EXECUTION COPY
UBS MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of April 17, 2008 (the
"Agreement"), between UBS Real Estate Securities Inc. (together with its
successors and permitted assigns hereunder, the "Seller") 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 directly or
indirectly evidenced by multiple classes (each, a "Class") of mortgage
pass-through certificates (the "Certificates") to be identified as the LB-UBS
Commercial Mortgage Trust 2008-C1, Commercial Mortgage Pass-Through
Certificates, Series 2008-C1. One or more "real estate mortgage investment
conduit" ("REMIC") elections will be made with respect to the Trust Fund. The
Certificates will be issued pursuant to a Pooling and Servicing Agreement, to be
dated as of April 11, 2008 (the "Pooling and Servicing Agreement"), between the
Purchaser, as depositor (the "Depositor"), Wachovia Bank, National Association,
as master servicer (the "Master Servicer"), CWCapital Asset Management LLC, as
special servicer (the "Special Servicer"), and LaSalle Bank National
Association, as trustee (the "Trustee"). Capitalized terms used but not defined
herein have the respective meanings set forth in the Pooling and Servicing
Agreement, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with Xxxxxx Brothers
Inc. ("Xxxxxx"), UBS Securities LLC ("UBS-SEC") and Banc of America Securities
LLC ("BOA" and, together with Xxxxxx and UBS-SEC in such capacity, the
"Underwriters"), whereby the Purchaser will sell to the Underwriters all of the
Certificates that are to be registered under the Securities Act of 1933, as
amended (the "Securities Act"). The Purchaser has also entered into a
Certificate Purchase Agreement (the "Certificate Purchase Agreement"), dated as
of the date hereof, with Xxxxxx and UBS-SEC (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,
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 $516,747,893 (the "Initial UBS Pool Balance") as of the
close of business on the Cut-off Date, after giving effect to any and all
payments of principal due thereon on or before such date, whether or not
received. The purchase and sale of the Mortgage Loans shall take place on April
29, 2008 or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The consideration for the Mortgage Loans shall
consist of: (A) a cash amount equal to a percentage (mutually agreed upon by the
parties hereto) of the Initial UBS Pool Balance, plus interest accrued on each
Mortgage Loan at the related Mortgage Rate (net of the related Administrative
Cost Rate), for the period from and including April 11, 2008 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 51.30992% Percentage Interest in each of the Class R-I, Class
R-II and Class R-III Certificates (all such Residual Interest Certificates, the
"Seller's Residual Interest Certificates").
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 and satisfaction or waiver of the
conditions to closing set forth in Section 8, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller (other than the
primary servicing rights) in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of the
initial Purchaser, deliver to and deposit with (i) the Trustee or a Custodian
appointed thereby, a Mortgage File for each Mortgage Loan in accordance with the
terms of, and conforming to the requirements set forth in, the Pooling and
Servicing Agreement, with copies of each Mortgage File to be delivered by the
Trustee to, upon request, the Master Servicer (at the expense of the Trustee),
within 10 Business Days of such request; and (ii) the Master Servicer (or, at
the direction of the Master Servicer, to the appropriate Sub-Servicer) or, in
the case of a Mortgage Loan that is an Outside Serviced Trust Mortgage Loan (a
"Seller Outside Serviced Mortgage Loan"), the applicable Outside Servicer, all
unapplied Escrow Payments and Reserve Funds in the possession or under the
control of the Seller that relate to the Mortgage Loans. In addition, the Seller
shall, in the case of each Seller Outside Serviced Mortgage Loan, deliver to and
deposit with the Master Servicer, within 30 days of the Closing Date, a copy of
the mortgage file that was delivered to the related Outside Trustee under the
related Non Trust Mortgage Loan Securitization Agreement.
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(d) The Seller shall retain, with respect to each Mortgage Loan
(except in the case of a Seller Outside Serviced Mortgage Loan), an Independent
third party (the "Recording Agent"), through which it shall: (i) as and in the
manner provided in the Pooling and Servicing Agreement (and in any event within
45 days following the later of the Closing Date and the date on which all
necessary recording information is available to the subject Recording Agent),
submit for recording, or cause the submission for recording, in the applicable
public office for real property records each related assignment of Mortgage and
assignment of Assignment of Leases, in favor of, and delivered under clause
(a)(iv) of the definition of "Mortgage File" to the Trustee, and (ii) cause each
such assignment of Mortgage and assignment of Assignment of Leases to be
delivered to the Trustee following its return by the applicable public recording
office; provided that, in those instances where the public recording office
retains the original assignment of Mortgage or assignment of Assignment of
Leases, the Trustee shall obtain a certified copy of the recorded original. 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) and at the expense of the Seller, the Trustee shall forward to the
Master Servicer a copy of any of the aforementioned assignments of Mortgage
and/or assignments of Assignment of Leases that have been received by the
Trustee. Notwithstanding the foregoing, the Seller may request the Trustee to
submit for recording any of the assignments of Mortgage or assignments of
Assignment of Leases referred to in this paragraph, and in such event, the
Seller shall cause any such unrecorded document to be delivered to the Trustee.
If any such assignment of Mortgage and/or assignment of Assignment of
Leases referred to in the preceding paragraph is lost or returned unrecorded
because of a defect therein, then the Seller shall prepare or cause the
preparation of a substitute therefor or cure such defect, as the case may be,
and the Seller shall deliver such substitute or corrected document or instrument
to the Trustee (or, if the Mortgage Loan is then no longer subject to the
Pooling and Servicing Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all such
recording and delivery contemplated in the preceding two paragraphs, including,
without limitation, any out-of-pocket costs and expenses that may be incurred by
the Trustee in connection with any such recording or delivery performed by the
Trustee at the Seller's request and the fees of the Recording Agent.
In addition to the foregoing, pursuant to the Pooling and Servicing
Agreement, the Trustee shall retain an Independent Person (such Person, the
"Filing Agent"), pursuant to a letter agreement dated the Closing Date (the
"Filing Letter Agreement") between the Trustee, the Payee, the Depositor and the
Seller, and the Trustee shall, as and to the extent set forth in the Filing
Letter Agreement at the expense of Cadim TACH Inc. (the "Payee"), with respect
to each Mortgage Loan (other than a Seller Outside Serviced Mortgage Loan),
through the Filing Agent: (i) promptly (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 such Filing Agent) prepare and file, in the
appropriate public office for UCC Financing Statements, an assignment of each
UCC Financing Statement delivered by the Seller (with respect to each Mortgage
Loan other than a Seller Outside Serviced Mortgage Loan), pursuant to clause
(a)(xiv) of the definition of "Mortgage File" or otherwise to the Trustee; and
(ii) cause each such assignment of UCC Financing Statement to be delivered to
the Trustee following its return by the appropriate public filing office for UCC
Financing Statements, 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 such 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). Each assignment of UCC Financing Statement referred to in the prior
sentence
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that is filed by or on behalf of the Trustee shall reflect that the file copy
thereof should be returned to the Trustee or its agent following filing. The
Seller shall reasonably cooperate with the Trustee (and the Filing Agent) with
respect to the filing of the assignments of UCC Financing Statements as
described in this paragraph and shall forward to the Trustee filing
confirmation, if any, received by the Seller in connection with assignments of
UCC Financing Statements filed in accordance with this paragraph.
Notwithstanding the foregoing, to the extent the Trustee provides the Payee,
pursuant to the Filing Letter Agreement, with an invoice for the expenses (i)
reasonably to be incurred in connection with the preceding paragraph and (ii)
required to be paid by the Payee pursuant to the Filing Letter Agreement, and
such expenses are not paid by the Payee in advance of such filings, the Trustee,
at the expense of the Seller, shall only be required to cause the Filing Agent
to file the assignments of UCC Financing Statements with respect to Mortgage
Loans secured by hotel or hospitality properties.
(e) With respect to any Mortgage Loan (other than a Seller Outside
Serviced Mortgage Loan), the Seller shall, within 45 days of the Closing Date,
deliver or caused to be delivered to the Master Servicer (or, at the direction
of the Master Servicer, to the appropriate Sub-Servicer) the following documents
(other than any document that constitutes part of the Mortgage File for such
Mortgage Loan): copies of any final appraisal, final survey, final engineering
report, final environmental report, opinion letters of counsel to the related
mortgagor delivered in connection with the closing of such Mortgage Loan, escrow
agreements, reserve agreements, organization documentation for the related
mortgagor, organizational documentation for any related guarantor or indemnitor,
if the related guarantor or indemnitor is an entity, insurance certificates or
insurance review reports, leases for tenants representing 10% or more of the
annual income with respect to the related Mortgaged Property, final seismic
report and property management agreements, rent roll, property operating
statement and financial statements for the related guarantor or indemnitor, cash
management or lockbox agreement, zoning letters or zoning reports and the
documents, if any, specifically set forth on Exhibit C hereto (collectively, the
"Mortgage Origination Documents"), but in each case, only if the subject
document (a) was in fact obtained in connection with the origination of such
Mortgage Loan, (b) relates to the administration or servicing of such Mortgage
Loan, (c) is reasonably necessary for the ongoing administration and/or
servicing of such Mortgage Loan by the Master Servicer or Special Servicer in
connection with its duties under the Pooling and Servicing Agreement, and (d) is
in the possession or under the control of the Seller; 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
the Pooling and Servicing Agreement, with regard to each Mortgage Loan (other
than a Seller Outside Serviced Mortgage Loan) that is secured by the interests
of the related Mortgagor in a hospitality property (identified on Schedule VI to
the Pooling and Servicing Agreement) and each Mortgage Loan (other
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than a Seller Outside Serviced Mortgage Loan) that has a related guaranty of
payment or 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 guaranty of payment or letter
of credit. Further, in the event, with respect to a Mortgage Loan (other than a
Seller Outside Serviced Mortgage Loan) with a related letter of credit, the
Master Servicer determines that a draw under such letter of credit has become
necessary under the terms thereof prior to the assignment of such letter of
credit having been effected in accordance with Section 3.01(e) of the Pooling
and Servicing Agreement, the Seller shall, upon the written direction of the
Master Servicer, use its best efforts to make such draw or to cause such draw to
be made on behalf of the Trustee.
(h) Pursuant to the Pooling and Servicing Agreement, the Master
Servicer shall review the documents with respect to each Mortgage Loan delivered
by the Seller pursuant to or as contemplated by Section 2(e) and provide the
Seller with a certificate (the "Master Servicer Certification") within 90 days
of the Closing Date acknowledging: (i) its (or, if the Master Servicer has
directed that such documents be delivered only to the applicable Sub-Servicer,
the applicable Sub-Servicer's) receipt as of the date of the Master Servicer
Certification of such documents actually received, provided that such review
shall be limited to identifying the document received, the Mortgage Loan to
which it purports to relate, that it appears regular on its face and that it
appears to have been executed (where appropriate); and (ii) in the event the
Seller has, in its sole discretion, elected to deliver a Mortgage Loan Checklist
(as defined in Section 5(b)(i)) with respect to any Mortgage Loan, its (or the
appropriate Sub-Servicer's) receipt as of the date of the Master Servicer
Certification of such Mortgage Loan Checklist, provided that, if the Seller
delivers a Mortgage Loan Checklist, as referred to in this clause (ii), on or
prior to the 90th day following the Closing Date, then the Master Servicer may
instead deliver the Master Servicer Certification within the later of (x) 90
days of the Closing Date and (y) five (5) Business Days of its receipt of such
Mortgage Loan Checklist. Notwithstanding anything to the contrary set forth
herein, to the extent the Seller has not been notified in writing of its failure
to deliver any document with respect to a Mortgage Loan required to be delivered
pursuant to or as contemplated by Section 2(e) prior to the first anniversary of
the date of the Master Servicer Certification, the Seller shall have no
obligation to provide such document.
(i) In addition, on the Closing Date, the Seller shall deliver to the
Master Servicer for deposit in the Pool Custodial Account the Initial Deposit
relating to each Mortgage Loan that is an Initial Deposit Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is duly organized or formed, as the case may be,
validly existing and in good standing as a legal entity under the laws of
the State of Delaware and possesses all requisite authority, power,
licenses, permits and franchises to carry on its business as currently
conducted by it and to execute, deliver and comply with its obligations
under the terms of this Agreement.
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(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of creditors' rights in general, and
(B) general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's organizational documents, (B)
violate any law or regulation or any administrative decree or order to
which the Seller is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is bound.
(iv) The Seller 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 Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or have consequences
that would materially and adversely affect its performance hereunder.
(v) The Seller 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
Seller's reasonable and good faith judgment, materially and adversely
affect the ability of the Seller 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 Seller or the performance by the
Seller of its obligations under this Agreement.
(vi) Except for the recordation and/or filing of assignments and
other transfer documents with respect to the Mortgage Loans, as
contemplated by Section 2(d), no consent, approval, authorization or order
of, registration or filing with, or notice to, any court or governmental
agency or body, is required for the execution, delivery and performance by
the Seller of or compliance by the Seller with this Agreement or the
consummation of the transactions contemplated by this Agreement; and no
bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would, in the Seller's good
faith and reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement.
(viii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Seller are pending or contemplated.
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In addition, the Seller hereby further represents and warrants to, and
covenants with, the Purchaser, as of the date hereof, that:
(i) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of the
Mortgage Loans to the Purchaser in exchange for the consideration specified
in Section 1. In connection with the foregoing, the Seller shall cause all
of its records to reflect such transfer as a sale (as opposed to a secured
loan). The consideration received by the Seller upon the sale of the
Mortgage Loans to the Purchaser will constitute at least reasonably
equivalent value and fair consideration for the Mortgage Loans. The Seller
will be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller
is not selling the Mortgage Loans to the Purchaser with any intent to
hinder, delay or defraud any of the creditors of the Seller. After giving
effect to its transfer of the Mortgage Loans to the Purchaser, as provided
herein, the value of the Seller's assets, either taken at their present
fair saleable value or at fair valuation, will exceed the amount of the
Seller's debts and obligations, including contingent and unliquidated debts
and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct
its business. The Mortgage Loans do not constitute all or substantially all
of the assets of the Seller. The Seller does not intend to, and does not
believe that it will, incur debts or obligations beyond its ability to pay
such debts and obligations as they mature.
(ii) The Seller will acquire the Seller's Residual Interest
Certificates for its own account and not with a view to, or sale or
transfer in connection with, any distribution thereof, in whole or in part,
in any manner that would violate the Securities Act or any applicable state
securities laws.
(iii) The Seller understands that (A) the Seller's Residual
Interest Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (B) neither the Purchaser nor any other party is obligated
so to register or qualify the Seller's Residual Interest Certificates and
(C) neither the Seller's Residual Interest Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (1) registered pursuant to the Securities Act and registered
or qualified pursuant to any applicable state securities laws or (2) sold
or transferred in a transaction which is exempt from such registration and
qualification and the Certificate Registrar has received the certifications
and/or opinions of counsel required by the Pooling and Servicing Agreement.
(iv) The Seller understands that it may not sell or otherwise
transfer the Seller's Residual Interest Certificates, any security issued
in exchange therefor or in lieu thereof or any interest in the foregoing
except in compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has or, as of the Closing Date,
will have carefully reviewed, and that the Seller's Residual Interest
Certificates will bear legends that identify the transfer restrictions to
which such Certificates are subject.
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(v) Neither the Seller nor anyone acting on its behalf has (A)
offered, transferred, pledged, sold or otherwise disposed of any Seller's
Residual Interest Certificate, any interest in a Seller's Residual Interest
Certificate or any other similar security to any person in any manner, (B)
solicited any offer to buy or accept a transfer, pledge or other
disposition of any Seller's Residual Interest Certificate, any interest in
a Seller's Residual Interest Certificate or any other similar security from
any person in any manner, (C) otherwise approached or negotiated with
respect to any Seller's Residual Interest Certificate, any interest in a
Seller's Residual Interest Certificate or any other similar security with
any person in any manner, (D) made any general solicitation by means of
general advertising or in any other manner, or (E) taken any other action,
that (in the case of any of the acts described in clauses (A) through (E)
above) would constitute a distribution of the Seller's Residual Interest
Certificates under the Securities Act, would render the disposition of the
Seller's Residual Interest Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Seller's Residual Interest Certificates pursuant
thereto. The Seller will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to the Seller's Residual Interest Certificates, any
interest in the Seller's Residual Interest Certificates or any other
similar security.
(vi) The Seller has been furnished with all information regarding
(A) the Purchaser, (B) the Seller's Residual Interest Certificates and
distributions thereon, (C) the nature, performance and servicing of the
Other Loans, (D) the Pooling and Servicing Agreement and the Trust Fund,
and (E) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act or (b) an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and (7)
of Rule 501(a) under the Securities Act or an entity in which all its
equity owners are "accredited investors" as defined in such paragraphs and
has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the
Seller's Residual Interest Certificates. The Seller has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Seller is able to bear the economic
risks of such an investment and can afford a complete loss of such
investment.
(viii) The Seller is not a Plan and is not directly or indirectly
acquiring the Seller's Residual Interest Certificates on behalf of, as
named fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a
Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or as of such other date
expressly set forth therein, each of the representations and warranties set
forth on Exhibit B hereto.
(c) The Seller intends to transfer the Seller's Residual Interest
Certificates to Citigroup Global Markets Inc. 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
Citigroup Global Markets Inc. upon initial issuance.
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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 as of the
date hereof that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to
acquire the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser and, assuming due authorization,
execution and delivery hereof by the Seller, constitutes a legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforcement may be limited by (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of creditors' rights in general, and
(B) general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of
this Agreement will not (A) violate the Purchaser's organizational
documents, (B) violate any law or regulation or any administrative decree
or order to which the Purchaser is subject or (C) constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Purchaser is a party or by which
the Purchaser is bound.
(iv) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required for the execution, delivery
and performance by the Purchaser of or compliance by the Purchaser with
this Agreement, or the consummation by the Purchaser of any transaction
described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1.
SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller receives written notice with respect to any Mortgage
Loan (i) that any document constituting a part of the related Mortgage File
pursuant to clauses (a)(i) through (a)(xiii) (or, in the case of a Seller
Outside Serviced Mortgage Loan, clause(b)(i)) of the definition of Mortgage File
or a document, if any, specifically set forth on Exhibit D hereto, has not been
executed (if applicable) or is missing (a "Document Defect") or (ii) of a breach
of any of the Seller's representations and warranties
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made pursuant to Section 3(b) hereof (each such breach, a "Breach") relating to
any Mortgage Loan, and such Document Defect or Breach, as of the date specified
in Section 5(b)(ii) 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.
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 90 days after (1) the Seller and the Purchaser have agreed upon the
existence of such Material Document Defect or Material Breach or (2) a court of
competent jurisdiction makes a final non-appealable determination that a
Material Document Defect or Material Breach exists, or (B) in the case of a
Material Document Defect or Material Breach that affects whether a Mortgage Loan
was, as of the Closing Date, is or will continue to be a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than 90 days following the discovery by any party of such Material Document
Defect or Material Breach (either such 90-day period referred to in the case of
clause (A) or (B) above, as applicable, the "Initial Resolution Period"): (i)
cure such Material Document Defect or Material Breach, as the case may be, in
all material respects (which cure shall include payment of any out-of-pocket
expenses that are reasonably incurred and directly attributable to pursuing such
a claim based on such Material Document Defect or Material Breach associated
therewith), or (ii) if such Material Document Defect or Material Breach, as the
case may be, cannot be cured within the Initial Resolution Period, repurchase
the affected Mortgage Loan (or the related Mortgaged Property) from, and in
accordance with the directions of, the Purchaser or its designee, at a price
equal to the Purchase Price; provided that if (a) such Material Breach or
Material Document Defect, as the case may be, is capable of being cured but not
within the applicable Initial Resolution Period, (b) any such Material Breach or
Material Document Defect, as the case may be, does not affect whether the
Mortgage Loan was, as of the Closing Date, is or will continue to be a Qualified
Mortgage, (c) the Seller has commenced and is diligently proceeding with the
cure of such Material Breach or Material Document Defect, as the case may be,
within the applicable Initial Resolution Period, and (d) the Seller shall have
delivered to the Purchaser a certification executed on behalf of the Seller by
an officer thereof confirming that such Material Breach or Material Document
Defect, as the case may be, is not capable of being cured within the applicable
Initial Resolution Period, setting forth what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller anticipates that
such Material Breach or Material Document Defect, as the case may be, will be
cured within an additional period not to exceed 90 days beyond the end of the
Initial Resolution Period then the Seller shall have such additional 90-day
period, the "Resolution Extension Period"), to complete such cure or, failing
such, to repurchase the affected Mortgage Loan (or the related Mortgaged
Property); and provided, further, that, if any such Material Document Defect is
still not cured after the Initial Resolution Period and any such 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.
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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) (i) Provided that the Seller provides a materially complete and
accurate list of the Mortgage Origination Documents applicable to each Mortgage
Loan (a "Mortgage Loan Checklist") within 90 days of the Closing Date, then all
Seller/Depositor Notifications relative to Material Document Defects with
respect to such Mortgage Loan must be given within 12 months of the first
anniversary of the later of (a) the initial Custodial Certification given
pursuant to the Pooling and Servicing Agreement and (b) the date of delivery of
the related Mortgage Loan Checklist. Nothing in this Section 5(b)(i) shall be
construed to obligate the Seller to deliver a Mortgage Loan Checklist with
respect to any Mortgage Loan and in the event the Seller, in its sole
discretion, delivers a Mortgage Loan Checklist in respect of any Mortgage Loan,
the delivery thereof shall not give rise to any liability whatsoever on the part
of the Seller to the Purchaser, the Trustee or any other Person.
(ii) Provided that any Seller/Depositor Notification with respect
to a Material Document Defect or Material Breach is received by the Seller
in accordance with the provisions of the Pooling and Servicing Agreement,
within 24 months of the Closing Date, the material and adverse effect of
the related Document Defect or Breach shall be determined as of the date of
the Pooling and Servicing Agreement. After the expiration of 24 months
following the Closing Date, the material and adverse effect of any Document
Defect or Breach that was not the subject of another Seller/Depositor
Notification received by the Seller (in accordance with the provisions of
the Pooling and Servicing Agreement) within 24 months of the Closing Date,
shall be determined as of the date of such Seller/Depositor Notification.
(iii) In the event the Seller is obligated to repurchase any
Mortgage Loan pursuant to this Section 5, such obligation shall extend to
any successor REO Mortgage Loan with respect thereto as to which (A) the
subject Material Breach existed as to the subject predecessor Mortgage Loan
prior to the date the related Mortgaged Property became an REO Property or
within 90 days thereafter, and (B) as to which the Seller had received, no
later than 90 days following the date on which the related Mortgaged
Property became an REO Property, a Seller/Depositor Notification from the
Trustee regarding the occurrence of the applicable Material Breach and
directing the Seller to repurchase the subject Mortgage Loan.
(c) If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Seller as contemplated
by Section 5(a), then, prior to the subject repurchase, the Seller or its
designee shall use reasonable efforts, subject to the terms of the related
Mortgage Loans, to prepare and, to the extent necessary and appropriate, have
executed by the
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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 any one or more Mortgage Loans in such Cross-Collateralized Group, and
(ii) the application of remedies, such Cross-Collateralized Group shall be
treated as a single Mortgage Loan.
(d) It shall be a condition to any repurchase of a Mortgage Loan by
the Seller pursuant to this Section 5 that the Purchaser shall have executed and
delivered such instruments of transfer or assignment then presented to it by the
Seller (or as otherwise required to be prepared, executed and delivered under
the Pooling and Servicing Agreement), in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Mortgage Loan (including any property acquired in respect thereof or proceeds of
any insurance policy with respect thereto), to the extent that such ownership
interest was transferred to the Purchaser hereunder. If any Mortgage Loan is to
be repurchased as contemplated by this Section 5, the Seller shall amend the
Mortgage Loan Schedule to reflect the removal of such Mortgage Loan and shall
forward such amended schedule to the Purchaser.
(e) Any repurchase of a Mortgage Loan pursuant to this Section 5 shall
be on a whole loan, servicing released basis. The Seller shall have no
obligation to monitor the Mortgage Loans regarding the existence of a Breach or
Document Defect. It is understood and agreed that the obligations of the Seller
set forth in this Section 5 constitute the sole remedies available to the
Purchaser with respect to any Breach or Document Defect.
(f) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Seller set forth
in, or made pursuant to, paragraph (xlviii) of Exhibit B to this Agreement,
specifically relating to whether or not the Mortgage Loan documents or any
particular Mortgage Loan document for any Mortgage Loan requires the related
Mortgagor to bear the reasonable costs and expenses associated with the subject
matter of such representation or warranty, as set forth in such representation
or warranty, then the Purchaser or its designee will direct the Seller in
writing to wire transfer to the Custodial Account, within 90 days of receipt of
such direction, the amount
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of any such reasonable costs and expenses incurred by the Trust that (i) are due
from the Mortgagor, (ii) otherwise would have been required to be paid by the
Mortgagor if such representation or warranty with respect to such costs and
expenses had in fact been true, as set forth in the related representation or
warranty, (iii) have not been paid by the Mortgagor, (iv) are the basis of such
Breach and (v) constitute "Covered Costs". Upon payment of such costs, the
Seller shall be deemed to have cured such Breach in all respects. Provided that
such payment is made, this paragraph describes the sole remedy available to the
Purchaser regarding any such Breach, regardless of whether it constitutes a
Material Breach, and the Seller shall not be obligated to otherwise cure such
Breach or repurchase the affected Mortgage Loan under any circumstances. Amounts
deposited in the Pool Custodial Account pursuant to this paragraph shall
constitute "Liquidation Proceeds" for all purposes of the Pooling and Servicing
Agreement (other than Section 3.11(c) of the Pooling and Servicing Agreement).
(g) Subject to Section 5(f) and the last three sentences of this
paragraph, if the Seller determines that a Material Breach (other than a
Material Breach of a representation or warranty on the part of the Seller set
forth in and made pursuant to paragraph (xvii) of Exhibit B to this Agreement)
or a Material Document Defect with respect to a Mortgage Loan is not capable of
being cured in accordance with Section 5(a), then in lieu of repurchasing such
Mortgage Loan the Seller may, at its sole option, pay a cash amount equal to the
loss of value (each such payment, a "Loss of Value Payment") with respect to
such Mortgage Loan, which loss of value is directly attributed to such Material
Breach or Material Document Defect, as the case may be. The amount of each such
Loss of Value Payment shall be determined either (i) by mutual agreement of the
Special Servicer on behalf of the Trust with respect to the subject Material
Breach or Material Document Defect, as the case may be, and the Seller, or (ii)
by judicial decision; provided that, in the event there is a legal action for
determining the existence of a Material Breach or a Material Document Defect
with respect to any Mortgage Loan, such legal action must also include a
determination of the amount of the loss of value to such Mortgage Loan directly
attributed to such Material Breach or such Material Document Defect, as the case
may be. Provided that such payment is made, this paragraph describes the sole
remedy available to the Purchaser regarding any such Material Breach or Material
Document Defect and the Seller shall not be obligated to otherwise cure such
Material Breach or Material Document Defect or repurchase the affected Mortgage
Loan based on such Material Breach or Material Document Defect under any
circumstances. Notwithstanding the foregoing provisions of this Section 5(g), if
95% or more of the loss of value to a Mortgage Loan was caused by a Material
Breach or Material Document Defect, which Material Breach or Material Document
Defect is not capable of being cured, this Section 5(g) shall not apply and the
Seller shall be obligated to repurchase the affected Mortgage Loan at the
applicable Purchase Price in accordance with Section 5(a). Furthermore, the
Seller shall not have the option of delivering Loss of Value Payments in
connection with any Material Breach relating to a Mortgage Loan's failure to be
a Qualified Mortgage. In the event there is a Loss of Value Payment made by the
Seller in accordance with this Section 5(g), the amount of such Loss of Value
Payment shall be deposited into the Loss of Value Reserve Fund to be applied in
accordance with Section 3.05(e) of the Pooling and Servicing Agreement.
In the event the amount of any Loss of Value Payment is determined by
judicial decision, then such Loss of Value Payment shall also include the
payment of any costs and expenses (including costs incurred in establishing the
amount of any related loss of value to the subject Mortgage Loan, 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,
in the event the Seller tenders a loss of value payment in a specified amount in
connection
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with a Material Breach or Material Document Defect, as the case may be, prior to
the institution of legal proceedings and that offer is rejected and an amount
equal to or less than the loss of value payment originally tendered by the
Seller is ultimately determined by judicial decision to be the actual amount of
the Loss of Value Payment attributed to such Material Breach or Material
Document Defect, as the case may be, then that Loss of Value Payment shall not
include the payment of any costs or expenses incurred 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 judicial decision to be the actual Loss of
Value Payment attributable to such Material Document Defect or Material Breach,
then that Loss of Value Payment shall also include the payment of any costs or
expenses reasonably incurred in good faith in enforcing the rights of the Trust
against the Seller with respect to the subject Material Breach or Material
Document Defect, as the case may be; and provided, further, that, if the Seller
tenders a loss of value payment in connection with a Material Breach or Material
Document Defect, as the case may be, in a specified amount, and the Special
Servicer rejects such tender and requests a greater loss of value payment
amount, and an amount in between the respective amounts tendered and requested
is ultimately determined by judicial decision to be the actual Loss of Value
Payment attributable to such Material Breach or Material Document Defect, as the
case may be, then that Loss of Value Payment shall also include the payment of
an amount equal to the product of (i) all costs and expenses reasonably incurred
in connection with that judicial determination, multiplied by (ii) a fraction,
the numerator of which is the excess of the amount determined by judicial
decision over the amount tendered by the Seller, and the denominator of which is
the excess of the amount requested by the Special Servicer over the amount
tendered by the Seller. Notwithstanding the foregoing, in the event any Loss of
Value Payment is determined by the parties hereto by mutual agreement (and not
by a judicial decision), that Loss of Value Payment shall not include any costs
and expenses incurred by the Master Servicer, the Special Servicer or the
Trustee unless such costs and expenses were specifically included in such mutual
agreement.
(h) Notwithstanding the foregoing, if there exists a Material Breach
of the representation or warranty on the part of the Seller set forth in and
made pursuant to paragraph (xvii) of Exhibit B to this Agreement, and the
subject Mortgage Loan becomes a Qualified Mortgage prior to the expiration of
the Initial Resolution Period applicable to a Material Document Defect or
Material Breach that affects whether a Mortgage Loan is a Qualified Mortgage,
and without otherwise causing an Adverse REMIC Event or an Adverse Grantor Trust
Event, then such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such Breach.
SECTION 6. Defeasance Serviced Trust Mortgage Loans; Early Defeasance
Trust Mortgage Loans.
(a) With respect to any Mortgage Loan that is a Defeasance Serviced
Trust Mortgage Loan, to the extent the related Mortgage Loan documents expressly
grant the lender or its designee the right to appoint a successor borrower (or
words of similar import) thereunder in connection with a defeasance, the
Purchaser hereby designates the Seller as its designee with respect to the
exercise of, and hereby grants to the Seller the right, in its capacity as
designee of the Purchaser as holder of the subject Serviced Trust Mortgage Loan,
to exercise, the right and/or obligation of the lender under the related
Mortgage Loan documents to appoint a "successor borrower" (as defined under the
related Mortgage
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Loan documents) or words of similar import, to hold and pledge the related
Defeasance Collateral in the event a related Mortgagor exercises its right
pursuant to the related Mortgage Loan documents to defease the subject Serviced
Trust Mortgage Loan and obtain the release of all or a portion of the related
Mortgaged Property from the lien of the related Mortgage (provided that such
rights and/or obligations as successor borrower shall be exercised in accordance
with customary terms and costs). In connection with the foregoing, if the
Purchaser or its assignee, as holder of the subject Defeasance Serviced Trust
Mortgage Loan, receives written notice from the related Mortgagor that it
intends to defease the subject Serviced Trust Mortgage Loan in accordance with
the related Mortgage Loan documents, then the Purchaser or its assignee, as the
case may be, shall send a copy of such written notice to the Seller or (if the
Seller has notified the Purchaser or such assignee, as the case may be, in
writing that it has appointed a designee and has provided such party with such
designee's contact information for any notice required in connection therewith)
the Seller's designee, promptly after receipt of such written notice. If,
however, the Master Servicer, in accordance with the Servicing Standard,
determines that neither the Seller nor its designee is performing the duties
related to the appointment of a successor borrower in a timely manner and/or in
accordance with the provisions of the related Mortgage Loan documents (after the
Seller and such designee having been provided with written notice in accordance
with this paragraph and a reasonable period of time (which shall not be less
than five (5) Business Days) to perform such duties), then the Master Servicer
(or a designee of the Master Servicer) shall, in accordance with Section 3.20(k)
of the Pooling and Servicing Agreement, itself perform those obligations under
the related Mortgage Loan documents in accordance with the Servicing Standard,
applicable law and the related Mortgage Loan documents, and thereupon the
appointment of the Seller or its designee in connection therewith shall be null
and void. In the event, with respect to a Mortgage Loan that is a Defeasance
Serviced Trust Mortgage Loan, the Seller, the Master Servicer or a designee of
the Seller or the Master Servicer actually appoints a successor borrower in
accordance with the related Mortgage Loan documents and the foregoing provisions
of this paragraph and the relevant portion or all, as applicable, of the subject
Mortgaged Property is released from the lien of the related Mortgage, then, to
the extent provided under the related Mortgage Loan documents, such successor
borrower shall succeed to all of the rights and obligations of the original
Mortgagor under such Serviced Trust Mortgage Loan. In the event the Seller, by
written notice to Purchaser or its assignee, designates a third party to
exercise its rights under this paragraph and provides contact information
therefor, the Purchaser or its designee, the Trustee and the Master Servicer
shall be entitled to rely on such notice and, in such event, all notices
required to be delivered to the Seller pursuant to this paragraph shall be
delivered to the Seller's designee.
(b) If the Purchaser or the Master Servicer notifies the Seller 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 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 a price equal to
(A) the related Purchase Price and (B) the amount, if any, by which the proceeds
from any cash defeasance deposit exceeds the related Purchase Price, in
accordance with the directions of the Master Servicer on a whole loan, servicing
released basis.
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Upon the repurchase of a Mortgage Loan that is an Early Defeasance
Trust Mortgage Loan pursuant to Section 5 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. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Xxxxxxx Xxxxxxxx & Xxxx, LLP, 2 World Financial Center,
Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement, and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement, shall be true and correct in all material respects as of the Closing
Date;
(b) Insofar as it affects the obligations of the Seller hereunder, the
Pooling and Servicing Agreement shall be in a form mutually acceptable to the
Purchaser and the Seller;
(c) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf), the Master Servicer and the Special Servicer all
documents and funds required to be delivered to the Trustee, the Master Servicer
and the Special Servicer, respectively, pursuant to Section 2 of this Agreement;
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects, and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(f) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
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All parties hereto agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) The Pooling and Servicing Agreement duly executed by the parties
thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) Certificate of the Seller, executed by a duly authorized officer
of the Seller 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 in this Agreement and 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 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 the Seller, 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 signed
this Agreement, the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein or in the Indemnification Agreement, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(f) As certified by an officer of the Seller, true and correct copies
of (i) the resolutions of the board of directors authorizing the Seller's
entering into the transactions contemplated by this Agreement and the
Indemnification Agreement, (ii) the organizational documents of the Seller, and
(iii) a certificate of good standing of the Seller, issued by the Secretary of
State of the State of Delaware not earlier than 10 days prior to the Closing
Date;
(g) A favorable opinion of Cadwalader, Xxxxxxxxxx & Xxxx ("CWT"),
special counsel to the Seller, 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;
(h) An Officer's Certificate from an officer of the Seller, in his or
her individual capacity, delivered in connection with the opinion of CWT to be
delivered pursuant to Section 8(g), in form and substance satisfactory to the
addressees of such opinion and upon which such addressees may rely;
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(i) 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;
(j) 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;
(k) A favorable opinion of in-house counsel to the Seller,
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; and
(l) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9. Costs.
The Seller shall pay its Allocable Share (or such other amount as is
agreed to by the Purchaser) of all reasonable out-of-pocket costs and expenses
incurred by the Seller, the initial Purchaser, the Underwriters, the Placement
Agents and the sellers 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. "Allocable Share" shall mean a fraction (expressed as a
percentage), the numerator of which is the aggregate outstanding principal
balance of the Mortgage Loans as of the date of determination, and the
denominator of which is the aggregate outstanding principal balance of all of
the Securitized Loans on such date of determination. In addition to the
foregoing, the Seller shall pay, upon request of the subject Outside Master
and/or Outside Special Servicer, all reasonable costs and expenses related to
the provision by the Outside Master Servicer and the Outside Special Servicer
for the Sears Tower Trust Mortgage Loan to the Depositor and any underwriters of
such opinion(s) of counsel, certifications and/or indemnification agreement(s)
related to the updated description referred in Section 3.30(a) of the related
Outside Servicing Agreement with respect to such party and in connection with
the information concerning such party in the Prospectus Supplement and/or any
other disclosure materials relating to the securitization of the Sears Tower
Trust Mortgage Loan.
SECTION 10. Grant of a Security Interest.
The parties hereto agree that it is their express intent that the
conveyance of the Mortgage Loans by the Seller to the Purchaser as provided in
Section 2 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 shall be deemed to
-18-
be a grant by the Seller to the Purchaser of a security interest in all of the
Seller's right, title and interest in and to the Mortgage Loans, and all amounts
payable to the holder of the Mortgage Loans in accordance with the terms
thereof, and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property; (iv) the
assignment to the Trustee of the interest of the Purchaser in and to the
Mortgage Loans shall be deemed to be an assignment of any security interest
created hereunder; (v) the possession by the Trustee or any of its agents,
including, without limitation, the Custodian, of the Mortgage Notes for the
Mortgage Loans, and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-313 of the applicable Uniform Commercial Code; and (vi)
notifications to persons (other than the Trustee) holding such property, and
acknowledgments, receipts or confirmations from such persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the secured party for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement; and, in
connection with the foregoing, the Seller authorizes the Purchaser to file any
and all appropriate Uniform Commercial Code financing statements.
SECTION 11. Notices.
All notices, copies, requests, consents, demands and other
communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to any party, at such
other address as shall be designated by such party in a notice hereunder to the
other parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the initial Purchaser to the Trustee).
SECTION 13. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not
-19-
invalidate or render unenforceable such provision in any other jurisdiction. To
the extent permitted by applicable law, the parties hereto waive any provision
of law which prohibits or renders void or unenforceable any provision hereof.
SECTION 14. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but which together shall constitute one and the same
agreement.
SECTION 15. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY
IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SELLER
AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY, TO THE EXCLUSION OF
ALL OTHER COURTS, WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS, TO THE
EXCLUSION OF ALL OTHER COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE
DEFENSE OF AN INCONVENIENT FORUM IN CONNECTION WITH SUCH ACTION OR PROCEEDING
COMMENCED IN SUCH NEW YORK STATE OR FEDERAL COURTS; AND (IV) AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW; PROVIDED, THAT IN THE EVENT NEITHER A NEW YORK STATE NOR 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 16. Further Assurances.
The Seller 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.
-20-
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller, the Purchaser, and their respective successors
and permitted assigns.
SECTION 18. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced. The Seller's 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 has consented to such amendment or
modification in writing.
-21-
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 SECURITIES INC.
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Director
Address for Notices:
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx, Esq.
Telecopier No.: (000) 000-0000
LB-UBS 2008-C1 UBS MORTGAGE LOAN PURCHASE AGREEMENT
PURCHASER
STRUCTURED ASSET SECURITIES
CORPORATION II
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: 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
LB-UBS 2008-C1 UBS MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(SEE ATTACHED)
Exh. A-1
CUT-OFF DATE
CONTROL BALANCE
NO. PROPERTY NAME ADDRESS CITY STATE ZIP ($)
--------------------------------------------------------------------------------------------------------------------------------
2 Chevy Chase Center 0000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000 116,628,806
3 Regions Xxxxxxx Plaza 0000 Xxxxx Xxxxxx Xxxxx Xxxxxxxxxx XX 00000 91,000,000
4 Xxxxxx Xxxxxxxxx 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000 75,250,000
5 Computer Sciences Building 0000 Xxxxxxx Xxxx Xxxxxx XX 00000 73,243,000
0 Xxxxxx Xxxxx Xxxxx 000 and Xxxxxxxx Xxxxxxx Xxxx Xxxxx Xxxxx Xxxxxxxx XX 00000 26,937,452
12 Sears Tower 000 Xxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000 20,000,000
16 Home Depot - Vallejo, CA 0000 Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000 16,000,000
17 Walgreens - North Andover SEC Turnpike and Xxxxxxx Xxxx Xxxxx Xxxxxxx XX 00000 13,390,000
00 Xxxx Xxxxxxx Xxxxxxxxxx 000 Xxxxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxx XX 00000 11,155,135
26 Banco Popular - Bronx 0000-0000 0xx Xxxxxx Xxxxx XX 00000 8,860,000
27 Walgreens - Worcester Xxxxxxx Xxxxxx & Xxxx Xxxxxx Xxxxxxxxx XX 00000 8,330,000
00 Xxxxxxxx Xxxx Xxxxxx 0000-0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 8,160,000
29 Walgreens - Staten Island 0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 7,425,000
34 Walgreens - Windham 000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 6,596,000
35 Walgreens - New Bedford NEC Xxxxxxxx Road and Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 6,564,000
36 Walgreens - Yarmouth Xxxxx 00 & Xxxxxx Xxxxxx Xxxxxxxx XX 00000 6,063,000
00 Xxxxxxxxx - Xxxxxxxxx 000 Xxxxxxx Xxxx Xxxx Xxxxxxxxx XX 00000 5,804,000
38 Walgreens - Woodbury SWC Xxxxx Xxxxxx & Xxxx Xxxxxx Xxxxxxxx XX 00000 5,760,000
44 Walgreens - Xxxxxxxx 0000 Xxxxxxx Xxxx Xxxxxxxx XX 00000 4,114,000
47 Friendly Storage 0000 Xxxx Xxxx Xxxx Xxxx Xxxxx XX 00000 3,185,000
54 0000 Xxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxxxxxxxxxx XX 00000 2,282,500
MONTHLY REMAINING REMAINING INTEREST ADMINISTRATIVE OUTSIDE
CONTROL DEBT MORTGAGE TERM TO MATURITY AMORTIZATION ACCRUAL COST SERVICING
NO. SERVICE ($) RATE (%) MATURITY (MOS.) DATE TERM (MOS.) BASIS RATE (%) FEE RATE
------------------------------------------------------------------------------------------------------------------
2 903,568 6.5200 223 11/1/2026 223 30/360 0.20175 0.00000
3 574,584 6.4900 119 3/9/2018 360 Actual/360 0.20175 0.00000
4 454,554 6.0700 117 1/11/2018 360 Actual/360 0.20175 0.00000
5 479,932 6.8500 119 3/9/2018 360 Actual/360 0.20175 0.00000
8 160,291 5.9300 116 12/11/2017 360 Actual/360 0.20175 0.00000
12 105,943 6.2695 106 2/11/2017 0 Actual/360 0.11175 0.01000
16 80,192 5.9320 115 11/9/2017 0 Actual/360 0.20175 0.00000
17 64,033 5.6600 112 8/9/2017 0 Actual/360 0.20175 0.00000
22 72,390 6.7160 115 11/9/2017 355 Actual/360 0.20175 0.00000
26 55,696 6.4475 115 11/9/2017 360 Actual/360 0.20175 0.00000
27 43,988 6.2500 119 3/9/2018 0 Actual/360 0.20175 0.00000
28 54,492 7.0370 117 1/9/2018 360 Actual/360 0.20175 0.00000
29 39,209 6.2500 119 3/9/2018 0 Actual/360 0.20175 0.00000
34 32,769 5.8800 113 9/9/2017 0 Actual/360 0.20175 0.00000
35 34,662 6.2500 119 3/9/2018 0 Actual/360 0.20175 0.00000
36 32,017 6.2500 119 3/9/2018 0 Actual/360 0.20175 0.00000
37 28,589 5.8300 113 9/9/2017 0 Actual/360 0.20175 0.00000
38 30,417 6.2500 119 3/9/2018 0 Actual/360 0.20175 0.00000
44 20,056 5.7700 108 4/11/2017 0 Actual/360 0.20175 0.00000
47 20,320 6.5900 116 12/9/2017 360 Actual/360 0.20175 0.00000
54 14,132 6.3025 118 2/9/2018 360 Actual/360 0.20175 0.00000
CONTROL OWNERSHIP PREPAYMENT ANTICIPATED ANTICIPATED ADDITIONAL
NO. INTEREST LOAN SELLER PROVISION REPAYMENT DATE REPAYMENT DATE INTEREST
--------------------------------------------------------------------------------------------------------------------------
2 Fee Simple UBS Yield Maintenance N/A N/A
3 Fee Simple UBS Defeasance N/A N/A
4 Fee Simple and Leasehold UBS Defeasance N/A N/A
5 Fee Simple UBS Defeasance N/A N/A
8 Fee Simple UBS Defeasance N/A N/A
12 Fee Simple UBS Defeasance N/A N/A
16 Fee Simple UBS Yield Maintenance/Defeasance N/A N/A
17 Fee Simple UBS Yield Maintenance/Defeasance N/A N/A
22 Fee Simple UBS Defeasance N/A N/A
26 Fee Simple UBS Defeasance N/A N/A
27 Fee Simple UBS Defeasance N/A N/A
28 Fee Simple UBS Defeasance N/A N/A
29 Fee Simple UBS Defeasance N/A N/A
34 Fee Simple UBS Defeasance N/A N/A
35 Fee Simple and Leasehold UBS Defeasance N/A N/A
36 Fee Simple UBS Defeasance N/A N/A
37 Fee Simple UBS Defeasance N/A N/A
38 Fee Simple UBS Defeasance N/A N/A
44 Fee Simple UBS Yield Maintenance/Defeasance N/A N/A
47 Fee Simple UBS Yield Maintenance N/A N/A
54 Fee Simple UBS Yield Maintenance N/A N/A
CROSS
CONTROL COLLATERALIZED
NO. GROUPS
-----------------------
2 No
3 Xx
0 Xx
0 Xx
0 Xx
00 Xx
16 No
17 Xx
00 Xx
00 Xx
00 Xx
00 Xx
00 No
34 No
35 No
36 No
37 Xx
00 Xx
00 Xx
00 Xx
00 Xx
EXHIBIT B
REPRESENTATIONS AND WARRANTIES
Except as set forth on the schedule of exceptions attached hereto as
Schedule I, the Seller hereby represents and warrants to the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or such other date
specified in the particular representation and warranty (the heading set forth
herein with respect to each representation and warranty being for the
convenience of reference only and in no way limiting, expanding or otherwise
affecting the scope or subject matter thereof), that:
(i) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct
in all material respects as of the Cut-off Date.
(ii) Legal Compliance. If such Mortgage Loan was originated by
the Seller or an Affiliate of the Seller, then, as of the date of its
origination, such Mortgage Loan complied in all material respects with, or
was exempt from, all requirements of federal, state or local law relating
to the origination of such Mortgage Loan; and, if such Mortgage Loan was
not originated by the Seller or an Affiliate of the Seller, then, to the
Seller's actual knowledge, after having performed the type of due diligence
customarily performed in the origination of comparable mortgage loans by
the Seller, as of the date of its origination, such Mortgage Loan complied
in all material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination of such Mortgage
Loan.
(iii) Ownership of Mortgage Loan. The Seller owns such Mortgage
Loan, has good title thereto, has full right, power and authority to sell,
assign and transfer such Mortgage Loan and is transferring such Mortgage
Loan free and clear of any and all liens, pledges, charges or security
interests of any nature encumbering such Mortgage Loan, exclusive of the
servicing rights pertaining thereto; no provision of the Mortgage Note,
Mortgage(s) or other loan documents relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such
Mortgage Loan to the Trustee (except in the case of a Loan Combination,
which may, pursuant to the related Co-Lender Agreement, require notice to
one or more rating agencies or another lender which, if required, has
already been provided); no governmental or regulatory approval or consent
is required for the sale of such Mortgage Loan by the Seller; and the
Seller has validly conveyed to the Trustee a legal and beneficial interest
in and to such Mortgage Loan free and clear of any lien, claim or
encumbrance of any nature.
(iv) No Holdback. The proceeds of such Mortgage Loan have been
fully disbursed (except in those cases where the full amount of such
Mortgage Loan has been disbursed but a portion thereof is being held in
escrow or reserve accounts to be released pending the satisfaction of
certain conditions relating to leasing, repairs or other matters with
respect to the related Mortgaged Property) and there is no requirement for
future advances thereunder.
(v) Loan Document Status. Each of the related Mortgage Note,
Mortgage(s), Assignment(s) of Leases, if separate from the related
Mortgage, and other agreements executed in favor of the lender in
connection therewith is the legal, valid and binding
B-1
obligation of the maker thereof (subject to the non-recourse provisions
therein and any state anti-deficiency legislation), enforceable in
accordance with its terms, except that (A) such enforcement may be limited
by (1) bankruptcy, insolvency, receivership, reorganization, liquidation,
voidable preference, fraudulent conveyance and transfer, moratorium and/or
other similar laws affecting the enforcement of creditors' rights
generally, and (2) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and (B)
certain provisions in the subject agreement or instrument may be further
limited or rendered unenforceable by applicable law, but subject to the
limitations set forth in the foregoing clause (A), such limitations will
not render that subject agreement or instrument invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided by the subject agreement or instrument.
Such Mortgage Loan is non-recourse to the Mortgagor or any other Person
except to the extent provided in certain nonrecourse carveouts and/or in
any applicable guarantees. A natural person as individual guarantor has
agreed, in effect, to be liable for all liabilities, costs, losses, damages
or expenses suffered or incurred by the mortgagee under such Mortgage Loan
by reason of or in connection with and to the extent of (A) any material
intentional fraud or material intentional misrepresentation by the related
mortgagor; (B) any breach on the part of the related mortgagor of any
environmental representations warranties and covenants contained in the
related Mortgage Loan documents; (C) misapplication or misappropriation of
rents (received after an event of default), insurance proceeds or
condemnation awards; and (D) the filing of a voluntary bankruptcy or
insolvency proceeding by the related mortgagor; provided that, instead of
any breach described in clause (B) of this paragraph, such entity (or
individual) may instead be liable for liabilities, costs, losses, damages,
expenses and claims resulting from a breach of the obligations and
indemnities of the related mortgagor under the related Mortgage Loan
documents relating to hazardous or toxic substances, radon or compliance
with environmental laws.
(vi) No Right of Rescission. As of the date of origination,
subject to the limitations and exceptions as to enforceability set forth in
paragraph (v) above, there was no valid offset, defense, counterclaim or
right to rescission, abatement of amounts due under the Mortgage Note or
diminution of amounts due under the Mortgage Note with respect to any of
the related Mortgage Note, Mortgage(s) or other agreements executed in
connection with such Mortgage Loan; and, as of the Closing Date, subject to
the limitations and exceptions as to enforceability set forth in paragraph
(v) above, there is no valid offset, defense, counterclaim or right of
rescission, abatement of amounts due under the Mortgage Note or diminution
of amounts due under the Mortgage Note with respect to any of the related
Mortgage Note, Mortgage(s) or other agreements executed in connection with
such Mortgage Loan.
(vii) Assignments. The assignment of the related Mortgage(s) and
Assignment(s) of Leases to the Trustee (or, in the case of a Seller Outside
Serviced Mortgage Loan, to the related Outside Trustee) constitutes the
legal, valid, binding and, subject to the limitations and exceptions as to
enforceability set forth in paragraph (v) above, enforceable assignment of
such documents (provided that the unenforceability of any such assignment
based on bankruptcy, insolvency, receivership, reorganization, liquidation,
moratorium and/or other similar laws affecting the enforcement of
creditors' rights generally or based on general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law) shall be a breach of this representation and warranty
only upon the declaration by a court with jurisdiction in the matter that
such assignment is to be unenforceable on such basis).
B-2
(viii) First Lien. Each related Mortgage is a valid and, subject
to the limitations and exceptions in paragraph (v) above, enforceable first
lien on the related Mortgaged Property including all improvements thereon
(other than any tenant owned improvements), which Mortgaged Property is
free and clear of all encumbrances and liens having priority over or on a
parity with the first lien of such Mortgage, except for the following
(collectively, the "Permitted Encumbrances"): (A) the lien for real estate
taxes, water charges, sewer rents and assessments not yet due and payable;
(B) covenants, conditions and restrictions, rights of way, easements and
other matters that are of public record or that are omitted as exceptions
in the related lender's title insurance policy (or, if not yet issued,
omitted as exceptions in a fully binding pro forma title policy or title
policy commitment); (C) exceptions and exclusions specifically referred to
in the related lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy or title policy commitment); (D)
other matters to which like properties are commonly subject, (E) the rights
of tenants (as tenants only) under leases (including subleases) pertaining
to the related Mortgaged Property; (F) condominium declarations of record
and identified in the related lender's title insurance policy (or, if not
yet issued, identified in a pro forma title policy or title policy
commitment); and (G) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another
Mortgage Loan contained in the same Cross-Collateralized Group; provided
that, in the case of a Combination Trust Mortgage Loan, such Mortgage also
secures the other mortgage loan(s) in the related Loan Combination. With
respect to such Mortgage Loan, such Permitted Encumbrances do not,
individually or in the aggregate, materially and adversely interfere with
the benefits of the security intended to be provided by the related
Mortgage, the current principal use or operation of the related Mortgaged
Property or the ability of the related Mortgaged Property to generate
sufficient cashflow to enable the related Mortgagor to timely pay in full
the principal and interest on the related Mortgage Note (other than a
Balloon Payment, which would require a refinancing). If the related
Mortgaged Property is operated as a nursing facility or a hospitality
property, the related Mortgage, together with any security agreement,
chattel mortgage or similar agreement and UCC financing statement, if any,
establishes and creates a first priority, perfected security interest
(subject only to any prior purchase money security interest, revolving
credit lines and any personal property leases), to the extent such security
interest can be perfected by the recordation of a Mortgage or the filing of
a UCC financing statement, in all material personal property owned by the
Mortgagor that is used in, and is reasonably necessary to, the operation of
the related Mortgaged Property, and that is located on the related
Mortgaged Property, which personal property includes, in the case of
Mortgaged Properties operated by the related Mortgagor as a nursing
facility or hospitality property, all furniture, fixtures, equipment and
other personal property located at the subject Mortgaged Property that are
owned by the related Mortgagor and reasonably necessary or material to the
operation of the subject Mortgaged Property. In the case of any Mortgage
Loan secured by a hotel, the related loan documents contain such provisions
as are necessary and UCC financing statements have been filed as necessary,
in each case, to perfect a valid first priority security interest, to the
extent such security interest can be perfected by the inclusion of such
provisions and the filing of a UCC financing statement, in the Mortgagor's
right to receive related hotel room revenues with respect to such Mortgaged
Property.
B-3
(ix) Taxes and Assessments. All taxes, governmental assessments,
water charges, sewer rents or similar governmental charges which, in all
such cases, were directly related to the related Mortgaged Property and
could constitute liens on the related Mortgaged Property prior to the lien
of the related Mortgage, together with all ground rents, that prior to the
Cut-off Date became due and payable in respect of, and materially affect,
any related Mortgaged Property have been paid or are escrowed for or are
not yet delinquent, and the Seller knows of no unpaid tax, assessment,
ground rent, water charges or sewer rent, which, in all such cases, were
directly related to the subject Mortgaged Property and could constitute
liens on the subject Mortgaged Property prior to the lien of the related
Mortgage that prior to the Closing Date became due and delinquent in
respect of any related Mortgaged Property, or in any such case an escrow of
funds in an amount sufficient to cover such payments has been established.
(x) No Material Damage. As of the date of origination of such
Mortgage Loan and, to the actual knowledge of the Seller, as of the Closing
Date, there was no pending proceeding for the total or partial condemnation
of any related Mortgaged Property that materially affects the value thereof
and such Mortgaged Property is free of material damage. Except for certain
amounts not greater than amounts which would be considered prudent by an
institutional commercial mortgage lender with respect to a similar mortgage
loan and which are set forth in the related Mortgage or other loan
documents relating to such Mortgage Loan, (and subject to any rights of the
lessor under any related Ground Lease) the related Mortgage Loan documents
provide that any condemnation awards will be applied (or, at the discretion
of the mortgagee, will be applied) to either the repair or restoration of
all or part of the related Mortgaged Property or the reduction of the
outstanding principal balance of such Mortgage Loan.
(xi) Title Insurance. Each related Mortgaged Property is covered
by an ALTA (or its equivalent) lender's title insurance policy issued by a
nationally recognized title insurance company, insuring that each related
Mortgage is a valid first lien on such Mortgaged Property in the original
principal amount of such Mortgage Loan (or, in the case of a Combination
Trust Mortgage Loan, in the original principal amount of the related Loan
Combination) after all advances of principal, subject only to Permitted
Encumbrances and, in the case of a Mortgage Loan that is part of a Loan
Combination, further subject to the fact that the related Mortgage also
secures the related Non-Trust Mortgage Loan(s) (or if such policy has not
yet been issued, such insurance may be evidenced by a binding commitment or
binding pro forma marked as binding and signed (either thereon or on a
related escrow letter attached thereto) by the title insurer or its
authorized agent) from a title insurer qualified and/or licensed in the
applicable jurisdiction, as required, to issue such policy; such title
insurance is in full force and effect, all premiums have been paid, is
freely assignable and will inure to the benefit of the Trustee (or, in the
case of a Seller Outside Serviced Mortgage Loan, the benefit of the related
Outside Trustee) as sole insured as mortgagee of record, or any such
commitment or binding pro forma is a legal, valid and binding obligation of
such insurer; no claims have been made by the Seller under such title
insurance; and neither the Seller nor any Affiliate of the Seller has done,
by act or omission, anything that would materially impair the coverage of
any such title insurance policy; such policy or commitment or binding pro
forma contains no exclusion for (or alternatively it insures over such
exclusion, unless such coverage is unavailable in the relevant
jurisdiction) (A) access to a public road, (B) that there is no material
encroachment by any improvements on the related Mortgaged Property either
to or from any adjoining property or across any easements on the related
Mortgaged Property, and (C) that the land shown on the survey materially
conforms to the legal description of the related Mortgaged Property.
B-4
(xii) Property Insurance. As of the date of its origination and,
to the Seller's actual knowledge, as of the Cut-off Date, all insurance
required under each related Mortgage (except where an investment grade
tenant or a tenant representing less than 10% of the net operating income
with respect to the related Mortgaged Property is permitted to insure or
self-insure under a lease) was in full force and effect with respect to
each related Mortgaged Property; such insurance included (A) fire and
extended perils insurance included within the classification "All Risk of
Physical Loss" or the equivalent thereof in an amount (subject to a
customary deductible) at least equal to the lesser of (1) 100% of the full
insurable value of the improvements located on such Mortgaged Property and
(2) the outstanding principal balance of such Mortgage Loan or the portion
thereof allocable to such Mortgaged Property) and, if applicable, the
related hazard insurance policies or certificates of insurance contain
appropriate endorsements to avoid application of co-insurance, (B) business
interruption or rental loss insurance for a period of not less than 12
months, (C) comprehensive general liability insurance in an amount not less
than $1 million per occurrence, (D) workers' compensation insurance (if the
related Mortgagor has employees and if required by applicable law), and (E)
if (1) such Mortgage Loan is secured by a Mortgaged Property located in the
State of California or in "seismic zone" 3 or 4 and (2) a seismic
assessment as described below revealed a maximum probable or bounded loss
in excess of 20% of the amount of the estimated replacement cost of the
improvements on such Mortgaged Property, seismic insurance; it is an event
of default under such Mortgage Loan if the above-described insurance
coverage is not maintained by the related Mortgagor (except where an
investment grade tenant or a tenant representing less than 10% of the net
operating income with respect to the related Mortgaged Property is
permitted to insure or self-insure under a lease) and the related loan
documents provide (in either a general cost and expense recovery provision
or a specific provision with respect to recovery of insurance costs and
expenses) that any reasonable out-of-pocket costs and expenses incurred by
the mortgagee in connection with such default in obtaining such insurance
coverage may be recovered from the related Mortgagor; the related Evidence
of Property Insurance and certificate of liability insurance (which may be
in the form of an Xxxxx 27 or an Xxxxx 25, respectively), or forms
substantially similar thereto, provide that the related insurance policy
may not be terminated or reduced without at least 10 days prior notice to
the mortgagee and (other than those limited to liability protection) name
the mortgagee and its successors as loss payee; no notice of termination or
cancellation with respect to any such insurance policy has been received by
the Seller; all premiums under any such insurance policy have been paid
through the Cut-off Date; the insurance policies specified in clauses (A),
(B) and (C) above are required to be maintained with insurance companies
having "financial strength" or "claims paying ability" ratings of at least
"A:VII" from A.M. Best Company or at least "BBB+" (or equivalent) from a
nationally recognized statistical rating agency (or, with respect to
certain blanket insurance policies, such other ratings as are in compliance
with S&P's applicable criteria for rating the Certificates); and, except
for certain amounts not greater than amounts which would be considered
prudent by an institutional commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Mortgage or
other loan documents relating to such Mortgage Loan, and subject to the
related exception schedules, the related Mortgage Loan documents provide
that any property insurance proceeds will be applied (or, at the discretion
of the mortgagee, will be applied) either to the repair or restoration of
all or part of the related Mortgaged Property or the
B-5
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.
(xiii) No Material Defaults. Other than payments due but not yet
30 days or more delinquent, there is (A) no material default, breach,
violation or event of acceleration existing under the related Mortgage
Note, the related Mortgage or other loan documents relating to such
Mortgage Loan, and (B), to the knowledge of the Seller, no event which,
with the passage of time or with notice and the expiration of any grace or
cure period, would constitute a material default, breach, violation or
event of acceleration under any of such documents; provided, however, that
this representation and warranty does not cover any default, breach,
violation or event of acceleration (A) that specifically pertains to or
arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Exhibit B or (B)
with respect to which: (1) the Seller has no actual knowledge and (2)
written notice of the discovery thereof is not delivered to the Seller by
the Trustee or the Master Servicer on or prior to the date occurring twelve
months after the Closing Date. The Seller has not waived, in writing or
with knowledge, any material default, breach, violation or event of
acceleration under any of such documents. Under the terms of such Mortgage
Loan, no person or party other than the mortgagee or its servicing agent
may declare an event of default or accelerate the related indebtedness
under such Mortgage Loan.
(xiv) No Payment Delinquency. As of the Closing Date, such
Mortgage Loan is not, and in the prior 12 months (or since the date of
origination if such Mortgage Loan has been originated within the past 12
months), has not been, 30 days or more past due in respect of any Monthly
Payment.
(xv) Interest Accrual Basis. Such Mortgage Loan accrues interest
on an Actual/360 Basis, an Actual/Actual Basis or a 30/360 Basis; and such
Mortgage Loan accrues interest (payable monthly in arrears) at a fixed rate
of interest throughout the remaining term thereof (except if such Mortgage
Loan is an ARD Mortgage Loan, in which case the accrual rate for interest
will increase after its Anticipated Repayment Date, and except in
connection with the occurrence of a default and the accrual of default
interest).
B-6
(xvi) Subordinate Debt. Each related Mortgage or other loan
document relating to such Mortgage Loan does not provide for or permit,
without the prior written consent of the holder of the related Mortgage
Note, any related Mortgaged Property or any direct controlling interest in
the Mortgagor to secure any other promissory note or debt (other than
another Mortgage Loan in the Trust Fund and, if such Mortgage Loan is part
of a Loan Combination, the other mortgage loan(s) that are part of such
Loan Combination, as applicable).
(xvii) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
Accordingly, either as of the date of origination or the Closing Date, the
fair market value of the real property securing such Mortgage Loan was not
less than 80% of the "adjusted issue price" (within the meaning of the
REMIC Provisions) of such Mortgage Loan. For purposes of the preceding
sentence, the fair market value of the real property securing such Mortgage
Loan was first reduced by the amount of any lien on such real property that
is senior to the lien that secures such Mortgage Loan, and was further
reduced by a proportionate amount of any lien that is on a parity with the
lien that secures such Mortgage Loan. No action that occurs by operation of
the terms of such Mortgage Loan would cause such Mortgage Loan to cease to
be a "qualified mortgage" and such Mortgage Loan does not permit the
release or substitution of collateral if such release or substitution (A)
would constitute a "significant modification" of such Mortgage Loan within
the meaning of Treasury regulations section 860G-2(b), (B) would cause such
Mortgage Loan not to be a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code (without regard to clauses (A)(i) or (A)(ii)
thereof) or (C) would cause a "prohibited transaction" within the meaning
of Section 860F(a)(2) of the Code. The related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code.
(xviii) Prepayment Consideration. Prepayment Premiums and Yield
Maintenance Charges payable with respect to such Mortgage Loan, if any,
constitute "customary prepayment penalties" within the meaning of Treasury
regulations section 1.860G-1(b)(2).
(xix) Environmental Conditions. One or more environmental site
assessments or transaction screens, or one or more updates of a previously
conducted environmental assessment or transaction screen, were performed by
an environmental consulting firm independent of the Seller and the Seller's
Affiliates with respect to each related Mortgaged Property during the
12-month period preceding the Cut-off Date, and the Seller, having made no
independent inquiry other than to review the report(s) prepared in
connection with the assessment(s), transaction screen(s) and/or update(s)
referenced herein, has no knowledge of, and has not received actual notice
of, any material and adverse environmental condition or circumstance
affecting such Mortgaged Property that was not disclosed in such report(s);
all of such environmental site assessments and transaction screens met ASTM
requirements to the extent set forth in such report; and none of the above
referenced environmental reports reveal any circumstances or conditions
that are in violation of any applicable environmental laws, or if such
report does reveal such circumstances, then (1) the same have been
remediated in all material respects, (2) sufficient funds have been
escrowed or a letter of credit, guaranty or other instrument has been
delivered for purposes of covering the estimated costs of such remediation,
(3) the related Mortgagor or other responsible party is currently taking
remedial or other appropriate action to address the environmental issue
consistent with the recommendations in such site assessment, (4) the cost
of the environmental issue relative to the value of such Mortgaged Property
was de minimis, or (5) environmental insurance has been obtained.
B-7
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.
The Seller has not taken any action with respect to such Mortgage Loan
or the related Mortgaged Property that could subject the Seller or its
successors and assigns in respect of such Mortgage Loan to liability under
CERCLA or any other applicable federal, state or local environmental law.
The related Mortgage or other loan documents require the related Mortgagor
to comply with all applicable federal, state and local environmental laws
and regulations.
(xx) Realization Against Real Estate Collateral. The related
Mortgage Note, Mortgage(s), Assignment(s) of Leases and other loan
documents securing such Mortgage Loan, if any, contain customary and,
subject to the limitations and exceptions as to enforceability in paragraph
(v) above, enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the practical realization against the
related Mortgaged Property or Properties of the principal benefits of the
security intended to be provided thereby, including realization by judicial
or, if applicable, non-judicial foreclosure.
(xxi) Bankruptcy. The related Mortgagor is not a debtor in any
bankruptcy, reorganization, insolvency or comparable proceeding; provided,
however, that this representation and warranty does not cover any such
bankruptcy, reorganization, insolvency or comparable proceeding with
respect to which: (1) the Seller has no actual knowledge and (2) written
notice of the discovery thereof is not delivered to the Seller by the
Trustee or the Master Servicer on or prior to the date occurring twelve
months after the Closing Date.
(xxii) Loan Security. Such Mortgage Loan is secured by a Mortgage
on a fee simple interest and/or a leasehold estate in a commercial property
or multifamily property, including the related Mortgagor's interest in the
improvements on the related Mortgaged Property.
B-8
(xxiii) Amortization. Such Mortgage Loan does not provide for
negative amortization unless such Mortgage Loan is an ARD Mortgage Loan, in
which case it may occur only after the Anticipated Repayment Date.
(xxiv) Whole Loan. Such Mortgage Loan is a whole loan, contains
no equity participation by the lender or shared appreciation feature and
does not provide for any contingent interest in the form of participation
in the cash flow of the related Mortgaged Property.
(xxv) Due-on-Encumbrance. Each Mortgage Loan contains provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the prior written consent of the mortgagee or
Rating Agency confirmation that an Adverse Rating Event with respect to any
Class of Certificates would not occur, any related Mortgaged Property or
any direct controlling interest in the Mortgagor is directly encumbered in
connection with subordinate financing; and except in the case of a Mortgage
Loan that is part of a Loan Combination (for which such consent has been
granted with respect to the other mortgage loan(s) in such Loan
Combination), and except for the respective Mortgage Loans secured by the
Mortgaged Properties listed on Schedule I (for which such consent has been
granted with respect to mezzanine debt), no such consent has been granted
by the Seller. To the Seller's knowledge, no related Mortgaged Property is
encumbered in connection with subordinate financing (except that each
Mortgaged Property securing a Mortgage Loan that is part of a Loan
Combination also secures the other mortgage loan(s) in such Loan
Combination); however, if the related Mortgaged Property is listed on
Schedule I, certain direct controlling equity holders in the related
Mortgagor are known to the Seller to have incurred debt secured by their
ownership interest in the related Mortgagor.
(xxvi) Due-on-Sale. Except with respect to transfers of certain
non-controlling and/or minority interests in the related Mortgagor as
specified in the related Mortgage or with respect to transfers of interests
in the related Mortgagor between immediate family members and with respect
to transfers by devise, by descent or by operation of law or otherwise upon
the death or incapacity of a person having an interest in the related
Mortgagor, each Mortgage Loan contains either (A) provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if any related Mortgaged Property or interest therein is
directly or indirectly transferred or sold without the prior written
consent of the mortgagee or rating agency confirmation, or (B) provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if any related Mortgaged Property or interest therein is
directly or indirectly transferred or sold without the related Mortgagor
having satisfied certain conditions specified in the related Mortgage with
respect to permitted transfers. The Mortgage (under either specific or
general expense provisions) requires the Mortgagor to pay all reasonable
fees and expenses associated with securing the consent or approval of the
holder of the Mortgage for all actions involving the transfer of interest
in such Mortgagor requiring such consent or approval under the Mortgage.
(xxvii) Mortgagor Concentration. Except for the respective
Mortgage Loans secured by the Mortgaged Properties listed on Schedule I,
such Mortgage Loan, together with any other Mortgage Loan made to the same
Mortgagor or to an Affiliate of such Mortgagor, does not represent more
than 5% of the Initial Pool Balance.
B-9
(xxviii) Waivers; Modifications. Except as set forth in a written
instrument included in the related Mortgage File, the (A) material terms of
the related Mortgage Note, the related Mortgage(s) and any related loan
agreement and/or lock-box agreement have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded by the
mortgagee in any manner, and (B) no portion of a related Mortgaged Property
has been released from the lien of the related Mortgage, in the case of (A)
and/or (B), to an extent or in a manner that in any such event materially
interferes with the security intended to be provided by such document or
instrument. Schedule I identifies each Mortgage Loan (if any) as to which,
since the latest date any related due diligence materials were delivered to
CWCapital Investments LLC (or its designee), there has been (in writing)
given, made or consented to a material alteration, material modification or
material assumption of the terms of the related Mortgage Note, Mortgage(s)
or any related loan agreement and/or lock-box agreement.
(xxix) Inspection. Each related Mortgaged Property was inspected
by or on behalf of the related originator during the six-month period prior
to the related origination date.
(xxx) Property Release. The terms of the related Mortgage Note,
Mortgage(s) or other loan document securing such Mortgage Loan do not
provide for the release from the lien of such Mortgage of any material
portion of the related Mortgaged Property that is necessary to the
operation of such Mortgaged Property or was given material value in the
underwriting of such Mortgage Loan at origination, without (A) payment in
full of such Mortgage Loan, (B) delivery of Defeasance Collateral in the
form of "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), (C) delivery of substitute real property collateral, or (D) payment
of a release price equal to at least 125% of the amount of such Mortgage
Loan allocated to the related Mortgaged Property subject to the release or
(E) the satisfaction of certain underwriting and legal requirements which
the Seller required in the origination of comparable mortgage loans.
(xxxi) Qualifications; Licensing; Zoning. The related Mortgagor
has covenanted in the related Mortgage Loan documents to maintain the
related Mortgaged Property in compliance in all material respects with, to
the extent it is not grandfathered under, all applicable laws, zoning
ordinances, rules, covenants and restrictions affecting the construction,
occupancy, use and operation of such Mortgaged Property, and the related
originator performed the type of due diligence in connection with the
origination of such Mortgage Loan customarily performed by such originator
in the origination of comparable mortgage loans with respect to the
foregoing matters; the Seller has received no notice of any material
violation of, to the extent is has not been grandfathered under, any
applicable laws, zoning ordinances, rules, covenants or restrictions
affecting the construction, occupancy, use or operation of the related
Mortgaged Property (unless affirmatively covered by the title insurance
referred to in paragraph (xi) above (or an endorsement thereto)); to the
Seller's knowledge (based on surveys, opinions, letters from municipalities
and/or title insurance obtained in connection with the origination of such
Mortgage Loan), no improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at the
time of origination of such Mortgage Loan lay outside the boundaries and
building restriction lines of such property, in effect at the time of
origination of such Mortgage Loan, to an extent which would have a material
adverse affect on the related Mortgagor's use and operation of such
Mortgaged Property (unless grandfathered with respect thereto or
affirmatively covered by the title insurance referred to in paragraph (xi)
B-10
above (or an endorsement thereto)), and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent.
For purposes of this paragraph, a Mortgaged Property shall be deemed
"grandfathered" with respect to any laws, zoning ordinances, rules,
covenants or restrictions affecting the construction, occupancy, use or
operation of the related Mortgaged Property, if and to the extent that any
of the construction, occupancy, use and operation of such Mortgaged
Property: (A) conformed in all material respects with such laws, zoning
ordinances, rules, covenants and restrictions affecting the improvements on
the related Mortgaged Property at the time the improvements on the related
Mortgaged Property were initially constructed or put into operation; and/or
(B) was not addressed or otherwise prohibited by any such laws, zoning
ordinances, rules, covenants and restrictions affecting the related
Mortgaged Property at the time the improvements on the related Mortgaged
Property were initially constructed or put into operation.
(xxxii) Property Financial Statements. The related Mortgagor has
covenanted in the related Mortgage Loan documents to deliver to the
mortgagee annual operating statements, rent rolls and related information
of each related Mortgaged Property and annual financial statements. If such
Mortgage Loan had an original principal balance greater than $15 million,
the related Mortgagor has covenanted to provide such operating statements,
rent rolls and related information on a quarterly basis. If such Mortgage
Loan has an original principal balance equal to or greater than $20
million, the related Mortgagor, if it obtains an audited financial
statement, is required to provide a copy thereof to the holder of such
Mortgage Loan at the related mortgagee's request.
(xxxiii) Single Purpose Entity. If such Mortgage Loan has a
Cut-off Date Balance in excess of $25 million, then the related Mortgagor
is obligated by its organizational documents and the related Mortgage Loan
documents to be a Single Purpose Entity for so long as such Mortgage Loan
is outstanding; and, if such Mortgage Loan has a Cut-off Date Balance
greater than $5 million and less than $25 million, the related Mortgagor is
obligated by its organizational documents and/or the related Mortgage Loan
documents to own the related Mortgaged Property and no other material
assets, except such as are incidental to the ownership of such Mortgaged
Property for so long as such Mortgage Loan is outstanding. For purposes of
this representation, "Single Purpose Entity" means an entity whose
organizational documents or the related Mortgage Loan documents provide
substantially to the effect that such entity: (A) is formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing such Mortgage Loan, (B) may not engage in any business
unrelated to the related Mortgaged Property or Mortgaged Properties, (C)
does not have any material assets other than those related to its interest
in and operation of such Mortgaged Property or Mortgaged Properties and (D)
may not incur indebtedness other than as permitted by the related Mortgage
or other Mortgage Loan documents. If such Mortgage Loan has an initial
principal balance of $25 million and above and the related Mortgagor is a
single member limited liability company, such Mortgagor's organizational
documents provide that such Mortgagor shall not dissolve or liquidate upon
the bankruptcy, dissolution, liquidation or death of its sole member and is
organized in a jurisdiction that provides for such continued existence and
there was obtained opinion of counsel confirming such continued existence.
If such Mortgage Loan has, or is part of a group of Mortgage Loans with
affiliated Mortgagors having, a Cut-off Date Balance equal to or greater
than 2% of the Initial Pool Balance, or if such Mortgage Loan has an
original principal balance equal to or greater than $25 million, there was
obtained an opinion of counsel regarding non-consolidation of such
Mortgagor.
B-11
(xxxiv) Advancing of Funds. No advance of funds has been made,
directly or indirectly, by the originator or the Seller to the related
Mortgagor other than pursuant to the related Mortgage Note; and, to the
actual knowledge of the Seller, no funds have been received from any Person
other than such Mortgagor for or on account of payments due on the related
Mortgage Note.
(xxxv) Legal Proceedings. To the Seller's actual knowledge, there
are no pending actions, suits or proceedings by or before any court or
governmental authority against or affecting the related Mortgagor or any
related Mortgaged Property that, if determined adversely to such Mortgagor
or Mortgaged Property, would materially and adversely affect the value of
such Mortgaged Property or the ability of such Mortgagor to pay principal,
interest or any other amounts due under such Mortgage Loan.
(xxxvi) Originator Duly Authorized. To the extent required under
applicable law as of the Closing Date, the originator of such Mortgage Loan
was qualified and authorized to do business in each jurisdiction in which a
related Mortgaged Property is located at all times when it held such
Mortgage Loan to the extent necessary to ensure the enforceability of such
Mortgage Loan.
(xxxvii) Trustee under Deed of Trust. If the related Mortgage is
a deed of trust, a trustee, duly qualified under applicable law to serve as
such, is properly designated and serving under such Mortgage, and no fees
and expenses are payable to such trustee except in connection with a
trustee sale of the related Mortgaged Property following a default or in
connection with the release of liens securing such Mortgage Loan and any
such fees and expenses are the obligation of the Mortgagor under the terms
of the Mortgage.
(xxxviii) Cross-Collateralization. The related Mortgaged Property
is not, to the Seller's knowledge, collateral or security for any mortgage
loan that is not in the Trust Fund and, if such Mortgage Loan is
cross-collateralized, it is cross-collateralized only with other Mortgage
Loans in the Trust Fund, except that a Mortgage Loan that is part of a Loan
Combination is secured by one or more Mortgaged Properties that also secure
the related Non-Trust Mortgage Loan(s). The security interest/lien on each
material item of collateral for such Mortgage Loan has been assigned to the
Trustee (or, in the case of a Seller Outside Serviced Mortgage Loan, to the
related Outside Trustee).
(xxxix) Flood Hazard Insurance. None of the improvements on any
related Mortgaged Property are located in a flood hazard area as defined by
the Federal Insurance Administration or, if any portion of the improvements
on the related Mortgaged Property are in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards falling within zones A or V in the national flood insurance
program, the Mortgagor has obtained and is required to maintain flood
insurance.
B-12
(xl) Engineering Assessments. One or more engineering assessments
or updates of a previously conducted engineering assessment were performed
by an Independent engineering consulting firm with respect to each related
Mortgaged Property during the 12-month period preceding the Cut-off Date,
and the Seller, having made no independent inquiry other than to review the
report(s) prepared in connection with such assessment(s) and or update(s),
does not have any knowledge of any material and adverse engineering
condition or circumstance affecting such Mortgaged Property that was not
disclosed in such report(s); and, to the extent such assessments revealed
deficiencies, deferred maintenance or similar conditions, either (A) the
estimated cost has been escrowed or a letter of credit has been provided,
(B) repairs have been made or (C) the scope of the deferred maintenance
relative to the value of such Mortgaged Property was de minimis.
(xli) Escrows. All escrow deposits and payments relating to such
Mortgage Loan are under control of the Seller or the servicer of such
Mortgage Loan and all amounts required as of the date hereof under the
related Mortgage Loan documents to be deposited by the related Mortgagor
have been deposited. The Seller is transferring to the Trustee (or, in the
case of a Seller Outside Serviced Mortgage Loan, to the related Outside
Trustee) all of its right, title and interest in and to such amounts.
(xlii) Licenses, Permits and Authorizations. The related
Mortgagor has represented in the related Mortgage Loan documents that, and
to the actual knowledge of the Seller, as of the date of origination of
such Mortgage Loan, all material licenses, permits and authorizations then
required for use of the related Mortgaged Property by such Mortgagor, the
related lessee, franchisor or operator have been issued and were valid and
in full force and effect.
(xliii) Servicing and Collection Practices. The servicing and
collection practices used by the Seller or, to the Seller's knowledge, any
prior holder of the related Mortgage Note with respect to such Mortgage
Loan have been in all respects legal and have met customary industry
standards.
(xliv) Fee Simple. Unless such Mortgage Loan is covered by the
representation and warranty in the immediately following paragraph (xlv),
such Mortgage Loan is secured in whole or material part by a fee simple
interest.
(xlv) Leasehold Interest Only. If such Mortgage Loan is secured
in whole or in material part by the interest of the related Mortgagor as a
lessee under a Ground Lease but not by the related fee interest, then:
(A) such Ground Lease or a memorandum thereof has been or will
be duly recorded and such Ground Lease permits the interest
of the lessee thereunder to be encumbered by the related
Mortgage or, if consent of the lessor thereunder is
required, it has been obtained prior to the Closing Date;
(B) upon the foreclosure of such Mortgage Loan (or acceptance of
a deed in lieu thereof), the Mortgagor's interest in such
Ground Lease is assignable to the Trustee (or, in the case
of a Seller Outside Serviced Mortgage Loan, to the related
Outside Trustee) without the consent of the lessor
thereunder (or, if any such consent is required, it has been
obtained prior to the
B-13
Closing Date) and, in the event that it is so assigned, is
further assignable by the Trustee (or, in the case of a
Seller Outside Serviced Mortgage Loan, by the related
Outside 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;
B-14
(I) such Ground Lease has a currently effective term (including
any options exercisable by the holder of the related
Mortgage) that extends not less than 20 years beyond the
Stated Maturity Date of the related Mortgage Loan;
(J) under the terms of such Ground Lease, any estoppel or
consent letter received by the mortgagee under such Mortgage
Loan from the lessor and the related Mortgage Loan
documents, taken together, any related insurance proceeds,
other than de minimis amounts for minor casualties, with
respect to the leasehold interest, or condemnation proceeds
will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as the repair or restoration
progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan, together
with any accrued interest thereon;
(K) such Ground Lease does not impose any restrictions on use or
subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender;
(L) upon the request of the mortgagee under such Mortgage Loan,
the ground lessor under such Ground Lease is required to
enter into a new lease upon termination of the Ground Lease
for any reason prior to the expiration of the term thereof,
including as a result of the rejection of the Ground Lease
in a bankruptcy of the related Mortgagor unless the
mortgagee under such Mortgage Loan fails to cure a default
of the lessee under such Ground Lease following notice
thereof from the lessor; and
(M) the terms of the related Ground Lease have not been waived,
modified, altered, satisfied, impaired, canceled,
subordinated or rescinded in any manner which materially
interferes with the security intended to be provided by such
Mortgage, except as set forth in an instrument or document
contained in the related Mortgage File.
(xlvi) Fee Simple and Leasehold Interest. If such Mortgage Loan
is secured by the interest of the related Mortgagor under a Ground Lease
and by the related fee interest, then (A) such fee interest is subject, and
subordinated of record, to the related Mortgage, (B) the related Mortgage
does not by its terms provide that it will be subordinated to the lien of
any other mortgage or other lien upon such fee interest, and (C) upon
occurrence of a default under the 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.
B-15
(xlvii) Tax Lot; Utilities. Each related Mortgaged Property
constitutes one or more complete separate tax lots (or the related
Mortgagor has covenanted to obtain separate tax lots and an escrow of funds
in an amount sufficient to pay taxes resulting from a breach thereof has
been established) or is subject to an endorsement under the related title
insurance policy; and each related Mortgaged Property is served by a public
or other acceptable water system, a public sewer (or, alternatively, a
septic) system, and other customary utility facilities.
(xlviii) Defeasance. If such Mortgage Loan is a Defeasance
Mortgage Loan, the related Mortgage Loan documents require the related
Mortgagor to pay all reasonable costs associated with the defeasance
thereof, and either: (A) require the prior written consent of, and
compliance with the conditions set by, the holder of such Mortgage Loan for
defeasance or (B) require that (1) defeasance may not occur prior to the
second anniversary of the Closing Date, (2) the Defeasance Collateral must
be government securities within the meaning of Treasury regulations section
1.860G-2(a)(8)(i) and must be sufficient to make all scheduled payments
under the related Mortgage Note when due (assuming for each ARD Mortgage
Loan that it matures on its Anticipated Repayment Date or on the date when
any open prepayment period set forth in the related Mortgage Loan documents
commences) or, in the case of a partial defeasance that effects the release
of a material portion of the related Mortgaged Property, to make all
scheduled payments under the related Mortgage Note on that part of such
Mortgage Loan equal to at least 110% of the allocated loan amount of the
portion of the Mortgaged Property being released, (3) an independent
accounting firm (which may be the Mortgagor's independent accounting firm)
certify that the Defeasance Collateral is sufficient to make such payments,
(4) such Mortgage Loan be assumed by a successor entity designated by the
holder of such Mortgage Loan (or by the Mortgagor with the approval of such
lender), and (5) counsel provide an opinion letter to the effect that the
Trustee (or, in the case of a Seller Outside Serviced Mortgage Loan, the
related Outside Trustee) has a perfected security interest in such
Defeasance Collateral prior to any other claim or interest.
(xlix) Primary Servicing Rights. Except with respect to the
Outside Servicers, no Person has been granted or conveyed the right to
primary service such Mortgage Loan or receive any consideration in
connection therewith except (A) as contemplated in the Pooling and
Servicing Agreement with respect to primary servicers that are to be
sub-servicers of the Master Servicer, (B) as has been conveyed to the
Master Servicer, or (C) as has been terminated.
(l) Mechanics' and Materialmen's Liens. As of origination and, to
the Seller's actual knowledge, as of the Closing Date, (A) the related
Mortgaged Property is free and clear of any and all mechanics' and
materialmen's liens that are not bonded, insured against or escrowed for,
and (B) no rights are outstanding that under law could give rise to any
such lien that would be prior or equal to the lien of the related Mortgage
(unless affirmatively covered by the title insurance referred to in
paragraph (xi) above (or an endorsement thereto)). The Seller has not
received actual notice with respect to such Mortgage Loan that any
mechanics' and materialmen's liens have encumbered such Mortgaged Property
since origination that have not been released, bonded, insured against or
escrowed for.
(li) Due Date. Subject to any business day convention imposed by
the related loan documents, the Due Date for such Mortgage Loan is
scheduled to be the first day, the seventh day, the tenth day or the
eleventh day of each month.
B-16
(lii) Assignment of Leases. Subject only to Permitted
Encumbrances, the related Assignment of Leases set forth in or separate
from the related Mortgage and delivered in connection with such Mortgage
Loan establishes and creates a valid and, subject only to the exceptions
and limitations in paragraph (v) above, enforceable first priority lien and
first priority security interest in the related Mortgagor's right to
receive payments due under any and all leases, subleases, licenses or other
agreements pursuant to which any Person is entitled to occupy, use or
possess all or any portion of the related Mortgaged Property subject to the
related Mortgage, except that a license may have been granted to the
related Mortgagor to exercise certain rights and perform certain
obligations of the lessor under the relevant lease or leases; and each
assignor thereunder has the full right to assign the same.
(liii) Mortgagor Formation or Incorporation. To the Seller's
knowledge, the related Mortgagor is a Person formed or incorporated in a
jurisdiction within the United States.
(liv) No Ownership Interest in Mortgagor. The Seller has no
ownership interest in the related Mortgaged Property or the related
Mortgagor other than as the holder of such Mortgage Loan being sold and
assigned, and neither the Seller nor any affiliate of the Seller has any
obligation to make any capital contributions to the related Mortgagor under
the Mortgage or any other related Mortgage Loan document.
(lv) No Undisclosed Common Ownership. To the Seller's knowledge,
except where multiple properties secure an individual Mortgage Loan and
except for properties securing Mortgage Loans that are cross-defaulted and
cross-collateralized, no two properties securing Mortgage Loans are
directly or indirectly under common ownership.
(lvi) Loan Outstanding. Such Mortgage Loan has not been satisfied
in full, and except as expressly contemplated by the related loan agreement
or other documents contained in the related Mortgage File, no material
portion of the related Mortgaged Property has been released.
(lvii) Usury. Such Mortgage Loan complied with or was exempt from
all applicable usury laws in effect at its date of origination.
(lviii) ARD Mortgage Loan. If such Mortgage Loan is an ARD
Mortgage Loan, then:
(A) the related Anticipated Repayment Date is not less than five
years from the origination date for such Mortgage Loan;
(B) such Mortgage Loan provides that from the related
Anticipated Repayment Date through the maturity date for
such Mortgage Loan, all excess cash flow (net of normal
monthly debt service on such Mortgage Loan, monthly expenses
reasonably related to the operation of the related Mortgaged
Property, amounts due for reserves established under such
Mortgage Loan, and payments for any other expenses,
including capital expenses, related to such Mortgaged
Property which are approved by mortgagee) will be applied to
repay principal due under such Mortgage Loan;
B-17
(C) no later than the related Anticipated Repayment Date, the
related Mortgagor is required (if it has not previously done
so) to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property will be deposited
directly into a designated account controlled by the
mortgagee under such Mortgage Loan; and
(D) the interest rate of such Mortgage Loan will increase by at
least two (2) percentage points in connection with the
passage of its Anticipated Repayment Date.
(lix) Appraisal. An appraisal of the related Mortgaged Property
was conducted in connection with the origination of such Mortgage Loan; and
such appraisal satisfied either (A) the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, or (B) the guidelines in Title
XI of the Financial Institutions Reform, Recovery and Enforcement Act of
1989, in either case as in effect on the date such Mortgage Loan was
originated.
B-18
SCHEDULE I
LB-UBS 2008-C1
Exceptions to Representations and Warranties
Sch I-1
Schedule I - Schedule of Exceptions
LB-UBS 2008-C1
Exceptions to Representations and Warranties
General notes regarding the Mortgage Loan known as Chevy Chase Center:
1. The Mortgage Loan known as Chevy Chase Center was originated by Teachers
Insurance and Annuity Association of America, a New York corporation, on
October 20, 2006, and subsequently sold to the Seller on March 20, 2007
(the "Purchase Date"). Other than with respect to Representations #34 and
50, all references in the representations and warranties to the date of
origination of the Mortgage Loan shall refer to the Purchase Date.
2. The Mortgage Loan known as Chevy Chase Center is also structured with the
related promissory note secured by a guaranty agreement (rather than a deed
of trust), which guaranty agreement from the related property owner (the
"IDOT Grantor"), in favor of the lender covers all of the obligations under
the related promissory note. All of the obligations under the related
guaranty agreement are secured by an indemnity deed of trust ("IDOT"). With
respect to certain of the representations and warranties, with respect to
these Mortgage Loans, statements regarding the borrower relate to the
guarantor, as the owner of the respective Mortgaged Property.
Control No. Representation Property Issue
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4 3 Xxxxxx Xxxxxxxxx In addition to the Mortgage Loan, the related Mortgaged
Property secures one additional pari passu A note in
Ownership of Mortgage Loan the aggregate principal balance of $180,000,000.
12 3 Sears Tower In addition to the Mortgage Loan, the related Mortgaged
Property secures six additional pari passu A notes and
Ownership of Mortgage Loan one additional subordinate B note in the aggregate
principal balance of $780,000,000.
2 5 Chevy Chase Center The guarantor of the recourse obligations in not a
natural person. The recourse carveout guaranty is from
Loan Document Status The Chevy Chase Land Company of Xxxxxxxxxx County,
Maryland, a Maryland corporation.
4 5 Xxxxxx Xxxxxxxxx The guarantor of the recourse obligations in not a
natural person. There are two guarantors - Starport I,
Loan Document Status LLC, is the guarantor for the recourse obligations
generally. Portman Financial, Inc. is liable for
certain recourse obligations up to an amount equal to
10% of the outstanding principal balance of the
Mortgage Loan.
5 5 Computer Sciences Building The guarantor of the recourse obligations in not a
natural person. The recourse carveout guaranty is from
Loan Document Status UrbanAmerica, X.X. XX, a Delaware limited partnership.
17 5 Walgreens - North Andover There is no separate guarantor of recourse carveouts.
44 Loan Document Status Walgreens - Xxxxxxxx
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Control No. Representation Property Issue
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N/A 5 Most Properties With respect to the nonrecourse carveout guaranty
concerning fraud, certain of the guarantors have only
Loan Document Status agreed to be liable in connection with and to the
extent of any material fraud or material intentional
fraud or material misrepresentations or material
intentional misrepresentation by the related mortgagor.
With respect to the nonrecourse carveout covering
misapplication or misappropriation, some guarantors
have agreed to cover "misapplication or conversion" or
"misappropriation or conversion" and some such
non-recourse carve-outs apply only during the
continuance of an event of default or with respect to
material misapplication or misappropriation.
Certain of the loans are recourse in limited
circumstances.
2 8 Chevy Chase Center One unrecorded lease agreement exists with respect to
the related Mortgaged Property, which does not limit
First Lien clause (D) of the definition of "Permitted
Encumbrances" to "rights of tenants as tenants only."
However, the tenant does not have any purchase options
with respect to any portion of the related Mortgaged
Property.
4 8 Xxxxxx Xxxxxxxxx In addition to the Mortgage Loan, the related Mortgaged
Property secures one additional pari passu A note in
First Lien the aggregate principal balance of $180,000,000.
12 8 Sears Tower In addition to the Mortgage Loan, the related Mortgaged
Property secures six additional pari passu A notes and
First Lien one additional subordinate B note in the aggregate
principal balance of $780,000,000.
-3-
Control No. Representation Property Issue
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2 11 Chevy Chase Center One unrecorded lease agreement exists with respect to
the related Mortgaged Property, which does not limit
Title Insurance clause (D) of the definition of "Permitted
Encumbrances" to "rights of tenants as tenants only."
However, the tenant does not have any purchase options
with respect to any portion of the related Mortgaged
Property.
4 11 Xxxxxx Xxxxxxxxx In addition to the Mortgage Loan, the related Mortgaged
Property secures one additional pari passu A note in
Title Insurance the aggregate principal balance of $180,000,000.
12 11 Sears Tower In addition to the Mortgage Loan, the related Mortgaged
Property secures six additional pari passu A notes and
Title Insurance one additional subordinate B note in the aggregate
principal balance of $780,000,000.
4 00 Xxxxxx Xxxxxxxxx If terrorism coverage is excluded from the Mortgagor's
"all-risk" insurance policy, the Mortgagor is obligated
Property Insurance to obtain an endorsement or a separate policy for such
coverage to the extent obtainable for annual premiums
of not in excess of $250,000. This new, separate policy
need only cover "hard" replacement costs with respect
to terrorism incidents.
12 12 Sears Tower The related Mortgagor has the right, subject to the
satisfaction of certain conditions, to provide all or a
Property Insurance portion of the insurance it is required to maintain
under the related loan documents through an insurance
company that is wholly owned by an affiliate of such
related borrower. The related Mortgagor currently
maintains such insurance for casualties in excess of
$1,000,000,000. Such insurance company has been
established in the District of Columbia and therefore
is subject to the supervision of and the insurance laws
and regulations of the District of Columbia, the
-4-
Control No. Representation Property Issue
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District of Columbia Commissioner of Insurance ("the
Commissioner") and such laws and regulations are
designed to assure the solvency of such captive
insurance company. In particular, such captive
insurance company is subject to restrictions upon its
licensors, delinquency proceedings instituted by the
Commissioner and resulting delays or failures to pay
under its policy covering the related mortgaged
property and the related Mortgagor will not have access
to state guaranty funds in such an event. To the extent
that such captive insurance company buys third party
reinsurance coverage and the third party reinsurers
fail to pay, the captive insurance company may not have
sufficient funds to pay claims under the policy issued
to the related borrower. Pursuant to the loan
documents, such captive insurance company is required
to secure reinsurance for all required coverage except
terrorism acts covered by TRIA and the deductible
permitted under the loan documents. Because such
captive insurance company is a wholly owned subsidiary
of an affiliate of the related borrower, to the extent
that such affiliate becomes subject to a bankruptcy
proceeding and the independent corporate existence of
such captive insurance company is not respected, the
assets of such captive insurance company could be
applied to satisfy the claims of the creditors of such
affiliate rather than the related borrower.
In addition, in the case of a non-certified terrorism
event, 12 months of business interruption is not
required.
-5-
Control No. Representation Property Issue
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27 12 Walgreens - Worcester The loan documents do not require such forms of insurance
for so long as the Mortgaged Property is self-insured by
29 Property Insurance Walgreens - Staten Island the tenant pursuant to the terms of the lease. The tenant
has elected to self-insure the property in accordance
with the terms of the lease.
00 Xxxxxxxxx - Xxxxxxx Xxxxxxxxx carries terrorism coverage, although it is not
obligated to under each lease. Until a transfer of the
Mortgaged Property to a third party, the Mortgagor is not
00 Xxxxxxxxx - Xxx Xxxxxxx required to maintain insurance coverage for loss, cost,
damage or liability caused by "terrorism" or "terrorist
36 Walgreens - Yarmouth acts", however upon the Transfer of the Mortgaged
Property subject to the Mortgage to a party other than
37 Walgreens - Hampstead the named Mortgagor then such party shall maintain
terrorism insurance but Mortgagor shall not be required
00 Xxxxxxxxx - Xxxxxxxx to incur a cost for any loss, cost, damage or liability
caused by "terrorism" or "terrorist acts" (even if
Walgreens is still maintaining insurance coverage) where
the premium for such coverage is in excess of the sum of
$3,500 (the "Terrorism Insurance Cap") for the then
current annual policy period. In the event that the
annual premium for any such terrorism coverage exceeds
the Terrorism Insurance Cap, the Mortgagor is required to
obtain and maintain terrorism coverage providing coverage
for as much loss, cost, damage and liability caused by
"terrorism" or "terrorist acts" as is available for a
premium equal to the Terrorism Insurance Cap.
-6-
Control No. Representation Property Issue
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16 12 Home Depot - Vallejo The loan documents do not require such forms of insurance
for so long as the Mortgaged Property is self-insured by
Property Insurance the tenant pursuant to the terms of the lease. The tenant
has elected to self-insure the property in accordance
with the terms of the lease.
For so long as the tenant maintains a rating of at least
"BBB-" from S&P, the borrower (or the tenant as
self-insurer) does not have to maintain business
interruption insurance and does not need to maintain a
supplementary insurance policy to cover Home Depot's
self-insured retention of $5,000,000 for casualty
insurance and $1,000,000 with respect to liability
insurance.
17 12 Walgreens - North Andover The loan documents do not require such forms of insurance
for so long as the Mortgaged Property is self-insured by
44 Property Insurance Walgreens - Xxxxxxxx the tenant pursuant to the terms of the lease and the
tenant maintains a senior unsecured debt rating of "BBB"
by S&P. The tenant has elected to self-insure the
property in accordance with the terms of the lease.
If terrorism coverage is not available under the
"all-risk" insurance policy, the Mortgagor must maintain
a stand-alone insurance policy, the cost of which is
capped at twice the cost of the previous year's insurance
premiums for all policies of insurance.
12 16 Sears Tower In addition to the Mortgage Loan, the related Mortgaged
Property secures a $100,000,000 subordinate B note and a
Subordinate Debt $68,330,000 subordinate Note A-3-B (which is not
subordinate to the whole loan collectively, but is only
subordinate to the Mortgage Loan and a $185,000,000 pari
passu Note A-3-A-2).
-7-
Control No. Representation Property Issue
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17 16 Walgreens - North Andover The loan documents permit the equity owners of the
Mortgagor to obtain future mezzanine financing subject to
00 Xxxxxxxxxxx Xxxx Xxxxxxxxx - Xxxxxxxx satisfaction of conditions contained in the loan
documents.
N/A 16 All Properties The loan documents allow the borrower to incur certain
trade payables and equipment financing up to a
Subordinate Debt predetermined amount, which is generally less than or
equal to 5% of the loan amount.
2 19 Chevy Chase Center The environmental indemnitors are not a natural person,
but rather The Chevy Chase Land Company of Xxxxxxxxxx
Environmental Conditions County, Maryland, a Maryland corporation and Chevy Chase
Center, LLC, a Maryland limited liability company.
4 00 Xxxxxx Xxxxxxxxx The environmental guarantor is not a natural person, but
rather Starport I, LLC, a Delaware limited liability
Environmental Conditions company. The related environmental indemnity agreement
contains an exception for "dimunition of value."
5 19 Computer Sciences Building The environmental guarantor is not a natural person, but
rather UrbanAmerica, X.X. XX, a Delaware limited
Environmental Conditions partnership. The related Mortgagor is an additional
indemnitor under the related environmental indemnity
agreement.
-8-
Control No. Representation Property Issue
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12 19 Sears Tower The environmental report was conducted more than 12
months prior to the Cut-off Date.
17 Environmental Conditions Walgreens - North Andover
27 Walgreens - Worcester
29 Walgreens - Staten Island
34 Walgreens - Xxxxxxx
36 Walgreens - Yarmouth
37 Walgreens - Hampstead
38 Walgreens - Xxxxxxxx
00 Xxxxxxxxx - Xxxxxxxx
17 19 Walgreens - North Andover There is no separate environmental guarantor.
44 Environmental Conditions Walgreens - Xxxxxxxx
N/A 21 All Properties The Seller makes no representation regarding the
bankruptcy or insolvency of any tenant at a Mortgaged
Bankruptcy Property.
4 24 Xxxxxx Xxxxxxxxx The Mortgage Loan is not a whole loan but is one of two
pari passu notes, each evidencing an interest in a whole
Whole Loan loan with an original aggregate principal balance of
$185,000,000.
-9-
Control No. Representation Property Issue
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12 24 Sears Tower The Mortgage Loan is not a whole loan but is one of eight
A/B promissory notes, each evidencing an interest in a
Whole Loan whole loan with an original aggregate principal balance
of $780,000,000.
17 25 Walgreens - North Andover The loan documents permit the equity owners of the
Mortgagor to obtain future mezzanine financing subject to
44 Due-on-Encumbrance Walgreens - Xxxxxxxx satisfaction of conditions contained in the loan
documents.
N/A 25 All Properties The loan documents allow the Mortgagor to incur certain
trade payables and equipment financing up to a
Due-on-Encumbrance predetermined amount, which is generally less than or
equal to 5% of the loan amount.
N/A 26 All Properties Most of the loan documents provide, subject to certain
conditions, that transfers of direct and/or indirect
Due-on-Sale interest in the related mortgagor and/or the related
mortgaged property upon the death of any natural person
which holds such interest(s) will not constitute a
transfer of direct and/or indirect interest in mortgagor
and/or mortgaged property so long as, among other things
as set 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.
2 27 Chevy Chase Center Each of these Mortgage Loans, either individually or
collectively to the same or an
-10-
Control No. Representation Property Issue
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Various Mortgagor Concentration Walgreens loans (other than Affiliated Mortgagor, represents more than 5% of the
Walgreens - North Andover Initial Pool Balance.
and Walgreens - Xxxxxxxx)
5 30 Computer Sciences Building The Mortgaged Property is subject to that certain
Easement and Restrictive Covenant Agreement (the "REA")
Property Release dated November 21, 2007, by and between Vingarden
Associates, a Maryland Limited Partnership and Mortgage
Computer Sciences Building Mortgagor, under which parking
required under the tenant's lease is provided on property
that is not owned by the related Mortgagor. Vingarden
Associates is the owner of parcels of properties adjacent
to the Property (the "Outerparcels"), is the prior owner
of the Mortgaged Property and prior landlord under the
CSC lease. The REA provides, among other things, an
easement to allow for the use of the Outerparcels for
parking purposes as required under the CSC lease. In the
event Vingarden Associates shall elect to develop the
Outerparcels, they shall be required to construct and
provide parking facilities to the related Mortgaged
Property and shall deliver ownership of such parking
facility to the related Mortgagor. The loan agreement
provides (i) the terms and conditions under which REA may
be modified and (ii) the requirements prior to a transfer
of a parking facility, including certain environmental
and zoning-related requirements, and that the
newly-acquired parking facility will become part of the
related Mortgaged Property.
-11-
Control No. Representation Property Issue
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16 31 Home Depot - Vallejo A permanent certificate of occupancy for Home Depot has
not been received as of the date hereof. A temporary
Qualifications; Licensing; certificate of occupancy has been received. The loan
Zoning documents contain a non-recourse carveout against the
Mortgagor and the guarantor for the lender's losses
sustained in connection with the absence of the permanent
certificate of occupancy.
26 31 Banco Popular - Bronx As of the closing date of the Mortgage Loan, certain
building code violations were outstanding with respect to
Qualifications; Licensing; the Mortgaged Property. The related Guarantor, through a
Zoning non-recourse carveout, is liable for losses sustained by
the lender in respect of such violations.
28 31 Chestnut Hill Centre As of the closing date of the Mortgage Loan, certain
building code violations were outstanding with respect to
Qualifications; Licensing; the Mortgaged Property. The Mortgagor is obligated to use
Zoning good faith efforts to correct such violations, and the
Mortgage Loan is recourse to the Mortgagor and the
Guarantor for any losses resulting from these violations.
2 32 Chevy Chase Center There is no specific requirement in the loan documents
that the Mortgagor provide the lender with operating
Property Financial Information statements, rent rolls or other information on a
quarterly basis. However, the loan documents do require
that the Mortgagor provide the lender with financial
information with respect to the Mortgaged Property as
reasonably requested by the lender.
5 32 Computer Sciences Building Audited financial statements were not required for the
stub calendar year ending December 31, 2007.
Property Financial Statements
-12-
Control No. Representation Property Issue
------------------------------------------------------------------------------------------------------------------------------------
16 32 Home Depot - Vallejo Monthly rent rolls are only required prior to
securitization.
Property Financial Statements
N/A 32 Most Properties Annual rent rolls are not required, but the borrower is
required to provide monthly and/or quarterly rent rolls.
Property Financial Statements
2 33 Chevy Chase Center The Mortgagor is not a Single Purpose Entity, although
its organizational documents do contain provisions to the
Single Purpose Entity effect that the Mortgagor (A) was formed solely for the
purpose of entering into the Chevy Chase Center Mortgage
Loan which is guaranteed by the IDOT Grantor and secured
by the Chevy Chase Center Mortgaged Property, (B) may not
engage in any business other than any business necessary,
incidental and appropriate to accomplish such purpose,
(C) does not have any material assets other than those
related to its interest in and operation of the Mortgaged
Property and (D) may not incur indebtedness other than as
permitted by the related Mortgage or other loan
documents.
The Mortgagor is a single member Maryland limited
liability company. The Mortgagor's operating agreement
provides that to the extent permitted under applicable
law, the Mortgagor shall not dissolve or liquidate upon
the bankruptcy, dissolution, liquidation or death of its
sole member. However, no opinion of Maryland counsel
confirming that Maryland is a jurisdiction that permits
continued existence, nor any non-consolidation opinion
with respect to the Mortgagor were obtained at
origination.
The IDOT Grantor for the Mortgage Loan,
-13-
Control No. Representation Property Issue
------------------------------------------------------------------------------------------------------------------------------------
which owns the related Mortgaged Property, is not a
Single Purpose Entity and contains no separateness
covenants in its organizational documents. No bankruptcy
or non-consolidation opinion was obtained at origination
for the IDOT Grantor.
2 37 Chevy Chase Center The Seller makes this representation and warranty to its
actual knowledge only.
Trustee Under Deed of Trust
4 38 Xxxxxx Xxxxxxxxx In addition to the Mortgage Loan, the related Mortgaged
Property secures one additional pari passu A note not in
Cross-Collateralization the Trust Fund in the aggregate principal balance of
$180,000,000.
12 38 Sears Tower In addition to the Mortgage Loan, the related Mortgaged
Property secures six additional pari passu A notes and
Cross-Collateralization one additional subordinate B note not in the Trust Fund
in the aggregate principal balance of $780,000,000.
12 40 Sears Tower The engineering assessment was conducted more than 12
months prior to the Cut-off Date.
34 Engineering Assessments Walgreens - Xxxxxxx
37 Walgreens - Hampstead
44 Walgreens - Xxxxxxxx
16 42 Home Depot - Vallejo A permanent certificate of occupancy for Home Depot has
not been received as of the date hereof. A temporary
Licenses and Permits certificate of occupancy has been received. The loan
documents contain a non-recourse carveout against the
Mortgagor and the guarantor for the lender's losses
sustained in connection with the absence of the permanent
certificate of occupancy.
-14-
Control No. Representation Property Issue
------------------------------------------------------------------------------------------------------------------------------------
26 42 Banco Popular - Bronx As of the closing date of the Mortgage Loan, certain
building code violations were outstanding with respect to
Licenses and Permits the Mortgaged Property. The related Guarantor, through a
non-recourse carveout, is liable for losses sustained by
the lender in respect of such violations.
28 42 Chestnut Hill Centre As of the closing date of the Mortgage Loan, certain
building code violations were outstanding with respect to
Licenses and Permits the Mortgaged Property. The Mortgagor is obligated to use
good faith efforts to correct such violations, and the
Mortgage Loan is recourse to the Mortgagor and the
Guarantor for any losses resulting from these violations.
4 00 Xxxxxx Xxxxxxxxx (x) The Mortgagor, as ground lessee, has the right to
terminate the Ground Lease upon a total
Leasehold Interest Only casualty/condemnation whereby the related Mortgagor is
deemed to have exercised its option to purchase in such
scenario and $13,000,000 (or such lesser amount paid to
the ground lessor under the Ground Lease) of the
insurance proceeds/award first get paid to the City of
Charlotte.
N/A 48 Certain Properties The defeasance collateral can consist of, in addition to
what is listed in representation (xlviii), (A)
Defeasance non-callable instruments, which (a) will not cause the
REMIC trust to fail to maintain its status as a "real
estate mortgage investment conduit," (b) will not result
in a ratings reduction, downgrade or withdrawal, (c) are
then outstanding and (d) are then being generally
accepted by the rating agencies without any reduction,
downgrade or withdrawal of the applicable ratings, or (B)
non-redeemable securities evidencing an obligation to
timely pay principal and/or interest in a timely manner
that are (a) direct obligations of the united states for
payment of which its full faith and credit is pledged or
-15-
Control No. Representation Property Issue
------------------------------------------------------------------------------------------------------------------------------------
(b) "government securities" within the meaning of Section
2(a)(16) of the Investment Company Act of 1940.
2 51 Chevy Chase Center The Due Date of the Mortgage Loan is the first day of
each month, but the Mortgage Loan is also subject to a
Due Date grace period of five days.
N/A 51 Certain Properties The Due Date of the Mortgage Loan is the ninth day of
each month.
Due Date
4 52 Xxxxxx Xxxxxxxxx In addition to the Mortgage Loan, the related Mortgaged
Property secures one additional pari passu A note not in
Assignment of Leases the Trust Fund in the aggregate principal balance of
$180,000,000.
12 52 Sears Tower In addition to the Mortgage Loan, the related Mortgaged
Property secures six additional pari passu A notes and
Assignment of Leases one additional subordinate B note not in the Trust Fund
in the aggregate principal balance of $780,000,000.
2 59 Chevy Chase Center The Seller makes this representation and warranty solely
with respect to an appraisal that was conducted with
Appraisal respect to the Mortgaged Property on June 21, 2007.
-16-
EXHIBIT C
NONE
C-1
EXHIBIT C-1
[OPINION OF CADWALADER, XXXXXXXXXX & XXXX]
April 29, 2008
Addressees Listed on Schedule A
Re: LB-UBS Commercial Mortgage Securities Trust 2008-C1,
Commercial Mortgage Pass-Through Certificates, Series 2008-C1
(the "Certificates")
Ladies and Gentlemen:
We are rendering this opinion pursuant to the Mortgage Loan Purchase
Agreement, dated as of April 17, 2008 (the "Purchase Agreement"), between UBS
Real Estate Securities Inc. (the "Company") and Structured Asset Securities
Corporation II (the "Depositor"). We have acted as special counsel to the
Company in connection with (i) the proposed sale by the Company and the purchase
by the Depositor of the mortgage loans that are described and set forth in the
Purchase Agreement (the "Mortgage Loans") and (ii) the acknowledgement by the
Company of certain sections of the Underwriting Agreement, dated as of April 17,
2008 (the "Underwriting Agreement" and, together with the Purchase Agreement,
the "Agreements"), by and among the Depositor, Xxxxxx Brothers Inc., UBS
Securities LLC and Banc of America Securities LLC and acknowledged with respect
to certain sections by the Company and Xxxxxx Brothers Holdings Inc. Capitalized
terms used herein but not defined herein have the respective meanings given them
in the Agreements.
In rendering the opinions set forth below, we have examined and 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 and instruments and other documents, including, among other
things, the documents delivered on the date hereof, as we have deemed
appropriate as a basis for the opinions expressed below. In such examination we
have assumed the genuineness of all signatures, the authenticity of all
documents, agreements and instruments submitted to us as originals, the
conformity to original documents, agreements and instruments of all documents,
agreements and instruments submitted to us as copies or specimens, the
authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens, and the accuracy of the matters set
forth in the documents, agreements and instruments we reviewed. As to matters of
fact relevant to the opinions expressed herein, we have relied upon, and assumed
the accuracy of, the representations and warranties contained in the Agreements
and we have relied upon certificates and oral or written statements and other
information obtained from the Company, the other parties to the transaction
referenced herein, and public officials. Except as expressly set forth herein,
we have not undertaken any independent investigation (including, without
limitation, conducting any review, search or investigation of any public files,
records or dockets) to determine the existence or absence of the facts that are
material to our opinions, and no inference as to our knowledge concerning such
facts should be drawn from our reliance on the representations of the Company
and others in connection with the preparation and delivery of this letter.
References in this letter to "Applicable Laws" shall mean those laws,
rules and regulations of the State of New York an 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 paragraph 2
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.
We have also assumed that all documents, agreements and instruments
have been duly authorized, executed and delivered by all parties thereto, that
all such parties 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 (other than with respect to the Company) 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, 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 Laws.
Based upon and subject to the foregoing, we are of the opinion that
1. The Agreements constitute a legal, valid and binding agreement of
the Company, enforceable against the Company 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 the enforcement of rights with respect to indemnification and contribution
obligations and provisions (a) purporting to waive or limit rights to trial by
jury, oral amendments to written agreements or rights of set-off, (b) relating
to submission to jurisdiction, venue or service of process, or (c) purporting to
prohibit, restrict or condition the assignment of, or the grant of a security
interest in, rights under the Agreements, or property subject thereto, may be
limited by applicable law or considerations of public policy.
2
2. None of the sale of the Mortgage Loans, the consummation by the
Company of any of the other transactions contemplated by the Agreements to which
it is a party or the execution, delivery and performance by the Company of the
terms of the Agreement to which it is a party will conflict with, or result in
the violation of, any Applicable Laws that are applicable to the Company.
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,
3
SCHEDULE A
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Services, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
C-1-1
EXHIBIT C-2
[UBS IN-HOUSE OPINION]
[UBS Letterhead]
April 29, 2008
TO THE PERSONS ON THE ATTACHED SCHEDULE A
Re: LB-UBS Commercial Mortgage Trust 2008-C1, Commercial Mortgage
Pass-Through Certificates, Series 2008-C1
Ladies and Gentlemen:
I am Managing Director and Counsel of UBS AG. UBS Real Estate Securities
Inc., a Delaware corporation ("UBSRESI"), is a wholly-owned subsidiary of UBS
AG. I have been asked to deliver this letter in connection with (i) the sale by
UBSRESI and the purchase by Structured Asset Securities Corporation II (the
"Depositor") of certain multi-family and commercial mortgage loans pursuant to
the Mortgage Loan Purchase Agreement, dated as of April 17, 2008 (the "MLPA"),
between UBSRESI, as seller, and the Depositor, as purchaser, (ii) the
acknowledgement by UBSRESI of certain sections of the Underwriting Agreement,
dated as of April 17, 2008 (the "Underwriting Agreement"), by and among the
Depositor, Xxxxxx Brothers Inc., UBS Securities LLC and Banc of America
Securities LLC and acknowledged with respect to certain sections by UBSRESI and
Xxxxxx Brothers Holdings Inc. and (iii) the Indemnification Agreement, dated as
of April 17, 2008 (the "Indemnification Agreement," and together with the MLPA
and the Underwriting Agreement, the "Agreements"), between UBSRESI and the
Depositor. Capitalized terms used and not otherwise defined herein have the
meanings given or applicable to such terms in the Agreements.
I, or others under my supervision, have examined such documents as I
believe are necessary or appropriate for the purposes of this letter, including
the certificate of incorporation and by-laws of UBSRESI and the Agreements and
all exhibits attached thereto. In reaching the opinions set forth in this
letter, I have assumed without investigation that there are no facts
inconsistent with the assumptions made in paragraphs A through D below:
A. All signatures of the parties, other than UBSRESI, on all documents are
genuine. Each person executing any such instrument, document or agreement,
whether individually or on behalf of a firm or a business entity, other than
UBSRESI, is duly authorized to do so.
B. All documents submitted as originals 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-1-1
C. All natural persons, including all persons acting on behalf of a
business entity, are legally competent.
D. All other parties to documents, other than UBSRESI, have the requisite
power and authority to consummate the transactions contemplated by the
Agreements and to execute and deliver the applicable documents.
Based on my review of the foregoing and such other considerations of law
and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
1. Each of the Agreements has been duly authorized, executed and delivered
by UBSRESI.
2. UBSRESI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has the requisite
corporate power and authority to enter into and perform its obligations under
each of the Agreements.
3. The execution, delivery and performance of the terms of the Agreements
will not result in the breach or violation of or a default under any material
order or decree of any court, regulatory body, administrative agency or
governmental body having jurisdiction over UBSRESI and known to me as being
applicable to UBSRESI.
4. To my knowledge, there is no action, suit or proceeding against, or
investigation of, UBSRESI, pending or threatened against UBSRESI before any
court, administrative agency or other tribunal which, either individually or in
the aggregate, (a) asserts the invalidity of the Agreements, (b) seeks to
prevent the consummation of any of the transactions contemplated by the
Agreements or (c) would materially and adversely affect (i) the performance by
UBSRESI of its obligations under, or the validity or enforceability of, any of
the Agreements, or (ii) any rights with regard to the Mortgaged Properties or
the Mortgage Loans.
5. To the best of my knowledge, no consent, approval, authorization or
order of, and no filing or registration with, any State of New York or federal
court or governmental agency or regulatory body, the absence of which would have
a material adverse effect on UBSRESI or the transactions contemplated by the
Agreements, is required on the part of UBSRESI for the execution, delivery or
performance by UBSRESI of the Agreements, except those which have been obtained
and are in full force and effect and except for such recordation of the
assignments of the Mortgages or the reassignments of assignments of leases and
rents and profits or filings of UCC Financing statements that have not yet been
completed.
6. The execution, delivery and performance by UBSRESI of, and the
consummation of the transactions contemplated by, the Agreements do not and will
not conflict with, or result in a violation of, any term or provision of the
certificate of incorporation or bylaws of UBSRESI or result 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 UBSRESI
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 UBSRESI pursuant to the
terms of
C-1-2
any such agreement or instrument, any of which occurrences, either in any one
instance or in the aggregate, would call into question the validity of the
Agreements or be reasonably likely to impair materially the ability of UBSRESI
to perform under the terms of the Agreements.
In addition to the assumptions and 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 General Corporation Law of the State of Delaware, as currently in
effect, and solely with respect to paragraphs 3 and 4 above, the federal laws of
the United States of America, as currently in effect.
2. I assume no obligation to supplement this opinion if, after the date
hereof, any applicable laws change or I become aware of any facts that might
change the opinions set forth herein.
3. The opinions herein are limited to the matters set forth in this letter.
No other opinions should be inferred beyond the matters expressly stated herein.
The opinions expressed in this letter may be relied upon solely by the
addressees hereof solely with respect to the transactions described in the
Agreements, and may not be relied upon by any other person or entity, without my
specific prior written consent.
Sincerely,
----------------------------------------
Xxxx Xxxxxx
Managing Director
C-1-3
SCHEDULE A
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's,
a division of The XxXxxx-Xxxx
Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Services, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
X-0-0
XXXXXXX X
XXXX
X-0
