EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of October 25, 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-C7, Commercial Mortgage Pass-Through Certificates, Series 2005-C7. 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 October 11, 2005 (the
"Pooling and Servicing Agreement"), between the Purchaser, as depositor,
Wachovia Bank, National Association, as master servicer (the "Master Servicer"),
Midland Loan Services, 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 ("UBSS" and, together with Xxxxxx in such
capacity, the "Underwriters"), whereby the Purchaser will sell to the
Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Purchaser has
also entered into a Certificate Purchase Agreement (the "Certificate Purchase
Agreement"), dated as of the date hereof, with Xxxxxx and UBSS (together in such
capacity, the "Placement Agents"), whereby the Purchaser will sell to the
Placement Agents all of the remaining Certificates (other than the Residual
Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
UBS Americas Inc. (the "Co-Indemnitor"), the Purchaser, the Underwriters and the
Placement Agents have entered into an Indemnification Agreement (the
"Indemnification Agreement"), dated as of the date hereof.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit A. The Mortgage
Loan Schedule may be amended to reflect the actual Mortgage Loans accepted by
the Purchaser pursuant to the terms hereof. The Mortgage Loans will have an
aggregate principal balance of $768,227,117 (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
November 4, 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 October 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 32.84959% 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 8 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, through an Independent third party (the
"Recording Agent") retained by it, as and in the manner provided in the Pooling
and Servicing Agreement (and in any event within 45 days following the later of
the Closing Date and the date on which all necessary recording information is
available to the Recording Agent), cause (i) each assignment of Mortgage and
each assignment of Assignment of Leases, in favor of, and delivered as part of
the related Mortgage File to the Trustee, to be submitted for recordation in the
appropriate public office for real property records, and
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(ii) such assignments to be delivered to the Trustee following their return by
the applicable public recording office, with copies of any such returned
assignments to be delivered by the Trustee to the Master Servicer, at the
expense of the Seller, at least every 90 days after the Closing Date (or at
additional times upon the request of the Master Servicer if reasonably necessary
for the ongoing administration and/or servicing of the related Mortgage Loan by
the Master Servicer); provided that, in those instances where the public
recording office retains the original assignment of Mortgage or assignment of
Assignment of Leases, a certified copy of the recorded original shall be
forwarded to the Trustee. If any such document or instrument is lost or returned
unrecorded because of a defect therein, then the Seller shall prepare a
substitute therefor or cure such defect or cause such to be done, as the case
may be, and the Seller shall deliver such substitute or corrected document or
instrument to the Trustee (or, if the Mortgage Loan is then no longer subject to
the Pooling and Servicing Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all such
recording and delivery contemplated in the preceding paragraph, including,
without limitation, any out-of-pocket costs and expenses that may be incurred by
the Trustee in connection with any such recording or delivery performed by the
Trustee at the Seller's request and the fees of the Recording Agent.
Pursuant to the Pooling and Servicing Agreement and a letter agreement
dated November 4, 2005 (the "Filing Letter Agreement") between Anthracite
Capital, Inc. ("AHR"), the Depositor, the UBS Mortgage Loan Seller and the
Trustee, the Trustee, through a third party (the "Filing Agent") retained by it,
as and in the manner provided in the Pooling and Servicing Agreement and at the
expense of AHR (and in any event within 45 days following the later of the
Closing Date and the date on which all necessary filing information is available
to the Filing Agent), is required to cause (i) each assignment of Uniform
Commercial Code financing statements prepared by the Seller, in favor of, and
delivered as part of the related Mortgage File to the Trustee, to be submitted
for filing in the appropriate public office, and (ii) such assignments to be
delivered to the Trustee following their return by the applicable public filing
office, with copies of any such returned assignments to be delivered by the
Trustee to the Master Servicer, at the expense of the Seller, at least every 90
days after the Closing Date (or at additional times upon the request of the
Master Servicer if reasonably necessary for the ongoing administration and/or
servicing of the related Mortgage Loan by the Master Servicer). The Seller
hereby agrees to reasonably cooperate with the Trustee and the Filing Agent with
respect to the filing of the assignments of Uniform Commercial Code financing
statements as described in this paragraph and to forward to the Trustee filing
confirmation, if any, received in connection with such Uniform Commercial Code
financing statements filed in accordance with this paragraph. Notwithstanding
the foregoing, to the extent the Trustee provides AHR, pursuant to the Filing
Letter Agreement, with an invoice for the expenses (i) reasonably to be incurred
in connection with the filings referred to in this paragraph and (ii) required
to be paid by AHR pursuant to the Filing Letter Agreement, and such expenses are
not paid by AHR in advance of such filings, the Trustee, pursuant to the Pooling
and Servicing Agreement and the Filing Letter Agreement and at the expense of
the Seller, shall only be required to cause the filing agent to file the
assignments of such Uniform Commercial Code financing statements with respect to
Mortgage Loans secured by hotel or hospitality properties.
(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
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agreements, reserve agreements, organization documentation for the related
mortgagor, organizational documentation for any related guarantor or indemnitor,
if the related guarantor or indemnitor is an entity, insurance certificates or
insurance review reports, leases for tenants representing 10% or more of the
annual income with respect to the related Mortgaged Property, final seismic
report and property management agreements, rent roll, property operating
statement and financial statements for the related guarantor or indemnitor, cash
management or lockbox agreement, zoning letters or zoning reports and the
documents, if any, specifically set forth on Exhibit C hereto (collectively, the
"Mortgage Origination Documents"), but in each case, only if the subject
document (a) was in fact obtained in connection with the origination of such
Mortgage Loan, (b) 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 (c) 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 appropriate
Sub-Servicer); provided that the Seller shall not be required to deliver any
draft documents, privileged or other communications or correspondence, credit
underwriting or due diligence analyses or information, credit committee briefs
or memoranda or other internal approval documents or data or internal
worksheets, memoranda, communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) In connection with the obligations of the Master Servicer under
Sections 3.01(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) hereof and provide
each Seller and the Controlling Class Representative and the Special Servicer
with a certificate (the "Master Servicer Certification") within 90 days of the
Closing Date acknowledging its (or the appropriate Sub-Servicer's) receipt as of
the date of the Master Servicer Certification of such documents actually
received (provided that such review shall be limited to identifying the document
received, the Serviced Trust 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
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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 date occurring 18 months following 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 (i) to
the Master Servicer for deposit in the Pool Custodial Account, the Initial
Deposits relating to the Mortgage Loans, and (ii) to the Trustee for deposit in
the Interest Reserve Account, the Interest Reserve Deposit with respect to each
Mortgage Loan that is an Interest Reserve Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller and
Additional Party.
(a) Each of the Seller and the Additional Party (each, for purposes of
this Section 3(a), a "Representing Party") hereby represent and warrant to and
covenant with the Purchaser, as of the date hereof, that:
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.
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).
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.
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.
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
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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.
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.
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.
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:
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.
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.
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
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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.
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.
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.
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.
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.
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.
The Seller is a United States Tax Person and is not a Disqualified Organization.
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(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 Wachovia 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
Purchaser to cause the Seller's Residual Interest Certificates to be registered
in the name of Wachovia 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:
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.
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).
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.
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.
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.
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SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller receives written notice or obtains actual knowledge
with respect to any Mortgage Loan (i) that any document constituting a part of
clauses (a)(i) through (a)(xiii) of the definition of Mortgage File or a
document, if any, specifically set forth on Exhibit D hereto, has not been
executed (if applicable) or is missing (a "Document Defect") or (ii) of a breach
of any of the Seller's representations and warranties made pursuant to Section
3(b) hereof (each such breach, a "Breach") relating to any Mortgage Loan, and
such Document Defect or Breach, as of the date specified in Section 5(b)(i)
hereof, materially and adversely affects the value of the Mortgage Loan, then
such Document Defect shall constitute a "Material Document Defect" or such
Breach shall constitute a "Material Breach", as the case may be. In the event
the Seller obtains actual knowledge of a Material Document Defect or Material
Breach, then the Seller shall deliver written notification to the Trustee with
respect thereto. Then, following receipt by the Seller 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)
hereof), (A) not later than (1) 90 days after the Seller and the Purchaser have
agreed upon the existence of such Material Document Defect or Material Breach or
(2) 60 days after an arbitration panel makes a binding determination, in
accordance with the provisions of Section 5(i) hereof, 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 (each of such 90-day period referred to in clause (A)(1) above,
or such 60-day period referred to in clause (A)(2) above, or such 90-day period
referred to in clause (B) above, as applicable, is referred to as the "Initial
Resolution Period"): (i) cure such Material Document Defect or Material Breach,
as the case may be, in all material respects (which cure shall include payment
of any out-of-pocket expenses that are reasonably incurred and directly
attributable to pursuing such a claim based on such Material Document Defect or
Material Breach associated therewith), or (ii) if such Material Document Defect
or Material Breach, as the case may be, cannot be cured within the Initial
Resolution Period, repurchase the affected Mortgage Loan (or the related
Mortgaged Property) from, and in accordance with the directions of, the
Purchaser or its designee, at a price equal to the Purchase Price; provided that
if (a) such Material Breach or Material Document Defect, as the case may be, is
capable of being cured but not within the applicable Initial Resolution Period,
(b) any such Material Breach or Material Document Defect, as the case may be,
does not affect whether the Mortgage Loan was, as of the Closing Date, is or
will continue to be a Qualified Mortgage, (c) the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(d) the Seller shall have delivered to the Purchaser a certification executed on
behalf of the Seller by an officer thereof confirming that such Material Breach
or Material Document Defect, as the case may be, is not capable of being cured
within the applicable Initial Resolution Period, setting forth what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed, 90 days
beyond the end of the Initial Resolution Period (in the event the Seller and the
Purchaser have agreed upon the existence of such Material Document Defect or
Material Breach as described under Section 5(a)(ii)(A)(1)), or 45 days beyond
the end of the Initial Resolution Period (in the event an arbitration panel has
made a binding determination, as described under Section 5(a)(ii)(A)(2) hereof,
that a Material Document Defect or Material Breach exists), then the
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Seller shall have such additional 90-day period or 45-day period, as the case
may be (each such 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
applicable Resolution Extension Period solely due to the failure of the Seller
to have received a recorded document, then the Seller shall be entitled to
continue to defer its cure and repurchase obligations in respect of such
Material Document Defect so long as the Seller certifies to the Purchaser every
six months thereafter that the Material Document Defect is still in effect
solely because of its failure to have received the recorded document and that
the Seller is diligently pursuing the cure of such defect (specifying the
actions being taken). The parties acknowledge that neither delivery of a
certification or schedule of exceptions to the Seller pursuant to Section
2.02(b) of the Pooling and Servicing Agreement or otherwise nor possession of
such certification or schedule by the Seller shall, in and of itself, constitute
delivery of notice of any Material Document Defect or Material Breach or
knowledge or awareness by the Seller of any Material Document Defect or Material
Breach.
If, during the period of deferral by the Seller of its cure and
repurchase obligations as contemplated by the last proviso of the penultimate
sentence of the preceding paragraph, the Mortgage Loan that is the subject of
the Material Document Defect either becomes a Specially Serviced Mortgage Loan
or becomes the subject of a proposed or actual assumption of the obligations of
the related 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) 1. Provided that any Seller/Depositor Notification with respect to
a Material Document Defect or Material Breach is received by the Seller in
accordance with the provisions of the Pooling and Servicing Agreement), within
24 months of the Closing Date, the material and adverse effect of the related
Document Defect or Breach shall be determined as of the date hereof. After the
expiration of 24 months following the Closing Date, the material and adverse
effect of any Document Defect or Breach that was not the subject of another
Seller/Depositor Notification, received by the Seller (in accordance with the
provisions of the Pooling and Servicing Agreement), within 24 months of the
Closing Date, shall be determined as of the date of such Seller/Depositor
Notification.
In the event the Seller is obligated to repurchase any Mortgage Loan pursuant to
this Section 5, such obligation shall extend to any successor REO Mortgage Loan
with respect thereto as to which (A) the subject Material Breach existed as to
the subject predecessor Mortgage Loan prior to the date the related Mortgaged
Property became an REO Property or within 90 days thereafter, and (B) as to
which the Seller had received, no later than 90 days following the date on which
the related Mortgaged Property became an REO Property, a Seller/Depositor
Notification from the Trustee regarding the occurrence of the applicable
Material Breach and directing the Seller to repurchase the subject Mortgage
Loan.
(c) If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Seller as contemplated
by Section 5(a) hereof, then,
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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 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,
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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) hereof 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 an arbitration panel pursuant to a binding arbitration
proceeding in accordance with Section 5(i) hereof; provided that, in the event
there is an arbitration proceeding for determining the existence of a Material
Breach or a Material Document Defect with respect to any Mortgage Loan, such
arbitration proceeding must also include a determination of the amount of the
loss of value to such Mortgage Loan directly attributed to such Material Breach
or such Material Document Defect, as the case may be. Provided that such payment
is made, this paragraph describes the sole remedy available to the Purchaser
regarding any such Material Breach or Material Document Defect and the Seller
shall not be obligated to otherwise cure such Material Breach or Material
Document Defect or repurchase the affected Mortgage Loan based on such Material
Breach or Material Document Defect under any circumstances. Notwithstanding the
foregoing provisions of this Section 5(g), if 95% or more of the loss of value
to a Mortgage Loan was caused by a Material Breach or Material Document Defect,
which Material Breach or Material Document Defect is not capable of being cured,
this Section 5(g) shall not apply and the Seller shall be obligated to
repurchase the affected Mortgage Loan at the applicable Purchase Price in
accordance with Section 5(a) hereof. 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
an arbitration panel pursuant to a binding arbitration proceeding in accordance
with Section 5(i) hereof, then such Loss of Value Payment shall also include the
payment of any costs and expenses (including costs incurred in
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establishing the amount of any related loss of value to the subject Mortgage
Loan, including reasonable legal fees) that are reasonably incurred in good
faith by the Master Servicer, the Special Servicer and/or the Trustee (on behalf
of the Trust) in enforcing the rights of the Trust against the Seller with
respect to the subject Material Breach or Material Document Defect, as the case
may be; provided that, that in the event the Seller tenders a loss of value
payment in a specified amount in connection with a Material Breach or Material
Document Defect, as the case may be, prior to the institution of arbitration
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 an arbitration panel pursuant to a binding arbitration proceeding in
accordance with Section 5(i) hereof 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 in enforcing the rights of the Trust against the
Seller with respect to the subject Material Breach or Material Document Defect,
as the case may be; provided, 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 an arbitration panel pursuant to a binding arbitration proceeding
in accordance with Section 5(i) hereof to be the actual Loss of Value Payment
attributable to such Material Document Defect or Material Breach, then that Loss
of Value Payment shall also include the payment of any costs or expenses
reasonably incurred in good faith in enforcing the rights of the Trust against
the Seller with respect to the subject Material Breach or Material Document
Defect, as the case may be; and provided, further, that, if the Seller tenders a
loss of value payment in connection with a Material Breach or Material Document
Defect, as the case may be, in a specified amount, and the Special Servicer
rejects such tender and requests a greater loss of value payment amount, and an
amount in between the respective amounts tendered and requested is ultimately
determined by an arbitration panel pursuant to a binding arbitration proceeding
in accordance with Section 5(i) hereof 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 arbitration proceeding, multiplied by (ii) a fraction, the
numerator of which is the excess of the amount determined by that arbitration
proceeding 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 an arbitration proceeding), that Loss of Value Payment shall not include any
costs and expenses incurred by the Master Servicer, the Special Servicer or the
Trustee unless such costs and expenses were specifically included in such mutual
agreement.
(h) Notwithstanding the foregoing, if there exists a Material Breach
of the representation or warranty on the part of the Seller set forth in and
made pursuant to paragraph (xvii) of Exhibit B to this Agreement, and the
subject Mortgage Loan becomes a Qualified Mortgage prior to the expiration of
the Initial Resolution Period applicable to a Material Document Defect or
Material Breach that affects whether a Mortgage Loan is a Qualified Mortgage,
and without otherwise causing an Adverse REMIC Event or an Adverse Grantor Trust
Event, then such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such Breach.
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(i) The parties hereto agree that any controversy or claim (a
"Dispute") arising under Section 5(a), Section 5(b) and/or Section 5(g) of this
Agreement shall be resolved in accordance with the following
Mediation/Arbitration procedures in this Section 5(i).
If the Seller receives a Seller/Depositor Notification pursuant to
Section 5(a) of this Agreement regarding the alleged existence of a Material
Document Defect or Material Breach and requesting the Seller to cure or
repurchase the affected Mortgage Loan in connection therewith (a "Notice"), and
the Seller does not agree upon the existence of such Material Document Defect or
Material Breach within 90 days of receiving such Notice, then, unless otherwise
agreed to by the parties involved in the Dispute, that Dispute shall be
submitted to non-binding mediation in accordance with the provisions of this
paragraph; provided, that if the Seller is proceeding to cure the subject
Material Document Defect or Material Breach, then that Dispute shall not be
submitted to mediation until the expiration of the related Resolution Extension
Period and the failure of the Seller to complete such cure (unless otherwise
agreed to by the parties involved in the Dispute). Following the 90-day period
referred to in the preceding sentence and subject to the preceding proviso, any
party to this Agreement that is involved in the Dispute may send a written
letter (a "Mediation Letter") to another party to this Agreement that they wish
the mediation process to begin between the sender and the recipient of such
Mediation Letter. Following receipt of a Mediation Letter, a mediator(s) shall
be selected by agreement of the parties to the mediation. If such parties cannot
agree on a mediator, [a mediator will be designated by the JAMS/Endispute at the
request of any party (provided that any mediator so designated must be
acceptable to both the Seller and the Purchaser or its assignee)] [then the
mediation shall be conducted by three mediators, one of which shall be selected
by the Seller and one of which shall be selected by the Purchaser or its
assignee. Each of the parties to the mediation shall submit the name of the
person it has selected to serve as a mediator to the opposing party within 10
days of the date of the Mediation Letter. If either party fails to submit the
name of its selected mediator within 10 days of the date of the Mediation
Letter, the other party shall have the right to select the second mediator in
addition to its own mediator (provided that such party has submitted the name of
its selected mediator within 10 days of the date of the Mediation Letter). The
two mediators selected by the party(ies) shall appoint a third mediator within
20 days of the date of the Mediation Letter or such longer time period as agreed
to by the parties to the mediation. Any mediator(s) so designated must be
acceptable to both the Seller and the Purchaser or its assignee.] Any mediators
appointed or selected pursuant to the provisions of this paragraph must be
experienced professionals in the CMBS industry.
Any mediation related to a particular Dispute and commenced in
accordance with the preceding paragraph must be completed within 90 days of the
date of the Mediation Letter (or a longer period, if the parties to the
mediation agreed to extend the mediation). Any mediation referred to in this
Section 5(i) shall be conducted in the manner specified by the mediator(s) and
agreed upon by the Seller and the Purchaser or its assignee and any such
mediation shall be conducted in New York City to the exclusion of all other
locations (unless otherwise agreed to by the parties to the mediation). During
the mediation process, the parties to the mediation shall discuss their
differences voluntarily and in good faith and attempt, with the assistance of
the mediator(s) as a facilitator of the negotiations, to reach an amicable
resolution of the Dispute. The mediation will be treated as a settlement
discussion and therefore will be confidential. No mediator selected in
accordance with this Section 5(i) may testify for either party in any later
proceeding relating to the Dispute. No recording or transcript shall be made of
the mediation proceedings. The fees and expenses of all mediator(s) shall be
shared equally by the parties to the mediation; provided, that the party to the
mediation that is acting on behalf of the Trust in accordance with the
provisions of this Section 5(i) shall be entitled to reimbursement or
indemnification
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by the Trust Fund for such fees and expenses if and to the extent permitted
under the Pooling and Servicing Agreement.
Notwithstanding anything to the contrary herein, no party shall be
required to agree to a Dispute resolution pursuant to mediation and no decision
or resolution of a mediator or mediators shall be binding on any party unless
such decision or resolution is expressly agreed to by such party. In the event
the parties involved in the Dispute have not agreed to a Dispute resolution
pursuant to mediation at the termination of the mediation, then that Dispute
will be settled by arbitration in accordance with the succeeding paragraphs of
this Section 5(i).
If a Dispute has not been resolved within 90 days of the date of the
Mediation Letter (or such shorter or longer period as is expressly agreed to by
the parties to the mediation), the mediation shall terminate and the Dispute
will be settled by arbitration. Following the date of termination of mediation,
which shall be the date occurring 90 days after the date of the Mediation Letter
unless otherwise expressly agreed to by the parties to the mediation,
arbitration may be commenced by any party to this Agreement involved in the
Dispute sending a written notice to another party to this Agreement involved in
the Dispute that they wish the arbitration process to begin with respect to the
Dispute between the sender and the recipient of such written notice. The date
any such party receives written notice in accordance with this Section 5(i) from
another party that such party wishes to commence arbitration shall be referred
to as the "Arbitration Commencement Date". Any arbitration hereunder shall be
conducted in accordance with the provisions of this Agreement and the American
Arbitration Association Rules for Large Complex Commercial Disputes ("AAA
Rules"), but shall not be conducted by the American Arbitration Association
("AAA"). Discovery will be permitted in connection with the arbitration in
accordance with the AAA Rules. In the event of a conflict, the provisions of
this Agreement will control. Such arbitration shall be conducted before a panel
of three arbitrators, regardless of the size of the Dispute. The arbitration
panel shall consist of one person selected by the Seller and one person selected
by the Purchaser or its assignee. Each such party shall submit the name of the
person it has selected to serve as an arbitrator to the other party within 30
days of the Arbitration Commencement Date (or such longer period as is expressly
agreed to by the parties to the arbitration). If either such party fails to
submit the name of its selected arbitrator within 30 days of the Arbitration
Commencement Date, then the other such party shall have the right to select the
second arbitrator in addition to its own arbitrator (provided that such party
has submitted the name of its selected arbitrator within 30 days of the
Arbitration Commencement Date). The two arbitrators designated in accordance
with the two preceding sentences shall appoint a third arbitrator within 45 days
of the Arbitration Commencement Date (or such longer period as is expressly
agreed to by the parties to the arbitration). All arbitrators appointed or
selected pursuant to the provisions of this paragraph must be experienced
professionals in the CMBS industry. The third arbitrator shall be an Independent
person who has not previously been employed by either party and does not have a
direct or indirect interest in either party or the subject matter of the
arbitration. The two (2) arbitrators appointed by the parties to the arbitration
are not required to be neutral and it shall not be grounds for removal of either
of such arbitrators or for vacating an arbitration award that either of such
arbitrators has past or present relationships with the party that appointed such
arbitrator. No potential arbitrator may serve on the panel unless he or she has
agreed in writing to abide and be bound by the terms and provisions of this
Agreement and the AAA Rules and to keep confidential the terms of any
arbitration proceeding related to this Agreement and the terms of any
discussion, negotiation, decision, agreement or resolution in connection
therewith.
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Any issue concerning the extent to which any Dispute is subject to
arbitration, or concerning the applicability, interpretation, or enforceability
of these procedures, including any contention that all or part of these
procedures are invalid or unenforceable, shall be resolved by the arbitrators.
In no event, notwithstanding that any provision of this Agreement is held to be
invalid or unenforceable, shall the arbitrators have the power to make an award
or impose a remedy that could not be made or imposed by a court deciding the
matter in the same jurisdiction. In no event shall the arbitrators have the
power to make an award or impose a remedy that is not contemplated by, or
conflicts with the terms and provisions of, this Agreement or the Pooling and
Servicing Agreement (other than any term or provision of this Agreement or the
Pooling and Servicing Agreement that is held to be invalid or unenforceable).
Without limiting the foregoing, the arbitrators shall have no authority to award
treble, consequential or punitive damages of any type under any circumstances,
whether or not such damages may be available under the AAA Rules or any other
act or law. Subject to the provisions of this Agreement, the result of the
arbitration will be binding on the parties involved in the Dispute, and judgment
on the arbitrators' award may be entered, subject to the provisions of Section
16 of this Agreement, in any court of competent jurisdiction.
All mediations and arbitrations shall be conducted in New York City to
the exclusion of all other locations (unless otherwise expressly agreed to by
the parties to the subject mediation or arbitration, as applicable). The party
to an arbitration that is acting on behalf of the Trust in accordance with the
provisions of this Section 5(i) shall be entitled to reimbursement or
indemnification by the Trust Fund for the fees and expenses incurred in
connection therewith if and to the extent permitted under the Pooling and
Servicing Agreement.
The parties to this Agreement hereby agree to waive any right to trial
by jury fully to the extent that any such right shall now or hereafter exist
with regard to the rights and remedies contained in this Section 5; provided,
that if (i) any party to an arbitration governed by this Section 5(i) fails to
abide by the rules or deadlines for that arbitration (as such deadlines may be
extended by express agreement of the parties to that arbitration), or (ii) the
applicable appointed arbitrators determine that the subject Dispute cannot be
resolved through arbitration either because the AAA Rules are inapplicable to
the Dispute and/or the Federal Arbitration Act is inapplicable to the Dispute or
for any other reason, then the other party (in the case of clause (i)) or any
party (in the case of clause (ii)) to this Agreement may in its sole option,
file a complaint to resolve the Dispute through a legal proceeding and in
accordance with the provision contained in Section 16 hereof.
If any of the provisions of this Section 5(i) are determined by a
court of law to be invalid or unenforceable, the remaining provisions shall
remain in effect and be binding on the parties involved in the Dispute to the
fullest extent permitted by law.
SECTION 6. Repurchase of Early Defeasance Trust Mortgage Loans.
If the Purchaser or the Master Servicer notifies the Seller or the
Additional Party that the Mortgagor under any of the Mortgage Loans that are
Early Defeasance Trust Mortgage Loans (i) intends to defease such Early
Defeasance Trust Mortgage Loan in whole on or before the second anniversary of
the Closing Date and the amount tendered by such Mortgagor to defease such Early
Defeasance Trust Mortgage Loan (in accordance with the related loan documents)
is less than the Purchase Price that would be applicable in the event of a
repurchase of such Mortgage Loan pursuant to or as otherwise contemplated by
Section 5(a), or (ii) intends to partially defease such Early Defeasance Trust
Mortgage
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Loan on or prior to the second anniversary of the Closing Date, or (iii) intends
to defease such Early Defeasance Trust Mortgage Loan in whole on or before the
second anniversary of the Closing Date and such Mortgagor is to tender
Defeasance Collateral or such other collateral as is permitted in connection
with a defeasance under the related loan documents that does not constitute a
cash amount equal to or greater than the Purchase Price set forth in clause (i)
above in this paragraph, then the Seller shall promptly repurchase such Mortgage
Loan at the related Purchase Price in accordance with the directions of the
Master Servicer on a whole loan, servicing released basis.
Upon the repurchase of a Mortgage Loan that is an Early Defeasance
Trust Mortgage Loan pursuant to Section 5 hereof and/or this Section 6, the
Purchaser shall effect a "qualified liquidation" of the related Loan REMIC in
accordance with the REMIC Provisions. The Seller hereby agrees to pay all
reasonable costs and expenses, including the costs of any opinions of counsel
under the Pooling and Servicing Agreement, in connection with any such
"qualified liquidation" of the related Loan REMIC in accordance with the REMIC
Provisions.
SECTION 7. 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 Sections 5 and 6 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 8. 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 9 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;
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(d) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf), the Master Servicer and the Special Servicer all
documents and funds required to be delivered to the Trustee, the Master Servicer
and the Special Servicer, respectively, pursuant to Section 2 of this Agreement;
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects, and the Seller and Additional Party shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(f) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
All parties hereto agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 9. 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
-18-
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(f) As certified by an officer of each of the Seller and the
Additional Party, true and correct copies of (i) the resolutions of the board of
directors authorizing the Seller's entering into the transactions contemplated
by this Agreement and, in the case of the Seller, the Indemnification Agreement,
(ii) the organizational documents of each of the Seller and the Additional
Party, and (iii) a certificate of good standing of each of the Seller and the
Additional Party, issued by the Secretary of State of the State of Delaware not
earlier than 10 days prior to the Closing Date;
(g) A Certificate of the Co-Indemnitor, executed by a duly authorized
officer of the Co-Indemnitor and dated the Closing Date, and upon which the
initial Purchaser, the Underwriters and the Placement Agents may rely, to the
effect that the representations and warranties of the Co-Indemnitor in the
Indemnification Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on such date;
(h) An Officer's Certificate from an officer of the Co-Indemnitor, in
his or her individual capacity, dated the Closing Date, and upon which the
initial Purchaser, the Underwriters and the Placement Agents may rely, to the
effect that each individual who, as an officer or representative of the
Co-Indemnitor, signed the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated therein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(i) As certified by an officer of the Co-Indemnitor, true and correct
copies of (i) the resolutions of the board of directors authorizing the
Co-Indemnitor's entering into the transactions contemplated by the
Indemnification Agreement, (ii) the organizational documents of the
Co-Indemnitor, and (iii) a certificate of good standing of the Co-Indemnitor
issued by the Secretary of State of the State of Delaware not earlier than 10
days prior to the Closing Date;
(j) A favorable opinion of Cadwalader, Xxxxxxxxxx & Xxxx ("CWT"),
special counsel to the Seller, the Additional Party and the Co-Indemnitor,
substantially in the form attached hereto as Exhibit C-1, dated the Closing Date
and addressed to the initial Purchaser, the Underwriters, the Placement Agents,
the Rating Agencies and, upon request, the other parties to the Pooling and
Servicing Agreement, together with such other opinions of CWT as may be required
by the Rating Agencies in connection with the transactions contemplated hereby;
(k) An Officer's Certificate from an officer of each of the Seller and
the Co-Indemnitor, in his or her individual capacity, in each case delivered in
connection with the opinion of CWT to be delivered pursuant to Section 9(j)
hereof, 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;
-19-
(m) In connection with the initial issuance of the Seller's Residual
Interest Certificates, a Transfer Affidavit and Agreement in the form
contemplated by the Pooling and Servicing Agreement from Seller and from the
transferee of the Seller;
(n) In the event any of the Certificates are mortgage related
securities within the meaning of the Secondary Mortgage Market Enhancement Act
of 1984, as amended, a Certificate of the Seller regarding origination of the
Mortgage Loans by specified originators as set forth in Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended; and
(o) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 10. Costs.
An amount equal to 32.84959% 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 11. 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
-20-
throughout the term of this Agreement and the Pooling and Servicing Agreement;
and, in connection with the foregoing, the Seller authorizes the Purchaser to
file any and all appropriate Uniform Commercial Code financing statements.
SECTION 12. 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 13. 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 14. 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 15. 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 16. 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 AND SUBJECT TO SECTION 5(i) HEREOF, THE SELLER, THE ADDITIONAL
PARTY AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION
OF ANY NEW YORK
-21-
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
OTHER THAN MATTERS TO BE SETTLED BY MEDIATION OR ARBITRATION IN ACCORDANCE WITH
SECTION 5(i) HEREOF; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL
COURTS, TO THE EXCLUSION OF ALL OTHER COURTS; (III) WAIVES, TO THE FULLEST
POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM IN CONNECTION WITH SUCH
ACTION OR PROCEEDING COMMENCED IN SUCH NEW YORK STATE OR FEDERAL COURTS; AND
(IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW; PROVIDED, THAT IN THE EVENT SECTION 5(i)
HEREOF IS INAPPLICABLE AND BOTH A NEW YORK STATE AND A 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 17. 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 18. 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 19. 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
-22-
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.
-23-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
UBS REAL ESTATE INVESTMENTS INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Director
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
Address for Notices:
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 X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Director
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
Address for Notices:
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
-24-
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
-25-
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(See Attached)
MORTGAGE LOAN NUMBER PROPERTY NAME ADDRESS CITY STATE
-------------------- ---------------------------------------- ------------------------------------ ----------------- -------
4 Reckson Portfolio I Various Various Various
7 Bethesda Towers 4330, 4340, 0000 Xxxx Xxxx Xxxxxxx Xxxxxxxx XX
0 Xxxxxxxxxx Xxxx 0000 Xxxxxxxx Xxxxxx Xxxxxxxx XX
00 Xxxxxxx Xxxxx I 000 X Xxxxxx, XX Xxxxxxxxxx XX
00 Xxx-Xxxxxx Xxxxxxxx Xxxx 00000 XxXxxxxxx Xxxxx Xxxxx XX
12 Sarasota Main Plaza 0000 Xxxx Xxxxxx Xxxxxxxx XX
00 Xxxxxxx Xxxxxxxxx XX Xxxxxxx Xxxxxxxx XX
15 0000 Xxxxxxxx Xxxxxxxxx 0000 Xxxxxxxx Xxxxxxxxx xxx 000 Xxx Xxxxxxx XX
Xxxxx Xxxxxxx Xxxxxx
00 Xxxxxx Xxxx/Xxxxxx Forge 1370 and 0000 Xxxxxx Xxxxxx Xxxxxxx XX
19 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx Xxx Xxxxxxxxx XX
20 Home Depot 000 Xxxxxxx Xxxx Xxx Xxxxx Xxxxxxx XX
33 Sunchase at Longwood 000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx XX
00 Xxxx Xxxxxxx Xxxxxxx 000 Xxx Xxxx Xxxxxxx Xxxx Xxxxxxx XX
36 Silver Blue Lake Apartments 1301-1601 Xxxxxxxxx 000xx Xxxxxx Xxxxx XX
00 Xxxxx 00 Xxxxx - Xxxxxxx 000 Xxxxx 00 Xxxxx Xxxxxxx XX
00 00xx Xxxxxx 000-000 Xxxxxxxxx Xxxxxx Xxx Xxxx XX
47 Embassy Apartments 0000 Xxxxxxx Xxxxxx Xxx Xxxxxxx XX
49 Prestige Mobile Home Park 0000 Xxxxx Xxxxx 00 Xxxxxxx Xxxxxxx XX
00 Xxxxxxxxx Xxxxxxx 000 Xxxx Xxxx Xxxxxx Xxxxxxx XX
53 GRM San Francisco 00000 Xxxxx Xxxx Xxxxxxx XX
56 Xxxxxxx, Highland and Eastway Apartments Various Various NY
64 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxx XX
65 Brentwood Timberlane Apartments 0000 Xxxxxxxxx Xxxxxx Xxxxxxx Xxxxx XX
67 Xxxx'x Home Improvement Center 0000 Xxxxx Xxxx Xxxxxxxx XX
70 Springhill Suites 000 Xxxxx Xxxxxxxx Xxxx Xxxxxxxxx XX
71 Hampton Inn Portfolio Xxxxxxx Xxxxxxx XX
00 Xxx Xxxxxxx Mobile Home Park 0000 Xxx Xxxxxxx Xxxx Xxxxxx XX
00 Xxxxxxxxxxx Xxxxxxxxxx 0000 Xxxxxxxxx 00xx Xxxxxx Xxxxxxxx Xxxx XX
00 Xxxxxx Xxx 000 Xxxxxxxx Xxxxx Xxxxxxxx XX
00 Xxxxx Xxxxxxx 1 EMS B37 Lane Xxx 00 Xxxxxx XX
00 Xxxxxxx Xxxxxxxx 0000 Xxx Xxxxxx Xxxxxxxxxxxx XX
82 American Storage 0000 Xxxxx Xxxxx Xxxxxxxxx Xxx Xxxxx XX
84 McClellan Hospital Building 624 XxXxxxxxx Street Schenectady NY
85 AAA Friendly Storage 00000 Xxxxx Xxxxxxx 000 Xxxxx Xxxxx XX
86 The Shoppes at Xxxx Club 000 Xxxxx Xxxx Xxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxx XX
87 CVS - Margate 0000 Xxxxxxx Xxxxx Xxxxxxx Xxxxxxx XX
89 Walgreens - Xxxxxxxx 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxx XX
100 Eckerd - Southern Pines 0000 XX Xxxxxxx 0 Xxxxxxxx Xxxxx XX
102 Walgreens - Dallas 0000 Xxx Xxxxxx Xxxx Xxxxxx XX
103 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxxxxx Xxxx XX
000 Xxxxxxx Xxxxx Xxxxxxx Xxxxxxx XX
109 RV Ranch and Stor-More Various Various TX
110 Xxxxxxxx Mobile Home Park 0000 Xxxxx Xxxxx 0 xxx 00 Xxxxxxxxxx XX
000 Xxxxxxxxx Xxxxx 000-000 Xxxxx Xxxx Xxxxxx Xxx Xxxxx XX
113 Bayonne Mobile Home Park 191-197 and 000-000 Xxxx 00xx Xxxxxx Xxxxxxx XX
115 00 Xxxxx Xxxx Xxxxxx 00 Xxxxx Xxxx Xxxxxx Xxx Xxxx XX
000 Xxxxxx Xxxxx Apartments 000 Xxxxx Xxxxx Xxxxx Xxxx Xxxxx Xxxxxxx XX
000 Xxxxxx Xxxxxxxx Mobile Home Park 00000 Xxxxxx Xxxxx Xxxxxx XX
CUT-OFF MONTHLY MORTGAGE REMAINING TERM
MORTGAGE LOAN NUMBER ZIP CODE DATE BALANCE P&I PAYMENT RATE TO MATURITY
-------------------- -------- -------------- ----------- --------- --------------
4 Various 122,850,000.00 539,743.75 5.2000000 60
7 20814 87,210,000.00 457,948.39 6.2150000 60
8 61112 84,000,000.00 462,945.66 5.0000000 120
10 20549 40,360,000.00 440,777.76 5.5310000 120
11 33626 38,160,000.00 186,356.83 5.7800000 60
12 34236 36,000,000.00 206,668.44 5.6000000 120
14 11747 31,032,268.00 136,340.84 5.2000000 60
15 90010 30,000,000.00 172,981.14 5.6400000 120
18 11716 25,000,000.00 142,984.21 5.5660000 120
19 94103 22,750,000.00 132,308.67 5.5900000 120
20 60007 20,360,000.00 89,968.11 5.2300000 120
33 23901 12,800,000.00 70,561.65 5.5000000 120
34 11937 12,700,000.00 72,627.98 5.5650000 120
36 33147 11,750,000.00 71,052.67 6.0800000 60
37 07652 11,700,000.00 53,203.31 5.3820000 120
42 10025 11,000,000.00 51,990.53 5.5940000 120
47 90025 10,000,000.00 44,864.58 5.3100000 120
49 14432 9,500,000.00 52,400.53 5.2400000 120
52 06360 9,400,000.00 54,156.22 5.6325000 120
53 94538 9,191,683.07 58,150.26 6.5000000 120
56 Various 8,254,748.48 46,301.79 5.3800000 120
64 44115 6,480,000.00 36,244.50 6.6200000 60
65 76308 6,466,051.02 35,782.80 5.2500000 120
67 43232 6,400,000.00 37,024.05 5.6700000 120
70 06385 6,335,000.00 36,497.84 5.6325000 120
71 Various 6,283,005.63 40,822.37 6.0600000 60
73 14411 5,984,000.00 34,953.09 5.7500000 120
74 73112 5,833,143.63 31,798.04 5.1250000 120
76 46567 5,505,000.00 31,222.25 5.4900000 84
78 46580 5,474,000.00 31,046.43 5.4900000 84
79 19129 5,450,000.00 42,155.71 6.9700000 120
82 89118 5,194,467.07 30,016.26 5.6500000 120
84 12304 5,000,000.00 28,798.61 5.6300000 120
85 75703 4,994,496.26 28,295.41 5.4700000 120
86 32703 4,700,000.00 26,011.83 5.2700000 120
87 33063 4,600,000.00 21,492.75 5.5300000 120
89 29624 4,410,000.00 20,306.93 5.4500000 0
100 28387 3,837,000.00 17,830.50 5.5000000 120
102 75227 3,780,000.00 17,469.81 5.4700000 120
103 07304 3,667,532.90 20,912.38 5.5200000 120
106 Various 3,596,395.57 21,514.43 5.9700000 120
109 Various 3,494,851.55 22,283.87 5.8750000 120
110 14469 3,350,000.00 18,519.58 5.2600000 120
111 96080 3,350,000.00 21,820.20 6.1150000 120
113 07002 3,300,000.00 19,425.94 5.8300000 120
115 10956 2,888,000.00 16,171.97 5.3750000 120
126 77587 2,167,473.56 11,875.52 5.1700000 120
131 76248 1,668,000.00 11,691.72 5.7300000 120
REMAINING
AMORTIZATION TERM ADMINISTRATIVE PRIMARY SERVICING
MORTGAGE LOAN NUMBER MATURITY DATE INTEREST ACCRUAL BASIS COST RATE FEE GROUND LEASE? MORTGAGE LOAN SELLER
-------------------- ------------- ---------------------- -------------- ---------------------- --------------------
4 9/11/2010 0 Act/360 0.02080 0 Fee Simple UBS
7 11/11/2010 0 Act/360 0.02080 0 Fee Simple UBS
8 10/5/2015 360 30/360 0.02080 0 Fee Simple UBS
10 10/11/2015 120 Act/360 0.02080 0 Fee Simple UBS
11 9/11/2010 0 Act/360 0.02080 0 Fee Simple UBS
12 9/11/2015 0 Act/360 0.02080 0 Fee Simple/Leasehold UBS
14 10/11/2010 0 Act/360 0.02080 0 Fee Simple/Leasehold UBS
15 11/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
18 9/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
19 10/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
20 10/11/2015 0 Act/360 0.02080 0 Fee Simple UBS
33 7/11/2015 0 Act/360 0.02080 0 Fee Simple UBS
34 9/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
36 9/11/2012 360 Act/360 0.02080 0 Fee Simple UBS
37 9/11/2015 360 Act/360 0.02080 0 Leasehold UBS
42 9/11/2015 0 Act/360 0.02080 0 Fee Simple UBS
47 9/11/2015 0 Act/360 0.02080 0 Fee Simple UBS
49 10/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
52 8/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
53 9/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
56 9/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
64 8/11/2010 0 Act/360 0.02080 0 Fee Simple UBS
65 8/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
67 11/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
70 8/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
71 8/11/2010 300 Act/360 0.02080 0 Fee Simple UBS
73 10/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
74 9/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
76 11/11/2012 360 Act/360 0.02080 0 Fee Simple UBS
78 11/11/2012 360 Act/360 0.02080 0 Fee Simple UBS
79 11/11/2015 300 Act/360 0.02080 0 Fee Simple UBS
82 9/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
84 2/11/2016 360 Act/360 0.02080 0 Leasehold UBS
85 9/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
86 10/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
87 8/11/2015 0 Act/360 0.02080 0 Fee Simple UBS
89 11/11/2015 0 Act/360 0.02080 0 Fee Simple UBS
100 8/11/2015 0 Act/360 0.02080 0 Fee Simple UBS
102 10/11/2015 0 Act/360 0.02080 0 Fee Simple UBS
103 8/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
106 9/11/2015 300 Act/360 0.02080 0 Fee Simple UBS
109 9/11/2015 300 Act/360 0.02080 0 Fee Simple UBS
110 10/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
111 10/11/2015 300 Act/360 0.02080 0 Fee Simple UBS
113 10/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
115 10/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
126 9/11/2015 360 Act/360 0.02080 0 Fee Simple UBS
131 10/11/2015 240 Act/360 0.02080 0 Fee Simple UBS
MORTGAGE LOAN NUMBER DEFEASANCE ARD MORTGAGE LOAN ANTICIPATED REPAYMENT DATE
-------------------- ------------------------------------------------ ----------------- --------------------------
4 Defeasance N/A N/A
7 Yield Maintenance-Prepayment Penalty N/A N/A
8 Defeasance N/A N/A
10 Defeasance N/A N/A
11 Defeasance followed by Fix Penalty or Defeasance N/A N/A
12 Yield Maintenance N/A N/A
14 Defeasance N/A N/A
15 Defeasance N/A N/A
18 Defeasance N/A N/A
19 Defeasance N/A N/A
20 Defeasance N/A N/A
33 Defeasance N/A N/A
34 Defeasance N/A N/A
36 Defeasance N/A N/A
37 Defeasance N/A N/A
42 Defeasance N/A N/A
47 Defeasance N/A N/A
49 Defeasance N/A N/A
52 Defeasance N/A N/A
53 Defeasance N/A N/A
56 Defeasance N/A N/A
64 Yield Maintenance N/A N/A
65 Defeasance N/A N/A
67 Defeasance N/A N/A
70 Defeasance N/A N/A
71 Defeasance N/A N/A
73 Defeasance N/A N/A
74 Defeasance N/A N/A
76 Defeasance N/A N/A
78 Defeasance N/A N/A
79 Defeasance N/A N/A
82 Yield Maintenance N/A N/A
84 Defeasance N/A N/A
85 Yield Maintenance N/A N/A
86 Defeasance N/A N/A
87 Defeasance N/A N/A
89 Defeasance N/A N/A
100 Defeasance N/A N/A
102 Defeasance N/A N/A
103 Defeasance N/A N/A
106 Defeasance N/A N/A
109 Defeasance N/A N/A
110 Defeasance N/A N/A
111 Defeasance N/A N/A
113 Defeasance N/A N/A
115 Defeasance N/A N/A
126 Defeasance N/A N/A
131 Defeasance N/A N/A
CREDIT LEASE LOAN
MORTGAGE LOAN NUMBER ARD SPREAD (TENANT, GUARANTOR OR RATED PARTY) CROSS COLLATERALIZED MORTGAGE LOAN SELLER LOAN ID
-------------------- ---------- ---------------------------------- -------------------- ---------------------------
4 N/A No 10991
7 N/A No 10817
8 N/A No 11022
10 N/A No UBS6
11 N/A No 10883
12 N/A No 10792
14 N/A No 10992
15 N/A No 10989
18 N/A No 10943
19 N/A No 11018
20 N/A No 10979
33 N/A No 10888
34 N/A No 10890
36 N/A No 10881
37 N/A No 10927
42 N/A No 10905
47 N/A No 10928
49 N/A No 10939
52 N/A No 10962
53 N/A No 10825
56 N/A No 10876
64 N/A No 10719
65 N/A No 10956
67 N/A No 10856
70 N/A No 10963
71 N/A No 10871
73 N/A No 10941
74 N/A No 10997
76 N/A No 11008
78 N/A No 11009
79 N/A No 10877
82 N/A No 10935
84 N/A No 10968
85 N/A No 10934
86 N/A No 10998
87 N/A No 10970
89 N/A No UBS24
100 N/A No UBS5c
102 N/A No UBS2
103 N/A No 10758
106 N/A No 10844
109 N/A No 10777
110 N/A No 10940
111 N/A No 10914
113 N/A No 10902
115 N/A No 10873
126 N/A No 10958
131 N/A No 10849
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:
Mortgage Loan Schedule. The information pertaining to such Mortgage Loan set
forth in the Mortgage Loan Schedule was true and correct in all material
respects as of the Cut-off Date.
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 such mortgage loan is listed on Schedule I-ii
hereto and, 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.
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.
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.
Loan Document Status. Each of the related Mortgage Note, Mortgage(s),
Assignment(s) of Leases, if separate from the related Mortgage, and other
agreements executed in favor of the lender in connection therewith is the legal,
valid and binding obligation of the maker thereof (subject to the non-recourse
provisions therein and any state anti-deficiency legislation), enforceable in
accordance with its terms, except that (A) such enforcement may be limited by
(1) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and/or
1
other similar laws affecting the enforcement of creditors' rights generally, and
(2) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and (B) certain provisions in
the subject agreement or instrument may be further limited or rendered
unenforceable by applicable law, but subject to the limitations set forth in the
foregoing clause (A), such limitations will not render that subject agreement or
instrument invalid as a whole or substantially interfere with the mortgagee's
realization of the principal benefits and/or security provided by the subject
agreement or instrument. Such Mortgage Loan is non-recourse to the Mortgagor or
any other Person except to the extent provided in certain nonrecourse carveouts
and/or in any applicable guarantees. A natural person as individual guarantor
has agreed, in effect, to be liable for all liabilities, costs, losses, damages
or expenses suffered or incurred by the mortgagee under such Mortgage Loan by
reason of or in connection with and to the extent of (A) any material
intentional fraud or material intentional misrepresentation by the related
mortgagor; (B) any breach on the part of the related mortgagor of any
environmental representations warranties and covenants contained in the related
Mortgage Loan documents; (C) misapplication or misappropriation of rents
(received after an event of default), insurance proceeds or condemnation awards;
and (D) the filing of a voluntary bankruptcy or insolvency proceeding by the
related mortgagor; provided that, instead of any breach described in clause (B)
of this paragraph, such entity (or individual) may instead be liable for
liabilities, costs, losses, damages, expenses and claims resulting from a breach
of the obligations and indemnities of the related mortgagor under the related
Mortgage Loan documents relating to hazardous or toxic substances, radon or
compliance with environmental laws.
No Right of Rescission. Subject to the limitations and exceptions as to
enforceability set forth in paragraph (v) above, there is no valid offset,
defense, counterclaim or right 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 and, as of the Closing Date, to the actual
knowledge of the Seller, no such claim has been asserted.
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).
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) and appurtenances and rights related thereto, which
Mortgaged Property is free and clear of all encumbrances and liens having
priority over or on a parity with the first lien of such Mortgage, except for
the following (collectively, the "Permitted Encumbrances"): (A) the lien for
real estate taxes, water charges, sewer rents and assessments not yet due and
payable; (B) covenants, conditions and restrictions, rights of way, easements
and other matters that are of public record or that are omitted as exceptions in
the related lender's title insurance policy (or, if not yet issued, omitted as
exceptions in a fully binding pro forma title policy or title policy
2
commitment); (C) the rights of tenants (as tenants only) under leases (including
subleases) pertaining to the related Mortgaged Property; (D) condominium
declarations of record and identified in the related lender's title insurance
policy (or, if not yet issued, identified in a pro forma title policy or title
policy commitment); and (E) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group; 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 as presently operated by the Mortgagor, and that is located
on the related Mortgaged Property, which personal property includes, in the case
of Mortgaged Properties operated by the related Mortgagor as a nursing facility
or hospitality property, all furniture, fixtures, equipment and other personal
property located at the subject Mortgaged Property that are owned by the related
Mortgagor and reasonably necessary or material to the operation of the subject
Mortgaged Property. In the case of any Mortgage Loan secured by a hotel, the
related loan documents contain such provisions as are necessary and UCC
financing statements have been filed as necessary, in each case, to perfect a
valid first priority security interest, to the extent such security interest can
be perfected by the inclusion of such provisions and the filing of a UCC
financing statement, in the Mortgagor's right to receive related hotel room
revenues with respect to such Mortgaged Property.
Taxes and Assessments. All taxes, governmental assessments, water charges, sewer
rents or similar governmental charges which, in all such cases, were directly
related to the related Mortgaged Property and could constitute liens on the
related Mortgaged Property prior to the lien of the related Mortgage, together
with all ground rents, that prior to the Cut-off Date became due and payable in
respect of, and materially affect, any related Mortgaged Property have been paid
or are escrowed for or are not yet delinquent, and the Seller knows of no unpaid
tax, assessment, ground rent, water charges or sewer rent, which, in all such
cases, were directly related to the subject Mortgaged Property and could
constitute liens on the subject Mortgaged Property prior to the lien of the
related Mortgage that prior to the Closing Date became due and delinquent in
respect of any related Mortgaged Property, or in any such case an escrow of
funds in an amount sufficient to cover such payments has been established.
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
3
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.
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 or
any prior holder of such Mortgage Loan (other than a prior holder unaffiliated
with the Seller from whom the Seller has taken by assignment) 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.
Property Insurance. As of the date of its origination and, to the Seller's
actual knowledge, as of the Cut-off Date, all insurance required under each
related Mortgage (except where an investment grade tenant, or one or more
tenants which in the aggregate do not represent more than 10% of the net
operating income with respect to the entire related Mortgaged Property, is or
are permitted to insure or self-insure under a lease) was in full force and
effect with respect to each related Mortgaged Property; such insurance included
(A) fire and extended perils insurance included within the classification "All
Risk of Physical Loss" or the equivalent thereof in an amount (subject to a
customary deductible) at least equal to the lesser of (1) 100% of the full
insurable value of the improvements located on such Mortgaged Property and (2)
the outstanding principal balance of such Mortgage Loan or the portion thereof
allocable to such Mortgaged Property) and, if applicable, the related hazard
insurance policies or certificates of insurance contain appropriate endorsements
to avoid application of co-insurance, (B) business interruption or rental loss
insurance for a period of not less than 12 months, (C) comprehensive general
liability insurance in an amount not less than $1 million per occurrence, (D)
workers' compensation insurance (if the related Mortgagor has employees and if
required by applicable law), and (E) if (1) such Mortgage Loan is secured by a
Mortgaged Property located in the State of California or in "seismic zone" 3 or
4 and (2) a seismic assessment as described below revealed a maximum probable or
bounded loss in excess of 20% of the amount of the estimated replacement cost of
the improvements on such Mortgaged Property, seismic insurance; it is an event
of default under such
4
Mortgage Loan if the above-described insurance coverage is not maintained by the
related Mortgagor (except where an investment grade tenant, or one or more
tenants which in the aggregate do not represent more than 10% of the net
operating income with respect to the entire related Mortgaged Property, is or
are 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 or, to the actual knowledge of the Seller, by
any prior mortgagee under such Mortgage Loan (other than, with respect to a
related Mortgaged Property located in New York and Florida, a prior mortgagee
unaffiliated with the Seller from whom the Seller has taken the related Mortgage
Note and Mortgage by assignment and has amended and restated such Mortgage Note
and Mortgage); 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 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.
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 as of the Closing Date, no event which, with the passage of time
or with notice and the
5
expiration of any grace or cure period, would constitute a material default,
breach, violation or event of acceleration under any of such documents;
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration (A) that specifically
pertains to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Exhibit B or (B) with
respect to which: (1) the Seller has no actual knowledge as of the Closing Date
and (2) written notice of the discovery thereof is not delivered to the Seller
by the Trustee or the Master Servicer on or prior to the date occurring twelve
months after the Closing Date. Neither the Seller nor any prior holder of such
Mortgage Loan (other than, with respect to a related Mortgaged Property located
in New York and Florida, a prior holder unaffiliated with the Seller from whom
the Seller has taken the related Mortgage Note and Mortgage by assignment and
has amended and restated such Mortgage Note and Mortgage) has waived, in writing
or with knowledge, any material default, breach, violation or event of
acceleration under any of such documents. Under the terms of such Mortgage Loan,
no person or party other than the mortgagee or its servicing agent may declare
an event of default or accelerate the related indebtedness under such Mortgage
Loan.
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.
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).
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).
Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code. Accordingly, either as of the date of
origination or the Closing Date, the fair market value of the real property
securing such Mortgage Loan was not less than 80% of the "adjusted issue price"
(within the meaning of the REMIC Provisions) of such Mortgage Loan. For purposes
of the preceding sentence, the fair market value of the real property securing
such Mortgage Loan was first reduced by the amount of any lien on such real
property that is senior to the lien that secures such Mortgage Loan, and was
further reduced by a proportionate amount of any lien that is on a parity with
the lien that secures such Mortgage Loan. No action that occurs by operation of
the terms of such Mortgage Loan would cause such Mortgage Loan to cease to be a
"qualified mortgage" and such Mortgage Loan does not permit the release or
substitution of collateral if such release or substitution (A) would constitute
a "significant modification" of such Mortgage Loan within the meaning of
Treasury regulations section 860G-2(b), (B) would cause such Mortgage Loan not
to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (without regard to clauses (A)(i) or (A)(ii) thereof) or (C) would cause a
"prohibited transaction" within the meaning of Section 860F(a)(2) of the Code.
The related Mortgaged Property, if acquired in connection with the default or
imminent default of
6
such Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code.
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).
Environmental Conditions. One or more environmental site assessments (or updates
thereof) in each instance meeting American Society of Testing and Materials
requirements were performed by an environmental consulting firm independent of
the Seller and the Seller's Affiliates with respect to each related Mortgaged
Property during the 12-month period preceding the Cut-off Date, and the Seller,
having made no independent inquiry other than to review the report(s) prepared
in connection with the assessment(s) and/or update(s) referenced herein, has no
knowledge of, and has not received actual notice of, any material and adverse
environmental condition or circumstance affecting such Mortgaged Property that
was not disclosed in such report(s); none of the environmental reports reveal
any circumstances or conditions that are in violation of any applicable
environmental laws, or if such report does reveal such circumstances, then (1)
the same have been remediated in all material respects, (2) sufficient funds
have been escrowed or a letter of credit, guaranty or other instrument has been
delivered for purposes of covering the estimated costs of such remediation, (3)
the related Mortgagor or other responsible party set forth on Schedule I (which
Mortgagor or other responsible party has been reasonably determined by the
Seller to have the creditworthiness to do so (such determination by the Seller
to be based on review of (i) the financial statements provided to the Seller by
the Mortgagor or other responsible party, as applicable, and (ii) the reasonable
cost of remediation of the circumstances or conditions that are in violation of
the applicable environmental laws as set forth in the applicable environmental
report)) 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, 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.
7
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.
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.
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.
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.
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.
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.
Due-on-Encumbrance. Each Mortgage Loan contains provisions for the acceleration
of the payment of the unpaid principal balance of such Mortgage Loan if, without
the prior written consent of the mortgagee or Rating Agency confirmation that an
Adverse Rating Event with respect to any Class of Certificates would not occur,
any related Mortgaged Property 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 (except that each
Mortgaged Property securing a Trust Mortgage Loan that is part of a Loan
Combination also secures the other mortgage loan(s) in such Loan Combination);
however, if the related Mortgaged Property is listed on Schedule I, certain
direct controlling equity holders in the related Mortgagor are known to the
Seller to have incurred debt secured by their ownership interest in the related
Mortgagor.
8
Due-on-Sale. Except with respect to transfers of certain non-controlling and/or
minority interests in the related Mortgagor as specified in the related Mortgage
or with respect to transfers of interests in the related Mortgagor between
immediate family members and with respect to transfers by devise, by descent or
by operation of law or otherwise upon the death or incapacity of a person having
an interest in the related Mortgagor, each Mortgage Loan contains either (A)
provisions for the acceleration of the payment of the unpaid principal balance
of such Mortgage Loan if any related Mortgaged Property or interest therein is
directly or indirectly transferred or sold without the prior written consent of
the mortgagee or rating agency confirmation, or (B) provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if any related Mortgaged Property or interest therein is directly or
indirectly transferred or sold without the related Mortgagor having satisfied
certain conditions specified in the related Mortgage with respect to permitted
transfers (which conditions are consistent with the practices of prudent
commercial mortgage lenders (as defined below)). The Mortgage (under either
specific or general expense provisions) requires the Mortgagor to pay all
reasonable fees and expenses associated with securing the consent or approval of
the holder of the Mortgage for all actions involving the transfer of interest in
such Mortgagor requiring such consent or approval under the Mortgage.
Mortgagor Concentration. Except in the case of the Mortgage Loans listed on
Schedule I (xxvii), such Mortgage Loan, together with any other Mortgage Loan
made to the same Mortgagor or to an Affiliate of such Mortgagor, does not
represent more than 5% of the Initial Pool Balance.
Waivers; Modifications. Except as set forth in a written instrument included in
the related Mortgage File, the (A) material terms of the related Mortgage Note,
the related Mortgage(s) and any related loan agreement and/or lock-box agreement
have not been waived, modified, altered, satisfied, impaired, canceled,
subordinated or rescinded by the mortgagee in any manner, and (B) no portion of
a related Mortgaged Property has been released from the lien of the related
Mortgage, in the case of (A) and/or (B), to an extent or in a manner that in any
such event materially interferes with the security intended to be provided by
such document or instrument. Schedule I identifies each Mortgage Loan (if any)
as to which, since the latest date any related due diligence materials were
delivered to Anthracite Capital, Inc. (or its designee), there has been (in
writing) given, made or consented to a material alteration, material
modification or assumption of the terms of the related Mortgage Note,
Mortgage(s) or any related loan agreement and/or lock-box agreement and/or as to
which, since such date, there has been (in writing) a waiver other than as
related to routine operational matters or minor covenants.
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.
Property Release. The terms of the related Mortgage Note, Mortgage(s) or other
loan document securing such Mortgage Loan do not provide for the release from
the lien of such Mortgage of any material portion of the related Mortgaged
Property that is necessary to the operation of such Mortgaged Property or was
given material value in the underwriting of such Mortgage Loan at origination,
without (A) payment in full of such Mortgage Loan, (B) delivery of Defeasance
Collateral in the form of "government securities" within the meaning of Section
2(a)(16) of the Investment Company Act of 1940, as amended (the "Investment
Company Act"), (C) payment of a release price equal to at least 125% of the
amount of such Mortgage Loan allocated to the related Mortgaged Property subject
to the release or (D) with respect to mortgage loans listed on Schedule I-xxx,
the satisfaction of certain
9
underwriting and legal requirements which the Seller required in the origination
of comparable mortgage loans.
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
prudent commercial mortgage lenders (as defined below) with respect to the
foregoing matters; the Seller has received no notice of any material violation
of, to the extent is has not been grandfathered under, any applicable laws,
zoning ordinances, rules, covenants or restrictions affecting the construction,
occupancy, use or operation of the related Mortgaged Property (unless
affirmatively covered by the title insurance referred to in paragraph (xi) above
(or an endorsement thereto)); to the Seller's knowledge (based on surveys,
opinions, letters from municipalities and/or title insurance obtained in
connection with the origination of such Mortgage Loan), no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property, in effect at the
time of origination of such Mortgage Loan, to an extent which would have a
material adverse affect on the related Mortgagor's use and operation of such
Mortgaged Property (unless grandfathered with respect thereto or affirmatively
covered by the title insurance referred to in paragraph (xi) above (or an
endorsement thereto)), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. For purposes of this
paragraph, a Mortgaged Property shall be deemed "grandfathered" with respect to
any laws, zoning ordinances, rules, covenants or restrictions affecting the
construction, occupancy, use or operation of the related Mortgaged Property, if
and to the extent that any of the construction, occupancy, use and operation of
such Mortgaged Property: (A) conformed in all material respects with such laws,
zoning ordinances, rules, covenants and restrictions affecting the improvements
on the related Mortgaged Property at the time the improvements on the related
Mortgaged Property were initially constructed or put into operation; and/or (B)
was not addressed or otherwise prohibited by any such laws, zoning ordinances,
rules, covenants and restrictions affecting the related Mortgaged Property at
the time the improvements on the related Mortgaged Property were initially
constructed or put into operation.
Property Financial Statements. The related Mortgagor has covenanted in the
related Mortgage Loan documents to deliver to the mortgagee annual operating
statements, rent rolls and related information of each related Mortgaged
Property and annual financial statements. If such Mortgage Loan had an original
principal balance greater than $15 million, the related Mortgagor has covenanted
to provide such operating statements, rent rolls and related information on a
quarterly basis. If such Mortgage Loan has an original principal balance equal
to or greater than $20 million, the related Mortgagor, if it obtains an audited
financial statement, is required to provide a copy thereof to the holder of such
Mortgage Loan at the related mortgagee's request.
Single Purpose Entity. If such Mortgage Loan has a Cut-off Date Balance in
excess of $25 million, then the related Mortgagor is obligated by its
organizational documents and the related Mortgage Loan documents to be a Single
Purpose Entity for so long as such Mortgage Loan is outstanding; and, if such
Mortgage Loan has a Cut-off Date Balance greater than $5 million and less than
$25 million, the related Mortgagor is obligated by its organizational documents
and/or the related Mortgage Loan documents to own the related Mortgaged Property
and no other material assets, except such as are incidental to the
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ownership of such Mortgaged Property for so long as such Mortgage Loan is
outstanding. For purposes of this representation, "Single Purpose Entity" means
an entity whose organizational documents or the related Mortgage Loan documents
provide substantially to the effect that such entity: (A) is formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing such Mortgage Loan, (B) may not engage in any business
unrelated to the related Mortgaged Property or Mortgaged Properties, (C) does
not have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Mortgaged Properties and (D) may not
incur indebtedness other than as permitted by the related Mortgage or other
Mortgage Loan documents. If such Mortgage Loan has an initial principal balance
of $25 million and above and the related Mortgagor is a single member limited
liability company, such Mortgagor's organizational documents provide that such
Mortgagor shall not dissolve or liquidate upon the bankruptcy, dissolution,
liquidation or death of its sole member and is organized in a jurisdiction that
provides for such continued existence and there was obtained opinion of counsel
confirming such continued existence. If such Mortgage Loan has, or is part of a
group of Mortgage Loans with affiliated Mortgagors having, a Cut-off Date
Balance equal to or greater than 2% of the Initial Pool Balance, or if such
Mortgage Loan has an original principal balance equal to or greater than $25
million, there was obtained an opinion of counsel regarding non-consolidation of
such Mortgagor.
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.
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.
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.
Trustee under Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and no fees and expenses are payable
to such trustee except in connection with a trustee sale of the related
Mortgaged Property following a default or in connection with the release of
liens securing such Mortgage Loan and any such fees and expenses are the
obligation of the Mortgagor under the terms of the Mortgage.
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
Loan(s). The security interest/lien on each material item of collateral for such
Mortgage Loan has been assigned to the Trustee.
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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.
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.
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.
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.
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.
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.
Leasehold Interest Only. If such Mortgage Loan is secured in whole or in
material part by the interest of the related Mortgagor as a lessee under a
Ground Lease but not by the related fee interest, then:
(A) such Ground Lease or a memorandum thereof has been or will
be duly recorded and such Ground Lease permits the interest
of the lessee thereunder to be encumbered by the related
Mortgage or, if consent of the lessor thereunder is
required, it has been obtained prior to the Closing Date;
(B) upon the foreclosure of such Mortgage Loan (or acceptance of
a deed in lieu thereof), the Mortgagor's interest in such
Ground Lease is assignable
12
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;
(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;
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(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.
Fee Simple and Leasehold Interest. If such Mortgage Loan is secured by the
interest of the related Mortgagor under a Ground Lease and by the related fee
interest, then (A) such fee interest is subject, and subordinated of record, to
the related Mortgage, (B) the related Mortgage does not by its terms provide
that it will be subordinated to the lien of any other mortgage or other lien
upon such fee interest, and (C) upon occurrence of a default under the terms of
the related Mortgage by the related Mortgagor, the mortgagee under such Mortgage
Loan has the right (subject to the limitations and exceptions set forth in
paragraph (v) above) to foreclose upon or otherwise exercise its rights with
respect to such fee interest.
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
14
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.
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.
Primary Servicing Rights. No Person has been granted or conveyed the right to
primary service such Mortgage Loan or receive any consideration in connection
therewith except (A) as contemplated in this Agreement with respect to primary
servicers that are to be sub-servicers of the Master Servicer, (B) as has been
conveyed to the Master Servicer, in its capacity as a primary servicer, or (C)
as has been terminated.
Mechanics' and Materialmen's Liens. As of origination and, to the Seller's
actual knowledge, as of the Closing Date, (A) the related Mortgaged Property is
free and clear of any and all mechanics' and materialmen's liens that are not
bonded, insured against or escrowed for, and (B) no rights are outstanding that
under law could give rise to any such lien that would be prior or equal to the
lien of the related Mortgage (unless affirmatively covered by the title
insurance referred to in paragraph (xi) above (or an endorsement thereto)). The
Seller has not received actual notice with respect to such Mortgage Loan that
any mechanics' and materialmen's liens have encumbered such Mortgaged Property
since origination that have not been released, bonded, insured against or
escrowed for.
Due Date. Subject to any business day convention imposed by the related loan
documents, the Due Date for such Mortgage Loan is scheduled to be the first day,
the seventh day, the tenth day or the eleventh day of each month.
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
15
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.
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.
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.
No Undisclosed Common Ownership. To the Seller's knowledge, except where
multiple properties secure an individual Mortgage Loan and except for properties
securing Mortgage Loans that are cross-defaulted and cross-collateralized, no
two properties securing Mortgage Loans are directly or indirectly under common
ownership.
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.
Usury. Such Mortgage Loan complied with or was exempt from all applicable usury
laws in effect at its date of origination.
ARD Mortgage Loan. If such Mortgage Loan is an ARD Mortgage Loan, then:
(N) the related Anticipated Repayment Date is not less than five
years from the origination date for such Mortgage Loan;
(O) such Mortgage Loan provides that from the related
Anticipated Repayment Date through the maturity date for
such Mortgage Loan, all excess cash flow (net of normal
monthly debt service on such Mortgage Loan, monthly expenses
reasonably related to the operation of the related Mortgaged
Property, amounts due for reserves established under such
Mortgage Loan, and payments for any other expenses,
including capital expenses, related to such Mortgaged
Property which are approved by mortgagee) will be applied to
repay principal due under such Mortgage Loan;
(P) 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
(Q) the interest rate of such Mortgage Loan will increase by at
least two (2) percentage points in connection with the
passage of its Anticipated
16
Repayment Date.
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.
For purposes of the foregoing representations and warranties, the
phrases "to the knowledge of the Seller" or "to the Seller's knowledge" shall
mean, except where otherwise expressly set forth above, the actual state of
knowledge of the Seller at the time of the origination of the particular
Mortgage Loan regarding the matters referred to, in each case after having
conducted such inquiry and due diligence into such matters as is customarily
performed by the Seller in connection with such matters with respect to the
origination by Seller of multifamily or commercial (as applicable) mortgage
loans intended for securitization, and the phrases "to the actual knowledge of
the Seller" or "to the Seller's actual knowledge" shall mean, except where
otherwise expressly set forth above, the actual state of the Seller's knowledge,
at the time of the origination of the particular Mortgage Loan regarding the
matters referred to, in each case without any express or implied obligation to
make any inquiry or conduct any due diligence.
For purposes of the foregoing representations and warranties, the
phrases "would be considered prudent by an institutional commercial mortgage
lender" or "consistent with the practices of prudent commercial mortgage
lenders" or "customarily performed by prudent commercial mortgage lenders" or
"would not be viewed as commercially unreasonable by a prudent commercial
mortgage lender" and/or other references to "prudent commercial mortgage
lender(s)" shall, in each case, mean the subject action, inaction,
consideration, determination, or lending practice would be reasonably consistent
with the practices or procedures commonly followed (at the time the subject
action, inaction, consideration, determination, or lending practice occurred) by
commercial mortgage lenders originating fixed-rate mortgage loans for
securitization similar to the Mortgage Loans, which practices or procedures, in
each case, would be commonly applicable at such time taking into account the
facts, circumstances and characteristics of the subject Mortgage Loan.
17
SCHEDULE I
LB-UBS 2005-C7
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
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CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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10 (v) Station Place I The guarantor is not a natural person. There is no recourse
to the guarantor (only to the borrower) for fraud,
Loan Document Status misrepresentation and environmental matters.
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8 (v) Cherryvale Mall There is no recourse guarantor.
Loan Document Status
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68 (v) Xxxx'x Home Improvement Center Xxxxx Xxxx and the Geneva Organization executed guaranties
containing standard recourse carve-outs and for a breach of
Loan Document Status the waiver of the right of partition contained in the tenant
in common agreement. Each of the tenant in common investors
executed a guaranty which makes them liable for loss, costs
and damage as a result of: (a) fraud or material
misrepresentation or failure to disclose a material fact;
(b) gross negligence or willful misconduct; or (c) failure
to maintain their status as single purpose entities, as
required by the related loan documents. Additionally these
guaranties contain the recourse carve-outs for: (a) failure
to maintain certain special purpose entity covenants; (b)
failure to obtain lender's prior written consent to any
subordinate financing or other voluntary lien encumbering
the property; (c) failure to obtain lender's prior written
consent to any assignment, transfer, or conveyance of the
property or any interest therein as required by the related
mortgage; (d) filing, consenting to or acquiescing to
various bankruptcy or insolvency actions (e)
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Sch I-1
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CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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assertion of a defense against lender which the court in
such action or proceeding determines is without merit; or
(f) breach of the waiver of the right of partition.
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12 (v) Sarasota Main Plaza Liability with respect to the misrepresentation carve-out is
capped at $5,000,000.
Loan Document Status
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56 (v) Xxxxxxx, Highland and Eastway The loan is fully recourse until the later to occur of (i)
Apartments September 20, 2007 and (ii) the satisfaction and release
(A-C) Loan Document Status (and proper recordation of same) of that certain mortgage
affecting the Eastway Manor property made by Xxxx Xxxxxxxxx
to Xxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxx Xxxxxxxxx, Xxxxx
Ereg and Xxxxxxx Xxxx in the principal amount of $210,600.
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101, 103, 90 (v) Eckerd - Southern Pines There is no carve-out guarantor.
Loan Document Status Walgreens - Dallas
Walgreens - Xxxxxxxx
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114 (v) Bayonne Mobile Home Park Guarantors executed a full payment guaranty of the Loan,
which terminates when the borrower provides lender with (i)
Loan Document Status certificates of authority to do business in New Jersey and
(ii) all permits, licenses and certificates required to
operate a mobile home park in Bayonne, NJ in the borrowers'
name.
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Sch I-2
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CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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19 (v) 0000 Xxxxxx Xxxxxx The loan is full recourse and fully guaranteed by the
principal.
Loan Document Status
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7 (v) Bethesda Towers The carve-out guarantor is not an individual. If such
company's net worth falls below $15,000,000, there is
Loan Document Status springing liability under a conditional guaranty delivered
by Xxxxx X. Xxxxx. The company's and Xxxxx'x personal
liabilities will then be concurrent until the company's net
worth returns to $15,000,000.
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111 (v) Riverside Plaza The loan is full recourse.
Loan Document Status
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53 (v) GRM San Francisco The loan is full recourse.
Loan Document Status
------------------------------------------------------------------------------------------------------------------------------------
80 (v) Phoenix Building The loan is full recourse.
Loan Document Status
------------------------------------------------------------------------------------------------------------------------------------
33 (v) Sunchase at Longwood The loan is full recourse until net operating income, on a
trailing 12-month basis, is at least $1,150,000.
Loan Document Status
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110 (v) RV Ranch and Stor-More The loan is full recourse until the borrower achieves a debt
service coverage ratio of at least 1.35x, on a trailing 24
(A-B) Loan Document Status month basis.
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127 (v) Alegra Palms Apartments The loan is full recourse.
Loan Document Status
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N/A (v) All Properties With respect to the non-recourse carve-out
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Sch I-3
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CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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Loan Document Status guarantee concerning fraud, certain of the guarantors have
only agreed to be liable in connection with and to the
extent of any material fraud or material intentional fraud
or material misrepresentations or material intentional
misrepresentation by the related Mortgagor.
With respect to the 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.
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56 (viii) Xxxxxxx, Highland and Eastway There is a prior mortgage on the Eastway Manor property. The
Apartments borrower has indicated that the mortgage was satisfied,
(A-C) First Lien however no release or satisfaction was ever recorded.
Mortgagor must obtain the release and satisfaction of the
mortgage within one year of the date of closing. If the
mortgagor fails to obtain such release within 90 days of the
date of closing, the interest rate increases by 0.25%. If
the mortgagor fails to obtain such release within one year
of the date of closing, the mortgagee has the right to
declare such failure an event of default, and accelerate the
maturity date to October 11, 2006. The loan is fully
recourse to Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxxxx until such
release is obtained. Additionally, at closing, the mortgagor
deposited $210,000 in escrow with the lender to be held
until the release of such mortgage. If such release is not
obtained within one year from the date of closing, the
lender may use such money to obtain a release and the
mortgagor shall reimburse lender for all costs and expenses
incurred by such action.
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7 (viii) Bethesda Towers The mortgage loan is structured as an
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Sch I-4
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CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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indemnity deed of trust.
First Lien
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The Community Redevelopment Agency of the City of Margate,
88 (xi) CVS - Margate Florida, gave a $100,000 grant to the borrower for
beautification purposes, which sum is required to be
Title Insurance returned in the event that, prior to December 1, 2008, the
borrower (i) changes the appearance of the structure
enhanced by the grant without prior consent and/or (ii)
fails to comply with all applicable city and county laws and
is subsequently fined therefor. The borrower and the
guarantors provided the lender an indemnity with respect to
this matter.
Approximately 6 feet of the parking area located on the
western portion of the CVS parcel is subject to a revocable
license recorded in the official records of Broward County.
Under such license, Broward County may terminate the
borrower's use of such space at any time. In the event that
the County terminates such license, borrower must promptly
make all improvements necessary to restore any portion of
the parking areas lost due to such termination and make all
alterations necessary to the landscaping areas of the
property so that the re-constituted parking areas comply
with all applicable laws and certain lease provisions.
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Sch I-5
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CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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56 (xi) Xxxxxxx, Highland and Eastway The Mortgaged Property is covered by a lender's title
Apartments insurance policy that insures that the mortgage is a valid
first lien on such Mortgaged Property.
(A-C) Title Insurance
There is, however, a prior mortgage on the Eastway Manor
property. The borrower has indicated that the mortgage was
satisfied, however no release or satisfaction was ever
recorded. Mortgagor must obtain the release and satisfaction
of the mortgage within one year of the date of closing. If
the mortgagor fails to obtain such release within 90 days of
the date of closing, the interest rate increases by 0.25%.
If the mortgagor fails to obtain such release within one
year of the date of closing, the mortgagee has the right to
declare such failure an event of default, and accelerate the
maturity date to October 11, 2006. The loan is fully
recourse to Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxxxx until such
release is obtained. Additionally, at closing, the mortgagor
deposited $210,000 in escrow with the lender to be held
until the release of such mortgage. If such release is not
obtained within one year from the date of closing, the
lender may use such money to obtain a release and the
mortgagor shall reimburse lender for all costs and expenses
incurred by such action.
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56 (xi) Xxxxxxx, Highland and Eastway The property consists of 3 lots that are not contiguous.
Apartments
(A-C) Title Insurance
------------------------------------------------------------------------------------------------------------------------------------
56 (xii) Xxxxxxx, Highland and Eastway So long as the borrower is obtaining policies from
Apartments Harleysville Group Insurance, then a claims paying ability
(A-C) Property Insurance rating of at least A-:XI from A.M. Best Company or BBB- or
better from Standard & Poor's Rating Services is acceptable,
however, the loan is recourse to the guarantors to the
extent that (1) the insurance proceeds for any casualty are
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Sch I-6
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CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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insufficient to fully restore the Mortgaged Property and (2)
the insurance maintained by the borrower does not insure,
pay or otherwise cover any claims against the borrower or
the Mortgaged Property for which the borrower is required to
maintain insurance.
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101, 103, 90 (xii) Eckerd - Southern Pines Under the lease and loan documents, the tenant is
responsible for providing insurance. The lease provides that
Property Insurance Walgreens - Dallas the tenant may self-insure, in part, in lieu of separate
general liability insurance. In the event that the tenant is
Walgreens - Xxxxxxxx self-insuring and the risk and senior unsecured debt rating
of the tenant fall below "BBB-" by Standard & Poor's Ratings
Services (or the equivalent of such rating by Moody's), the
borrower will be required to provide all insurance required
under the mortgage. In addition, in the event the insurance
policies maintained by the tenant under the lease fail to
name the lender as an additional insured or lender, the
borrower must maintain such insurance policies, regardless
of whether such insurance is maintained by the tenant.
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68 (xii) Lowe's Home Improvement Center The borrower is required to maintain certain rental
loss/business income interruption insurance and maintain or
Property Insurance cause Lowe's to maintain certain insurance. If the insurance
policies maintained by the tenant under the Lowe's lease do
not fully comply with the requirements set forth in the loan
documents, then the borrower is required to immediately
procure and maintain, in "concurrent form" with the policies
obtained pursuant to the Lowe's lease, over and above any
other valid and collectible coverage then in existence, as
shall be necessary to bring the insurance coverage for the
entire property into full compliance with all of the terms
and conditions of the relevant sections of the loan
documents.
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Sch I-7
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CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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Lowes may self insure, however, at any time that the senior
unsecured debt rating of Lowe's falls below "BBB+" by
Standard & Poor's ratings Services, a division of the
XxXxxx-Xxxx Companies, Inc. (or the equivalent of such
rating by Moody's) and Lowe's is self-insuring, the borrower
is required to obtain all insurance as required by the loan
documents. In addition, if, at any time the insurance
policies maintained by the tenant fail to name lender as an
additional insured or lender, the borrower shall maintain
such insurance policies, regardless of whether such
insurance is maintained by the tenant.
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88 (xii) CVS - Margate The tenant under the CVS lease and the tenant under the
BankAtlantic lease carry insurance. The borrower and
Property Insurance guarantors indemnify the lender for any losses suffered if,
following a casualty resulting from a terrorist act, either:
(i) the tenant under the CVS lease fails to restore the
demised premises in accordance with the provisions of the
lease, or (ii) if insurance proceeds are not paid to the
lender.
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8 (xii) Cherryvale Mall Insurance providers are allowed to be rated below BBB+ but
in no event less than BBB-.
Property Insurance
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Sch I-8
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CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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110 (xii) RV Ranch and Stor-More Business interruption and rental loss on the RV Ranch is for
a period of 6 months with co-insurance. The borrower has
(A-B) Property Insurance guaranteed 6 months debt service, operating expenses and
escrows and any loss for co-insurance coverage. The
insurance carrier, Arch Insurance Company, is approved as
long as it has a minimum rating of A-:XV. The casualty
policy for RV Ranch need not contain a waiver of
co-insurance, however in such case insurance must be for
100% of the replacement cost of the improvements and the key
principal has guaranteed all loss, costs or damages
resulting from the fact that a waiver of co-insurance was
not obtained. Flood insurance on the RV Ranch parcel is for
$250,000, not the full amount of the loan, due to the fact
that only the club house is in the flood zone.
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132 (xii) Golden Triangle Mobile Home There are no improvements on the lots that belong to the
Park borrower, only manufactured housing that belongs to the
Property Insurance occupants. The borrower is not required to insure occupant
improvements. The deed of trust requires the borrower to
cause the homeowner's association to insure the common area
improvements and to restore the same in the event of a
casualty. The borrower controls the Homeowner's Association.
If the borrower does build improvements on the property then
insurance is required. There is no flood insurance for
improvements as there are no improvements belonging to the
borrower on the property. The loan is recourse to the
borrower for an amount equal to what would be the proceeds
of business interruption insurance if the borrower had
carried business interruption insurance with respect to
flood.
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56 (xii) Xxxxxxx, Highland and Eastway The insurance carrier is rated BBB-.
Apartments
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Sch I-9
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CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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(A-C) Property Insurance
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77 (xii) Turtle Bay The borrower is not required to insure occupant
improvements. A portion of the property is located in a
Property Insurance flood zone but there is no flood insurance because the
borrower owns no improvements on that portion of the
mortgaged property. The loan is recourse to the borrower for
an amount equal to what would be the proceeds of business
interruption insurance if the borrower had carried business
interruption insurance with respect to flood.
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79, 77 (xii) Lakes Estates The insurance carrier is rated BBB. No terrorism insurance
is required or in place.
Property Insurance Turtle Bay
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79 (xii) Lakes Estates The borrower is not required to insure occupant
improvements. A portion of the property is located in a
Property Insurance flood zone but there is no flood insurance because the
borrower owns no improvements on that portion of the
mortgaged property. The loan is recourse to the borrower for
an amount equal to what would be the proceeds of business
interruption insurance if the borrower had carried business
interruption insurance with respect to flood.
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103, 90 (xii) Walgreens - Dallas Walgreens self-insures.
Property Insurance Walgreens - Xxxxxxxx
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49, 74, 110, (xii) All Mobile Home Park and RV With respect to mobile home park and rv park properties,
112, 114, 132 Park Properties there is generally a lack of insurable improvements.
Property Insurance Therefore, casualty insurance is typically minimal (or
nonexistent in some cases).
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N/A (xii) All Properties With respect to certain mortgage loans, the
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Sch I-10
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CONTROL
NO. REPRESENTATION PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
lender accepted comprehensive liability insurance in an
Property Insurance amount less than that required by the
loan documents, provided, that this exception does not apply
to the Reckson Portfolio I Mortgage Loan, the Bethesda
Towers Mortgage Loan, the Cherryvale Mall Mortgage Loan, the
Station Place I Mortgage Loan or the Reckson Portfolio II
Mortgage Loan, provided further, however, that all the
mortgage loans provide a primary general liability policy of
at least $1,000,000 per occurrence with $2,000,000 in the
aggregate.
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10 (xvi) Station Place I Future mezzanine debt is permitted subject to the conditions
set forth in the loan documents.
Subordinate Debt
------------------------------------------------------------------------------------------------------------------------------------
4 (A-I), 14 (xvi) Reckson Portfolio Pool I Future mezzanine debt is permitted subject to the conditions
(A-C) set forth in the loan documents.
Subordinate Debt Reckson Portfolio Pool II
------------------------------------------------------------------------------------------------------------------------------------
N/A (xvi) All Properties The loan documents allow the borrower to incur certain trade
payables and equipment financing up to a predetermined
Subordinate Debt amount, which is generally less than or equal to 5% of the
loan amount.
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101 (xix) Eckerd - Southern Pines No natural person or guarantor has provided an environmental
indemnity; only Mortgagor executed the aforementioned
Environmental agreement.
Conditions
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Sch I-11
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CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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4 (A-I), 14 (xix) Reckson Portfolio Pool I With respect to 000 Xxxx Xxxxx Xxxx, soil and groundwater
(A-C) contamination was identified at the property in connection
Environmental Reckson Portfolio Pool II with a heating oil UST, which was removed from the property
Conditions in 1988 (prior to the construction of the current
improvements), and the prior owner's use of chlorinated
organic solvents for metalwork conducted at the property.
Approximately 11,000 cubic yards of impacted soil was
removed from the property by the former owner of the
property, CBS Technologies. CBS Technologies also conducted
site investigations under a Consent Order entered into with
the Connecticut Department of Environmental Protection in
1988, which Consent Order names CBS Technologies as the
responsible party with respect to these matters. In
addition, a groundwater recovery and treatment system was
implemented in 1990 under the Consent Order, which is
currently operated and maintained by CBS Technologies.
According to the Phase I consultant, recent subsurface
investigations conducted in 2005 identified that although a
majority of the impacted soil was removed from the property,
a small area is contaminated with extractable total
petroleum hydrocarbons. The Phase I consultant recommended
no further investigation at this time, but recommended that
the former owner's environmental consultant be given access
to the property to perform necessary testing and remediation
in order to obtain regulatory closure with respect to the
property. The borrower has obtained environmental insurance
with respect to this matter. There can be no assurance that
all contamination will be remedied, that CBS Technologies
will continue to perform and pay for the required
remediation work or that the environmental insurance policy
will
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Sch I-12
------------------------------------------------------------------------------------------------------------------------------------
CONTROL
NO. REPRESENTATION PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
be sufficient to cover all potential liability to the
borrower with respect to this matter.
------------------------------------------------------------------------------------------------------------------------------------
103 (xix) Walgreens - Dallas No natural person or guarantor has provided an environmental
indemnity; only Mortgagor executed the aforementioned
Environmental agreement.
Conditions
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N/A (xxv) All Properties The loan documents allow the borrower to incur certain trade
payables and equipment financing up to a predetermined
Due-on-Encumbrance amount, which is generally less than or equal to 5% of the
loan amount.
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4 (A-I), 14 (xxvi) Reckson Portfolio Pool I A permitted change of control with respect to Australian
(A-C) Property Trust occurred.
Due-on-Sale Reckson Portfolio Pool II
------------------------------------------------------------------------------------------------------------------------------------
116 (xxvi) 00 Xxxxx Xxxx Xxxxxx Transfers among the three existing principals in excess of
49% are permitted.
Due-on-Sale
------------------------------------------------------------------------------------------------------------------------------------
7 (xxvi) Bethesda Towers Permitted transfer, subject to conditions in related loan
documents, (i) of direct or indirect interests between
Due-on-Sale members of Borrower or between constituent entities of any
member of Borrower or affiliates thereof, (ii) of direct or
indirect interests in Borrower to an Institutional Investor,
(iii) by any person holding an indirect interest in Borrower
to a non-minor member of the immediate family of such person
or a related trust, (iv) to the control of one or more
Qualified Borrower Managers or (v) by an Associate Manager
of all or any portion of its membership interest in Xxxxx
East-West Investors LLC.
------------------------------------------------------------------------------------------------------------------------------------
101, 103, 90 (xxvi) Eckerd - Southern Pines A transfer of all of any portion of the direct or indirect
interests in the related borrower to any affiliates of UBS
Due-on-Sale Walgreens-Dallas Real Estate Investments Inc. or UBS AG (or to any entities
in which either of UBS Real Estate Investments Inc. or UBS
Walgreens - Xxxxxxxx XX (or any
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Sch I-13
------------------------------------------------------------------------------------------------------------------------------------
CONTROL
NO. REPRESENTATION PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
affiliates of either party) holds a direct or indirect
interest or investment) is permitted without the prior
consent of the related lender.
------------------------------------------------------------------------------------------------------------------------------------
N/A (xxvi) All Properties Most of the loan documents provide that transfers of direct
and/or indirect interest in the related Mortgagor and/or the
Due-on-Sale related Mortgaged Property upon the death of any natural
person which holds such interest(s) will not constitute a
transfer of direct and/or indirect interest in Mortgagor
and/or Mortgaged Property so long as, among other things as
set forth in loan documents: (i) all of the direct and/or
indirect interests of such decedent in the Mortgagor and/or
the Mortgaged Property are held and remain the property of
the legal representative of such decedent's estate; (ii) the
Mortgaged Property continues to be managed in a manner
acceptable to the mortgagee and (iii) within thirty (30)
days of such death, Mortgagor delivers notice thereof to the
mortgagee and thereafter provides the mortgagee with such
information as may be reasonably requested by the mortgagee
as to the continued management of the Mortgaged Property.
------------------------------------------------------------------------------------------------------------------------------------
4 (A-I), 14 (xxvii) Reckson Portfolio Pool I Represents more than 5% of the pool balance.
(A-C)
Mortgagor Reckson Portfolio Pool II
Concentration
------------------------------------------------------------------------------------------------------------------------------------
110 (xxx) RV Ranch and Stor-More A partial release of a portion of the Stor-More facility is
permitted, without consideration, upon satisfaction of
(A-B) Property Release certain conditions.
------------------------------------------------------------------------------------------------------------------------------------
103 (xxxi) Walgreens - Dallas After closing the borrower is required to obtain
qualification to do business in the state where the property
Qualifications; is located.
Licensing; Zoning
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Sch I-14
------------------------------------------------------------------------------------------------------------------------------------
CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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56 (xxxi) Xxxxxxx, Highland and Eastway Pursuant to a letter dated August 18, 2005 from the Town of
Apartments Irondequoit there are the following code violations on the
(A-C) Qualifications; Highland Bay property: (i) no dumpster enclosure; (ii)
Licensing; garbage bags on the front lawn; and (iii) grass and weeds
Zoning higher than six inches in areas. The borrower is required to
correct these violations and obtain a letter from the Town
of Irondequoit stating that there are no further violations
on the property within 90 days from the date of closing.
------------------------------------------------------------------------------------------------------------------------------------
101 (xxxi) Eckerd - Southern Pines After closing the borrower is required to obtain
qualification to do business in the State where the property
Qualifications; is located.
Licensing;
Zoning
------------------------------------------------------------------------------------------------------------------------------------
87 (xxxi) The Shoppes at Xxxx Club Certificates of Occupancy are not available with respect to
a number of the tenants.
Qualifications;
Licensing;
Zoning
------------------------------------------------------------------------------------------------------------------------------------
74, 112, 49 (xxxi) Oak Orchard Mobile Home Park Zoning noncompliance for lot sizes and setbacks.
Qualifications; Xxxxxxxx Mobile Home Park
Licensing;
Zoning
Prestige Mobile Home Park
------------------------------------------------------------------------------------------------------------------------------------
114 (xxxi) Bayonne Mobile Home Park The borrower does not have the proper licenses to operate a
mobile home park. After closing, the borrower is required to
Qualifications; provide lender with (i) a certificate of authority to do
Licensing; business in New Jersey and (ii) licenses to operate a mobile
Zoning home park in Bayonne, NJ in the borrowers' name.
------------------------------------------------------------------------------------------------------------------------------------
15 (xxxi) 0000 Xxxxxxxx Xxxxxxxxx There is an order to comply issued by the city, which the
borrower had advised has been cleared. The borrower is
Qualifications; required to
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Sch I-15
------------------------------------------------------------------------------------------------------------------------------------
CONTROL
NO. REPRESENTATION PROPERTY ISSUE
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Licensing; Zoning provide documents evidencing such clearance before the loan
is funded.
------------------------------------------------------------------------------------------------------------------------------------
75 (xxxi) Meadowbrook Apartments [No certificate of occupancy is available, but the city has
confirmed that no violations are listed against the property
Qualifications; with respect thereto.]
Licensing; Zoning
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56 (xxxi) Xxxxxxx, Highland and Eastway [Only the Highland Bay certificate of occupancy is
Apartments available].
(A-C) Qualifications;
Licensing; Zoning
------------------------------------------------------------------------------------------------------------------------------------
19 (xxxi) 0000 Xxxxxx Xxxxxx No certificate of occupancy is available. In addition: (a)
the ground floor office use requires a conditional use
Qualifications; permit, (b) there is a rear setback deficiency and (c) the
Licensing; Zoning existing floor area ratio exceeds maximum basic floor area
ratio permitted.
------------------------------------------------------------------------------------------------------------------------------------
110 (xxxi) RV Ranch and Stor-More There is no certificate of occupancy for the RV Ranch
because the property was not within city limits when
(A-B) Qualifications; constructed and no certificate of occupancy was required.
Licensing; Zoning The loan is recourse to the key principal for loss, cost or
damage as a result of no certificate of occupancy having
been issued.
------------------------------------------------------------------------------------------------------------------------------------
80 (xxxi) Phoenix Building There was no permanent certificate of occupancy for the
building as of the closing. The borrower has a post closing
Qualifications; obligation to obtain the permanent certificate of occupancy.
Licensing; Zoning The borrower has advised that the fire inspection
certificate is all that remains in order for the borrower to
receive the permanent certificate of occupancy. Fees in
connection with obtaining the fire inspection certificate
are required to be paid out of the loan proceeds at closing.
In addition, the final $100,000 remaining in the required
repair reserve is not required to be released to the
borrower until a permanent certificate of occupancy is
delivered to the
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Sch I-16
------------------------------------------------------------------------------------------------------------------------------------
CONTROL
NO. REPRESENTATION PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
lender.
------------------------------------------------------------------------------------------------------------------------------------
19 (xxxii) 0000 Xxxxxx Xxxxxx There is no provision in the loan documents that requires
the borrower, if it obtains audited financial statements, to
Property Financial deliver copies to the lender. The financial statements need
Statements only be certified by the chief financial officer of the
borrower.
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74, 112, 49 (xxxiii) Oak Orchard Mobile Home Park, The borrower is a recycled special purpose entity.
Xxxxxxxx Mobile Home Park and
56(A-C) Single Purpose Prestige Mobile Home Park
Entity
Xxxxxxx, Highland and Eastway
Apartments
------------------------------------------------------------------------------------------------------------------------------------
85 (xxxiii) XxXxxxxxx Hospital Building The borrower is a recycled special purpose entity.
Single Purpose
Entity
------------------------------------------------------------------------------------------------------------------------------------
7 (xxxiii) Bethesda Towers The grantor under the indemnity deed of trust and the
guarantor under the payment guaranty therein is an entity
Single Purpose formed on July 23, 1999 for the purpose of owning the
Entity related mortgaged real property. In order to avoid liability
for applicable transfer taxes that would otherwise be due,
the related borrower purchased 100% of the equity interests
in the grantor on August 17, 2005 rather than effectuate a
transfer of the fee title to the related mortgaged real
property itself. Therefore, such borrower is not a newly
formed special purpose entity.
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110 (xxxv) RV Ranch and Stor-More There is an outstanding claim by Maverick Materials for a
sum of less than $10,000. Funds sufficient to pay the claim
(A-B) Legal Proceedings in full have been escrowed.
------------------------------------------------------------------------------------------------------------------------------------
88 (xxxix) CVS - Margate The property falls within zone AH.
Flood Hazard
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Sch I-17
------------------------------------------------------------------------------------------------------------------------------------
CONTROL
NO. REPRESENTATION PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
Insurance
------------------------------------------------------------------------------------------------------------------------------------
132 (xxxix) Golden Triangle Mobile Home The property is partially located in a flood zone and, due
Park to the lack of improvements thereon, no insurance was
Flood Hazard required.
Insurance
------------------------------------------------------------------------------------------------------------------------------------
8 (xl) Cherryvale Mall There is no deferred maintenance reserve. The borrower
covenanted to complete the repairs, which are estimated to
Engineering cost approximately $28,000.
Assessments
------------------------------------------------------------------------------------------------------------------------------------
103 (xlii) Walgreens - Dallas After closing, the borrower is required to obtain
qualification to do business in the state where the property
Licenses, Permits is located.
and Authorizations
------------------------------------------------------------------------------------------------------------------------------------
101 (xlii) Eckerd - Southern Pines After closing, the borrower is required to obtain
qualification to do business in North Carolina.
Licenses, Permits
and Authorizations
------------------------------------------------------------------------------------------------------------------------------------
56 (xlii) Xxxxxxx, Highland and Eastway Pursuant to a letter dated August 18, 2005 from the Town of
Apartments Irondequoit there are the following code violations on the
(A-C) Licenses, Permits Highland Bay property: (i) no dumpster enclosure; (ii)
and Authorizations garbage bags on the front lawn; and (iii) grass and weeds
higher than six inches in areas. The borrower is required to
correct these violations and obtain a letter from the Town
of Irondequoit stating that there are no further violations
on the property within 90 days from the date of closing.
------------------------------------------------------------------------------------------------------------------------------------
87 (xlii) The Shoppes at Xxxx Club Certificates of Occupancy are not available with respect to
a number of the tenants C.O. for just few tenants.
Licenses, Permits
and Authorizations
------------------------------------------------------------------------------------------------------------------------------------
74, 112, 49 (xlii) Oak Orchard Mobile Home Park Zoning noncompliance for lot sizes and setbacks.
Licenses, Permits
------------------------------------------------------------------------------------------------------------------------------------
Sch I-18
------------------------------------------------------------------------------------------------------------------------------------
CONTROL
NO. REPRESENTATION PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
and Authorizations Xxxxxxxx Mobile Home Park
Prestige Mobile Home Park
------------------------------------------------------------------------------------------------------------------------------------
114 (xlii) Bayonne Mobile Home Park The borrower does not have the proper licenses to operate a
mobile home park. After closing, the borrower is required to
Licenses, Permits provide lender with (i) a certificate of authority to do
and Authorizations business in New Jersey and (ii) licenses to operate a mobile
home park in Bayonne, NJ in the borrowers' name.
------------------------------------------------------------------------------------------------------------------------------------
15 (xlii) 0000 Xxxxxxxx Xxxxxxxxx There is an order to comply issued by the city, which the
borrower had advised has been cleared. The borrower is
Licenses, Permits required to provide documents evidencing such clearance
and Authorizations before the loan is funded.
------------------------------------------------------------------------------------------------------------------------------------
75 (xlii) Meadowbrook Apartments No certificate of occupancy is available, but the city has
confirmed that no violations are listed against the property
Licenses, Permits with respect thereto.
and Authorizations
------------------------------------------------------------------------------------------------------------------------------------
56 (xlii) Xxxxxxx, Highland and Eastway Only the Highland Bay certificate of occupancy is available.
Apartments
(A-C) Licenses, Permits
and Authorizations
------------------------------------------------------------------------------------------------------------------------------------
19 (xlii) 0000 Xxxxxx Xxxxxx No certificate of occupancy is available. In addition: (a)
the ground floor office use requires a conditional use
Licenses, Permits permit, (b) there is a rear setback deficiency and (c) the
and Authorizations existing floor area ratio exceeds maximum basic floor area
ratio permitted.
------------------------------------------------------------------------------------------------------------------------------------
110 (xlii) RV Ranch and Stor-More There is no certificate of occupancy for the RV Ranch
because the property was not within city limits when
(A-B) Licenses, Permits constructed and no certificate of occupancy was required.
and Authorizations The loan is recourse to the key principal for loss,
------------------------------------------------------------------------------------------------------------------------------------
Sch I-19
------------------------------------------------------------------------------------------------------------------------------------
CONTROL
NO. REPRESENTATION PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
cost or damage as a result of no certificate of occupancy
having been issued.
------------------------------------------------------------------------------------------------------------------------------------
85 (xlv) XxXxxxxxx Hospital Building The fee owner has the right to purchase the leasehold
interest of the borrower in 2016 for an amount equal to 90%
Leasehold Interest of the fair market value thereof; provided, however, that
Only the purchase price will not be less than the total of the
then outstanding principal balance of the loan plus all
other amounts due and payable under the Loan as defined in
the related Note and Mortgage.
------------------------------------------------------------------------------------------------------------------------------------
85 (xlv) XxXxxxxxx Hospital Building St. Clare's Hospital of Schenectady, N.Y. is the fee owner
of the mortgaged real property. The hospital ground leased
Leasehold Interest the mortgaged real property to the related borrower. In
Only order to obtain certain tax benefits, (i) the related
borrower assigned its leasehold interest to the City of
(xlvi) Schenectady Industrial Development Agency (the "XXX") and
(ii) the related borrower and the XXX entered into an
Fee Simple and installment sales agreement, which agreement grants the
Leasehold Interest related borrower a present right to use and occupy the
premises. The related mortgage loan is secured by a mortgage
encumbering (i) all of borrower's interests in the property,
and (ii) the IDA's leasehold interest in the property. Both
the XXX and the related borrower are signing the mortgage.
In addition, the lender received (i) a collateral assignment
of the installment sales contract, and (ii) an agreement,
executed by the XXX, granting the lender notice and cure
rights with respect to a default by the related borrower,
and the right to a new installment sales contract in the
event of a foreclosure of the related borrower's interest in
the property but not the interest of the XXX therein. The
ground lease and landlord 's agreement contain certain
leasehold mortgagee protections.
------------------------------------------------------------------------------------------------------------------------------------
Sch I-20
------------------------------------------------------------------------------------------------------------------------------------
CONTROL
NO. REPRESENTATION PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
74, 49 (xlvii) Oak Orchard Mobile Home Park The property is served by an on-site sewer/septic system and
absorption field
Tax Lot; Utilities Prestige Mobile Home Park
------------------------------------------------------------------------------------------------------------------------------------
79 (xlvii) Lakes Estates The property is served by well water and an on-site
sewer/septic system and absorption field. Each has been
Tax Lot; Utilities inspected and has the relevant permits.
------------------------------------------------------------------------------------------------------------------------------------
132 (xlvii) Golden Triangle Mobile Home The property is served by a private sewer treatment plant.
Park Such plant has all necessary governmental permits.
Tax Lot; Utilities
------------------------------------------------------------------------------------------------------------------------------------
4 (A-I), 14 (xlviii) Reckson Portfolio Pool I Partial defeasance is allowed at 110% of the allocated loan
(A-C) amounts for certain non-core assets.
Defeasance Reckson Portfolio Pool II
------------------------------------------------------------------------------------------------------------------------------------
8 (li) Cherryvale Mall The payment date is the 5th day of the month with 5 days of
grace after notice.
Due Date
------------------------------------------------------------------------------------------------------------------------------------
101 (liv) Eckerd - Southern Pines An affiliate of the Seller owns 100% equity in the borrower.
Walgreens-St. Louis, Walgreens-Rochester and Eckerd -
No Ownership Southern Pines are indirectly under common ownership.
Interest in
Mortgagor
------------------------------------------------------------------------------------------------------------------------------------
103, 90 (liv) Walgreens - Dallas The Seller owns 100% of the indirect interests in the
borrower.
No Ownership Walgreens - Xxxxxxxx
Interest in
Mortgagor
------------------------------------------------------------------------------------------------------------------------------------
103, 90 (lv) Walgreens - Dallas The Seller also indirectly owns Walgreens-St. Louis and
Eckerd - Southern Pines.
No Undisclosed Walgreens - Xxxxxxxx
Common Ownership
------------------------------------------------------------------------------------------------------------------------------------
104, 116 (lv) 000 Xxxxxxx Xxxxxx and 67 The properties have common principal owners.
North Main Street
------------------------------------------------------------------------------------------------------------------------------------
Sch I-21
------------------------------------------------------------------------------------------------------------------------------------
CONTROL
NO. REPRESENTATION PROPERTY ISSUE
------------------------------------------------------------------------------------------------------------------------------------
No Undisclosed
Common Ownership
------------------------------------------------------------------------------------------------------------------------------------
74, 112 (lv) Oak Orchard Mobile Home Park The properties are indirectly under common ownership.
and Xxxxxxxx Mobile Home Park
56(A-C) No Undisclosed
Common Ownership Xxxxxxx, Highland and Eastway
Apartments
------------------------------------------------------------------------------------------------------------------------------------
114 (lv) Bayonne Mobile Home Park The borrowers are related.
4 (A-I), 14 No Undisclosed Reckson Portfolio Pool I and
(A-C) Common Ownership Reckson Portfolio Pool II
74, 112, 49, Oak Orchard Mobile Home Park,
56(A-C) Xxxxxxxx Mobile Home Park,
Prestige Mobile Home Park and
Xxxxxxx, Highland and Eastway
Apartments
------------------------------------------------------------------------------------------------------------------------------------
Sch X-00
XXXXXXX X
XXXX
Xxx C-1
EXHIBIT C-1
OPINION OF CADWALADER, XXXXXXXXXX & XXXX LLP
[CADWALADER, XXXXXXXXXX & XXXX LLP LETTERHEAD]
November 4, 2005
Addressees listed on Schedule A
Re: LB-UBS Commercial Mortgage Trust 2005-C7, Commercial Mortgage Pass-Through
Certificates, Series 2005-C7
Ladies and Gentlemen:
We are rendering this opinion pursuant to the Mortgage Loan Purchase
Agreement, dated as of October 25, 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 $[768,578,874.17] (the "UBS Mortgage Loans"), pursuant to the
MLPA; (ii) the execution by the Seller of the UBS Indemnification Agreement,
dated as of October 25, 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 October 25, 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
Exh C-1-1
documents, agreements and instruments submitted to us as copies or specimens,
the authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens and the accuracy of the matters set forth
in the documents, agreements and instruments we reviewed. As to any facts
material to the opinions expressed below that were not known to us, we have
relied upon statements, certificates and representations of officers and other
representatives of the UBS Entities, UBSPF, SASC and the Underwriters, including
those contained in the Agreements and other documents, certificates, agreements
and opinions delivered at the Closing, and of public officials. In addition,
with respect to the opinions referred to in paragraphs 8(c), 8(d) and 9 below,
such opinions are based solely on the Seller Officer's Certificate and the UBS
Americas Officer's Certificate referred to below, a review of the items, if any,
identified as exceptions in the exhibits to such certificates, conversation with
internal counsel for each of the UBS Entities, and the actual knowledge of
attorneys who conducted such review, had such conversations and/or customarily
represent the UBS Entities in real estate lending transactions, financing
transactions, and/or transactions similar to those contemplated by the
Agreements. Except as expressly set forth herein, we have not undertaken any
independent investigation (including, without limitation, conducting any review,
search or investigation of any public files, records or dockets) to determine
the existence or absence of the facts that are material to our opinion, and no
inference as to our knowledge concerning such facts should be drawn from our
reliance on the representations of the UBS Entities, UBSPF and others in
connection with the preparation and delivery of this letter.
In particular, we have examined and relied upon:
1. the MLPA;
2. the Underwriting Agreement;
3. the Indemnification Agreement;
4. the officer's certificate of Seller, dated the date hereof (the
"Seller Officer's Certificate"); and
5. the officer's certificate of UBS Americas, dated the date hereof
(the "UBS Americas Officer's Certificate").
References in this letter to "Applicable Laws" shall mean those laws,
rules and regulations of the State of New York and of the United States of
America which, in our experience, are normally applicable to transactions of the
type contemplated by the Agreements, as well as the General Corporation Law of
the State of Delaware with respect to the opinions referred to in paragraphs 1
through 4, 8(a), 8(b)(i), 8(c) and 8(d) below. While we are not licensed to
practice law in the State of Delaware, we have reviewed applicable provisions of
the Delaware General Corporation Law as we have deemed appropriate in connection
with the opinions expressed herein. Except as described we have neither examined
nor do we express any opinion with respect to Delaware law. References in this
letter to the term "Governmental Authorities" means executive, legislative,
judicial, administrative or regulatory bodies of the State of New York or the
United States of America. References in this letter to the term "Governmental
Approval" means any consent, approval, license, authorization or validation of,
or filing, recording or registration with, any Governmental Authority pursuant
to Applicable Laws.
We have also assumed, except as to the UBS Entities, that all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties
Exh C-1-2
are validly existing and in good standing under the laws of their respective
jurisdictions of organization, that all such parties had the power and legal
right to execute and deliver all such documents, agreements and instruments,
and, except as to the UBS Entities and UBSPF, that such documents, agreements
and instruments are legal, valid and binding obligations of such parties,
enforceable against such parties in accordance with their respective terms. As
used herein, "to our knowledge," "known to us" or words of similar import mean
the actual knowledge, without independent investigation (except as expressly set
forth herein), of any lawyer in our firm actively involved in the transactions
contemplated by the Agreements.
We express no opinion concerning any law other than Applicable Law.
Based upon and subject to the foregoing, we are of the opinion that:
1. Each of the Agreements has been duly authorized, executed and
delivered by the Seller.
2. The Indemnification Agreement has been duly authorized, executed
and delivered by UBS Americas.
3. The Seller is a corporation validly existing and in good standing
under the laws of the State of Delaware, with corporate power and authority
to enter into and perform its obligations under the Agreements.
4. UBS Americas is a corporation validly existing and in good standing
under the laws of the State of Delaware, with corporate power and authority
to enter into and perform its obligations under the Indemnification
Agreement.
5. Each of the MLPA and the Underwriting Agreement constitutes the
legal, valid and binding agreement of the Seller, and the MLPA constitutes
the legal, valid and binding agreement of UBSPF, enforceable against the
Seller or UBSPF, as applicable, in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to or affecting creditors'
rights generally, and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity), and
except that (a) the enforcement of rights with respect to indemnification
and contribution obligations and (b) provisions (i) purporting to waive or
limit rights to trial by jury, oral amendments to written agreements or
rights of set off or (ii) relating to submission to jurisdiction, venue or
service of process, may be limited by applicable law or considerations of
public policy.
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
Exh C-1-3
our experience are normally applicable to transactions of the type
contemplated by the MLPA, to be obtained by UBSPF except those that may be
required under state securities or blue sky laws, and such other approvals
that have been obtained and, to our knowledge, are in effect.
8. None of the sale of the UBS Mortgage Loans, the consummation by
either UBS Entity of any of the other transactions contemplated by the
Agreements to which it is a party or the execution, delivery and
performance by each UBS Entity of the terms of the Agreements to which it
is a party, (a) will require any Governmental Approval to be obtained or
made on the part of either UBS Entity, the absence of which would have a
material adverse effect on such UBS Entity or the transactions contemplated
by the Agreements, except those that may be required under state securities
or blue sky laws, and except for such other approvals that have been
obtained and, to our knowledge, are in full force and effect, (b) will
conflict with, or result in a violation of, any provision of (i) either UBS
Entity's certificate of incorporation or bylaws or (ii) any Applicable Laws
applicable to either UBS Entity, (c) will, to our knowledge, breach,
constitute a default under, require any consent under, or result in the
acceleration or require prepayment of any indebtedness pursuant to the
terms of, any agreement or instrument to which either UBS Entity is a party
or by which it is bound or to which it is subject, or result in the
creation or imposition of any lien upon any property of either UBS Entity
pursuant to the terms of any such agreement or instrument, any of which
occurrences, either in any one instance or in the aggregate, would call
into question the validity of any Agreement to which it is a party or be
reasonably likely to impair materially the ability of such UBS Entity to
perform under the terms of any Agreement to which it is a party or (d)
will, to our knowledge, breach or result in a violation of, or default
under, any material judgment, decree or order that is applicable to either
UBS Entity and is issued by any Governmental Authority having jurisdiction
over either UBS Entity or any of its properties.
9. To our actual knowledge, there is no legal or governmental action,
investigation or proceeding pending or threatened against either UBS Entity
(a) asserting the invalidity of the Agreements to which it is a party, (b)
seeking to prevent the consummation of any of the transactions provided for
in the Agreements, or (c) that would materially and adversely affect (i)
the ability of either UBS Entity to perform its obligations under, or the
validity or enforceability (with respect to either UBS Entity) of, the
Agreements to which it is a party or (ii) any rights with regard the
Mortgaged Properties or the Mortgage Loans. For purposes of the opinion set
forth in this paragraph, we have not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless the
potential litigant or governmental authority has communicated in writing to
a UBS Entity a present intention to initiate such actions, investigations
or proceedings against such UBS Entity.
We are furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. Without our prior written
consent, this letter is not to be relied upon, used, circulated, quoted or
otherwise referred to by, or assigned to, any other person (including any person
that acquires any Certificates from you or that seeks to assert your rights in
respect of this letter (other than your successor in interest by means of
merger, consolidation, transfer of a business or other similar transaction)) or
for any other purpose. In addition, we disclaim any obligation to update this
letter for changes in fact or law, or otherwise.
Very truly yours,
Exh C-1-4
SCHEDULE A
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Bank N.V
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Standard & Poor's Rating Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fitch Ratings, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Exh C-1-5
EXHIBIT C-2
OPINION OF IN-HOUSE COUNSEL TO ADDITIONAL PARTY
[UBS Principal Finance LLC LETTERHEAD]
November 4, 2005
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
LB-UBS Commercial Mortgage Trust 2005-C7, Commercial Mortgage Pass-Through
Certificates, Series 2005-C7
Ladies and Gentlemen:
I am Executive Director and Counsel of UBS AG. UBS Principal Finance
LLC, a Delaware limited liability company ("UBSPF"), is a wholly owned
subsidiary of UBS AG. I have been asked to deliver this opinion in connection
with (i) the sale by UBS Real Estate Investments Inc. ("UBSREI") and the
purchase by Structured Asset Securities Corporation II ("SASC") of certain
multi-family and commercial mortgage loans, pursuant to a Mortgage Loan Purchase
Agreement, dated as of October 25, 2005 (the "Agreement"), by and among SASC, as
purchaser, UBSREI, as seller, and UBSPF, as additional party. Capitalized terms
used and not otherwise defined herein have the meanings given to them in the
Agreement.
I, or others under my supervision, have examined such documents as I
believe are necessary or appropriate for the purposes of this opinion, including
the certificate of formation, incumbency resolution and limited liability
company agreement adopted by the members of UBSPF and the Agreement and all
exhibits thereto. In reaching such opinions, I have assumed without
investigation, except as expressly set forth below, that there are no facts
inconsistent with the assumptions made in paragraphs A through D below.
A. All signatures of parties, other than UBSPF, on all documents are
genuine. Each person executing any such instrument, document or agreement,
whether individually or on behalf of a firm or other business entity, other than
UBSPF, is duly authorized to do so.
B. All documents submitted as original are authentic, and all
photostatic copies, and all copies certified by a governmental custodian or a
party to the transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf of a
business entity, are legally competent.
Exh C-2-1
D. All other parties to documents, other than UBSPF, have the
requisite power and authority to consummate the transactions contemplated by the
Agreement and to execute and deliver the applicable documents.
Based on my review of the foregoing and such other considerations of
law and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
1. The Agreement has been duly authorized, executed and delivered by
UBSPF.
2. UBSPF is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the requisite power and authority to enter into and perform its obligations
under the Agreement.
3. The execution, delivery and performance of the terms of the
Agreement will not result in the breach or violation of or a default under any
material order or decree of any court, regulatory body, administrative agency or
governmental body having jurisdiction over UBSPF and known to me as being
applicable to UBSPF.
4. There is no action, suit or proceeding against, or investigation
of, UBSPF pending or, to my knowledge, threatened against UBSPF before any
court, administrative agency or other tribunal which, either individually or in
the aggregate, (a) asserts the invalidity of the Agreement, (b) seeks to prevent
the consummation of any of the transactions contemplated by the Agreement or (c)
would materially and adversely affect (i) the performance by UBSPF of its
obligations under, or the validity or enforceability of, the Agreement, or (ii)
any rights with regard to the Mortgaged Properties or the Mortgage Loans.
5. No consent, approval, authorization or order of, and no filing or
registration with, any court or governmental agency or regulatory body, of which
I have actual knowledge, the absence of which would have a material adverse
effect on UBSPF or the transactions contemplated by the Agreement, is required
on the part of UBSPF for the execution, delivery or performance by UBSPF of the
Agreement, except those which have been obtained and are in full force and
effect.
6. The execution, delivery and performance by UBSPF of, and the
consummation of the transactions contemplated by, the Agreement do not and will
not result in a breach of any term or provision of the certificate of formation
or limited liability company agreement of UBSPF or in a breach of, constitute a
default under, require any consent under, or result in the acceleration or
require prepayment of any indebtedness pursuant to the terms of, any agreement
or instrument, of which I have actual knowledge, to which UBSPF is a party or by
which it is bound or to which it is subject, or result in the creation or
imposition of any lien upon any property of UBSPF pursuant to the terms of any
such agreement or instrument, any of which occurrences, either in any one
instance or in the aggregate, would call into question the validity of the
Agreement or be reasonably likely to impair materially the ability of UBSPF to
perform under the terms of the Agreement.
Exh C-2-2
In addition to the qualifications set forth above, the opinions herein
are also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the opinions
expressed herein concern only the laws of the State of New York, as currently in
effect, the limited liability company law of the State of Delaware, as currently
in effect, and solely with respect to paragraphs 3 and 4 above, the federal laws
of the United States of America, as currently in effect.
2. I assume no obligation to supplement this opinion if, after the
date hereof, any applicable laws change or I become aware of any facts that
might change the opinions set forth herein.
3. The opinions are limited to the matters set forth in this letter.
No other opinions should be inferred beyond the matters expressly stated.
The opinions expressed in this letter may be relied upon solely by the
addressees hereof solely with respect to the transactions described in the
Agreement, and may not be relied upon by any other person or entity, without my
specific prior written consent.
Sincerely,
Xxxx Xxxxxx
Executive Director
Exh C-2-3
SCHEDULE A
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Standard & Poor's Rating Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Exh C-2-4
EXHIBIT D
NONE
