EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of August 15, 2005 (the
"Agreement"), between UBS Real Estate Investments Inc. (together with its
successors and permitted assigns hereunder, the "Seller"), UBS Principal Finance
LLC, as an additional party responsible for the Seller's obligations hereunder
(in such capacity, together with its successors and permitted assigns hereunder,
the "Additional Party"), and Structured Asset Securities Corporation II
(together with its successors and permitted assigns hereunder, the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (collectively, the "Mortgage
Loans") as provided herein. The Purchaser intends to deposit the Mortgage Loans,
together with certain other multifamily and commercial mortgage loans (the
"Other Loans"; and, together with the Mortgage Loans, the "Securitized Loans"),
into a trust fund (the "Trust Fund"), the beneficial ownership of which will be
evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates") to be identified as the LB-UBS Commercial
Mortgage Trust 2005-C5, Commercial Mortgage Pass-Through Certificates, Series
2005-C5. 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 dated as of August 11, 2005
(the "Pooling and Servicing Agreement"), between the Purchaser, as depositor,
Wachovia Bank, National Association, as master servicer (the "Master Servicer"),
LNR Partners, Inc., as special servicer (the "Special Servicer"), LaSalle Bank
National Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as
fiscal agent. Capitalized terms used but not defined herein have the respective
meanings set forth in the Pooling and Servicing Agreement, as in effect on the
Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with Xxxxxx Brothers
Inc. ("Xxxxxx") and UBS Securities LLC ("UBS Securities" and, together with
Xxxxxx in such capacity, the "Underwriters"), whereby the Purchaser will sell to
the Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Purchaser has
also entered into a Certificate Purchase Agreement (the "Certificate Purchase
Agreement"), dated as of the date hereof, with Xxxxxx and UBS Securities
(together in such capacity, the "Placement Agents"), whereby the Purchaser will
sell to the Placement Agents all of the remaining Certificates (other than the
Residual Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
UBS Americas Inc. (the "Co-Indemnitor"), the Purchaser, the Underwriters and the
Placement Agents have entered into an Indemnification Agreement (the
"Indemnification Agreement"), dated as of the date hereof.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit A. The Mortgage Loan Schedule may be amended to reflect the
actual Mortgage Loans accepted by the Purchaser
pursuant to the terms hereof. The Mortgage Loans will have an aggregate
principal balance of $553,190,837 (the "Initial UBS Pool Balance") as of the
close of business on the Cut-off Date, after giving effect to any and all
payments of principal due thereon on or before such date, whether or not
received. The purchase and sale of the Mortgage Loans shall take place on August
25, 2005 or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The consideration for the Mortgage Loans shall
consist of: (A) a cash amount equal to a percentage (mutually agreed upon by the
parties hereto) of the Initial UBS Pool Balance, plus interest accrued on each
Mortgage Loan at the related Mortgage Rate (net of the related Administrative
Cost Rate), for the period from and including August 11, 2005 up to but not
including the Closing Date, which cash amount shall be paid to the Seller or its
designee by wire transfer in immediately available funds (or by such other
method as shall be mutually acceptable to the parties hereto) on the Closing
Date; and (B) a 23.59960% Percentage Interest in each Class of Residual Interest
Certificates (all such Residual Interest Certificates, the "Seller's Residual
Interest Certificates").
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction or waiver of the
conditions to closing set forth in Section 7 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller (other than the
primary servicing rights) in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of the
initial Purchaser, deliver to and deposit with (i) the Trustee or a Custodian
appointed thereby, a Mortgage File for each Mortgage Loan in accordance with the
terms of, and conforming to the requirements set forth in, the Pooling and
Servicing Agreement, with copies of each Mortgage File to be delivered by the
Trustee to, upon request, the Master Servicer (at the expense of the Trustee),
within 10 Business Days of such request; and (ii) the Master Servicer (or, at
the direction of the Master Servicer, to the appropriate Sub-Servicer) or, in
the case of an Outside Serviced Trust Mortgage Loan, the applicable Outside
Servicer, all unapplied Escrow Payments and Reserve Funds in the possession or
under the control of the Seller that relate to the Mortgage Loans.
(d) The Seller shall retain, with respect to each Mortgage Loan
(except in the case of an Outside Serviced Trust Mortgage Loan), an Independent
third party (the "Recording/Filing Agent"), through which it shall: (i) as and
in the manner provided in the Pooling and Servicing Agreement (and in any event
within 45 days following the later of the Closing Date and the date on which all
necessary recording or filing, as applicable, information is available to the
subject Recording/Filing Agent), submit for recording or filing, as the case may
be, in the appropriate public office for real property records or
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UCC Financing Statements, as applicable (A) each related assignment of Mortgage
and assignment of Assignment of Leases in favor of, and delivered under clause
(a)(iv) of the definition of "Mortgage File" to, the Trustee, and (B) solely
with respect to nursing facilities and hospitality properties (identified on
Schedule VI to the Pooling and Servicing Agreement), each related assignment of
UCC Financing Statement, in favor of, and delivered under clause (a)(iv) of the
definition of "Mortgage File" to, the Trustee; and (ii) cause each such
assignment of Mortgage, assignment of Assignment of Leases and assignment of UCC
Financing Statement to be delivered to the Trustee following its return by the
appropriate public office for real property records or UCC Financing Statements,
as applicable, with copies of any such returned assignments to be delivered by
the Trustee to the Master Servicer, at the expense of the Seller, at least every
90 days after the Closing Date (or at additional times upon the request of the
Master Servicer if reasonably necessary for the ongoing administration and/or
servicing of the related Mortgage Loan by the Master Servicer); provided that,
in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, the Trustee shall
obtain a certified copy of the recorded original. Notwithstanding the foregoing,
the Seller may request the Trustee to submit for recording or filing, as
applicable, any of the assignments of Mortgage, assignments of Assignment of
Leases or assignments of UCC Financing Statements referred to in this paragraph,
and in such event, the Seller shall cause any such unrecorded or unfiled
document to be delivered to the Trustee.
If any such assignment of Mortgage, assignment of Assignment of Leases
and/or assignment of UCC Financing Statement referred to in the preceding
paragraph is lost or returned unrecorded or unfiled, as the case may be, because
of a defect therein, then the Seller shall prepare or cause the preparation of a
substitute therefor or cure such defect, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the Trustee
(or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing
Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all such
recording, filing and delivery contemplated in the preceding two paragraphs,
including, without limitation, any out-of-pocket costs and expenses that may be
incurred by the Trustee in connection with any such recording, filing or
delivery performed by the Trustee at the Seller's request and the fees of the
Recording/Filing Agent.
(e) With respect to any Mortgage Loan (other than an Outside Serviced
Trust Mortgage Loan), the following documents (other than any document that
constitutes part of the Mortgage File for such Mortgage Loan): copies of any
final appraisal, final survey, final engineering report, final environmental
report, opinion letters of counsel to the related mortgagor delivered in
connection with the closing of such Mortgage Loan, escrow agreements,
organization documentation for the related mortgagor, organizational
documentation for any related guarantor or indemnitor, if the related guarantor
or indemnitor is an entity, insurance certificates, leases for tenants
representing 25% or more of the annual income with respect to the related
Mortgaged Property, final seismic report and property management agreements, but
in each case, only if the subject document (a) was in fact obtained in
connection with the origination of such Mortgage Loan, (b) relates to the
administration or servicing of such Mortgage Loan, (c) is reasonably necessary
for the ongoing administration and/or servicing of such Mortgage Loan by the
Master Servicer or Special Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (d) is in the possession or under the
control of the Seller shall, within 45 days of the Closing Date, be delivered or
caused to be delivered by the Seller to the Master
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Servicer (or, at the direction of the Master Servicer, to the applicable
Sub-Servicer); provided that the Seller shall not be required to deliver any
draft documents, privileged or other communications or correspondence, credit
underwriting or due diligence analyses or information, credit committee briefs
or memoranda or other internal approval documents or data or internal
worksheets, memoranda, communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) In connection with the obligations of the Master Servicer under
Sections 3.01(g) and 3.19(c) of the Pooling and Servicing Agreement, with regard
to each Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan) that
is secured by the interests of the related Mortgagor in a hospitality property
(identified on Schedule VI to the Pooling and Servicing Agreement) and each
Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan) that has a
related letter of credit, the Seller shall deliver to and deposit with the
Master Servicer, on or before the Closing Date, any related franchise agreement,
franchise comfort letter and the original of such letter of credit. Further, in
the event, with respect to a Mortgage Loan (other than an Outside Serviced Trust
Mortgage Loan) with a related letter of credit, the Master Servicer determines
that a draw under such letter of credit has become necessary under the terms
thereof prior to the assignment of such letter of credit having been effected in
accordance with Section 3.01(g) of the Pooling and Servicing Agreement, the
Seller shall, upon the written direction of the Master Servicer, use its best
efforts to make such draw or to cause such draw to be made on behalf of the
Trustee.
(h) Pursuant to the Pooling and Servicing Agreement, the Master
Servicer shall review the documents with respect to each Mortgage Loan delivered
by the Seller pursuant to or as contemplated by Section 2(e) and provide the
Seller with a certificate (the "Master Servicer Certification") within 90 days
of the Closing Date acknowledging its receipt as of the date of the Master
Servicer Certification of such documents actually received; provided that such
review shall be limited to identifying the document received, the Mortgage Loan
to which it purports to relate, that it appears regular on its face and that it
appears to have been executed (where appropriate). Notwithstanding anything to
the contrary set forth herein, to the extent the Seller has not been notified in
writing of its failure to deliver any document with respect to a Mortgage Loan
required to be delivered pursuant to or as contemplated by Section 2(e) hereof
prior to the first anniversary of the date of the Master Servicer Certification,
the Seller shall have no obligation to provide such document.
(i) In addition, on the Closing Date, the Seller shall deliver to the
Master Servicer for deposit in the Pool Custodial Account the Initial Deposits,
if any, relating to the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of Seller and
Additional Party.
(a) Each of the Seller and the Additional Party (each, for purposes of
this Section 3(a), a "Representing Party") hereby represent and warrant to and
covenant with the Purchaser, as of the date hereof, that:
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(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 Party,
enforceable against the Representing Party in accordance with its terms,
except as such enforcement may be limited by (A) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting
the enforcement of creditors' rights in general, and (B) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Representing Party and the Representing Party's performance and compliance
with the terms of this Agreement will not (A) violate the Representing
Party's organizational documents, (B) violate any law or regulation or any
administrative decree or order to which the Representing Party is subject,
or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any material contract, agreement or other instrument to which the
Representing Party is a party or by which the Representing Party is bound.
(iv) The Representing Party is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the Representing Party's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Representing Party or
its properties or have consequences that would materially and adversely
affect its performance hereunder.
(v) The Representing Party is not a party to or bound by any
agreement or instrument or subject to any organizational document or any
other corporate or limited liability company (as applicable) restriction or
any judgment, order, writ, injunction, decree, law or regulation that
would, in the Representing Party's reasonable and good faith judgment,
materially and adversely affect the ability of the Representing Party to
perform its obligations under this Agreement or that requires the consent
of any third person to the execution and delivery of this Agreement by the
Representing Party or the performance by the Representing Party of its
obligations under this Agreement.
(vi) Except for the recordation and/or filing of assignments and
other transfer documents with respect to the Mortgage Loans, as
contemplated by Section 2(d) hereof, no consent, approval, authorization or
order of, registration or filing with, or notice to, any court or
governmental agency or body, is required for the execution, delivery and
performance by the Representing Party of or compliance by the Representing
Party with this Agreement or the consummation of the transactions
contemplated by this Agreement; and no bulk sale law applies to such
transactions.
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(vii) No litigation is pending or, to the best of the
Representing Party's knowledge, threatened against the Representing Party
that would, in the Representing Party's good faith and reasonable judgment,
prohibit its entering into this Agreement or materially and adversely
affect the performance by the Representing Party of its obligations under
this Agreement.
(viii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Representing Party are pending or
contemplated.
In addition, the Seller hereby further represents and warrants to, and
covenants with, the Purchaser, as of the date hereof, that:
(i) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of the
Mortgage Loans to the Purchaser in exchange for the consideration specified
in Section 1 hereof. In connection with the foregoing, the Seller shall
cause all of its records to reflect such transfer as a sale (as opposed to
a secured loan). The consideration received by the Seller upon the sale of
the Mortgage Loans to the Purchaser will constitute at least reasonably
equivalent value and fair consideration for the Mortgage Loans. The Seller
will be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller
is not selling the Mortgage Loans to the Purchaser with any intent to
hinder, delay or defraud any of the creditors of the Seller. After giving
effect to its transfer of the Mortgage Loans to the Purchaser, as provided
herein, the value of the Seller's assets, either taken at their present
fair saleable value or at fair valuation, will exceed the amount of the
Seller's debts and obligations, including contingent and unliquidated debts
and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct
its business. The Mortgage Loans do not constitute all or substantially all
of the assets of the Seller. The Seller does not intend to, and does not
believe that it will, incur debts or obligations beyond its ability to pay
such debts and obligations as they mature.
(ii) The Seller will acquire the Seller's Residual Interest
Certificates for its own account and not with a view to, or sale or
transfer in connection with, any distribution thereof, in whole or in part,
in any manner that would violate the Securities Act or any applicable state
securities laws.
(iii) The Seller understands that (A) the Seller's Residual
Interest Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (B) neither the Purchaser nor any other party is obligated
so to register or qualify the Seller's Residual Interest Certificates and
(C) neither the Seller's Residual Interest Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (1) registered pursuant to the Securities Act and registered
or qualified pursuant to any applicable state securities laws or (2) sold
or transferred in a transaction which is exempt from such registration and
qualification and the Certificate Registrar has received the certifications
and/or opinions of counsel required by the Pooling and Servicing Agreement.
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(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 interest in a Seller's Residual Interest
Certificate or any other similar security to any person in any manner, (B)
solicited any offer to buy or accept a transfer, pledge or other
disposition of any Seller's Residual Interest Certificate, any interest in
a Seller's Residual Interest Certificate or any other similar security from
any person in any manner, (C) otherwise approached or negotiated with
respect to any Seller's Residual Interest Certificate, any interest in a
Seller's Residual Interest Certificate or any other similar security with
any person in any manner, (D) made any general solicitation by means of
general advertising or in any other manner, or (E) taken any other action,
that (in the case of any of the acts described in clauses (A) through (E)
above) would constitute a distribution of the Seller's Residual Interest
Certificates under the Securities Act, would render the disposition of the
Seller's Residual Interest Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Seller's Residual Interest Certificates pursuant
thereto. The Seller will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to the Seller's Residual Interest Certificates, any
interest in the Seller's Residual Interest Certificates or any other
similar security.
(vi) The Seller has been furnished with all information regarding
(A) the Purchaser, (B) the Seller's Residual Interest Certificates and
distributions thereon, (C) the nature, performance and servicing of the
Other Loans, (D) the Pooling and Servicing Agreement and the Trust Fund,
and (E) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act or (b) an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and (7)
of Rule 501(a) under the Securities Act or an entity in which all its
equity owners are "accredited investors" as defined in such paragraphs and
has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the
Seller's Residual Interest Certificates. The Seller has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Seller is able to bear the economic
risks of such an investment and can afford a complete loss of such
investment.
(viii) The Seller is not a Plan and is not directly or indirectly
acquiring the Seller's Residual Interest Certificates on behalf of, as
named fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a
Disqualified Organization.
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(b) The Seller hereby makes, for the benefit of the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or as of such other date
expressly set forth therein, each of the representations and warranties set
forth on Exhibit B hereto.
(c) The Seller intends to transfer the Seller's Residual Interest
Certificates to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated on or about
the Closing Date; and, in connection therewith, the Seller will comply with all
of the requirements of Section 5.02 of the Pooling and Servicing Agreement, as
in effect on the Closing Date, and applicable law. The Seller hereby directs the
Purchaser to cause the Seller's Residual Interest Certificates to be registered
in the name of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated upon initial
issuance.
SECTION 4. Representations and Warranties of the Purchaser.
In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants for the benefit of the Seller and the
Additional Party as of the date hereof that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to
acquire the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser and, assuming due authorization,
execution and delivery hereof by the Seller and the Additional Party,
constitutes a legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as
such enforcement may be limited by (A) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting
the enforcement of creditors' rights in general, and (B) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of
this Agreement will not (A) violate the Purchaser's organizational
documents, (B) violate any law or regulation or any administrative decree
or order to which the Purchaser is subject or (C) constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Purchaser is a party or by which
the Purchaser is bound.
(iv) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required for the execution, delivery
and performance by the Purchaser of or compliance by the Purchaser with
this Agreement, or the consummation by the Purchaser of any transaction
described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser, as provided herein, as a
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sale of the Mortgage Loans to the Purchaser in exchange for the
consideration specified in Section 1 hereof.
SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller receives written notice with respect to any Mortgage
Loan (i) that any document constituting a part of clauses (a)(i) through (a)(x)
(or, in the case of an Outside Serviced Trust Mortgage Loan, clause(b)(i)) of
the definition of Mortgage File has not been executed or is missing (a "Document
Defect") or (ii) of a breach of any of the Seller's representations and
warranties made pursuant to Section 3(b) hereof (each such breach, a "Breach")
relating to any Mortgage Loan, and such Document Defect or Breach materially and
adversely affects the value of the Mortgage Loan at the time of such notice,
then such Document Defect shall constitute a "Material Document Defect" or such
Breach shall constitute a "Material Breach", as the case may be. Then, following
receipt of a Seller/Depositor Notification with respect to such Material
Document Defect or Material Breach, as the case may be, the Seller shall
(subject to Sections 5(f), (g) and (h)), (A) not later than 90 days after (1)
the Seller and the Purchaser have agreed upon the existence of such Material
Document Defect or Material Breach or (2) a court of competent jurisdiction
makes a final non-appealable determination that a Material Document Defect or
Material Breach exists or (B) in the case of a Material Document Defect or
Material Breach that affects whether a Mortgage Loan was, as of the Closing
Date, is or will continue to be a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the
discovery by any party of such Material Document Defect or Material Breach
(either such 90-day period, in the case of (A) or (B), as applicable, an
"Initial Resolution Period"): (i) cure such Material Document Defect or Material
Breach, as the case may be, in all material respects (which cure shall include
payment of any out-of-pocket expenses that are reasonably incurred and directly
attributable to pursuing such a claim based on such Material Document Defect or
Material Breach associated therewith), or (ii) if such Material Document Defect
or Material Breach, as the case may be, cannot be cured within the Initial
Resolution Period, repurchase the affected Mortgage Loan (or the related
Mortgaged Property) from, and in accordance with the directions of, the
Purchaser or its designee, at a price equal to the Purchase Price; provided that
if (a) such Material Breach or Material Document Defect, as the case may be, is
capable of being cured but not within the applicable Initial Resolution Period,
(b) any such Material Breach or Material Document Defect, as the case may be,
does not affect whether the Mortgage Loan was, as of the Closing Date, is or
will continue to be a Qualified Mortgage, (c) the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(d) the Seller shall have delivered to the Purchaser a certification executed on
behalf of the Seller by an officer thereof confirming that such Material Breach
or Material Document Defect, as the case may be, is not capable of being cured
within the applicable Initial Resolution Period, setting forth what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed 90 days
beyond the end of the Initial Resolution Period, then the Seller shall have such
additional 90-day period (the "Resolution Extension Period"), to complete such
cure or, failing such, to repurchase the affected Mortgage Loan (or the related
Mortgaged Property); and provided, further, that, if any such Material Document
Defect is still not cured after the Initial Resolution Period and any such
Resolution Extension Period solely due to the failure of the Seller to have
received a recorded document, then the Seller shall be entitled to continue to
defer its cure and repurchase obligations in respect of such Material Document
Defect so long as the Seller certifies to the Purchaser every six months
thereafter that the Material Document Defect is still in effect solely because
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of its failure to have received the recorded document and that the Seller is
diligently pursuing the cure of such defect (specifying the actions being
taken). The parties acknowledge that neither delivery of a certification or
schedule of exceptions to the Seller pursuant to Section 2.02(b) of the Pooling
and Servicing Agreement or otherwise nor possession of such certification or
schedule by the Seller shall, in and of itself, constitute delivery of notice of
any Material Document Defect or Material Breach or knowledge or awareness by the
Seller of any Material Document Defect or Material Breach.
If, during the period of deferral by the Seller of its cure and
repurchase obligations as contemplated by the last proviso of the penultimate
sentence of the preceding paragraph, the Mortgage Loan that is the subject of
the Material Document Defect either becomes a Specially Serviced Mortgage Loan
or becomes the subject of a proposed or actual assumption of the obligations of
the related Mortgagor under such Mortgage Loan, then, following receipt by the
Seller of a Seller/Depositor Notification providing notice of such event, the
Seller shall cure the subject Material Document Defect within the time period
specified in such Seller/Depositor Notification. If, upon the expiration of such
period, the Seller has failed to cure the subject Material Document Defect, the
Master Servicer or the Special Servicer, as applicable, shall be entitled (but
not obligated) to perform the obligations of the Seller with respect to curing
the subject Material Document Defect and, in the event of such an election, the
Seller shall pay all reasonable actual out-of-pocket costs and expenses in
connection with the applicable servicer's effecting such cure.
(b) [Reserved]
(c) If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Seller as contemplated
by Section 5(a), then, prior to the subject repurchase, the Seller or its
designee shall use reasonable efforts, subject to the terms of the related
Mortgage Loans, to prepare and, to the extent necessary and appropriate, have
executed by the related Mortgagor and record, such documentation as may be
necessary to terminate the cross-collateralization between the Mortgage Loans in
such Cross-Collateralized Group that are to be repurchased, on the one hand, and
the remaining Mortgage Loans therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto;
provided that, if such Cross-Collateralized Group is still subject to the
Pooling and Servicing Agreement, then no such termination shall be effected
unless and until (i) the Purchaser or its designee has received from the Seller
(A) an Opinion of Counsel to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to the Grantor Trust and (B) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Certificates and (ii)
the Controlling Class Representative (if one is acting) has consented (which
consent shall not be unreasonably withheld and shall be deemed to have been
given if no written objection is received by the Seller within 10 Business Days
of the Controlling Class Representative's receipt of a written request for such
consent); and provided, further, that the Seller may, at its option, purchase
the entire Cross-Collateralized Group in lieu of terminating the
cross-collateralization. All costs and expenses incurred by the Purchaser or its
designee pursuant to this paragraph shall be included in the calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased. If the
cross-collateralization of any Cross-Collateralized Group is not or cannot be
terminated as contemplated by this paragraph, then, for purposes of (i)
determining whether the subject Breach or Document Defect, as the case may be,
materially and adversely affects the value of such
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Cross-Collateralized Group, and (ii) the application of remedies, such
Cross-Collateralized Group shall be treated as a single Mortgage Loan.
(d) It shall be a condition to any repurchase of a Mortgage Loan by
the Seller pursuant to this Section 5 that the Purchaser shall have executed and
delivered such instruments of transfer or assignment then presented to it by the
Seller (or as otherwise required to be prepared, executed and delivered under
the Pooling and Servicing Agreement), in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Mortgage Loan (including any property acquired in respect thereof or proceeds of
any insurance policy with respect thereto), to the extent that such ownership
interest was transferred to the Purchaser hereunder. If any Mortgage Loan is to
be repurchased as contemplated by this Section 5, the Seller shall amend the
Mortgage Loan Schedule to reflect the removal of such Mortgage Loan and shall
forward such amended schedule to the Purchaser.
(e) Any repurchase of a Mortgage Loan pursuant to this Section 5 shall
be on a whole loan, servicing released basis. The Seller and the Additional
Party shall have no obligation to monitor the Mortgage Loans regarding the
existence of a Breach or Document Defect. It is understood and agreed that the
obligations of the Seller set forth in this Section 5 constitute the sole
remedies available to the Purchaser with respect to any Breach or Document
Defect.
(f) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Seller set forth
in, or made pursuant to, paragraph (xlviii) of Exhibit B to this Agreement,
specifically relating to whether or not the Mortgage Loan documents or any
particular Mortgage Loan document for any Mortgage Loan requires the related
Mortgagor to bear the reasonable costs and expenses associated with the subject
matter of such representation or warranty, as set forth in such representation
or warranty, then the Purchaser or its designee will direct the Seller in
writing to wire transfer to the Custodial Account, within 90 days of receipt of
such direction, the amount of any such reasonable costs and expenses incurred by
the Trust that (i) are due from the Mortgagor, (ii) otherwise would have been
required to be paid by the Mortgagor if such representation or warranty with
respect to such costs and expenses had in fact been true, as set forth in the
related representation or warranty, (iii) have not been paid by the Mortgagor,
(iv) are the basis of such Breach and (v) constitute "Covered Costs". Upon
payment of such costs, the Seller shall be deemed to have cured such Breach in
all respects. Provided that such payment is made, this paragraph describes the
sole remedy available to the Purchaser regarding any such Breach, regardless of
whether it constitutes a Material Breach, and the Seller shall not be obligated
to otherwise cure such Breach or repurchase the affected Mortgage Loan under any
circumstances. Amounts deposited in the Pool Custodial Account pursuant to this
paragraph shall constitute "Liquidation Proceeds" for all purposes of the
Pooling and Servicing Agreement (other than Section 3.11(c) of the Pooling and
Servicing Agreement).
(g) Subject to Section 5(f) and the last three sentences of this
paragraph, if the Seller determines that a Material Breach (other than a
Material Breach of a representation or warranty on the part of the Seller set
forth in and made pursuant to paragraph (xvii) of Exhibit B to this Agreement)
or a Material Document Defect with respect to a Mortgage Loan is not capable of
being cured in accordance with Section 5(a) hereof, then in lieu of repurchasing
such Mortgage Loan the Seller may, at its sole option, pay a cash amount equal
to the loss of value (each such payment, a "Loss of Value Payment") with respect
to such Mortgage Loan, which loss of value is directly attributed to such
Material Breach or Material Document Defect, as the case may be. The amount of
each such Loss of Value Payment shall
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be determined either (i) by mutual agreement of the Special Servicer on behalf
of the Trust with respect to the subject Material Breach or Material Document
Defect, as the case may be, and the Seller, or (ii) by judicial decision;
provided that, in the event there is a legal action for determining the
existence of a Material Breach or a Material Document Defect with respect to any
Mortgage Loan, such legal action must also include a determination of the amount
of the loss of value to such Mortgage Loan directly attributed to such Material
Breach or such Material Document Defect, as the case may be. Provided that such
payment is made, this paragraph describes the sole remedy available to the
Purchaser regarding any such Material Breach or Material Document Defect and the
Seller shall not be obligated to otherwise cure such Material Breach or Material
Document Defect or repurchase the affected Mortgage Loan based on such Material
Breach or Material Document Defect under any circumstances. Notwithstanding the
foregoing provisions of this Section 5(g), if substantially all of the loss of
value to a Mortgage Loan was caused by a Material Breach or Material Document
Defect, which Material Breach or Material Document Defect is not capable of
being cured, this Section 5(g) shall not apply and the Seller shall be obligated
to repurchase the affected Mortgage Loan at the applicable Purchase Price in
accordance with Section 5(a). Furthermore, the Seller shall not have the option
of delivering Loss of Value Payments in connection with any Material Breach
relating to a Mortgage Loan's failure to be a Qualified Mortgage. In the event
there is a Loss of Value Payment made by the Seller in accordance with this
Section 5(g), the amount of such Loss of Value Payment shall be deposited into
the Loss of Value Reserve Fund to be applied in accordance with Section 3.05(e)
of the Pooling and Servicing Agreement.
In the event the amount of any Loss of Value Payment is determined by
judicial decision, then such Loss of Value Payment shall also include the
payment of any costs and expenses (including costs incurred in establishing the
amount of any related loss of value to the subject Mortgage Loan) that are: (i)
reasonably incurred in good faith by the Master Servicer, the Special Servicer
and/or the Trustee (on behalf of the Trust) in enforcing the rights of the Trust
against the Seller with respect to the subject Material Breach or Material
Document Defect, as the case may be; and (ii) directly attributable to the
enforcement of the rights of the Trust with respect to the subject Material
Breach or Material Document Defect, as the case may be; provided that, that in
the event the Seller tenders a loss of value payment in a specified amount in
connection with a Material Breach or Material Document Defect, as the case may
be, prior to the institution of legal proceedings and that offer is rejected and
an amount equal to or less than the loss of value payment originally tendered by
the Seller is ultimately determined by judicial decision to be the actual amount
of the Loss of Value Payment attributed to such Material Breach or Material
Document Defect, as the case may be, then that Loss of Value Payment shall not
include the payment of any costs or expenses incurred by the Master Servicer,
the Special Servicer and/or the Trustee in connection with the subject
litigation; provided, further, that if the Special Servicer request a loss of
value payment from the Seller of a specified amount in connection with a
Material Breach or Material Document Defect, as the case may be, and the Seller
refuses to pay that amount and an amount equal to or greater than the loss of
value payment originally requested by the Special Servicer is ultimately
determined by judicial decision to be the actual Loss of Value Payment
attributable to such Material Document Defect or Material Breach, then that Loss
of Value Payment shall also include the payment of all costs and expenses
reasonably incurred in connection with that judicial determination; and
provided, further, that, if the Seller tenders a loss of value payment in
connection with a Material Breach or Material Document Defect, as the case may
be, in a specified amount, and the Special Servicer rejects such tender and
requests a greater loss of value payment amount, and an amount in between the
respective amounts tendered and requested is ultimately determined by judicial
decision to be the actual Loss of Value Payment attributable to such Material
Breach or Material Document Defect, as the case may be, then that Loss of Value
Payment shall also include the payment of an amount equal
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to the product of (i) all costs and expenses reasonably incurred in connection
with that judicial determination, multiplied by (ii) a fraction, the numerator
of which is the excess of the amount determined by judicial decision over the
amount tendered by the Seller, and the denominator of which is the excess of the
amount requested by the Special Servicer over the amount tendered by the Seller.
Notwithstanding the foregoing, in the event any Loss of Value Payment is
determined by the parties hereto by mutual agreement (and not by a judicial
decision), that Loss of Value Payment shall not include any costs and expenses
incurred by the Master Servicer, the Special Servicer or the Trustee unless such
costs and expenses were specifically included in such mutual agreement.
(h) Notwithstanding the foregoing, if there exists a Material Breach
of the representation or warranty on the part of the Seller set forth in and
made pursuant to paragraph (xvii) of Exhibit B to this Agreement, and the
subject Mortgage Loan becomes a Qualified Mortgage prior to the expiration of
the Initial Resolution Period applicable to a Material Document Defect or
Material Breach that affects whether a Mortgage Loan is a Qualified Mortgage,
and without otherwise causing an Adverse REMIC Event or an Adverse Grantor Trust
Event, then such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such Breach.
SECTION 6. Obligations of the Additional Party.
The Additional Party hereby covenants and agrees with the Purchaser
that the Additional Party shall be liable to the Purchaser and any designee
thereof to the same extent as the Seller as set forth herein, for all the
obligations of the Seller under Section 5 hereof. The Additional Party further
agrees that the Purchaser shall not be bound or obligated to initially request
the Seller to perform any of its obligations hereunder, but may instead
initially request the Additional Party to perform such obligations.
Additionally, the Additional Party agrees that the Purchaser shall not be bound
or obligated in anyway to exhaust recourse against the Seller before being
entitled to demand the performance by the Additional Party of its obligations
hereunder. Performance by the Additional Party of any of the Seller's
obligations hereunder shall be deemed to be performance thereof by the Seller.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller and the
Additional Party set forth in or made pursuant to Sections 3(a) and 3(b) of this
Agreement, and all of the representations and warranties of the Purchaser set
forth in Section 4 of this Agreement, shall be true and correct in all material
respects as of the Closing Date;
(b) Insofar as it affects the obligations of the Seller hereunder, the
Pooling and Servicing Agreement shall be in a form mutually acceptable to the
Purchaser and the Seller;
(c) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
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(d) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf), the Master Servicer and the Special Servicer all
documents and funds required to be delivered to the Trustee, the Master Servicer
and the Special Servicer, respectively, pursuant to Section 2 of this Agreement;
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects, and the Seller and Additional Party shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(f) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
All parties hereto agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed by the Purchaser, the Seller and the
Additional Party;
(b) The Pooling and Servicing Agreement duly executed by the parties
thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) Certificates of each of the Seller and the Additional Party,
executed by a duly authorized officer of the Seller or the Additional Party, as
the case may be, and dated the Closing Date, and upon which the initial
Purchaser, the Underwriters and the Placement Agents may rely, to the effect
that: (i) the representations and warranties of the Seller or the Additional
Party, as the case may be, in this Agreement and, in the case of the Seller, in
the Indemnification Agreement are true and correct in all material respects at
and as of the Closing Date with the same effect as if made on such date; and
(ii) the Seller or the Additional Party, as the case may be, has, in all
material respects, complied with all the agreements and satisfied all the
conditions on its part that are required under this Agreement to be performed or
satisfied at or prior to the Closing Date;
(e) An Officer's Certificate from an officer of each of the Seller and
the Additional Party, in his or her individual capacity, dated the Closing Date,
and upon which the initial Purchaser, the Underwriters and the Placement Agents
may rely, to the effect that each individual who, as an officer or
representative of the Seller or the Additional Party, as the case may be, signed
this Agreement, the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein or, in the case of the Seller, in the
Indemnification Agreement, was at the respective times of such signing and
delivery, and is as of the
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Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(f) As certified by an officer of each of the Seller and the
Additional Party, true and correct copies of (i) the resolutions of the board of
directors authorizing the Seller's entering into the transactions contemplated
by this Agreement and, in the case of the Seller, the Indemnification Agreement,
(ii) the organizational documents of each of the Seller and the Additional
Party, and (iii) a certificate of good standing of each of the Seller and the
Additional Party, issued by the Secretary of State of the State of Delaware not
earlier than 10 days prior to the Closing Date;
(g) A Certificate of the Co-Indemnitor, executed by a duly authorized
officer of the Co-Indemnitor and dated the Closing Date, and upon which the
initial Purchaser, the Underwriters and the Placement Agents may rely, to the
effect that the representations and warranties of the Co-Indemnitor in the
Indemnification Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on such date;
(h) An Officer's Certificate from an officer of the Co-Indemnitor, in
his or her individual capacity, dated the Closing Date, and upon which the
initial Purchaser, the Underwriters and the Placement Agents may rely, to the
effect that each individual who, as an officer or representative of the
Co-Indemnitor, signed the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated therein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(i) As certified by an officer of the Co-Indemnitor, true and correct
copies of (i) the resolutions of the board of directors authorizing the
Co-Indemnitor's entering into the transactions contemplated by the
Indemnification Agreement, (ii) the organizational documents of the
Co-Indemnitor, and (iii) a certificate of good standing of the Co-Indemnitor
issued by the Secretary of State of the State of Delaware not earlier than 10
days prior to the Closing Date;
(j) A favorable opinion of Cadwalader, Xxxxxxxxxx & Xxxx LLP ("CWT"),
special counsel to the Seller, the Additional Party and the Co-Indemnitor,
substantially in the form attached hereto as Exhibit C-1, dated the Closing Date
and addressed to the initial Purchaser, the Underwriters, the Placement Agents,
the Rating Agencies and, upon request, the other parties to the Pooling and
Servicing Agreement, together with such other opinions of CWT as may be required
by the Rating Agencies in connection with the transactions contemplated hereby;
(k) An Officer's Certificate from an officer of each of the Seller and
the Co-Indemnitor, in each case delivered in connection with the opinion of CWT
to be delivered pursuant to Section 8(j) above, in form and substance
satisfactory to the addressees of such opinion and upon which such addressees
may rely;
(l) A favorable opinion of in-house counsel to the Additional Party,
substantially in the form attached hereto as Exhibit C-2, dated the Closing Date
and addressed to the initial Purchaser, the Underwriters, the Placement Agents,
the Rating Agencies and, upon request, the other parties to the Pooling and
Servicing Agreement;
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(m) In connection with the initial issuance of the Seller's Residual
Interest Certificates, a Transfer Affidavit and Agreement in the form
contemplated by the Pooling and Servicing Agreement from Seller and from the
transferee of the Seller;
(n) In the event any of the Certificates are mortgage related
securities within the meaning of the Secondary Mortgage Market Enhancement Act
of 1984, as amended, a Certificate of the Seller regarding origination of the
Mortgage Loans by specified originators as set forth in Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended; and
(o) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9. Costs.
An amount equal to 23.59960% of all reasonable out-of-pocket costs and
expenses incurred by the Seller, the initial Purchaser, the Underwriters, the
Placement Agents and the seller of the Other Loans to the Purchaser in
connection with the securitization of the Securitized Loans and the other
transactions contemplated by this Agreement, the Underwriting Agreement and the
Certificate Purchase Agreement shall be payable by the Seller.
SECTION 10. Grant of a Security Interest.
The parties hereto agree that it is their express intent that the
conveyance of the Mortgage Loans by the Seller to the Purchaser as provided in
Section 2 hereof be, and be construed as, a sale of the Mortgage Loans by the
Seller to the Purchaser and not as a pledge of the Mortgage Loans by the Seller
to the Purchaser to secure a debt or other obligation of the Seller. However,
if, notwithstanding the aforementioned intent of the parties, the Mortgage Loans
are held to be property of the Seller, then it is the express intent of the
parties that: (i) such conveyance shall be deemed to be a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller; (ii) this Agreement shall be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the applicable Uniform Commercial Code; (iii)
the conveyance provided for in Section 2 hereof shall be deemed to be a grant by
the Seller to the Purchaser of a security interest in all of the Seller's right,
title and interest in and to the Mortgage Loans, and all amounts payable to the
holder of the Mortgage Loans in accordance with the terms thereof, and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property; (iv) the assignment to the
Trustee of the interest of the Purchaser in and to the Mortgage Loans shall be
deemed to be an assignment of any security interest created hereunder; (v) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes for the Mortgage Loans, and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest pursuant to Section 9-313 of the
applicable Uniform Commercial Code; and (vi) notifications to persons (other
than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from such persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such
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throughout the term of this Agreement and the Pooling and Servicing Agreement;
and, in connection with the foregoing, the Seller authorizes the Purchaser to
file any and all appropriate Uniform Commercial Code financing statements.
SECTION 11. Notices.
All notices, copies, requests, consents, demands and other
communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to any party, at such
other address as shall be designated by such party in a notice hereunder to the
other parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller, the Additional Party and/or the Co-Indemnitor submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans by the Seller to the Purchaser (and by
the initial Purchaser to the Trustee).
SECTION 13. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but which together shall constitute one and the same
agreement.
SECTION 15. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND
TO BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, THE SELLER, THE ADDITIONAL PARTY AND THE PURCHASER EACH HEREBY
IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND
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FEDERAL COURTS SITTING IN NEW YORK CITY, TO THE EXCLUSION OF ALL OTHER COURTS,
WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING SHALL BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS, TO THE EXCLUSION OF ALL
OTHER COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN
INCONVENIENT FORUM IN CONNECTION WITH SUCH ACTION OR PROCEEDING COMMENCED IN
SUCH NEW YORK STATE OR FEDERAL COURTS; AND (IV) AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW;
PROVIDED, THAT IN THE EVENT NEITHER A NEW YORK STATE NOR FEDERAL COURT SITTING
IN NEW YORK IN WHICH AN ACTION OR PROCEEDING HAS BEEN DULY AND PROPERLY
COMMENCED BY ANY PARTY TO THIS AGREEMENT REGARDING A MATTER ARISING OUT OF OR
RELATING TO THIS AGREEMENT HAS REFUSED TO ACCEPT JURISDICTION OVER OR OTHERWISE
HAS NOT ACCEPTED SUCH ACTION OR PROCEEDING WITHIN, IN THE CASE OF EACH SUCH
COURT, 60 DAYS OF THE COMMENCEMENT OR FILING THEREOF, THEN THE WORDS "TO THE
EXCLUSION OF ALL OTHER COURTS" IN CLAUSE (I) AND CLAUSE (II) OF THIS SENTENCE
SHALL NOT APPLY WITH REGARD TO SUCH ACTION OR PROCEEDING AND THE REFERENCE TO
"SHALL" IN CLAUSE (II) OF THIS SECTION SHALL BE DEEMED TO BE "MAY".
SECTION 16. Further Assurances.
The Seller, the Additional Party and the Purchaser each agrees to
execute and deliver such instruments and take such further actions as any other
such party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller and the Additional Party
under this Agreement shall not be assigned by the Seller or the Additional
Party, as the case may be, without the prior written consent of the Purchaser,
except that any person into which the Seller or the Additional Party may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Seller or the Additional Party is a party, or any
person succeeding to all or substantially all of the business of the Seller or
the Additional Party, shall be the successor to the Seller or the Additional
Party, as the case may be, hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part, as may be required to effect
the purposes of the Pooling and Servicing Agreement, and the assignee shall, to
the extent of such assignment, succeed to the rights and obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the Seller, the Additional Party, the
Purchaser, and their respective successors and permitted assigns.
SECTION 18. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced. The Seller's and the Additional Party's obligations
-18-
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.
-19-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
UBS REAL ESTATE INVESTMENTS INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Director
Address for Notices:
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
ADDITIONAL PARTY
UBS PRINCIPAL FINANCE LLC
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Director
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Director
Address for Notices:
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
PURCHASER
STRUCTURED ASSET SECURITIES CORPORATION II
By: /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
Address for Notices:
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
EXHIBIT A
MORTGAGE LOAN SCHEDULE
<TABLE>
MORTGAGE
LOAN NUMBER PROPERTY NAME
---------------------------------------------------
6 270 Corporate Center
11 Palmolive Building Retail
12 1345 Avenue of the Americas
13 0000 Xxx Xxxxxx Xxxx
16 One Xxxx Street
18 Pacific Prestige Properties I DE, LLC
19 Wedgewood II
00 Xxxx Xxxxxxxx Xxxxxxxxx
00 Xxxxx Xxx Xxxxxx Xxxxx
00 Xxxx Xxxxxx Xxxxx
00 Xxxx Xxxxx Apartments
28 Centre at Lake in the Hills
36 Residence Inn Southington
30 Indian Creek
48 Residence Inn Danbury
35 0000 Xxxxxxxx Xxxxxxxxx
38 XXX-XXX Properties I DE, LLC
00 Xxxxxxxxx Xxxxxxx
46 0000 Xxxxxx Xxxxxx
56 0000 Xxxx Xxxxx Xxxxxx
59 The Lodge Apartments
63 0000 Xxxx Xxxxx Xxxxxx
67 Walgreens - St. Louis
00 Xxx Xxxxxxxx
00 Xxxxxxxxx - Xxxxxxxxxxx
76 RBC Centura
00 Xxxxxxxxx - Xxxxxxxx Xxxx
00 Xxxxxxxxx - Xxxxxxxxx
82 Summit Ridge Apartments
83 Inn @ Xxxxxxxx Station
84 CVS - Montgomery
85 CVS - Cornwall
88 Hillcrest Estate Apartments
91 Friendly Village of Xxxxxx
93 CVS - Jersey Shore
94 CVS - Xxxxxxx
00 Xxxx Xxxxxxxx
000 Xxx Xxxxx Portfolio
000 Xxxxxxx Xxxxx I DE, LLC
000 Xxxx Xxxxx
111 Xxxxxxx Station III
MORTGAGE
LOAN NUMBER ADDRESS
--------------------------------------------------------------------------------------------------------------------------
6 20201, 20250, 20251, 00000 Xxxxxxx Xxxxxxxxx
00 000 Xxxxx Xxxxxxxx Xxxxxx
00 0000 Xxxxxx of the Americas
13 0000 Xxx Xxxxxx Xxxx
16 One Xxxx Street
18 Various
19 0000 Xxxxxxxxx Xxxxxxxxx
22 0000 Xxxxxxxxxx Xxxxxx, 00 Xxxxx Xxxx Xxxxxx, 00 Xxxxx Xxxx Street, 00 XxXxxxx Xxxx and 00 Xxxxx Xxxx Xxxxxx
24 0000 Xxxxx Xxx
25 00 Xxxx 00xx Xxxxxx
00 0000 Xxxxxxx Xxx
28 000 Xxxxx Xxxxxxx Xxxx
36 000 Xxxx Xxxxxx
00 0000 Xxxxxx Xxx Drive
00 00 Xxxxx Xxxxxx
00 0000 Xxxxxxxx Xxxxxxxxx
38 Various
58 00 Xxxxxxxxx Xxxx Xxxx
46 0000 Xxxxxx Xxxxxx
56 2024 West 0xx Xxxxxx
59 0000 Xxxxxxxxx 00xx Xxxxxx
63 2065 Xxxx 0xx Xxxxxx
00 0000 Xxxxx Xxxxxxxxxxxx
00 1 Cottage Drive
70 0000 0xx Xxxxxx Xxxxxxxxx
76 Various
73 0000 Xxxxxxx Xxxxxxxxx
77 0000 Xxxxxx Xxxx
00 000 Xxxxxx Xxxxx
83 0000 Xxxxxxxxx Xxxxxxxx Xxxxxx
84 3190 Xxxxx Xxxxx
00 00 Xxxxxx Xxxxxx
88 000 Xxxxx Xxxxxxxxx Xxxxx
91 1100 South Xxxx Xxxxxx
00 0000 Xxxxxxxxx Xxxxxx
94 000 Xxxx Xxxx Xxxxxx
96 000 Xxxx Xxxxxx
100 Various
101 0000 Xxxxxxx Xxxxxx
105 0000 Xxxxxxxxx Xxxxxx
111 390 Xxxxxxx Station Road
MORTGAGE CUT-OFF MONTHLY P&I MORTGAGE REMAINING TERM
LOAN NUMBER CITY STATE ZIP CODE DATE BALANCE PAYMENT RATE TO MATURITY MATURITY-ARD
------------------------------------------------------------------------------------------------------------------------------
6 Xxxxxxxxxx XX 00000 74,000,000.00 401,328.25 5.090000000 119 7/11/2015
11 Xxxxxxx XX 00000 52,800,000.00 325,184.83 5.530000000 120 8/11/2015
12 Xxx Xxxx XX 00000 46,800,000.00 595,311.72 5.364500000 120 8/8/2015
13 XxXxxx XX 00000 36,800,000.00 204,123.64 5.290000000 119 7/11/2015
16 Xxxxxxxx XX 00000 32,000,000.00 144,107.41 5.330000000 120 8/11/2015
18 San Francisco CA Various 27,621,000.00 144,223.82 6.180000000 60 8/11/2010
19 Xxxxxxxxx XX 00000 27,200,000.00 148,016.79 5.120000000 119 7/11/2015
00 Xxxx Xxxxxxxx XX 00000 23,500,000.00 130,978.59 5.333000000 120 8/11/2015
24 Xxx Xxxx XX 00000 22,478,809.97 127,752.53 5.500000000 59 7/11/2010
25 Xxx Xxxx XX 00000 19,350,000.00 260,777.19 5.391100000 121 9/8/2015
26 Xxxxxxxxx XX 00000 17,000,000.00 74,890.90 5.214000000 120 8/11/2015
28 Lake in the Xxxxx XX 00000 15,200,000.00 84,878.88 5.350000000 120 8/11/2015
36 Xxxxxxxxxxx XX 00000 10,950,000.00 63,086.24 5.632500000 120 8/11/2015
30 Xxxxxxxxxx XX 00000 14,600,000.00 65,502.29 5.310000000 120 8/11/2015
48 Xxxxxxx XX 00000 8,050,000.00 46,378.47 5.632500000 120 8/11/2015
35 Xxx Xxxxxxx XX 00000 11,000,000.00 62,181.01 5.460000000 120 8/11/2015
38 San Francisco CA Various 10,606,000.00 55,379.52 6.180000000 60 8/11/2010
58 Xxxxxxx XX 00000 6,450,000.00 37,160.39 5.632500000 120 8/11/2015
46 Xxxxxx XX 00000 8,400,000.00 46,734.83 5.317100000 120 8/11/2015
56 Xxx Xxxxxxx XX 00000 6,600,000.00 38,348.26 5.710000000 120 8/11/2015
59 Xxxxxxxx Xxxx XX 00000 6,275,634.25 34,495.15 5.200000000 119 7/11/2015
63 Xxx Xxxxxxx XX 00000 5,500,000.00 31,956.89 5.710000000 120 8/11/2015
00 Xx. Xxxxx XX 00000 5,418,000.00 24,353.41 5.320000000 120 8/11/2015
68 Xxxxxx XX 00000 5,355,000.00 28,413.73 6.280000000 118 6/11/2015
70 Xxxxxxxxxxx XX 00000 5,300,000.00 24,181.25 5.400000000 119 7/11/2015
76 Various GA Various 4,687,000.00 23,265.48 5.875000000 84 8/11/2012
73 Xxxxxxxx Xxxx XX 00000 5,000,000.00 22,812.50 5.400000000 119 7/11/2015
77 Xxxxxxxxx Xxxxx XX 00000 4,680,000.00 20,838.46 5.270000000 120 8/11/2015
82 Xxxxxxxx Xxxx XX 00000 3,810,000.00 21,038.96 5.250000000 120 8/11/2015
83 Xxxxxxxx XX 00000 3,800,000.00 24,460.23 5.990000000 120 8/11/2015
84 Xxxxxxxxxx XX 00000 3,591,000.00 16,748.02 5.520000000 121 9/11/2015
85 Xxxxxxxx XX 00000 3,587,000.00 17,214.28 5.680000000 119 7/11/2015
88 Xxxxxx XX 00000 3,425,000.00 18,912.98 5.250000000 120 8/11/2015
91 Xxxxxx XX 00000 3,200,000.00 18,229.53 5.530000000 120 8/11/2015
93 Xxxxxx Xxxxx XX 00000 3,178,000.00 14,419.07 5.370000000 120 8/11/2015
94 Xxxxxxx XX 00000 3,100,000.00 14,353.29 5.480000000 120 8/11/2015
96 Xxxx XX 00000 2,997,160.63 16,996.04 5.480000000 119 7/11/2015
100 Various OH Various 2,572,498.27 16,036.63 5.625000000 118 6/11/2015
101 Xxx Xxxxxxxxx XX 00000 2,473,000.00 12,912.84 6.180000000 60 8/11/2010
000 Xxxxxxx Xxxxx XX 00000 2,239,000.00 12,363.84 5.250000000 120 8/11/2015
000 Xxxxxxxx XX 00000 1,596,733.58 9,084.62 5.500000000 118 6/11/2015
MORTGAGE REMAINING INTEREST ADMINISTRATIVE PRIMARY MORTGAGE
LOAN NUMBER AMORTIZATION TERM ACCRUAL BASIS COST RATE SERVICING FEE GROUND LEASE? LOAN SELLER
---------------------------------------------------------------------------------------------------------------------
6 360 Act/360 0.02075 0.0200000 Fee Simple UBS
11 0 Act/360 0.02075 0.0200000 Fee Simple UBS
12 97 Act/360 0.01325 0.0125000 Fee Simple/Leasehold UBS
13 360 Act/360 0.02075 0.0200000 Fee Simple UBS
16 0 Act/360 0.02075 0.0200000 Fee Simple UBS
18 0 Act/360 0.02075 0.0200000 Fee Simple UBS
19 360 Act/360 0.02075 0.0200000 Fee Simple UBS
22 360 Act/360 0.02075 0.0200000 Fee Simple UBS
24 359 Act/360 0.02075 0.0200000 Fee Simple UBS
25 91 Act/360 0.01325 0.0125000 Fee Simple UBS
26 0 Act/360 0.02075 0.0200000 Fee Simple UBS
28 360 Act/360 0.02075 0.0200000 Fee Simple UBS
36 360 Act/360 0.02075 0.0200000 Fee Simple UBS
30 0 Act/360 0.02075 0.0200000 Fee Simple UBS
48 360 Act/360 0.02075 0.0200000 Fee Simple UBS
35 360 Act/360 0.02075 0.0200000 Fee Simple UBS
38 0 Act/360 0.02075 0.0200000 Fee Simple UBS
58 360 Act/360 0.02075 0.0200000 Fee Simple UBS
46 360 Act/360 0.02075 0.0200000 Fee Simple UBS
56 360 Act/360 0.02075 0.0200000 Fee Simple UBS
59 359 Act/360 0.02075 0.0200000 Fee Simple UBS
63 360 Act/360 0.02075 0.0200000 Fee Simple UBS
67 0 Act/360 0.02075 0.0200000 Fee Simple UBS
68 0 Act/360 0.02075 0.0200000 Fee Simple UBS
70 0 Act/360 0.02075 0.0200000 Fee Simple UBS
76 0 Act/360 0.02075 0.0200000 Fee Simple UBS
73 0 Act/360 0.02075 0.0200000 Fee Simple UBS
77 0 Act/360 0.02075 0.0200000 Fee Simple UBS
82 360 Act/360 0.02075 0.0200000 Fee Simple UBS
83 300 Act/360 0.02075 0.0200000 Fee Simple UBS
84 0 Act/360 0.02075 0.0200000 Fee Simple UBS
85 0 Act/360 0.02075 0.0200000 Fee Simple UBS
88 360 Act/360 0.02075 0.0200000 Fee Simple UBS
91 360 Act/360 0.02075 0.0200000 Fee Simple UBS
93 0 Act/360 0.02075 0.0200000 Fee Simple UBS
94 0 Act/360 0.02075 0.0200000 Fee Simple UBS
96 359 Act/360 0.02075 0.0200000 Fee Simple UBS
100 298 Act/360 0.02075 0.0200000 Fee Simple UBS
101 0 Act/360 0.02075 0.0200000 Fee Simple UBS
105 360 Act/360 0.02075 0.0200000 Fee Simple UBS
111 358 Act/360 0.02075 0.0200000 Fee Simple UBS
MORTGAGE ARD ANTICIPATED ARD CROSS MORTGAGE LOAN
LOAN NUMBER DEFEASANCE MORTGAGE LOAN REPAYMENT DATE SPREAD COLLATERALIZED SELLER LOAN ID
-----------------------------------------------------------------------------------------------------------
6 Defeasance N/A No 10896
11 Defeasance N/A No 10930
12 Defeasance N/A No UBS5
13 Defeasance N/A No 10894
16 Defeasance N/A No 10874
18 Defeasance N/A Yes (UBS-A) 10867a
19 Defeasance N/A No 10846
22 Defeasance N/A No 10895
24 Yield Maintenance N/A No 10275
25 Defeasance N/A No 10924
26 Yield Maintenance N/A No 10886
28 Defeasance N/A No 10870
36 Defeasance N/A No 10964
30 Defeasance N/A No 10893
48 Defeasance N/A No 10965
35 Defeasance N/A No 10904
38 Defeasance N/A Yes (UBS-A) 10867c
58 Defeasance N/A No 10966
46 Defeasance N/A No 10880
56 Defeasance N/A No 10885
59 Defeasance N/A No 10931
63 Defeasance N/A No 10884
67 Defeasance N/A No UBS8
68 Defeasance N/A No 10837
70 Defeasance N/A No 10898
76 Defeasance N/A No 10889
73 Defeasance N/A No 10899
77 Defeasance N/A No UBS9
82 Defeasance X/X Xx XXX0x
00 Xxxxx Xxxxxxxxxxx X/X Xx 00000
84 Defeasance N/A No 10901
85 Defeasance N/A No 10890
88 Defeasance N/A No UBS1d
91 Defeasance N/A No 10821
93 Defeasance N/A No 10907
94 Defeasance N/A No 10925
96 Defeasance N/A No 10831
100 Defeasance N/A No 10826
101 Defeasance N/A Yes (UBS-A) 10867b
105 Defeasance N/A No UBS1e
111 Defeasance N/A No 10801
</TABLE>
A-1
EXHIBIT B
REPRESENTATIONS AND WARRANTIES
Except as set forth on the schedule of exceptions attached hereto as
Schedule I, the Seller hereby represents and warrants to the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or such other date
specified in the particular representation and warranty (the heading set forth
herein with respect to each representation and warranty being for the
convenience of reference only and in no way limiting, expanding or otherwise
affecting the scope or subject matter thereof), that:
(i) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct
in all material respects as of its Due Date in August 2005 (or, if the
Mortgage Loan does not have a Due Date in August 2005, then as of the
Cut-off Date).
(ii) Legal Compliance. If such Mortgage Loan was originated by
the Seller or an Affiliate of the Seller, then, as of the date of its
origination, such Mortgage Loan complied in all material respects with, or
was exempt from, all requirements of federal, state or local law relating
to the origination of such Mortgage Loan; and, if such Mortgage Loan was
not originated by the Seller or an Affiliate of the Seller, then, to the
Seller's actual knowledge, after having performed the type of due diligence
customarily performed in the origination of comparable mortgage loans by
the Seller, as of the date of its origination, such Mortgage Loan complied
in all material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination of such Mortgage
Loan.
(iii) Ownership of Mortgage Loan. The Seller owns such Mortgage
Loan, has good title thereto, has full right, power and authority to sell,
assign and transfer such Mortgage Loan and is transferring such Mortgage
Loan free and clear of any and all liens, pledges, charges or security
interests of any nature encumbering such Mortgage Loan, exclusive of the
servicing rights pertaining thereto; no provision of the Mortgage Note,
Mortgage(s) or other loan documents relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such
Mortgage Loan to the Trustee (except in the case of a Loan Combination,
which may, pursuant to the related Co-Lender Agreement, require notice to
one or more rating agencies or another lender which, if required, has
already been provided); no governmental or regulatory approval or consent
is required for the sale of such Mortgage Loan by the Seller; and the
Seller has validly conveyed to the Trustee a legal and beneficial interest
in and to such Mortgage Loan free and clear of any lien, claim or
encumbrance of any nature.
(iv) No Holdback. The proceeds of such Mortgage Loan have been
fully disbursed (except in those cases where the full amount of such
Mortgage Loan has been disbursed but a portion thereof is being held in
escrow or reserve accounts to be released pending the satisfaction of
certain conditions relating to leasing, repairs or other matters with
respect to the related Mortgaged Property) and there is no requirement for
future advances thereunder.
(v) Loan Document Status. Each of the related Mortgage Note,
Mortgage(s), Assignment(s) of Leases, if separate from the related
Mortgage, and other agreements executed in favor of the lender in
connection therewith is the legal, valid and binding
B-1
obligation of the maker thereof (subject to the non-recourse provisions
therein and any state anti-deficiency legislation), enforceable in
accordance with its terms, except that (A) such enforcement may be limited
by (1) bankruptcy, insolvency, receivership, reorganization, liquidation,
voidable preference, fraudulent conveyance and transfer, moratorium and/or
other similar laws affecting the enforcement of creditors' rights
generally, and (2) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and (B)
certain provisions in the subject agreement or instrument may be further
limited or rendered unenforceable by applicable law, but subject to the
limitations set forth in the foregoing clause (A), such limitations will
not render that subject agreement or instrument invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided by the subject agreement or instrument.
Such Mortgage Loan is non-recourse to the Mortgagor or any other Person
except to the extent provided in certain nonrecourse carveouts and/or in
any applicable guarantees. If such Mortgage Loan has a Cut-off Date Balance
of $15 million or more, the related Mortgagor or another Person has agreed,
in effect, to be liable for all liabilities, costs, losses, damages or
expenses suffered or incurred by the mortgagee under such Mortgage Loan by
reason of or in connection with and to the extent of (A) any material
intentional fraud or material intentional misrepresentation by the related
mortgagor; (B) any breach on the part of the related mortgagor of any
environmental representations warranties and covenants contained in the
related Mortgage Loan documents; and (C) the filing of a voluntary
bankruptcy or insolvency proceeding by the related mortgagor; provided
that, instead of any breach described in clause (B) of this paragraph, the
related Mortgagor or such other Person may instead be liable for
liabilities, costs, losses, damages, expenses and claims resulting from a
breach of the obligations and indemnities of the related Mortgagor under
the related Mortgage Loan documents relating to hazardous or toxic
substances, radon or compliance with environmental laws.
(vi) No Right of Rescission. As of the date of origination,
subject to the limitations and exceptions as to enforceability set forth in
paragraph (v) above, there was no valid offset, defense, counterclaim or
right to rescission, abatement of amounts due under the Mortgage Note or
diminution of amounts due under the Mortgage Note with respect to any of
the related Mortgage Note, Mortgage(s) or other agreements executed in
connection with such Mortgage Loan; and, as of the Closing Date, subject to
the limitations and exceptions as to enforceability set forth in paragraph
(v) above, there is no valid offset, defense, counterclaim or right of
rescission, abatement of amounts due under the Mortgage Note or diminution
of amounts due under the Mortgage Note with respect to any of the related
Mortgage Note, Mortgage(s) or other agreements executed in connection with
such Mortgage Loan.
(vii) Assignments. The assignment of the related Mortgage(s) and
Assignment(s) of Leases to the Trustee (or, in the case of an Outside
Serviced Trust Mortgage Loan, to the related Outside Trustee) constitutes
the legal, valid, binding and, subject to the limitations and exceptions as
to enforceability set forth in paragraph (v) above, enforceable assignment
of such documents (provided that the unenforceability of any such
assignment based on bankruptcy, insolvency, receivership, reorganization,
liquidation, moratorium and/or other similar laws affecting the enforcement
of creditors' rights generally or based on general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law) shall be a breach of this representation and warranty
only upon the declaration
B-2
by a court with jurisdiction in the matter that such assignment is to be
unenforceable on such basis).
(viii) First Lien. Each related Mortgage is a valid and, subject
to the limitations and exceptions in paragraph (v) above, enforceable first
lien on the related Mortgaged Property including all improvements thereon
(other than any tenant owned improvements), which Mortgaged Property is
free and clear of all encumbrances and liens having priority over or on a
parity with the first lien of such Mortgage, except for the following
(collectively, the "Permitted Encumbrances"): (A) the lien for real estate
taxes, water charges, sewer rents and assessments not yet due and payable;
(B) covenants, conditions and restrictions, rights of way, easements and
other matters that are of public record or that are omitted as exceptions
in the related lender's title insurance policy (or, if not yet issued,
omitted as exceptions in a pro forma title policy or title policy
commitment); (C) exceptions and exclusions specifically referred to in the
related lender's title insurance policy (or, if not yet issued, referred to
in a pro forma title policy or title policy commitment); (D) other matters
to which like properties are commonly subject, (E) the rights of tenants
(as tenants only) under leases (including subleases) pertaining to the
related Mortgaged Property; (F) condominium declarations of record and
identified in the related lender's title insurance policy (or, if not yet
issued, identified in a pro forma title policy or title policy commitment);
and (G) if such Mortgage Loan constitutes a Cross-Collateralized Mortgage
Loan, the lien of the Mortgage for another Mortgage Loan contained in the
same Cross-Collateralized Group; provided that, in the case of a Trust
Mortgage Loan that is part of a Loan Combination, such Mortgage also
secures the other mortgage loan(s) in such Loan Combination. With respect
to such Mortgage Loan, such Permitted Encumbrances do not, individually or
in the aggregate, materially and adversely interfere with the benefits of
the security intended to be provided by the related Mortgage, the current
principal use or operation of the related Mortgaged Property or the ability
of the related Mortgaged Property to generate sufficient cashflow to enable
the related Mortgagor to timely pay in full the principal and interest on
the related Mortgage Note (other than a Balloon Payment, which would
require a refinancing). If the related Mortgaged Property is operated as a
nursing facility or a hospitality property, the related Mortgage, together
with any security agreement, chattel mortgage or similar agreement and UCC
financing statement, if any, establishes and creates a first priority,
perfected security interest (subject only to any prior purchase money
security interest, revolving credit lines and any personal property
leases), to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in
all material personal property owned by the Mortgagor that is used in, and
is reasonably necessary to, the operation of the related Mortgaged
Property, and that is located on the related Mortgaged Property, which
personal property includes, in the case of Mortgaged Properties operated by
the related Mortgagor as a nursing facility or hospitality property, all
furniture, fixtures, equipment and other personal property located at the
subject Mortgaged Property that are owned by the related Mortgagor and
reasonably necessary or material to the operation of the subject Mortgaged
Property. In the case of any Mortgage Loan secured by a hotel, the related
loan documents contain such provisions as are necessary and UCC financing
statements have been filed as necessary, in each case, to perfect a valid
first priority security interest, to the extent such security interest can
be perfected by the inclusion of such provisions and the filing of a UCC
financing statement, in the Mortgagor's right to receive related hotel room
revenues with respect to such Mortgaged Property.
B-3
(ix) Taxes and Assessments. All taxes, governmental assessments,
water charges, sewer rents or similar governmental charges which, in all
such cases, were directly related to the related Mortgaged Property and
could constitute liens on the related Mortgaged Property prior to the lien
of the related Mortgage, together with all ground rents, that prior to the
related Due Date in August 2005 (or, if the Mortgage Loan does not have a
Due Date in August 2005, then prior to the Cut-off Date) became due and
payable in respect of, and materially affect, any related Mortgaged
Property have been paid or are escrowed for or are not yet delinquent, and
the Seller knows of no unpaid tax, assessment, ground rent, water charges
or sewer rent, which, in all such cases, were directly related to the
subject Mortgaged Property and could constitute liens on the subject
Mortgaged Property prior to the lien of the related Mortgage that prior to
the Closing Date became due and delinquent in respect of any related
Mortgaged Property, or in any such case an escrow of funds in an amount
sufficient to cover such payments has been established.
(x) No Material Damage. As of the date of origination of such
Mortgage Loan and, to the actual knowledge of the Seller, as of the Closing
Date, there was no pending proceeding for the total or partial condemnation
of any related Mortgaged Property that materially affects the value thereof
and such Mortgaged Property is free of material damage. Except for certain
amounts not greater than amounts which would be considered prudent by an
institutional commercial mortgage lender with respect to a similar mortgage
loan and which are set forth in the related Mortgage or other loan
documents relating to such Mortgage Loan, (and subject to any rights of the
lessor under any related Ground Lease) the related Mortgage Loan documents
provide that any condemnation awards will be applied (or, at the discretion
of the mortgagee, will be applied) to either the repair or restoration of
all or part of the related Mortgaged Property or the reduction of the
outstanding principal balance of such Mortgage Loan.
(xi) Title Insurance. Each related Mortgaged Property is covered
by an ALTA (or its equivalent) lender's title insurance policy issued by a
nationally recognized title insurance company, insuring that each related
Mortgage is a valid first lien on such Mortgaged Property in the original
principal amount of such Mortgage Loan (or, if such Mortgage Loan is part
of a Loan Combination, in the original principal amount of such Loan
Combination) after all advances of principal, subject only to Permitted
Encumbrances and, in the case of a Trust Mortgage Loan that is part of a
Loan Combination, further subject to the fact that the related Mortgage
also secures the related Non-Trust Mortgage Loan(s) (or if such policy has
not yet been issued, such insurance may be evidenced by a binding
commitment or binding pro forma marked as binding and signed (either
thereon or on a related escrow letter attached thereto) by the title
insurer or its authorized agent) from a title insurer qualified and/or
licensed in the applicable jurisdiction, as required, to issue such policy;
such title insurance is in full force and effect, all premiums have been
paid, is freely assignable and will inure to the benefit of the Trustee
(or, in the case of an Outside Serviced Trust Mortgage Loan, the benefit of
the related Outside Trustee) as sole insured as mortgagee of record, or any
such commitment or binding pro forma is a legal, valid and binding
obligation of such insurer; no claims have been made by the Seller under
such title insurance; and neither the Seller nor any Affiliate of the
Seller has done, by act or omission, anything that would materially impair
the coverage of any such title insurance policy; such policy or commitment
or binding pro forma contains no exclusion for (or alternatively it insures
over such exclusion, unless such coverage is unavailable in the relevant
B-4
jurisdiction) (A) access to a public road, (B) that there is no material
encroachment by any improvements on the related Mortgaged Property either
to or from any adjoining property or across any easements on the related
Mortgaged Property, and (C) that the land shown on the survey materially
conforms to the legal description of the related Mortgaged Property.
(xii) Property Insurance. As of the date of its origination and,
to the Seller's actual knowledge, as of the Cut-off Date, all insurance
required under each related Mortgage (except where a tenant under a lease
is permitted to insure or self-insure under a lease) was in full force and
effect with respect to each related Mortgaged Property; such insurance
included (A) fire and extended perils insurance included within the
classification "All Risk of Physical Loss" or the equivalent thereof in an
amount (subject to a customary deductible) at least equal to the lesser of
(1) 100% of the full insurable value of the improvements located on such
Mortgaged Property and (2) the outstanding principal balance of such
Mortgage Loan or the portion thereof allocable to such Mortgaged Property),
(B) business interruption or rental loss insurance for a period of not less
than 12 months, (C) comprehensive general liability insurance in an amount
not less than $1 million per occurrence, (D) workers' compensation
insurance (if the related Mortgagor has employees and if required by
applicable law), and (E) if (1) such Mortgage Loan is secured by a
Mortgaged Property located in the State of California or in "seismic zone"
3 or 4 and (2) a seismic assessment as described below revealed a maximum
probable or bounded loss in excess of 20% of the amount of the estimated
replacement cost of the improvements on such Mortgaged Property, seismic
insurance; it is an event of default under such Mortgage Loan if the
above-described insurance coverage is not maintained by the related
Mortgagor (except where a tenant under a lease is permitted to insure or
self-insure under a lease) and the related loan documents provide (in
either a general cost and expense recovery provision or a specific
provision with respect to recovery of insurance costs and expenses) that
any reasonable out-of-pocket costs and expenses incurred by the mortgagee
in connection with such default in obtaining such insurance coverage may be
recovered from the related Mortgagor; the related Evidence of Property
Insurance and certificate of liability insurance (which may be in the form
of an Xxxxx 27 or an Xxxxx 25, respectively), or forms substantially
similar thereto, provide that the related insurance policy may not be
terminated or reduced without at least 10 days prior notice to the
mortgagee and (other than those limited to liability protection) name the
mortgagee and its successors as loss payee; no notice of termination or
cancellation with respect to any such insurance policy has been received by
the Seller; all premiums under any such insurance policy have been paid
through the Cut-off Date; the insurance policies specified in clauses (A),
(B) and (C) above are required to be maintained with insurance companies
having "financial strength" or "claims paying ability" ratings of at least
"A:VII" from A.M. Best Company or at least "BBB+" (or equivalent) from a
nationally recognized statistical rating agency (or, with respect to
certain blanket insurance policies, such other ratings as are in compliance
with S&P's applicable criteria for rating the Certificates); and, except
for certain amounts not greater than amounts which would be considered
prudent by an institutional commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Mortgage or
other loan documents relating to such Mortgage Loan, and subject to the
related exception schedules, the related Mortgage Loan documents provide
that any property insurance proceeds will be applied (or, at the discretion
of the mortgagee, will be applied) either to the repair or restoration of
all or part of the related Mortgaged Property or the reduction of the
outstanding principal balance of such Mortgage Loan; provided that the
related Mortgage Loan documents may entitle the related Mortgagor to any
portion of such proceeds remaining after completion of the repair or
restoration
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of the related Mortgaged Property or payment of amounts due under such
Mortgage Loan. Notwithstanding anything to the contrary in this paragraph
(xii), with regard to insurance for acts of terrorism, any such insurance
and the amount thereof may be limited by the commercial availability of
such coverage, whether the mortgagee may reasonably require such insurance,
certain limitations with respect to the cost thereof and/or whether such
hazards are at the time commonly insured against for property similar to
the related Mortgaged Property. If the related Mortgaged Property is
located in the State of California or in "seismic zone" 3 or 4, then: (A)
either a seismic assessment was conducted with respect to the related
Mortgaged Property in connection with the origination of such Mortgage Loan
or earthquake insurance was obtained; and (B) the probable maximum loss for
the related Mortgaged Property as reflected in such seismic assessment, if
any, was determined based upon a return period of not less than 475 years,
an exposure period of 50 years and a 10% probability of incidence. Schedule
I-xii attached hereto is true and correct in all material respects.
(xiii) No Material Defaults. Other than payments due but not yet
30 days or more delinquent, there is (A) no material default, breach,
violation or event of acceleration existing under the related Mortgage
Note, the related Mortgage or other loan documents relating to such
Mortgage Loan, and (B), to the knowledge of the Seller, no event which,
with the passage of time or with notice and the expiration of any grace or
cure period, would constitute a material default, breach, violation or
event of acceleration under any of such documents; provided, however, that
this representation and warranty does not cover any default, breach,
violation or event of acceleration (A) that specifically pertains to or
arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Exhibit B or (B)
with respect to which the Seller has no actual knowledge. The Seller has
not waived, in writing or with knowledge, any material default, breach,
violation or event of acceleration under any of such documents. Under the
terms of such Mortgage Loan, no person or party other than the mortgagee or
its servicing agent may declare an event of default or accelerate the
related indebtedness under such Mortgage Loan.
(xiv) No Payment Delinquency. As of the Closing Date, such
Mortgage Loan is not, and in the prior 12 months (or since the date of
origination if such Mortgage Loan has been originated within the past 12
months), has not been, 30 days or more past due in respect of any Monthly
Payment.
(xv) Interest Accrual Basis. Such Mortgage Loan accrues interest
on an Actual/360 Basis, an Actual/Actual Basis or a 30/360 Basis; and such
Mortgage Loan accrues interest (payable monthly in arrears) at a fixed rate
of interest throughout the remaining term thereof (except if such Mortgage
Loan is an ARD Mortgage Loan, in which case the accrual rate for interest
will increase after its Anticipated Repayment Date, and except in
connection with the occurrence of a default and the accrual of default
interest).
(xvi) Subordinate Debt. Each related Mortgage or other loan
document relating to such Mortgage Loan does not provide for or permit,
without the prior written consent of the holder of the related Mortgage
Note, any related Mortgaged Property or any direct controlling interest in
the Mortgagor to secure any other promissory note or debt (other than
another Mortgage Loan in the Trust Fund and, if such Mortgage Loan is part
of a Loan Combination, the other mortgage loan(s) that are part of such
Loan Combination, as applicable).
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(xvii) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
Accordingly, either as of the date of origination or the Closing Date, the
fair market value of the real property securing such Mortgage Loan was not
less than 80% of the "adjusted issue price" (within the meaning of the
REMIC Provisions) of such Mortgage Loan. For purposes of the preceding
sentence, the fair market value of the real property securing such Mortgage
Loan was first reduced by the amount of any lien on such real property that
is senior to the lien that secures such Mortgage Loan, and was further
reduced by a proportionate amount of any lien that is on a parity with the
lien that secures such Mortgage Loan. No action that occurs by operation of
the terms of such Mortgage Loan would cause such Mortgage Loan to cease to
be a "qualified mortgage" and such Mortgage Loan does not permit the
release or substitution of collateral if such release or substitution (A)
would constitute a "significant modification" of such Mortgage Loan within
the meaning of Treasury regulations section 1.1001-3, (B) would cause such
Mortgage Loan not to be a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code (without regard to clauses (A)(i) or (A)(ii)
thereof) or (C) would cause a "prohibited transaction" within the meaning
of Section 860F(a)(2) of the Code. The related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code.
(xviii) Prepayment Consideration. Prepayment Premiums and Yield
Maintenance Charges payable with respect to such Mortgage Loan, if any,
constitute "customary prepayment penalties" within the meaning of Treasury
regulations section 1.860G-1(b)(2).
(xix) Environmental Conditions. One or more environmental site
assessments or transaction screens, or one or more updates of a previously
conducted environmental assessment or transaction screen, were performed by
an environmental consulting firm independent of the Seller and the Seller's
Affiliates with respect to each related Mortgaged Property during the
12-month period preceding the Cut-off Date, and the Seller, having made no
independent inquiry other than to review the report(s) prepared in
connection with the assessment(s), transaction screen(s) and/or update(s)
referenced herein, has no knowledge of, and has not received actual notice
of, any material and adverse environmental condition or circumstance
affecting such Mortgaged Property that was not disclosed in such report(s);
all of such environmental site assessments and transaction screens met ASTM
requirements to the extent set forth in such report; and none of the above
referenced environmental reports reveal any circumstances or conditions
that are in violation of any applicable environmental laws, or if such
report does reveal such circumstances, then (1) the same have been
remediated in all material respects, (2) sufficient funds have been
escrowed or a letter of credit, guaranty or other instrument has been
delivered for purposes of covering the estimated costs of such remediation,
(3) the related Mortgagor or other responsible party is currently taking
remedial or other appropriate action to address the environmental issue
consistent with the recommendations in such site assessment, (4) the cost
of the environmental issue relative to the value of such Mortgaged Property
was de minimis, or (5) environmental insurance has been obtained.
The Mortgagor with respect to such Mortgage Loan has represented,
warranted and covenanted generally to the effect that, to its knowledge,
except as set forth in the environmental reports described above, it has
not used, caused or permitted to exist, and will not use, cause or permit
to exist, on the related Mortgaged Property, any Hazardous Materials in any
manner
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which violates applicable federal, state or local laws governing the use,
storage, handling, production or disposal of Hazardous Materials at the
related Mortgaged Property and (A) the related Mortgagor and a natural
person have agreed to indemnify the mortgagee under such Mortgage Loan, and
its successors and assigns, against any losses, liabilities, damages,
penalties, fines, claims and reasonable out of pocket expenses (excluding
lost profits, consequential damages and diminution of value of the related
Mortgaged Property, provided that no Mortgage Loan with an original
principal balance equal to or greater than $15,000,000 contains an
exclusion for "diminution of value" of the related Mortgaged Property)
paid, suffered or incurred by such mortgagee resulting from such
Mortgagor's material violation of any environmental law or a material
breach of the environmental representations and warranties or covenants
given by the related Mortgagor in connection with such Mortgage Loan or (B)
environmental insurance has been obtained. If such Mortgage Loan is a
Mortgage Loan as to which neither a natural person has provided the
indemnity set forth above nor environmental insurance has been obtained,
such Mortgage Loan is set forth on Schedule I.
The Seller has not taken any action with respect to such Mortgage Loan
or the related Mortgaged Property that could subject the Seller or its
successors and assigns in respect of such Mortgage Loan to liability under
CERCLA or any other applicable federal, state or local environmental law.
The related Mortgage or other loan documents require the related Mortgagor
to comply with all applicable federal, state and local environmental laws
and regulations.
(xx) Realization Against Real Estate Collateral. The related
Mortgage Note, Mortgage(s), Assignment(s) of Leases and other loan
documents securing such Mortgage Loan, if any, contain customary and,
subject to the limitations and exceptions as to enforceability in paragraph
(v) above, enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the practical realization against the
related Mortgaged Property or Properties of the principal benefits of the
security intended to be provided thereby, including realization by judicial
or, if applicable, non-judicial foreclosure.
(xxi) Bankruptcy. The related Mortgagor is not a debtor in any
bankruptcy, reorganization, insolvency or comparable proceeding; provided,
however, that this representation and warranty does not cover any such
bankruptcy, reorganization, insolvency or comparable proceeding with
respect to which: (1) the Seller has no actual knowledge and (2) written
notice of the discovery thereof is not delivered to the Seller by the
Trustee or the Master Servicer on or prior to the date occurring twelve
months after the Closing Date.
(xxii) Loan Security. Such Mortgage Loan is secured by a Mortgage
on a fee simple interest and/or a leasehold estate in a commercial property
or multifamily property, including the related Mortgagor's interest in the
improvements on the related Mortgaged Property.
(xxiii) Amortization. Such Mortgage Loan does not provide for
negative amortization, unless such Mortgage Loan is an ARD Mortgage Loan,
in which case it may occur only after the Anticipated Repayment Date.
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(xxiv) Whole Loan. Such Mortgage Loan is a whole loan, contains
no equity participation by the lender or shared appreciation feature and
does not provide for any contingent interest in the form of participation
in the cash flow of the related Mortgaged Property.
(xxv) Due-on-Encumbrance. Each Mortgage Loan contains provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the prior written consent of the mortgagee or
Rating Agency confirmation that an Adverse Rating Event with respect to any
Class of Certificates would not occur, any related Mortgaged Property or
any direct controlling interest in the Mortgagor is directly encumbered in
connection with subordinate financing; and except in the case of a Trust
Mortgage Loan that is part of a Loan Combination (for which such consent
has been granted with respect to the other mortgage loan(s) in such Loan
Combination), and except for the respective Mortgage Loans secured by the
Mortgaged Properties listed on Schedule I (for which such consent has been
granted with respect to mezzanine debt), no such consent has been granted
by the Seller. To the Seller's knowledge, no related Mortgaged Property is
encumbered in connection with subordinate financing; however, if the
related Mortgaged Property is listed on Schedule I, certain direct
controlling equity holders in the related Mortgagor are known to the Seller
to have incurred debt secured by their ownership interest in the related
Mortgagor.
(xxvi) Due-on-Sale. Except with respect to transfers of certain
non-controlling and/or minority interests in the related Mortgagor as
specified in the related Mortgage or with respect to transfers of interests
in the related Mortgagor between immediate family members and with respect
to transfers by devise, by descent or by operation of law or otherwise upon
the death or incapacity of a person having an interest in the related
Mortgagor, each Mortgage Loan contains either (A) provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if any related Mortgaged Property or interest therein is
directly or indirectly transferred or sold without the prior written
consent of the mortgagee or rating agency confirmation, or (B) provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if any related Mortgaged Property or interest therein is
directly or indirectly transferred or sold without the related Mortgagor
having satisfied certain conditions specified in the related Mortgage with
respect to permitted transfers.
(xxvii) Mortgagor Concentration. No Mortgage Loan, together with
any other Mortgage Loan made to the same Mortgagor or to an Affiliate of
such Mortgagor, represents more than 5% of the Initial Pool Balance.
(xxviii) Waivers; Modifications. Except as set forth in a written
instrument included in the related Mortgage File, the (A) material terms of
the related Mortgage Note, the related Mortgage(s) and any related loan
agreement and/or lock-box agreement have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded by the
mortgagee in any manner, and (B) no portion of a related Mortgaged Property
has been released from the lien of the related Mortgage, in the case of (A)
and/or (B), to an extent or in a manner that in any such event materially
interferes with the security intended to be provided by such document or
instrument.
(xxix) Inspection. Each related Mortgaged Property was inspected
by or on behalf of the related originator during the six-month period prior
to the related origination date.
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(xxx) Property Release. The terms of the related Mortgage Note,
Mortgage(s) or other loan document securing such Mortgage Loan do not
provide for the release from the lien of such Mortgage of any material
portion of the related Mortgaged Property that is necessary to the
operation of such Mortgaged Property or was given material value in the
underwriting of such Mortgage Loan at origination, without (A) payment in
full of such Mortgage Loan, (B) delivery of Defeasance Collateral in the
form of "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), (C) delivery of substitute real property collateral, or (D) payment
of a release price equal to at least 125% of the of the amount of such
Mortgage Loan allocated to the related Mortgaged Property subject to the
release or (E) the satisfaction of certain underwriting and legal
requirements which the Seller required in the origination of comparable
mortgage loans.
(xxxi) Qualifications; Licensing; Zoning. The related Mortgagor
has covenanted in the related Mortgage Loan documents to maintain the
related Mortgaged Property in compliance in all material respects with, to
the extent it is not grandfathered under, all applicable laws, zoning
ordinances, rules, covenants and restrictions affecting the construction,
occupancy, use and operation of such Mortgaged Property, and the related
originator performed the type of due diligence in connection with the
origination of such Mortgage Loan customarily performed by such originator
in the origination of comparable mortgage loans with respect to the
foregoing matters; the Seller has received no notice of any material
violation of, to the extent is has not been grandfathered under, any
applicable laws, zoning ordinances, rules, covenants or restrictions
affecting the construction, occupancy, use or operation of the related
Mortgaged Property (unless affirmatively covered by the title insurance
referred to in paragraph (xi) above (or an endorsement thereto)); to the
Seller's knowledge (based on surveys, opinions, letters from municipalities
and/or title insurance obtained in connection with the origination of such
Mortgage Loan), no improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at the
time of origination of such Mortgage Loan lay outside the boundaries and
building restriction lines of such property, in effect at the time of
origination of such Mortgage Loan, to an extent which would have a material
adverse affect on the related Mortgagor's use and operation of such
Mortgaged Property (unless grandfathered with respect thereto or
affirmatively covered by the title insurance referred to in paragraph (xi)
above (or an endorsement thereto)), and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent.
(xxxii) Property Financial Statements. The related Mortgagor has
covenanted in the related Mortgage Loan documents to deliver to the
mortgagee annual operating statements and rent rolls of each related
Mortgaged Property. If such Mortgage Loan had an original principal balance
greater than $15 million, the related Mortgagor has covenanted to provide
such operating statements and rent rolls on a quarterly basis.
(xxxiii) Single Purpose Entity. If such Mortgage Loan has a
Cut-off Date Balance in excess of $25 million, then the related Mortgagor
is obligated by its organizational documents and the related Mortgage Loan
documents to be a Single Purpose Entity for so long as such Mortgage Loan
is outstanding; and, if such Mortgage Loan has a Cut-off Date Balance
greater than $5 million and less than $25 million, then the related
Mortgagor is obligated by its organizational documents and/or the related
Mortgage Loan documents to own the related Mortgaged Property and no other
material assets, except such as are incidental to the ownership
B-10
of such Mortgaged Property for so long as such Mortgage Loan is
outstanding. For purposes of this representation, "Single Purpose Entity"
means an entity whose organizational documents or the related Mortgage Loan
documents provide substantially to the effect that such entity: (A) is
formed or organized solely for the purpose of owning and operating one or
more of the Mortgaged Properties securing such Mortgage Loan, (B) may not
engage in any business unrelated to the related Mortgaged Property or
Mortgaged Properties, (C) does not have any material assets other than
those related to its interest in and operation of such Mortgaged Property
or Mortgaged Properties and (D) may not incur indebtedness other than as
permitted by the related Mortgage or other Mortgage Loan documents. If such
Mortgage Loan has an initial principal balance of $25 million and above and
the related Mortgagor is a single member limited liability company, such
Mortgagor's organizational documents provide that such Mortgagor shall not
dissolve or liquidate upon the bankruptcy, dissolution, liquidation or
death of its sole member and is organized in a jurisdiction that provides
for such continued existence and there was obtained opinion of counsel
confirming such continued existence. If such Mortgage Loan has, or is part
of a group of Mortgage Loans with affiliated Mortgagors having, a Cut-off
Date Balance equal to or greater than 2% of the Initial Pool Balance, or if
such Mortgage Loan has an original principal balance equal to or greater
than $25 million, there was obtained an opinion of counsel regarding
non-consolidation of such Mortgagor.
(xxxiv) Advancing of Funds. No advance of funds has been made,
directly or indirectly, by the originator or the Seller to the related
Mortgagor other than pursuant to the related Mortgage Note; and, to the
actual knowledge of the Seller, no funds have been received from any Person
other than such Mortgagor for or on account of payments due on the related
Mortgage Note.
(xxxv) Legal Proceedings. To the Seller's actual knowledge, there
are no pending actions, suits or proceedings by or before any court or
governmental authority against or affecting the related Mortgagor or any
related Mortgaged Property that, if determined adversely to such Mortgagor
or Mortgaged Property, would materially and adversely affect the value of
such Mortgaged Property or the ability of such Mortgagor to pay principal,
interest or any other amounts due under such Mortgage Loan.
(xxxvi) Originator Duly Authorized. To the extent required under
applicable law as of the Closing Date, the originator of such Mortgage Loan
was qualified and authorized to do business in each jurisdiction in which a
related Mortgaged Property is located at all times when it held such
Mortgage Loan to the extent necessary to ensure the enforceability of such
Mortgage Loan.
(xxxvii) Trustee under Deed of Trust. If the related Mortgage is
a deed of trust, a trustee, duly qualified under applicable law to serve as
such, is properly designated and serving under such Mortgage, and no fees
and expenses are payable to such trustee except in connection with a
trustee sale of the related Mortgaged Property following a default or in
connection with the release of liens securing such Mortgage Loan.
(xxxviii) Cross-Collateralization. The related Mortgaged Property
is not, to the Seller's knowledge, collateral or security for any mortgage
loan that is not in the Trust Fund and, if such Mortgage Loan is
cross-collateralized, it is cross-collateralized only with other Mortgage
B-11
Loans in the Trust Fund, except that a Trust Mortgage Loan that is part of
a Loan Combination is secured by one or more Mortgaged Properties that also
secure the related Non-Trust Mortgage Loan(s). The security interest/lien
on each material item of collateral for such Mortgage Loan has been
assigned to the Trustee (or, in the case of an Outside Serviced Trust
Mortgage Loan, to the related Outside Trustee).
(xxxix) Flood Hazard Insurance. None of the improvements on any
related Mortgaged Property are located in a flood hazard area as defined by
the Federal Insurance Administration or, if any portion of the improvements
on the related Mortgaged Property are in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special flood
hazards falling within zones A or V in the national flood insurance
program, the Mortgagor has obtained and is required to maintain flood
insurance.
(xl) Engineering Assessments. One or more engineering assessments
or updates of a previously conducted engineering assessment were performed
by an Independent engineering consulting firm with respect to each related
Mortgaged Property during the 12-month period preceding the Cut-off Date,
and the Seller, having made no independent inquiry other than to review the
report(s) prepared in connection with such assessment(s) and or update(s),
does not have any knowledge of any material and adverse engineering
condition or circumstance affecting such Mortgaged Property that was not
disclosed in such report(s); and, to the extent such assessments revealed
deficiencies, deferred maintenance or similar conditions, either (A) the
estimated cost has been escrowed or a letter of credit has been provided,
(B) repairs have been made or (C) the scope of the deferred maintenance
relative to the value of such Mortgaged Property was de minimis.
(xli) Escrows. All escrow deposits and payments relating to such
Mortgage Loan are under control of the Seller or the servicer of such
Mortgage Loan and all amounts required as of the date hereof under the
related Mortgage Loan documents to be deposited by the related Mortgagor
have been deposited. The Seller is transferring to the Trustee (or, in the
case of an Outside Serviced Trust Mortgage Loan, to the related Outside
Trustee) all of its right, title and interest in and to such amounts.
(xlii) Licenses, Permits and Authorizations. The related
Mortgagor has represented in the related Mortgage Loan documents that, and
to the actual knowledge of the Seller, as of the date of origination of
such Mortgage Loan, all material licenses, permits and authorizations then
required for use of the related Mortgaged Property by such Mortgagor, the
related lessee, franchisor or operator have been issued and were valid and
in full force and effect.
(xliii) Servicing and Collection Practices. The servicing and
collection practices used by the Seller or, to the Seller's knowledge, any
prior holder of the related Mortgage Note with respect to such Mortgage
Loan have been in all respects legal and have met customary industry
standards.
(xliv) Fee Simple. Unless such Mortgage Loan is covered by the
representation and warranty in the immediately following paragraph (xlv),
such Mortgage Loan is secured in whole or material part by a fee simple
interest.
B-12
(xlv) Leasehold Interest Only. If such Mortgage Loan is secured
in whole or in material part by the interest of the related Mortgagor as a
lessee under a Ground Lease but not by the related fee interest, then:
(A) such Ground Lease or a memorandum thereof has been or will
be duly recorded and such Ground Lease permits the interest
of the lessee thereunder to be encumbered by the related
Mortgage or, if consent of the lessor thereunder is
required, it has been obtained prior to the Closing Date;
(B) upon the foreclosure of such Mortgage Loan (or acceptance of
a deed in lieu thereof), the Mortgagor's interest in such
Ground Lease is assignable to the Trustee (or, in the case
of an Outside Serviced Trust Mortgage Loan, to the related
Outside Trustee) without the consent of the lessor
thereunder (or, if any such consent is required, it has been
obtained prior to the Closing Date) and, in the event that
it is so assigned, is further assignable by the Trustee (or,
in the case of an Outside Serviced Trust Mortgage Loan, by
the related Outside Trustee) and its successors without a
need to obtain the consent of such lessor (or, if any such
consent is required, it has been obtained prior to the
Closing Date or may not be unreasonably withheld);
(C) such Ground Lease may not be amended or modified without the
prior written consent of the mortgagee under such Mortgage
Loan and any such action without such consent is not binding
on such mortgagee, its successors or assigns;
(D) unless otherwise set forth in such Ground Lease, such Ground
Lease does not permit any increase in the amount of rent
payable by the ground lessee thereunder during the term of
such Mortgage Loan;
(E) such Ground Lease was in full force and effect as of the
date of origination of the related Mortgage Loan and, at the
Closing Date, such Ground Lease is in full force and effect;
to the actual knowledge of the Seller, except for payments
due but not yet 30 days or more delinquent, (1) there is no
material default under such Ground Lease, and (2) there is
no event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute
a material default under such Ground Lease;
(F) such Ground Lease, or an estoppel or consent letter received
by the mortgagee under such Mortgage Loan from the lessor,
requires the lessor thereunder to give notice of any default
by the lessee to such mortgagee; and such Ground Lease, or
an estoppel or consent letter received by the mortgagee
under such Mortgage Loan from the lessor, further provides
either (1) that no notice of termination given under such
Ground Lease is effective against such mortgagee unless a
copy has been delivered to the mortgagee in the manner
described in such Ground Lease, estoppel or consent letter
or (2) that upon any termination of such Ground Lease the
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lessor will enter into a new lease with such mortgagee upon
such mortgagee's request;
(G) based upon the related policy of title insurance, the ground
lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than the related ground
lessor's related fee interest and any Permitted
Encumbrances;
(H) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity to cure any curable default under
such Ground Lease (not less than the time provided to the
related lessee under such Ground Lease to cure such default)
before the lessor thereunder may terminate or cancel such
Ground Lease;
(I) such Ground Lease has a currently effective term (including
any options exercisable by the holder of the related
Mortgage) that extends not less than 20 years beyond the
Stated Maturity Date of the related Mortgage Loan;
(J) under the terms of such Ground Lease, any estoppel or
consent letter received by the mortgagee under such Mortgage
Loan from the lessor and the related Mortgage Loan
documents, taken together, any related insurance proceeds,
other than de minimis amounts for minor casualties, with
respect to the leasehold interest, or condemnation proceeds
will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as the repair or restoration
progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan, together
with any accrued interest thereon;
(K) such Ground Lease does not impose any restrictions on use or
subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender;
(L) upon the request of the mortgagee under such Mortgage Loan,
the ground lessor under such Ground Lease is required to
enter into a new lease upon termination of the Ground Lease
for any reason prior to the expiration of the term thereof,
including as a result of the rejection of the Ground Lease
in a bankruptcy of the related Mortgagor unless the
mortgagee under such Mortgage Loan fails to cure a default
of the lessee under such Ground Lease following notice
thereof from the lessor; and
(M) the terms of the related Ground Lease have not been waived,
modified, altered, satisfied, impaired, canceled,
subordinated or rescinded in any
B-14
manner which materially interferes with the security
intended to be provided by such Mortgage, except as set
forth in an instrument or document contained in the related
Mortgage File.
(xlvi) Fee Simple and Leasehold Interest. If such Mortgage Loan
is secured by the interest of the related Mortgagor under a Ground Lease
and by the related fee interest, then (A) such fee interest is subject, and
subordinated of record, to the related Mortgage, (B) the related Mortgage
does not by its terms provide that it will be subordinated to the lien of
any other mortgage or other lien upon such fee interest, and (C) upon
occurrence of a default under the terms of the related Mortgage by the
related Mortgagor, the mortgagee under such Mortgage Loan has the right
(subject to the limitations and exceptions set forth in paragraph (v)
above) to foreclose upon or otherwise exercise its rights with respect to
such fee interest.
(xlvii) Tax Lot; Utilities. Each related Mortgaged Property
constitutes one or more complete separate tax lots (or the related
Mortgagor has covenanted to obtain separate tax lots and an escrow of funds
in an amount sufficient to pay taxes resulting from a breach thereof has
been established) or is subject to an endorsement under the related title
insurance policy; and each related Mortgaged Property is served by a public
or other acceptable water system, a public sewer (or, alternatively, a
septic) system, and other customary utility facilities.
(xlviii) Defeasance. If such Mortgage Loan is a Defeasance
Mortgage Loan, the related Mortgage Loan documents require the related
Mortgagor to pay all reasonable costs associated with the defeasance
thereof, and either: (A) require the prior written consent of, and
compliance with the conditions set by, the holder of such Mortgage Loan for
defeasance or (B) require that (1) defeasance may not occur prior to the
second anniversary of the Closing Date, (2) the Defeasance Collateral must
be government securities within the meaning of Treasury regulations section
1.860G-2(a)(8)(i) and must be sufficient to make all scheduled payments
under the related Mortgage Note when due (assuming for each ARD Mortgage
Loan, if any, that it matures on its Anticipated Repayment Date or on the
date when any open prepayment period set forth in the related Mortgage Loan
documents commences) or, in the case of a partial defeasance that effects
the release of a material portion of the related Mortgaged Property, to
make all scheduled payments under the related Mortgage Note on that part of
such Mortgage Loan equal to at least 110% of the allocated loan amount of
the portion of the Mortgaged Property being released, (3) an independent
accounting firm (which may be the Mortgagor's independent accounting firm)
certify that the Defeasance Collateral is sufficient to make such payments,
(4) such Mortgage Loan be assumed by a successor entity designated by the
holder of such Mortgage Loan (or by the Mortgagor with the approval of such
lender), and (5) counsel provide an opinion letter to the effect that the
Trustee (or, in the case of an Outside Serviced Trust Mortgage Loan, the
related Outside Trustee) has a perfected security interest in such
Defeasance Collateral prior to any other claim or interest.
(xlix) Primary Servicing Rights. Except with respect to the
Outside Servicers, no Person has been granted or conveyed the right to
primary service such Mortgage Loan or receive any consideration in
connection therewith except (A) as contemplated in the Pooling and
Servicing Agreement with respect to primary servicers that are to be
sub-servicers of the Master Servicer, (B) as has been conveyed to the
Master Servicer, or (C) as has been terminated.
B-15
(l) Mechanics' and Materialmen's Liens. As of origination, (A)
the related Mortgaged Property is free and clear of any and all mechanics'
and materialmen's liens that are not bonded, insured against or escrowed
for, and (B) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related
Mortgage (unless affirmatively covered by the title insurance referred to
in paragraph (xi) above (or an endorsement thereto)). The Seller has not
received actual notice with respect to such Mortgage Loan that any
mechanics' and materialmen's liens have encumbered the related Mortgaged
Property since origination that have not been released, bonded, insured
against or escrowed for.
(li) Due Date. Subject to any business day convention imposed by
the related loan documents, the Due Date for such Mortgage Loan is
scheduled to be the first day, the sixth day, the tenth day or the eleventh
day of each month.
(lii) Assignment of Leases. Subject only to Permitted
Encumbrances, the related Assignment of Leases set forth in or separate
from the related Mortgage and delivered in connection with such Mortgage
Loan establishes and creates a valid and, subject only to the exceptions
and limitations in paragraph (v) above, enforceable first priority lien and
first priority security interest in the related Mortgagor's right to
receive payments due under any and all leases, subleases, licenses or other
agreements pursuant to which any Person is entitled to occupy, use or
possess all or any portion of the related Mortgaged Property subject to the
related Mortgage, except that a license may have been granted to the
related Mortgagor to exercise certain rights and perform certain
obligations of the lessor under the relevant lease or leases; and each
assignor thereunder has the full right to assign the same.
(liii) Mortgagor Formation or Incorporation. To the Seller's
knowledge, the related Mortgagor is a Person formed or incorporated in a
jurisdiction within the United States.
(liv) No Ownership Interest in Mortgagor. The Seller has no
ownership interest in the related Mortgaged Property or the related
Mortgagor other than as the holder of such Mortgage Loan being sold and
assigned, and neither the Seller nor any affiliate of the Seller has any
obligation to make any capital contributions to the related Mortgagor under
the Mortgage or any other related Mortgage Loan document.
(lv) No Undisclosed Common Ownership. To the Seller's knowledge,
except where multiple properties secure an individual Mortgage Loan and
except for properties securing Mortgage Loans that are cross-defaulted and
cross-collateralized and, except as listed on Schedule I no two properties
securing Mortgage Loans are directly or indirectly under common ownership.
(lvi) Loan Outstanding. Such Mortgage Loan has not been satisfied
in full, and except as expressly contemplated by the related loan agreement
or other documents contained in the related Mortgage File, no material
portion of the related Mortgaged Property has been released.
(lvii) Usury. Such Mortgage Loan complied with or was exempt from
all applicable usury laws in effect at its date of origination.
B-16
(lviii) ARD Mortgage Loan. If such Mortgage Loan is an ARD
Mortgage Loan and has a Cut-off Date Balance of $15,000,000 or more, then:
(A) the related Anticipated Repayment Date is not less than five
years from the origination date for such Mortgage Loan;
(B) such Mortgage Loan provides that from the related
Anticipated Repayment Date through the maturity date for
such Mortgage Loan, all excess cash flow (net of normal
monthly debt service on such Mortgage Loan, monthly expenses
reasonably related to the operation of the related Mortgaged
Property, amounts due for reserves established under such
Mortgage Loan, and payments for any other expenses,
including capital expenses, related to such Mortgaged
Property which are approved by mortgagee) will be applied to
repay principal due under such Mortgage Loan;
(C) no later than the related Anticipated Repayment Date, the
related Mortgagor is required (if it has not previously done
so) to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property will be deposited
directly into a designated account controlled by the
mortgagee under such Mortgage Loan; and
(D) the interest rate of such Mortgage Loan will increase by at
least two (2) percentage points in connection with the
passage of its Anticipated Repayment Date.
(lix) Appraisal. An appraisal of the related Mortgaged Property
was conducted in connection with the origination of such Mortgage Loan; and
such appraisal satisfied either (A) the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, or (B) the guidelines in Title
XI of the Financial Institutions Reform, Recovery and Enforcement Act of
1989, in either case as in effect on the date such Mortgage Loan was
originated.
B-17
SCHEDULE I
LB-UBS 2005-C5
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
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EXCEPTIONS TO REPRESENTATION (V): LOAN DOCUMENT STATUS.
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Inn at Xxxxxxxx Station The loan is fully recourse.
--------- -------------------------------- -------------------------------------
Walgreens-St. Louis The recourse carveouts run only to
the Mortgagor, not a natural person
or separate guarantor.
--------- -------------------------------- -------------------------------------
Walgreens-Rochester The recourse carveouts run only to
the Mortgagor, not a natural person
or separate guarantor.
--------- -------------------------------- -------------------------------------
1345 Avenue of the Americas There is no carveout guarantor. The
only recourse carveouts are for
certain environmental matters and
certain securitization
indemnifications, for which the
Mortgagor only is responsible.
--------- -------------------------------- -------------------------------------
Park Avenue Plaza There is no carveout guarantor. The
only recourse carveouts are for
certain environmental matters and
certain securitization
indemnifications, for which the
Mortgagor only is responsible.
--------- -------------------------------- -------------------------------------
The Cottages The loan is fully recourse.
--------- -------------------------------- -------------------------------------
RBC Centura Branches The loan is fully recourse.
--------- -------------------------------- -------------------------------------
Xxx Xxxxx Portfolio The loan is fully recourse to the
principals up to the amount of the
cost of connecting the two properties
in the Xxx Xxxxx Portfolio Mortgage
Loan to the public water and sewer
system. The full recourse guaranty
terminates upon the connection of
these properties to the public water
and sewer system.
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CVS-Xxxxxxx The loan documents have been modified
correcting the discrepancy regarding
insurance reserves.
--------- -------------------------------- -------------------------------------
Pacific Prestige Properties The outstanding principal balance of
I DE, LLC Xxx-Xxx Properties the mortgage loan is full recourse to
I DE, LLC Lombard the guarantors thereof until such
Place I DE, LLC time as, among other things, the
related mortgage loan plus the
related mezzanine loan achieve a DSCR
of 1.20x and the lis pendens recorded
in the City and County of San
Francisco in connection with
properties located at 935 Xxxxx and
00 0xx Xxxxxx has been released of
record. At such time, the mortgage
loan will remain full recourse to the
guarantors, but only up to a maximum
liability of $4,200,000.
--------- -------------------------------- -------------------------------------
All Properties With respect to the non-recourse
carveout guarantee concerning fraud,
certain of the guarantors have only
agreed to be liable, in connection
with and to the extent of any
material fraud or material
intentional fraud or material
misrepresentations or material
intentional misrepresentation by the
related Mortgagor.
With respect to the non-recourse
carve-out covering misapplication or
misappropriation, some guarantors
have agreed to cover "misapplication
or conversion" or "misappropriation
or conversion" and some such
non-recourse carve-outs apply only
during the continuance of an event of
default.
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EXCEPTION TO REPRESENTATION (VIII). FIRST LIEN.
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Summit Ridge Apartments Part of the Mortgaged Property
consists of 55 units of a Planned
Unit Development
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("PUD"). There are a total of 209
units in the PUD. 57 units in the PUD
are improved with townhouses, 45 of
them are owned by the Mortgagor and
included in the Mortgaged Property.
The remaining ten PUD units owned by
the Mortgagor and included in the
Mortgaged Property are vacant lots.
The Mortgagor owns approximately
26.3% of the voting rights in the
homeowners association (representing
55 PUD units owned by the Mortgagor).
Under the declaration controlling the
affairs of the PUD, a homeowners
association is responsible for
decisions relating to the common
areas at the Mortgaged Property.
According to the Mortgagor, there has
not been an active association or
levy of common area charges or
assessments for the duration of the
Mortgagor's ownership. The principals
of the Mortgagor have agreed to
indemnify the mortgagee for any loss,
cost or damage arising from
development of the remaining units.
--------- -------------------------------- -------------------------------------
Inn at Xxxxxxxx The Mortgaged Property consists of
condominium units and appurtenant
common elements, although the
Mortgaged Property is being operated
as a hotel. The Mortgagor owns all of
the condominium units and common
areas and has 100% control of the
Mortgaged Property. The related loan
documents prohibit the release of the
units.
--------- -------------------------------- -------------------------------------
Xxx-Xxx Properties Two properties (935 Xxxxx Street and
00-00 Xxxxx Xxxxxx), are the subject
of a recorded lis pendens and
stipulated injunction. The lis
pendens provides notice of a legal
action that was filed by the City and
County of San Francisco ("CCSF") on
January 11, 2005, alleging that the
properties had been operated in
violation of the CCSF building code,
and seeking to require the Mortgagor
to upgrade the fire sprinkler systems
at those two properties to
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comply with the applicable provisions
of the CCSF building code. The legal
action between CCSF and the Mortgagor
was settled, and pursuant to such
settlement, the Mortgagor agreed to
enter into a stipulated injunction
with CCSF. The injunction requires
the Mortgagor to complete the
sprinkler system work within 90 days,
and provides that (i) the court will
retain jurisdiction for a period of
three years, (ii) any building code
violations by the Mortgagor that are
not cured within the time period
specified by law would be subject to
a fine of between $2,500 and $6,000
per violation, and (iii) if the
Mortgagor fails to complete the
sprinkler repair work as required by
the injunction, (a) CCSF is
authorized to obtain the appointment
of a receiver to manage the subject
property and complete the work at the
Mortgagor's expense, and (b) a lien
will be placed on the subject
property for all expenses incurred in
connection with such repairs.
Subsequent to entering into the
settlement and injunction, the
Mortgagor completed such sprinkler
repairs, and provided evidence of
such completion in the form of job
cards and inspection records which
indicate that the 000 Xxxxx Xxxxxx
property was inspected and approved
by the CCSF Fire Department on June
30, 2005, and the 00-00 Xxxxx Xxxxxx
property was inspected and approved
by the CCSF Fire Department on July
12, 2005.
Even though the case was settled, the
lis pendens will not be released
until the injunction expires at the
end of three years. However, CCSF has
entered into a subordination
agreement pursuant to which any liens
or rights in favor of CCSF created
under the injunction will be
subordinated to mortgagee's loan and
the lien securing such loan.
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EXCEPTIONS TO REPRESENTATION (XII): PROPERTY INSURANCE.
--------------------------------------------------------------------------------
Walgreens-New Mexico
Walgreens-Oklahoma Under the lease and loan documents,
the tenant (Walgreens) is responsible
for either providing insurance or
self-insure in lieu of separate
insurance. In the event that
Walgreens is self-insuring the risk
and senior unsecured debt rating of
Walgreens falls below "A" by Standard
& Poor's Ratings Services (or the
equivalent of such rating by
Moody's), the Mortgagor will be
required to provide all insurance
required under the Mortgage. In
addition, in the event that the
senior unsecured debt rating of
Walgreens falls below "A" by Standard
& Poor's Ratings Services (or the
equivalent of such rating by
Moody's), the Mortgagor will be
required to carry additional business
interruption insurance naming the
mortgagee as additional insured.
--------- -------------------------------- -------------------------------------
Walgreens-St. Louis
Walgreens-Rochester Under the lease and loan documents,
the tenant (Walgreens) is responsible
for either providing insurance or
self-insure in lieu of separate
insurance. In the event that
Walgreens is self-insuring the risk
and senior unsecured debt rating of
Walgreens falls below "BBB" by
Standard & Poor's Ratings Services
(or the equivalent of such rating by
Moody's), the Mortgagor will be
required to provide all insurance
required under the Mortgage. In
addition, in the event that the
senior unsecured debt rating of
Walgreens falls below "BBB" by
Standard & Poor's Ratings Services
(or the equivalent of such rating by
Moody's), the Mortgagor will be
required to carry additional business
interruption insurance naming the
mortgagee as additional insured.
--------------------------------------------------------------------------------
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0000 Xxxxxx Xxxxxx This loan is secured by ground lease
to Xxxx CMBS, LLC, an affiliate of
Kmart Corporation, which in turn
subleases the improvements to Kmart
Corporation. Kmart Corporation is
required to maintain insurance under
the sublease and provide insurance
for restoration, however, as all of
the improvements are owned by Xxxx
CMBS, LLC, as the ground tenant, all
insurance carried by Kmart
Corporation under the sublease is for
the benefit of Xxxx CMBS LLC and is
not for the benefit of the Mortgagor.
Under the mortgage, the Mortgagor is
only required to provide a
comprehensive general liabilities and
business interruption insurance for
12 months. In the event that the
Mortgagor becomes the owner of the
improvements then the Mortgagor will
be required to provide insurance in
accordance with the Representation
(xii).
--------------------------------------------------------------------------------
CVS-Xxxxxxx The tenant is providing the
CVS-Cornwall insurance. The insurance carried by
CVS-Jersey Shore the tenant does not include business
CVS-Xxxxxxxxxx interruption insurance.
--------------------------------------------------------------------------------
All Properties With respect to certain mortgage
loans, the lender accepted
comprehensive liability insurance in
an amount less than that required by
the loan documents, provided,
however, that all the mortgage loans
provide a primary general liability
policy of at least $1,000,000 per
occurrence with $2,000,000 in the
aggregate. This exception does not
apply to the following mortgage
loans: 270 Corporate Center, 1345
Avenue of the Americas, Xxxx Xxxxxx
Xxxxx, 0000 Xxx Xxxxxx Xxxx, One Xxxx
Street, Pacific Prestige Properties,
Wedgewood II, South Bay Office Tower.
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EXCEPTIONS TO REPRESENTATION (XVI): SUBORDINATE DEBT.
--------------------------------------------------------------------------------
Park Avenue Plaza The equity holder of the Mortgagor (
the "Mezzanine Borrower") has pledged
100% of the equity interest in the
Mortgagor to secure mezzanine loan in
the amount of $85,000,000. The
mezzanine loan is the subject of an
intercreditor agreement between New
York Life Insurance (the "Mezzanine
Lender") and the lender under the
Mortgage Loan. In addition, after the
defeasance lockout date, at any time
and from time to time (but in no
event more than three (3) times
during the Mortgage Loan), the equity
holder of the Mezzanine Borrower may
incur indebtedness in the form of one
or more mezzanine loans, provided
that, among other conditions as set
forth in the loan documents, such
additional mezzanine loan(s) is the
subject of an intercreditor agreement
substantially in the form of the
intercreditor agreement entered into
by the Mezzanine Lender and the
lender under the Mortgage Loan.
--------- -------------------------------- -------------------------------------
1345 Avenue of the Americas After the defeasance lockout date, at
any time and from time to time (but
in no event more than three (3) times
during the Mortgage Loan), the equity
holder of the Mortgagors may incur
indebtedness in the form of one or
more mezzanine loans, provided that,
among other conditions, (a) such
mezzanine loan(s) is secured only by
pledges of the direct or indirect
equity interests in Mortgagors; (b)
the mezzanine lender is a "qualified
lender" meeting the requirements set
forth in the related intercreditor
agreement; (3) the combined loan to
value immediately following the
closing of such mezzanine loan is no
greater than 75% and (4) the combined
debt to service coverage ratio
immediately following the closing of
such mezzanine loan is equal to or
greater than 1.10x.
--------------------------------------------------------------------------------
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South Bay Office Tower The equity holders of the Mortgagor
have pledged 100% of the equity
interest in the Mortgagor to secure a
mezzanine loan in the amount of
$5,650,000. The mezzanine loan is
subject of an intercreditor agreement
between the mezzanine lender and the
lender under the Mortgage Loan.
--------- -------------------------------- -------------------------------------
Lem-Rei Properties The equity holders of the related
Pacific Prestige Properties Mortgagors have pledged 100% of the
Lombard equity interests in the related
Mortgagors to secure mezzanine loans
in the aggregate amount of
$7,300,000. Each such mezzanine loan
is the subject of an intercreditor
agreement between the mezzanine
lender and the lender under the
related Mortgage Loans.
--------- -------------------------------- -------------------------------------
All Properties The loan documents allow the
Mortgagor to incur certain trade
payables and equipment financing up
to a predetermined amount, which is
generally less than or equal to 5% of
the loan amount.
--------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XIX): ENVIRONMENTAL CONDITIONS.
--------------------------------------------------------------------------------
Walgreens-St. Louis The environmental transaction screen
reported that the Mortgaged Property
previously had been used for gas
stations resulting in the presence of
residual petroleum concentrations
that exceeded regulatory action
levels. According to the transaction
screen, following completion of a
Tier 1 Missouri Risk-Based Corrective
Action Assessment, a
no-further-action letter was issued
by the state of Missouri.
--------------------------------------------------------------------------------
8
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The no-further-action letter subjects
the Mortgaged Property to a
Declaration of Restrictive Covenants
that prohibits excavation below a
depth of ten feet and further
prohibits certain types of uses for
the property such as residential
construction on a southern portion of
the property. An environmental
indemnity was provided by the
Mortgagor only. No natural person has
provided an environmental indemnity.
--------- -------------------------------- -------------------------------------
Walgreens-Rochester According to the environmental
transaction screen, a previous Phase
II environmental assessment conducted
at the Mortgaged Property identified
the presence of gasoline and dry
cleaning contaminants at the
Mortgaged Property, attributed to the
former presence of a gas station and
a dry cleaning facility at the
Mortgaged Property. The transaction
screen recommended no further action
based upon the previous
implementation of a Due Care Plan by
the former owners. An environmental
indemnity was provided by the
Mortgagor only. No natural person has
provided an environmental indemnity.
--------- -------------------------------- -------------------------------------
Lodi Building The environmental consultant noted
residual soil and ground water
contamination at the Mortgaged
Property. Based on the historic use
of the Mortgaged Property as an
industrial site, the previous owners
of the Mortgaged Property conducted
investigations that identified the
presence of certain hazardous
substances in the soil and
groundwater. According to the Phase I
assessment, the New Jersey Department
of Environmental Protection granted
no further action status and a
negative declaration approval for the
Mortgaged Property pursuant to the
New Jersey Industrial Site Recovery
Act ("ISRA"). As part of the ISRA
process, the state of New Jersey
imposed a
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Declaration of Environmental
Restrictions, which requires that
pavement and concrete foundations
overlying previously impacted soil be
inspected, maintained and not
disturbed without approval of the
state of New Jersey. A restriction
was also imposed against installing a
potable water well at the Mortgaged
Property, subject to engineering
controls and land-use restrictions.
According to the Phase I assessment,
the Mortgaged Property uses
municipally supplied water which
meets drinking water quality
requirements.
--------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXV): DUE-ON-ENCUMBRANCE.
--------------------------------------------------------------------------------
All Properties The loan documents allow the
Mortgagor to incur certain trade
payables and equipment financing up
to a predetermined amount, which is
generally less than or equal to 5% of
the loan amount.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXVI): DUE-ON-SALE
--------------------------------------------------------------------------------
Indian Creek Subject to the satisfaction of
certain requirements set forth in the
loan documents, the Mortgagor may
transfer the Mortgaged Property to a
new Texas limited parnership or
convert the Mortgagor into a Texas
limited partnership.
--------- -------------------------------- -------------------------------------
All Properties Most of the loan documents provide
that transfers of direct and/or
indirect interest in the related
Mortgagor and/or the related
Mortgaged Property upon the death of
any natural person which holds such
interest(s) will not constitute a
transfer of direct and/or indirect
interest in Mortgagor and/or
Mortgaged Property so long as, among
other things as set forth in loan
documents: (i) all of the direct
and/or indirect interests of such
decedent in the
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10
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Mortgagor and/or the Mortgaged
Property are held and remain the
property of the legal representative
of such decedent's estate; (ii) the
Mortgaged Property continues to be
managed in a manner acceptable to the
mortgagee and (iii) within thirty
(30) days of such death, Mortgagor
delivers notice thereof to the
mortgagee and thereafter provides the
mortgagee with such information as
may be reasonably requested by the
mortgagee as to the continued
management of the Mortgaged Property.
--------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXX): PROPERTY RELEASE.
--------------------------------------------------------------------------------
1345 Avenue of the Americas The terms of the Mortgage Loan permit
the release of certain portions of
the collateral, namely the garage,
theater and parking lot from the lien
of the Mortgage. In connection with
such release, the Mortgagor will be
required to partially defease the
notes in the amount equal to 4% of
the amount of the Mortgage Loan.
--------- -------------------------------- -------------------------------------
Lodi Building A small portion of the Mortgaged
Property containing parking spaces
will be subdivided and transferred to
the adjacent owner. The release
conditions will include, among
others, (i) receipt of all
subdivision approvals, (ii) the
remainder of the property securing
the Mortgage Loan being left in
compliance with all applicable zoning
laws, (iii) an endorsement to the
title policy, (iv) the creation of
any necessary utility easements, and
(v) a REMIC Opinion.
--------- -------------------------------- -------------------------------------
0000 Xxxxxx Xxxxxx A portion of the Mortgaged Property
will be subdivided and transferred to
a new owner. The release conditions
will include, among others, (i)
receipt of all subdivision approvals,
(ii) the
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remainder of the property securing
the Mortgage Loan being left in
compliance with all applicable zoning
laws, (iii) an endorsement to title
policy, (iv) the creation of any
necessary utility easements, (v)
REMIC and legal Opinions, (vi) an LTV
of not greater than 80% after the
release and (vi) the delivery of all
consents required under the ground
lease.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXXI): QUALIFICATIONS, LICENSING, ZONING.
--------------------------------------------------------------------------------
Hillcrest Estate Apartments Certificates of occupancy have not
Summit Ridge Apartments been obtained for any of the
Park Place properties constituting the Mortgaged
Property. The properties were
developed before certificates of
occupancy or use were required. Any
losses, costs or expenses incurred by
the mortgagee as a result of the lack
of certificates of occupancy are
recourse to the Mortgagor.
--------- -------------------------------- -------------------------------------
The Lodge Apartments The certificates of occupancy have
not been obtained. Any losses, costs
or expenses incurred by the mortgagee
as a result of the lack of
certificates of occupancy are
recourse to the Mortgagor or the
guarantor.
--------- -------------------------------- -------------------------------------
West Hartford Portfolio The certificates of occupancy have
not been obtained for most of the
tenants at the Mortgaged Property.
--------- -------------------------------- -------------------------------------
Xxx Xxxxx Portfolio The certificates of occupancy have
not been obtained.
--------- -------------------------------- -------------------------------------
Loch Raven Apartments The certificates of occupancy have
not been obtained. The Mortgaged
Property was developed before
certificates of occupancy were
required. The City of Baltimore has
confirmed that the absence of a
certificate of occupancy on file is
not a violation.
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Xxx-Xxx Properties I DE LLC The Seller received notice that the
City and County of San Francisco
("CCSF") alleged that two of the
properties owned by Xxx-Xxx
Properties I DE LLC had been operated
in violation of the CCSF building
code. CCSF filed a legal action
seeking to require the related
Mortgagors to upgrade the fire
sprinkler systems at those two
properties to comply with the
applicable provisions of the CCSF
building code. The legal action
between CCSF and the Mortgagor was
settled, and pursuant to such
settlement, the Mortgagor agreed to
enter into a stipulated injunction.
Subsequent to entering into the
settlement and injunction, the
Mortgagor completed such sprinkler
repairs and provided evidence of such
completion in the form of job cards
and inspection records which indicate
that the two properties were
inspected and approved by CCSF Fire
Department.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXXIII): SINGLE PURPOSE ENTITY.
--------------------------------------------------------------------------------
Xxx Xxxxx Portfolio One of the Mortgagors, the Edgeview
Community LLC, is not a newly formed
entity. The Mortgagor previously
owned two vacant parcels of land
adjacent to the Mortgaged Property,
which were conveyed to the third
parties.
--------- -------------------------------- -------------------------------------
Inn at Xxxxxxxx The borrower is not a newly formed
entity.
--------- -------------------------------- -------------------------------------
Pacific Prestige Properties The Mortgagors under the related
I DE LLC mortgage loans are special purpose
Xxx-Xxx Properties I DE LLC entities, but the lender did not
Lombard Place I DE LLC receive an opinion of
non-consolidation with respect to
such Mortgagors.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXXV): LEGAL PROCEEDINGS.
--------------------------------------------------------------------------------
Xxx-Xxx Properties I DE LLC Two properties (935 Xxxxx Street and
00-00 Xxxxx Xxxxxx), are the subject
of a recorded lis pendens and
stipulated
--------------------------------------------------------------------------------
13
CONTROL
NUMBER PROPERTY ISSUE
--------------------------------------------------------------------------------
injunction. The lis pendens provides
notice of a legal action that was
filed by the City and County of San
Francisco ("CCSF") on January 11,
2005, alleging that the properties
had been operated in violation of the
CCSF building code, and seeking to
require the Mortgagor to upgrade the
fire sprinkler systems at those two
properties to comply with the
applicable provisions of the CCSF
building code. The legal action
between CCSF and the Mortgagor was
settled, and pursuant to such
settlement, the Mortgagor agreed to
enter into a stipulated injunction
with CCSF. The injunction requires
the Mortgagor to complete the
sprinkler system work within 90 days
and provides that (i) the court will
retain jurisdiction for a period of
three years, (ii) any building code
violations by the Mortgagor that are
not cured within the time period
specified by law would be subject to
a fine of between $2,500 and $6,000
per violation, and (iii) if the
Mortgagor fails to complete the
sprinkler repair work as required by
the injunction, (a) CCSF is
authorized to obtain the appointment
of a receiver to manage the subject
property and complete the work at the
Mortgagor's expense, and (b) a lien
will be placed on the subject
property for all expenses incurred in
connection with such repairs.
Subsequent to entering into the
settlement and injunction, the
Mortgagor completed such sprinkler
repairs and provided evidence of such
completion in the form of job cards
and inspection records which indicate
that the 000 Xxxxx Xxxxxx property
was inspected and approved by the
CCSF Fire Department on June 30,
2005, and the 00-00 Xxxxx Xxxxxx
property was inspected and approved
by the CCSF Fire Department on July
12, 2005.
Even though the case was settled, the
lis pendens will not be released
until the
--------------------------------------------------------------------------------
14
CONTROL
NUMBER PROPERTY ISSUE
--------------------------------------------------------------------------------
injunction expires at the end of
three years. However, CCSF has agreed
to enter into a subordination
agreement pursuant to which any liens
or rights in favor of CCSF created
under the injunction will be
subordinated to mortgagee's loan and
the lien securing such loan.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXXIX). FLOOD INSURANCE.
--------------------------------------------------------------------------------
Xxxxxxx Station III The improvements on the Mortgaged
Property are located in a flood
hazard area. The loan documents
require the Mortgagor to obtain the
flood insurance equal to the greater
of (A) the sum of five hundred
thousand dollars, or (B) the maximum
flood insurance available for the
improvements under the National Flood
Insurance Program; or such lesser
amount as agreed by the beneficiary
in writing..
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLII). LICENSES, PERMITS AND AUTHORIZATIONS.
--------------------------------------------------------------------------------
Walgreens-St. Louis The Mortgagor is required to obtain
Walgreens-Rochester qualification to do business in the
state where the Mortgaged Property is
located after the closing. Failure of
the Mortgagor to be qualified to do
business does not impact the
Mortgagor's title in the Mortgaged
Property nor the mortgage lien, but
only impacts the ability of the
Mortgagor to bring suits.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLVII). TAX LOT; UTILITIES.
--------------------------------------------------------------------------------
Xxx Xxxxx Portfolio The Mortgaged Property does not
currently have access to public water
and sewer systems. The private water
and sewer systems serve the Mortgaged
Property.
--------- -------------------------------- -------------------------------------
RBC Centura The Mortgaged Property constitutes an
outparcel that has been recently
subdivided. As a result of such
subdivision, the Mortgaged Property
will become a separate tax lot after
the next property tax fiscal year,
commencing on July 1, 2005.
--------------------------------------------------------------------------------
15
CONTROL
NUMBER PROPERTY ISSUE
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LI): DUE DATE.
--------------------------------------------------------------------------------
1345 Avenue of the Americas The due date is the eighth of each
month.
--------- -------------------------------- -------------------------------------
Park Avenue Plaza The due date is the eighth of each
month.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LIV): NO OWNERSHIP INTEREST IN MORTGAGOR.
--------------------------------------------------------------------------------
Walgreens St. Louis The subsidiary of the Seller owns
100% equity in the Morgagor.
--------- -------------------------------- -------------------------------------
Walgreens Rochester The subsidiary of the Seller owns
100% equity in the Mortgagor.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LV): NO UNDISCLOSED COMMON OWNERSHIP.
--------------------------------------------------------------------------------
Walgreens-New Mexico Walgreens-New Mexico and
Walgreens-Oklahoma Walgreens-Oklahoma are indirectly
under common ownership.
--------- -------------------------------- -------------------------------------
270 Corporate Center 000 Xxxxxxxxx Xxxxxx, 0000 Xxx Xxxxxx
0000 Xxx Xxxxxx Xxxx Xxxx and Wedgewood II are indirectly
Wedgewood II under common ownership.
--------- -------------------------------- -------------------------------------
0000 Xxxx 0xx Xxxxxx 0000 Xxxx 0xx Xxxxxx, 0000 Xxxx 0xx
0000 Xxxx 0xx Xxxxxx Xxxxxx and 0000 Xxxxxxxx Xxxx are
0000 Xxxxxxxx Xxxx indirectly under common ownership.
--------- -------------------------------- -------------------------------------
1345 Avenue of the Americas 1345 Avenue of the Americas and Xxxx
Xxxx Xxxxxx Xxxxx Xxxxxx Xxxxx are indirectly under
common ownership.
--------- -------------------------------- -------------------------------------
Xxxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxxx, Xxxxxx
Summit Ridge Apartments Ridge Apartments, the Lodge
The Lodge Apartments Apartments and Park Place are
Park Place indirectly under common ownership.
--------------------------------------------------------------------------------
16
CONTROL
NUMBER PROPERTY ISSUE
--------------------------------------------------------------------------------
Residence Inn Southington Residence Inn Southington, Residence
Residence Inn Danbury Inn Danbury and Courtyard Warwick are
Courtyard Warwick indirectly under common ownership.
--------- -------------------------------- -------------------------------------
CVS-Cornwall CVS-Cornwall, CVS-Xxxxxxxxxx,
CVS-Xxxxxxxxxx CVS-Jersey Shore and CVS-Xxxxxxx are
CVS-Jersey Shore indirectly under common ownership.
CVS-Xxxxxxx
--------- -------------------------------- -------------------------------------
Walgreens-St. Louis Walgreens-St. Louis and
Walgreens-Rochester Walgreens-Rochester are indirectly
under common ownership.
--------------------------------------------------------------------------------
17
Sch. I-1
EXHIBIT C-1
OPINION OF CADWALADER, XXXXXXXXXX & XXXX LLP
[LETTERHEAD OF CADWALADER, XXXXXXXXXX & XXXX]
August 25, 2005
Addressees listed on Schedule A
Re: LB-UBS Commercial Mortgage Trust 2005-C5, Commercial Mortgage Pass-Through
Certificates, Series 2005-C5
Ladies and Gentlemen:
We are rendering this opinion pursuant to the Mortgage Loan Purchase
Agreement, dated as of August 15, 2005 (the "MLPA"), among UBS Real Estate
Investments Inc., as seller (the "Seller"), UBS Principal Finance LLC, as an
additional party ("UBSPF") and Structured Asset Securities Corporation II, as
purchaser ("SASC").
We have acted as special counsel to the Seller in connection with the
following transactions: (i) the sale by the Seller, and the purchase by SASC, of
multifamily and commercial mortgage loans in the principal amount of
approximately $553,190,837 (the "UBS Mortgage Loans"), pursuant to the MLPA;
(ii) the execution by the Seller of the UBS Indemnification Agreement, dated as
of August 15, 2005 (the "Indemnification Agreement"), by and among the Seller,
UBS Americas Inc. ("UBS Americas" and, together with the Seller, the "UBS
Entities"), SASC and the Underwriters (as defined below); and (iii) the
acknowledgement by the Seller of certain sections of the Underwriting Agreement,
dated as of August 15, 2005 (the "Underwriting Agreement"), by and among SASC,
UBS Securities LLC ("UBS Securities") and Xxxxxx Brothers Inc. ("Xxxxxx", and
together with UBS Securities, the "Underwriters"), and acknowledged with respect
to certain sections by the Seller and Xxxxxx Brothers Holdings Inc. ("LBHI").
We have also acted as special counsel to UBS Americas in connection
with the execution by UBS Americas of the Indemnification Agreement and to UBSPF
in connection with the execution by UBSPF of the MLPA.
The MLPA, the Indemnification Agreement and the Underwriting Agreement
are collectively referred to herein as the "Agreements." Capitalized terms not
defined herein have the respective meanings set forth in the MLPA.
In rendering the opinions set forth below, we have examined and, as to
factual matters relevant to the opinions set forth below, relied upon the
originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Agreements and such certificates, corporate and public
records, agreements, instruments and other documents, including, among other
things, the documents and agreements delivered at the closing of the purchase
and sale of the Certificates (the "Closing"), as we have deemed appropriate as a
basis for the opinions expressed below. In such examination we have assumed the
genuineness of all signatures, the authenticity of all documents, agreements and
instruments submitted to us as originals, the conformity to original documents,
agreements and instruments of all
C-1-1
documents, agreements and instruments submitted to us as copies or specimens,
the authenticity of the originals of such documents, agreements and instruments
submitted to us as copies or specimens and the accuracy of the matters set forth
in the documents, agreements and instruments we reviewed. As to any facts
material to the opinions expressed below that were not known to us, we have
relied upon statements, certificates and representations of officers and other
representatives of the UBS Entities, UBSPF, SASC and the Underwriters, including
those contained in the Agreements and other documents, certificates, agreements
and opinions delivered at the Closing, and of public officials. In addition,
with respect to the opinions referred to in paragraphs 8(c), 8(d) and 9 below,
such opinions are based solely on the Seller Officer's Certificate and the UBS
Americas Officer's Certificate referred to below, a review of the items, if any,
identified as exceptions in the exhibits to such certificates, conversation with
internal counsel for each of the UBS Entities, and the actual knowledge of
attorneys who conducted such review, had such conversations and/or customarily
represent the UBS Entities in real estate lending transactions, financing
transactions, and/or transactions similar to those contemplated by the
Agreements. Except as expressly set forth herein, we have not undertaken any
independent investigation (including, without limitation, conducting any review,
search or investigation of any public files, records or dockets) to determine
the existence or absence of the facts that are material to our opinion, and no
inference as to our knowledge concerning such facts should be drawn from our
reliance on the representations of the UBS Entities, UBSPF and others in
connection with the preparation and delivery of this letter.
In particular, we have examined and relied upon:
(i) the MLPA;
(ii) the Underwriting Agreement;
(iii) the Indemnification Agreement;
(iv) the officer's certificate of Seller, dated the date hereof (the
"Seller Officer's Certificate"); and
(v) the officer's certificate of UBS Americas, dated the date hereof
(the "UBS Americas Officer's Certificate").
References in this letter to "Applicable Laws" shall mean those laws,
rules and regulations of the State of New York and of the United States of
America which, in our experience, are normally applicable to transactions of the
type contemplated by the Agreements, as well as the General Corporation Law of
the State of Delaware with respect to the opinions referred to in paragraphs 1
through 4, 8(a), 8(b)(i), 8(c) and 8(d) below. While we are not licensed to
practice law in the State of Delaware, we have reviewed applicable provisions of
the Delaware General Corporation Law as we have deemed appropriate in connection
with the opinions expressed herein. Except as described we have neither examined
nor do we express any opinion with respect to Delaware law. References in this
letter to the term "Governmental Authorities" means executive, legislative,
judicial, administrative or regulatory bodies of the State of New York or the
United States of America. References in this letter to the term "Governmental
Approval" means any consent, approval, license, authorization or validation of,
or filing, recording or registration with, any Governmental Authority pursuant
to Applicable Laws.
We have also assumed, except as to the UBS Entities, that all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties
C-1-2
are validly existing and in good standing under the laws of their respective
jurisdictions of organization, that all such parties had the power and legal
right to execute and deliver all such documents, agreements and instruments,
and, except as to the UBS Entities and UBSPF, that such documents, agreements
and instruments are legal, valid and binding obligations of such parties,
enforceable against such parties in accordance with their respective terms. As
used herein, "to our knowledge," "known to us" or words of similar import mean
the actual knowledge, without independent investigation (except as expressly set
forth herein), of any lawyer in our firm actively involved in the transactions
contemplated by the Agreements.
We express no opinion concerning any law other than Applicable Law.
Based upon and subject to the foregoing, we are of the opinion that:
1. Each of the Agreements has been duly authorized, executed and
delivered by the Seller.
2. The Indemnification Agreement has been duly authorized, executed
and delivered by UBS Americas.
3. The Seller is a corporation validly existing and in good standing
under the laws of the State of Delaware, with corporate power and authority
to enter into and perform its obligations under the Agreements.
4. UBS Americas is a corporation validly existing and in good standing
under the laws of the State of Delaware, with corporate power and authority
to enter into and perform its obligations under the Indemnification
Agreement.
5. Each of the MLPA and the Underwriting Agreement constitutes the
legal, valid and binding agreement of the Seller, and the MLPA constitutes
the legal, valid and binding agreement of UBSPF, enforceable against the
Seller or UBSPF, as applicable, in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to or affecting creditors'
rights generally, and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity), and
except that (a) the enforcement of rights with respect to indemnification
and contribution obligations and (b) provisions (i) purporting to waive or
limit rights to trial by jury, oral amendments to written agreements or
rights of set off or (ii) relating to submission to jurisdiction, venue or
service of process, may be limited by applicable law or considerations of
public policy.
6. Neither the consummation by UBSPF of any of the transactions
contemplated by the MLPA nor the execution, delivery and performance of the
terms of the MLPA by UBSPF will conflict with, or result in the violation
of, any New York State or federal law that is applicable to UBSPF.
7. The execution, delivery and performance by UBSPF of the MLPA and
the consummation by UBSPF of the transactions contemplated under the MLPA
do not require any consent, approval, license, authorization or validation
of, or filing, recording or registration with, any executive, legislative,
judicial, administrative or regulatory bodies of the United States of
America pursuant to those laws, rules and regulations of the United States
of America which, in
C-1-3
our experience are normally applicable to transactions of the type
contemplated by the MLPA, to be obtained by UBSPF except those that may be
required under state securities or blue sky laws, and such other approvals
that have been obtained and, to our knowledge, are in effect.
8. None of the sale of the UBS Mortgage Loans, the consummation by
either UBS Entity of any of the other transactions contemplated by the
Agreements to which it is a party or the execution, delivery and
performance by each UBS Entity of the terms of the Agreements to which it
is a party, (a) will require any Governmental Approval to be obtained or
made on the part of either UBS Entity, the absence of which would have a
material adverse effect on such UBS Entity or the transactions contemplated
by the Agreements, except those that may be required under state securities
or blue sky laws, and except for such other approvals that have been
obtained and, to our knowledge, are in full force and effect, (b) will
conflict with, or result in a violation of, any provision of (i) either UBS
Entity's certificate of incorporation or bylaws or (ii) any Applicable Laws
applicable to either UBS Entity, (c) will, to our knowledge, breach,
constitute a default under, require any consent under, or result in the
acceleration or require prepayment of any indebtedness pursuant to the
terms of, any agreement or instrument to which either UBS Entity is a party
or by which it is bound or to which it is subject, or result in the
creation or imposition of any lien upon any property of either UBS Entity
pursuant to the terms of any such agreement or instrument, any of which
occurrences, either in any one instance or in the aggregate, would call
into question the validity of any Agreement to which it is a party or be
reasonably likely to impair materially the ability of such UBS Entity to
perform under the terms of any Agreement to which it is a party or (d)
will, to our knowledge, breach or result in a violation of, or default
under, any material judgment, decree or order that is applicable to either
UBS Entity and is issued by any Governmental Authority having jurisdiction
over either UBS Entity or any of its properties.
9. To our actual knowledge, there is no legal or governmental action,
investigation or proceeding pending or threatened against either UBS Entity
(a) asserting the invalidity of the Agreements to which it is a party, (b)
seeking to prevent the consummation of any of the transactions provided for
in the Agreements, or (c) that would materially and adversely affect (i)
the ability of either UBS Entity to perform its obligations under, or the
validity or enforceability (with respect to either UBS Entity) of, the
Agreements to which it is a party or (ii) any rights with regard the
Mortgaged Properties or the Mortgage Loans. For purposes of the opinion set
forth in this paragraph, we have not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless the
potential litigant or governmental authority has communicated in writing to
a UBS Entity a present intention to initiate such actions, investigations
or proceedings against such UBS Entity.
We are furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. Without our prior written
consent, this letter is not to be relied upon, used, circulated, quoted or
otherwise referred to by, or assigned to, any other person (including any person
that acquires any Certificates from you or that seeks to assert your rights in
respect of this letter (other than your successor in interest by means of
merger, consolidation, transfer of a business or other similar transaction)) or
for any other purpose. In addition, we disclaim any obligation to update this
letter for changes in fact or law, or otherwise.
Very truly yours,
C-1-4
SCHEDULE A
Structured Asset Securities Corporation II Standard & Poor's Rating Services
000 Xxxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. LaSalle Bank National Association
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10019 Xxxxxxx, Xxxxxxxx 00000
UBS Securities LLC Fitch Ratings, Inc.
1285 Avenue of the Americas Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Bank N.V
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
C-1-5
EXHIBIT C-2
OPINION OF IN-HOUSE COUNSEL TO ADDITIONAL PARTY
[UBS LETTERHEAD]
August 25, 2005
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
LB-UBS Commercial Mortgage Trust 2005-C5, Commercial Mortgage
Pass-Through Certificates, Series 2005-C5
Ladies and Gentlemen:
I am Executive Director and Counsel of UBS AG. UBS Principal Finance
LLC, a Delaware limited liability company ("UBSPF"), is a wholly owned
subsidiary of UBS AG. I have been asked to deliver this opinion in connection
with (i) the sale by UBS Real Estate Investments Inc. ("UBSREI") and the
purchase by Structured Asset Securities Corporation II ("SASC") of certain
multi-family and commercial mortgage loans, pursuant to a Mortgage Loan Purchase
Agreement, dated as of August 15, 2005 (the "Agreement"), by and among SASC, as
purchaser, UBSREI, as seller, and UBSPF, as additional party. Capitalized terms
used and not otherwise defined herein have the meanings given to them in the
Agreement.
I, or others under my supervision, have examined such documents as I
believe are necessary or appropriate for the purposes of this opinion, including
the certificate of formation, incumbency resolution and limited liability
company agreement adopted by the members of UBSPF and the Agreement and all
exhibits thereto. In reaching such opinions, I have assumed without
investigation, except as expressly set forth below, that there are no facts
inconsistent with the assumptions made in paragraphs A through D below.
A. All signatures of parties, other than UBSPF, on all documents are
genuine. Each person executing any such instrument, document or agreement,
whether individually or on behalf of a firm or other business entity, other than
UBSPF, is duly authorized to do so.
B. All documents submitted as original are authentic, and all
photostatic copies, and all copies certified by a governmental custodian or a
party to the transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf of a
business entity, are legally competent.
C-2-1
D. All other parties to documents, other than UBSPF, have the
requisite power and authority to consummate the transactions contemplated by the
Agreement and to execute and deliver the applicable documents.
Based on my review of the foregoing and such other considerations of
law and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
1. The Agreement has been duly authorized, executed and delivered by
UBSPF.
2. UBSPF is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the requisite power and authority to enter into and perform its obligations
under the Agreement.
3. The execution, delivery and performance of the terms of the
Agreement will not result in the breach or violation of or a default under any
material order or decree of any court, regulatory body, administrative agency or
governmental body having jurisdiction over UBSPF and known to me as being
applicable to UBSPF.
4. There is no action, suit or proceeding against, or investigation
of, UBSPF pending or, to my knowledge, threatened against UBSPF before any
court, administrative agency or other tribunal which, either individually or in
the aggregate, (a) asserts the invalidity of the Agreement, (b) seeks to prevent
the consummation of any of the transactions contemplated by the Agreement or (c)
would materially and adversely affect (i) the performance by UBSPF of its
obligations under, or the validity or enforceability of, the Agreement, or (ii)
any rights with regard to the Mortgaged Properties or the Mortgage Loans.
5. No consent, approval, authorization or order of, and no filing or
registration with, any court or governmental agency or regulatory body, of which
I have actual knowledge, the absence of which would have a material adverse
effect on UBSPF or the transactions contemplated by the Agreement, is required
on the part of UBSPF for the execution, delivery or performance by UBSPF of the
Agreement, except those which have been obtained and are in full force and
effect.
6. The execution, delivery and performance by UBSPF of, and the
consummation of the transactions contemplated by, the Agreement do not and will
not result in a breach of any term or provision of the certificate of formation
or limited liability company agreement of UBSPF or in a breach of, constitute a
default under, require any consent under, or result in the acceleration or
require prepayment of any indebtedness pursuant to the terms of, any agreement
or instrument, of which I have actual knowledge, to which UBSPF is a party or by
which it is bound or to which it is subject, or result in the creation or
imposition of any lien upon any property of UBSPF pursuant to the terms of any
such agreement or instrument, any of which occurrences, either in any one
instance or in the aggregate, would call into question the validity of the
Agreement or be reasonably likely to impair materially the ability of UBSPF to
perform under the terms of the Agreement.
C-2-2
In addition to the qualifications set forth above, the opinions herein
are also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the opinions
expressed herein concern only the laws of the State of New York, as currently in
effect, the limited liability company law of the State of Delaware, as currently
in effect, and solely with respect to paragraphs 3 and 4 above, the federal laws
of the United States of America, as currently in effect.
2. I assume no obligation to supplement this opinion if, after the
date hereof, any applicable laws change or I become aware of any facts that
might change the opinions set forth herein.
3. The opinions are limited to the matters set forth in this letter.
No other opinions should be inferred beyond the matters expressly stated.
The opinions expressed in this letter may be relied upon solely by the
addressees hereof solely with respect to the transactions described in the
Agreement, and may not be relied upon by any other person or entity, without my
specific prior written consent.
Sincerely,
Xxxx Xxxxxx
Executive Director
C-2-3
SCHEDULE A
UBS Securities LLC Standard & Poor's Rating Services
1285 Avenue of the Americas 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. Fitch, Inc.
000 Xxxxxxx Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Structured Asset Securities Corporation II ABN AMRO Bank N.V
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10019 Xxxxxxx, Xxxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
C-2-4
