EXECUTION COPY
UBS MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of August 10, 2004 (the
"Agreement"), between UBS Real Estate Investments Inc. (together with its
successors and permitted assigns hereunder, the "Seller"), UBS Principal Finance
LLC, as an additional party responsible for the Seller's obligations hereunder
(in such capacity, together with its successors and permitted assigns hereunder,
the "Additional Party"), and Structured Asset Securities Corporation II
(together with its successors and permitted assigns hereunder, the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans") as
provided herein. The Purchaser intends to deposit the Mortgage Loans, together
with certain other multifamily and commercial mortgage loans (the "Other Loans";
and, together with the Mortgage Loans, the "Securitized Loans"), into a trust
fund (the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates") to be identified as the LB-UBS Commercial Mortgage Trust
2004-C6, Commercial Mortgage Pass-Through Certificates, Series 2004-C6. One or
more "real estate mortgage investment conduit" ("REMIC") elections will be made
with respect to the Trust Fund. The Certificates will be issued pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), to be
dated as of August 11, 2004, between the Purchaser, as depositor, Wachovia Bank,
National Association, as master servicer (the "Master Servicer"), Lennar
Partners, Inc., as special servicer (the "Special Servicer") and LaSalle Bank
National Association, as trustee (the "Trustee"). Capitalized terms used but not
defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with Xxxxxx Brothers
Inc. ("Xxxxxx") and UBS Securities LLC ("UBSS" and, together with Xxxxxx in such
capacity, the "Underwriters"), whereby the Purchaser will sell to the
Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Purchaser has
also entered into a Certificate Purchase Agreement (the "Certificate Purchase
Agreement"), dated as of the date hereof, with Xxxxxx and UBSS (together in such
capacity, the "Placement Agents"), whereby the Purchaser will sell to the
Placement Agents all of the remaining Certificates (other than the Residual
Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
UBS (USA) Inc. (the "Co-Indemnitor"), the Purchaser, the Underwriters and the
Placement Agents have entered into an Indemnification Agreement (the
"Indemnification Agreement"), dated as of the date hereof.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit A. The Mortgage Loan Schedule may be amended to reflect the
actual Mortgage Loans accepted by the Purchaser
pursuant to the terms hereof. The Mortgage Loans will have an aggregate
principal balance of $516,283,002 (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
24, 2004 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, 2004 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 61.657974% 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 (x) upon request, the Master Servicer (at the expense of the
Trustee), within 10 Business Days of such request; and (ii) the Master Servicer
(or, at the direction of the Master Servicer, to the appropriate Sub-Servicer),
all unapplied Escrow Payments and Reserve Funds in the possession or under the
control of the Seller that relate to the Mortgage Loans.
(d) The Seller shall, through an Independent third party (the
"Recording/Filing Agent") retained by it, as and in the manner provided in the
Pooling and Servicing Agreement (and in any event within 45 days following the
later of the Closing Date and the date on which all necessary recording or
filing, as applicable, information is available to the Recording/Filing Agent),
cause (i) each assignment of Mortgage, each assignment of Assignment of Leases
and, solely with respect to nursing facilities and hospitality properties
(identified on Schedule VI to the Pooling and Servicing Agreement), each
assignment of Uniform Commercial Code financing statement, in favor of, and
delivered as part of
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the related Mortgage File to, the Trustee, to be submitted for recordation or
filing, as the case may be, in the appropriate public office for real property
records or, solely with respect to nursing facilities and hospitality properties
(identified on Schedule VI to the Pooling and Servicing Agreement), Uniform
Commercial Code financing statements, as appropriate, and (ii) such assignments
to be delivered to the Trustee following their return by the applicable public
recording or filing office, as the case may be, with copies of any such returned
assignments to be delivered by the Trustee to the Master Servicer, at the
expense of the Seller, at least every 90 days after the Closing Date (or at
additional times upon the request of the Master Servicer if reasonably necessary
for the ongoing administration and/or servicing of the related Mortgage Loan by
the Master Servicer); provided that, in those instances where the public
recording office retains the original assignment of Mortgage or assignment of
Assignment of Leases, a certified copy of the recorded original shall be
forwarded to the Trustee. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, then the
Seller shall prepare a substitute therefor or cure such defect or cause such to
be done, as the case may be, and the Seller shall deliver such substitute or
corrected document or instrument to the Trustee (or, if the Mortgage Loan is
then no longer subject to the Pooling and Servicing Agreement, to the then
holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all such
recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any 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, 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 Servicer (or, at the
direction of the Master Servicer, to the appropriate Sub-Servicer); provided
that the Seller shall not be required to deliver any draft documents, privileged
or other communications, credit underwriting or due diligence analyses or
information, credit committee briefs or memoranda or other internal approval
documents or data or internal worksheets, memoranda, communications or
evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser,
as provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all actions
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required under applicable law to effectuate the transfer of the Mortgage Loans
by the Seller to the Purchaser.
(g) In connection with the obligations of the Master Servicer under
Sections 3.01(g) and 3.19(c) of the Pooling and Servicing Agreement, with regard
to each Mortgage Loan that is secured by the interests of the related Mortgagor
in a hospitality property (identified on Schedule VI to the Pooling and
Servicing Agreement) and each Mortgage Loan that has a related letter of credit,
the Seller shall deliver to and deposit with the Master Servicer, on or before
the Closing Date, any related franchise agreement, franchise comfort letter and
the original of such letter of credit. Further, in the event, with respect to a
Mortgage Loan with a related letter of credit, the Master Servicer determines
that a draw under such letter of credit has become necessary under the terms
thereof prior to the assignment of such letter of credit having been effected in
accordance with Section 3.01(g) of the Pooling and Servicing Agreement, the
Seller shall, upon the written direction of the Master Servicer, use its best
efforts to make such draw or to cause such draw to be made on behalf of the
Trustee.
(h) Pursuant to the Pooling and Servicing Agreement, the Master
Servicer shall review the documents with respect to each Mortgage Loan delivered
by the Seller pursuant to or as contemplated by Section 2(e) and provide the
Seller with a certificate (the "Master Servicer Certification") within 90 days
of the Closing Date acknowledging its receipt 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.
SECTION 3. Representations, Warranties and Covenants of Seller and
Additional Party.
(a) Each of the Seller and the Additional Party (each, for purposes of
this Section 3(a), a "Representing Party") hereby represent and warrant to and
covenant with the Purchaser, as of the date hereof, that:
(i) The Representing Party is duly organized or formed, as the
case may be, validly existing and in good standing as a legal entity
under the laws of the State of Delaware and possesses all requisite
authority, power, licenses, permits and franchises to carry on its
business as currently conducted by it and to execute, deliver and
comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Representing Party and, assuming due
authorization, execution and delivery hereof by the Purchaser,
constitutes a legal, valid and binding obligation of the Representing
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).
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(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.
(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
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cause all of its records to reflect such transfer as a sale (as opposed
to a secured loan). The consideration received by the Seller upon the
sale of the Mortgage Loans to the Purchaser will constitute at least
reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the sale of the Mortgage Loans to
the Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the
creditors of the Seller. After giving effect to its transfer of the
Mortgage Loans to the Purchaser, as provided herein, the value of the
Seller's assets, either taken at their present fair saleable value or
at fair valuation, will exceed the amount of the Seller's debts and
obligations, including contingent and unliquidated debts and
obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and
conduct its business. The Mortgage Loans do not constitute all or
substantially all of the assets of the Seller. The Seller does not
intend to, and does not believe that it will, incur debts or
obligations beyond its ability to pay such debts and obligations as
they mature.
(ii) The Seller will acquire the Seller's Residual Interest
Certificates for its own account and not with a view to, or sale or
transfer in connection with, any distribution thereof, in whole or in
part, in any manner that would violate the Securities Act or any
applicable state securities laws.
(iii) The Seller understands that (A) the Seller's Residual
Interest Certificates have not been and will not be registered under
the Securities Act or registered or qualified under any applicable
state securities laws, (B) neither the Purchaser nor any other party is
obligated so to register or qualify the Seller's Residual Interest
Certificates and (C) neither the Seller's Residual Interest
Certificates nor any security issued in exchange therefor or in lieu
thereof may be resold or transferred unless it is (1) registered
pursuant to the Securities Act and registered or qualified pursuant to
any applicable state securities laws or (2) sold or transferred in a
transaction which is exempt from such registration and qualification
and the Certificate Registrar has received the certifications and/or
opinions of counsel required by the Pooling and Servicing Agreement.
(iv) The Seller understands that it may not sell or otherwise
transfer the Seller's Residual Interest Certificates, any security
issued in exchange therefor or in lieu thereof or any interest in the
foregoing except in compliance with the provisions of Section 5.02 of
the Pooling and Servicing Agreement, which provisions it has or, as of
the Closing Date, will have carefully reviewed, and that the Seller's
Residual Interest Certificates will bear legends that identify the
transfer restrictions to which such Certificates are subject.
(v) Neither the Seller nor anyone acting on its behalf has (A)
offered, transferred, pledged, sold or otherwise disposed of any
Seller's Residual Interest Certificate, any 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
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other action, that (in the case of any of the acts described in clauses
(A) through (E) above) would constitute a distribution of the Seller's
Residual Interest Certificates under the Securities Act, would render
the disposition of the Seller's Residual Interest Certificates a
violation of Section 5 of the Securities Act or any state securities
law or would require registration or qualification of the Seller's
Residual Interest Certificates pursuant thereto. The Seller will not
act, nor has it authorized nor will it authorize any person to act, in
any manner set forth in the foregoing sentence with respect to the
Seller's Residual Interest Certificates, any interest in the Seller's
Residual Interest Certificates or any other similar security.
(vi) The Seller has been furnished with all information
regarding (A) the Purchaser, (B) the Seller's Residual Interest
Certificates and distributions thereon, (C) the nature, performance and
servicing of the Other Loans, (D) the Pooling and Servicing Agreement
and the Trust Fund, and (E) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act or (b)
an "accredited investor" as defined in any of paragraphs (1), (2), (3)
and (7) of Rule 501(a) under the Securities Act or an entity in which
all its equity owners are "accredited investors" as defined in such
paragraphs and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
an investment in the Seller's Residual Interest Certificates. The
Seller has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision; and the
Seller is able to bear the economic risks of such an investment and can
afford a complete loss of such investment.
(viii) The Seller is not a Plan and is not directly or
indirectly acquiring the Seller's Residual Interest Certificates on
behalf of, as named fiduciary of, as trustee of or with assets of a
Plan.
(ix) The Seller is a United States Tax Person and is not a
Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or as of such other date
expressly set forth therein, each of the representations and warranties set
forth on Exhibit B hereto.
(c) The Seller intends to transfer the Seller's Residual Interest
Certificates to Wachovia Bank, National Association on or about the Closing
Date; and, in connection therewith, the Seller will comply with all of the
requirements of Section 5.02 of the Pooling and Servicing Agreement, as in
effect on the Closing Date, and applicable law. The Seller hereby directs the
Purchaser to cause the Seller's Residual Interest Certificates to be registered
in the name of Wachovia Bank, National Association upon initial issuance.
SECTION 4. Representations and Warranties of the Purchaser.
In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants for the benefit of the Seller and the
Additional Party as of the date hereof that:
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(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 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 (i) through (x) 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
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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, the "Initial Resolution Period"): (i) cure such
Material Document Defect or Material Breach, as the case may be, in all material
respects (which cure shall include payment of any out-of-pocket expenses that
are reasonably incurred and directly attributable to pursuing such a claim based
on such Material Document Defect or Material Breach associated therewith), or
(ii) if such Material Document Defect or Material Breach, as the case may be,
cannot be cured within the Initial Resolution Period, repurchase the affected
Mortgage Loan (or the related Mortgaged Property) from, and in accordance with
the directions of, the Purchaser or its designee, at a price equal to the
Purchase Price; provided that if (a) such Material Breach or Material Document
Defect, as the case may be, is capable of being cured but not within the
applicable Initial Resolution Period, (b) any such Material Breach or Material
Document Defect, as the case may be, does not affect whether the Mortgage Loan
was, as of the Closing Date, is or will continue to be a Qualified Mortgage, (c)
the Seller has commenced and is diligently proceeding with the cure of such
Material Breach or Material Document Defect, as the case may be, within the
applicable Initial Resolution Period, and (d) the Seller shall have delivered to
the Purchaser a certification executed on behalf of the Seller by an officer
thereof confirming that such Material Breach or Material Document Defect, as the
case may be, is not capable of being cured within the applicable Initial
Resolution Period, setting forth what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller anticipates that
such Material Breach or Material Document Defect, as the case may be, will be
cured within an additional period not to exceed 90 days beyond the end of the
Initial Resolution Period, then the Seller shall have such additional 90-day
period (the "Resolution Extension Period"), to complete such cure or, failing
such, to repurchase the affected Mortgage Loan (or the related Mortgaged
Property); and provided, further, that, if any such Material Document Defect is
still not cured after the Initial Resolution Period and any such Resolution
Extension Period solely due to the failure of the Seller to have received a
recorded document, then the Seller shall be entitled to continue to defer its
cure and repurchase obligations in respect of such Material Document Defect so
long as the Seller certifies to the Purchaser every six months thereafter that
the Material Document Defect is still in effect solely because of its failure to
have received the recorded document and that the Seller is diligently pursuing
the cure of such defect (specifying the actions being taken). The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to the Seller pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
or otherwise nor possession of such certification or schedule by the Seller
shall, in and of itself, constitute delivery of notice of any Material Document
Defect or Material Breach or knowledge or awareness by the Seller of any
Material Document Defect or Material Breach.
If, during the period of deferral by the Seller of its cure and
repurchase obligations as contemplated by the last proviso of the penultimate
sentence of the preceding paragraph, the Mortgage Loan that is the subject of
the Material Document Defect either becomes a Specially Serviced Mortgage Loan
or becomes the subject of a proposed or actual assumption of the obligations of
the related Mortgagor under such Mortgage Loan, then, following receipt by the
Seller of a Seller/Depositor Notification providing notice of such event, the
Seller shall cure the subject Material Document Defect within the time period
specified in such Seller/Depositor Notification. If, upon the expiration of such
period, the Seller has failed to cure the subject Material Document Defect, the
Master Servicer or the Special Servicer, as applicable, shall be entitled (but
not obligated) to perform the obligations of the Seller with respect to curing
the subject Material Document Defect and, in the event of such an election,
-9-
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 any Breach or Document Defect, as the case may be,
materially and adversely affects the interests of the Purchaser or the
Certificateholders in any Mortgage Loan, 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
-10-
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 sentence of this paragraph, if
the Seller determines that a Material Breach (other than a Material Breach of a
representation or warranty on the part of the Seller set forth in and made
pursuant to paragraph (xvii) of Exhibit B to this Agreement) or a Material
Document Defect with respect to a Mortgage Loan is not capable of being cured in
accordance with Section 5(a) hereof, then in lieu of repurchasing such Mortgage
Loan the Seller may, at its sole option, pay a cash amount equal to the loss of
value (each such payment, a "Loss of Value Payment") with respect to such
Mortgage Loan, which loss of value is directly attributed to such Material
Breach or Material Document Defect, as the case may be. The amount of each such
Loss of Value Payment shall be determined either (i) by mutual agreement of the
Special Servicer on behalf of the Trust with respect to the subject Material
Breach or Material Document Defect, as the case may be, and the Seller, or (ii)
by 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),
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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
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 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.
-12-
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 Sections 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;
(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.
-13-
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 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;
-14-
(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;
(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 61.657974% 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
-15-
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 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.
-16-
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 FEDERAL
COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR
RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR
FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN
INCONVENIENT FORUM; 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.
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.
-17-
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 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.
-18-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized officers as
of the date first above written.
SELLER
UBS REAL ESTATE INVESTMENTS INC.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
Title: 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: Director
By: /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
Title: 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: Authorized Signatory
Address for Notices:
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached]
A-1
UBS MORTGAGE LOAN SCHEDULE
MORTGAGE
LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE
-------- ---------------------------------------- -------------------------------------------------- --------------- ------ --------
0x Xxxxxxxxx Xxxxx Xxxxxx 520 and 000 Xxxxx Xxxxxxxx Xxxxxx, 000 Xxxxx Xxxx Xxxxxxx XX 00000
Street, 43 and 00 Xxxx Xxxx Xxxxxx and
10,45,47,51,53 and 00 Xxxx Xxxxx Xxxxxx
0 XXX Portfolio Various Various Various Various
6 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
0 Xxxxxxxxxx Xxxxxxxx Xxxx 8601 and 0000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000
8 Columbia Self Storage Portfolio Various Various NY Various
9 Pacific Beach Hotel 0000 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
00 Xxxxxxxxx Xxxxx 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
14 000 Xxxxxxx Xxxx 741 Lincoln Road, 600 Lincoln Road, 0000 Xxxxxxxx Xxxxx Xxxxx XX 00000
Avenue
19 51 and 000 Xxxx Xxx Xxxxxx 51 and 000 Xxxx Xxx Xxxxxx Xxxxxxx XX 00000
00 Xxxxx Xxxxxxxx 000 Xxxxx 00xx Xxxxxx Xxxxxxxx XX 00000
00 Xxxxxxx Xxxx Retail 000-000 Xxxx Xxxxxxx Xxxx Xxxxx XX 00000
27 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xx Xxxxxxx XX 00000
00 Xxxxxxx Xxxxxxx Xxxxx Xxxxxxxxx 0000 Xxxxxx Xxxx 39, 000 Xxxxx Xxxxxxx Xxxx, 000 Xxxxxxxxxxx XX 00000
County Road 39
29 1030-1048 Third Avenue, 000-000 X. 00xx 0000-0000 Xxxxx Xxxxxx, 000-000 X. 00xx Xxxxxx, Xxx Xxxx XX 00000
Street, 000-000 X. 00xx Xxxxxx 000-000 X. 00xx Xxxxxx
34 0000 Xxxxx Xxxxxx 0000 Xxxxx Xxxxxx and 2302 - 0000 Xxxxxxxxxxx Xxxx Xxxxx XX 00000
36 Meadowgreen Apartments 0000 Xxxx 00xx Xxxxxx Xxxxxxx XX 00000
40 Walgreens - Portland 00000 Xxxxxxxxx 00xx Xxxxxx Xxxxxxxx XX 00000
42 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxx XX 00000
43 0000 Xxxxxxx Xxxxx Xxxxx 0000 Xxxxxxx Xxxxx Xxxxx Xxxxxxx Xxxxx XX 00000
44 Peppertree Apartments 000 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000
47 Walgreens - Chesapeake 0000 Xxxxx Xxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
49 Walgreens - Columbus 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
50 Everwood Apartments 0000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000
52 LaSalle Bank Branch 000 Xxxx Xxxx Xxxxxx Xxxxxxxxxx XX 00000
00 Xxxxxx Xxxx and Procyon Xxxxxx Xxxxxxx Xxx Xxxxx XX 00000
00 Xxxxxxxxxxx Xxxxxx Xxxx Xxxx 000 Xxxxxxx Xxxx XxXxxxxx XX 00000
59 0000-0000 Xxxx Xxxxxxxxx Xxxxxx 0000-0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000
63 Walgreens - San Antonio 00000 Xxxxx Xxx Xx Xxxxxxxxxx Xxx Xxxxxxx XX 00000
00 Xxxxxx Xxxx Xxxxxx Xxxx Xxxx 0000 Xxxxx Xxxxxxx Xxxxx Xxxxxx XX 00000
70 Walgreens - Houston 00000 Xxxxx Xxxxxxx Xxxxx Xxxxxxx XX 00000
74 CVS - Southfield 00000 Xxxx 00 Xxxx Xxxx Xxxxxxxxxx XX 00000
76 Eckerd - Simpsonville 0000 Xxxxxxxxx Xxxxx Xxxxxxxxxxxx XX 00000
80 Walgreens - El Paso 000 Xxxxx Xxxxxx Xxxxx Xx Xxxx XX 00000
81 000 Xxxx 0xx Xxxxxx 000 Xxxx 0xx Xxxxxx Xxx Xxxx XX 00000
82 Andros Plaza 0000-0000 Xxxx Xxxxxx Xxxxxxx XX 00000
89 Northwest Self Storage 0000 Xxxx Xxxxxx Xxxxxxx Xxxxx XX 00000
91 Cedar Apartments 000 Xxxxx Xxxxxx Xxxxx Xxxx XX 00000
A-2
MORTGAGE REMAINING
LOAN CUT-OFF DATE MONTHLY P&I MORTGAGE TERM TO REMAINING
NUMBER BALANCE PAYMENT RATE MATURITY MATURITY DATE AMORTIZATION TERM INTEREST ACCRUAL BASIS
-------- ------------- ----------- -------- --------- ------------- ----------------- ----------------------
2b 68,350,000.00 269,666.70 4.6696 59 7/10/2009 0 Act/360
4 77,200,000.00 369,444.89 5.6640 60 8/11/2009 0 Act/360
6 62,000,000.00 379,328.54 6.1900 120 8/11/2014 360 Act/360
7 38,000,000.00 243,066.96 6.6150 119 7/11/2014 360 Act/360
8 37,395,157.21 238,300.14 5.8550 58 6/11/2009 298 Act/360
9 35,000,000.00 246,926.35 6.9800 84 8/11/2011 300 Act/360
13 24,000,000.00 146,059.41 6.1400 120 8/11/2014 360 Act/360
14 22,500,000.00 136,930.70 6.1400 120 8/11/2014 360 Act/360
19 13,500,000.00 80,159.83 5.9100 120 8/11/2014 360 Act/360
21 13,000,000.00 78,192.48 6.0300 120 8/11/2014 360 Act/360
26 9,992,704.25 63,009.64 6.4700 119 7/11/2014 359 Act/360
27 9,850,000.00 57,795.17 5.8000 120 8/11/2014 360 Act/360
28 9,500,000.00 63,848.19 6.4500 60 8/11/2009 300 Act/360
29 9,400,000.00 54,557.64 5.7000 120 8/11/2014 360 Act/360
34 6,500,000.00 38,929.00 5.9900 120 8/11/2014 360 Act/360
36 6,020,094.42 36,690.59 6.1354 118 6/11/2014 358 Act/360
40 5,453,282.07 33,193.76 6.1250 118 6/11/2014 358 Act/360
42 5,261,950.87 32,526.49 6.2800 119 7/11/2014 359 Act/360
43 5,225,000.00 31,933.72 6.1800 60 8/11/2009 360 Act/360
44 5,105,727.07 30,074.37 5.8100 117 5/11/2014 357 Act/360
47 4,425,000.00 26,672.52 6.0500 120 8/11/2014 360 Act/360
49 4,397,400.13 26,527.86 6.0500 119 7/11/2014 359 Act/360
50 4,242,533.23 25,974.80 6.1800 118 6/11/2014 358 Act/360
52 4,020,877.13 21,989.96 5.1550 119 7/11/2014 359 Act/360
55 3,918,651.69 24,912.01 6.5400 118 6/11/2014 358 Act/360
57 3,650,000.00 22,189.59 6.1300 120 8/11/2014 360 Act/360
59 3,590,080.04 21,260.86 5.8600 117 5/11/2014 357 Act/360
63 3,350,000.00 18,794.12 6.6400 58 6/11/2009 0 Act/360
66 3,262,385.63 19,849.04 6.1300 119 7/11/2014 359 Act/360
70 3,150,000.00 20,619.64 6.8400 118 6/11/2014 360 Act/360
74 2,929,924.88 18,071.30 6.2500 118 6/11/2014 358 Act/360
76 2,850,000.00 18,013.94 6.5000 120 8/11/2014 360 Act/360
80 2,398,124.25 14,730.42 6.2200 131 7/11/2015 359 Act/360
81 2,210,000.00 12,026.36 5.1200 60 8/11/2009 360 Act/360
82 2,160,000.00 14,584.48 6.5000 120 8/11/2014 300 Act/360
89 1,350,000.00 9,031.12 6.4000 120 8/11/2014 300 Act/360
91 1,124,108.80 6,868.39 6.1700 119 7/11/2014 359 Act/360
A-3
MORTGAGE PRIMARY
LOAN ADMINISTRATIVE SERVICING MORTGAGE LOAN
NUMBER COST RATE FEE GROUND LEASE? SELLER DEFEASANCE ARD MORTGAGE LOAN ANTICIPATED REPAYMENT DATE
-------- -------------- --------- ------------- ---------------- ----------------- ----------------- --------------------------
2b 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
4 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
6 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
7 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
8 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
9 0.03148 0.0300 Leasehold UBS Defeasance No N/A
13 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
14 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
19 0.03148 0.0300 Fee Simple UBS Yield Maintenance No N/A
21 0.08148 0.0800 Fee Simple UBS Defeasance No N/A
26 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
27 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
28 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
29 0.03148 0.0300 Leasehold UBS Defeasance No N/A
34 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
36 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
40 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
42 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
43 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
44 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
47 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
49 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
50 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
52 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
55 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
57 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
59 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
63 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
66 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
70 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
74 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
76 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
80 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
81 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
82 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
89 0.03148 0.0300 Fee Simple UBS Yield Maintenance No N/A
91 0.03148 0.0300 Fee Simple UBS Defeasance No N/A
A-4
MORTGAGE
LOAN
NUMBER ARD SPREAD CROSS COLLATERALIZED MORTGAGE LOAN SELLER LOAN ID
-------- ---------- -------------------- ----------------------------
2b X/X Xx XX000
0 X/X Xx 00000
6 N/A No 10332
7 N/A No 10320
8 N/A No 10317
9 N/A No 10207
13 N/A No 9979
14 N/A No 10319
19 N/A No 10294
21 N/A No 10302
26 N/A No 10321
27 N/A No 10385
28 N/A No 10432
29 N/A No 10267
34 N/A No 10218
36 N/A No 10197
40 N/A No 10298
42 N/A No 10337
43 N/A No 10258
44 N/A No 10265
47 N/A No 10287
49 N/A No 10286
50 N/A No 10310
52 N/A No 10255
55 N/A No 10290
57 N/A No 10349
59 N/A No 10280
63 N/A No 10221
66 N/A No 10330
70 N/A No 10208
74 N/A No 10338
76 N/A No 10404
80 N/A No 10301
81 N/A No 10335
82 N/A No 10179
89 N/A No 10357
91 N/A No 10358
A-5
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 2004.
(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 the Westfield North Bridge Loan Group, which may,
pursuant to the Westfield North Bridge 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 constitutes the legal,
valid, binding and, subject to the limitations and exceptions as to
enforceability set forth in paragraph (v) above, enforceable assignment
of such documents (provided that the unenforceability of any such
assignment based on bankruptcy, insolvency, receivership,
reorganization, liquidation, moratorium and/or other similar laws
affecting the enforcement of creditors' rights generally or based on
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) shall be a breach of
this representation and warranty only upon the declaration by a court
with jurisdiction in the matter that such assignment is to be
unenforceable on such basis).
B-2
(viii) First Lien. Each related Mortgage is a valid and,
subject to the limitations and exceptions in paragraph (v) above,
enforceable first lien on the related Mortgaged Property including all
improvements thereon (other than any tenant owned improvements), which
Mortgaged Property is free and clear of all encumbrances and liens
having priority over or on a parity with the first lien of such
Mortgage, except for the following (collectively, the "Permitted
Encumbrances"): (A) the lien for real estate taxes, water charges,
sewer rents and assessments not yet due and payable; (B) covenants,
conditions and restrictions, rights of way, easements and other matters
that are of public record or that are omitted as exceptions in the
related lender's title insurance policy (or, if not yet issued, omitted
as exceptions in a 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 the Westfield North Bridge Loan Group,
such Mortgage also secures the other mortgage loans in the Westfield
North Bridge Loan Group. 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.
(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
B-3
Property prior to the lien of the related Mortgage, together with all
ground rents, that prior to the related Due Date in August 2004 became
due and payable in respect of, and materially affect, any related
Mortgaged Property have been paid or are escrowed for or are not yet
delinquent, and the Seller knows of no unpaid tax, assessment, ground
rent, water charges or sewer rent, which, in all such cases, were
directly related to the subject Mortgaged Property and could constitute
liens on the subject Mortgaged Property prior to the lien of the
related Mortgage that prior to the Closing Date became due and
delinquent in respect of any related Mortgaged Property, or in any such
case an escrow of funds in an amount sufficient to cover such payments
has been established.
(x) No Material Damage. As of the date of origination of such
Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, there was no pending proceeding for the total or partial
condemnation of any related Mortgaged Property that materially affects
the value thereof and such Mortgaged Property is free of material
damage. Except for certain amounts not greater than amounts which would
be considered prudent by an institutional commercial mortgage lender
with respect to a similar mortgage loan and which are set forth in the
related Mortgage or other loan documents relating to such Mortgage
Loan, (and subject to any rights of the lessor under any related Ground
Lease) the related Mortgage Loan documents provide that any
condemnation awards will be applied (or, at the discretion of the
mortgagee, will be applied) to either the repair or restoration of all
or part of the related Mortgaged Property or the reduction of the
outstanding principal balance of such Mortgage Loan.
(xi) Title Insurance. Each related Mortgaged Property is
covered by an ALTA (or its equivalent) lender's title insurance
policy issued by a nationally recognized title insurance company,
insuring that each related Mortgage is a valid first lien on such
Mortgaged Property in the original principal amount of such Mortgage
Loan (or, in the case of the Westfield North Bridge Loan Group, in the
original principal amount of the Westfield North Bridge Loan Group)
after all advances of principal, subject only to Permitted Encumbrances
and, in the case of the Westfield North Bridge Loan Group, further
subject to the fact that the related Mortgage also secures the other
mortgage loans in the Westfield North Bridge Loan Group (or if such
policy has not yet been issued, such insurance may be evidenced by a
binding commitment or binding pro forma marked as binding and signed
(either thereon or on a related escrow letter attached thereto) by the
title insurer or its authorized agent) from a title insurer qualified
and/or licensed in the applicable jurisdiction, as required, to issue
such policy; such title insurance is in full force and effect, all
premiums have been paid, is freely assignable and will inure to the
benefit of the Trustee as sole insured as mortgagee of record, or any
such commitment or binding pro forma is a legal, valid and binding
obligation of such insurer; no claims have been made by the Seller
under such title insurance; and neither the Seller nor any Affiliate of
the Seller has done, by act or omission, anything that would materially
impair the coverage of any such title insurance policy; such policy or
commitment or binding pro forma contains no exclusion for (or
alternatively it insures over such exclusion, unless such coverage is
unavailable in the relevant jurisdiction) (A) access to a public road,
(B) that there is no material encroachment by any improvements on the
related Mortgaged Property either to or from any adjoining property or
across any easements on the related Mortgaged Property, and (C) that
the land shown on the survey materially conforms to the legal
description of the related Mortgaged Property.
B-4
(xii) Property Insurance. As of the date of its origination
and, to the Seller's actual knowledge, as of the Cut-off Date, all
insurance required under each related Mortgage (except where 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 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
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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, in the case of the
Westfield North Bridge Loan Group, the other mortgage loans in the
Westfield North Bridge Loan Group).
(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
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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 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,
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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.
(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
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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 the
Westfield North Bridge Loan Group, (for which such consent has been
granted with respect to the other mortgage loans in the Westfield North
Bridge Loan Group), and except for the respective Mortgage Loans
secured by the Mortgaged Properties listed on Schedule I (for which
such consent has been granted with respect to mezzanine debt), no such
consent has been granted by the Seller. To the Seller's knowledge, no
related Mortgaged Property is encumbered in connection with subordinate
financing (except that the Westfield North Bridge Mortgaged Property
also secures the other mortgage loans in the Westfield North Bridge
Loan Group); 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. Except in the case of the
Westfield North Bridge Note A2 Trust Mortgage Loan and the RHP
Portfolio Mortgage Loan, such Mortgage Loan, together with any other
Mortgage Loan made to the same Mortgagor or to an Affiliate of such
Mortgagor, does not represent more than 5% of the Initial Pool Balance.
(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.
(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
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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 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
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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 Loans in the Trust Fund, except that the Westfield North
Bridge Mortgaged Property also
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secures the Westfield North Bridge Non-Trust Loan). The security
interest/lien on each material item of collateral for such Mortgage
Loan has been assigned to the 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 all of its right, title and interest in and to such amounts.
(xlii) Licenses, Permits and Authorizations. The related
Mortgagor has represented in the related Mortgage Loan documents that,
and to the actual knowledge of the Seller, as of the date of
origination of such Mortgage Loan, all material licenses, permits and
authorizations then required for use of the related Mortgaged Property
by such Mortgagor, the related lessee, franchisor or operator have been
issued and were valid and in full force and effect.
(xliii) Servicing and Collection Practices. The servicing and
collection practices used by the Seller or, to the Seller's knowledge,
any prior holder of the related Mortgage Note with respect to such
Mortgage Loan have been in all respects legal and have met customary
industry standards.
(xliv) Fee Simple. Unless such Mortgage Loan is covered by the
representation and warranty in the immediately following paragraph
(xlv), such Mortgage Loan is secured in whole or material part by a fee
simple interest.
(xlv) Leasehold Interest Only. If such Mortgage Loan is
secured in whole or in material part by the interest of the related
Mortgagor as a lessee under a Ground Lease but not by the related fee
interest, then:
(A) such Ground Lease or a memorandum thereof has been or will
be duly
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recorded and such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage or, if
consent of the lessor thereunder is required, it has been obtained
prior to the Closing Date;
(B) upon the foreclosure of such Mortgage Loan (or acceptance
of a deed in lieu thereof), the Mortgagor's interest in such Ground
Lease is assignable to the Trustee without the consent of the lessor
thereunder (or, if any such consent is required, it has been obtained
prior to the Closing Date) and, in the event that it is so assigned, is
further assignable by the Trustee and its successors without a need to
obtain the consent of such lessor (or, if any such consent is required,
it has been obtained prior to the Closing Date or may not be
unreasonably withheld);
(C) such Ground Lease may not be amended or modified without
the prior written consent of the mortgagee under such Mortgage Loan and
any such action without such consent is not binding on such mortgagee,
its successors or assigns;
(D) unless otherwise set forth in such Ground Lease, such
Ground Lease does not permit any increase in the amount of rent payable
by the ground lessee thereunder during the term of such Mortgage Loan;
(E) such Ground Lease was in full force and effect as of the
date of origination of the related Mortgage Loan and, at the Closing
Date, such Ground Lease is in full force and effect; to the actual
knowledge of the Seller, except for payments due but not yet 30 days or
more delinquent, (1) there is no material default under such Ground
Lease, and (2) there is no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute a material default under such Ground Lease;
(F) such Ground Lease, or an estoppel or consent letter
received by the mortgagee under such Mortgage Loan from the lessor,
requires the lessor thereunder to give notice of any default by the
lessee to such mortgagee; and such Ground Lease, or an estoppel or
consent letter received by the mortgagee under such Mortgage Loan from
the lessor, further provides either (1) that no notice of termination
given under such Ground Lease is effective against such mortgagee
unless a copy has been delivered to the mortgagee in the manner
described in such Ground Lease, estoppel or consent letter or (2) that
upon any termination of such Ground Lease the lessor will enter into a
new lease with such mortgagee upon such mortgagee's request;
(G) based upon the related policy of title insurance, the
ground lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related ground lessor's related fee
interest and any Permitted Encumbrances;
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(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 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
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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 that it matures on its Anticipated
Repayment Date or on the date when any open prepayment period set forth
in the related Mortgage Loan documents commences) or, in the case of a
partial defeasance that effects the release of a material portion of
the related Mortgaged Property, to make all scheduled payments under
the related Mortgage Note on that part of such Mortgage Loan equal to
at least 110% of the allocated loan amount of the portion of the
Mortgaged Property being released, (3) an independent accounting firm
(which may be the Mortgagor's independent accounting firm) certify that
the Defeasance Collateral is sufficient to make such payments, (4) such
Mortgage Loan be assumed by a successor entity designated by the holder
of such Mortgage Loan (or by the Mortgagor with the approval of such
lender), and (5) counsel provide an opinion letter to the effect that
the Trustee has a perfected security interest in such Defeasance
Collateral prior to any other claim or interest.
(xlix) Primary Servicing Rights. No Person has been granted or
conveyed the right to primary service such Mortgage Loan or receive any
consideration in connection therewith except (A) as contemplated in the
Pooling and Servicing Agreement with respect to primary servicers that
are to be sub-servicers of the Master Servicer, (B) as has been
conveyed to the Master Servicer, or (C) as has been terminated.
(l) Mechanics' and Materialmen's Liens. As of origination, (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.
B-15
(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.
(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
B-16
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 2004-C6
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
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NUMBER PROPERTY ISSUE
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EXCEPTIONS TO REPRESENTATION (V): LOAN DOCUMENT STATUS.
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6 000 Xxxx 00xx Xxxxxx No recourse to warm body guarantor.
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13 Xxxxxxxxx Tower If certain tenants are not in occupancy and paying
rent by December 31, 2004, the mortgage loan
becomes full recourse to the borrower.
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27 601 Hawaii The related mortgage loan is full recourse to the
sponsors of the borrower until such time as the
responsible party with respect to certain
environmental conditions at the mortgaged
property, and the parent of such responsible
party, execute a revised environmental indemnity
agreement.
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36 Meadowgreen Apartments Warm body guarantor is back-up guarantor to a
non-warm body guarantor.
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00 Xxxxxx Xxxx and Procyon Street The related mortgage loan is full recourse to the
borrower.
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66 Sunset West Mobile Home Park The related mortgage loan is full recourse to the
borrower.
----------------------------------------------------------------------------------------------------------------------
91 Cedar Apartments The related mortgage loan is full recourse to the
borrower.
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All Properties With respect to the non-recourse carveout
guarantee concerning fraud, certain of the
guarantors have only agreed to be, in
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connection with and to the extent of any
material fraud or material intentional fraud
or material misrepresentations or material
intentional misrepresentation by the related
borrower.
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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EXCEPTIONS TO REPRESENTATION (X): NO MATERIAL DAMAGE.
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29 0000-0000 Xxxxx Xxxxxx, 000-000 X. 00xx
Xxxxxx, 000-000 X. 00xx Xxxxxx Although the related mortgage loan documents
provide that any condemnation awards which the
related borrower is entitled to will be applied to
either repair or restoration of all or part of the
related mortgaged property or the reduction of the
outstanding principal balance of such mortgage
loan, the master lease provides that with respect
to the portion of the mortgaged property which
consists of retail commercial space, a parking
garage and a laundry room located in a cooperative
apartment tower, the landlord under the master
lease shall receive the entire condemnation award,
and the related borrower, as tenant under the
master lease, is expressly prohibited from making
a claim for an award under the master lease, other
than an award for the cost of its moving expenses.
The related mortgage loan is fully recourse to the
related borrower and the related borrower's
principal if a casualty or condemnation occurs and
the lessor under the master lease, the leasehold
mortgagee under the ground lease or such other
party as may be
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responsible for restoring the related mortgaged
property under the master lease and/or the
ground lease does not, cannot, will not or
elects not to promptly and fully restore the
related mortgaged property (regardless of
whether or not insurance proceeds or
condemnation awards, as applicable, are made
available for restoration).
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EXCEPTIONS TO REPRESENTATION (XII): PROPERTY INSURANCE.
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6 000 Xxxx 00xx Xxxxxx The amount of "all risk" insurance is equal to the
greater of (A) the then full replacement cost of
the improvements and the equipment located on the
mortgaged property, without deduction for physical
depreciation, and (B) such amount that the insurer
would not deem the borrower a co-insurer under
said policies, in each case without reference to
the loan amount.
The borrower is permitted to place and maintain
the umbrella liability insurance with United
Educators Risk Retention so long as such company
maintains a financial strength and claims paying
ability rating of at least A:VII from A.M. Best
Company.
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00 Xxxxxxx Xxxx Retail Certain of the insurers which have issued policies
submitted to the lender do not satisfy insurance
rating requirements of at least A: VIII from A.M.
Best Company or "A" or better from Standards and
Poor's. Lender has accepted the existing policies
notwithstanding this failure, provided that
borrower is required to provided policies issued
by insurers satisfying the insurance rating
requirements not later than the earliest to occur
of (i) 30 days prior to the expiration date of the
existing policies, or (ii) ten days after borrower
becomes aware of a downgrade, withdrawal or
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qualification of the financial strength and claims
paying ability rating of any or all of the
insurers which have issued any of the existing
policies.
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29 1030-1048 Third Avenue, 000-000 Xxxx 00xx Xxxxxxxx the related mortgage loan requires the
Street, 000-000 Xxxx 00xx Xxxxxx related borrower to maintain insurance policies
which comply with the provisions hereof, the
mortgagee is not entitled to receive, control or
participate in insurance proceeds under the master
lease which secures the related mortgage loan, nor
are the insurance proceeds to be applied to the
principal balance of the mortgage loan. However,
the related borrower and the related borrower's
principal are personally liable to the lender for
any loss or damage suffered if a casualty or a
condemnation occurs and the related mortgaged
property is restored. In addition, the related
mortgage loan is fully recourse to the related
borrower and the related borrower's principal if a
casualty or condemnation occurs and the lessor
under the master lease, the leasehold mortgagee
under the ground lease or such other party as may
be responsible for restoring the related mortgaged
property under the master lease and/or the ground
lease does not, cannot, will not or elects not to
promptly and fully restore the related mortgaged
property (regardless of whether or not insurance
proceeds or condemnation awards, as applicable,
are made available for restoration).
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40, 47, 49 Walgreens - Portland Business interruption insurance was not required
because rent does not xxxxx within 12 months
Walgreens - Chesapeake following the event of a casualty.
Walgreens - Columbus
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52 LaSalle Bank Branch Business interruption insurance was not required
because rent does not xxxxx within 12 months
following the event of a casualty.
Tenant self-insures and tenant will not disclose
if terrorism coverage is included in tenant's
self-insurance program. The related borrower and a
principal of the borrower are liable for loss,
cost or damage for failure by the tenant or the
related borrower to restore on account of a
terrorist act or for failure to maintain terrorism
insurance.
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74 CVS - Southfield The related borrower insures the mortgaged
property. If the tenant elects to maintain
insurance, the required insurance rating is A.M.
Best A:VIII.
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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.
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EXCEPTIONS TO REPRESENTATION (XVI): SUBORDINATE DEBT.
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NUMBER PROPERTY ISSUE
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4 RHP Portfolio The holder of the equity interests in the
borrowers incurred mezzanine debt in the amount of
$8,200,000, which mezzanine debt was secured by a
pledge of 100% of the equity interests in the
related borrowers. The mezzanine lender entered
into an intercreditor agreement with the lender.
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6 000 Xxxx 00xx Xxxxxx The borrower is allowed to finance the acquisition
of miscellaneous ancillary equipment not critical
to the normal operation of the mortgaged property
so long as such financing is not secured by any
portion of the mortgaged property other than the
equipment financed and the total principal amount
of all such equipment financing does not exceed
$500,000 in the aggregate at any one time.
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28 Hamptons Hotel Resort Portfolio The holder of the equity interests in the
borrowers incurred mezzanine debt in the amount of
$1,200,000, which mezzanine debt was secured by a
pledge of 100% of the equity interests in the
related borrowers. The mezzanine lender entered
into an intercreditor agreement with the lender.
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34 0000 Xxxxx Xxxxxx The mortgage loan documents allow the principal of
the related borrower to maintain a credit line
secured by the principal's personal property as
evidenced by a UCC financing statement filed
against the principal.
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All Properties The loan documents allow the borrower to incur
certain trade payables up to a predetermined
amount, which is generally less than or equal to
5% of the loan amount.
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EXCEPTIONS TO REPRESENTATION (XIX): ENVIRONMENTAL CONDITIONS.
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0 Xxxxxxxxx Xxxxx Xxxxxx The related borrower is the only environmental
indemnitor. No natural person has agreed to
indemnify the lender for hazardous substance
losses.
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6 000 Xxxx 00xx Xxxxxx No natural person has agreed to indemnify the
lender for hazardous substance losses.
The indemnified costs include "diminution in
value" provided that no such indemnified costs as
a result of any such diminution in value shall
exceed the amount of the related mortgage loan.
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27 601 Hawaii Chlorinated solvents and petroleum hydrocarbons
were detected during a Phase II limited subsurface
investigation and other soil and ground water
testing at the mortgaged property.
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8
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NUMBER PROPERTY ISSUE
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63 Walgreens - San Antonio The related borrower is currently awaiting a "No
Further Action Letter" from the State of Texas
with respect to a previously remediated hazardous
substance spill that occurred while USTs were
being removed from the mortgaged property. An
escrow reserve is being held in the amount of
$50,000 by the Borrower's escrow agent. Such
escrow funds will be distributed to (i) the lender
if the "No Further Action Letter" is not delivered
or (ii) to the person who sold the mortgaged
property to the borrower if such "No Further
Action Letter" is delivered.
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76 Eckerd - Simpsonville The mortgaged property is listed as an active
South Carolina Department of Health and
Environmental Control Leaking Underground Storage
Tank (LUST) site. According to the independent
environmental consultant, the subject leaking
underground storage tank is qualified for the
State Underground Petroleum Environmental Response
Bank Fund, which provides a combined coverage of
$1,000,000 per occurrence over a deductible of
$25,000 (which has been met in this case) to cover
both the costs of remediation as well as costs and
liabilities associated with third party claims.
According to the independent environmental
consultant, assessments and ground water
monitoring through monitoring xxxxx are underway.
The independent consultant estimates that the cost
of remedial activities and monitoring will not
exceed $150,000.
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NUMBER PROPERTY ISSUE
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EXCEPTIONS TO REPRESENTATION (XXV): DUE-ON-ENCUMBRANCE.
----------------------------------------------------------------------------------------------------------------------
4 RHP Portfolio The holder of the equity interests in the
borrowers incurred mezzanine debt in the amount of
$8,200,000, which mezzanine debt was secured by a
pledge of 100% of the equity interests in the
related borrowers. The mezzanine lender entered
into an intercreditor agreement with the lender.
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6 000 Xxxx 00xx Xxxxxx The related borrower is allowed to finance the
acquisition of miscellaneous ancillary equipment
not critical to the normal operation of the
mortgaged property so long as such financing is
not secured by any portion of the Mortgaged
Property other than the equipment financed and the
total principal amount of all such equipment
financing does not exceed $500,000 in the
aggregate at any one time.
----------------------------------------------------------------------------------------------------------------------
28 Hampton Resorts Hotel Portfolio The holder of the equity interests in the
borrowers incurred mezzanine debt in the amount of
$1,200,000, which mezzanine debt was secured by a
pledge of 100% of the equity interests in the
related borrowers. The mezzanine lender entered
into an intercreditor agreement with the lender.
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34 0000 Xxxxx Xxxxxx The loan documents allow the principal of the
related borrower to maintain a credit line secured
by the principal's personal property as evidenced
by a UCC financing statement filed against the
principal.
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All Properties The loan documents allow the borrower to incur
certain trade payables up to a predetermined
amount, which is generally less than or equal to
5% of the loan amount.
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10
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EXCEPTION TO REPRESENTATION (XXVI): DUE-ON-SALE.
----------------------------------------------------------------------------------------------------------------------
6 000 Xxxx 00xx Xxxxxx A change in the directors or officers of 000 Xxxx
00xx Xxxxxx LLC, the borrower named in the Loan
Documents (but not any subsequent borrower
thereunder), or of Research Foundation of the City
University of New York (a not-for-profit
corporation that is the sole member of the
borrower) in the ordinary course of running the
business of such entity is permitted without the
lender's consent and will not be considered a
change of control of the borrower so long as the
Mortgaged Property is and continues to be managed
by a reputable and experienced regionally
recognized management organization reasonably
acceptable to the lender.
----------------------------------------------------------------------------------------------------------------------
27 601 Hawaii A condemnation action is currently pending in the
Los Angeles Superior Court with respect to a small
portion of the mortgaged property which the lender
did not include in its underwriting calculations.
Any award granted in connection with such
condemnation will be the property of the related
borrower.
----------------------------------------------------------------------------------------------------------------------
80 Walgreens - El Paso The mortgage loan documents permit a one-time
transfer of the beneficial ownership of the
related borrower to any one of the following:
TRUST F/B/O XXXX XXXXXXXXX XXXXX U/A DATED
12/23/93, TRUST F/B/O XXXXX XXXX U/A DATED
12/23/93, TRUST F/B/O ROREE XXXX-XXXXXXXX U/A
DATED 12/23/93 and TRUST F/B/O XXXXX XXXXXXXXX
SMOTRICH U/A DATED 12/23/93, each of which have a
current
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beneficial ownership interest in the entity
responsible for management of the mortgaged
property or to their immediate family member or an
entity or trust which is controlled by the
immediate family member.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXXI): QUALIFICATIONS, LICENSING, ZONING.
----------------------------------------------------------------------------------------------------------------------
6 000 Xxxx 00xx Xxxxxx The certificate of occupancy for the improvements
located on the mortgaged property is a temporary
certificate that expires on August 24, 2004. The
related borrower has agreed to maintain said
temporary certificate of occupancy in effect until
the final unconditional certificate of occupancy
has been obtained. The related borrower has also
agreed to diligently take all actions and pay all
amounts as may be necessary to satisfy the
requirements of all applicable governmental
entities in order to cause the issuance of the
final unconditional certificate of occupancy and
to obtain said final unconditional certificate of
occupancy and deliver a copy of the same to the
lender, as quickly as commercially reasonable, but
in no event later than the maturity date of the
mortgage loan. The related guarantor is liable for
any loss, damage, cost, expense, liability, claim
or other obligation incurred by the lender if the
temporary certificate of occupancy is canceled or
revoked, expires without the renewal thereof, or
terminates for any reason prior to the issuance of
the final unconditional certificate of occupancy,
or if the borrower has not obtained the final
unconditional certificate of occupancy and
delivered a copy of the same to the lender prior
to the maturity date of the mortgage loan. It is
also an event of default under the mortgage loan
documents if the temporary certificate of
occupancy is
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12
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NUMBER PROPERTY ISSUE
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canceled or revoked, expires without the renewal
thereof, or terminates for any reason prior to the
issuance of the final unconditional certificate of
occupancy, or if the borrower has not obtained the
final unconditional certificate of occupancy and
delivered a copy of the same to the lender prior
to the maturity date of the mortgage loan.
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00 Xxxxxxx Xxxx Retail The related title policy lists various building
code violations, including the removal of a
retaining wall. The related borrower is required
to cure all violations within 60 days of closing
and clear same of record within 6 months of
closing. The mortgage loan is recourse to the
related borrower and guarantor for any loss, costs
or damages arising out of the existence of these
violations and/or failure to cure and/or discharge
such violations of record.
----------------------------------------------------------------------------------------------------------------------
34 0000 Xxxxx Xxxxxx The related title policy lists various building
code and fire code violations. The related
borrower is required to cure all violations within
60 days of closing and clear same of record within
6 months of closing. The mortgage loan is recourse
to the related borrower and guarantor for any
loss, costs or damages arising out of the
existence of these violations and/or failure to
cure and/or discharge such violations of record.
----------------------------------------------------------------------------------------------------------------------
49 Walgreens - Columbus The related borrower is required to deliver to the
lender a letter from the municipality confirming
that a setback violation is considered de minimus
and the project is considered legal conforming in
all respects. The related borrower and its
principal are liable for loss, costs or damages
resulting from failure to comply with the
obligations
----------------------------------------------------------------------------------------------------------------------
13
CONTROL
NUMBER PROPERTY ISSUE
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to obtain such letter and for failure of the
property to comply with zoning laws.
----------------------------------------------------------------------------------------------------------------------
81 000 Xxxx 0xx Xxxxxx There are certain open New York City Departmental
violations on record. The most recent violations
are from the year 2000 and are violations from the
NYC HPD. The related borrower has covenanted to
cure and remove the open violations from the
record within 6 months after the closing date. In
addition, based on the zoning report obtained by
the lender, the related mortgaged property was
constructed prior to the enforcement of
certificates of occupancy and, therefore, does not
have a certificate of occupancy. The related
mortgage loan documents provide that the related
borrower and its principal are personally liable
for any loss or damage suffered by the lender as a
result of (i) the related borrower's failure to
cure the violations and remove the violations of
record as and when required by the related
mortgage loan documents or (ii) the failure of the
related mortgaged property to have a certificate
of occupancy.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLII): LICENSES, PERMITS AND AUTHORIZATIONS.
----------------------------------------------------------------------------------------------------------------------
6 000 Xxxx 00xx Xxxxxx The certificate of occupancy for the improvements
located on the mortgaged property is a temporary
certificate that expires on August 24, 2004. The
related borrower has agreed to maintain said
temporary certificate of occupancy in effect until
the final unconditional certificate of occupancy
has been obtained. The related borrower has also
agreed to diligently take all actions and pay all
amounts as may be necessary to satisfy the
requirements of all applicable governmental
entities in order to cause the issuance of the
final unconditional
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14
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NUMBER PROPERTY ISSUE
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certificate of occupancy and to obtain said final
unconditional certificate of occupancy and deliver
a copy of the same to the lender, as quickly as
commercially reasonable, but in no event later
than the maturity date of the mortgage loan. The
related guarantor is liable for any loss, damage,
cost, expense, liability, claim or other
obligation incurred by the lender if the temporary
certificate of occupancy is canceled or revoked,
expires without the renewal thereof, or terminates
for any reason prior to the issuance of the final
unconditional certificate of occupancy, or if the
borrower has not obtained the final unconditional
certificate of occupancy and delivered a copy of
the same to the lender prior to the maturity date
of the mortgage loan. It is also an event of
default under the mortgage loan documents if the
temporary certificate of occupancy is canceled or
revoked, expires without the renewal thereof, or
terminates for any reason prior to the issuance of
the final unconditional certificate of occupancy,
or if the borrower has not obtained the final
unconditional certificate of occupancy and
delivered a copy of the same to the lender prior
to the maturity date of the mortgage loan.
----------------------------------------------------------------------------------------------------------------------
00 Xxxxxxx Xxxx Retail The related title policy lists various building
code violations, including the removal of a
retaining wall. The related borrower is required
to cure all violations within 60 days of closing
and clear same of record within 6 months of
closing. The mortgage loan is recourse to the
related borrower and guarantor for any loss, costs
or damages arising out of the existence of these
violations and/or failure to cure and/or discharge
such violations of record.
----------------------------------------------------------------------------------------------------------------------
15
CONTROL
NUMBER PROPERTY ISSUE
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00 Xxxxxxx Xxxx Retail The related title policy lists various building
code violations, including the removal of a
retaining wall. The related borrower is required
to cure all violations within 60 days of closing
and clear same of record within 6 months of
closing. The mortgage loan is recourse to the
related borrower and guarantor for any loss, costs
or damages arising out of the existence of these
violations and/or failure to cure and/or discharge
such violations of record.
----------------------------------------------------------------------------------------------------------------------
34 0000 Xxxxx Xxxxxx The related title policy lists various building
code and fire code violations. The related
borrower is required to cure all violations within
60 days of closing and clear same of record within
6 months of closing. The mortgage loan is recourse
to the related borrower and guarantor for any
loss, costs or damages arising out of the
existence of these violations and/or failure to
cure and/or discharge such violations of record.
----------------------------------------------------------------------------------------------------------------------
81 000 Xxxx 0xx Xxxxxx Based on the zoning report obtained by the lender,
the related mortgaged property was constructed
prior to the enforcement of certificates of
occupancy and, therefore, does not have a
certificate of occupancy. The related mortgage
loan documents provide that the related borrower
and its principal are personally liable for any
loss or damage suffered by the lender as a result
of (i) the related borrower's failure to cure the
violations and remove the violations of record as
and when required by the related mortgage loan
documents or (ii) the failure of the related
mortgaged property to have a certificate of
occupancy.
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CONTROL
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EXCEPTION TO REPRESENTATION (XLV): LEASEHOLD INTEREST ONLY.
----------------------------------------------------------------------------------------------------------------------
9 Pacific Beach Hotel (C) Consent is only required during the term of
the Mortgage Loan (and not any future loan) with
respect to one of the ground leases. Consent is
always required with respect to the other two
ground leases.
(F) The ground leases do not specifically state
that a notice of default will not be effective
unless a copy is sent to the lender, but the
leases do provide that lender will have an
opportunity to cure after receipt of such notice
before landlord may terminate. In addition, the
requirement to enter into a new lease with a
lender upon termination only applies during the
term of the Mortgage Loan (and not any future
loan) and only applies to a termination due to a
default which is not reasonably capable of cure by
lender or a rejection of the lease in bankruptcy.
(J) The ground leases state that all insurance
proceeds will be used to restore the property.
With respect to one of the ground leases, a
trustee appointed by the lessor and lessee will
have the right to hold and disburse proceeds and
with respect to the other two ground leases, a
trustee appointed by the lessee has such right.
However, the related mortgage loan documents
provide for the assignment of these rights to the
lender. Upon a condemnation of any portion of the
ground lease estate, the related borrower is
entitled to only that portion of any award that
represents the unamortized value of the
improvements. The borrower has obtained a
condemnation policy for the term of the Mortgage
Loan which provides any additional amounts, over
the borrower's allocation of condemnation awards,
necessary to pay the outstanding balance of
----------------------------------------------------------------------------------------------------------------------
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the loan and accrued interest thereon, subject to
certain limitations set forth in such policy,
including a limitation on the amount of coverage
thereof.
(K) The lessor has certain consent rights with
respect to the subleasing of certain restaurant
spaces.
(L) The requirement to enter into a new lease with
a lender upon termination only applies during the
term of the Mortgage Loan (and not any future
loan) and only applies to a termination due to a
default which is not reasonably capable of cure by
lender or a rejection of the lease in bankruptcy.
----------------------------------------------------------------------------------------------------------------------
29 0000-0000 Xxxxx Xxxxxx, 163-165 East 61st (J) Although the related mortgage loan requires
Street, 000-000 Xxxx 00xx Xxxxxx the related borrower to maintain insurance
policies which comply with the requirements of the
mortgage loan documents, the lender is not
entitled to receive, control or participate in
insurance proceeds under the master lease which
secures the related mortgage loan, nor are the
insurance proceeds required to be applied to the
principal balance of the mortgage loan. However,
the related borrower and the related borrower's
principal are personally liable to lender for any
loss or damage suffered if a casualty or a
condemnation occurs and the related mortgaged
property is restored. In addition, the related
mortgage loan is fully recourse to the related
borrower and the related borrower's principal if a
casualty or condemnation occurs and the lessor
under the master lease, the leasehold mortgagee
under the ground lease or such other party as may
be responsible for restoring the related mortgaged
property under the master lease and/or the ground
lease does not, cannot, will not or elects not to
promptly and fully restore the related
----------------------------------------------------------------------------------------------------------------------
18
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
mortgaged property (regardless of whether or not
insurance proceeds or condemnation awards, as
applicable, are made available for restoration).
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLVII): TAX LOT; UTILITIES.
----------------------------------------------------------------------------------------------------------------------
29 0000-0000 Xxxxx Xxxxxx, 163-165 East 61st The related mortgage loan is secured by a
Street, 000-000 Xxxx 00xx Xxxxxx leasehold estate pursuant to a master lease
demising (a) retail commercial space, a parking
garage and a laundry room which constitute
portions of space in a cooperative apartment
tower, and (b) two residential townhouses. The two
residential townhouses constitute a separate tax
lot. The retail commercial space, parking garage
and laundry room are neither part of such tax lot,
nor constitute a complete separate tax lot. The
related borrower, as tenant under the master
lease, is obligated to pay 3% of all increases in
taxes for the cooperative apartment tower over a
base year to the landlord under the master lease.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LV): NO UNDISCLOSED COMMON OWNERSHIP.
----------------------------------------------------------------------------------------------------------------------
Meadowgreen Apartments
36, 44 These mortgage loans have affiliated borrowers with
Peppertree Apartments common principals.
----------------------------------------------------------------------------------------------------------------------
Walgreens - Portland
40, 47, 49 These mortgage loans are to affiliate borrowers with
Walgreens - Chesapeake common ownership and principals.
Walgreens - Columbus
----------------------------------------------------------------------------------------------------------------------
63, 70 Walgreens - San Antonio These mortgage loans are to affiliate borrowers with
common ownership and principals.
Walgreens - Houston
----------------------------------------------------------------------------------------------------------------------
19
EXHIBIT X-0
XXXXXXX XX XXXXXXXXXX, XXXXXXXXXX & XXXX LLP
[CADWALADER, XXXXXXXXXX & XXXX LLP LETTERHEAD]
August 24, 2004
Addressees listed on Schedule A
Re: LB-UBS Commercial Mortgage Trust 2004-C6, Commercial Mortgage Pass-Through
Certificates, Series 2004-C6
--------------------------------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 8(j) of the Mortgage
Loan Purchase Agreement, dated as of August 10, 2004 (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 $516,283,002 (the "UBS Mortgage Loans"), pursuant to the MLPA;
(ii) the execution by the Seller of the UBS Indemnification Agreement, dated as
of August 10, 2004 (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 10, 2004 (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 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,
the conformity of the text of each document filed with the Securities and
Exchange Commission through its Electronic Data Gathering, Analysis and
Retrieval System to the printed document reviewed by us, and the accuracy of the
matters set forth in the documents, agreements and instruments we reviewed. As
to any facts material to the opinions expressed below that were not known to us,
we have relied upon statements, certificates and representations of officers and
other representatives of the UBS Entities, UBSPF, SASC and the Underwriters,
including those contained in the Agreements and other documents, certificates,
agreements and opinions delivered at the Closing, and of public officials. In
addition, with respect to the opinions referred to in paragraphs 8(c), 8(d) and
9 below, such opinions are based solely on the Seller Officer's Certificate and
the UBS Americas Officer's Certificate referred to below, a review of the items,
if any, identified as exceptions in the exhibits to such certificates,
conversation with internal counsel for each of the UBS Entities, and the actual
knowledge of attorneys who conducted such review, had such conversations and/or
customarily represent the UBS Entities in real estate lending transactions,
financing transactions, and/or transactions similar to those contemplated by the
Agreements. Except as expressly set forth herein, we have not undertaken any
independent investigation (including, without limitation, conducting any review,
search or investigation of any public files, records or dockets) to determine
the existence or absence of the facts that are material to our opinion, and no
inference as to our knowledge concerning such facts should be drawn from our
reliance on the representations of the UBS Entities, UBSPF and others in
connection with the preparation and delivery of this letter.
In particular, we have examined and relied upon:
1. the MLPA;
2. the Underwriting Agreement;
3. the Indemnification Agreement;
4. the officer's certificate of Seller, dated the date hereof (the
"Seller Officer's Certificate"); and
5. the officer's certificate of UBS Americas, dated the date hereof
(the "UBS Americas Officer's Certificate").
References in this letter to "Applicable Laws" shall mean those laws,
rules and regulations of the State of New York and of the United States of
America which, in our experience, are normally applicable to transactions of the
type contemplated by the Agreements, as well as the General Corporation Law of
the State of Delaware with respect to the opinions referred to in paragraphs 1
through 4, 8(a), 8(b)(i), 8(c) and 8(d) below. While we are not licensed to
practice law in the State of Delaware, we have reviewed applicable provisions of
the Delaware General Corporation Law as we have deemed appropriate in connection
with the opinions expressed herein. Except as described we have neither examined
nor do we express any opinion with respect to Delaware law. References in this
letter to the term
-2-
"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 parties
who executed any documents, agreements and instruments in connection with the
transactions contemplated by the Agreements 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.
-3-
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 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 and (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.
-4-
We are furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. This letter is not to be
relied upon, used, circulated, quoted or otherwise referred to by any other
person or for any other purpose without our prior written consent. In addition,
we disclaim any obligation to update this letter for changes in fact or law, or
otherwise.
Very truly yours,
-5-
SCHEDULE A
----------
Structured Asset Securities Standard and Poor's Ratings Services, a
Corporation II division of The XxXxxx-Xxxx Companies, Inc.
000 Xxxxxxx Xxxxxx 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10019 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, 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
EXHIBIT C-2
OPINION OF IN-HOUSE COUNSEL TO ADDITIONAL PARTY
[UBS LETTERHEAD]
August 24, 2004
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: LB-UBS Commercial Mortgage Trust 2004-C6, Commercial Mortgage Pass-Through
Certificates, Series 2004-C6
--------------------------------------------------------------------------
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 10, 2004 (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.
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,
2
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.
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
3
SCHEDULE A
UBS Securities LLC Standard and Poor's Ratings Services, a division
1285 Avenue of the Americas of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. Fitch, Inc.
000 Xxxxxxx Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx, 00xx 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
