MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of July 20, 2001 (the
"Agreement"), between UBS Warburg Real Estate Investments Inc. (together with
its successors and permitted assigns hereunder, the "Seller"), UBS Principal
Finance LLC, a Delaware limited liability company, as an additional party
responsible for the Seller's obligations hereunder (in such capacity, together
with its successors and permitted assigns hereunder, the "Additional Party") and
Structured Asset Securities Corporation (together with its successors and
permitted assigns hereunder, the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans") as
provided herein. The Purchaser intends to deposit the Mortgage Loans, together
with certain other multifamily and commercial mortgage loans (the "Other Loans";
and, together with the Mortgage Loans, the "Securitized Loans"), into a trust
fund (the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to the Trust Fund. The Certificates will be
issued pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), to be dated as of July 11, 2001, among the Purchaser as depositor,
First Union National Bank as master servicer (the "Master Servicer"), Lennar
Partners, Inc. as special servicer (the "Special Servicer"), LaSalle Bank
National Association as trustee (the "Trustee") and ABN AMRO Bank N.V. as fiscal
agent (the "Fiscal Agent"). Capitalized terms used but not defined herein have
the respective meanings set forth in the Pooling and Servicing Agreement, as in
effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with ▇▇▇▇▇▇ Brothers
Inc. ("▇▇▇▇▇▇"), UBS Warburg LLC ("UBSW") and Bear, ▇▇▇▇▇▇▇ & Co. Inc.
(collectively in such capacity, the "Underwriters"), whereby the Purchaser will
sell to the Underwriters all of the Certificates that are to be registered under
the Securities Act of 1933, as amended (the "Securities Act"). The Purchaser has
also entered into a Certificate Purchase Agreement (the "Certificate Purchase
Agreement"), dated as of the date hereof, with ▇▇▇▇▇▇ and UBSW (together in such
capacity, the "Placement Agents"), whereby the Purchaser will sell to the
Placement Agents all of the remaining Certificates (other than the Residual
Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
UBS (USA), Inc. (the "Co-Indemnitor"), the Purchaser, the Underwriters and the
Placement Agents have entered into an Indemnification Agreement (the
"Indemnification Agreement"), dated as of the date hereof.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans identified on the schedule (the
"Mortgage Loan Schedule") annexed hereto as Exhibit A. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans accepted by the
Purchaser pursuant to the terms hereof. The Mortgage Loans will have an
aggregate principal balance of $596,955,859 (the "Initial UBS Pool Balance") as
of the close of business on July 11, 2001 (the "Cut-off Date"), after giving
effect to any and all payments of principal
due thereon on or before such date, whether or not received. The purchase and
sale of the Mortgage Loans shall take place on July 30, 2001 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 104.98246% of the Initial UBS Pool Balance, plus interest accrued on each
Mortgage Loan at the related Net Mortgage Rate, for the period from and
including the Cut-off Date up to but not including the Closing Date, which cash
amount shall be paid to the Seller or its designee by wire transfer in
immediately available funds (or by such other method as shall be mutually
acceptable to the parties hereto) on the Closing Date; and (B) Certificates
representing a 43.2342% Percentage Interest in each of the Class R-I, Class R-II
and Class R-III Certificates, and a 100% Percentage Interest in the Class R-LR
Certificates (all such Residual Interest Certificates, the "Seller's Residual
Interest Certificates").
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction or waiver of the
conditions to closing set forth in Section 5 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the Mortgage
Loans identified on the Mortgage Loan Schedule as of such date (other than the
primary servicing rights and, in the case of the Polo Towne Crossing Mortgage
Loan, the right to the assumption fees that by the terms of the related loan
documents are payable to the Seller in connection with an assumption involving a
specified transferee entity). The Mortgage Loan Schedule, as it may be amended,
shall conform to the requirements set forth in this Agreement and the Pooling
and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of the
initial Purchaser, deliver to and deposit with the Trustee a Mortgage File for
each Mortgage Loan in accordance with the terms of, and conforming to the
requirements set forth in, the Pooling and Servicing Agreement. Concurrently
with such delivery, the Seller shall deliver copies of the Mortgage Note,
Mortgage(s) and any reserve and cash management agreements with respect to each
Mortgage Loan to the Master Servicer and the Special Servicer.
(d) The Seller shall, through an Independent third party (the
"Recording/Filing Agent") retained by it, as and in the manner provided in the
Pooling and Servicing Agreement (and in any event within 45 days following the
later of the Closing Date and the date on which all necessary recording or
filing, as applicable, information is available to the Recording/Filing Agent),
cause (i) each assignment of Mortgage, each assignment of Assignment of Leases
and each UCC-2 and UCC-3 assignment, in favor of, and delivered as part of the
related Mortgage File to, the Trustee, to be submitted for recordation or
filing, as the case may be, in the appropriate public office for real property
records or Uniform Commercial Code financing statements, as appropriate, and
(ii) such assignments to be delivered to the Trustee following their return by
the applicable public recording or filing office, as the case may be, with
copies of such returned assignments to be delivered to the Master Servicer on a
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monthly basis. If any such document or instrument is lost or returned unrecorded
or unfiled, as the case may be, because of a defect therein, then the Seller
shall prepare a substitute therefor or cure such defect or cause such to be
done, as the case may be, and the Seller shall deliver such substitute or
corrected document or instrument to the Trustee (or, if the Mortgage Loan is
then no longer subject to the Pooling and Servicing Agreement, to the then
holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all such
recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(e) All documents and records relating to the Mortgage Loans and in the
Seller's possession or under its control (the "Additional Mortgage Loan
Documents") that are not required to be delivered to the Trustee and that are
reasonably necessary for the servicing of each such Mortgage Loan or otherwise
reasonably requested by the Master Servicer in connection with its duties under
the Pooling and Servicing Agreement, together with all unapplied Escrow Payments
and Reserve Funds in the possession or under the control of the Seller that
relate to the Mortgage Loans and a statement indicating which Escrow Payments
and Reserve Funds are allocable to each Mortgage Loan, shall be delivered or
caused to be delivered by the Seller to the Master Servicer (or, at the
direction of the Master Servicer, to the appropriate sub-servicer).
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser,
as provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all actions required under applicable law to
effectuate the transfer of the Mortgage Loans by the Seller to the Purchaser.
(g) The Seller shall provide the Master Servicer the initial data with
respect to each Mortgage Loan for the CMSA Financial File and the CMSA Loan
Periodic Update File that are required to be prepared by the Master Servicer
pursuant to the Pooling and Servicing Agreement.
SECTION 3. Representations, Warranties and Covenants of Seller and
Additional Party.
(a) Each of the Seller and the Additional Party (each, for purposes of
this Section 3(a), a "Representing Party") hereby represent and warrant to and
covenant with the Purchaser, as of the date hereof, that:
(i) The Representing Party is duly organized or formed, as the
case may be, validly existing and in good standing as a legal entity under
the laws of the State of Delaware and possesses all requisite authority,
power, licenses, permits and franchises to carry on its business as
currently conducted by it and to execute, deliver and comply with its
obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Representing Party and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Representing
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Party, enforceable against the Representing Party in accordance with its
terms, except as such enforcement may be limited by (A) bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
affecting the enforcement of creditors' rights in general, and (B) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Representing Party and the Representing Party's performance and compliance
with the terms of this Agreement will not (A) violate the Representing
Party's organizational documents, (B) violate any law or regulation or any
administrative decree or order to which the Seller is subject or (C)
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material contract, agreement or other instrument to which the Representing
Party is a party or by which the Representing Party is bound.
(iv) The Representing Party is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the Representing Party's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Representing Party or
its properties or have consequences that would materially and adversely
affect its performance hereunder.
(v) The Representing Party is not a party to or bound by any
agreement or instrument or subject to any organizational document or any
other corporate or limited liability company (as applicable) restriction or
any judgment, order, writ, injunction, decree, law or regulation that would,
in the Representing Party's reasonable and good faith judgment, materially
and adversely affect the ability of the Representing Party to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution and delivery of this Agreement by the Representing
Party or the performance by the Representing Party of its obligations under
this Agreement.
(vi) Except for the recordation and/or filing of assignments and
other transfer documents with respect to the Mortgage Loans, as contemplated
by Section 2(d), no consent, approval, authorization or order of,
registration or filing with, or notice to, any court or governmental agency
or body, is required for the execution, delivery and performance by the
Representing Party of or compliance by the Representing Party with this
Agreement or the consummation of the transactions contemplated by this
Agreement; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Representing
Party's knowledge, threatened against the Representing Party that would, in
the Representing Party good faith and reasonable judgment, prohibit its
entering into this Agreement or materially and adversely affect the
performance by the Representing Party of its obligations under this
Agreement.
(viii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Representing Party are pending or
contemplated.
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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 hereof. In connection with the foregoing, the Seller shall
cause all of its records to reflect such transfer as a sale (as opposed to a
secured loan). The consideration received by the Seller upon the sale of the
Mortgage Loans to the Purchaser will constitute at least reasonably
equivalent value and fair consideration for the Mortgage Loans. The Seller
will be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is
not selling the Mortgage Loans to the Purchaser with any intent to hinder,
delay or defraud any of the creditors of the Seller. After giving effect to
its transfer of the Mortgage Loans to the Purchaser, as provided herein, the
value of the Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of the Seller's debts and
obligations, including contingent and unliquidated debts and obligations of
the Seller, and the Seller will not be left with unreasonably small assets
or capital with which to engage in and conduct its business. The Mortgage
Loans do not constitute all or substantially all of the assets of the
Seller. The Seller does not intend to, and does not believe that it will,
incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(ii) The Seller will acquire the Seller's Residual Interest
Certificates for its own account and not with a view to, or sale or transfer
in connection with, any distribution thereof, in whole or in part, in any
manner that would violate the Securities Act or any applicable state
securities laws.
(iii) The Seller understands that (A) the Seller's Residual
Interest Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (B) neither the Purchaser nor any other party is obligated
so to register or qualify the Seller's Residual Interest Certificates and
(C) neither the Seller's Residual Interest Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (1) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (2) sold or
transferred in a transaction which is exempt from such registration and
qualification and the Certificate Registrar has received the certifications
and/or opinions of counsel required by the Pooling and Servicing Agreement.
(iv) The Seller understands that it may not sell or otherwise
transfer the Seller's Residual Interest Certificates, any security issued in
exchange therefor or in lieu thereof or any interest in the foregoing except
in compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has or, as of the Closing Date,
will have carefully reviewed, and that the Seller's Residual Interest
Certificates will bear legends that identify the transfer restrictions to
which such Certificates are subject.
(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
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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 an "accredited investor" within the meaning of
paragraph (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an
entity in which all the equity owners come within such paragraphs and has
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in the Seller's
Residual Interest Certificates; the Seller has sought such accounting, legal
and tax advice as it has considered necessary to make an informed investment
decision; and the Seller is able to bear the economic risks of such an
investment and can afford a complete loss of such investment.
(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.
SECTION 4. Representations and Warranties of the Purchaser. In order to
induce the Seller to enter into this Agreement, the Purchaser hereby represents
and warrants for the benefit of the Seller and the Additional Party as of the
date hereof that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to
acquire the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to the Trustee.
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(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser and, assuming due authorization, execution
and delivery hereof by the Seller and the Additional Party, constitutes a
legal, valid and binding obligation of the Purchaser, enforceable against
the Purchaser in accordance with its terms, except as such enforcement may
be limited by (A) bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws affecting the enforcement of creditors'
rights in general, and (B) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of
this Agreement will not (A) violate the Purchaser's organizational
documents, (B) violate any law or regulation or any administrative decree or
order to which the Purchaser is subject or (C) constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material contract, agreement
or other instrument to which the Purchaser is a party or by which the
Purchaser is bound.
(iv) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required for the execution, delivery and
performance by the Purchaser of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction described
in this Agreement.
(v) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof.
SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller or the Additional Party discovers or receives notice
of a Document Defect or a breach of any of its representations and warranties
made pursuant to Section 3(b) hereof (each such breach, a "Breach") relating to
any Mortgage Loan, and such Document Defect or Breach materially and adversely
affects the interests of the Purchaser in such Mortgage Loan (in which case any
such Document Defect or Breach would be a "Material Document Defect" or a
"Material Breach", as the case may be), then (subject to Section 5(b)) the
Seller shall within, 90 days after its discovery or receipt of notice of such
Material Document Defect or Material Breach (such 90-day period, the "Initial
Resolution Period") (or, in the case of a Material Document Defect or Material
Breach that affects whether a Mortgage Loan was, as of the Closing Date, is or
will continue to be a "qualified mortgage" within the meaning of the REMIC
Provisions, not later than 90 days of any party discovering such Material
Document Defect or Material Breach), (i) cure such Material Document Defect or
Material Breach, as the case may be, in all material respects, which cure shall
include payment of any Additional Trust Fund Expenses associated therewith, or
(ii) repurchase the affected Mortgage Loan (or the related Mortgaged Property)
from, and in accordance with the directions of, the Purchaser or its designee,
at a price equal to the Purchase Price; provided that if (i) any such Material
Breach or Material Document Defect, as the case may be, does not affect whether
the Mortgage Loan was, as of the Closing Date, is or
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will continue to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code (a "Qualified Mortgage"), (ii) such Material Breach or
Material Document Defect, as the case may be, is capable of being cured but not
within the applicable Initial Resolution Period, (iii) the Seller has commenced
and is diligently proceeding with the cure of such Material Breach or Material
Document Defect, as the case may be, within the applicable Initial Resolution
Period, and (iv) the Seller shall have delivered to the Purchaser a
certification executed on behalf of the Seller by an officer thereof confirming
that such Material Breach or Material Document Defect, as the case may be, is
not capable of being cured within the applicable Initial Resolution Period,
setting forth what actions the Seller is pursuing in connection with the cure
thereof and stating that the Seller anticipates that such Material Breach or
Material Document Defect, as the case may be, will be cured within an additional
period not to exceed 90 days beyond the end of the applicable Initial Resolution
Period, then the Seller shall have such additional 90-day period (the
"Resolution Extension Period") to complete such cure or, failing such, to
repurchase the affected Mortgage Loan (or the related Mortgaged Property). Any
such repurchase of a Mortgage Loan shall be on a whole loan, servicing released
basis. The Seller and the Additional Party shall have no obligation to monitor
the Mortgage Loans regarding the existence of a Breach or Document Defect, but
if the Seller or the Additional Party discovers a Material Breach or Material
Document Defect with respect to a Mortgage Loan, it will notify the Purchaser.
In connection with any repurchase of a Loan REMIC Mortgage Loan (as
defined in Section 6 hereof) pursuant to this Section 5(a), the Purchaser shall
effect, and the Seller shall pay all reasonable costs and expenses, including
the costs of any opinions of counsel under the Pooling and Servicing Agreement,
relating to, a "qualified liquidation" of the related Loan REMIC in accordance
with the REMIC Provisions.
(b) If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Seller as contemplated
by Section 5(a), then, prior to the subject repurchase, the Purchaser or its
designee shall use reasonable efforts, subject to the terms of the related
Mortgage Loans, to prepare and, to the extent necessary and appropriate, have
executed by the related Mortgagor and record, such documentation as may be
necessary to terminate the cross-collateralization between the Mortgage Loans in
such Cross-Collateralized Group that are to be repurchased, on the one hand, and
the remaining Mortgage Loans therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto;
provided that, if such Cross-Collateralized Group is still subject to the
Pooling and Servicing Agreement, then no such termination shall be effected
unless and until (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 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 any Breach
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or Document Defect, as the case may be, materially and adversely affects the
interests of the Purchaser in any Mortgage Loan, and (ii) the application of
remedies, such Cross-Collateralized Group shall be treated as a single Mortgage
Loan.
It shall be a condition to any repurchase of a Mortgage Loan by the
Seller pursuant to Section 5(a) that the Purchaser shall have executed and
delivered such instruments of transfer or assignment then presented to it by the
Seller, in each case without recourse, as shall be necessary to vest in the
Seller the legal and beneficial ownership of such Mortgage Loan (including any
property acquired in respect thereof or proceeds of any insurance policy with
respect thereto), to the extent that such ownership interest was transferred to
the Purchaser hereunder. If any Mortgage Loan is to be repurchased as
contemplated by Section 5(a), the Seller shall amend the Mortgage Loan Schedule
to reflect the removal of such Mortgage Loan and shall forward such amended
schedule to the Purchaser.
(c) It is understood and agreed that the obligations of the Seller set
forth in Section 5(a) to cure any Material Breach or Material Document Defect or
to repurchase such Mortgage Loan, constitute the sole remedies available to the
Purchaser with respect to any Breach or Document Defect.
SECTION 6. Repurchase of Loan REMIC Mortgage Loans. If the Purchaser or
the Master Servicer notify the Seller or the Additional Party that the borrower
under either of the Mortgage Loans secured by the Mortgaged Properties
identified on the Mortgage Loan Schedule as Rite Aid - ▇▇▇▇▇▇ and Long's Drugs,
San Pablo (each, a "Loan REMIC Mortgage Loan") intends to defease the related
Mortgage Loan prior to the second anniversary of the initial issuance of the
Certificates, the Seller shall promptly repurchase the affected Mortgage Loan
prior to its being defeased by the subject borrower, with such repurchase to be
made at the related Purchase Price in accordance with the directions of the
Master Servicer (the date of any such repurchase, a "Loan REMIC Repurchase
Date"). In connection with any such repurchase, the Seller shall pay to the
Purchaser, together with the Purchase Price, the Early Defeasance Yield
Maintenance Premium (as defined below). Upon the repurchase of a Loan REMIC
Mortgage Loan pursuant to this Section 6, the Purchaser shall effect, and the
Seller shall pay all reasonable costs and expenses, including the costs of any
opinions of counsel under the Pooling and Servicing Agreement, relating to, a
"qualified liquidation" of the related Loan REMIC in accordance with the REMIC
Provisions.
The "Early Defeasance Yield Maintenance Premium", with respect to
either Loan REMIC Mortgage Loan, means an amount equal to the sum of the present
values as of the related Loan REMIC Repurchase Date of the related Calculated
Payments (as defined below) from the Rite Aid Repurchase Date through the
maturity date of such Loan REMIC Mortgage Loan (its "Loan REMIC Loan Maturity
Date") determined by discounting such payments at the related Discount Rate. As
used in this paragraph, the term "Calculated Payments" means the monthly
payments of interest which would be due based on the principal amount of a Loan
REMIC Mortgage Loan on the related Loan REMIC Repurchase Date and assuming an
interest rate per annum equal to the difference (if such difference is greater
than zero) between (x) the interest rate borne by such Loan REMIC Mortgage Loan
and (y) the related Yield Maintenance Treasury Rate (as defined below). As used
in this paragraph, the term "Discount Rate" means the rate which, when
compounded monthly, is equivalent to the Yield Maintenance Treasury Rate (as
defined below), when compounded semi-annually. As used in this paragraph, the
term "Yield Maintenance Treasury Rate" means the yield calculated by the linear
interpolation of the yields, as reported in the Federal Reserve Statistical
Release H.15-Selected Interest Rates under the heading U.S. Government
Securities/Treasury Constant Maturities for the week ending
-9-
prior to the related Loan REMIC Repurchase Date, of U.S. Treasury constant
maturities with maturity dates (one longer or one shorter) most nearly
approximating the related Loan REMIC Maturity Date.
SECTION 7. Obligations of the Additional Party. The Additional Party
hereby covenants and agrees with the Purchaser that the Additional Party shall
be liable to the Purchaser and any designee thereof to the same extent as the
Seller as set forth herein, for all the obligations of the Seller hereunder,
including, without limitation, the Seller's obligation to repurchase a Mortgage
Loan pursuant to Sections 5 and 6 hereof. The Additional Party further agrees
that the Purchaser shall not be bound or obligated to initially request the
Seller to perform any of its obligations hereunder, but may instead initially
request Additional Party to perform such obligations. Additionally, the
Additional Party agrees that the Purchaser shall not be bound or obligated in
anyway to exhaust recourse against the Seller before being entitled to demand
the performance by the Additional Party of its obligations hereunder.
SECTION 8. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 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 9 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(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.
-10-
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 9. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser, the Additional Party
and the Seller;
(b) The Pooling and Servicing Agreement duly executed by the parties
thereto;
(c) The Indemnification Agreement duly executed by the parties thereto;
(d) Certificates of each of the Seller and the Additional Party,
executed by a duly authorized officer of the Seller or the Additional Party, as
the case may be, and dated the Closing Date, and upon which the initial
Purchaser, the Underwriters and the Placement Agents may rely, to the effect
that: (i) the representations and warranties of the Seller or the Additional
Party, as the case may be, in this Agreement and of the Seller in the
Indemnification Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on such date; and (ii)
the Seller or the Additional Party, as the case may be, has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(e) An Officer's Certificate from an officer of each of the Seller and
the Additional Party, in his or her individual capacity, dated the Closing Date,
and upon which the initial Purchaser, the Underwriters and the Placement Agents
may rely, to the effect that each individual who, as an officer or
representative of the Seller or the Additional Party, as the case may be, signed
this Agreement, the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein or in the Indemnification Agreement, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(f) As certified by an officer of each of the Seller and the Additional
Party, true and correct copies of (i) the resolutions of the board of directors
authorizing the Seller's entering into the transactions contemplated by this
Agreement and the Indemnification Agreement, (ii) the organizational documents
of the Seller or the Additional Party, as the case may be, and (iii) a
certificate of good standing of the Seller or the Additional Party, as the case
may be, issued by the Secretary of State of the State of Delaware not earlier
than 10 days prior to the Closing Date;
(g) A Certificate of the Co-Indemnitor, executed by a duly authorized
officer of the Co-Indemnitor and dated the Closing Date, and upon which the
initial Purchaser, the Underwriters and the Placement Agents may rely, to the
effect that the representations and warranties of the Co-Indemnitor in the
Indemnification Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on such date;
-11-
(h) An Officer's Certificate from an officer of the Co-Indemnitor, in
his or her individual capacity, dated the Closing Date, and upon which the
initial Purchaser, the Underwriters and the Placement Agents may rely, to the
effect that each individual who, as an officer or representative of the
Co-Indemnitor, signed the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated therein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(i) As certified by an officer of the Co-Indemnitor, true and correct
copies of (i) the resolutions of the board of directors authorizing the
Co-Indemnitor's entering into the transactions contemplated by the
Indemnification Agreement, (ii) the organizational documents of the
Co-Indemnitor, and (iii) a certificate of good standing of the Co-Indemnitor
issued by the Secretary of State of the State of Delaware not earlier than 10
days prior to the Closing Date;
(j) A favorable opinion of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, special
counsel to the Seller, the Additional Party and the Co-Indemnitor, substantially
in the form attached hereto as Exhibit C-1, dated the Closing Date and addressed
to the initial Purchaser, the Underwriters, the Placement Agents, the Rating
Agencies and, upon request, the other parties to the Pooling and Servicing
Agreement, together with such other opinions of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ as
may be required by the Rating Agencies in connection with the transactions
contemplated hereby;
(k) A favorable opinion of in-house counsel to each of the Seller, the
Additional Party and the Co-Indemnitor, substantially in the form attached
hereto as Exhibit C-2, dated the Closing Date and addressed to the initial
Purchaser, the Underwriters, the Placement Agents, the Rating Agencies and, upon
request, the other parties to the Pooling and Servicing Agreement;
(l) In connection with the Seller's receipt of the Seller's Residual
Interest Certificates, a Transfer Affidavit and Agreement in the form
contemplated by the Pooling and Servicing Agreement; and
(m) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 10. Costs. 43.2342% of all reasonable out-of-pocket costs and
expenses incurred by the Seller, the initial Purchaser, the Underwriters, the
Placement Agents and the seller of the Other Loans to the Purchaser in
connection with the securitization of the Securitized Loans and the other
transactions contemplated by this Agreement, the Underwriting Agreement and the
Certificate Purchase Agreement shall be payable by the Seller.
SECTION 11. Grant of a Security Interest. The parties hereto agree that
it is their express intent that the conveyance of the Mortgage Loans by the
Seller to the Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the Mortgage Loans by the Seller to the Purchaser and not as a pledge
of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then
it is the express intent of the parties that: (i) such conveyance shall be
deemed to be a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller; (ii) this Agreement shall be
deemed to be a security agreement within the
-12-
meaning of Articles 8 and 9 of the applicable Uniform Commercial Code; (iii) the
conveyance provided for in Section 2 hereof shall be deemed to be a grant by the
Seller to the Purchaser of a security interest in all of the Seller's right,
title and interest in and to the Mortgage Loans, and all amounts payable to the
holder of the Mortgage Loans in accordance with the terms thereof, and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property; (iv) the assignment to the
Trustee of the interest of the Purchaser in and to the Mortgage Loans shall be
deemed to be an assignment of any security interest created hereunder; (v) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes for the Mortgage Loans, and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest pursuant to Section 9-313 of the
applicable Uniform Commercial Code; and (vi) notifications to persons (other
than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from such persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 12. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and telecopied
or delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to any party, at such
other address as shall be designated by such party in a notice hereunder to the
other parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 13. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller, the Additional Party and/or the Co-Indemnitor submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans by the Seller to the Purchaser (and by
the Purchaser to the Trustee).
SECTION 14. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
-13-
SECTION 15. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 16. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES). THE PARTIES HERETO INTEND THAT
THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL
APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances. The Seller, the Additional Party and
the Purchaser agree to execute and deliver such instruments and take such
further actions as any other party may, from time to time, reasonably request in
order to effectuate the purposes and to carry out the terms of this Agreement.
SECTION 18. Successors and Assigns. The rights and obligations of the
Seller and the Additional Party under this Agreement shall not be assigned by
the Seller or the Additional Party without the prior written consent of the
Purchaser, except that any person into which the Seller or the Additional Party,
as the case may be, may be merged or consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Seller or the
Additional Party, as the case may be, is a party, or any person succeeding to
all or substantially all of the business of the Seller or the Additional Party,
shall be the successor to the Seller or the Additional Party, as the case may
be, hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller, the Purchaser, and their respective successors
and permitted assigns.
SECTION 19. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. The Seller's and the Additional Party's
obligations hereunder shall in no way be expanded, changed or otherwise affected
by any amendment of or modification to the Pooling and Servicing Agreement,
unless the Seller or the Additional Party, as applicable, has consented to such
amendment or modification in writing.
-14-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
UBS WARBURG REAL ESTATE INVESTMENTS INC.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
Address for Notices:
1285 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
ADDITIONAL PARTY
UBS PRINCIPAL FINANCE LLC
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
Address for Notices:
1285 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
PURCHASER
STRUCTURED ASSET SECURITIES CORPORATION
By:
--------------------------------------
Name:
Title:
Address for Notices:
Structured Asset Securities Corporation
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
MORTGAGE LOAN SCHEDULE
MORTGAGE LOAN SCHEDULE
UBS
LOANS: 57
BALANCE: 596,955,859
LOAN
MORTGAGE
NUMBER PROPERTY NAME STREET ADDRESS
-------------------------------------------------------------------------------------------------------------------------
2 Cape Cod ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
5 Shoppingtown Mall ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
6 International Place ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 248 and 33
9 Park Central ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇ Avenue,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇ Laboratory ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
11 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ Corporate Center ▇▇▇ ▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ One ▇▇▇▇ Street
16 Polo Towne Crossing 2100-2208 Dallas Parkway
17 U-Haul B Portfolio Various
20 Food 4 Less Center-Santa ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
21 U-Haul A Portfolio Various
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
26 Wichita Apartments Portfolio Various
28 Food 4 Less Center-Buena Park 105, 117, 121, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
30 Home Depot ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
32 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 38 East 61st Street
36 ▇▇▇▇▇▇ Valley Corporate Center Cactus Avenue & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ Food 4 Less Center-Norwalk ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Office Building ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
45 Food 4 Less Center-Inglewood ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
49 EST ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
52 TLM Portfolio Various
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
55 Long's Drugs - San Pablo 800 San Pablo Town Center
60 Food 4 Less Center-Long Beach ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
64 Sprout Brook Center ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
65 Food 4 Less Center-Anaheim ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
69 10 Atlantic Portfolio Various
71 Rite Aid - ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
78 Overlook Apartments ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
79 1260 ▇▇▇▇▇ ▇▇▇▇▇ Highway 1260 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
81 The Eagle Vail Industrial Center 41266 US ▇▇▇▇▇▇▇ ▇ & ▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Shopping Center ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and 14505-14523 ▇▇▇▇▇▇▇ Way
96 Expressway Center 3845-3895 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇-▇▇▇ ▇▇▇▇▇▇
Expressway
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
101 Walgreen's ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
105 Sherwood Forest & Lamplighter Mobile Home Parks Various
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
111 The Chase Bank Building ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
116 Desert Cove Industrial Center ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and 4412 & ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
118 Ninety East Mobile Home Park ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
119 ▇▇▇▇▇▇ Marketplace ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
124 Park South Apartments 200, 700 & ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Avenue ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Route 26
130 ▇▇▇▇ Portfolio Various
131 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Portfolio Various
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Apartments and Ridgewood Avenue Apartments Various
134 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LOAN CUT-OFF MONTHLY ORIGINAL
MORTGAGE ZIP DATE P&I MORTGAGE
NUMBER CITY STATE CODE BALANCE PAYMENT RATE
--------------------------------------------------------------------------------------------------------------
2 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 99,694,016.83 651,725.37 6.797
5 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 43,451,161.35 319,187.59 8.000
6 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 40,951,842.19 295,998.85 7.830
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 37,398,718.49 257,343.99 7.310
9 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 32,368,404.19 245,076.16 8.290
10 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 23,167,988.11 166,744.95 7.750
11 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 22,213,926.73 157,419.02 7.630
12 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 22,211,330.47 165,595.21 8.150
14 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 17,987,675.03 130,824.97 7.900
16 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 17,213,132.97 118,026.62 7.280
17 Various VAR Various 16,474,117.29 121,881.71 8.080
20 ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ 13,690,193.39 97,486.61 7.680
21 Various VAR Various 13,506,077.96 99,923.04 8.080
25 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12,538,463.59 90,440.69 7.490
26 Wichita KS Various 11,888,023.73 93,975.85 8.700
28 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 11,291,911.34 80,408.66 7.680
30 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,678,269.38 74,815.95 7.500
32 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,543,259.71 68,417.37 7.750
36 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,537,550.48 61,331.46 7.650
41 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,694,488.26 54,791.74 7.680
42 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,594,460.54 53,609.46 7.590
45 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,955,017.96 49,526.04 7.680
49 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,295,772.83 46,227.17 8.000
50 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,995,705.13 42,694.87 7.680
52 Various VAR Various 5,900,000.00 42,727.92 7.860
53 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,588,358.92 38,773.27 7.400
55 ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,452,834.13 39,923.82 6.739
60 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,116,335.05 36,432.95 7.680
64 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,989,545.75 34,533.76 7.375
65 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,878,961.89 51,785.61 7.530
69 Various MA Various 4,647,511.86 36,266.99 8.550
71 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,606,704.17 33,728.74 6.739
78 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,994,986.36 28,188.03 7.580
79 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,860,625.69 28,279.21 7.970
80 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,794,938.23 26,155.07 7.340
81 ▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,745,299.71 26,426.28 7.580
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,737,402.63 27,000.87 7.830
86 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,296,041.76 23,641.60 7.750
95 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,996,631.81 22,012.94 8.000
96 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,989,677.00 21,908.46 7.950
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,976,303.04 21,082.01 7.620
101 ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,794,533.31 19,804.07 7.625
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,495,167.66 19,088.85 7.875
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,322,174.71 16,576.32 7.700
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,188,482.15 15,825.85 7.840
116 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,881,684.34 13,555.16 7.800
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,818,720.16 13,327.65 7.950
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,760,756.06 12,351.31 7.520
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,668,094.75 12,184.09 7.940
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,473,936.07 10,446.79 7.590
126 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,292,608.16 9,412.13 7.900
▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ 1,223,503.65 8,716.87 7.680
130 Various ME Various 1,132,890.82 8,719.48 8.500
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,024,293.89 7,428.40 7.870
132 Various OH Various 768,631.45 6,096.82 8.300
133 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 697,051.85 5,197.48 8.125
134 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 499,664.51 3,668.82 8.000
596,955,859.49
LOAN REMAINING REMAINING INTEREST ADMINISTRATIVE PRIMARY MORTGAGE
MORTGAGE TERM TO MATURITY- AMORTIZATION ACCRUAL COST SERVICING GROUND LOAN
NUMBER MATURITY ARD TERM BASIS RATE FEE LEASE? SELLER
-----------------------------------------------------------------------------------------------------------------------------------
2 116 3/11/11 356 Act/360 0.1009 0.05 Fee Simple UBS
5 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
6 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
8 116 3/11/11 356 Act/360 0.1009 0.05 Fee Simple UBS
9 113 12/11/10 353 Act/360 0.1009 0.05 Fee Simple UBS
10 113 12/11/10 353 Act/360 0.1009 0.05 Fee Simple UBS
11 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
12 117 4/11/11 357 Act/360 0.1009 0.05 Fee Simple UBS
14 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
16 117 4/11/11 357 Act/360 0.1009 0.05 Fee Simple UBS
17 120 7/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
20 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
21 120 7/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
25 118 5/11/11 322 Act/360 0.1009 0.05 Fee Simple UBS
26 102 1/1/10 342 Act/360 0.1009 0.05 Fee Simple UBS
28 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
30 117 4/11/11 357 Act/360 0.1009 0.05 Fee Simple UBS
32 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
36 118 5/11/11 344 Act/360 0.1009 0.05 Fee Simple UBS
41 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
42 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
45 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
49 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
50 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
52 120 7/11/11 360 Act/360 0.1009 0.05 Fee Simple UBS
53 117 4/11/11 357 Act/360 0.1009 0.05 Fee Simple UBS
55 224 3/10/20 260 30/360 0.1009 0.05 Fee Simple UBS
60 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
64 117 4/11/11 357 Act/360 0.1009 0.05 Fee Simple UBS
65 119 6/11/11 143 Act/360 0.1009 0.05 Leasehold UBS
69 101 12/1/09 341 Act/360 0.1009 0.05 Fee Simple UBS
71 224 3/10/20 260 30/360 0.1009 0.05 Fee Simple UBS
78 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
79 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
80 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
81 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
82 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
86 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
95 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
96 115 2/11/11 355 Act/360 0.1009 0.05 Fee Simple UBS
97 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
101 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
105 118 5/11/11 298 Act/360 0.1009 0.05 Fee Simple UBS
109 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
111 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
116 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
117 115 2/11/11 355 Act/360 0.1009 0.05 Fee Simple UBS
118 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
119 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
124 113 12/11/10 353 Act/360 0.1009 0.05 Fee Simple UBS
126 117 4/11/11 357 Act/360 0.1009 0.05 Fee Simple UBS
128 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
130 118 5/11/11 358 Act/360 0.1009 0.05 Fee Simple UBS
131 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
132 118 5/11/11 298 Act/360 0.1009 0.05 Fee Simple UBS
133 113 12/11/10 353 Act/360 0.1009 0.05 Fee Simple UBS
134 119 6/11/11 359 Act/360 0.1009 0.05 Fee Simple UBS
LOAN ARD ANTICIPATED CREDIT LEASE LOAN LEASE
MORTGAGE MORTGAGE REPAYMENT ARD (TENANT, GUARANTOR ENHANCEMENT
NUMBER DEFEASANCE LOAN DATE SPREAD OR RATED PARTY) POLICY
---------------------------------------------------------------------------------------------------------------------
2 Defeasance No 0.00 No
5 Defeasance No 0.00 No
6 Defeasance Yes 5/11/31 2.00 No
8 Defeasance Yes 3/11/31 2.00 No
9 Defeasance Yes 12/11/30 2.00 No
10 Defeasance Yes 12/11/30 2.00 No
11 Defeasance Yes 6/11/31 2.00 No
12 Defeasance No 0.00 No
14 Defeasance Yes 6/11/31 2.00 No
16 Defeasance Yes 4/11/31 2.00 No
17 Defeasance Yes 7/11/31 2.00 No
20 Defeasance No 0.00 No
21 Defeasance Yes 7/11/31 2.00 No
25 Defeasance Yes 5/11/28 2.00 No
26 Defeasance No 0.00 No
28 Defeasance No 0.00 No
30 Defeasance Yes 4/11/31 2.00 No
32 Defeasance Yes 6/11/31 2.00 No
36 Defeasance No 0.00 No
41 Defeasance No 0.00 No
42 Defeasance Yes 6/11/31 2.00 No
45 Defeasance No 0.00 No
49 Defeasance Yes 6/11/31 2.00 No
50 Defeasance No 0.00 No
52 Defeasance Yes 7/11/31 2.00 No
53 Defeasance No 0.00 No
55 Defeasance No 0.00 No
60 Defeasance No 0.00 No
64 Defeasance No 0.00 No
65 Defeasance No 0.00 No
69 Defeasance No 0.00 No
71 Defeasance No 0.00 No
78 Defeasance No 0.00 No
79 Defeasance Yes 5/11/31 2.00 No
80 Defeasance Yes 5/11/31 2.00 No
81 Defeasance No 0.00 No
82 Defeasance Yes 6/11/31 2.00 No
86 Defeasance Yes 5/11/31 2.00 No
95 Defeasance Yes 5/11/31 2.00 No
96 Defeasance Yes 2/11/31 2.00 No
97 Defeasance No 0.00 No
101 Defeasance No 0.00 No
105 Defeasance No 0.00 No
109 Defeasance No 0.00 No
111 Defeasance No 0.00 No
116 Defeasance No 0.00 No
117 Defeasance No 0.00 No
118 Defeasance No 0.00 No
119 Defeasance No 0.00 No
124 Defeasance No 0.00 No
126 Defeasance No 0.00 No
128 Defeasance No 0.00 No
130 Defeasance No 0.00 No
131 Defeasance No 0.00 No
132 Defeasance No 0.00 No
133 Defeasance No 0.00 No
134 Defeasance No 0.00 No
LOAN RESIDUAL MORTGAGE
MORTGAGE VALUE CROSS LOAN SELLER BORROWER
NUMBER INSURANCE COLLATERALIZED LOAN ID CONCENTRATION
----------------------------------------------------------------------------------------
2 No No LG7812 No
5 Yes No 7761 No
6 Yes No 7495 No
8 Yes No 7842 No
9 Yes No 7183 No
10 Yes No 7513 No
11 Yes No 8108 No
12 Yes No 7752 Yes - ▇▇▇▇▇▇▇▇
14 Yes No 9992 No
16 Yes No 7965 No
17 Yes Yes - U-Haul 7948-B Yes - Sac
20 Yes No 8180 Yes - Wall
21 Yes Yes - U-Haul 7948-A Yes - Sac
25 Yes No 8089 No
26 Yes Yes - Wichita 9958 No
28 Yes No 8174 Yes - Wall
30 Yes No 8016 No
32 Yes No 8231 No
36 Yes No 7010 Yes - ▇▇▇▇▇▇▇▇
41 Yes No 8179 Yes - Wall
42 Yes No 8010 No
45 Yes No 8176 Yes - Wall
49 Yes No 8071 No
50 Yes No 8173 Yes - Wall
52 Yes Yes - TLM 8101 No
53 Yes No 8012 No
55 No No 5448 No
60 Yes No 8178 Yes - Wall
64 Yes No 7841 No
65 Yes No 8182 Yes - Wall
69 Yes Yes - Atlantic 9991 No
71 No No 5447 No
78 Yes No 8000 No
79 Yes No 7941 No
80 Yes No 8049 No
81 Yes No 7933 No
82 Yes No 8263 No
86 Yes No 7543 No
95 Yes No 7800 No
96 Yes No 7517 No
97 Yes No 8109 Yes - ▇▇▇▇▇▇▇
101 Yes No 8022 No
105 Yes Yes - Sherwood 7874 No
109 Yes No 8013 No
111 Yes No 8168 No
116 Yes No 8039 No
117 Yes No 7397 No
118 Yes No 8110 Yes - ▇▇▇▇▇▇▇
119 Yes No 7679 No
124 Yes No 7628 No
126 Yes No 9990 No
128 Yes No 7927 No
130 Yes Yes - ▇▇▇▇ 7754 No
131 Yes No 7897 No
132 Yes Yes - Edgewater 7721 No
133 Yes Yes - Azure 7514 No
134 Yes No 7271 No
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
(i) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct in
all material respects as of its Due Date in July 2001.
(ii) Legal Compliance. If such Mortgage Loan was originated by
the Seller or an affiliate of the Seller, then, as of the date of its
origination, such Mortgage Loan complied in all material respects with, or was
exempt from, all requirements of federal, state or local law relating to the
origination of such Mortgage Loan; and, if such Mortgage Loan was not originated
by the Seller or an affiliate of the Seller, then, to the best of the Seller's
knowledge after having performed the type of due diligence customarily performed
by prudent institutional commercial and multifamily mortgage lenders, as of the
date of its origination, such Mortgage Loan complied in all material respects
with, or was exempt from, all requirements of federal, state or local law
relating to the origination of such Mortgage Loan.
(iii) Ownership of Mortgage Loan. The Seller owns such
Mortgage Loan, has good and marketable 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; 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 and there is no requirement for future advances thereunder.
(v) Loan Document Status. Each of the related Mortgage Note,
Mortgage(s), Assignment(s) of Leases, if any, and other agreements executed in
connection therewith is the legal, valid and binding obligation of the maker
thereof (subject to the non-recourse provisions therein and any state
anti-deficiency legislation), enforceable in accordance with its terms, except
that (A) such enforcement may be limited by (1) bankruptcy, insolvency,
reorganization 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; and, in the case of the related Mortgage
Note, Mortgage(s) and Assignment(s) of Leases, a legal opinion to such effect
was obtained by the originator of such Mortgage Loan at the time of origination.
The Mortgage Loan is non-recourse to the Mortgagor or any other Person except
for certain nonrecourse carveouts and any applicable guarantees. If such
Mortgage Loan has a Cut-off Date Balance of $15 million or more, the related
Mortgagor or another Person has agreed to be liable for all liabilities, costs,
losses, damages, expenses or claims suffered or incurred by the mortgagee under
such Mortgage Loan by reason of or in connection with and to the extent of (A)
any intentional fraud or material intentional misrepresentation by the related
Mortgagor and (B) any breach on the part of the related Mortgagor of any
environmental representations, warranties and covenants contained in the related
Mortgage Loan documents; provided that, instead of any
-1-
breach described in clause (B) of this sentence, the related Mortgagor or such
other Person may instead be responsible for liabilities, costs, losses, damages,
expenses and claims resulting from a breach of the obligations and indemnities
of the related Mortgagor under the related Mortgage Loan documents relating to
hazardous or toxic substances, radon or compliance with environmental laws.
(vi) No Right of Rescission. As of the date of its origination
there was no valid offset, defense, counterclaim or right to rescission with
respect to any of the related Mortgage Note, Mortgage(s) or other agreements
executed in connection therewith; and, as of the Closing Date, there is no valid
offset, defense, counterclaim or right to rescission with respect to such
Mortgage Note, Mortgage(s) or other agreements; and, to the actual knowledge of
the Seller, no such claim has been asserted.
(vii) Assignments. The assignment of the related Mortgage(s)
and Assignment(s) of Leases to the Trustee constitutes the legal, valid, binding
and enforceable assignment of such documents in accordance with their respective
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(viii) First Lien. Each related Mortgage is a valid and,
subject to the limitations and exceptions in paragraph (b)(v) above, enforceable
first lien on the related Mortgaged Property and all buildings thereon and
fixtures thereto, which Mortgaged Property is free and clear of all encumbrances
and liens having priority over or on a parity with the first lien of such
Mortgage, except for (A) liens for real estate taxes and special assessments not
yet due and delinquent, (B) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of recording of
such Mortgage, such exceptions appearing of record being customarily acceptable
to mortgage lending institutions generally or specifically reflected in the
appraisal (if any) of such Mortgaged Property made in connection with the
origination of such Mortgage Loan, and (C) other matters to which like
properties are commonly subject (the exceptions set forth in the foregoing
clauses (A), (B) and (C) collectively, "Permitted Encumbrances"); and 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
such Mortgage, materially and adversely interfere with the current use or
operation of the related Mortgaged Property or materially and adversely affect
the value or marketability of such Mortgaged Property or the ability of the
related Mortgagor to timely pay in full the principal and interest on the
related Mortgage Note. If the related Mortgaged Property is operated as a
nursing facility or a hospitality property, the related Mortgage, together with
any separate 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),
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 personal property
owned by the Mortgagor that is used in, and is reasonably necessary to, the
operation of the related Mortgaged Property.
(ix) Financing Statements. The Seller has filed and/or
recorded in all appropriate public filing and recording offices all UCC-1
financing statements necessary to create and perfect a security interest in and
lien on the items of personal property described therein (such description being
consistent with the practices of prudent commercial mortgage lenders), which
personal property includes, in the case of healthcare facilities and hotel
-2-
properties, all furniture, fixtures, equipment and other personal property
located at the subject Mortgaged Property that is owned by the related Mortgagor
and necessary or material to the operation of the subject Mortgaged Property
(or, if not filed and/or recorded, the Seller has submitted such UCC-1 financing
statements for filing and/or recording and such UCC-1 financing statements are
in form and substance acceptable for filing and/or recording), to the extent
perfection may be effected pursuant to applicable law by recording or filing.
(x) Taxes and Assessments. All taxes, governmental
assessments, ground rents, water charges or sewer rents that prior to the
related Due Date in July 2001 became due and owing in respect of, and materially
affect, any related Mortgaged Property have been paid, and the Seller knows of
no unpaid tax, assessment, ground rent, water charges or sewer rent that prior
to the Closing Date became due and owing 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.
(xi) No Material Damage. As of the date of its origination,
there was no proceeding pending for the total or partial condemnation of any
related Mortgaged Property that materially affects the value thereof, and each
such Mortgaged Property was free of material damage; and, as of the Closing
Date, to the actual knowledge of the Seller, there was no pending proceeding for
the total or partial condemnation of any related Mortgaged Property that
materially affects the value thereof, and such Mortgaged Property is free of
material damage. If such Mortgage Loan has a Cut-off Date Balance of $15 million
or more, then (except for certain amounts not greater than amounts which would
be considered prudent by an institutional commercial mortgage lender with
respect to a similar mortgage loan and which are set forth in the related
Mortgage or other loan documents relating to such Mortgage Loan, and subject to
any rights of the lessor under any related Ground Lease) any condemnation awards
will be applied either to the repair or restoration of all or part of the
related Mortgaged Property or the reduction of the outstanding principal balance
of such Mortgage Loan.
(xii) 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 after all advances of principal, subject
only to Permitted Encumbrances (which Permitted Encumbrances do not,
individually or in the aggregate, materially and adversely interfere with the
benefits of the security intended to be provided by such Mortgage, materially
and adversely interfere with the current use or operation of the related
Mortgaged Property or materially or adversely affect the value or marketability
of such Mortgaged Property or the ability of the related Mortgagor to timely pay
in full the principal and interest on the related Mortgage Note), or there is a
binding commitment from a title insurer qualified and/or licensed in the
applicable jurisdiction, as required, to issue such policy; such title insurance
policy, if issued, is in full force and effect, all premiums have been paid, is
freely assignable and will inure solely to the benefit of the Trustee as
mortgagee of record, or any such commitment is a legal, valid and binding
obligation of such insurer; no claims have been made by the Seller or any prior
mortgagee under such title insurance policy, if issued; and neither the Seller
nor, to the best of the Seller's knowledge, any prior mortgagee has done, by act
or omission, anything that would materially impair the coverage of any such
title insurance policy; such policy or commitment contains no exclusion for (or
alternatively it insures, unless such coverage is unavailable in the relevant
jurisdiction) (A) access to a public road, (B) that there is no material
encroachment by any improvements on the Mortgaged
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Property, and (C) that the area shown on the survey materially conforms to the
legal description of the Mortgaged Property.
(xiii) Property Insurance. As of the date of its origination
and, to the best of the Seller's knowledge, as of the Closing Date, all
insurance required under each related Mortgage was in full force and effect with
respect to each related Mortgaged Property; such insurance covered (except where
a tenant under a lease is permitted to self-insure) such risks as were
customarily acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the related
Mortgaged Property in the jurisdiction in which such Mortgaged Property is
located, and included (A) fire and extended perils insurance, in an amount
(subject to a customary deductible) at least equal to 100% of the full insurable
replacement cost of the improvements located on such Mortgaged Property (except
to the extent not permitted by applicable law and then in such event in an
amount at least equal to the initial principal balance of such Mortgage Loan, or
the portion thereof allocable to such Mortgaged Property, together with an
"agreed value endorsement"), (B) business interruption or rental loss insurance
for a period of not less than 12 months, (C) comprehensive general liability
insurance in an amount not less than $1 million per occurrence, (D) workers'
compensation insurance (if the related Mortgagor has employees and if required
by applicable law), and (E) if (1) such Mortgage Loan is secured by a Mortgaged
Property located in the State of California in or "seismic zone" 3 or 4 and (2)
a seismic assessment revealed a maximum probable or bounded loss in excess of
20% of the amount of the estimated replacement cost of the improvements on such
Mortgaged Property, earthquake insurance; it is an event of default under such
Mortgage Loan if the above-described insurance coverage is not maintained by the
related Mortgagor, and any reasonable out-of-pocket costs and expenses incurred
by the mortgagee in connection with such default in obtaining such insurance
coverage are recoverable from the related Mortgagor; the related insurance
policies provide that they may not be terminated or reduced without at least 10
days' prior notice to the mortgagee and, to the Seller's knowledge, it has not
received any such notice; the related insurance policies (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 related Due Date in July 2001; all
such insurance policies are required to be maintained with insurance companies
having "financial strength" or "claims paying ability" ratings of at least
"A:VIII" from A.M. Best Company or at least "A-" (or equivalent) from a
nationally recognized statistical rating agency; 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, any insurance proceeds will be applied either to the repair or
restoration of all or part of the related Mortgaged Property or the reduction of
the outstanding principal balance of such Mortgage Loan.
(xiv) No Material Defaults. Other than payments due but not
yet 30 days or more delinquent, there is, to the actual knowledge of the Seller,
(A) no material default, breach, violation or event of acceleration existing
under the related Mortgage Note, the related Mortgage or other loan documents
relating to such Mortgage Loan, and (B) no event which, with the passage of time
or with notice and the expiration of any grace or cure period, would constitute
a material default, breach, violation or event of acceleration under any of such
documents; the Seller has not waived any other material default, breach,
violation or event of acceleration under any of such documents; and under the
terms of such Mortgage Loan, no person or party other
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than the mortgagee may declare an event of default or accelerate the related
indebtedness under such Mortgage Loan.
(xv) 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 Scheduled
Payment.
(xvi) Interest Accrual Basis. Such Mortgage Loan accrues
interest on an Actual/360 Basis or on 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).
(xvii) Subordinate Debt. Except as set forth on Schedule
III-xvii, 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 Mortgage Note, any related Mortgaged Property to secure any other
promissory note or obligation (other than another Mortgage Loan in the Trust
Fund).
(xviii) 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.
(xix) Prepayment Consideration. Prepayment Premiums and Yield
Maintenance Charges payable with respect to such Mortgage Loan, if any,
constitute "customary prepayment penalties" within the meaning of Treasury
regulation Section 1.860G-1(b)(2).
(xx) Environmental Conditions. One or more environmental site
assessments 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) referenced herein, has no knowledge of, and
has not received actual notice of, any material and adverse environmental
condition or circumstance affecting such Mortgaged Property that was not
disclosed in such report(s); all such environmental site assessments met ASTM
requirements; and none of the environmental reports reveal any circumstances or
conditions that are in violation of any applicable environmental laws, or if
such report does reveal such circumstances, then (1) the same have been
remediated in all material respects, (2) sufficient funds have been escrowed or
a letter of credit 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
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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.
(xxi) Enforceability. 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 (b)(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.
(xxii) Bankruptcy. To the best of the Seller's knowledge,
after due inquiry, the related Mortgagor is not a debtor in, and the related
Mortgaged Property is not subject to, any bankruptcy, reorganization, insolvency
or comparable proceeding.
(xxiii) Loan Security. Such Mortgage Loan is secured by either
a mortgage on a fee simple interest or a leasehold estate in a commercial
property or multifamily property, including the related Mortgagor's interest in
the improvements on the related Mortgaged Property.
(xxiv) 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.
(xxv) 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 or additional interest in the form of
participation in the cash flow of the related Mortgaged Property.
(xxvi) Due-on-Encumbrance. The related Mortgage contains
provisions for the acceleration of the payment of the unpaid principal balance
of such Mortgage Loan if, without the prior written consent of the mortgagee or
Rating Agency confirmation that an Adverse Rating Event would not occur, any
related Mortgaged Property or interest therein, is directly or indirectly
encumbered in connection with subordinate financing. To the Seller's knowledge,
no related Mortgaged Property is encumbered in connection with subordinate
financing; however, if the related Mortgagor is listed on Schedule III-xxvi(M)
hereto, then certain equity holders are known to the Seller to have incurred
debt secured by their ownership interest in the related Mortgagor.
(xxvii) 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, transfers of interests in the related
Mortgagor between immediate family members and transfers by devise, descent or
by operation of law upon the death of a person having an interest in the related
Mortgagor, each related Mortgage 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 (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
-6-
conditions specified in the related Mortgage with respect to permitted transfers
(which conditions are consistent with the practices of prudent commercial
mortgage lenders).
(xxviii) Borrower Concentration. 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.
(xxix) Waivers; Modifications. Except as set forth in a
written instrument included in the related Mortgage File, the 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 in any manner, nor has any portion
of a related Mortgaged Property been released from the lien of the related
Mortgage to an extent, which in any such event materially interferes with the
security intended to be provided by such document or instrument.
(xxx) 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.
(xxxi) 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 of any material portion of the related Mortgaged
Property from the lien of such Mortgage 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"), or (C) delivery of
substitute real property collateral.
(xxxii) Qualifications; Licensing; Zoning. The related
Mortgagor has covenanted in the Mortgage Loan documents to maintain the related
Mortgaged Property in compliance in all material respects with, to the extent it
is not grandfathered under, all applicable laws, zoning ordinances, rules,
covenants and restrictions affecting the construction, occupancy, use and
operation of such Mortgaged Property, and the related originator performed the
type of due diligence in connection with the origination of such Mortgage Loan
customarily performed by prudent institutional commercial and multifamily
mortgage lenders with respect to the foregoing matters; the Seller has received
no notice of any material violation of any applicable laws, zoning ordinances,
rules, covenants or restrictions affecting the construction, occupancy, use or
operation of the related Mortgaged Property; 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 to an extent
which would have a material adverse affect on the related Mortgagor's use and
operation of such Mortgaged Property (unless affirmatively covered by the title
insurance referred to in paragraph (b)(xii) above), and no improvements on
adjoining properties encroached upon such Mortgaged Property to any material
extent.
(xxxiii) Property Financial Statements. The related Mortgagor
has covenanted in the Mortgage Loan documents to deliver to the mortgagee
monthly, quarterly and/or annual operating statements and rent rolls of each
related Mortgaged Property.
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(xxxiv) Single Purpose Entity. If such Mortgage Loan has a
Cut-off Date Balance in excess of $15 million, then the related Mortgagor is
obligated by its organizational documents and/or the related Mortgage Loan
documents to be a Single Purpose Entity for so long as such Mortgage Loan is
outstanding; and if such Mortgage Loan has a Cut-off Date Balance less than $15
million, the related Mortgagor is obligated by its organizational documents
and/or the related Mortgage Loan documents to own the related Mortgaged Property
and no other material asset unrelated to such Mortgaged Property and, except as
permitted by the related Mortgage Loan documents, not to incur other financing,
for so long as such Mortgage Loan is outstanding.
(xxxv) 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.
(xxxvi) 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.
(xxxvii) Usury. Such Mortgage Loan complied with or was exempt
from all applicable usury laws in effect at its date of origination.
(xxxviii)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.
(xxxix) 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.
(xl) 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; if such Mortgage Loan is cross-collateralized, it
is cross-collateralized only with other Mortgage Loans in the Trust Fund. The
security interest/lien on each material item of collateral for such Mortgage
Loan has been assigned to the Trustee.
(xli) Flood Hazard Insurance. None of the improvements on any
related Mortgaged Property are located in a flood hazard area as defined by the
Federal Insurance Administration or, if they are, they are covered by flood
hazard insurance.
(xlii) Engineering Assessments. One or more engineering
assessments were performed by an Independent engineering consulting firm on
behalf of the Seller or one of its
-8-
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 such
assessment(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.
(xliii) Escrows. All escrow deposits and payments relating to
such Mortgage Loan are under control of the Seller or the servicer of such
Mortgage Loan and all amounts required as of the date hereof under the related
Mortgage Loan documents to be deposited by the related Mortgagor have been
deposited. The Seller is transferring to the Trustee all of its right, title and
interest in and to such amounts.
(xliv) Licenses, Permits and Authorizations. The related
Mortgagor has represented to the Seller that, and to the actual knowledge of the
Seller, as of the date of origination of such Mortgage Loan, such Mortgagor, the
related lessee, franchisor or operator was in possession of all material
licenses, permits and authorizations then required for use of the related
Mortgaged Property, which were valid and in full force and effect.
(xlv) Origination, Servicing and Collection Practices. The
origination, servicing and collection practices used by the Seller or any prior
holder of the Mortgage Note have been in all respects legal and have met
customary industry standards.
(xlvi) Fee Simple. Except as set forth in Schedule III-xlvi,
such Mortgage Loan is secured in whole or in material part by a fee simple
interest.
(xlvii) 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, except
as set forth on Schedule III-xlvii:
(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 without the consent of the
lessor thereunder (or, if any such consent is
required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is
further assignable by the Trustee and its successors
without a need to obtain the consent of such lessor
(or, if any such consent is required, it has been
obtained prior to the Closing Date);
(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;
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(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 to the actual knowledge of the Seller, 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 exceptions stated in the related title
insurance policy or opinion of title, which
exceptions do not and will not materially and
adversely interfere with (1) the ability of the
related Mortgagor timely to pay in full the principal
and interest on the related Mortgage Note, (2) the
current use of such Mortgaged Property, or (3) the
value of the Mortgaged Property;
(H) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity to cure any curable default
under such Ground Lease (not less than the time
provided to the related lessee under such ground
lease to cure such default) before the lessor
thereunder may terminate or cancel such Ground Lease;
(I) such Ground Lease has a currently effective term
(exclusive of any unexercised extension options set
forth therein) 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, taken together, any related insurance
proceeds or condemnation proceeds will be applied
either to the repair or restoration of all or part of
the related Mortgaged Property, with such mortgagee
or a
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trustee appointed by it having the right to hold and
disburse such proceeds as the repair or restoration
progresses, or to the payment of the outstanding
principal balance of such 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 the
rejection of the Ground Lease in a bankruptcy of the
related Mortgagor; 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.
(xlviii) Fee Simple and Leasehold Interest. If such Mortgage
Loan is secured in whole or in part by the interest of the related Mortgagor
under a Ground Lease and by the related fee interest, then (A) such fee interest
is subject, and subordinated of record, to the related Mortgage, (B) the related
Mortgage does not by its terms provide that it will be subordinated to the lien
of any other mortgage or other lien upon such fee interest, and (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 (b)(v) above) to foreclose
upon or otherwise exercise its rights with respect to such fee interest.
(xlix) Tax Lot. Each related Mortgaged Property constitutes
one or more complete separate tax lots or is subject to an endorsement under the
related title insurance policy; and each related Mortgaged Property is served by
a public water system, a public sewer (or, alternatively, a septic) system, and
other customary public utility facilities.
(l) Defeasance. If such Mortgage Loan is a Defeasance Loan,
the related Mortgage Loan documents require the related Mortgagor to pay all
reasonable costs associated with the defeasance thereof, and either: (A) require
the prior written consent of, and compliance with the conditions set by, the
holder of such Mortgage Loan for defeasance, (B) require that (1) defeasance may
not occur prior to the second anniversary of the Closing Date, (2) the
Defeasance Collateral must be government securities within the meaning of
Treasury Regulation Section 1.860G-2(a)(8)(i) and must be sufficient to make all
scheduled payments under the related Mortgage Note when due (assuming for each
ARD Mortgage Loan that it matures on its Anticipated Repayment Date) or, 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 125% of the
allocated loan amount of the portion of the Mortgaged Property being released,
(3) an independent accounting firm (which may be the Mortgagor's independent
accounting firm) certify that the Defeasance Collateral is sufficient to make
such payments, (4) the Mortgage Loan be assumed by a successor entity designated
by the holder of such Mortgage Loan, and (5) counsel provide an opinion letter
to the effect that the Trustee has a perfected security interest in such
Defeasance
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Collateral prior to any other claim or interest, or (C) if such Mortgage Loan
has a Cut-off Date Balance in excess of $15,000,000, provide that the defeasance
of such Mortgage Loan is subject to rating confirmation by the Rating Agencies.
(li) Servicing Rights. No Person has been granted or conveyed
the right to service such Mortgage Loan or receive any consideration in
connection therewith except as contemplated in this Agreement with respect to
primary servicers that are to be sub-servicers of the Master Servicer or as has
been terminated.
(lii) Mechanics' and Materialmen's Liens. To the Seller's
knowledge, (A) the related Mortgaged Property is free and clear of any and all
mechanics' and materialmen's liens that are not bonded 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. 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 or escrowed for.
(liii) Due Date. The Due Date for such Mortgage Loan is
scheduled to be the first day or the eleventh day of each month.
(liv) Assignment of Leases. Subject only to Permitted
Encumbrances (which 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, materially and adversely
interfere with the current use or operation of the related Mortgaged Property or
materially and adversely affect the value or marketability of such Mortgaged
Property or the ability of the related Mortgagor to timely pay in full the
principal and interest on the related Mortgage Note), the related Assignment of
Leases set forth in or separate from the related Mortgage and delivered in
connection with such Mortgage Loan establishes and creates a valid and, subject
only to the exceptions in paragraph (b)(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, and each assignor thereunder has the full right to assign
the same.
(lv) Borrower Formation or Incorporation. To the Seller's
knowledge, the related Mortgagor is a Person formed or incorporated in a
jurisdiction within the United States.
(lvi) No Ownership Interest in Borrower. The Seller has no
ownership interest in the related Mortgaged Property or the related Borrower
other than in such Mortgage Loan being sold and assigned, and neither the Seller
nor any affiliate of the Seller has any obligation to make any capital
contributions to the related Borrower under the Mortgage or any other related
Mortgage Loan document.
(lvii) No Undisclosed Common Ownership. To the Seller's
knowledge, no two properties securing Mortgage Loans are directly or indirectly
under common ownership except to the extent that such common ownership has been
specifically disclosed in the Mortgage Loan Schedule.
(lviii) Loan Outstanding. Such Mortgage Loan has not been
satisfied in full, and except as expressly contemplated by the related loan
agreement or other documents
-12-
contained in the related Mortgage File, no material portion of the related
Mortgaged Property has been released.
(lix) Property Description. If such Mortgage Loan has a
Cut-off Date Balance in excess of $15,000,000, then the Seller has obtained or
received (and, in the case of mortgage loans with principal balances below
$15,000,000, it is the practice of the Seller to obtain or receive) an as-built
survey, a survey recertification, a site plan, a recorded plat or the like with
respect to each related Mortgaged Property which satisfied, or the Seller
otherwise satisfied (or, in the case of mortgage loans with principal balances
below $15,000,000, for the Seller to otherwise satisfy), the requirements of the
related title insurance company for deletion of the standard general exceptions
for encroachments, boundary and other survey matters and for easements not shown
by the public records from the related title insurance policy, except with
respect to any related Mortgaged Property located in a jurisdiction (such as the
State of Texas where survey title insurance coverage is prohibited by law) in
which the exception for easements not shown by the public records could not be
deleted and such standard general exception is customarily accepted by prudent
commercial mortgage lenders in such jurisdiction (and except that, if such
Mortgage Loan has a Cut-off Date Balance of below $15,000,000, then the Seller
may have waived its general practices described above).
(lx) ARD Mortgage Loan. If such Mortgage Loan is an ARD
Mortgage Loan and has a Cut-off Date Balance of $15,000,000 or more, then:
(A) the related Anticipated Repayment Date is not less
than six 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
monthly expenses reasonably related to the operation
of the related Mortgaged Property, amounts due for
reserves established under such Mortgage Loan, and
payments for any other expenses, including capital
expenses, related to such Mortgaged Property which
are approved by mortgagee) will be applied to repay
principal due under such Mortgage Loan; and
(C) no later than the related Anticipated Repayment Date,
the related Mortgagor is required (if it has not
previously done so) to enter into a "lockbox
agreement" whereby all revenue from the related
Mortgaged Property will be deposited directly into a
designated account controlled by the mortgagee under
such Mortgage Loan.
(lxi) 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.
LB-UBS 2001 C-3
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
CONTROL
NUMBER PROPERTY ISSUE
EXCEPTIONS TO REPRESENTATION (V): LOAN DOCUMENT STATUS
-------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Lamplighter Mobile Home Recourse Loan
Parks
-------------------------------------------------------------------------------------------------------------
131 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Recourse Loan
-------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Portfolio Recourse Loan
-------------------------------------------------------------------------------------------------------------
50 Food 4 Less Center - West Covina In the event of liability for losses
described in representation (v), lender is
28 Food 4 Less Center - Buena Park required to look first to the
environmental insurance policy to cover
45 Food 4 Less Center - Inglewood such losses prior to seeking to recover
such losses from such mortgagor or other
60 Food 4 Less Center - Long Beach person.
41 Food 4 Less Center - Norwalk
20 Food 4 Less Center - Santa ▇▇▇
65 Food 4 Less Center - Anaheim
-------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (VIII): FIRST LIEN
-------------------------------------------------------------------------------------------------------------
10 Nexus - Canyon Park Laboratory Mechanics' liens have been filed against
the property in the approximate amount of
$2.7 million by a general contractor and
three subcontractors who performed tenant
improvement work on behalf of one of the
tenants (▇▇▇▇.▇▇▇), which tenant has filed
for bankruptcy protection. The borrower
has delivered a $2 million letter of
credit to secure its obligation to
discharge the lien. The title insurance
issued by Chicago Title Insurance Company
in connection with the origination
CONTROL
NUMBER PROPERTY ISSUE
of the loan, insures the lien of Lender's
deed of trust as a first priority lien.
-------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XIII): PROPERTY INSURANCE
-------------------------------------------------------------------------------------------------------------
32 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Required insurance is maintained by a
carrier rated "BB" by S&P.
-------------------------------------------------------------------------------------------------------------
55 Long's Drugs - San Pablo The tenant is required to provide
earthquake insurance to the extent it is
customarily maintained for similar
properties.
-------------------------------------------------------------------------------------------------------------
130 ▇▇▇▇ Portfolio Business interruption insurance required
for 6 months.
-------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XVII): SUBORDINATE DEBT
-------------------------------------------------------------------------------------------------------------
124 Park South Apartments The related borrower has secured
subordinate debt in the approximate amount
of $200,000, which sub-debt is subject to
a subordination and intercreditor
agreement.
-------------------------------------------------------------------------------------------------------------
2 Cape Cod The related borrower is permitted to incur
unsecured debt up to $3,000,000 for common
area maintenance and capital improvements.
-------------------------------------------------------------------------------------------------------------
6 International Place The related borrower is permitted to incur
debt not greater than $1,000,000 from an
"insider" (as such term is defined in the
Bankruptcy Code) for operating
deficiencies and capital improvements.
-------------------------------------------------------------------------------------------------------------
32 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ The related borrower is permitted to incur
unsecured debt not greater than $200,000
for operating deficiencies and capital
improvements.
-------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
EXCEPTIONS TO REPRESENTATION (XX): ENVIRONMENTAL CONDITIONS
-------------------------------------------------------------------------------------------------------------
9 Park Central Environmental Report performed more than
12 months before the Cut-off Date.
-------------------------------------------------------------------------------------------------------------
26 Wichita Apartments Portfolio Environmental Report performed more than
12 months before the Cut-off Date.
-------------------------------------------------------------------------------------------------------------
53 Piney Green Shopping Center Environmental Report performed more than
12 months before the Cut-off Date.
-------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXVI): DUE-ON-ENCUMBRANCE
-------------------------------------------------------------------------------------------------------------
124 Park South Apartments The related borrower has secured
subordinate debt in the approximate amount
of $200,000, which sub-debt is subject to
a subordination and intercreditor agreement
-------------------------------------------------------------------------------------------------------------
2 Cape Cod The related borrower is permitted to incur
unsecured debt up to $3,000,000 for common
area maintenance and capital improvements.
-------------------------------------------------------------------------------------------------------------
6 International Place The related borrower is permitted to incur
debt not greater than $1,000,000 from an
"insider" (as such term is defined in the
Bankruptcy Code) for operating
deficiencies and capital improvements.
-------------------------------------------------------------------------------------------------------------
32 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ The related borrower is permitted to incur
unsecured debt not greater than $200,000
for operating deficiencies and capital
improvements.
-------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXX): INSPECTION
CONTROL
NUMBER PROPERTY ISSUE
-------------------------------------------------------------------------------------------------------------
53 Piney Green Shopping Center The property was not inspected during the
six-month period prior to the related
origination date.
-------------------------------------------------------------------------------------------------------------
55 Long's Drugs - San Pablo The property was not inspected during the
six-month period prior to the related
origination date.
-------------------------------------------------------------------------------------------------------------
68 10 Atlantic Portfolio The property was not inspected during the
six-month period prior to the related
origination date.
-------------------------------------------------------------------------------------------------------------
70 Rite Aid - ▇▇▇▇▇▇ The property was not inspected during the
six-month period prior to the related
origination date.
-------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ The property was not inspected during the
six-month period prior to the related
origination date.
-------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXXI): PROPERTY RELEASE
-------------------------------------------------------------------------------------------------------------
5 Shoppingtown Mall Release parcel is unimproved land not
included in underwriting. Borrower must
satisfy certain conditions prior to
release.
-------------------------------------------------------------------------------------------------------------
78 1260 ▇▇▇▇▇ ▇▇▇▇▇ Highway Release parcel is unimproved land not
included in underwriting. Borrower must
satisfy certain conditions prior to
release.
-------------------------------------------------------------------------------------------------------------
81 CVS Plaza Release parcel is unimproved land not
included in underwriting. Borrower must
satisfy certain conditions prior to
release.
-------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXXIV): SINGLE PURPOSE ENTITY
-------------------------------------------------------------------------------------------------------------
12 Sacramento Corporate Center Borrowers are tenants in common. Each
individual tenant in common, however, is a
single purpose entity.
-------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
36 ▇▇▇▇▇▇ Valley Borrowers are tenants in common. Each
individual tenant in common, however, is a
single purpose entity.
-------------------------------------------------------------------------------------------------------------
132 Edgewater & Edgewood Portfolio Borrower is an individual.
-------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLII): ENGINEERING ASSESSMENTS
-------------------------------------------------------------------------------------------------------------
26 Wichita Apartments Portfolio The engineering assessment was performed
more than 12 months prior to the Cut-off
Date
-------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLVI): FEE SIMPLE
-------------------------------------------------------------------------------------------------------------
65 Food 4 Less Center - Anaheim The mortgage loan is secured in whole or
material part by a leasehold interest in
the property
-------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLVII)(I): LEASEHOLD INTEREST ONLY
-------------------------------------------------------------------------------------------------------------
65 Food 4 Less Center - Anaheim The term of the ground lease is 10 years
beyond the stated maturity date not 20
years beyond the stated maturity date.
-------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLIX): TAX LOT
-------------------------------------------------------------------------------------------------------------
30 Home Depot The property was recently subdivided and
the separate tax parcels were not fully
processed at closing. Taxes for the
entire parcel were escrowed at closing.
-------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (L): DEFEASANCE
-------------------------------------------------------------------------------------------------------------
55 Long's Drugs - San Pablo Defeasance is permitted prior to the
second anniversary of the Closing Date.
-------------------------------------------------------------------------------------------------------------
70 Rite Aid - ▇▇▇▇▇▇ Defeasance is permitted prior to the
second anniversary of the Closing Date.
-------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LII): MECHANICS' AND MATERIALMEN'S LIENS
-------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
10 Nexus - Canyon Park Laboratory Mechanics' liens have been filed against
the property in the approximate amount of
$2.7 million by a general contractor and
three subcontractors who performed tenant
improvement work on behalf of one of the
tenants (▇▇▇▇.▇▇▇), which tenant has filed
for bankruptcy protection. The borrower
has delivered a $2 million letter of
credit to secure its obligation to
discharge the lien. The title insurance
issued by Chicago Title Insurance Company
in connection with the origination of the
loan, insures the lien of Lender's deed of
trust as a first priority lien.
-------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LV): BORROWER FORMATION OR INCORPORATION
-------------------------------------------------------------------------------------------------------------
134 ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ The borrower is Buttress Real Property
N.V., a corporation organized under the
laws of the Netherlands Antilles and
qualified to do business in Florida. The
borrower was required to and did file a
designation of an agent for service of
process in Florida in connection with its
becoming qualified to do business there.
The borrower delivered an opinion of
counsel which confirms the enforceability
of the loan documents against the borrower
through service of process on the
borrower's registered agent in Florida in
lieu of serving an officer or member of
the borrower.
-------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LVII): NO UNDISCLOSED COMMON OWNERSHIP
-------------------------------------------------------------------------------------------------------------
12 Sacramento Corporate Center/ The properties are directly or
CONTROL
NUMBER PROPERTY ISSUE
indirectly
36 ▇▇▇▇▇▇ Valley under common ownership.
-------------------------------------------------------------------------------------------------------------
50 Food 4 Less Center - West Covina/ The properties are directly or indirectly
under common ownership.
28 Food 4 Less Center - Buena Park/
45 Food 4 Less Center - Inglewood/
60 Food 4 Less Center - Long Beach,
41 Food 4 Less Center - Norwalk,
20 Food 4 Less Center - Santa ▇▇▇, and
65 Food 4 Less Center - Anaheim
-------------------------------------------------------------------------------------------------------------
21 U-Haul A Portfolio/ The properties are directly or indirectly
17 U-Haul B Portfolio under common ownership.
-------------------------------------------------------------------------------------------------------------
117 Ninety East Mobile Home Park/ The properties are directly or indirectly
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ under common ownership.
-------------------------------------------------------------------------------------------------------------
70 Long's Drugs - San Pablo/ The properties are directly or indirectly
55 Rite Aid - ▇▇▇▇▇▇ under common ownership.
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