 Xxxxxxxx XX 00000 163,595,000.00
3 Various Various Various 157,250,000.00
9 Xxxxxxxx XX 00000 63,500,000.00
11 San Francisco CA Various 51,627,000.00
13 Xxxxxxxxxx XX 00000 34,400,000.00
18 Xxxxxxx XX 00000 15,710,446.55
19 Xxxxx Xxxxx XX 00000 15,663,487.74
20 Xxx Xxxx XX 00000 14,986,496.62
21 Xxx Xxxx XX 00000 14,950,000.00
00 Xxxxxxxxxx Xxxxx MI Various 14,488,264.81
23 San Francisco CA Various 13,886,000.00
24 Xxxxxxxx XX 00000 13,500,000.00
32 Xxx Xxxxxxxxx XX 00000 11,442,000.00
38 Xxx Xxxxxxxxx XX 00000 8,045,000.00
40 Xxxxxxxx XX 00000 7,742,970.13
44 Xxxxxx XX 00000 6,734,569.57
50 Lafayette LA Various 5,938,074.21
00 Xxxx Xxxx Xxxxx XX 00000 5,837,018.67
61 Xxxxxxxxx XX 00000 (Imperial Park), 00000 (Xxxxxxxx Xxxxxxx) 4,450,000.00
62 Xxxxxx XX 00000 4,395,968.44
71 Xxxxxxxxxx XX 00000 3,670,000.00
75 Xxxxxxx XX 00000 3,500,000.00
77 Xxxxx XX 00000 3,440,895.59
00 Xxxxxxxx Xxxx XX 00000 2,554,358.53
86 Xxxxxx XX 00000 2,500,000.00
87 Various KY Various 2,327,026.11
90 Xxxxxxx XX 00000 2,114,963.89
93 Various AL Various 2,071,046.87
101 Xxxxxx XX 00000 1,375,502.62
000 Xxxxxxxxxxx XX 00000 1,350,000.00
MORTGAGE LOAN NUMBER MONTHLY P&I PAYMENT MORTGAGE RATE REMAINING TERM TO MATURITY MATURITY-ARD
-------------------------------------------------------------------------------------------------------------------
1 1,297,785.07 5.64300 120 4/11/2015
2 910,483.56 5.32000 84 4/11/2012
3 631,882.92 4.82200 60 4/5/2010
9 282,744.04 5.27000 60 4/11/2010
11 260,847.81 5.98000 59 3/11/2010
13 195,751.30 5.52000 118 2/11/2015
18 89,976.67 5.57000 59 3/11/2010
19 89,734.79 5.56000 118 2/11/2015
20 86,870.05 5.68000 119 3/11/2015
21 91,758.22 6.22000 120 4/11/2015
22 87,775.61 6.09000 83 3/11/2012
23 70,159.66 5.98000 59 3/11/2010
24 60,167.97 5.27500 119 3/11/2015
32 57,811.23 5.98000 59 3/11/2010
38 40,647.73 5.98000 59 3/11/2010
40 44,735.77 5.65000 83 3/11/2012
44 40,326.09 5.96000 117 1/11/2015
50 35,631.29 6.00000 119 3/11/2015
51 36,418.88 5.65000 119 3/11/2015
61 28,671.41 6.00000 120 4/11/2015
62 25,287.23 5.61000 119 3/11/2015
71 21,838.61 5.93000 120 4/11/2015
75 21,029.29 6.02000 120 4/11/2015
77 21,613.73 6.04000 58 2/11/2010
85 15,167.92 5.89000 118 2/11/2015
86 14,972.69 5.99000 120 4/11/2015
87 15,012.22 6.00000 119 3/11/2015
90 11,944.18 5.43000 118 2/11/2015
93 13,490.61 6.07000 117 1/11/2015
101 8,507.40 5.54000 118 2/11/2015
102 10,248.87 6.73000 152 12/11/2017
MORTGAGE LOAN NUMBER REMAINING AMORTIZATION TERM INTEREST ACCRUAL BASIS ADMINISTRATIVE COST RATE
----------------------------------------------------------------------------------------------------------------
1 360 Act/360 0.02105
2 360 Act/360 0.02105
3 0 30/360 0.02105
9 0 Act/360 0.02105
11 0 Act/360 0.02105
13 360 Act/360 0.02105
18 359 Act/360 0.02105
19 358 Act/360 0.02105
20 359 Act/360 0.02105
21 360 Act/360 0.02105
22 359 Act/360 0.02105
23 0 Act/360 0.02105
24 0 Act/360 0.02105
32 0 Act/360 0.02105
38 0 Act/360 0.02105
40 359 Act/360 0.02105
44 357 Act/360 0.02105
50 359 Act/360 0.02105
51 299 Act/360 0.02105
61 300 Act/360 0.02105
62 359 Act/360 0.02105
71 360 Act/360 0.02105
75 360 Act/360 0.02105
77 322 Act/360 0.02105
85 358 Act/360 0.02105
86 360 Act/360 0.02105
87 299 Act/360 0.02105
90 358 Act/360 0.02105
93 297 Act/360 0.02105
101 298 Act/360 0.02105
102 240 Act/360 0.02105
MORTGAGE LOAN NUMBER PRIMARY SERVICING FEE GROUND LEASE? MORTGAGE LOAN SELLER DEFEASANCE
-----------------------------------------------------------------------------------------------------------------------------
1 0.0200 Leasehold UBS Defeasance
2 0.0200 Fee Simple UBS Yield Maintenance
3 0.0200 Fee Simple UBS Yield Maintenance or Defeasance
9 0.0200 Fee Simple UBS Yield Maintenance
11 0.0200 Fee Simple UBS Defeasance
13 0.0200 Fee Simple UBS Defeasance
18 0.0200 Fee Simple UBS Defeasance
19 0.0200 Fee Simple UBS Defeasance
20 0.0200 Fee Simple UBS Defeasance
21 0.0200 Fee Simple UBS Defeasance
22 0.0200 Fee Simple UBS Defeasance
23 0.0200 Fee Simple UBS Defeasance
24 0.0200 Fee Simple UBS Defeasance
32 0.0200 Fee Simple UBS Defeasance
38 0.0200 Fee Simple UBS Defeasance
40 0.0200 Fee Simple UBS Yield Maintenance
44 0.0200 Fee Simple UBS Defeasance
50 0.0200 Fee Simple UBS Defeasance
51 0.0200 Fee Simple UBS Defeasance
61 0.0200 Fee Simple UBS Defeasance
62 0.0200 Fee Simple UBS Defeasance
71 0.0200 Fee Simple UBS Defeasance
75 0.0200 Fee Simple UBS Defeasance
77 0.0200 Fee Simple UBS Defeasance
85 0.0200 Fee Simple UBS Yield Maintenance
86 0.0200 Fee Simple UBS Defeasance
87 0.0200 Fee Simple UBS Defeasance
90 0.0200 Fee Simple UBS Defeasance
93 0.0200 Fee Simple UBS Defeasance
101 0.0200 Fee Simple UBS Defeasance
102 0.0200 Fee Simple UBS Defeasance
ANTICIPATED MORTGAGE LOAN
MORTGAGE LOAN NUMBER ARD MORTGAGE LOAN REPAYMENT DATE ARD SPREAD CROSS COLLATERALIZED SELLER LOAN ID
-----------------------------------------------------------------------------------------------------------------------------------
1 No N/A No 10739
2 No N/A No 10745
3 No N/A No UBS1
9 No N/A No 10744
11 No N/A Yes (UBS-A) 10737a
13 No N/A No 10634
18 No N/A No 10666
19 No N/A No 10679
20 No N/A No 10654
21 No N/A No 10629
22 No N/A No 10664
23 No N/A Yes (UBS-A) 10737b
24 Xx X/X Xx 00000
00 Xx X/X Yes (UBS-A) 10737d
38 No N/A Yes (UBS-A) 10737c
40 No N/A No 10575
44 No N/A No 10496
50 No N/A No 10600
51 No N/A No 10628
61 No N/A No 10590
62 No N/A No 10613
71 No N/A No 10694
75 No N/A No 10658
77 No N/A No 10631
85 No N/A No 10690
86 No N/A No 10491
87 No N/A No 10591
90 No N/A No 10639
93 No N/A No 10441
101 No X/X Xx 00000
000 Xx X/X Xx 00000x
