EXECUTION COPY
LBHI MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of April 3, 2006, (the
"Agreement"), between Xxxxxx Brothers Holdings 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 evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates") to be identified as the LB-UBS Commercial Mortgage Trust
2006-C3, Commercial Mortgage Pass-Through Certificates, Series 2006-C3. One or
more "real estate mortgage investment conduit" ("REMIC") elections will be made
with respect to the Trust Fund. The Certificates will be issued pursuant to a
Pooling and Servicing Agreement, to be dated as of March 13, 2006 (the "Pooling
and Servicing Agreement"), between the Purchaser, as depositor, Wachovia Bank,
National Association, as master servicer (the "Master Servicer"), CWCapital
Asset Management LLC., as special servicer (the "Special Servicer") and LaSalle
Bank National Association, as trustee (the "Trustee"). Capitalized terms used
but not defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with Xxxxxx Brothers
Inc. ("Xxxxxx") and UBS Securities LLC ("UBS Securities" and, together with
Xxxxxx in such capacity, the "Underwriters"), whereby the Purchaser will sell to
the Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Purchaser has
also entered into a Certificate Purchase Agreement (the "Certificate Purchase
Agreement"), dated as of the date hereof, with Xxxxxx and UBS Securities
(together in such capacity, the "Placement Agents"), whereby the Purchaser will
sell to the Placement Agents all of the remaining Certificates (other than the
Residual Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
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 $933,413,025 (the "Initial LBHI Pool Balance") as
of the close of business on the Cut-off Date, after giving effect to any and all
payments of principal due thereon on or
before such date, whether or not received. The purchase and sale of the Mortgage
Loans shall take place on April 10, 2006, or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). The
consideration for the Mortgage Loans shall consist of a cash amount equal to a
percentage (mutually agreed upon by the parties hereto) of the Initial LBHI Pool
Balance, plus interest accrued on each Mortgage Loan at the related Mortgage
Rate (net of the related Administrative Cost Rate), for the period from and
including March 13, 2006 up to but not including the Closing Date, which cash
amount shall be paid to the Seller or its designee by wire transfer in
immediately available funds (or by such other method as shall be mutually
acceptable to the parties hereto) on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction or waiver of the
conditions to closing set forth in Section 6 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller (other than the
primary servicing rights) in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of the
initial Purchaser, deliver to and deposit with (i) the Trustee or a Custodian
appointed thereby, a Mortgage File for each Mortgage Loan in accordance with the
terms of, and conforming to the requirements set forth in, the Pooling and
Servicing Agreement, with copies of each Mortgage File to be delivered by the
Trustee to, upon request, the Master Servicer (at the expense of the Trustee),
within 10 Business Days of such request; and (ii) the Master Servicer (or, at
the direction of the Master Servicer, to the appropriate Sub-Servicer), all
unapplied Escrow Payments and Reserve Funds in the possession or under the
control of the Seller that relate to the Mortgage Loans.
(d) The Seller shall retain, with respect to each Mortgage Loan, an
Independent third party (the "Recording 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 in the appropriate public office for real property
records each related assignment of Mortgage and assignment of Assignment of
Leases, in favor of, and delivered under clause (a)(iv) of the definition of
Mortgage File to, the Trustee; and (ii) cause each such assignment of Mortgage
and assignment of Assignment of Leases to be delivered to the Trustee following
its return by the appropriate public office for real property records; provided
that, in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, the Trustee shall
obtain a certified copy of the recorded original.
If any such assignment of Mortgage, assignment of Assignment of Leases
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 or cause such to be done, as
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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 or the Purchaser's request and the fees of the Recording
Agent.
Pursuant to the Pooling and Servicing Agreement and a letter agreement
dated April 10, 2006 (the "Letter Agreement") between Redwood Trust, Inc., the
Purchaser, the UBS Mortgage Loan Seller and the Trustee, the Trustee, through a
third party (the "Filing Agent") retained by it, as and in the manner provided
in the Pooling and Servicing Agreement and at the expense of Redwood Trust, Inc.
(and in any event within 45 days following the later of the Closing Date and the
date on which all necessary filing information is available to the Filing
Agent), is required to cause (i) each assignment of UCC Financing Statements
prepared by the Seller, in favor of, and delivered as part of the related
Mortgage File to the Trustee, to be submitted for filing in the appropriate
public office, and (ii) such assignments to be delivered to the Trustee
following their return by the applicable public filing office, with copies of
any such returned assignments to be delivered by the Trustee to the Master
Servicer, at the expense of the Seller, at least every 90 days after the Closing
Date (or at additional times upon the request of the Master Servicer if
reasonably necessary for the ongoing administration and/or servicing of the
related Mortgage Loan by the Master Servicer). The Seller hereby agrees to
reasonably cooperate with the Trustee and the Filing Agent with respect to the
filing of the assignments of UCC Financing Statements as described in this
paragraph and to forward to the Trustee filing confirmation, if any, received in
connection with such UCC Financing Statements filed in accordance with this
paragraph. Notwithstanding the foregoing, to the extent the Trustee provides
Redwood Trust, Inc., pursuant to the Letter Agreement, with an invoice for the
expenses (i) reasonably to be incurred in connection with the filings referred
to in this paragraph and (ii) required to be paid by Redwood Trust, Inc.
pursuant to the Letter Agreement, and such expenses are not paid by Redwood
Trust, Inc. in advance of such filings, the Trustee, pursuant to the Pooling and
Servicing Agreement and the Letter Agreement and at the expense of the Seller
(with respect to each Mortgage Loan, other than the Outside Serviced Trust
Mortgage Loan), shall only be required to cause the filing agent to file the
assignments of such UCC Financing Statements with respect to Mortgage Loans
secured by hotel or hospitality properties.
(e) With respect to any Mortgage Loan, the Seller shall deliver to and
deposit with the Master Servicer, within 45 days of the Closing Date, the
Mortgage Loan Origination Documents (other than any document that constitutes
part of the Mortgage File for such Mortgage Loan); 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
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required under applicable law to effectuate the transfer of the Mortgage Loans
by the Seller to the Purchaser.
(g) In connection with the obligations of the Master Servicer under
Sections 3.01(e) and 3.19(c) of the Pooling and Servicing Agreement, with regard
to each Mortgage Loan that is secured by the interests of the related Mortgagor
in a hospitality property (identified on Schedule VI to the Pooling and
Servicing Agreement) and each Mortgage Loan that has a related letter of credit,
the Seller shall deliver to and deposit with the Master Servicer, on or before
the Closing Date, any related franchise agreement, franchise comfort letter and
the original of such letter of credit. Further, in the event, with respect to a
Mortgage Loan with a related letter of credit, the Master Servicer determines
that a draw under such letter of credit has become necessary under the terms
thereof prior to the assignment of such letter of credit having been effected in
accordance with Section 3.01(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
Depositor with a certificate (the "Master Servicer Certification") within 90
days of the Closing Date acknowledging: (i) its or 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 Serviced Trust Mortgage Loan to which it purports to
relate, that it appears regular on its face and that it appears to have been
executed (where appropriate); and (ii) in the event the Depositor has, in its
sole discretion, elected to deliver a mortgage loan checklist with respect to
any Serviced Trust 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 in the event the Depositor 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 day of the Closing Date
and (y) five (5) Business Days of its receipt of such mortgage loan checklist.
Notwithstanding anything to the contrary set forth herein, to the extent the
Seller has not been notified in writing of its failure to deliver any document
with respect to a Mortgage Loan required to be delivered pursuant to or as
contemplated by Section 2(e) hereof prior to the first anniversary of the date
of the Master Servicer Certification, the Seller shall have no obligation to
provide such document.
(i) In addition, on the Closing Date, the Seller shall deliver to the
Master Servicer for deposit in the Pool Custodial Account the Initial Deposit
relating to each Mortgage Loan that is an Initial Deposit Mortgage Loan (if
any).
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 a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and possesses
all requisite authority, power, licenses, permits and franchises to carry
on its business as currently conducted by it and to execute, deliver and
comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the
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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
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) hereof, no consent, approval, authorization or
order of, registration or filing with, or notice to, any court or
governmental agency or body, is required for the execution, delivery and
performance by the 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) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser, as provided herein, as a sale of the
Mortgage Loans to the Purchaser in exchange for the consideration specified
in Section 1 hereof. In connection with the foregoing, the Seller shall
cause all of its records to reflect such transfer as a sale (as opposed to
a secured loan). The consideration received by the Seller upon the sale of
the Mortgage Loans to the Purchaser will constitute at least reasonably
equivalent value and fair consideration for the Mortgage Loans. The Seller
will be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller
is not selling the Mortgage Loans to the
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Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller. After giving effect to its transfer of the Mortgage Loans to
the Purchaser, as provided herein, the value of the Seller's assets, either
taken at their present fair saleable value or at fair valuation, will
exceed the amount of the Seller's debts and obligations, including
contingent and unliquidated debts and obligations of the Seller, and the
Seller will not be left with unreasonably small assets or capital with
which to engage in and conduct its business. The Mortgage Loans do not
constitute all or substantially all of the assets of the Seller. The Seller
does not intend to, and does not believe that it will, incur debts or
obligations beyond its ability to pay such debts and obligations as they
mature.
(ix) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Seller are pending or contemplated.
(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 made by
the Purchaser pursuant to Section 2.04(b) of the Pooling and Servicing
Agreement, except that all references therein to the Purchaser shall be deemed
to be references to the Seller and all references therein to the Mortgage Pool
shall be deemed to be references to all the Securitized Loans.
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
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this Agreement, or the consummation by the Purchaser of any transaction
described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof.
SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller receives written notice with respect to any Mortgage
Loan (i) that any document (x) constituting a part of the related Mortgage File
pursuant to clauses (a)(i) through (a)(xiii) of the definition of "Mortgage
File" or (y) specifically set forth on Schedule IX to the Pooling and Servicing
Agreement has not been executed (if applicable) or is missing (a "Document
Defect") or (ii) of a breach of any of the Seller's representations and
warranties made pursuant to Section 3(b) hereof (each such breach, a "Breach")
relating to any Mortgage Loan, and such Document Defect or Breach, as of the
date specified in the fifth paragraph of Section 2.03(a) to the Pooling and
Servicing Agreement, materially and adversely affects the value of such Mortgage
Loan, then such Document Defect shall constitute a "Material Document Defect" or
such Breach shall constitute a "Material Breach", as the case may be. Then,
following receipt of a Seller/Depositor Notification with respect to such
Material Document Defect or Material Breach, as the case may be, the Seller
shall cure or repurchase the subject Mortgage Loan, as the case may be, if and
to the extent the Depositor is required to do so, in the manner, under the
circumstances, subject to the conditions, within the time periods and upon all
of the other terms set forth in Section 2.03 of the Pooling and Servicing
Agreement.
(b) In the event the Seller is obligated to repurchase any Mortgage
Loan pursuant to this Section 5, such obligation shall extend to any successor
REO Mortgage Loan with respect thereto as to which (A) the subject Material
Breach existed as to the subject predecessor Mortgage Loan prior to the date the
related Mortgaged Property became an REO Property or within 90 days thereafter,
and (B) as to which the Seller had received, no later than 90 days following the
date on which the related Mortgaged Property became an REO Property, a
Seller/Depositor Notification from the Trustee regarding the occurrence of the
applicable Material Breach and directing the Seller to repurchase the subject
Mortgage Loan.
(c) If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Seller as contemplated
by Section 5(a), then, prior to the subject repurchase, the Seller or its
designee shall use reasonable efforts, subject to the terms of the related
Mortgage Loans, to prepare and, to the extent necessary and appropriate, have
executed by the related Mortgagor and record, such documentation as may be
necessary to terminate the cross-collateralization between the Mortgage Loans in
such Cross-Collateralized Group that are to be repurchased, on the one hand, and
the remaining Mortgage Loans therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the 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
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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 (or by the Depositor) 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 made by
virtue of the Depositor's representation set forth in, or made pursuant to
paragraph (xlviii) of Schedule II to the Pooling and Servicing Agreement,
specifically relating to whether or not the Mortgage Loan documents or any
particular Mortgage Loan document for any Mortgage Loan requires the related
Mortgagor to bear the reasonable costs and expenses associated with the subject
matter of such representation or warranty, as set forth in such representation
or warranty, then the Purchaser or its designee will direct the Seller in
writing to wire transfer to the Custodial Account, within 90 days of receipt of
such direction, the amount of any such reasonable costs and expenses incurred by
the Trust that (i) are due from the Mortgagor, (ii) otherwise would have been
required to be paid by the Mortgagor if such representation or warranty with
respect to such costs and expenses had in fact been true, as set forth in the
related representation or warranty, (iii) have not been paid by the Mortgagor,
(iv) are the basis of such Breach and (v) constitute "Covered Costs." Upon
payment of such costs, the Seller shall be deemed to have cured such Breach in
all respects. Provided that such payment is made, this paragraph describes the
sole remedy available to the Purchaser regarding any such Breach, regardless of
whether it constitutes a Material Breach, and the Seller shall not be obligated
to otherwise cure such Breach or repurchase the affected Mortgage Loan under any
circumstances. Amounts deposited in the Pool Custodial Account pursuant to this
paragraph shall constitute "Liquidation Proceeds" for all purposes of the
Pooling and Servicing Agreement (other than Section 3.11(c) of the Pooling and
Servicing Agreement).
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(g) In addition, subject to Section 5(f) and the last three sentences
of this paragraph, if the Depositor determines that a Material Breach (other
than a Material Breach of a representation or warranty on the part of the
Depositor set forth in and made pursuant to paragraph (xvii) of Schedule II to
the Pooling and Servicing Agreement) or a Material Document Defect with respect
to a Mortgage Loan is not capable of being cured in accordance with Section
2.03(a) of the Pooling and Servicing Agreement, then in lieu of repurchasing the
subject Mortgage Loan, the Seller shall pay a cash amount equal to the Loss of
Value Payment, and any costs incurred in connection with such Loss of Value
Payment, in each case required to be paid by the Depositor (or, payable by the
Depositor due to the Depositor's exercise of its option) under Section 2.03(e)
of the Pooling and Servicing Agreement, but only if and to the extent the
Depositor is required or elects to do so, in the manner, under the
circumstances, subject to the conditions, within the time periods and upon all
of the other terms set forth in Section 2.03 of the Pooling and Servicing
Agreement. Provided that such payment is made, this paragraph describes the sole
remedy available to the Purchaser regarding any such Material Breach or Material
Document Defect and the Seller shall not be obligated to otherwise cure such
Material Breach or Material Document Defect or repurchase the affected Mortgage
Loan based on such Material Breach or Material Document Defect under any
circumstances. Notwithstanding the foregoing provisions of this Section 5(g), if
95% or more of the loss of value to a Mortgage Loan was caused by a Material
Breach or Material Document Defect, which Material Breach or Material Document
Defect is not capable of being cured, this Section 5(g) shall not apply and the
Seller shall be obligated to repurchase the affected Mortgage Loan at the
applicable Purchase Price in accordance with Section 5(a); and furthermore, the
Seller shall not have the option of delivering Loss of Value Payments in
connection with any Material Breach relating to a Mortgage Loan's failure to be
a Qualified Mortgage. In the 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.
(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 Schedule II to the Pooling and Servicing
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. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Austin LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller 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;
9
(c) All documents specified in Section 7 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.
Both 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 7. 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) A 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;
10
(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 Sidley Austin LLP, special counsel to the
Seller, substantially in the form attached hereto as Exhibit B-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 Sidley
Austin LLP as may be required by the Rating Agencies in connection with the
transactions contemplated hereby;
(h) A favorable opinion of in-house counsel to the Seller,
substantially in the form attached hereto as Exhibit B-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;
(i) In the event any of the Certificates are mortgage related
securities within the meaning of the Secondary Mortgage Market Enhancement Act
of 1984, as amended, a Certificate of the Seller regarding origination of the
Mortgage Loans by specified originators as set forth in Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended; and
(j) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 8. Costs. An amount equal to 54.98958% of all reasonable
out-of-pocket costs and expenses incurred by the Seller, the initial Purchaser,
the Underwriters, the Placement Agents and the seller of the Other Loans to the
Purchaser in connection with the securitization of the Securitized Loans and the
other transactions contemplated by this Agreement, the Underwriting Agreement
and the Certificate Purchase Agreement shall be payable by the Seller.
SECTION 9. Grant of a Security Interest. The parties hereto agree that
it is their express intent that the conveyance of the Mortgage Loans by the
Seller to the Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the Mortgage Loans by the Seller to the Purchaser and not as a pledge
of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then
it is the express intent of the parties that: (i) such conveyance shall be
deemed to be a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller; (ii) this Agreement shall be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
applicable Uniform Commercial Code; (iii) the conveyance provided for in Section
2 hereof shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property; (iv) the assignment to the Trustee of the interest of the Purchaser in
and to the Mortgage Loans shall be deemed to be an assignment of any security
interest created hereunder; (v) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes for
the Mortgage Loans, and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-313 of the applicable Uniform Commercial Code; and (vi)
11
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 10. 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 either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. 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 11. 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 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. 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 14. 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
12
RESPECT TO SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE OR FEDERAL COURTS, TO THE EXCLUSION OF ALL OTHER COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM IN
CONNECTION WITH SUCH ACTION OR PROCEEDING COMMENCED IN SUCH NEW YORK STATE OR
FEDERAL COURTS; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; PROVIDED, THAT IN
THE EVENT NEITHER A NEW YORK STATE NOR FEDERAL COURT SITTING IN NEW YORK IN
WHICH AN ACTION OR PROCEEDING HAS BEEN DULY AND PROPERLY COMMENCED BY ANY PARTY
TO THIS AGREEMENT REGARDING A MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT HAS REFUSED TO ACCEPT JURISDICTION OVER OR OTHERWISE HAS NOT ACCEPTED
SUCH ACTION OR PROCEEDING WITHIN, IN THE CASE OF EACH SUCH COURT, 60 DAYS OF THE
COMMENCEMENT OR FILING THEREOF, THEN THE WORDS "TO THE EXCLUSION OF ALL OTHER
COURTS" IN CLAUSE (I) AND CLAUSE (II) OF THIS SENTENCE SHALL NOT APPLY WITH
REGARD TO SUCH ACTION OR PROCEEDING AND THE REFERENCE TO "SHALL" IN CLAUSE (II)
OF THIS SECTION SHALL BE DEEMED TO BE "MAY".
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
such party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. 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 17. 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.
13
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
PURCHASER
STRUCTURED ASSET SECURITIES
CORPORATION II
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
Address for Notices:
Structured Asset Securities
Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(See Attached)
MORTGAGE
LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE
-------- ----------------------------------- ------------------------------------------------------------- --------------- -----
3 000 Xxxxx Xxxxxx Xxxxx 000 Xxxxx Xxxxxx Xxxxx Xxxxxxx XX
4 Eastpoint Mall 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX
0 Xxxxxx Xxxxx Apartments 0000 Xxxxxxx Xxxx Xxxx Xxxxxxx XX
6 Marriott Hotel - Orlando Airport 0000 Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxx XX
7 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxx Xxxx XX
8 The Time Hotel 000 X 00xx Xxxxxx Xxx Xxxx XX
13 Cypress Financial Center 0000 X. Xxxxxxx Xxxxxx Xxxx Xxxxxxxxxx XX
19 Knoxville Hilton 000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxx XX
21 Windridge Apartments 14232 & 00000 Xxxxxx Xxxxxxx Xxxxx Xxxxxx XX
22 Sunchase Apartments 000 Xxxxx Xxxxx Xxxxx Xxxx Xxxxxxxxx XX
25 Tiburon Apartments 00000 Xxxxxxx Xxxx Xxxxxx XX
00 Xxxxx Xxxxx Xxxxx Xxxxxxxxx Xxxxxxx Xxxxx XX
28 The Summit 0000 Xxxxxxxxx Xxxx Xxxxxxxx XX
00 Xxxxxxxxxxxx Xxxxx 000 Xxxxxxxxxxx Xxxxxxx TX
30 Best Western Soldiers Field 000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX
31 000-000 X. 00xx Xxxxxx 000-000 X. 00xx Xxxxxx Xxx Xxxx XX
32 Xxxxxxxx Crossing 000-000 Xxxxxxx Xxxxxxx Xxxxxxx Xxxx XX
34 Lodge on Xxxxxx Creek 0000 Xxxxxx Xxxxxxx Xxx Xxxxxxx XX
35 The Willows on Rosemeade 0000 Xxxxxxxxx Xxxxxxx Xxxxxx XX
00 Xxxxxxx Xxxxxxxxxx Xxxx 00000-000 Xxxxx Xxxx Xxxxxxxxx XX
37 Vanguard Center 00000 Xxxx Xxx Xxxx Xxxx Xxxxxxxxxx XX
41 Courtyard at Pleasant Run 0000 Xxxx Xxxxxxxx Xxx Xxxx Xxxxxxxxx XX
42 Enclave at Valley Ranch 0000 XxxXxxxxx Xxxxxxxxx Xxxxxx XX
43 Creekwood 0000 Xxxx Xxxxxxx Xxxxx Xxxxxx XX
44 Xxxxxxxx Crossing 0000 XX 00xx Xxxxxxxxx/Xxxxxxxx Xxxx Xxxxxxxxxxx XX
45 City Centre 0000 Xxxx Xxxx Xxxxxx Xxxxxxxxxxxx XX
46 Del Rey Apartments 0000 Xxxxxxxxxx Xxxx Xxxxxx XX
00 Xxxxxxx Xxx Apartments 000 X. Xxxxxxxxx Xxxxxxx Xxxxxxxxxx XX
48 Interline Portfolio - Nashville 00 Xxxxxxxx Xxxxx Xx Xxxxxx XX
49 Hilton Garden Inn - Chattanooga 0000 Xxxxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxxx XX
50 Bridgeworks Retail 000-000 0xx Xxxxxx Xxx Xxxxx XX
00 Xxxxxxx Xxxxxxx 0000 Xxxxxxxx Xxxxxx Xxxxxxxx XX
00 Xxxxxxxxx Xxxxxxxxxx 00 Xxxx Xxxxxxx Xxxx Xxxxxx OR
56 BRT Self Storage 00 Xxx Xxxxxxx Xx, 00-000 Xxxxxx Xxxxx Rd, and 0 Xxxxxxxxx Xx Xxxxxxx XX
57 00 Xxxxxxxxxx Xxxxx 00 Xxxxxxxxxx Xxxxx Xxx Xxxx XX
58 La Mirada Plaza 0000 X. Xxxx Xx. Xxxxxxxxx XX
60 0000 Xxxxxxx Xxxxxxxxx 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxx Xxxx XX
62 Hampton Inn - Beaumont 0000 Xxxxxxxxxx 00 Xxxxx Xxxxxxxx XX
63 Crossroads Shopping Center 0000-0000 Xxxx Xxxx Xxxxxx XX
64 Woodland Village Townhomes 00 Xxxxxxxx Xxxxx Xxxxxxxx XX
65 Xxxxxx Creek Apartments 0000 Xxxx Xxxxxx Xxxx Xxxxxxxxxx XX
00 Xxxxxxxxxxx Xxxxxxx Shopping Center 0000 X. Xxxxxxxx Xxxxxxxxx Xxxxxx XX
00 Xx. Xxxx'x Xxxxx 0000-0000 Xxxx Xx. Xxxx'x Xxxx Xxxxxx XX
69 Glendale Food City Shopping Center 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx XX
00 Xxxxxxx Xxx - Xxxxxxx Xxxx 0000 Xxxxxx Xxxx Xxxxxxx XX
71 000 Xxxx Xxxx 000 Xxxx Xxxx Xxxxx Xxxx XX
72 000 Xxxxx Xxxxxxx 000 X. Xxxxxxx Xxxx. Xxxxxxx XX
00 Xxxxxx Xxxx Apartments 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx XX
77 Summer Xxxx Apartments 0000 Xxxxxxx Xxxx Xxxx Xxxxxx XX
78 Decatur Hacienda Business Center 0000-0000 Xxxx Xxxxxxxx Xxxxxx Xxx Xxxxx XX
79 Comfort Inn - Jamestown 0000 X. Xxxx Xxxxxx Xxxxxxxx XX
80 Xxxxxxx Inn - Augusta 0000 Xxxxxx Xxxx Xxxxxxx XX
81 0000-0000 Xxx Xxxx Xxxx 0000-0000 Xxx Xxxx Xxxx Xxx Xxxx XX
82 New England Building 000 Xxxxx Xxxxxx Xxxxxx Xxxxxx XX
83 Storage Depot North 0000 X. 0xx Xxxxxx Xxxxxxxxxx XX
REMAINING
MORTGAGE TERM REMAINING INTEREST ADMINISTRATIVE
LOAN ZIP CUT-OFF MONTHLY MORTGAGE TO MATURITY AMORTIZATION ACCRUAL COST
NUMBER CODE DATE BALANCE P&I PAYMENT RATE MATURITY DATE TERM BASIS RATE
-------- ----- ------------- ----------- -------- --------- ---------- ------------ -------- --------------
3 60606 95,500,000.00 445,804.83 5.52500 59 2/11/2011 0 Act/360 0.02110
4 21224 95,000,000.00 549,275.14 5.66500 119 2/11/2016 360 Act/360 0.02110
5 30350 60,000,000.00 289,465.28 5.71000 58 1/11/2011 0 Act/360 0.02110
6 32822 59,000,000.00 341,688.84 5.68000 118 1/11/2016 360 Act/360 0.02110
7 10022 56,334,695.00 329,877.91 5.70400 111 6/11/2015 360 Act/360 0.02110
8 10019 55,000,000.00 336,016.67 5.79000 118 1/11/2016 324 Act/360 0.02110
13 33309 33,000,000.00 191,950.59 5.72000 119 2/11/2016 360 Act/360 0.02110
19 37902 20,412,516.01 118,592.65 5.67000 116 11/11/2015 356 Act/360 0.02110
21 75254 18,200,000.00 104,252.96 5.58000 118 1/11/2016 360 Act/360 0.02110
22 37923 18,000,000.00 104,814.53 5.73000 118 1/11/2016 360 Act/360 0.02110
25 75248 15,840,000.00 73,340.67 5.48000 57 12/11/2010 0 Act/360 0.02110
27 33607 14,100,000.00 83,722.49 5.91000 82 1/11/2013 360 Act/360 0.02110
28 75150 13,600,000.00 77,903.31 5.58000 118 1/11/2016 360 Act/360 0.02110
29 77067 12,132,957.00 70,087.02 5.66000 118 1/11/2016 360 Act/360 0.02110
30 55902 12,000,000.00 76,876.64 5.94000 120 3/11/2016 300 Act/360 0.08110
31 10018 11,750,000.00 56,885.50 5.73000 59 2/11/2011 0 Act/360 0.02110
32 21146 11,687,209.32 66,862.72 5.52000 115 10/11/2015 355 Act/360 0.02110
34 78218 10,700,000.00 61,156.83 5.56000 118 1/11/2016 360 Act/360 0.02110
35 75287 10,380,000.00 48,060.36 5.48000 57 12/11/2010 0 Act/360 0.02110
36 48066 9,968,095.67 62,548.57 5.69000 118 1/11/2016 298 Act/360 0.02110
37 48034 9,759,499.37 57,751.67 5.84000 116 11/11/2015 356 Act/360 0.02110
41 75146 9,267,373.06 54,273.52 5.77000 119 2/11/2016 359 Act/360 0.02110
42 75063 9,100,000.00 42,133.84 5.48000 57 12/11/2010 0 Act/360 0.02110
43 75061 8,800,000.00 40,744.81 5.48000 57 12/11/2010 0 Act/360 0.02110
44 32606 8,750,000.00 50,951.51 5.73000 119 2/11/2016 360 Act/360 0.02110
45 19131 8,646,000.00 51,171.99 5.88000 170 5/11/2020 360 Act/360 0.02110
46 75238 8,600,000.00 49,914.44 5.70000 118 1/11/2016 360 Act/360 0.02110
47 75067 8,580,000.00 39,726.19 5.48000 57 12/11/2010 0 Act/360 0.02110
48 37086 8,516,286.68 52,060.41 5.78000 119 2/11/2016 323 Act/360 0.02110
49 37421 8,484,787.08 54,350.70 5.92000 119 2/11/2016 299 Act/360 0.02110
50 92101 8,400,000.00 51,120.79 6.14000 60 3/11/2011 360 Act/360 0.02110
51 37064 8,400,000.00 49,823.47 5.90000 120 3/11/2016 360 Act/360 0.02110
52 97035 8,250,000.00 46,687.43 5.47000 113 8/11/2015 360 Act/360 0.02110
56 06810 7,134,468.96 42,730.05 5.97000 118 1/11/2016 358 Act/360 0.08110
57 10003 7,000,000.00 40,539.35 5.68000 120 3/11/2016 360 Act/360 0.02110
58 34741 7,000,000.00 43,615.43 5.65000 117 12/11/2015 300 Act/360 0.08110
60 66211 6,900,000.00 40,003.91 5.69000 118 1/11/2016 360 Act/360 0.02110
62 77705 6,729,459.35 38,764.17 5.61000 118 1/11/2016 358 Act/360 0.02110
63 95603 6,684,788.90 38,886.83 5.70000 118 1/11/2016 358 Act/360 0.02110
64 06105 6,650,000.00 38,807.59 5.75000 120 3/11/2016 360 Act/360 0.02110
65 75006 6,640,000.00 38,918.13 5.79000 116 11/11/2015 360 Act/360 0.02110
66 32720 6,491,015.07 37,397.15 5.62000 119 2/11/2016 359 Act/360 0.02110
67 85745 6,160,980.81 35,839.73 5.70000 118 1/11/2016 358 Act/360 0.02110
69 85301 6,111,094.33 35,549.53 5.70000 118 1/11/2016 358 Act/360 0.02110
70 30909 5,989,076.54 37,710.13 5.74000 119 2/11/2016 299 Act/360 0.02110
71 77478 5,900,000.00 35,536.52 5.65000 119 2/11/2016 324 Act/360 0.02110
72 92805 5,800,000.00 33,296.58 5.60000 120 3/11/2016 360 Act/360 0.02110
74 77061 5,693,763.39 34,185.90 5.17000 114 9/1/2015 294 Act/360 0.08110
77 75238 5,350,000.00 30,713.23 5.60000 118 1/11/2016 360 Act/360 0.02110
78 89118 4,993,335.51 29,881.16 5.97000 119 2/11/2016 359 Act/360 0.02110
79 14701 4,885,474.90 32,263.25 6.23000 118 1/11/2016 298 Act/360 0.02110
80 30909 4,841,170.20 30,482.36 5.74000 119 2/11/2016 299 Act/360 0.02110
81 91405 4,777,186.49 28,239.39 5.84000 117 12/11/2015 357 Act/360 0.02110
82 66603 4,600,000.00 26,320.68 5.57000 119 2/11/2016 360 Act/360 0.02110
83 17110 4,570,851.01 28,056.05 5.43000 116 11/11/2015 296 Act/360 0.02110
MORTGAGE
LOAN
NUMBER PRIMARY SERVICING FEE GROUND LEASE? MORTGAGE LOAN SELLER DEFEASANCE ARD MORTGAGE LOAN
-------- --------------------- -------------------- -------------------- ----------------- -----------------
3 0.00 Fee Simple LB Yield Maintenance No
4 0.00 Fee Simple LB Defeasance No
5 0.00 Fee Simple LB Yield Maintenance No
6 0.00 Fee Simple LB Defeasance No
7 0.00 Leasehold LB Defeasance No
8 0.00 Leasehold LB Defeasance No
13 0.00 Fee Simple LB Defeasance No
19 0.00 Fee Simple LB Defeasance No
21 0.00 Fee Simple LB Defeasance No
22 0.00 Fee Simple LB Yield Maintenance No
25 0.00 Fee Simple LB Defeasance No
27 0.00 Fee Simple LB Defeasance No
28 0.00 Fee Simple LB Defeasance No
29 0.00 Fee Simple LB Defeasance No
30 0.07 Fee Simple LB Defeasance No
31 0.00 Fee Simple LB Yield Maintenance No
32 0.00 Fee Simple LB Defeasance No
34 0.00 Fee Simple LB Defeasance No
35 0.00 Fee Simple LB Defeasance No
36 0.00 Fee Simple LB Defeasance No
37 0.00 Fee Simple LB Defeasance No
41 0.00 Fee Simple LB Defeasance No
42 0.00 Fee Simple LB Defeasance No
43 0.00 Fee Simple LB Defeasance No
44 0.00 Fee Simple LB Defeasance No
45 0.00 Fee Simple LB Yield Maintenance No
46 0.00 Fee Simple LB Defeasance No
47 0.00 Fee Simple LB Defeasance No
48 0.00 Fee Simple LB Defeasance No
49 0.00 Fee Simple LB Defeasance No
50 0.00 Fee Simple LB Defeasance No
51 0.00 Fee Simple LB Defeasance No
52 0.00 Fee Simple LB Defeasance No
56 0.07 Fee Simple LB Defeasance No
57 0.00 Fee Simple LB Yield Maintenance No
58 0.07 Fee Simple LB Defeasance No
60 0.00 Fee Simple LB Defeasance No
62 0.00 Fee Simple LB Defeasance No
63 0.00 Fee Simple LB Yield Maintenance No
64 0.00 Fee Simple LB Defeasance No
65 0.00 Fee Simple LB Yield Maintenance No
66 0.00 Fee Simple LB Defeasance No
67 0.00 Fee Simple LB Yield Maintenance No
69 0.00 Fee Simple LB Yield Maintenance No
70 0.00 Fee Simple LB Defeasance No
71 0.00 Fee Simple LB Defeasance No
72 0.00 Fee Simple LB Defeasance No
74 0.07 Fee Simple LB Defeasance No
77 0.00 Fee Simple LB Defeasance No
78 0.00 Fee Simple LB Defeasance No
79 0.00 Fee Simple LB Defeasance No
80 0.00 Fee Simple LB Defeasance No
81 0.00 Fee Simple LB Defeasance No
82 0.00 Fee Simple LB Defeasance No
83 0.00 Fee Simple/Leasehold LB Defeasance No
MORTGAGE
LOAN
NUMBER ANTICIPATED REPAYMENT DATE ARD SPREAD CROSS COLLATERALIZED MORTGAGE LOAN SELLER LOAN ID
-------- -------------------------- ---------- -------------------- ----------------------------
3 X/X X/X Xx 000000000
0 X/X X/X No 051122069
5 X/X X/X Xx 000000000
0 X/X X/X No 051019003
7 X/X X/X Xx 000000000
0 X/X X/X No 051031005
13 X/X X/X Xx 000000000
00 X/X X/X No 050801006
21 X/X X/X Xx 000000000
00 X/X X/X No 051005009
25 X/X X/X Xx 000000000
00 X/X X/X No 051017004
28 X/X X/X Xx 000000000
00 X/X X/X No 051209006
30 X/X X/X Xx 000000000
00 X/X X/X No 050914003
32 X/X X/X Xx 000000000
00 X/X X/X No 051108006
35 X/X X/X Xx 000000000
00 X/X X/X No 050831015
37 X/X X/X Xx 000000000
00 X/X X/X No 051102005
42 N/A N/A No 051019009
43 X/X X/X Xx 000000000
00 X/X X/X No 050202009
45 X/X X/X Xx 000000000
00 X/X X/X No 051114007
47 X/X X/X Xx 000000000
00 X/X X/X Yes (LB-B) 060123001
49 X/X X/X Xx 000000000
00 X/X X/X No 050916001
51 X/X X/X Xx 000000000
00 X/X X/X No 050607003
56 X/X X/X Xx 000000000
00 X/X X/X No 050727004
58 N/A N/A No 050707002
60 X/X X/X Xx 000000000
00 X/X X/X No 050810005
63 X/X X/X Xx 000000000
00 X/X X/X No 051109004
65 X/X X/X Xx 000000000
00 X/X X/X No 051103005
67 N/A N/A No 051101009
69 X/X X/X Xx 000000000
00 X/X X/X Yes (LB-D) 050907002
71 X/X X/X Xx 000000000
00 X/X X/X No 050815004
74 X/X X/X Xx 000000000
00 X/X X/X No 051107008
78 N/A N/A No 050719001
79 X/X X/X Xx 000000000
00 X/X X/X Yes (LB-D) 050907003
81 X/X X/X Xx 000000000
00 X/X X/X No 051026001
83 N/A N/A No 050516006
MORTGAGE
LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE
-------- ----------------------------------- ------------------------------------------------------------- --------------- -----
85 Villas of Southland 0000 Xxxxxxx Xxxxx Xxxxxxx XX
91 Xxxxxxxx Self Storage 0000 Xxxxxxxx Xxxxxxx Xxxxxxx XX
93 Forest Mart Shopping Center 0000-0000 Xxxxxxx Xxxx Xxxxxxxxxxxx XX
94 Lumberton & Silsbee Xxxxxxx Xxxxxxx XX
00 Xxxxxxxxx Xxxxxx Xxxx 0000-0000 Xxxx Xxxxxxx 00 Xxxx XX
97 Century Apartments 0000 00xx Xxxxxx Xxxx Xxxxxxxxx XX
98 Fraser Valley Shopping Center 000-000 Xxxxx Xxxxxx Xxxxxx XX
99 Shops at Scenic Highway 0000 Xxxxxx Xxxxxxx Xxxxxxxxxx XX
101 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxxxxx XX
000 Xxxxx Xxxxxxxx Xxxx 0000 XxXxx Xxxxx Xxxxxxxxxx XX
105 Interline Portfolio - Bristol 0000 Xxxxxxx Xxxx Xxxxxxx XX
000 Xxxx Xxxxxxx Xxxxxxxxx 0000 Xxxxxx Xxxxx Xxxxxxxxx XX
107 Interline Portfolio - El Paso 0000 Xxxxxxxxxx Xxxxxx Xx Xxxx XX
109 Athens Shopping Center 0000 Xxxxxxx 00 Xxxx Xxxxxx XX
000 Xxxxxxxx Xxxx Center Phase ll 000 Xxxxxxxxxx Xxxxx Xxxxxxxx XX
000 Xxxx Xxxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxx Xxxxxx Xxxxxxxxx XX
113 Tuffy Auto Center 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxx XX
000 Xxxxxx'x Xxxxx 000 Xxxxxx Xxxx Xxxxxxxxxx XX
000 Xxxxxxxxx xx Xxxxxxx Xxxxx 000-000 00xx Xxxxxx Xxxxx Xxxxxxxx XX
117 Interline Portfolio - Orlando 0000 Xxxxxxxx Xxx Xxxxxx Xxxxxxx XX
000 Xxxxxx Xxxx Mini Storage 0000 Xxxxxx Xxxx Xxxxxxxxx XX
122 Interline Portfolio - Birmingham 0000 0xx Xxxxxx Xxxxx Xxxxxxxxxx XX
123 Interline Portfolio - Phoenix 0000 Xxxx Xxxxxxx Xxxx Xxxxxxx XX
REMAINING
MORTGAGE TERM REMAINING INTEREST ADMINISTRATIVE
LOAN ZIP CUT-OFF MONTHLY MORTGAGE TO MATURITY AMORTIZATION ACCRUAL COST
NUMBER CODE DATE BALANCE P&I PAYMENT RATE MATURITY DATE TERM BASIS RATE
-------- ------- ------------- ----------- -------- --------- ---------- ------------ -------- --------------
85 49024 4,493,759.81 25,805.19 5.59000 119 2/11/2016 359 Act/360 0.02110
91 77077 3,600,000.00 20,940.06 5.72000 120 3/11/2016 360 Act/360 0.02110
93 30134 3,407,115.75 21,229.63 5.97000 59 2/11/2011 323 Act/360 0.02110
94 Various 3,392,280.95 19,733.61 5.70000 118 1/11/2016 358 Act/360 0.02110
96 46123 3,375,000.00 20,213.14 5.99000 60 3/11/2011 360 Act/360 0.02110
97 58601 3,289,892.70 21,241.78 5.99000 118 1/11/2016 298 Act/360 0.08110
98 80442 3,100,000.00 18,506.42 5.96000 118 1/11/2016 360 Act/360 0.08110
99 30078 3,000,000.00 17,679.08 5.84000 120 3/11/2016 360 Act/360 0.02110
101 08701 2,894,710.23 18,191.55 5.72000 119 2/11/2016 299 Act/360 0.02110
102 75007 2,718,803.25 15,798.65 5.69000 118 1/11/2016 358 Act/360 0.08110
105 19007 2,396,141.62 14,647.71 5.78000 119 2/11/2016 323 Act/360 0.02110
106 76015 2,286,259.69 14,566.90 5.82000 116 11/11/2015 296 Act/360 0.02110
107 79915 2,196,463.15 13,427.07 5.78000 119 2/11/2016 323 Act/360 0.02110
109 35611 2,147,040.62 12,424.16 5.66000 119 2/11/2016 359 Act/360 0.02110
110 75087 2,082,691.22 11,931.46 5.50000 112 7/11/2015 352 Act/360 0.02110
112 55113 2,000,000.00 11,595.34 5.69000 119 2/11/2016 360 Act/360 0.11110
113 28273 1,895,832.17 11,281.75 5.91000 118 1/11/2016 358 Act/360 0.08110
114 01106 1,815,840.87 10,517.20 5.66000 118 1/11/2016 358 Act/360 0.08110
116 56560 1,696,184.45 9,942.35 5.77000 118 1/11/2016 358 Act/360 0.11110
117 32808 1,617,395.59 9,887.21 5.78000 119 2/11/2016 323 Act/360 0.02110
121 28205 998,663.02 5,956.98 5.94000 119 2/11/2016 359 Act/360 0.08110
122 35203 998,392.35 6,103.21 5.78000 119 2/11/2016 323 Act/360 0.02110
123 85009 948,472.73 5,798.05 5.78000 119 2/11/2016 323 Act/360 0.02110
MORTGAGE
LOAN
NUMBER PRIMARY SERVICING FEE GROUND LEASE? MORTGAGE LOAN SELLER DEFEASANCE ARD MORTGAGE LOAN
-------- --------------------- -------------------- -------------------- ----------------- -----------------
85 0.00 Fee Simple LB Defeasance No
91 0.00 Fee Simple LB Defeasance No
93 0.00 Fee Simple LB Defeasance No
94 0.00 Fee Simple LB Defeasance No
96 0.00 Fee Simple LB Defeasance No
97 0.07 Fee Simple LB Defeasance No
98 0.07 Fee Simple LB Defeasance No
99 0.00 Fee Simple LB Defeasance No
101 0.00 Fee Simple LB Defeasance No
102 0.07 Fee Simple LB Defeasance No
105 0.00 Fee Simple LB Defeasance No
106 0.00 Fee Simple LB Defeasance No
107 0.00 Fee Simple LB Defeasance No
109 0.00 Fee Simple LB Defeasance No
110 0.00 Fee Simple LB Defeasance No
112 0.10 Fee Simple LB Defeasance No
113 0.07 Fee Simple LB Defeasance No
114 0.07 Fee Simple LB Defeasance No
116 0.10 Fee Simple LB Defeasance No
117 0.00 Fee Simple LB Defeasance No
121 0.07 Fee Simple LB Defeasance No
122 0.00 Fee Simple LB Defeasance No
123 0.00 Fee Simple LB Defeasance No
MORTGAGE
LOAN
NUMBER ANTICIPATED REPAYMENT DATE ARD SPREAD CROSS COLLATERALIZED MORTGAGE LOAN SELLER LOAN ID
-------- -------------------------- ---------- -------------------- ----------------------------
85 N/A N/A No 050926003
91 X/X X/X Xx 000000000
00 X/X X/X No 051024007
94 X/X X/X Xx 000000000
00 X/X X/X No 051028005
97 X/X X/X Xx 000000000
00 X/X X/X No 050930002
99 X/X X/X Xx 000000000
000 X/X X/X No 051012004
000 X/X X/X Xx 000000000
000 X/X X/X Yes (LB-B) 060123002
000 X/X X/X Xx 000000000
000 X/X X/X Yes (LB-B) 060123004
109 N/A N/A No 051031003
000 X/X X/X Xx 000000000
000 X/X X/X No 051116005
000 X/X X/X Xx 000000000
000 X/X X/X No 051108001
000 X/X X/X Xx 000000000
000 X/X X/X Yes (LB-B) 060123005
000 X/X X/X Xx 000000000
000 X/X X/X Yes (LB-B) 060123003
123 N/A N/A Yes (LB-B) 060123006
EXHIBIT B-1
OPINION OF SIDLEY AUSTIN LLP
[LETTERHEAD OF SIDLEY AUSTIN LLP]
[LOGO OMITTED]
SIDLEY AUSTIN LLP BEIJING GENEVA SAN FRANCISCO
000 XXXXXXX XXXXXX XXXXXXXX XXXX XXXX SHANGHAI
XXX XXXX, XX 00000 CHICAGO LONDON SINGAPORE
(000) 000 0000 DALLAS LOS ANGELES TOKYO
(000) 000 0000 FAX FRANKFURT NEW YORK WASHINGTON,DC
FOUNDED 1866
APRIL 10, 2006
To the Parties Listed on Annex A hereto:
Re: LB-UBS Commercial Mortgage Trust 2006-C3
Commercial Mortgage Pass-Through Certificates,
Series 2006-C3
Ladies and Gentlemen:
We have acted as special counsel to Xxxxxx Brothers Holdings
Inc. ("LBHI"), in connection with the following transactions (collectively, the
"Transactions"):
(i) the sale by LBHI, and the purchase by Structured Asset
Securities Corporation II (the "Depositor"), of certain multifamily and
commercial mortgage loans (collectively, the "LBHI Mortgage Loans"),
pursuant to the LBHI Mortgage Loan Purchase Agreement, dated as of
April 3, 2006 (the "LBHI Mortgage Loan Purchase Agreement"), between
LBHI as seller and the Depositor as purchaser; and
(ii) the negotiation and execution of the LBHI Indemnification
Agreement, dated as of April 3, 2006 (the "LBHI Indemnification
Agreement"), between LBHI, the Depositor, Xxxxxx Brothers Inc. and UBS
Securities LLC.
In the course of our acting as special counsel to LBHI as
described above, we prepared or reviewed the LBHI Mortgage Loan Purchase
Agreement and the LBHI Indemnification Agreement (collectively, the
"Agreements"). Capitalized terms not defined herein have the respective meanings
set forth in the LBHI Mortgage Loan Purchase Agreement and, to the extent not
defined therein, in the LBHI Indemnification Agreement.
For purposes of rendering the opinions set forth below, we
have also examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents and records as we have deemed relevant or
necessary as the basis for such opinions; we have obtained such certificates
from and made such inquiries of officers and representatives of the parties to
the Agreements and public officials as we have deemed relevant or necessary as
the basis for such opinions; and we have relied upon, and assumed the accuracy
of, such other documents and records, such certificates and the statements made
in response to such inquiries, with respect to the factual matters upon which
such opinions are based. We have also assumed (i) the truthfulness and accuracy
of each of the representations and warranties as to factual matters contained in
the Agreements, (ii) the legal capacity of natural persons, (iii) the
genuineness of all signatures, (iv) the authenticity of all documents submitted
to us as originals, (v) the conformity to authentic originals of all documents
submitted to us as certified, conformed or photostatic copies, (vi) the due
organization of each of the parties to the Agreements and the
Sidley Austin LLP is a limited liability partnership practicing in
affiliation with other Sidley Austin partnerships
B-1-1
[LOGO OMITTED] April 10, 2006
Page 2 New York
valid existence of each such party in good standing under the laws of its
jurisdiction of organization, (vii) except as expressly addressed in opinion
paragraphs 1 and 2 below, the power and authority of all parties to the
Agreements to enter into, perform under and consummate the transactions
contemplated by the Agreements, without any resulting conflict with or violation
of the organizational documents of any such party or with or of any law, rule,
regulation, order, writ or decree applicable to any such party or its assets,
and without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of each of the Agreements by all parties thereto, (ix)
except as expressly addressed in opinion paragraph 3 below, that each of the
Agreements is the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms, (x) the compliance
with the Agreements by all parties thereto, and (xi) the absence of any other
agreement that supplements or otherwise modifies the express terms of the
Agreements.
Our opinions set forth below with respect to the
enforceability of any agreement or any particular right or obligation under any
agreement are subject to: (1) general principles of equity, including concepts
of materiality, reasonableness, good faith and fair dealing and the doctrine of
estoppel; (2) the possible unavailability of specific performance and injunctive
relief, regardless of whether considered in a proceeding in equity or at law;
(3) the effect of certain laws, rules, regulations and judicial and other
decisions upon the enforceability of (a) any provision that purports to waive
(i) the application of any federal, state or local statute, rule or regulation,
(ii) the application of any general principles of equity or (iii) the obligation
of diligence, (b) any provision that purports to grant any remedies that would
not otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not in writing and executed by all
relevant parties, to sever any provision of any agreement, to appoint any person
or entity as the attorney-in-fact of any other person or entity or to provide
that any agreement or any particular provision thereof is to be governed by or
construed in accordance with the laws of any jurisdiction other than the State
of New York; (4) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws affecting the rights of creditors or secured parties
generally; and (5) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
any provision of any agreement that purports or is construed to provide
indemnification with respect to securities law violations.
B-1-2
[LOGO OMITTED] April 10, 2006
Page 3 New York
When used in this opinion, the term "knowledge" or words of
similar import mean the actual knowledge of facts or other information of the
Sidley Austin LLP attorneys currently practicing law with this firm who have
been actively involved in the above-described representation of LBHI. In that
regard we have conducted no special or independent investigation of factual
matters in connection with this opinion letter.
In rendering the opinions set forth below, we do not express
any opinion concerning the laws of any jurisdiction other than the General
Corporation Law of the State of Delaware (solely with respect to opinion
paragraph 2 below), the laws of the State of New York and, where expressly
referred to below, the federal laws of the United States of America (in each
case, without regard to conflicts of law principles). In addition, we do not
express any opinion with respect to the tax, securities or "doing business" laws
of any particular State, including the State of New York, or with respect to any
matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The execution, delivery and performance by LBHI of the
Agreements do not conflict with, or result in a violation of, any
federal or State of New York statute, or any rule or regulation
promulgated thereunder or pursuant thereto, which statute, rule or
regulation is applicable to LBHI (except for any such conflict or
violation as would not have a material adverse effect on the
performance by LBHI of its obligations under the Agreements).
2. The terms of the Agreements (insofar as they apply to LBHI)
do not conflict with, or result in the violation of, any provision of
the General Corporation Law of the State of Delaware that is applicable
to LBHI (except for any such conflict or violation as would not have a
material adverse effect on the performance by LBHI of its obligations
under the Agreements).
3. The LBHI Mortgage Loan Purchase Agreement is a valid, legal
and binding agreement of LBHI, enforceable against LBHI in accordance
with its terms.
4. No consent, approval, authorization or order of any federal
or State of New York court, agency or other governmental body is
required for the consummation by LBHI of the transactions contemplated
by the terms of the Agreements, except such as have been obtained.
The opinions expressed herein are being delivered to you as of
the date hereof, and we assume no obligation to advise you of any changes of law
or fact that may occur after the date hereof, notwithstanding that such changes
may affect the legal analysis or conclusions contained herein. This opinion
letter is solely for your benefit in connection with the Transactions and may
not be relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
B-1-3
ANNEX A
Structured Asset Securities Corporation II Standard & Poor's Ratings Services,
000 Xxxxxxx Xxxxxx a division of The XxXxxx-Xxxx
Xxx Xxxx, Xxx Xxxx 00000 Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC Wachovia Bank, National Association
1285 Avenue of the Americas NC 1075
Xxx Xxxx, Xxx Xxxx 00000 0000 Xxxxxxxx Xxxxx, XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000
Xxxxxx Brothers Holdings Inc. LaSalle Bank National Association
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10019 Xxxxxxx, Xxxxxxxx 00000
CWCapital Asset Management LLC
000 Xxxxxxx Xxxxxx, X.X., Xxxxx 0
Xxxxxxxxxx, X.X. 00000
X-0-0
XXXXXXX X-0
OPINION OF IN-HOUSE COUNSEL TO THE SELLER
[LETTERHEAD OF XXXXXX BROTHERS INC.]
April 10, 2006
Structured Asset Securities Corporation II CWCapital Asset Management LLC
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxxx, X.X. 00000
Xxxxxx Brothers Inc. LaSalle Bank National Association
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10019 Xxxxxxx, Xxxxxxxx 00000
UBS Securities LLC Xxxxx'x Investors Service, Inc.
1285 Avenue of the Americas 00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10019 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Holdings Inc. Standard & Poor's Ratings Services,
000 Xxxxxxx Xxxxxx a division of The XxXxxx-Xxxx
Xxx Xxxx, Xxx Xxxx 00000 Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Wachovia Bank, National Association
NC 1075
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: LB-UBS Commercial Mortgage Trust 2006-C3
Commercial Mortgage Pass-Through Certificates,
Series 2006-C3
Ladies and Gentlemen:
I am internal counsel to Xxxxxx Brothers Holdings Inc.
("Xxxxxx"). I am familiar with matters pertaining to the following agreements
(collectively, the "Agreements"):
(i) the LBHI Mortgage Loan Purchase Agreement dated
as of April 3, 2006, (the "LBHI Mortgage Loan Purchase Agreement"),
between Xxxxxx and Structured Asset Securities Corporation II ("SASCO
II"); and
(ii) the LBHI Indemnification Agreement dated as of
April 3, 2006, between Xxxxxx, SASCO II, Xxxxxx Brothers Inc. ("LBI")
and UBS Securities LLC ("UBS Securities").
B-2-1
Structured Asset Securities Corporation II
Xxxxxx Brothers Inc.
UBS Securities LLC
Xxxxxx Brothers Holdings Inc.
LaSalle Bank National Association
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
Wachovia Bank, National Association
CWCapital Asset Management LLC
April 10, 2006
Page 2
You have asked for my opinion regarding various legal matters
involving, among other things, Xxxxxx and the Agreements.
As to matters of fact material to this opinion, I have relied,
without independent investigation on (i) the representations and warranties of
Xxxxxx in the Agreements, (ii) the relevant resolutions of the Board of
Directors of Xxxxxx, (iii) certificates of responsible officers of Xxxxxx, and
(iv) certificates of public officials. In this connection, I have examined or
have caused to be examined on my behalf, a copy of each of the Agreements and
such other documents and instruments which I have deemed necessary or
appropriate in connection with this opinion.
I have relied on originals or copies, certified or otherwise
identified to my satisfaction, of the certificate of incorporation and by-laws
of Xxxxxx, records of proceedings taken by Xxxxxx and other corporate documents
and records of Xxxxxx, and have made such other investigations as I have deemed
relevant or necessary for the purpose of this opinion. I have assumed, without
independent investigation, the genuineness of all signatures (other than those
of officers of Xxxxxx), the authenticity of all documents submitted to me as
originals and the conformity to authentic original documents of all documents
submitted to me as certified, conformed or reproduction copies.
On the basis of and subject to the foregoing, it is my opinion
that:
(1) Xxxxxx is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. Xxxxxx
has the requisite corporate power and authority to transact business in the
manner described in the Agreements and to consummate the transactions
contemplated by the Agreements.
(2) Each Agreement has been duly authorized, executed and
delivered by Xxxxxx.
(3) The execution, delivery and performance of the Agreements
by Xxxxxx, (i) to my knowledge, do not and will not result in a material breach
or violation of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to me to which Xxxxxx is a party, (ii) do not contravene
Xxxxxx'x certificate of incorporation or by-laws, and (iii) to my knowledge, do
not contravene any order of any court or governmental agency that names Xxxxxx
and is specifically directed to its property (except for such breaches,
violations, defaults or contraventions as would not have a material adverse
effect on the ability of Xxxxxx to perform its obligations under the
Agreements).
B-2-2
Structured Asset Securities Corporation II
Xxxxxx Brothers Inc.
UBS Securities LLC
Xxxxxx Brothers Holdings Inc.
LaSalle Bank National Association
Standard & Poor's Ratings Services
Xxxxx'x Investors Service, Inc.
Wachovia Bank, National Association
CWCapital Asset Management LLC
April 10, 2006
Page 3
The foregoing opinions are subject to the following additional
assumptions, exceptions, qualifications and limitations:
A. I am a member of the Bar of the State of New York and
render no opinion as to the laws of any jurisdiction
other than the laws of the State of New York, the
General Corporation Law of the State of Delaware and
the federal laws of the United States of America.
B. My opinions are limited to the present laws and to
the facts as they presently exist. I assume no
obligation to revise or supplement this opinion
should the present laws of any jurisdiction referred
to in paragraph A. above be changed by legislative
action, judicial decision or otherwise.
This opinion is being delivered to you for your sole use in
connection with the Agreements and the related transactions and may not be used
or relied upon by any other person, firm or entity in any other context for any
other purpose. This opinion may not be quoted in whole or part, nor may copies
be furnished or delivered to any other person without my express written
consent.
The foregoing opinions are given on the express understanding
that the undersigned is an officer of Xxxxxx Brothers Inc. and shall in no event
incur any personal liability in connection with the said opinions.
Very truly yours,
B-2-3
