EXECUTION COPY
UBS MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of November 12,
2003 (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 2003-C8, Commercial Mortgage Pass-Through Certificates, Series
2003-C8. 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 November 11, 2003, between the Purchaser, as
depositor, Wachovia Bank, National Association, as master servicer (the "Master
Servicer"), Lennar Partners, Inc., as special servicer (the "Special Servicer"),
LaSalle Bank National Association, as trustee (the "Trustee"), and ABN AMRO Bank
N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used but not
defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with ▇▇▇▇▇▇ Brothers
Inc. ("▇▇▇▇▇▇") and UBS Securities LLC ("UBSS" and, together with ▇▇▇▇▇▇ in such
capacity, the "Underwriters"), whereby the Purchaser will sell to the
Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Purchaser has
also entered into a Certificate Purchase Agreement (the "Certificate Purchase
Agreement"), dated as of the date hereof, with ▇▇▇▇▇▇ and 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 Americas Inc. (the "Co-Indemnitor"), the Purchaser, the Underwriters
and the Placement Agents have entered into an Indemnification Agreement (the
"Indemnification Agreement"), dated as of the date hereof.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell,
and the Purchaser agrees to purchase, the Mortgage Loans identified on the
schedule (the "Mortgage Loan Schedule") annexed hereto as Exhibit A. The
Mortgage Loan Schedule may be amended to reflect the actual Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The Mortgage Loans will
have an aggregate principal balance of $577,564,509.92 (the "Initial UBS Pool
Balance") as of the close of business on November 11, 2003 (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 November 25, 2003 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 Fee Rate), for the period from
and including November 11, 2003 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 38.19418%
Percentage Interest in each of the Class R-I, Class R-II and Class R-III
Certificates (each 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 in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date (other
than the primary servicing rights). The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive
all scheduled payments of principal and interest due after the Cut-off Date, and
all other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf
of the initial Purchaser, deliver to and deposit with the Trustee a Mortgage
File for each Mortgage Loan in accordance with the terms of, and conforming to
the requirements set forth in, the Pooling and Servicing Agreement. Concurrently
with such delivery, the Seller shall deliver copies of the Mortgage Note,
Mortgage(s) and any reserve and cash management agreements with respect to each
Mortgage Loan to the Master Servicer and the Special Servicer.
(d) The Seller shall, through an Independent third party (the
"Recording/Filing Agent") retained by it, as and in the manner provided in the
Pooling and Servicing Agreement (and in any event within 45 days following the
later of the Closing Date
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and the date on which all necessary recording or filing, as applicable,
information is available to the Recording/Filing Agent), cause (i) each
assignment of Mortgage, each assignment of Assignment of Leases and each
assignment of Uniform Commercial Code financing statement, in favor of, and
delivered as part of the related Mortgage File to, the Trustee, to be submitted
for recordation or filing, as the case may be, in the appropriate public office
for real property records or Uniform Commercial Code financing statements, as
appropriate, and (ii) such assignments to be delivered to the Trustee following
their return by the applicable public recording or filing office, as the case
may be, with copies of 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 costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(e) All such other relevant documents and records that (a)
relate to the administration or servicing of the Mortgage Loans, (b) are
reasonably necessary for the ongoing administration and/or servicing of such
Mortgage Loan by the Master Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (c) are in the possession or under the
control of the Seller, together with all unapplied Escrow Payments and Reserve
Funds in the possession or under the control of the Seller that relate to the
Mortgage Loans and a statement indicating which Escrow Payments and Reserve
Funds are allocable to each Mortgage Loan, shall be delivered or caused to be
delivered by the Seller to the Master Servicer (or, at the direction of the
Master Servicer, to the appropriate sub-servicer); provided that the Seller
shall not be required to deliver any draft documents, privileged or other
communications, credit underwriting or due diligence analyses, credit committee
briefs or memoranda or other internal approval documents or data or internal
worksheets, memoranda, communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
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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).
(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
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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 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
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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 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.
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(vii) The Seller is an "accredited investor" within the
meaning of paragraph (1), (2), (3) or (7) of Rule 501(a) under the
Securities Act or an entity in which all the equity owners come within
such paragraphs and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks
of an investment in the Seller's Residual Interest Certificates; the
Seller has sought such accounting, legal and tax advice as it has
considered necessary to make an informed investment decision; and the
Seller is able to bear the economic risks of such an investment and
can afford a complete loss of such investment.
(viii) The Seller is not a Plan and is not directly or
indirectly acquiring the Seller's Residual Interest Certificates on
behalf of, as named fiduciary of, as trustee of or with assets of a
Plan.
(ix) The Seller is a United States Tax Person and is not a
Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser,
with respect to each Mortgage Loan, as of the Closing Date or as of such other
date expressly set forth therein, each of the representations and warranties set
forth on Exhibit B hereto.
(c) The Seller intends to transfer the Seller's Residual
Interest Certificates to JPMorgan Chase Bank 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 JPMorgan
Chase Bank upon initial issuance.
SECTION 4. Representations and Warranties of the Purchaser. In
order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller and the Additional Party
as of the date hereof that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
The Purchaser has the full corporate power and authority and legal
right to acquire the Mortgage Loans from the Seller and to transfer
the Mortgage Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser and, assuming due
authorization, execution and delivery hereof by the Seller and the
Additional Party, constitutes a legal, valid and binding obligation of
the Purchaser, enforceable against the Purchaser in accordance with
its terms, except as such enforcement may be limited by (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws affecting the enforcement of creditors' rights in
general, and (B) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the
terms of this Agreement will not
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(A) violate the Purchaser's organizational documents, (B) violate any
law or regulation or any administrative decree or order to which the
Purchaser is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Purchaser is a party or by which the
Purchaser is bound.
(iv) Except as may be required under federal or state
securities laws (and which will be obtained on a timely basis), no
consent, approval, authorization or order of, registration or filing
with, or notice to, any governmental authority or court, is required
for the execution, delivery and performance by the Purchaser of or
compliance by the Purchaser with this Agreement, or the consummation
by the Purchaser of any transaction described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loans by the Seller
to the Purchaser, as provided herein, as a sale of the Mortgage Loans
to the Purchaser in exchange for the consideration specified in
Section 1 hereof.
SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller or the Additional Party discovers or
receives notice of a Document Defect or a breach of any of its representations
and warranties made pursuant to Section 3(b) hereof (each such breach, a
"Breach") relating to any Mortgage Loan, and such Document Defect or Breach
materially and adversely affects the interests of the Purchaser or the
Certificateholders in such Mortgage Loan (in which case any such Document Defect
or Breach would be a "Material Document Defect" or a "Material Breach", as the
case may be), then the Seller shall, not later than 90 days after its receipt of
a Seller/Depositor Notification (or, in the case of a Material Document Defect
or Material Breach that affects whether a Mortgage Loan was, as of the Closing
Date, is or will continue to be a "qualified mortgage" within the meaning of the
REMIC Provisions, not later than 90 days of any party discovering such Material
Document Defect or Material Breach) (such 90-day period, in either case, 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 Additional Trust Fund Expenses associated therewith, or (ii)
repurchase the affected Mortgage Loan (or the related Mortgaged Property) from,
and in accordance with the directions of, the Purchaser or its designee, at a
price equal to the Purchase Price; provided that if (i) any such Material Breach
or Material Document Defect, as the case may be, does not affect whether the
Mortgage Loan was, as of the Closing Date, is or will continue to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code (a
"Qualified Mortgage"), (ii) such Material Breach or Material Document Defect, as
the case may be, is capable of being cured but not within the applicable Initial
Resolution Period, (iii) the Seller has commenced and is diligently proceeding
with the cure of such Material Breach or Material Document Defect, as the case
may be, within the applicable Initial Resolution Period, and (iv) the Seller
shall have delivered to the Purchaser a certification executed on behalf of the
Seller by an officer thereof confirming that such Material Breach or Material
Document Defect, as the case may be, is not capable of being cured within the
applicable Initial Resolution Period, setting forth what actions the Seller is
pursuing in connection with the cure thereof and stating
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that the Seller anticipates that such Material Breach or Material Document
Defect, as the case may be, will be cured within an additional period not to
exceed 90 days beyond the end of the applicable Initial Resolution Period, then
the Seller shall have such additional 90-day period (the "Resolution Extension
Period") to complete such cure or, failing such, to repurchase the affected
Mortgage Loan (or the related Mortgaged Property); 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). Any such repurchase of a Mortgage Loan shall be on a
whole loan, servicing released basis. The Seller and the Additional Party shall
have no obligation to monitor the Mortgage Loans regarding the existence of a
Breach or Document Defect, but if the Seller or the Additional Party discovers a
Material Breach or Material Document Defect with respect to a Mortgage Loan, it
will notify the Purchaser.
If, during the period of deferral by the Seller of its cure
and repurchase obligations as contemplated by the last proviso of the preceding
paragraph, the Mortgage Loan that is the subject of the Material Document Defect
either becomes a Specially Serviced Mortgage Loan or becomes the subject of a
proposed or actual assumption of the obligations of the related Mortgagor under
such Mortgage Loan, then, following receipt by the Seller of a Seller/Depositor
Notification providing notice of such event, the Seller shall cure the subject
Material Document Defect within the time period specified in such
Seller/Depositor Notification. If, upon the expiration of such period, the
Seller has failed to cure the subject Material Document Defect, the Master
Servicer or the Special Servicer, as applicable, shall be entitled (but not
obligated) to perform the obligations of the Seller with respect to curing the
subject Material Document Defect and, in the event of such an election, the
Seller shall pay all reasonable costs and expenses in connection with the
applicable servicer's effecting such cure.
(b) If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by the Seller as
contemplated by Section 5(a), then, prior to the subject repurchase, the 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
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Class Representative (if one is acting) has consented (which consent shall not
be unreasonably withheld and shall be deemed to have been given if no written
objection is received by the Seller within 10 days of the Controlling Class
Representative's receipt of a written request for such consent); and provided,
further, that the Seller may, at its option, purchase the entire
Cross-Collateralized Group in lieu of terminating the cross-collateralization.
All costs and expenses incurred by the Purchaser or its designee pursuant to
this paragraph shall be included in the calculation of Purchase Price for the
Mortgage Loan(s) to be repurchased. If the cross-collateralization of any
Cross-Collateralized Group is not or cannot be terminated as contemplated by
this paragraph, then, for purposes of (i) determining whether any Breach 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.
(c) It shall be a condition to any repurchase of a Mortgage
Loan by the Seller pursuant to Section 5(a) that the Purchaser shall have
executed and delivered such instruments of transfer or assignment then presented
to it by the Seller (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 Section 5(a), the Seller
shall amend the Mortgage Loan Schedule to reflect the removal of such Mortgage
Loan and shall forward such amended schedule to the Purchaser.
(d) It is understood and agreed that the obligations of the
Seller set forth in Section 5(a) to cure any Material Breach or Material
Document Defect or to repurchase the affected Mortgage Loan, constitute the sole
remedies available to the Purchaser with respect to any Breach or Document
Defect.
SECTION 6. Obligations of the Additional Party. The Additional
Party hereby covenants and agrees with the Purchaser that the Additional Party
shall be liable to the Purchaser and any designee thereof to the same extent as
the Seller as set forth herein, for all the obligations of the Seller under
Section 5 hereof. The Additional Party further agrees that the Purchaser shall
not be bound or obligated to initially request the Seller to perform any of its
obligations hereunder, but may instead initially request the Additional Party to
perform such obligations. Additionally, the Additional Party agrees that the
Purchaser shall not be bound or obligated in anyway to exhaust recourse against
the Seller before being entitled to demand the performance by the Additional
Party of its obligations hereunder. Performance by the Additional Party of any
of the Seller's obligations hereunder shall be deemed to be performance thereof
by the Seller.
SECTION 7. Closing. The closing of the sale of the Mortgage
Loans (the "Closing") shall be held at the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City
time, on the Closing Date.
-10-
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.
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
Additional Party and the Seller;
(b) The Pooling and Servicing Agreement duly executed by the
parties thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
-11-
(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;
(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;
-12-
(i) As certified by an officer of the Co-Indemnitor, true and
correct copies of (i) the resolutions of the board of directors authorizing the
Co-Indemnitor's entering into the transactions contemplated by the
Indemnification Agreement, (ii) the organizational documents of the
Co-Indemnitor, and (iii) a certificate of good standing of the Co-Indemnitor
issued by the Secretary of State of the State of Delaware not earlier than 10
days prior to the Closing Date;
(j) A favorable opinion of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇,
special counsel to the Seller, the Additional Party and the Co-Indemnitor,
substantially in the form attached hereto as Exhibit C-1, dated the Closing Date
and addressed to the initial Purchaser, the Underwriters, the Placement Agents,
the Rating Agencies and, upon request, the other parties to the Pooling and
Servicing Agreement, together with such other opinions of Cadwalader, ▇▇▇▇▇▇▇▇▇▇
& ▇▇▇▇ as may be required by the Rating Agencies in connection with the
transactions contemplated hereby;
(k) A favorable opinion of in-house counsel to each of the
Seller, the Additional Party and the Co-Indemnitor, substantially in the form
attached hereto as Exhibit C-2, dated the Closing Date and addressed to the
initial Purchaser, the Underwriters, the Placement Agents, the Rating Agencies
and, upon request, the other parties to the Pooling and Servicing Agreement;
(l) In connection with the 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 the Seller and from the
transferee of the Seller;
(m) 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
(n) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Costs. An amount equal to 38.19418% of all
reasonable out-of-pocket costs and expenses incurred by the Seller, the initial
Purchaser, the Underwriters, the Placement Agents and the seller of the Other
Loans to the Purchaser in connection with the securitization of the Securitized
Loans and the other transactions contemplated by this Agreement, the
Underwriting Agreement and the Certificate Purchase Agreement shall be payable
by the Seller.
SECTION 10. Grant of a Security Interest. The parties hereto
agree that it is their express intent that the conveyance of the Mortgage Loans
by the Seller to the Purchaser as provided in Section 2 hereof be, and be
construed as, a sale of the Mortgage Loans by the Seller to the Purchaser and
not as a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a
debt or other obligation of the Seller. However, if, notwithstanding the
aforementioned intent of the parties, the Mortgage Loans are held to be property
of the Seller, then it is the express intent of the parties that: (i) such
conveyance shall be deemed to be a pledge of the
-13-
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.
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
-14-
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.
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
-15-
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.
-16-
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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
Address for Notices:
1285 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
ADDITIONAL PARTY
----------------
UBS PRINCIPAL FINANCE LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
Address for Notices:
1285 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
PURCHASER
---------
STRUCTURED ASSET SECURITIES CORPORATION II
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Address for Notices:
Structured Asset Securities Corporation II
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached]
MORTGAGE
LOAN ZIP
NUMBER PROPERTY NAME ADDRESS CITY STATE CODE
-------- -------------------------------------------- -------------------------------- -------------- ------- -------
2 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
4 Westfield Shoppingtown South County ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
6 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10 Milestone Hotel Portfolio Various Various Various Various
11 ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
14 Centre at Westbank ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16 Oceanview Village Shopping Center ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
19 Malibu Bella Mar Apartments ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
20 One Sound ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
21 Clinton Apartments ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
27 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
30 The Chateau ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
31 Federal Express Building ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
39 ▇▇ ▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
40 Best Western - Green Tree ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
45 ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
47 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
56 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
57 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
63 Citibank Building ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
66 Montagnet Various Various LA Various
68 ▇▇▇▇▇▇ Corners Apartments 100-102 and ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
69 ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
70 The ▇▇▇▇▇▇▇ Office Building ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
74 The ▇▇▇▇▇▇▇▇ 663 - ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
80 West Little York ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
81 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
82 Eckerd - Morganton ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
83 East Wenatchee Storage ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
85 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Various
90 CompUSA ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
92 Bottlebrush Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇
93 Gulf Breeze Mobile Home Park ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
A-2
MORTGAGE REMAINING
LOAN CUT-OFF MONTHLY MORTGAGE TERM TO
NUMBER PROPERTY NAME DATE BALANCE P&I PAYMENT RATE MATURITY MATURITY
-------- ------------------------------------------- -------------- ----------- -------- ---------- ----------
2 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 114,771,488.53 662,004.86 5.6250 118 3/11/2014
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ County 85,907,770.66 459,618.95 4.9610 119 10/11/2033
6 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 62,500,000.00 372,712.32 5.9500 60 11/11/2008
▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 35,000,000.00 154,364.58 5.2200 119 10/11/2013
10 Milestone Hotel Portfolio 34,995,000.00 280,905.62 6.7800 84 11/11/2010
11 ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 33,975,055.33 213,786.34 6.4500 119 10/11/2013
14 Centre at Westbank 21,261,988.80 126,491.91 5.9200 119 10/11/2013
16 Oceanview Village Shopping Center 19,953,487.34 127,282.95 6.5660 117 8/11/2033
19 Malibu Bella Mar Apartments 16,000,000.00 94,492.71 5.8600 120 11/11/2013
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 16,000,000.00 95,414.36 5.9500 120 11/11/2013
21 Clinton Apartments 14,937,576.22 89,536.71 5.9900 119 10/11/2013
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 11,872,994.34 63,881.77 5.0000 118 9/11/2013
27 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 10,682,287.27 67,209.62 6.4400 118 9/11/2013
30 The Chateau Office 9,255,622.50 56,432.80 6.1500 119 10/11/2013
31 Federal Express Building 9,142,829.33 56,100.30 6.2100 119 10/11/2033
▇▇ ▇▇ ▇▇▇▇▇▇ ▇ 7,525,000.00 44,537.27 5.8800 120 11/11/2013
40 Best Western - Green Tree 7,336,114.15 51,205.25 6.8500 119 10/11/2013
43 Park Villa Apartments 7,094,790.96 44,643.62 6.4500 119 10/11/2013
45 ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 6,787,052.52 39,985.85 5.8200 82 9/11/2010
47 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 6,687,242.91 39,397.83 5.8200 82 9/11/2010
56 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 5,076,234.72 31,477.62 6.3100 119 10/11/2013
57 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,940,903.52 29,614.13 5.9800 118 9/11/2013
63 Citibank Building 4,150,000.00 26,367.43 6.5500 120 11/11/2013
66 Montagnet 4,000,000.00 25,467.14 6.5700 120 11/11/2013
68 ▇▇▇▇▇▇ Corners Apartments 3,896,435.54 22,438.29 5.6200 119 10/11/2013
69 ▇▇▇▇ ▇ ▇▇▇▇▇▇ 3,497,642.82 22,700.93 6.7500 119 10/11/2013
70 The ▇▇▇▇▇▇▇ Office Building 3,391,395.16 20,868.09 6.2200 117 8/11/2013
74 The ▇▇▇▇▇▇▇▇ 3,150,000.00 19,518.18 6.3100 120 11/11/2013
80 West Little York 2,364,683.51 15,308.81 6.7100 117 8/11/2013
81 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 2,246,650.02 14,803.46 6.8900 118 9/11/2013
82 Eckerd - Morganton 2,208,476.69 14,216.69 6.6700 119 10/11/2013
83 East Wenatchee Storage 1,995,214.98 13,805.60 6.7400 118 9/11/2013
85 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,945,581.38 12,544.14 6.6700 117 8/11/2013
90 CompUSA 1,048,787.40 7,089.68 6.5000 119 10/11/2013
92 Bottlebrush Apartments 986,203.32 5,981.17 6.1000 119 10/11/2013
93 Gulf Breeze Mobile Home Park 980,000.00 5,812.74 5.9000 84 11/11/2010
A-3
MORTGAGE REMAINING INTEREST PRIMARY MORTGAGE
LOAN AMORTIZATION ACCRUAL ADMINISTRATIVE SERVICING GROUND LOAN
NUMBER PROPERTY NAME TERM BASIS COST RATE FEE LEASE? SELLER
-------- ---------------------------------------------- ------------ -------- -------------- --------- ---------- ---------
2 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 358 Act/360 0.0316 0.0300 Fee Simple UBS
4 Westfield Shoppingtown South County 359 Act/360 0.0316 0.0300 Fee Simple UBS
6 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 360 Act/360 0.0316 0.0300 Leasehold UBS
▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ 0 Act/360 0.0316 0.0300 Fee Simple UBS
10 Milestone Hotel Portfolio 216 Act/360 0.0316 0.0300 Fee Simple UBS
11 55 West 125th Street 359 Act/360 0.0316 0.0300 Fee Simple UBS
14 Centre at Westbank 359 Act/360 0.0316 0.0300 Fee Simple UBS
16 Oceanview Village Shopping Center 357 Act/360 0.0316 0.0300 Fee Simple UBS
19 Malibu Bella Mar Apartments 360 Act/360 0.0316 0.0300 Fee Simple UBS
20 One Sound Shore Drive 360 Act/360 0.0316 0.0300 Fee Simple UBS
21 Clinton Apartments 359 Act/360 0.0316 0.0300 Fee Simple UBS
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇/▇▇▇ 0.0316 0.0300 Leasehold UBS
27 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 358 Act/360 0.0316 0.0300 Fee Simple UBS
30 The Chateau Office 359 Act/360 0.0316 0.0300 Fee Simple UBS
31 Federal Express Building 359 Act/360 0.0316 0.0300 Fee Simple UBS
▇▇ ▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇ Act/360 0.0316 0.0300 Fee Simple UBS
40 Best Western - Green Tree 299 Act/360 0.0316 0.0300 Fee Simple UBS
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇/▇▇▇ 0.0316 0.0300 Fee Simple UBS
45 ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 358 Act/360 0.0316 0.0300 Fee Simple UBS
47 170 ▇▇▇▇▇▇▇▇ Avenue 358 Act/360 0.0316 0.0300 Fee Simple UBS
56 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 359 Act/360 0.0316 0.0300 Fee Simple UBS
57 6133 Bristol Parkway 358 Act/360 0.0316 0.0300 Fee Simple UBS
63 Citibank Building 360 Act/360 0.0316 0.0300 Fee Simple UBS
66 Montagnet 360 Act/360 0.0316 0.0300 Fee Simple UBS
68 ▇▇▇▇▇▇ Corners Apartments 359 Act/360 0.0316 0.0300 Fee Simple UBS
69 2101 K Street 359 Act/360 0.0316 0.0300 Fee Simple UBS
▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇/▇▇▇ 0.0316 0.0300 Fee Simple UBS
74 The ▇▇▇▇▇▇▇▇ 360 Act/360 0.0316 0.0300 Leasehold UBS
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Act/360 0.0316 0.0300 Fee Simple UBS
81 5000 ▇▇▇▇▇ Drive 358 Act/360 0.0316 0.0300 Fee Simple UBS
82 Eckerd - Morganton 359 Act/360 0.0316 0.0300 Fee Simple UBS
83 East Wenatchee Storage 298 Act/360 0.0316 0.0300 Fee Simple UBS
85 ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 357 Act/360 0.0316 0.0300 Fee Simple UBS
90 CompUSA 299 Act/360 0.0316 0.0300 Fee Simple UBS
92 Bottlebrush Apartments 359 Act/360 0.0316 0.0300 Fee Simple UBS
93 Gulf Breeze Mobile Home Park 360 Act/360 0.0316 0.0300 Fee Simple UBS
A-4
CREDIT
LEASE LOAN
(TENANT,
MORTGAGE ARD ANTICIPATED GUARANTOR CROSS MORTGAGE
LOAN MORTGAGE REPAYMENT ARD OR RATED COLLATE- LOAN SELLER
NUMBER PROPERTY NAME DEFEASANCE LOAN DATE SPREAD PARTY) RALIZED LOAN ID
-------- ---------------------------- ------------ -------- ----------- ------------ ----------- ---------- -----------
2 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Defeasance Yes 9/11/2013 Contract No No 10011
Rate + 2%
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Yes 10/11/2013 4% + No No 9988
County Greater of
(Contract
Rate or
Treasury)
6 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Defeasance No No No 9999
9 Liberty Tree Mall Defeasance No No No 9996
10 Milestone Hotel Portfolio Defeasance No No No 9956
11 55 West 125th Street Defeasance No No No 9855
14 Centre at Westbank Defeasance No No No 9947
16 Oceanview Village Shopping Defeasance Yes 8/11/2013 2% + No No 9824
Center Greater of
(Contract
Rate or
Treasury)
19 Malibu Bella Mar Apartments Defeasance No No No 9915
20 One Sound Shore Drive Defeasance No No No 9972
21 Clinton Apartments Defeasance ▇▇ ▇▇ ▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ No No No 9864
27 5805 ▇▇▇▇▇▇▇▇▇ Boulevard Defeasance No No No 9858
30 The Chateau Office Defeasance No No No 9900
31 Federal Express Building Defeasance Yes 10/11/2013 2% + No No 9840
Greater of
(Contract
Rate or
Treasury)
39 43 Avenue C Defeasance No No No 9985
40 Best Western - Green Tree Defeasance ▇▇ ▇▇ ▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ No No No 9919
45 ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Defeasance/ No No No 7584
Fixed Penalty
47 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Defeasance/ No No No 7585
Fixed Penalty
A-5
CREDIT
LEASE LOAN
(TENANT,
MORTGAGE ARD ANTICIPATED GUARANTOR CROSS MORTGAGE
LOAN MORTGAGE REPAYMENT ARD OR RATED COLLATE- LOAN SELLER
NUMBER PROPERTY NAME DEFEASANCE LOAN DATE SPREAD PARTY) RALIZED LOAN ID
-------- ---------------------------- ------------ -------- ----------- ------------ ----------- ---------- -----------
56 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Defeasance ▇▇ ▇▇ ▇▇ ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ No No No 9686
66 Montagnet Defeasance No No No 9776
68 ▇▇▇▇▇▇ Corners Apartments Defeasance No No No 9867
69 2101 K Street Defeasance No No No 9949
70 The ▇▇▇▇▇▇▇ Office Building Defeasance No No No 9868
74 The ▇▇▇▇▇▇▇▇ Defeasance No No No 9866
80 West Little York Greater of No No No 9835
YM or 1%
81 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Defeasance No No No 9691
82 Eckerd - Morganton Defeasance No No No 9914
83 East Wenatchee Storage Defeasance ▇▇ ▇▇ ▇▇ ▇▇▇▇
▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and
919-921 ▇▇▇▇▇▇▇▇▇▇ Avenue Defeasance No No No 8965
90 CompUSA Defeasance ▇▇ ▇▇ ▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ No No No 9917
93 Gulf Breeze Mobile Home Park Defeasance No No No 9925
A-6
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, 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 November 2003.
(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 by prudent
institutional commercial and multifamily mortgage lenders, as of the
date of its origination, such Mortgage Loan complied in all material
respects with, or was exempt from, all requirements of federal, state
or local law relating to the origination of such Mortgage Loan.
(iii) Ownership of Mortgage Loan. The Seller owns
such Mortgage Loan, has good 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; 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
B-1
agreements executed in favor of the lender in connection therewith is
the legal, valid and binding obligation of the maker thereof (subject
to the non-recourse provisions therein and any state anti-deficiency
legislation), enforceable in accordance with its terms, except that (A)
such enforcement may be limited by (1) bankruptcy, insolvency,
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, expenses or claims suffered or
incurred by the mortgagee under such Mortgage Loan by reason of or in
connection with and to the extent of (A) any material intentional fraud
or material intentional misrepresentation by the related Mortgagor and
(B) any breach on the part of the related Mortgagor of any
environmental representations, warranties and covenants contained in
the related Mortgage Loan documents; provided that, instead of any
breach described in clause (B) of this sentence, the related Mortgagor
or such other Person may instead be responsible for liabilities, costs,
losses, damages, expenses and claims resulting from a breach of the
obligations and indemnities of the related Mortgagor under the related
Mortgage Loan documents relating to hazardous or toxic substances,
radon or compliance with environmental laws.
(vi) No Right of Rescission. As of the date of
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 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 to rescission with respect to such Mortgage Note,
Mortgage(s) or other agreements executed in connection with such
Mortgage Loan; and, to the actual knowledge of the Seller, no such
claim has been asserted.
(vii) Assignments. The assignment of the related
Mortgage(s) and Assignment(s) of Leases to the Trustee constitutes the
legal, valid, binding and, 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
B-2
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).
(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 and all
buildings thereon, 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. With respect to each 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 personal property
identified therein or on a schedule attached thereto, which is owned by
the Mortgagor and is used in, and reasonably necessary to, the
operation of the related Mortgaged Property.
(ix) Financing Statements. If the related Mortgaged
Property is operated as a hospitality property, the related Seller has,
or has caused to be, filed and/or recorded, or submitted for filing
and/or recording, in appropriate public filing and recording offices,
all UCC-1 financing statements necessary to create and perfect a
security interest in and lien on the items of personal property
described therein (such description being generally consistent with the
practices of prudent commercial mortgage lenders) (which personal
property includes all furniture, fixtures, equipment and other personal
property located at the subject Mortgaged Property) that are owned by
the
B-3
related Mortgagor and located at, and necessary or material to the
operation of, the subject Mortgaged Property, to the extent perfection
may be effected pursuant to applicable law by recording or filing.
(x) Taxes and Assessments. All taxes, governmental
assessments, water charges, sewer rents or similar governmental charges
(which, in all such cases, were directly related to the related
Mortgaged Property and could constitute liens on the related Mortgaged
Property prior to the lien of the related Mortgage), together with all
ground rents, that prior to the related Due Date in November 2003
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 Mortgaged Property and could constitute
liens on the Mortgaged Property prior to the lien of the 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.
(xi) 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. If such Mortgage Loan has a Cut-off Date
Balance of $15 million or more, then (except for certain amounts not
greater than amounts which would be considered prudent by an
institutional commercial mortgage lender with respect to a similar
mortgage loan and which are set forth in the related Mortgage or other
loan documents relating to such Mortgage Loan, and subject to any
rights of the lessor under any related Ground Lease) the related
Mortgage Loan documents provide that any condemnation awards 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.
(xii) Title Insurance. Each related Mortgaged
Property is covered by an ALTA (or its equivalent) lender's title
insurance policy issued by a nationally recognized title insurance
company, insuring that each related Mortgage is a valid first lien on
such Mortgaged Property in the original principal amount of such
Mortgage Loan after all advances of principal, subject only to
Permitted Encumbrances or there is a binding commitment or binding pro
forma from a title insurer qualified and/or licensed in the applicable
jurisdiction, as required, to issue such policy; such title insurance
policy, if issued, is in full force and effect, all premiums have been
paid, is freely assignable and will inure to the benefit of the Trustee
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 policy, if issued;
and neither the Seller nor, to the best of the Seller's knowledge, 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
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the relevant jurisdiction) (A) access to a public road, (B) that there
is no material encroachment by any improvements 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.
(xiii) Property Insurance. As of the date of its
origination and, to the best of the Seller's knowledge, as of the
Closing Date, all insurance required under each related Mortgage
(except where a tenant under a lease is permitted to insure or
self-insure) was in full force and effect with respect to each related
Mortgaged Property; such insurance included (A) "all risk" or fire and
extended perils insurance, in an amount (subject to a customary
deductible) at least equal to the lesser of (i) 100% of the full
insurable replacement cost of the improvements located on the related
Mortgaged Property and (ii) the initial 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
in or "seismic zone" 3 or 4 and (2) a seismic assessment revealed a
maximum probable or bounded loss in excess of 20% of the amount of the
estimated replacement cost of the improvements on such Mortgaged
Property, earthquake insurance; it is an event of default under such
Mortgage Loan if the above-described insurance coverage is not
maintained by the related Mortgagor (except where a tenant under a
lease is permitted to insure or self-insure), and any reasonable
out-of-pocket costs and expenses incurred by the mortgagee in
connection with such default in obtaining such insurance coverage are
recoverable from the related Mortgagor; the related Mortgage Loan
documents require that the related insurance policies provide that they
may not be terminated without at least 10 days' prior notice to the
mortgagee and, to the Seller's knowledge, it has not received any such
notice; the related insurance certificates (other than those limited to
liability protection) name the mortgagee and its successors as
mortgagee or loss payee; no notice of termination or cancellation with
respect to any such insurance policy has been received by the Seller;
all premiums under any such insurance policy have been paid through the
related Due Date in November 2003; all such insurance policies 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); 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
rights of the lessor under any related Ground Lease, 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
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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 (xiii), with
regard to insurance for acts of terrorism, any such insurance and the
amount thereof may be limited by the commercial availability of such
coverage, whether the mortgagee may reasonably require such insurance,
certain limitations with respect to the cost thereof and/or whether
such hazards are at the time commonly insured against for property
similar to the related Mortgaged Property located in or around the
region in which the Mortgaged Property is located.
(xiv) No Material Defaults. Other than payments due
but not yet 30 days or more delinquent, there is, to the actual
knowledge of the Seller, (A) no material default, breach, violation or
event of acceleration existing under the related Mortgage Note, the
related Mortgage or other loan documents relating to such Mortgage
Loan, and (B) no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration under any
of such documents; provided, however, that this representation and
warranty does not cover any default, breach, violation or event of
acceleration 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. If the Seller had knowledge of any
material default, breach, violation or event of acceleration under any
of such documents, the Seller has not waived any such material default,
breach, violation or event of acceleration. 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.
(xv) No Payment Delinquency. As of the Closing Date,
such Mortgage Loan is not, and in the prior 12 months (or since the
date of origination if such Mortgage Loan has been originated within
the past 12 months), has not been, 30 days or more past due in respect
of any Monthly Payment.
(xvi) Interest Accrual Basis. Such Mortgage Loan
accrues interest on an Actual/360 Basis or on a 30/360 Basis; and such
Mortgage Loan accrues interest (payable monthly in arrears) at a fixed
rate of interest throughout the remaining term thereof (except if such
Mortgage Loan is an ARD Mortgage Loan, in which case the accrual rate
for interest will increase after its Anticipated Repayment Date, and
except in connection with the occurrence of a default and the accrual
of default interest).
(xvii) Subordinate Debt. 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 to secure any
other promissory note or debt (other than another Mortgage Loan in the
Trust Fund.
(xviii) Qualified Mortgage. Such Mortgage Loan is a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code. Accordingly, either as
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of the date of origination or the Closing Date, the fair market value
of the real property securing such Mortgage Loan was not less than 80%
of the "adjusted issue price" (within the meaning of the REMIC
Provisions) of such Mortgage Loan. For purposes of the preceding
sentence, the fair market value of the real property securing such
Mortgage Loan was first reduced by the amount of any lien on such real
property that is senior to the lien that secures such Mortgage Loan,
and was further reduced by a proportionate amount of any lien that is
on a parity with the lien that secures such Mortgage Loan.
(xix) Prepayment Consideration. Prepayment Premiums
and Yield Maintenance Charges payable with respect to such Mortgage
Loan, if any, constitute "customary prepayment penalties" within the
meaning of Treasury regulations section 1.860G-1(b)(2).
(xx) Environmental Conditions. With respect to each
Mortgage Loan, 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 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 any 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.
(xxi) 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.
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(xxii) Bankruptcy. As of the date of origination of
such Mortgage Loan, to the Seller's knowledge, after due inquiry, the
related Mortgagor was not a debtor in any bankruptcy, reorganization,
insolvency or comparable proceeding.
(xxiii) Loan Security. Such Mortgage Loan is secured
by a Mortgage on either a fee simple interest or a leasehold estate in
a commercial property or multifamily property, including the related
Mortgagor's interest in the improvements on the related Mortgaged
Property.
(xxiv) Amortization. Such Mortgage Loan does not
provide for negative amortization unless such Mortgage Loan is an ARD
Mortgage Loan, in which case it may occur only after the Anticipated
Repayment Date.
(xxv) Whole Loan. Such Mortgage Loan is a whole loan,
contains no equity participation by the lender or shared appreciation
feature and does not provide for any contingent interest in the form of
participation in the cash flow of the related Mortgaged Property.
(xxvi) Due-on-Encumbrance. Each Mortgage Loan
contains provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without the prior written
consent of the mortgagee or Rating Agency confirmation that an Adverse
Rating Event would not occur, any related Mortgaged Property or direct
controlling interest therein, is directly encumbered in connection with
subordinate financing. To the Seller's knowledge, no related Mortgaged
Property is encumbered in connection with subordinate financing;
however, if the related Mortgaged Property is listed on the Schedule of
Exceptions to the Representations and Warranties attached hereto, then
certain direct controlling equity holders in the related Mortgagor have
the right to incur, or are known to the Seller to have incurred, debt
secured by their ownership interest in the related Mortgagor.
(xxvii) Due-on-Sale. Except with respect to transfers
of certain non-controlling and/or minority interests in the related
Mortgagor as specified in the related Mortgage 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 (which conditions are consistent with
the practices of prudent commercial mortgage lenders).
B-8
(xxviii) Mortgagor Concentration. Such Mortgage Loan,
together with any other Mortgage Loan made to the same Mortgagor or to
an Affiliate of such Mortgagor, does not represent more than 5% of the
Initial Pool Balance.
(xxix) Waivers; Modifications. Except as set forth in
a written instrument included in the related Mortgage File, the (a)
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 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 and adversely interferes with the
mortgagee's realization of the principal benefits and/or security
intended to be provided by such document or instrument.
(xxx) Inspection. Each related Mortgaged Property was
inspected by or on behalf of the related originator during the
six-month period prior to the related origination date.
(xxxi) Property Release. The terms of the related
Mortgage Note, Mortgage(s) or other loan document securing such
Mortgage Loan do not provide for the release from the lien of such
Mortgage of any material portion of the related Mortgaged Property that
is necessary to the operation of such Mortgaged Property and 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 110% of the amount of such Mortgage
Loan allocated to the related Mortgaged Property subject to the
release.
(xxxii) 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 prudent institutional commercial
and multifamily mortgage lenders 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 (xii) 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
B-9
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 (xii) above (or an
endorsement thereto)), and no improvements on adjoining properties
encroached upon such Mortgaged Property to any material extent.
(xxxiii) Property Financial Statements. The related
Mortgagor has covenanted in the related Mortgage Loan documents to
deliver to the mortgagee quarterly and/or annual operating statements
and rent rolls of each related Mortgaged Property.
(xxxiv) Single Purpose Entity. If such Mortgage Loan
has a Cut-off Date Balance in excess of $15 million, then the related
Mortgagor is obligated by its organizational documents and/or the
related Mortgage Loan documents to be a Single Purpose Entity for so
long as such Mortgage Loan is outstanding; and if such Mortgage Loan
has a Cut-off Date Balance less than $15 million, the related Mortgagor
is obligated by its organizational documents and/or the related
Mortgage Loan documents to own the related Mortgaged Property and no
other material asset unrelated to such Mortgaged Property and, except
as permitted by the related Mortgage Loan documents, not to incur other
financing for so long as such Mortgage Loan is outstanding.
(xxxv) Advancing of Funds. No advance of funds has
been made, directly or indirectly, by the originator or the Seller to
the related Mortgagor other than pursuant to the related Mortgage Note;
and, to the actual knowledge of the Seller, no funds have been received
from any Person other than such Mortgagor for or on account of payments
due on the related Mortgage Note.
(xxxvi) Legal Proceedings. To the Seller's actual
knowledge, there are no pending actions, suits or proceedings by or
before any court or governmental authority against or affecting the
related Mortgagor or any related Mortgaged Property that, if determined
adversely to such Mortgagor or Mortgaged Property, would materially and
adversely affect the value of such Mortgaged Property or the ability of
such Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvii) Originator Duly Authorized. To the extent
required under applicable law, 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.
(xxxviii) 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
B-10
following a default or in connection with the release of liens securing
such Mortgage Loan.
(xxxix) 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. The security
interest/lien on each material item of collateral for such Mortgage
Loan has been assigned to the Trustee.
(xl) Flood Hazard Insurance. None of the improvements
on any related Mortgaged Property are located in a flood hazard area as
defined by the Federal Insurance Administration or, if they are, the
related Mortgagor has obtained flood hazard insurance.
(xli) Engineering Assessments. With respect to each
Mortgage Loan, 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.
(xlii) 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.
(xliii) 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.
(xliv) Origination, Servicing and Collection
Practices. The origination, servicing and collection practices used by
the Seller or any prior holder of the related Mortgage Note have been
in all respects legal and have met customary industry standards.
B-11
(xlv) Fee Simple. Except for Mortgage Loans covered
by the representation and warranty in the immediately following
paragraph (xlvi), such Mortgage Loan is secured in whole or in material
part by a fee simple interest.
(xlvi) Leasehold Interest Only. If such Mortgage Loan
is secured in whole or in material part by the interest of the related
Mortgagor as a lessee under a Ground Lease but not by the related fee
interest, then:
(A) such Ground Lease or a memorandum thereof has
been or will be duly recorded and such Ground
Lease permits the interest of the lessee
thereunder to be encumbered by the related
Mortgage or, if consent of the lessor thereunder
is required, it has been obtained prior to the
Closing Date;
(B) upon the foreclosure of such Mortgage Loan (or
acceptance of a deed in lieu thereof), the
Mortgagor's interest in such Ground Lease is
assignable to the Trustee 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 such Mortgage Loan,
and to the actual knowledge of the Seller, at the
Closing Date, such Ground Lease is in full force
and effect; and 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
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lessor thereunder to give notice of any default
by the lessee to such mortgagee; and such Ground
Lease, or an estoppel or consent letter received
by the mortgagee under such Mortgage Loan from
the lessor, further provides either (1) that no
notice of termination given under such Ground
Lease is effective against such mortgagee unless
a copy has been delivered to the mortgagee in the
manner described in such Ground Lease, estoppel
or consent letter or (2) that upon any
termination of such Ground Lease the lessor will
enter into a new lease with such mortgagee upon
such mortgagee's request;
(G) based upon the related policy of title insurance,
the ground lessee's interest in such Ground Lease
is not subject to any liens or encumbrances
superior to, or of equal priority with, the
related Mortgage, other than the related ground
lessor's related fee interest and any Permitted
Encumbrances;
(H) the mortgagee under such Mortgage Loan is
permitted a reasonable opportunity to cure any
curable default under such Ground Lease (not less
than the time provided to the related lessee
under such ground lease to cure such default)
before the lessor thereunder may terminate or
cancel such Ground Lease;
(I) such Ground Lease has a currently effective term
(exclusive of any unexercised extension options
set forth therein) that extends not less than 20
years beyond the Stated Maturity Date of such
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 such Mortgage Loan, together with any accrued
interest thereon;
(K) such Ground Lease does not impose any
restrictions on use or subletting which would be
viewed as commercially unreasonable by a prudent
commercial mortgage lender;
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(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.
(xlvii) Fee Simple and Leasehold Interest. If such
Mortgage Loan is secured in whole or in part by the interest of the
related Mortgagor under a Ground Lease and by the related fee interest,
then (A) such fee interest is subject, and subordinated of record, to
the related Mortgage, (B) the related Mortgage does not by its terms
provide that it will be subordinated to the lien of any other mortgage
or other lien upon such fee interest, and (C) upon occurrence of a
default under the terms of the related Mortgage by the related
Mortgagor, the mortgagee under such Mortgage Loan has the right
(subject to the limitations and exceptions set forth in paragraph (v)
above) to foreclose upon or otherwise exercise its rights with respect
to such fee interest.
(xlviii) 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.
(xlix) 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
B-14
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.
(l) 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 this Agreement with respect to primary servicers that
are to be sub-servicers of the Master Servicer, (B) as has been
conveyed to Wachovia, in its capacity as a primary servicer, or (C) as
has been terminated.
(li) Mechanics' and Materialmen's Liens. To the
Seller's knowledge, 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 (xii) above (or an endorsement thereto)). The Seller has not
received actual notice with respect to such Mortgage Loan that any
mechanics' and materialmen's liens have encumbered such Mortgaged
Property since origination that have not been released, bonded, insured
against or escrowed for.
(lii) 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 eleventh day of each month.
(liii) 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.
(liv) 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.
B-15
(lv) 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.
(lvi) No Undisclosed Common Ownership. To the
Seller's knowledge, no two properties securing Mortgage Loans are
directly or indirectly under common ownership except to the extent that
such common ownership has been specifically disclosed in the Mortgage
Loan Schedule.
(lvii) Mortgage 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.
(lviii) Usury. Such Mortgage Loan complied with or
was exempt from all applicable usury laws in effect at its date of
origination.
(lix) ARD Mortgage Loan. If such Mortgage Loan is an
ARD Mortgage Loan and has a Cut-off Date Balance of $15,000,000 or
more, then:
(A) the related Anticipated Repayment Date is not
less than five years from the origination date
for such Mortgage Loan;
(B) such Mortgage Loan provides that from the
related Anticipated Repayment Date through the
maturity date for such Mortgage Loan, all excess
cash flow (net of normal monthly debt service on
such Mortgage Loan, monthly expenses reasonably
related to the operation of the related
Mortgaged Property, amounts due for reserves
established under such Mortgage Loan, and
payments for any other expenses, including
capital expenses, related to such Mortgaged
Property which are approved by mortgagee) will
be applied to repay principal due under such
Mortgage Loan; and
(C) no later than the related Anticipated Repayment
Date, the related Mortgagor is required (if it
has not previously done so) to enter into a
"lockbox agreement" whereby all revenue from the
related Mortgaged Property will be deposited
directly into a designated account controlled by
the mortgagee under such Mortgage Loan.
(lx) 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
B-16
Enforcement Act of 1989, in either case as in effect on the date such
Mortgage Loan was originated.
B-17
SCHEDULE I TO EXHIBIT B
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (V): LOAN DOCUMENT STATUS.
----------------------------------------------------------------------------------------------------------------------
16 Oceanview Village Shopping Center The mortgage loan is recourse to a principal of the
borrower for the first $950,000 until Hollywood
Entertainment Corp. is in occupancy, open for
business and paying rent.
----------------------------------------------------------------------------------------------------------------------
19 Malibu Bella Mar Apartments The mortgage loan is recourse to a principal of the
borrower until the mortgaged property has achieved
a debt service coverage ratio of 1.30x on a
trailing 9 month basis.
----------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇ ▇▇▇▇▇▇ ▇; The mortgage loan is recourse to a principal of the
borrower.
40 Best Western Green-Tree;
68 2101 K Street;
81 Eckerd - Morganton;
91 Bottlebrush Apartments
----------------------------------------------------------------------------------------------------------------------
65 Montagnet The mortgage loan is recourse to a principal of the
borrower for up to $1,200,000 relating to the
Louisiana Department of Social Services renewing
its lease and up to $130,500 for shortfalls in
insurance proceeds.
----------------------------------------------------------------------------------------------------------------------
73 The ▇▇▇▇▇▇▇▇ The mortgage loan is recourse to a principal of the
borrower for the first $250,000, with standard
carveouts thereafter.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XI): NO MATERIAL DAMAGE.
----------------------------------------------------------------------------------------------------------------------
82 East Wenatchee Storage A 10-foot wide strip of unimproved land along the
southwestern portion of the mortgaged property is
the subject of a condemnation proceeding.
----------------------------------------------------------------------------------------------------------------------
B-18
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XIII): PROPERTY INSURANCE.
----------------------------------------------------------------------------------------------------------------------
14 Centre at Westbank Nothwithstanding the requirements under the related
loan documents, the borrower has obtained the
following insurance: Lexington (AAA/A++XV) covers
the first $15,000,000 of "all risk" insurance, and
Nutmeg (AA-/A+XV), Westchester (A+/AX) and ▇▇▇▇ &
▇▇▇▇▇▇ (BBB/A-XI) provide the remaining $40,000,000
of coverage on a 40%, 40% and 20% basis,
respectively.
----------------------------------------------------------------------------------------------------------------------
21 Clinton Apartments Nothwithstanding the requirements under the related
loan documents, the borrower has obtained the
following insurance: Lexington (AAA/A++XV),
Hartford (AA/A+XV) and ▇▇▇▇ & ▇▇▇▇▇▇ (BBB/A-XI)
provide "all risk" coverage on a 50%, 30% and 20%
basis, respectively.
----------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Nothwithstanding the requirements under the related
loan documents, the borrower has obtained the
following insurance: Arch Specialty (A-XII) covers
the first $1,000,000 of liability and excess
insurance, up to two occurrences annually. Zurich
(A+/AXV) covers the remainder. Upon renewal, all
insurance is required to be provided by companies
that have a claims paying ability rating of at
least "A:X" from A.M. Best Company and "A" by S&P.
----------------------------------------------------------------------------------------------------------------------
31 Federal Express Building Nothwithstanding the requirements under the related
loan documents, the borrower has obtained the
following insurance: Axa (AA-/AXIII) covers the
first $4,000,000 of liability and excess insurance,
up to two occurrences annually. Royal (BBB/A-IX)
covers the remainder.
----------------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------------
B-19
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XVII): SUBORDINATE DEBT.
----------------------------------------------------------------------------------------------------------------------
All Properties The loan documents allow the borrower to incur certain
trade payables up to a predetermined amount, which is
generally less than 5% of the loan amount.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXVI): DUE-ON-ENCUMBRANCE.
----------------------------------------------------------------------------------------------------------------------
11 ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Non-recourse subordinate debt secured by a pledge
of 100% of the equity interests in the borrower
(mezzanine debt) in the principal amount of
$6,000,000 was incurred. The subordinate lender
entered into an intercreditor agreement with the
lender. The subordinate lender must obtain consent
of the rating agencies before enforcing on its
equity pledge, unless certain conditions contained
in the intercreditor agreement are satisfied,
including that the transferee meet certain
requirements.
----------------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXVII): DUE-ON-SALE.
----------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ The borrower is permitted to make certain limited
transfers of controlling interests of itself to
certain individuals and/or entities, provided that
certain conditions have been fully satisfied.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXVIII): MORTGAGOR CONCENTRATION.
----------------------------------------------------------------------------------------------------------------------
2 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ The mortgage loan represents 8.20% of initial pool
balance.
----------------------------------------------------------------------------------------------------------------------
4 Westfield Shoppingtown South County The mortgage loan represents 6.14% of initial pool
balance.
----------------------------------------------------------------------------------------------------------------------
B-20
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXXI): PROPERTY RELEASE.
----------------------------------------------------------------------------------------------------------------------
45 ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Provided that certain conditions set forth in the
mortgage are met, the borrower may include the
mortgaged property in a development plan with the
adjoining property owner which would enable the
adjoining owner to re-develop its property.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XXXII): QUALIFICATIONS; LICENSING; ZONING.
----------------------------------------------------------------------------------------------------------------------
10 Milestone Hotel Portfolio; Certain work must be completed at the related
mortgaged property in order to achieve ADA
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇; compliance, with respect to, among other things,
parking, ramp and/or drinking fountain
56 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; accessibility.
69 The ▇▇▇▇▇▇▇ Office Building
----------------------------------------------------------------------------------------------------------------------
21 Clinton Apartments There are a number of building code violations
against the mortgaged property and the lender
reserved $25,000 to secure the resolution of such
violations.
----------------------------------------------------------------------------------------------------------------------
20 One Sound Shore Drive The related borrower has received violations for
open work permits for certain spaces. Based on a
letter from the related borrower's contractor, all
work to be performed under such permits has been
performed and such work has passed final inspection
by the Town of Greenwich Building Department. The
borrower has covenanted to obtain a final
"sign-off" for the open permits within 60 days of
closing. In addition, the borrower and principals
of the borrower are personally liable for any loss
or damage resulting from the open permits and/or
borrower's failure to obtain the certificates of
occupancy for the open permits.
----------------------------------------------------------------------------------------------------------------------
Missing permanent certificate of occupancy, but a
39 43 Avenue C temporary certificate of occupancy has been
obtained. Additionally, we cannot confirm whether
the use of the ground floor and cellar units comply
with the "Community Use" requirements of the New
York City Zoning Code, and whether the lack of a
524 square foot recreation room on the seventh
----------------------------------------------------------------------------------------------------------------------
B-21
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
67 ▇▇▇▇▇▇ Corners Apartments floor results in the building exceeding the maximum
floor to area ratio.
In the event of a casualty of greater than
two-thirds, the restoration of the mortgaged
property would have to comply with then current
zoning ordinances, and variances would need to be
obtained in order to reconstruct the existing
structures.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXXIV): SINGLE PURPOSE ENTITY.
----------------------------------------------------------------------------------------------------------------------
20 One Sound Shore Drive Neither the related borrower nor any of its members
has an independent director.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLI): ENGINEERING ASSESSMENTS.
----------------------------------------------------------------------------------------------------------------------
4 Westfield Shoppingtown South County The engineering consultant identified $291,900 in
immediate repairs. The borrower is obligated to
complete repairs, but no funds were escrowed.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XLIII): LICENSES; PERMITS AND AUTHORIZATIONS.
----------------------------------------------------------------------------------------------------------------------
20 One Sound Shore Drive The related borrower has received violations for
open work permits for certain spaces. Based on a
letter from the related borrower's contractor, all
work to be performed under such permits has been
performed and such work has passed final inspection
by the Town of Greenwich Building Department. The
borrower has covenanted to obtain a final
"sign-off" for the open permits within 60 days of
closing. In addition, the borrower and principals
of the borrower are personally liable for any loss
or damage resulting from the open permits and/or
borrower's failure to obtain the certificates of
occupancy for the open permits.
----------------------------------------------------------------------------------------------------------------------
39 43 Avenue C Missing permanent certificate of occupancy.
----------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLV): FEE SIMPLE.
----------------------------------------------------------------------------------------------------------------------
6 30 Broad; The mortgaged property is secured by the related
borrower's leasehold interest only.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
----------------------------------------------------------------------------------------------------------------------
B-22
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
73 The ▇▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XLVI)(J): LEASEHOLD INTEREST ONLY.
----------------------------------------------------------------------------------------------------------------------
6 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ In the event that there is a casualty to the
mortgaged property in which all or substantially
all of the mortgaged property is destroyed and the
ground lessee is prohibited by law from restoring
the mortgaged property to the condition that
existed immediately prior to such casualty, the net
casualty insurance proceeds will be applied as
follows: (i) all costs and expenses to clear and
grade the mortgaged property will be paid; (ii)
$8,800,000 will be paid to ground lessor; (iii) an
amount equal to the then outstanding principal
balance of the mortgage loan secured by the
leasehold mortgage will be paid to mortgagee; (iv)
$3,000,000 will be paid to ground lessor; and (v)
the balance will be paid to ground lessee. The
lender obtained a property shortfall insurance
policy with an $8,800,000 limit, which will be
available to pay off the mortgage in the event that
insurance proceeds from the property insurance
policy are not sufficient to pay all amounts due
under the mortgage loan, subject to the limits of
the policy and the satisfaction of certain
conditions therein. Furthermore, the related
ground lessor will be entitled to that portion of
the condemnation proceeds attributable to the fair
market value of the land and the ground lessee
shall be entitled to the value of the unexpired
portion of the ground lessee's leasehold interest,
which ground lease proceeds have been assigned to
the leasehold mortgagee. The ground lease requires
restoration of the mortgaged property if possible,
if not, the ground lessor will receive the
condemnation award allocated to the land with the
leasehold mortgagee receiving the proceeds
allocated to the improvements. The lender obtained
a condemnation shortfall insurance policy with a
$20,000,000 limit, which will be available to pay
off the mortgage in the event that condemnation
proceeds payable to the
----------------------------------------------------------------------------------------------------------------------
B-23
----------------------------------------------------------------------------------------------------------------------
CONTROL
NUMBER PROPERTY ISSUE
----------------------------------------------------------------------------------------------------------------------
leasehold mortgagee are not sufficient, subject to
the policy limit and satisfaction of the conditions
in the policy.
----------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ All casualty proceeds and condemnation awards will
be received by and held by the leasehold
mortgagee. The related ground lessor will be
entitled to that portion of the condemnation
proceeds attributable to the fair market value of
the land and the ground lessee shall be entitled to
the value of the unexpired portion of the ground
lessee's leasehold interest, which ground lease
proceeds have been assigned to the leasehold
mortgagee.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (XLVIII): TAX LOT; UTILITIES.
----------------------------------------------------------------------------------------------------------------------
65 Montagnet The tax lot for the 2237 Poydras parcel includes
other property that is not part of the mortgaged
property. The borrower is required to (a) escrow
with the lender tax payments for such other
property, (b) provide the lender with evidence of
payment of taxes for such other property, and (c)
cause such other property to become a separate tax
lot.
----------------------------------------------------------------------------------------------------------------------
79 West Little York The mortgaged property does not constitute a
separate tax parcel. A proceeding to sever the tax
lot is underway. The borrower is required to (a)
escrow with the lender tax payments for such other
property, (b) provide the lender with evidence of
payment of taxes for such other property, and (c)
cause such other property to become a separate tax
lot.
----------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION (LVI): NO UNDISCLOSED COMMON OWNERSHIP.
----------------------------------------------------------------------------------------------------------------------
27 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; The properties are directly or indirectly under
common ownership.
30 The Chateau Office
----------------------------------------------------------------------------------------------------------------------
45 ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; The properties are directly or indirectly under
common ownership.
47 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------
▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
[Letterhead of Cadwalder, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇]
November 25, 2003
Addressees listed on Schedule A
Re: LB-UBS Commercial Mortgage Trust 2003-C8, Commercial
Mortgage Pass-Through Certificates, Series 2003-C8
----------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 8(j) of the
Mortgage Loan Purchase Agreement, dated as of November 12, 2003 (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 $577,564,510 (the "UBS Mortgage Loans"), pursuant to the MLPA;
(ii) the execution by the Seller of the UBS Indemnification Agreement, dated as
of November 12, 2003 (the "Indemnification Agreement"), by and among the Seller,
UBS Americas Inc. ("UBSAI)," and together with the Seller and UBSPF, 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 November 12, 2003 (the "Underwriting Agreement"), by and among SASC,
▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇") and UBS Securities LLC (together with ▇▇▇▇▇▇,
the "Underwriters") and acknowledged with respect to certain sections by the
Seller and ▇▇▇▇▇▇ Brothers Holdings Inc.
We have also acted as special counsel to UBSAI in connection
with the execution by UBSAI of the Indemnification Agreement and to UBSPF in
connection with the execution by UBSPF of the MLPA.
The MLPA, the Indemnification Agreement and 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, 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. 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 and others in connection with the
preparation and delivery of this letter. We have examined such questions of law
as we have deemed necessary for purposes of these opinions.
We have also assumed that all documents, agreements and
instruments have been duly authorized, executed and delivered by all parties
thereto, that all such parties had the power and legal right to execute and
deliver all such documents, agreements and instruments, and, except as to the
UBS Entities, that such documents, agreements and instruments are legal, valid
and binding obligations of such parties, enforceable against such parties in
accordance with their respective terms. As used herein, "to our knowledge,"
"known to us" or words of similar import mean the actual knowledge, without
independent investigation, of any lawyer in our firm actively involved in the
transactions contemplated by the Agreements.
We express no opinion concerning the laws of any jurisdiction
other than the laws of the State of New York and federal laws (without regard to
conflicts of laws principles) of the United States of America.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The MLPA and the Underwriting Agreement each
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)
C-1-2
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.
2. None of the sale of the UBS Mortgage Loans, the
consummation by the Seller or UBSPF, as
applicable, of any of the other transactions
contemplated by the Agreements to which it is a
party or the execution, delivery and performance
of the terms of the Agreements to which it is a
party by the Seller or UBSPF, as applicable, will
conflict with, or result in the violation of, any
New York State or federal law that is applicable
to the Seller or UBSPF, as applicable.
3. The execution, delivery and performance of the
terms of the Indemnification Agreement by UBSAI
will not conflict with, or result in the
violation of, any New York State or federal law
that is applicable to UBSAI.
4. The execution, delivery and performance by (a)
the Seller of the Agreements, (b) UBSPF of the
MLPA, and (c) UBSAI of the Indemnification
Agreement, and the consummation by the Seller,
UBSPF and UBSAI, as applicable, of the
transactions contemplated under the Agreements,
the MLPA and the Indemnification Agreement,
respectively, 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 (a)
the Agreements, to be obtained on the part of the
Seller, (b) the MLPA, to be obtained by UBSPF and
(c) the Indemnification Agreement to be obtained
by UBSAI, 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.
C-1-3
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,
C-1-4
SCHEDULE A
Structured Asset Securities Corporation II Standard and Poor's Ratings Services, a division of The
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10019 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
UBS Securities LLC ▇▇▇▇▇'▇ Investors Service, Inc.
1285 Avenue of the Americas ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
C-1-5
EXHIBIT C-2
OPINIONS OF IN-HOUSE COUNSEL TO THE SELLER, THE ADDITIONAL PARTY
AND THE CO-INDEMNITOR
[Letterhead of UBS]
November 25, 2003
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series 2003-C8
-------------------------------------------------------------
Ladies and Gentlemen:
I am Executive Director and Counsel of UBS AG. UBS Real Estate
Investments Inc., a Delaware corporation ("UBSREI"), is a wholly owned
subsidiary of UBS AG. I have been asked to deliver this opinion in connection
with (i) the sale by 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 November 12, 2003
(the "Sale Agreement"), by and among UBSREI, UBS Principal Finance LLC and SASC,
(ii) the execution by UBSREI of the Underwriting Agreement, dated as of November
12, 2003, (the "Underwriting Agreement"), by and among SASC, ▇▇▇▇▇▇ Brothers
Inc. ("▇▇▇▇▇▇") and UBS Securities LLC ("UBSS" and, together with ▇▇▇▇▇▇, the
"Underwriters") and acknowledged with respect to certain sections by UBSREI and
▇▇▇▇▇▇ Brothers Holdings Inc., doing business as ▇▇▇▇▇▇ Capital, a division of
▇▇▇▇▇▇ Brothers Holdings Inc. and (iii) the execution by UBSREI of the UBS
Indemnification Agreement, dated as of November 12, 2003, by and among UBSREI,
SASC, UBS Americas Inc. and the Underwriters (the "Indemnification Agreement,"
and, together with the Sale Agreement and the Underwriting Agreement, the
"Agreements"). Capitalized terms used and not otherwise defined herein have the
meanings given to them in the Underwriting 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 articles of incorporation, by-laws and incumbency
resolution adopted by the directors of UBSREI and the Agreements 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 UBSREI, 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 UBSREI, 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 UBSREI,
have the requisite power and authority to consummate the transactions
contemplated by the Agreements and to execute and deliver the
applicable documents.
Based on my review of the foregoing and such other
considerations of law and fact as I believe to be relevant, and subject to the
limitations, assumptions and qualifications set forth herein, I am of the
opinion that:
1. Each of the Agreements has been duly authorized,
executed and delivered by UBSREI.
2. UBSREI is a corporation 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 Agreements.
3. The execution, delivery and performance of the
terms of the Agreements will not result in the breach or violation of
or a default under any material order or decree of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over UBSREI and known to me as being applicable to UBSREI.
4. There is no action, suit or proceeding against, or
investigation of, UBSREI pending or, to my knowledge, threatened
against UBSREI before any court, administrative agency or other
tribunal which, either individually or in the aggregate, (a) asserts
the invalidity of the Agreements, (b) seeks to prevent the consummation
of any of the transactions contemplated by the Agreements or (c) would
materially and adversely affect (i) the performance by UBSREI of its
obligations under, or the validity or enforceability of, the
Agreements, 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 UBSREI or the transactions
contemplated by the Agreements, is required on the part of UBSREI for
the execution, delivery or performance by
C-2-2
UBSREI of the Agreements, except those which have been obtained and are
in full force and effect.
6. The execution, delivery and performance by UBSREI
of, and the consummation of the transactions contemplated by, the
Agreements do not and will not result in a breach of any term or
provision of the organizational documents of UBSREI 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 UBSREI 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 UBSREI pursuant to the terms of any such
agreement or instrument, any of which occurrences, either in any one
instance or in the aggregate, would call into question the validity of
the Agreements or be reasonably likely to impair materially the ability
of UBSREI to perform under the terms of the Agreements.
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 corporation law of the State of
Delaware, as currently in effect, and solely with respect to paragraphs
3 and 4 above, the federal laws of the United States of America, as
currently in effect.
2. I assume no obligation to supplement this opinion
if, after the date hereof, any applicable laws change or I become aware
of any facts that might change the opinions set forth herein.
3. The opinions 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 Agreements, and may not be relied upon by any other person or
entity, without my specific prior written consent.
Sincerely,
▇▇▇▇ ▇▇▇▇▇▇
Executive Director
C-2-3
SCHEDULE A
UBS Securities LLC Standard and Poor's Ratings Services, a division
1285 Avenue of the Americas of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Structured Asset Securities Corporation II
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
C-2-4
[Letterhead of UBS]
November 25, 2003
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series 2003-C8
-------------------------------------------------------------
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 November 12, 2003 (the "Agreement"), by and among SASC,
as purchaser, UBSREI, as seller, and UBSPF, as additional party. Capitalized
terms used and not otherwise defined herein have the meanings given to them in
the Agreement.
I, or others under my supervision, have examined such
documents as I believe are necessary or appropriate for the purposes of this
opinion, including the certificate of formation, incumbency resolution and
limited liability company agreement adopted by the members of UBSPF and the
Agreement and all exhibits thereto. In reaching such opinions, I have assumed
without investigation, except as expressly set forth below, that there are no
facts inconsistent with the assumptions made in paragraphs A through D below.
A. All signatures of parties, other than UBSPF, on
all documents are genuine. Each person executing any such instrument,
document or agreement, whether individually or on behalf of a firm or
other business entity, other than UBSPF, is duly authorized to do so.
B. All documents submitted as original are authentic,
and all photostatic copies, and all copies certified by a governmental
custodian or a party to the transaction, conform to authentic original
documents.
C. All natural persons, including all persons acting
on behalf of a business entity, are legally competent.
C-2-5
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
C-2-6
party or by which it is bound or to which it is subject, or result in
the creation or imposition of any lien upon any property of UBSPF
pursuant to the terms of any such agreement or instrument, any of which
occurrences, either in any one instance or in the aggregate, would call
into question the validity of the Agreement or be reasonably likely to
impair materially the ability of UBSPF to perform under the terms of
the Agreement.
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,
▇▇▇▇ ▇▇▇▇▇▇
Executive Director
C-2-7
SCHEDULE A
UBS Securities LLC Standard and Poor's Ratings Services, a division
1285 Avenue of the Americas of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Structured Asset Securities Corporation II
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
C-2-8
[Letterhead of UBS]
November 25, 2003
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
RE: LB-UBS Commercial Mortgage Trust 2003-C8,
Commercial Mortgage Pass-Through Certificates, Series 2003-C8
-------------------------------------------------------------
Ladies and Gentlemen:
I am Executive Director and Counsel of UBS AG. UBS Americas
Inc., a Delaware corporation ("UBSAI"), is a wholly owned subsidiary of UBS AG,
and I have acted as counsel to UBSAI with respect to certain matters in
connection with the UBS Indemnification Agreement, dated as of November 12, 2003
(the "Indemnification Agreement"), by and among UBS Real Estate Investments
Inc., UBSAI, Structured Asset Securities Corporation II ("Depositor"), ▇▇▇▇▇▇
Brothers Inc. ("▇▇▇▇▇▇") and UBS Securities LLC (together with ▇▇▇▇▇▇, the
"Underwriters"). Capitalized terms not defined herein have the meaning assigned
to them in the Indemnification 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 incorporation and by-laws adopted by the
board of directors of UBSAI and the Indemnification 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 UBSAI, 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 UBSAI, 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 UBSAI,
have the requisite power and authority to consummate the transactions
contemplated by the Indemnification Agreement and to execute and
deliver the applicable documents.
C-2-9
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 Indemnification Agreement has been duly
authorized, executed and delivered by UBSAI.
2. UBSAI is a corporation 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 Indemnification Agreement.
3. The execution, delivery and performance of the
terms of the Indemnification 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 UBSAI and known to me as being applicable to
UBSAI.
4. There is no action, suit or proceeding against, or
investigation of, UBSAI pending or, to my knowledge, threatened against
UBSAI before any court, administrative agency or other tribunal which,
either individually or in the aggregate, (a) asserts the invalidity of
the Indemnification Agreement, (b) seeks to prevent the consummation of
any of the transactions contemplated by the Indemnification Agreement
or (c) would materially and adversely affect the performance by UBSAI
of its obligations under, or the validity or enforceability of, the
Indemnification Agreement.
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 UBSAI or the transactions
contemplated by the Indemnification Agreement, is required on the part
of UBSAI for the execution, delivery or performance by UBSAI of the
Indemnification Agreement, except those which have been obtained and
are in full force and effect.
6. The execution, delivery and performance by UBSAI
of, and the consummation of the transactions contemplated by, the
Indemnification Agreement do not and will not result in the breach of
any term or provision of the certificate of incorporation or by-laws of
UBSAI 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 UBSAI 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 UBSAI pursuant to the terms
of any such agreement or instrument, any of which occurrences, either
in any one instance or in the aggregate, would call into question the
validity of the Indemnification Agreement or be reasonably likely to
impair materially the ability of UBSAI to perform under the terms of
the Indemnification Agreement.
C-2-10
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 corporate 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 Indemnification Agreement, and may not be relied upon by any
other person or entity, without my specific prior written consent.
Sincerely,
▇▇▇▇ ▇▇▇▇▇▇
Executive Director
C-2-11
SCHEDULE A
UBS Securities LLC Standard and Poor's Ratings Services, a division
1285 Avenue of the Americas of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Structured Asset Securities Corporation II
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
C-2-12