EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of June 21, 2005 (the
"Agreement"), between UBS Real Estate Investments Inc. (together with its
successors and permitted assigns hereunder, the "Seller"), UBS Principal Finance
LLC, as an additional party responsible for the Seller's obligations hereunder
(in such capacity, together with its successors and permitted assigns hereunder,
the "Additional Party"), and Structured Asset Securities Corporation II
(together with its successors and permitted assigns hereunder, the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (collectively, the "Mortgage
Loans") as provided herein. The Purchaser intends to deposit the Mortgage Loans,
together with certain other multifamily and commercial mortgage loans (the
"Other Loans"; and, together with the Mortgage Loans, the "Securitized Loans"),
into a trust fund (the "Trust Fund"), the beneficial ownership of which will be
evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates") to be identified as the LB-UBS Commercial
Mortgage Trust 2005-C3, Commercial Mortgage Pass-Through Certificates, Series
2005-C3. One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to the Trust Fund. The Certificates will be
issued pursuant to a Pooling and Servicing Agreement dated as of June 13, 2005
(the "Pooling and Servicing Agreement"), between the Purchaser, as depositor,
▇▇▇▇▇ Fargo Bank, National Association, as master servicer (the "Master
Servicer"), ▇.▇. ▇▇▇▇▇▇ Company, Inc., as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee"), and
ABN AMRO Bank N.V., as fiscal agent. Capitalized terms used but not defined
herein have the respective meanings set forth in the Pooling and Servicing
Agreement, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with ▇▇▇▇▇▇ Brothers
Inc. ("▇▇▇▇▇▇") and UBS Securities LLC ("UBS Securities" 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 UBS Securities
(together in such capacity, the "Placement Agents"), whereby the Purchaser will
sell to the Placement Agents all of the remaining Certificates (other than the
Residual Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
UBS Americas Inc. (the "Co-Indemnitor"), the Purchaser, the Underwriters and the
Placement Agents have entered into an Indemnification Agreement (the
"Indemnification Agreement"), dated as of the date hereof.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit A. The Mortgage Loan Schedule may be amended to reflect the
actual Mortgage Loans accepted by the Purchaser
pursuant to the terms hereof. The Mortgage Loans will have an aggregate
principal balance of $332,728,029 (the "Initial UBS Pool Balance") as of the
close of business on the Cut-off Date, after giving effect to any and all
payments of principal due thereon on or before such date, whether or not
received. The purchase and sale of the Mortgage Loans shall take place on June
30, 2005 or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The consideration for the Mortgage Loans shall
consist of: (A) a cash amount equal to a percentage (mutually agreed upon by the
parties hereto) of the Initial UBS Pool Balance, plus interest accrued on each
Mortgage Loan at the related Mortgage Rate (net of the related Administrative
Cost Rate), for the period from and including June 11, 2005 up to but not
including the Closing Date, which cash amount shall be paid to the Seller or its
designee by wire transfer in immediately available funds (or by such other
method as shall be mutually acceptable to the parties hereto) on the Closing
Date; and (B) a 16.91813% Percentage Interest in each Class of Residual Interest
Certificates (all such Residual Interest Certificates, the "Seller's Residual
Interest Certificates").
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction or waiver of the
conditions to closing set forth in Section 7 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller (other than the
primary servicing rights) in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of the
initial Purchaser, deliver to and deposit with (i) the Trustee or a Custodian
appointed thereby, a Mortgage File for each Mortgage Loan in accordance with the
terms of, and conforming to the requirements set forth in, the Pooling and
Servicing Agreement, with copies of each Mortgage File to be delivered by the
Trustee to, upon request, the Master Servicer (at the expense of the Trustee),
within 10 Business Days of such request; and (ii) the Master Servicer (or, at
the direction of the Master Servicer, to the appropriate Sub-Servicer), all
unapplied Escrow Payments and Reserve Funds in the possession or under the
control of the Seller that relate to the Mortgage Loans.
(d) The Seller shall retain, with respect to each Mortgage Loan, an
Independent third party (the "Recording/Filing Agent"), through which it shall:
(i) as and in the manner provided in the Pooling and Servicing Agreement (and in
any event within 45 days following the later of the Closing Date and the date on
which all necessary recording or filing, as applicable, information is available
to the subject Recording/Filing Agent), submit for recording or filing, as the
case may be, in the appropriate public office for real property records or UCC
Financing Statements, as applicable (A) each related assignment of Mortgage and
assignment of Assignment of Leases in favor of, and delivered
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under clause (iv) of the definition of "Mortgage File" to, the Trustee, and (B)
solely with respect to nursing facilities and hospitality properties (identified
on Schedule VI to the Pooling and Servicing Agreement), each related assignment
of UCC Financing Statement, in favor of, and delivered under clause (iv) of the
definition of "Mortgage File" to, the Trustee; and (ii) cause each such
assignment of Mortgage, assignment of Assignment of Leases and assignment of UCC
Financing Statement to be delivered to the Trustee following its return by the
appropriate public office for real property records or UCC Financing Statements,
as applicable, with copies of any such returned assignments to be delivered by
the Trustee to the Master Servicer, at the expense of the Seller, at least every
90 days after the Closing Date (or at additional times upon the request of the
Master Servicer if reasonably necessary for the ongoing administration and/or
servicing of the related Mortgage Loan by the Master Servicer); provided that,
in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, the Trustee shall
obtain a certified copy of the recorded original. Notwithstanding the foregoing,
the Seller may request the Trustee to submit for recording or filing, as
applicable, any of the assignments of Mortgage, assignments of Assignment of
Leases or assignments of UCC Financing Statements referred to in this paragraph,
and in such event, the Seller shall cause any such unrecorded or unfiled
document to be delivered to the Trustee.
If any such assignment of Mortgage, assignment of Assignment of Leases
and/or assignment of UCC Financing Statement referred to in the preceding
paragraph is lost or returned unrecorded or unfiled, as the case may be, because
of a defect therein, then the Seller shall prepare or cause the preparation of a
substitute therefor or cure such defect, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the Trustee
(or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing
Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all such
recording, filing and delivery contemplated in the preceding two paragraphs,
including, without limitation, any out-of-pocket costs and expenses that may be
incurred by the Trustee in connection with any such recording, filing or
delivery performed by the Trustee at the Seller's request and the fees of the
Recording/Filing Agent.
(e) With respect to any Mortgage Loan, the following documents (other
than any document that constitutes part of the Mortgage File for such Mortgage
Loan): copies of any final appraisal, final survey, final engineering report,
final environmental report, opinion letters of counsel to the related mortgagor
delivered in connection with the closing of such Mortgage Loan, escrow
agreements, organization documentation for the related mortgagor, organizational
documentation for any related guarantor or indemnitor, if the related guarantor
or indemnitor is an entity, insurance certificates, leases for tenants
representing 25% or more of the annual income with respect to the related
Mortgaged Property, final seismic report and property management agreements, but
in each case, only if the subject document (a) was in fact obtained in
connection with the origination of such Mortgage Loan, (b) relates to the
administration or servicing of such Mortgage Loan, (c) is reasonably necessary
for the ongoing administration and/or servicing of such Mortgage Loan by the
Master Servicer or Special Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (d) is in the possession or under the
control of the Seller shall, within 45 days of the Closing Date, be delivered or
caused to be delivered by the Seller to the Master Servicer (or, at the
direction of the Master Servicer, to the applicable Sub-Servicer); provided that
the Seller shall not be required to deliver any draft documents, privileged or
other communications or correspondence, credit underwriting or due diligence
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analyses or information, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) In connection with the obligations of the Master Servicer under
Sections 3.01(g) and 3.19(c) of the Pooling and Servicing Agreement, with regard
to each Mortgage Loan that is secured by the interests of the related Mortgagor
in a hospitality property (identified on Schedule VI to the Pooling and
Servicing Agreement) and each Mortgage Loan that has a related letter of credit,
the Seller shall deliver to and deposit with the Master Servicer, on or before
the Closing Date, any related franchise agreement, franchise comfort letter and
the original of such letter of credit. Further, in the event, with respect to a
Mortgage Loan with a related letter of credit, the Master Servicer determines
that a draw under such letter of credit has become necessary under the terms
thereof prior to the assignment of such letter of credit having been effected in
accordance with Section 3.01(g) of the Pooling and Servicing Agreement, the
Seller shall, upon the written direction of the Master Servicer, use its best
efforts to make such draw or to cause such draw to be made on behalf of the
Trustee.
(h) Pursuant to the Pooling and Servicing Agreement, the Master
Servicer shall review the documents with respect to each Mortgage Loan delivered
by the Seller pursuant to or as contemplated by Section 2(e) and provide the
Seller with a certificate (the "Master Servicer Certification") within 90 days
of the Closing Date acknowledging its receipt as of the date of the Master
Servicer Certification of such documents actually received; provided that such
review shall be limited to identifying the document received, the Mortgage Loan
to which it purports to relate, that it appears regular on its face and that it
appears to have been executed (where appropriate). Notwithstanding anything to
the contrary set forth herein, to the extent the Seller has not been notified in
writing of its failure to deliver any document with respect to a Mortgage Loan
required to be delivered pursuant to or as contemplated by Section 2(e) hereof
prior to the first anniversary of the date of the Master Servicer Certification,
the Seller shall have no obligation to provide such document.
(i) In addition, on the Closing Date, the Seller shall deliver to the
Master Servicer for deposit in the Pool Custodial Account the Initial Deposits,
if any, relating to the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of Seller and
Additional Party.
(a) Each of the Seller and the Additional Party (each, for purposes of
this Section 3(a), a "Representing Party") hereby represent and warrant to and
covenant with the Purchaser, as of the date hereof, that:
(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
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business as currently conducted by it and to execute, deliver and comply
with its obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Representing Party and, assuming due
authorization, execution and delivery hereof by the Purchaser, constitutes
a legal, valid and binding obligation of the Representing Party,
enforceable against the Representing Party in accordance with its terms,
except as such enforcement may be limited by (A) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting
the enforcement of creditors' rights in general, and (B) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Representing Party and the Representing Party's performance and compliance
with the terms of this Agreement will not (A) violate the Representing
Party's organizational documents, (B) violate any law or regulation or any
administrative decree or order to which the Representing Party is subject,
or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any material contract, agreement or other instrument to which the
Representing Party is a party or by which the Representing Party is bound.
(iv) The Representing Party is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the Representing Party's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Representing Party or
its properties or have consequences that would materially and adversely
affect its performance hereunder.
(v) The Representing Party is not a party to or bound by any
agreement or instrument or subject to any organizational document or any
other corporate or limited liability company (as applicable) restriction or
any judgment, order, writ, injunction, decree, law or regulation that
would, in the Representing Party's reasonable and good faith judgment,
materially and adversely affect the ability of the Representing Party to
perform its obligations under this Agreement or that requires the consent
of any third person to the execution and delivery of this Agreement by the
Representing Party or the performance by the Representing Party of its
obligations under this Agreement.
(vi) Except for the recordation and/or filing of assignments and
other transfer documents with respect to the Mortgage Loans, as
contemplated by Section 2(d) hereof, no consent, approval, authorization or
order of, registration or filing with, or notice to, any court or
governmental agency or body, is required for the execution, delivery and
performance by the Representing Party of or compliance by the Representing
Party with this Agreement or the consummation of the transactions
contemplated by this Agreement; and no bulk sale law applies to such
transactions.
(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
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adversely affect the performance by the Representing Party of its
obligations under this Agreement.
(viii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Representing Party are pending or
contemplated.
In addition, the Seller hereby further represents and warrants to, and
covenants with, the Purchaser, as of the date hereof, that:
(i) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of the
Mortgage Loans to the Purchaser in exchange for the consideration specified
in Section 1 hereof. In connection with the foregoing, the Seller shall
cause all of its records to reflect such transfer as a sale (as opposed to
a secured loan). The consideration received by the Seller upon the sale of
the Mortgage Loans to the Purchaser will constitute at least reasonably
equivalent value and fair consideration for the Mortgage Loans. The Seller
will be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller
is not selling the Mortgage Loans to the Purchaser with any intent to
hinder, delay or defraud any of the creditors of the Seller. After giving
effect to its transfer of the Mortgage Loans to the Purchaser, as provided
herein, the value of the Seller's assets, either taken at their present
fair saleable value or at fair valuation, will exceed the amount of the
Seller's debts and obligations, including contingent and unliquidated debts
and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct
its business. The Mortgage Loans do not constitute all or substantially all
of the assets of the Seller. The Seller does not intend to, and does not
believe that it will, incur debts or obligations beyond its ability to pay
such debts and obligations as they mature.
(ii) The Seller will acquire the Seller's Residual Interest
Certificates for its own account and not with a view to, or sale or
transfer in connection with, any distribution thereof, in whole or in part,
in any manner that would violate the Securities Act or any applicable state
securities laws.
(iii) The Seller understands that (A) the Seller's Residual
Interest Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (B) neither the Purchaser nor any other party is obligated
so to register or qualify the Seller's Residual Interest Certificates and
(C) neither the Seller's Residual Interest Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (1) registered pursuant to the Securities Act and registered
or qualified pursuant to any applicable state securities laws or (2) sold
or transferred in a transaction which is exempt from such registration and
qualification and the Certificate Registrar has received the certifications
and/or opinions of counsel required by the Pooling and Servicing Agreement.
(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
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carefully reviewed, and that the Seller's Residual Interest Certificates
will bear legends that identify the transfer restrictions to which such
Certificates are subject.
(v) Neither the Seller nor anyone acting on its behalf has (A)
offered, transferred, pledged, sold or otherwise disposed of any Seller's
Residual Interest Certificate, any interest in a Seller's Residual Interest
Certificate or any other similar security to any person in any manner, (B)
solicited any offer to buy or accept a transfer, pledge or other
disposition of any Seller's Residual Interest Certificate, any interest in
a Seller's Residual Interest Certificate or any other similar security from
any person in any manner, (C) otherwise approached or negotiated with
respect to any Seller's Residual Interest Certificate, any interest in a
Seller's Residual Interest Certificate or any other similar security with
any person in any manner, (D) made any general solicitation by means of
general advertising or in any other manner, or (E) taken any other action,
that (in the case of any of the acts described in clauses (A) through (E)
above) would constitute a distribution of the Seller's Residual Interest
Certificates under the Securities Act, would render the disposition of the
Seller's Residual Interest Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration or
qualification of the Seller's Residual Interest Certificates pursuant
thereto. The Seller will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to the Seller's Residual Interest Certificates, any
interest in the Seller's Residual Interest Certificates or any other
similar security.
(vi) The Seller has been furnished with all information regarding
(A) the Purchaser, (B) the Seller's Residual Interest Certificates and
distributions thereon, (C) the nature, performance and servicing of the
Other Loans, (D) the Pooling and Servicing Agreement and the Trust Fund,
and (E) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act or (b) an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and (7)
of Rule 501(a) under the Securities Act or an entity in which all its
equity owners are "accredited investors" as defined in such paragraphs and
has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the
Seller's Residual Interest Certificates. The Seller has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Seller is able to bear the economic
risks of such an investment and can afford a complete loss of such
investment.
(viii) The Seller is not a Plan and is not directly or indirectly
acquiring the Seller's Residual Interest Certificates on behalf of, as
named fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a
Disqualified Organization.
(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.
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(c) The Seller intends to transfer the Seller's Residual Interest
Certificates to Wachovia Bank, National Association on or about the Closing
Date; and, in connection therewith, the Seller will comply with all of the
requirements of Section 5.02 of the Pooling and Servicing Agreement, as in
effect on the Closing Date, and applicable law. The Seller hereby directs the
Purchaser to cause the Seller's Residual Interest Certificates to be registered
in the name of Wachovia Bank, National Association upon initial issuance.
SECTION 4. Representations and Warranties of the Purchaser.
In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants for the benefit of the Seller and the
Additional Party as of the date hereof that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to
acquire the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser and, assuming due authorization,
execution and delivery hereof by the Seller and the Additional Party,
constitutes a legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as
such enforcement may be limited by (A) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting
the enforcement of creditors' rights in general, and (B) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of
this Agreement will not (A) violate the Purchaser's organizational
documents, (B) violate any law or regulation or any administrative decree
or order to which the Purchaser is subject or (C) constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Purchaser is a party or by which
the Purchaser is bound.
(iv) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required for the execution, delivery
and performance by the Purchaser of or compliance by the Purchaser with
this Agreement, or the consummation by the Purchaser of any transaction
described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof.
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SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller receives written notice with respect to any Mortgage
Loan (i) that any document constituting a part of clauses (i) through (x) of the
definition of Mortgage File has not been executed or is missing (a "Document
Defect") or (ii) of a breach of any of the Seller's representations and
warranties made pursuant to Section 3(b) hereof (each such breach, a "Breach")
relating to any Mortgage Loan, and such Document Defect or Breach materially and
adversely affects the value of the Mortgage Loan at the time of such notice,
then such Document Defect shall constitute a "Material Document Defect" or such
Breach shall constitute a "Material Breach", as the case may be. Then, following
receipt of a Seller/Depositor Notification with respect to such Material
Document Defect or Material Breach, as the case may be, the Seller shall
(subject to Sections 5(f), (g) and (h)), (A) not later than 90 days after (1)
the Seller and the Purchaser have agreed upon the existence of such Material
Document Defect or Material Breach or (2) a court of competent jurisdiction
makes a final non-appealable determination that a Material Document Defect or
Material Breach exists or (B) in the case of a Material Document Defect or
Material Breach that affects whether a Mortgage Loan was, as of the Closing
Date, is or will continue to be a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the
discovery by any party of such Material Document Defect or Material Breach
(either such 90-day period, in the case of (A) or (B), as applicable, an
"Initial Resolution Period"): (i) cure such Material Document Defect or Material
Breach, as the case may be, in all material respects (which cure shall include
payment of any out-of-pocket expenses that are reasonably incurred and directly
attributable to pursuing such a claim based on such Material Document Defect or
Material Breach associated therewith), or (ii) if such Material Document Defect
or Material Breach, as the case may be, cannot be cured within the Initial
Resolution Period, repurchase the affected Mortgage Loan (or the related
Mortgaged Property) from, and in accordance with the directions of, the
Purchaser or its designee, at a price equal to the Purchase Price; provided that
if (a) such Material Breach or Material Document Defect, as the case may be, is
capable of being cured but not within the applicable Initial Resolution Period,
(b) any such Material Breach or Material Document Defect, as the case may be,
does not affect whether the Mortgage Loan was, as of the Closing Date, is or
will continue to be a Qualified Mortgage, (c) the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(d) the Seller shall have delivered to the Purchaser a certification executed on
behalf of the Seller by an officer thereof confirming that such Material Breach
or Material Document Defect, as the case may be, is not capable of being cured
within the applicable Initial Resolution Period, setting forth what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed 90 days
beyond the end of the Initial Resolution Period, then the Seller shall have such
additional 90-day period (the "Resolution Extension Period"), to complete such
cure or, failing such, to repurchase the affected Mortgage Loan (or the related
Mortgaged Property); and provided, further, that, if any such Material Document
Defect is still not cured after the Initial Resolution Period and any such
Resolution Extension Period solely due to the failure of the Seller to have
received a recorded document, then the Seller shall be entitled to continue to
defer its cure and repurchase obligations in respect of such Material Document
Defect so long as the Seller certifies to the Purchaser every six months
thereafter that the Material Document Defect is still in effect solely because
of its failure to have received the recorded document and that the Seller is
diligently pursuing the cure of such defect (specifying the actions being
taken). The parties acknowledge that neither delivery of a certification or
schedule of exceptions to the Seller pursuant to Section 2.02(b) of the Pooling
and Servicing Agreement or otherwise nor possession of such
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certification or schedule by the Seller shall, in and of itself, constitute
delivery of notice of any Material Document Defect or Material Breach or
knowledge or awareness by the Seller of any Material Document Defect or Material
Breach.
If, during the period of deferral by the Seller of its cure and
repurchase obligations as contemplated by the last proviso of the penultimate
sentence of the preceding paragraph, the Mortgage Loan that is the subject of
the Material Document Defect either becomes a Specially Serviced Mortgage Loan
or becomes the subject of a proposed or actual assumption of the obligations of
the related Mortgagor under such Mortgage Loan, then, following receipt by the
Seller of a Seller/Depositor Notification providing notice of such event, the
Seller shall cure the subject Material Document Defect within the time period
specified in such Seller/Depositor Notification. If, upon the expiration of such
period, the Seller has failed to cure the subject Material Document Defect, the
Master Servicer or the Special Servicer, as applicable, shall be entitled (but
not obligated) to perform the obligations of the Seller with respect to curing
the subject Material Document Defect and, in the event of such an election, the
Seller shall pay all reasonable actual out-of-pocket costs and expenses in
connection with the applicable servicer's effecting such cure.
(b) [Reserved]
(c) If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Seller as contemplated
by Section 5(a), then, prior to the subject repurchase, the Seller or its
designee shall use reasonable efforts, subject to the terms of the related
Mortgage Loans, to prepare and, to the extent necessary and appropriate, have
executed by the related Mortgagor and record, such documentation as may be
necessary to terminate the cross-collateralization between the Mortgage Loans in
such Cross-Collateralized Group that are to be repurchased, on the one hand, and
the remaining Mortgage Loans therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto;
provided that, if such Cross-Collateralized Group is still subject to the
Pooling and Servicing Agreement, then no such termination shall be effected
unless and until (i) the Purchaser or its designee has received from the Seller
(A) an Opinion of Counsel to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to the Grantor Trust and (B) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Certificates and (ii)
the Controlling Class Representative (if one is acting) has consented (which
consent shall not be unreasonably withheld and shall be deemed to have been
given if no written objection is received by the Seller within 10 Business Days
of the Controlling Class Representative's receipt of a written request for such
consent); and provided, further, that the Seller may, at its option, purchase
the entire Cross-Collateralized Group in lieu of terminating the
cross-collateralization. All costs and expenses incurred by the Purchaser or its
designee pursuant to this paragraph shall be included in the calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased. If the
cross-collateralization of any Cross-Collateralized Group is not or cannot be
terminated as contemplated by this paragraph, then, for purposes of (i)
determining whether the subject Breach or Document Defect, as the case may be,
materially and adversely affects the value of such Cross-Collateralized Group,
and (ii) the application of remedies, such Cross-Collateralized Group shall be
treated as a single Mortgage Loan.
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(d) It shall be a condition to any repurchase of a Mortgage Loan by
the Seller pursuant to this Section 5 that the Purchaser shall have executed and
delivered such instruments of transfer or assignment then presented to it by the
Seller (or as otherwise required to be prepared, executed and delivered under
the Pooling and Servicing Agreement), in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Mortgage Loan (including any property acquired in respect thereof or proceeds of
any insurance policy with respect thereto), to the extent that such ownership
interest was transferred to the Purchaser hereunder. If any Mortgage Loan is to
be repurchased as contemplated by this Section 5, the Seller shall amend the
Mortgage Loan Schedule to reflect the removal of such Mortgage Loan and shall
forward such amended schedule to the Purchaser.
(e) Any repurchase of a Mortgage Loan pursuant to this Section 5 shall
be on a whole loan, servicing released basis. The Seller and the Additional
Party shall have no obligation to monitor the Mortgage Loans regarding the
existence of a Breach or Document Defect. It is understood and agreed that the
obligations of the Seller set forth in this Section 5 constitute the sole
remedies available to the Purchaser with respect to any Breach or Document
Defect.
(f) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Seller set forth
in, or made pursuant to, paragraph (xlviii) of Exhibit B to this Agreement,
specifically relating to whether or not the Mortgage Loan documents or any
particular Mortgage Loan document for any Mortgage Loan requires the related
Mortgagor to bear the reasonable costs and expenses associated with the subject
matter of such representation or warranty, as set forth in such representation
or warranty, then the Purchaser or its designee will direct the Seller in
writing to wire transfer to the Custodial Account, within 90 days of receipt of
such direction, the amount of any such reasonable costs and expenses incurred by
the Trust that (i) are due from the Mortgagor, (ii) otherwise would have been
required to be paid by the Mortgagor if such representation or warranty with
respect to such costs and expenses had in fact been true, as set forth in the
related representation or warranty, (iii) have not been paid by the Mortgagor,
(iv) are the basis of such Breach and (v) constitute "Covered Costs". Upon
payment of such costs, the Seller shall be deemed to have cured such Breach in
all respects. Provided that such payment is made, this paragraph describes the
sole remedy available to the Purchaser regarding any such Breach, regardless of
whether it constitutes a Material Breach, and the Seller shall not be obligated
to otherwise cure such Breach or repurchase the affected Mortgage Loan under any
circumstances. Amounts deposited in the Pool Custodial Account pursuant to this
paragraph shall constitute "Liquidation Proceeds" for all purposes of the
Pooling and Servicing Agreement (other than Section 3.11(c) of the Pooling and
Servicing Agreement).
(g) Subject to Section 5(f) and the last three sentences of this
paragraph, if the Seller determines that a Material Breach (other than a
Material Breach of a representation or warranty on the part of the Seller set
forth in and made pursuant to paragraph (xvii) of Exhibit B to this Agreement)
or a Material Document Defect with respect to a Mortgage Loan is not capable of
being cured in accordance with Section 5(a) hereof, then in lieu of repurchasing
such Mortgage Loan the Seller may, at its sole option, pay a cash amount equal
to the loss of value (each such payment, a "Loss of Value Payment") with respect
to such Mortgage Loan, which loss of value is directly attributed to such
Material Breach or Material Document Defect, as the case may be. The amount of
each such Loss of Value Payment shall be determined either (i) by mutual
agreement of the Special Servicer on behalf of the Trust with respect to the
subject Material Breach or Material Document Defect, as the case may be, and the
Seller, or (ii) by judicial decision; provided that, in the event there is a
legal action for determining the existence of a
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Material Breach or a Material Document Defect with respect to any Mortgage Loan,
such legal action must also include a determination of the amount of the loss of
value to such Mortgage Loan directly attributed to such Material Breach or such
Material Document Defect, as the case may be. Provided that such payment is
made, this paragraph describes the sole remedy available to the Purchaser
regarding any such Material Breach or Material Document Defect and the Seller
shall not be obligated to otherwise cure such Material Breach or Material
Document Defect or repurchase the affected Mortgage Loan based on such Material
Breach or Material Document Defect under any circumstances. Notwithstanding the
foregoing provisions of this Section 5(g), if substantially all of the loss of
value to a Mortgage Loan was caused by a Material Breach or Material Document
Defect, which Material Breach or Material Document Defect is not capable of
being cured, this Section 5(g) shall not apply and the Seller shall be obligated
to repurchase the affected Mortgage Loan at the applicable Purchase Price in
accordance with Section 5(a). Furthermore, the Seller shall not have the option
of delivering Loss of Value Payments in connection with any Material Breach
relating to a Mortgage Loan's failure to be a Qualified Mortgage. In the event
there is a Loss of Value Payment made by the Seller in accordance with this
Section 5(g), the amount of such Loss of Value Payment shall be deposited into
the Loss of Value Reserve Fund to be applied in accordance with Section 3.05(e)
of the Pooling and Servicing Agreement.
In the event the amount of any Loss of Value Payment is determined by
judicial decision, then such Loss of Value Payment shall also include the
payment of any costs and expenses (including costs incurred in establishing the
amount of any related loss of value to the subject Mortgage Loan) that are: (i)
reasonably incurred in good faith by the Master Servicer, the Special Servicer
and/or the Trustee (on behalf of the Trust) in enforcing the rights of the Trust
against the Seller with respect to the subject Material Breach or Material
Document Defect, as the case may be; and (ii) directly attributable to the
enforcement of the rights of the Trust with respect to the subject Material
Breach or Material Document Defect, as the case may be; provided that, that in
the event the Seller tenders a loss of value payment in a specified amount in
connection with a Material Breach or Material Document Defect, as the case may
be, prior to the institution of legal proceedings and that offer is rejected and
an amount equal to or less than the loss of value payment originally tendered by
the Seller is ultimately determined by judicial decision to be the actual amount
of the Loss of Value Payment attributed to such Material Breach or Material
Document Defect, as the case may be, then that Loss of Value Payment shall not
include the payment of any costs or expenses incurred by the Master Servicer,
the Special Servicer and/or the Trustee in connection with the subject
litigation; provided, further, that if the Special Servicer request a loss of
value payment from the Seller of a specified amount in connection with a
Material Breach or Material Document Defect, as the case may be, and the Seller
refuses to pay that amount and an amount equal to or greater than the loss of
value payment originally requested by the Special Servicer is ultimately
determined by judicial decision to be the actual Loss of Value Payment
attributable to such Material Document Defect or Material Breach, then that Loss
of Value Payment shall also include the payment of all costs and expenses
reasonably incurred in connection with that judicial determination; and
provided, further, that, if the Seller tenders a loss of value payment in
connection with a Material Breach or Material Document Defect, as the case may
be, in a specified amount, and the Special Servicer rejects such tender and
requests a greater loss of value payment amount, and an amount in between the
respective amounts tendered and requested is ultimately determined by judicial
decision to be the actual Loss of Value Payment attributable to such Material
Breach or Material Document Defect, as the case may be, then that Loss of Value
Payment shall also include the payment of an amount equal to the product of (i)
all costs and expenses reasonably incurred in connection with that judicial
determination, multiplied by (ii) a fraction, the numerator of which is the
excess of the amount determined by judicial decision over the amount tendered by
the Seller, and the denominator of which is
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the excess of the amount requested by the Special Servicer over the amount
tendered by the Seller. Notwithstanding the foregoing, in the event any Loss of
Value Payment is determined by the parties hereto by mutual agreement (and not
by a judicial decision), that Loss of Value Payment shall not include any costs
and expenses incurred by the Master Servicer, the Special Servicer or the
Trustee unless such costs and expenses were specifically included in such mutual
agreement.
(h) Notwithstanding the foregoing, if there exists a Material Breach
of the representation or warranty on the part of the Seller set forth in and
made pursuant to paragraph (xvii) of Exhibit B to this Agreement, and the
subject Mortgage Loan becomes a Qualified Mortgage prior to the expiration of
the Initial Resolution Period applicable to a Material Document Defect or
Material Breach that affects whether a Mortgage Loan is a Qualified Mortgage,
and without otherwise causing an Adverse REMIC Event or an Adverse Grantor Trust
Event, then such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such Breach.
SECTION 6. Obligations of the Additional Party.
The Additional Party hereby covenants and agrees with the Purchaser
that the Additional Party shall be liable to the Purchaser and any designee
thereof to the same extent as the Seller as set forth herein, for all the
obligations of the Seller under Section 5 hereof. The Additional Party further
agrees that the Purchaser shall not be bound or obligated to initially request
the Seller to perform any of its obligations hereunder, but may instead
initially request the Additional Party to perform such obligations.
Additionally, the Additional Party agrees that the Purchaser shall not be bound
or obligated in anyway to exhaust recourse against the Seller before being
entitled to demand the performance by the Additional Party of its obligations
hereunder. Performance by the Additional Party of any of the Seller's
obligations hereunder shall be deemed to be performance thereof by the Seller.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller and the
Additional Party set forth in or made pursuant to Sections 3(a) and 3(b) of this
Agreement, and all of the representations and warranties of the Purchaser set
forth in Section 4 of this Agreement, shall be true and correct in all material
respects as of the Closing Date;
(b) Insofar as it affects the obligations of the Seller hereunder, the
Pooling and Servicing Agreement shall be in a form mutually acceptable to the
Purchaser and the Seller;
(c) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf), the Master Servicer and the Special Servicer all
documents and funds required to be delivered to
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the Trustee, the Master Servicer and the Special Servicer, respectively,
pursuant to Section 2 of this Agreement;
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects, and the Seller and Additional Party shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(f) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
All parties hereto agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed by the Purchaser, the Seller and the
Additional Party;
(b) The Pooling and Servicing Agreement duly executed by the parties
thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) Certificates of each of the Seller and the Additional Party,
executed by a duly authorized officer of the Seller or the Additional Party, as
the case may be, and dated the Closing Date, and upon which the initial
Purchaser, the Underwriters and the Placement Agents may rely, to the effect
that: (i) the representations and warranties of the Seller or the Additional
Party, as the case may be, in this Agreement and, in the case of the Seller, in
the Indemnification Agreement are true and correct in all material respects at
and as of the Closing Date with the same effect as if made on such date; and
(ii) the Seller or the Additional Party, as the case may be, has, in all
material respects, complied with all the agreements and satisfied all the
conditions on its part that are required under this Agreement to be performed or
satisfied at or prior to the Closing Date;
(e) An Officer's Certificate from an officer of each of the Seller and
the Additional Party, in his or her individual capacity, dated the Closing Date,
and upon which the initial Purchaser, the Underwriters and the Placement Agents
may rely, to the effect that each individual who, as an officer or
representative of the Seller or the Additional Party, as the case may be, signed
this Agreement, the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein or, in the case of the Seller, in the
Indemnification Agreement, was at the respective times of such signing and
delivery, and is as of the 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;
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(f) As certified by an officer of each of the Seller and the
Additional Party, true and correct copies of (i) the resolutions of the board of
directors authorizing the Seller's entering into the transactions contemplated
by this Agreement and, in the case of the Seller, the Indemnification Agreement,
(ii) the organizational documents of each of the Seller and the Additional
Party, and (iii) a certificate of good standing of each of the Seller and the
Additional Party, issued by the Secretary of State of the State of Delaware not
earlier than 10 days prior to the Closing Date;
(g) A Certificate of the Co-Indemnitor, executed by a duly authorized
officer of the Co-Indemnitor and dated the Closing Date, and upon which the
initial Purchaser, the Underwriters and the Placement Agents may rely, to the
effect that the representations and warranties of the Co-Indemnitor in the
Indemnification Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on such date;
(h) An Officer's Certificate from an officer of the Co-Indemnitor, in
his or her individual capacity, dated the Closing Date, and upon which the
initial Purchaser, the Underwriters and the Placement Agents may rely, to the
effect that each individual who, as an officer or representative of the
Co-Indemnitor, signed the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated therein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(i) As certified by an officer of the Co-Indemnitor, true and correct
copies of (i) the resolutions of the board of directors authorizing the
Co-Indemnitor's entering into the transactions contemplated by the
Indemnification Agreement, (ii) the organizational documents of the
Co-Indemnitor, and (iii) a certificate of good standing of the Co-Indemnitor
issued by the Secretary of State of the State of Delaware not earlier than 10
days prior to the Closing Date;
(j) A favorable opinion of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("CWT"),
special counsel to the Seller, the Additional Party and the Co-Indemnitor,
substantially in the form attached hereto as Exhibit C-1, dated the Closing Date
and addressed to the initial Purchaser, the Underwriters, the Placement Agents,
the Rating Agencies and, upon request, the other parties to the Pooling and
Servicing Agreement, together with such other opinions of CWT as may be required
by the Rating Agencies in connection with the transactions contemplated hereby;
(k) An Officer's Certificate from an officer of each of the Seller and
the Co-Indemnitor, in each case delivered in connection with the opinion of CWT
to be delivered pursuant to Section 8(j) above, in form and substance
satisfactory to the addressees of such opinion and upon which such addressees
may rely;
(l) A favorable opinion of in-house counsel to the Additional Party,
substantially in the form attached hereto as Exhibit C-2, dated the Closing Date
and addressed to the initial Purchaser, the Underwriters, the Placement Agents,
the Rating Agencies and, upon request, the other parties to the Pooling and
Servicing Agreement;
(m) In connection with the initial issuance of the Seller's Residual
Interest Certificates, a Transfer Affidavit and Agreement in the form
contemplated by the Pooling and Servicing Agreement from Seller and from the
transferee of the Seller;
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(n) In the event any of the Certificates are mortgage related
securities within the meaning of the Secondary Mortgage Market Enhancement Act
of 1984, as amended, a Certificate of the Seller regarding origination of the
Mortgage Loans by specified originators as set forth in Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended; and
(o) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9. Costs.
An amount equal to 16.91813% of all reasonable out-of-pocket costs and
expenses incurred by the Seller, the initial Purchaser, the Underwriters, the
Placement Agents and the seller of the Other Loans to the Purchaser in
connection with the securitization of the Securitized Loans and the other
transactions contemplated by this Agreement, the Underwriting Agreement and the
Certificate Purchase Agreement shall be payable by the Seller.
SECTION 10. Grant of a Security Interest.
The parties hereto agree that it is their express intent that the
conveyance of the Mortgage Loans by the Seller to the Purchaser as provided in
Section 2 hereof be, and be construed as, a sale of the Mortgage Loans by the
Seller to the Purchaser and not as a pledge of the Mortgage Loans by the Seller
to the Purchaser to secure a debt or other obligation of the Seller. However,
if, notwithstanding the aforementioned intent of the parties, the Mortgage Loans
are held to be property of the Seller, then it is the express intent of the
parties that: (i) such conveyance shall be deemed to be a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller; (ii) this Agreement shall be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the applicable Uniform Commercial Code; (iii)
the conveyance provided for in Section 2 hereof shall be deemed to be a grant by
the Seller to the Purchaser of a security interest in all of the Seller's right,
title and interest in and to the Mortgage Loans, and all amounts payable to the
holder of the Mortgage Loans in accordance with the terms thereof, and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property; (iv) the assignment to the
Trustee of the interest of the Purchaser in and to the Mortgage Loans shall be
deemed to be an assignment of any security interest created hereunder; (v) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes for the Mortgage Loans, and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be "possession by the secured party" for
purposes of perfecting the security interest pursuant to Section 9-313 of the
applicable Uniform Commercial Code; and (vi) notifications to persons (other
than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from such persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such 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.
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SECTION 11. Notices.
All notices, copies, requests, consents, demands and other
communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to any party, at such
other address as shall be designated by such party in a notice hereunder to the
other parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller, the Additional Party and/or the Co-Indemnitor submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive delivery of the Mortgage Loans by the Seller to the Purchaser (and by
the initial Purchaser to the Trustee).
SECTION 13. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be an original, but which together shall constitute one and the same
agreement.
SECTION 15. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND
TO BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, THE SELLER, THE ADDITIONAL PARTY AND THE PURCHASER EACH HEREBY
IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL
COURTS SITTING IN NEW YORK CITY, TO THE EXCLUSION OF ALL OTHER COURTS, WITH
RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES
THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING SHALL BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE OR
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇, TO THE EXCLUSION OF ALL OTHER COURTS; (III) WAIVES, TO THE
FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM IN CONNECTION WITH
SUCH ACTION OR PROCEEDING COMMENCED IN SUCH NEW YORK STATE OR FEDERAL COURTS;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW; PROVIDED, THAT IN THE EVENT NEITHER A NEW
YORK STATE NOR FEDERAL COURT SITTING IN NEW YORK IN WHICH AN ACTION OR
PROCEEDING HAS BEEN DULY AND PROPERLY COMMENCED BY ANY PARTY TO THIS AGREEMENT
REGARDING A MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT HAS REFUSED TO
ACCEPT JURISDICTION OVER OR OTHERWISE HAS NOT ACCEPTED SUCH ACTION OR PROCEEDING
WITHIN, IN THE CASE OF EACH SUCH COURT, 60 DAYS OF THE COMMENCEMENT OR FILING
THEREOF, THEN THE WORDS "TO THE EXCLUSION OF ALL OTHER COURTS" IN CLAUSE (I) AND
CLAUSE (II) OF THIS SENTENCE SHALL NOT APPLY WITH REGARD TO SUCH ACTION OR
PROCEEDING AND THE REFERENCE TO "SHALL" IN CLAUSE (II) OF THIS SECTION SHALL BE
DEEMED TO BE "MAY".
SECTION 16. Further Assurances.
The Seller, the Additional Party and the Purchaser each agrees to
execute and deliver such instruments and take such further actions as any other
such party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller and the Additional Party
under this Agreement shall not be assigned by the Seller or the Additional
Party, as the case may be, without the prior written consent of the Purchaser,
except that any person into which the Seller or the Additional Party may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Seller or the Additional Party is a party, or any
person succeeding to all or substantially all of the business of the Seller or
the Additional Party, shall be the successor to the Seller or the Additional
Party, as the case may be, hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part, as may be required to effect
the purposes of the Pooling and Servicing Agreement, and the assignee shall, to
the extent of such assignment, succeed to the rights and obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the Seller, the Additional Party, the
Purchaser, and their respective successors and permitted assigns.
SECTION 18. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced. The Seller's and the Additional Party's obligations hereunder shall in
no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, unless the Seller or the
Additional Party, as applicable, has consented to such amendment or modification
in writing.
-18-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
UBS REAL ESTATE INVESTMENTS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
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: Senior Vice President
Address for Notices:
Structured Asset Securities Corporation II
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached]
A-1
<TABLE>
MORTGAGE
LOAN NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE
-------------------------------------------------------------------------------------------------------------------------
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
9 Macquarie DDR Portfolio III Various Various Various Various
11 Cendant Office Building ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
17 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
19 Estates at Eagle's Pointe ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
21 Commerce Center II ▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
22 Sheraton Studio City ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Hotel ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
36 Clermont Shopping Center 1002 - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Office 103, 105, 107, and ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
46 Best Western - Palm Arie ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
53 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
68 Diamonette Industrial 10925-11091 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
70 Food Lion - Ocean View Commons ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
72 Poplar Garden Apartments ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
74 Walgreens - San Leandro ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
80 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
89 Eckerd - Concord ▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
96 Eckerd - Fayetteville ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 16645 and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇
112 and ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ 95 Building ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
108 Hollytree Storage ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
MORTGAGE CUT-OFF MONTHLY MORTGAGE REMAINING TERM REMAINING INTEREST
LOAN NUMBER DATE BALANCE P&I PAYMENT RATE TO MATURITY MATURITY-ARD AMORTIZATION TERM ACCRUAL BASIS
-------------------------------------------------------------------------------------------------------------------------
8 40,000,000.00 176,078.70 5.2100000 60 6/11/2010 0 Act/360
9 39,300,000.00 166,959.50 5.0980000 58 4/5/2010 0 30/360
11 32,470,071.58 186,370.78 5.5900000 119 5/11/2015 359 Act/360
17 26,000,000.00 120,426.34 5.4820000 120 6/11/2015 0 Act/360
18 25,949,173.94 150,904.11 5.7000000 118 4/11/2015 358 Act/360
19 21,000,000.00 121,086.80 5.6400000 119 5/11/2015 360 Act/360
21 19,500,000.00 108,769.29 5.3400000 119 5/11/2015 360 Act/360
22 18,960,000.00 118,592.09 5.6900000 60 6/11/2010 300 Act/360
28 13,100,000.00 86,416.69 6.2500000 121 7/11/2015 300 Act/360
36 9,488,297.67 62,258.16 6.1800000 119 5/11/2015 299 Act/360
35 10,000,000.00 55,220.37 5.2500000 120 6/11/2015 360 Act/360
40 8,750,000.00 50,121.62 5.5800000 120 6/11/2015 360 Act/360
46 6,976,011.05 56,284.57 7.4750000 118 4/11/2015 238 Act/360
53 6,200,000.00 38,659.66 6.3700000 120 6/11/2015 360 Act/360
56 5,750,000.00 35,516.01 6.2800000 120 6/11/2015 360 Act/360
68 4,915,748.43 28,993.70 5.8400000 119 5/11/2015 359 Act/360
70 4,880,000.00 27,555.21 5.4500000 120 6/11/2015 360 Act/360
72 4,800,000.00 28,133.59 5.7900000 118 4/11/2015 360 Act/360
73 4,741,673.68 29,061.46 6.1900000 58 4/11/2010 358 Act/360
74 4,646,000.00 25,727.37 5.2750000 120 6/11/2015 360 Act/360
80 4,010,335.96 23,106.85 5.6250000 119 5/11/2015 359 Act/360
81 3,920,000.00 22,134.51 5.4500000 120 6/11/2015 360 Act/360
89 3,547,180.19 21,650.59 6.1600000 119 5/11/2015 359 Act/360
96 2,797,887.96 17,422.60 6.3500000 119 5/11/2015 359 Act/360
98 2,600,000.00 15,090.41 5.7000000 120 6/11/2015 360 Act/360
99 2,600,000.00 15,024.57 5.6600000 121 7/11/2015 360 Act/360
101 2,400,000.00 13,815.75 5.6250000 120 6/11/2015 360 Act/360
104 2,028,158.62 11,717.89 5.6500000 119 5/11/2015 359 Act/360
108 1,397,489.87 8,474.89 6.0900000 118 4/11/2015 358 Act/360
MORTGAGE ADMINISTRATIVE PRIMARY MORTGAGE ARD
LOAN NUMBER COST RATE SERVICING FEE GROUND LEASE? LOAN SELLER DEFEASANCE MORTGAGE LOAN
-----------------------------------------------------------------------------------------------------------------------------------
8 0.02089 0.02 Fee Simple UBS Yield Maintenance N/A
9 0.02089 0.02 Fee Simple UBS Yield Maintenance or Defeasance N/A
11 0.02089 0.02 Fee Simple UBS Defeasance N/A
17 0.02089 0.02 Fee Simple UBS Defeasance N/A
18 0.02089 0.02 Fee Simple UBS Defeasance N/A
19 0.02089 0.02 Fee Simple UBS Defeasance N/A
21 0.02089 0.02 Fee Simple UBS Defeasance N/A
22 0.02089 0.02 Fee Simple UBS Defeasance N/A
28 0.02089 0.02 Fee Simple UBS Defeasance N/A
36 0.02089 0.02 Fee Simple UBS Defeasance N/A
35 0.02089 0.02 Fee Simple UBS Defeasance N/A
40 0.02089 0.02 Fee Simple UBS Defeasance / Prepayment Penalty N/A
46 0.02089 0.02 Fee Simple UBS Defeasance N/A
53 0.02089 0.02 Fee Simple UBS Defeasance N/A
56 0.02089 0.02 Fee Simple UBS Defeasance N/A
68 0.02089 0.02 Fee Simple UBS Defeasance N/A
70 0.02089 0.02 Fee Simple/Leasehold UBS Defeasance N/A
72 0.02089 0.02 Fee Simple UBS Defeasance N/A
73 0.02089 0.02 Fee Simple UBS Defeasance N/A
74 0.02089 0.02 Fee Simple UBS Defeasance N/A
80 0.02089 0.02 Fee Simple UBS Defeasance N/A
81 0.02089 0.02 Fee Simple UBS Defeasance N/A
89 0.02089 0.02 Fee Simple UBS Defeasance N/A
96 0.02089 0.02 Fee Simple UBS Defeasance N/A
98 0.02089 0.02 Fee Simple UBS Defeasance N/A
99 0.02089 0.02 Fee Simple UBS Defeasance N/A
101 0.02089 0.02 Fee Simple UBS Defeasance N/A
104 0.02089 0.02 Fee Simple UBS Defeasance N/A
108 0.02089 0.02 Fee Simple UBS Yield Maintenance N/A
MORTGAGE MORTGAGE LOAN
LOAN NUMBER ANTICIPATED REPAYMENT DATE ARD SPREAD CROSS COLLATERALIZED SELLER LOAN ID
---------------------------------------------------------------------------------------------
8 N/A No 10805
9 N/A No 10770
11 N/A No 10741
17 N/A No 10835
18 N/A No 10742
19 N/A No 10484
21 N/A No 10839
22 N/A No 10865
28 N/A No 10765
36 N/A No 10720
35 N/A No 10785
40 N/A No 10814
46 N/A No 10567
53 N/A No 10616
56 N/A No 10565
68 N/A No 10726
70 N/A No 10795
72 N/A No 10710
73 N/A No 10709
74 N/A No 10754
80 N/A No 10724
81 N/A No 10796
89 N/A No 10769
96 N/A No 10748
98 N/A No 10749
99 N/A No 10649
101 N/A No 10500
104 N/A No 10807
108 N/A No 10761
</TABLE>
EXHIBIT B
REPRESENTATIONS AND WARRANTIES
Except as set forth on the schedule of exceptions attached hereto as
Schedule I, the Seller hereby represents and warrants to the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or such other date
specified in the particular representation and warranty (the heading set forth
herein with respect to each representation and warranty being for the
convenience of reference only and in no way limiting, expanding or otherwise
affecting the scope or subject matter thereof), that:
(i) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct
in all material respects as of its Due Date in June 2005.
(ii) Legal Compliance. If such Mortgage Loan was originated by
the Seller or an Affiliate of the Seller, then, as of the date of its
origination, such Mortgage Loan complied in all material respects with, or
was exempt from, all requirements of federal, state or local law relating
to the origination of such Mortgage Loan; and, if such Mortgage Loan was
not originated by the Seller or an Affiliate of the Seller, then, to the
Seller's actual knowledge, after having performed the type of due diligence
customarily performed in the origination of comparable mortgage loans by
the Seller, as of the date of its origination, such Mortgage Loan complied
in all material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination of such Mortgage
Loan.
(iii) Ownership of Mortgage Loan. The Seller owns such Mortgage
Loan, has good title thereto, has full right, power and authority to sell,
assign and transfer such Mortgage Loan and is transferring such Mortgage
Loan free and clear of any and all liens, pledges, charges or security
interests of any nature encumbering such Mortgage Loan, exclusive of the
servicing rights pertaining thereto; no provision of the Mortgage Note,
Mortgage(s) or other loan documents relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such
Mortgage Loan to the Trustee (except in the case of a Loan Combination,
which may, pursuant to the related Co-Lender Agreement, require notice to
one or more rating agencies or another lender which, if required, has
already been provided); no governmental or regulatory approval or consent
is required for the sale of such Mortgage Loan by the Seller; and the
Seller has validly conveyed to the Trustee a legal and beneficial interest
in and to such Mortgage Loan free and clear of any lien, claim or
encumbrance of any nature.
(iv) No Holdback. The proceeds of such Mortgage Loan have been
fully disbursed (except in those cases where the full amount of such
Mortgage Loan has been disbursed but a portion thereof is being held in
escrow or reserve accounts to be released pending the satisfaction of
certain conditions relating to leasing, repairs or other matters with
respect to the related Mortgaged Property) and there is no requirement for
future advances thereunder.
(v) Loan Document Status. Each of the related Mortgage Note,
Mortgage(s), Assignment(s) of Leases, if separate from the related
Mortgage, and other agreements executed in favor of the lender in
connection therewith is the legal, valid and binding obligation of the
maker thereof (subject to the non-recourse provisions therein and any state
anti-
B-1
deficiency legislation), enforceable in accordance with its terms, except
that (A) such enforcement may be limited by (1) bankruptcy, insolvency,
receivership, reorganization, liquidation, voidable preference, fraudulent
conveyance and transfer, moratorium and/or other similar laws affecting the
enforcement of creditors' rights generally, and (2) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and (B) certain provisions in the subject
agreement or instrument may be further limited or rendered unenforceable by
applicable law, but subject to the limitations set forth in the foregoing
clause (A), such limitations will not render that subject agreement or
instrument invalid as a whole or substantially interfere with the
mortgagee's realization of the principal benefits and/or security provided
by the subject agreement or instrument. Such Mortgage Loan is non-recourse
to the Mortgagor or any other Person except to the extent provided in
certain nonrecourse carveouts and/or in any applicable guarantees. If such
Mortgage Loan has a Cut-off Date Balance of $15 million or more, the
related Mortgagor or another Person has agreed, in effect, to be liable for
all liabilities, costs, losses, damages or expenses suffered or incurred by
the mortgagee under such Mortgage Loan by reason of or in connection with
and to the extent of (A) any material intentional fraud or material
intentional misrepresentation by the related mortgagor; (B) any breach on
the part of the related mortgagor of any environmental representations
warranties and covenants contained in the related Mortgage Loan documents;
and (C) the filing of a voluntary bankruptcy or insolvency proceeding by
the related mortgagor; provided that, instead of any breach described in
clause (B) of this paragraph, the related Mortgagor or such other Person
may instead be liable for liabilities, costs, losses, damages, expenses and
claims resulting from a breach of the obligations and indemnities of the
related Mortgagor under the related Mortgage Loan documents relating to
hazardous or toxic substances, radon or compliance with environmental laws.
(vi) No Right of Rescission. As of the date of origination,
subject to the limitations and exceptions as to enforceability set forth in
paragraph (v) above, there was no valid offset, defense, counterclaim or
right to rescission, abatement of amounts due under the Mortgage Note or
diminution of amounts due under the Mortgage Note with respect to any of
the related Mortgage Note, Mortgage(s) or other agreements executed in
connection with such Mortgage Loan; and, as of the Closing Date, subject to
the limitations and exceptions as to enforceability set forth in paragraph
(v) above, there is no valid offset, defense, counterclaim or right of
rescission, abatement of amounts due under the Mortgage Note or diminution
of amounts due under the Mortgage Note with respect to any of the related
Mortgage Note, Mortgage(s) or other agreements executed in connection with
such Mortgage Loan.
(vii) Assignments. The assignment of the related Mortgage(s) and
Assignment(s) of Leases to the Trustee constitutes the legal, valid,
binding and, subject to the limitations and exceptions as to enforceability
set forth in paragraph (v) above, enforceable assignment of such documents
(provided that the unenforceability of any such assignment based on
bankruptcy, insolvency, receivership, reorganization, liquidation,
moratorium and/or other similar laws affecting the enforcement of
creditors' rights generally or based on general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law) shall be a breach of this representation and warranty
only upon the declaration by a court with jurisdiction in the matter that
such assignment is to be unenforceable on such basis).
B-2
(viii) First Lien. Each related Mortgage is a valid and, subject
to the limitations and exceptions in paragraph (v) above, enforceable first
lien on the related Mortgaged Property including all improvements thereon
(other than any tenant owned improvements), which Mortgaged Property is
free and clear of all encumbrances and liens having priority over or on a
parity with the first lien of such Mortgage, except for the following
(collectively, the "Permitted Encumbrances"): (A) the lien for real estate
taxes, water charges, sewer rents and assessments not yet due and payable;
(B) covenants, conditions and restrictions, rights of way, easements and
other matters that are of public record or that are omitted as exceptions
in the related lender's title insurance policy (or, if not yet issued,
omitted as exceptions in a pro forma title policy or title policy
commitment); (C) exceptions and exclusions specifically referred to in the
related lender's title insurance policy (or, if not yet issued, referred to
in a pro forma title policy or title policy commitment); (D) other matters
to which like properties are commonly subject, (E) the rights of tenants
(as tenants only) under leases (including subleases) pertaining to the
related Mortgaged Property; (F) condominium declarations of record and
identified in the related lender's title insurance policy (or, if not yet
issued, identified in a pro forma title policy or title policy commitment);
and (G) if such Mortgage Loan constitutes a Cross-Collateralized Mortgage
Loan, the lien of the Mortgage for another Mortgage Loan contained in the
same Cross-Collateralized Group; provided that, in the case of a Trust
Mortgage Loan that is part of a Loan Combination, such Mortgage also
secures the other mortgage loan(s) in such Loan Combination. With respect
to such Mortgage Loan, such Permitted Encumbrances do not, individually or
in the aggregate, materially and adversely interfere with the benefits of
the security intended to be provided by the related Mortgage, the current
principal use or operation of the related Mortgaged Property or the ability
of the related Mortgaged Property to generate sufficient cashflow to enable
the related Mortgagor to timely pay in full the principal and interest on
the related Mortgage Note (other than a Balloon Payment, which would
require a refinancing). If the related Mortgaged Property is operated as a
nursing facility or a hospitality property, the related Mortgage, together
with any security agreement, chattel mortgage or similar agreement and UCC
financing statement, if any, establishes and creates a first priority,
perfected security interest (subject only to any prior purchase money
security interest, revolving credit lines and any personal property
leases), to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in
all material personal property owned by the Mortgagor that is used in, and
is reasonably necessary to, the operation of the related Mortgaged
Property, and that is located on the related Mortgaged Property, which
personal property includes, in the case of Mortgaged Properties operated by
the related Mortgagor as a nursing facility or hospitality property, all
furniture, fixtures, equipment and other personal property located at the
subject Mortgaged Property that are owned by the related Mortgagor and
reasonably necessary or material to the operation of the subject Mortgaged
Property. In the case of any Mortgage Loan secured by a hotel, the related
loan documents contain such provisions as are necessary and UCC financing
statements have been filed as necessary, in each case, to perfect a valid
first priority security interest, to the extent such security interest can
be perfected by the inclusion of such provisions and the filing of a UCC
financing statement, in the Mortgagor's right to receive related hotel room
revenues with respect to such Mortgaged Property.
(ix) Taxes and Assessments. All taxes, governmental assessments,
water charges, sewer rents or similar governmental charges which, in all
such cases, were directly related to the related Mortgaged Property and
could constitute liens on the related Mortgaged
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Property prior to the lien of the related Mortgage, together with all
ground rents, that prior to the related Due Date in June 2005 became due
and payable in respect of, and materially affect, any related Mortgaged
Property have been paid or are escrowed for or are not yet delinquent, and
the Seller knows of no unpaid tax, assessment, ground rent, water charges
or sewer rent, which, in all such cases, were directly related to the
subject Mortgaged Property and could constitute liens on the subject
Mortgaged Property prior to the lien of the related Mortgage that prior to
the Closing Date became due and delinquent in respect of any related
Mortgaged Property, or in any such case an escrow of funds in an amount
sufficient to cover such payments has been established.
(x) No Material Damage. As of the date of origination of such
Mortgage Loan and, to the actual knowledge of the Seller, as of the Closing
Date, there was no pending proceeding for the total or partial condemnation
of any related Mortgaged Property that materially affects the value thereof
and such Mortgaged Property is free of material damage. Except for certain
amounts not greater than amounts which would be considered prudent by an
institutional commercial mortgage lender with respect to a similar mortgage
loan and which are set forth in the related Mortgage or other loan
documents relating to such Mortgage Loan, (and subject to any rights of the
lessor under any related Ground Lease) the related Mortgage Loan documents
provide that any condemnation awards will be applied (or, at the discretion
of the mortgagee, will be applied) to either the repair or restoration of
all or part of the related Mortgaged Property or the reduction of the
outstanding principal balance of such Mortgage Loan.
(xi) Title Insurance. Each related Mortgaged Property is covered
by an ALTA (or its equivalent) lender's title insurance policy issued by a
nationally recognized title insurance company, insuring that each related
Mortgage is a valid first lien on such Mortgaged Property in the original
principal amount of such Mortgage Loan (or, if such Mortgage Loan is part
of a Loan Combination, in the original principal amount of such Loan
Combination) after all advances of principal, subject only to Permitted
Encumbrances and, in the case of a Trust Mortgage Loan that is part of a
Loan Combination, further subject to the fact that the related Mortgage
also secures the related Non-Trust Mortgage Loan(s) (or if such policy has
not yet been issued, such insurance may be evidenced by a binding
commitment or binding pro forma marked as binding and signed (either
thereon or on a related escrow letter attached thereto) by the title
insurer or its authorized agent) from a title insurer qualified and/or
licensed in the applicable jurisdiction, as required, to issue such policy;
such title insurance is in full force and effect, all premiums have been
paid, is freely assignable and will inure to the benefit of the Trustee as
sole insured as mortgagee of record, or any such commitment or binding pro
forma is a legal, valid and binding obligation of such insurer; no claims
have been made by the Seller under such title insurance; and neither the
Seller nor any Affiliate of the Seller has done, by act or omission,
anything that would materially impair the coverage of any such title
insurance policy; such policy or commitment or binding pro forma contains
no exclusion for (or alternatively it insures over such exclusion, unless
such coverage is unavailable in the relevant jurisdiction) (A) access to a
public road, (B) that there is no material encroachment by any improvements
on the related Mortgaged Property either to or from any adjoining property
or across any easements on the related Mortgaged Property, and (C) that the
land shown on the survey materially conforms to the legal description of
the related Mortgaged Property.
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(xii) Property Insurance. As of the date of its origination and,
to the Seller's actual knowledge, as of the Cut-off Date, all insurance
required under each related Mortgage (except where a tenant under a lease
is permitted to insure or self-insure under a lease) was in full force and
effect with respect to each related Mortgaged Property; such insurance
included (A) fire and extended perils insurance included within the
classification "All Risk of Physical Loss" or the equivalent thereof in an
amount (subject to a customary deductible) at least equal to the lesser of
(1) 100% of the full insurable value of the improvements located on such
Mortgaged Property and (2) the outstanding principal balance of such
Mortgage Loan or the portion thereof allocable to such Mortgaged Property),
(B) business interruption or rental loss insurance for a period of not less
than 12 months, (C) comprehensive general liability insurance in an amount
not less than $1 million per occurrence, (D) workers' compensation
insurance (if the related Mortgagor has employees and if required by
applicable law), and (E) if (1) such Mortgage Loan is secured by a
Mortgaged Property located in the State of California or in "seismic zone"
3 or 4 and (2) a seismic assessment as described below revealed a maximum
probable or bounded loss in excess of 20% of the amount of the estimated
replacement cost of the improvements on such Mortgaged Property, seismic
insurance; it is an event of default under such Mortgage Loan if the
above-described insurance coverage is not maintained by the related
Mortgagor (except where a tenant under a lease is permitted to insure or
self-insure under a lease) and the related loan documents provide (in
either a general cost and expense recovery provision or a specific
provision with respect to recovery of insurance costs and expenses) that
any reasonable out-of-pocket costs and expenses incurred by the mortgagee
in connection with such default in obtaining such insurance coverage may be
recovered from the related Mortgagor; the related Evidence of Property
Insurance and certificate of liability insurance (which may be in the form
of an ▇▇▇▇▇ 27 or an ▇▇▇▇▇ 25, respectively), or forms substantially
similar thereto, provide that the related insurance policy may not be
terminated or reduced without at least 10 days prior notice to the
mortgagee and (other than those limited to liability protection) name the
mortgagee and its successors as loss payee; no notice of termination or
cancellation with respect to any such insurance policy has been received by
the Seller; all premiums under any such insurance policy have been paid
through the Cut-off Date; the insurance policies specified in clauses (A),
(B) and (C) above are required to be maintained with insurance companies
having "financial strength" or "claims paying ability" ratings of at least
"A:VII" from A.M. Best Company or at least "BBB+" (or equivalent) from a
nationally recognized statistical rating agency (or, with respect to
certain blanket insurance policies, such other ratings as are in compliance
with S&P's applicable criteria for rating the Certificates); and, except
for certain amounts not greater than amounts which would be considered
prudent by an institutional commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Mortgage or
other loan documents relating to such Mortgage Loan, and subject to the
related exception schedules, the related Mortgage Loan documents provide
that any property insurance proceeds will be applied (or, at the discretion
of the mortgagee, will be applied) either to the repair or restoration of
all or part of the related Mortgaged Property or the reduction of the
outstanding principal balance of such Mortgage Loan; provided that the
related Mortgage Loan documents may entitle the related Mortgagor to any
portion of such proceeds remaining after completion of the repair or
restoration of the related Mortgaged Property or payment of amounts due
under such Mortgage Loan. Notwithstanding anything to the contrary in this
paragraph (xii), with regard to insurance for acts of terrorism, any such
insurance and the amount thereof may be limited by the commercial
availability of such coverage, whether the mortgagee may reasonably require
such insurance, certain limitations with respect to the cost thereof and/or
whether such hazards are at the time
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commonly insured against for property similar to the related Mortgaged
Property. If the related Mortgaged Property is located in the State of
California or in "seismic zone" 3 or 4, then: (A) either a seismic
assessment was conducted with respect to the related Mortgaged Property in
connection with the origination of such Mortgage Loan or earthquake
insurance was obtained; and (B) the probable maximum loss for the related
Mortgaged Property as reflected in such seismic assessment, if any, was
determined based upon a return period of not less than 475 years, an
exposure period of 50 years and a 10% probability of incidence. Schedule
I-xii attached hereto is true and correct in all material respects.
(xiii) No Material Defaults. Other than payments due but not yet
30 days or more delinquent, there is (A) no material default, breach,
violation or event of acceleration existing under the related Mortgage
Note, the related Mortgage or other loan documents relating to such
Mortgage Loan, and (B), to the knowledge of the Seller, no event which,
with the passage of time or with notice and the expiration of any grace or
cure period, would constitute a material default, breach, violation or
event of acceleration under any of such documents; provided, however, that
this representation and warranty does not cover any default, breach,
violation or event of acceleration (A) that specifically pertains to or
arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Exhibit B or (B)
with respect to which the Seller has no actual knowledge. The Seller has
not waived, in writing or with knowledge, any material default, breach,
violation or event of acceleration under any of such documents. Under the
terms of such Mortgage Loan, no person or party other than the mortgagee or
its servicing agent may declare an event of default or accelerate the
related indebtedness under such Mortgage Loan.
(xiv) No Payment Delinquency. As of the Closing Date, such
Mortgage Loan is not, and in the prior 12 months (or since the date of
origination if such Mortgage Loan has been originated within the past 12
months), has not been, 30 days or more past due in respect of any Monthly
Payment.
(xv) Interest Accrual Basis. Such Mortgage Loan accrues interest
on an Actual/360 Basis, an Actual/Actual Basis or a 30/360 Basis; and such
Mortgage Loan accrues interest (payable monthly in arrears) at a fixed rate
of interest throughout the remaining term thereof.
(xvi) Subordinate Debt. Each related Mortgage or other loan
document relating to such Mortgage Loan does not provide for or permit,
without the prior written consent of the holder of the related Mortgage
Note, any related Mortgaged Property or any direct controlling interest in
the Mortgagor to secure any other promissory note or debt (other than
another Mortgage Loan in the Trust Fund and, if such Mortgage Loan is part
of a Loan Combination, the other mortgage loan(s) that are part of such
Loan Combination, as applicable).
(xvii) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code.
Accordingly, either as of the date of origination or the Closing Date, the
fair market value of the real property securing such Mortgage Loan was not
less than 80% of the "adjusted issue price" (within the meaning of the
REMIC Provisions) of such Mortgage Loan. For purposes of the preceding
sentence, the fair market value of the real property securing such Mortgage
Loan was first reduced by the amount
B-6
of any lien on such real property that is senior to the lien that secures
such Mortgage Loan, and was further reduced by a proportionate amount of
any lien that is on a parity with the lien that secures such Mortgage Loan.
No action that occurs by operation of the terms of such Mortgage Loan would
cause such Mortgage Loan to cease to be a "qualified mortgage" and such
Mortgage Loan does not permit the release or substitution of collateral if
such release or substitution (A) would constitute a "significant
modification" of such Mortgage Loan within the meaning of Treasury
regulations section 1.1001-3, (B) would cause such Mortgage Loan not to be
a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code
(without regard to clauses (A)(i) or (A)(ii) thereof) or (C) would cause a
"prohibited transaction" within the meaning of Section 860F(a)(2) of the
Code. The related Mortgaged Property, if acquired in connection with the
default or imminent default of such Mortgage Loan, would constitute
"foreclosure property" within the meaning of Section 860G(a)(8) of the
Code.
(xviii) Prepayment Consideration. Prepayment Premiums and Yield
Maintenance Charges payable with respect to such Mortgage Loan, if any,
constitute "customary prepayment penalties" within the meaning of Treasury
regulations section 1.860G-1(b)(2).
(xix) Environmental Conditions. One or more environmental site
assessments or transaction screens, or one or more updates of a previously
conducted environmental assessment or transaction screen, were performed by
an environmental consulting firm independent of the Seller and the Seller's
Affiliates with respect to each related Mortgaged Property during the
12-month period preceding the Cut-off Date, and the Seller, having made no
independent inquiry other than to review the report(s) prepared in
connection with the assessment(s), transaction screen(s) and/or update(s)
referenced herein, has no knowledge of, and has not received actual notice
of, any material and adverse environmental condition or circumstance
affecting such Mortgaged Property that was not disclosed in such report(s);
all of such environmental site assessments and transaction screens met ASTM
requirements to the extent set forth in such report; and none of the above
referenced environmental reports reveal any circumstances or conditions
that are in violation of any applicable environmental laws, or if such
report does reveal such circumstances, then (1) the same have been
remediated in all material respects, (2) sufficient funds have been
escrowed or a letter of credit, guaranty or other instrument has been
delivered for purposes of covering the estimated costs of such remediation,
(3) the related Mortgagor or other responsible party is currently taking
remedial or other appropriate action to address the environmental issue
consistent with the recommendations in such site assessment, (4) the cost
of the environmental issue relative to the value of such Mortgaged Property
was de minimis, or (5) environmental insurance has been obtained.
The Mortgagor with respect to such Mortgage Loan has represented,
warranted and covenanted generally to the effect that, to its knowledge,
except as set forth in the environmental reports described above, it has
not used, caused or permitted to exist, and will not use, cause or permit
to exist, on the related Mortgaged Property, any Hazardous Materials in any
manner which violates applicable federal, state or local laws governing the
use, storage, handling, production or disposal of Hazardous Materials at
the related Mortgaged Property and (A) the related Mortgagor and a natural
person have agreed to indemnify the mortgagee under such Mortgage Loan, and
its successors and assigns, against any losses, liabilities, damages,
penalties, fines, claims and reasonable out of pocket expenses (excluding
lost profits, consequential damages and diminution of value of the related
Mortgaged Property, provided that no Mortgage
B-7
Loan with an original principal balance equal to or greater than
$15,000,000 contains an exclusion for "diminution of value" of the related
Mortgaged Property) paid, suffered or incurred by such mortgagee resulting
from such Mortgagor's material violation of any environmental law or a
material breach of the environmental representations and warranties or
covenants given by the related Mortgagor in connection with such Mortgage
Loan or (B) environmental insurance has been obtained. If such Mortgage
Loan is a Mortgage Loan as to which neither a natural person has provided
the indemnity set forth above nor environmental insurance has been
obtained, such Mortgage Loan is set forth on Schedule I.
The Seller has not taken any action with respect to such Mortgage Loan
or the related Mortgaged Property that could subject the Seller or its
successors and assigns in respect of such Mortgage Loan to liability under
CERCLA or any other applicable federal, state or local environmental law.
The related Mortgage or other loan documents require the related Mortgagor
to comply with all applicable federal, state and local environmental laws
and regulations.
(xx) Realization Against Real Estate Collateral. The related
Mortgage Note, Mortgage(s), Assignment(s) of Leases and other loan
documents securing such Mortgage Loan, if any, contain customary and,
subject to the limitations and exceptions as to enforceability in paragraph
(v) above, enforceable provisions such as to render the rights and remedies
of the holder thereof adequate for the practical realization against the
related Mortgaged Property or Properties of the principal benefits of the
security intended to be provided thereby, including realization by judicial
or, if applicable, non-judicial foreclosure.
(xxi) Bankruptcy. The related Mortgagor is not a debtor in any
bankruptcy, reorganization, insolvency or comparable proceeding; provided,
however, that this representation and warranty does not cover any such
bankruptcy, reorganization, insolvency or comparable proceeding with
respect to which: (1) the Seller has no actual knowledge and (2) written
notice of the discovery thereof is not delivered to the Seller by the
Trustee or the Master Servicer on or prior to the date occurring twelve
months after the Closing Date.
(xxii) Loan Security. Such Mortgage Loan is secured by a Mortgage
on a fee simple interest and/or a leasehold estate in a commercial property
or multifamily property, including the related Mortgagor's interest in the
improvements on the related Mortgaged Property.
(xxiii) Amortization. Such Mortgage Loan does not provide for
negative amortization.
(xxiv) Whole Loan. Such Mortgage Loan is a whole loan, contains
no equity participation by the lender or shared appreciation feature and
does not provide for any contingent interest in the form of participation
in the cash flow of the related Mortgaged Property.
(xxv) Due-on-Encumbrance. Each Mortgage Loan contains provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the prior written consent of the mortgagee or
Rating Agency confirmation that an Adverse Rating Event with respect to any
Class of Certificates would not occur, any related Mortgaged Property or
any direct controlling interest in the Mortgagor is directly encumbered in
connection
B-8
with subordinate financing; and except in the case of a Trust Mortgage Loan
that is part of a Loan Combination (for which such consent has been granted
with respect to the other mortgage loan(s) in such Loan Combination), and
except for the respective Mortgage Loans secured by the Mortgaged
Properties listed on Schedule I (for which such consent has been granted
with respect to mezzanine debt), no such consent has been granted by the
Seller. To the Seller's knowledge, no related Mortgaged Property is
encumbered in connection with subordinate financing; however, if the
related Mortgaged Property is listed on Schedule I, certain direct
controlling equity holders in the related Mortgagor are known to the Seller
to have incurred debt secured by their ownership interest in the related
Mortgagor.
(xxvi) Due-on-Sale. Except with respect to transfers of certain
non-controlling and/or minority interests in the related Mortgagor as
specified in the related Mortgage or with respect to transfers of interests
in the related Mortgagor between immediate family members and with respect
to transfers by devise, by descent or by operation of law or otherwise upon
the death or incapacity of a person having an interest in the related
Mortgagor, each Mortgage Loan contains either (A) provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if any related Mortgaged Property or interest therein is
directly or indirectly transferred or sold without the prior written
consent of the mortgagee or rating agency confirmation, or (B) provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if any related Mortgaged Property or interest therein is
directly or indirectly transferred or sold without the related Mortgagor
having satisfied certain conditions specified in the related Mortgage with
respect to permitted transfers.
(xxvii) Mortgagor Concentration. No Mortgage Loan, together with
any other Mortgage Loan made to the same Mortgagor or to an Affiliate of
such Mortgagor, represents more than 5% of the Initial Pool Balance.
(xxviii) Waivers; Modifications. Except as set forth in a written
instrument included in the related Mortgage File, the (A) material terms of
the related Mortgage Note, the related Mortgage(s) and any related loan
agreement and/or lock-box agreement have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded by the
mortgagee in any manner, and (B) no portion of a related Mortgaged Property
has been released from the lien of the related Mortgage, in the case of (A)
and/or (B), to an extent or in a manner that in any such event materially
interferes with the security intended to be provided by such document or
instrument.
(xxix) Inspection. Each related Mortgaged Property was inspected
by or on behalf of the related originator during the six-month period prior
to the related origination date.
(xxx) Property Release. The terms of the related Mortgage Note,
Mortgage(s) or other loan document securing such Mortgage Loan do not
provide for the release from the lien of such Mortgage of any material
portion of the related Mortgaged Property that is necessary to the
operation of such Mortgaged Property or was given material value in the
underwriting of such Mortgage Loan at origination, without (A) payment in
full of such Mortgage Loan, (B) delivery of Defeasance Collateral in the
form of "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the "Investment Company
Act"), (C) delivery of substitute real property collateral, or (D) payment
of a release
B-9
price equal to at least 125% of the of the amount of such Mortgage Loan
allocated to the related Mortgaged Property subject to the release or (E)
the satisfaction of certain underwriting and legal requirements which the
Seller required in the origination of comparable mortgage loans.
(xxxi) Qualifications; Licensing; Zoning. The related Mortgagor
has covenanted in the related Mortgage Loan documents to maintain the
related Mortgaged Property in compliance in all material respects with, to
the extent it is not grandfathered under, all applicable laws, zoning
ordinances, rules, covenants and restrictions affecting the construction,
occupancy, use and operation of such Mortgaged Property, and the related
originator performed the type of due diligence in connection with the
origination of such Mortgage Loan customarily performed by such originator
in the origination of comparable mortgage loans with respect to the
foregoing matters; the Seller has received no notice of any material
violation of, to the extent is has not been grandfathered under, any
applicable laws, zoning ordinances, rules, covenants or restrictions
affecting the construction, occupancy, use or operation of the related
Mortgaged Property (unless affirmatively covered by the title insurance
referred to in paragraph (xi) above (or an endorsement thereto)); to the
Seller's knowledge (based on surveys, opinions, letters from municipalities
and/or title insurance obtained in connection with the origination of such
Mortgage Loan), no improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at the
time of origination of such Mortgage Loan lay outside the boundaries and
building restriction lines of such property, in effect at the time of
origination of such Mortgage Loan, to an extent which would have a material
adverse affect on the related Mortgagor's use and operation of such
Mortgaged Property (unless grandfathered with respect thereto or
affirmatively covered by the title insurance referred to in paragraph (xi)
above (or an endorsement thereto)), and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent.
(xxxii) Property Financial Statements. The related Mortgagor has
covenanted in the related Mortgage Loan documents to deliver to the
mortgagee annual operating statements and rent rolls of each related
Mortgaged Property. If such Mortgage Loan had an original principal balance
greater than $15 million, the related Mortgagor has covenanted to provide
such operating statements and rent rolls on a quarterly basis.
(xxxiii) Single Purpose Entity. If such Mortgage Loan has a
Cut-off Date Balance in excess of $25 million, then the related Mortgagor
is obligated by its organizational documents and the related Mortgage Loan
documents to be a Single Purpose Entity for so long as such Mortgage Loan
is outstanding; and, if such Mortgage Loan has a Cut-off Date Balance
greater than $5 million and less than $25 million, then the related
Mortgagor is obligated by its organizational documents and/or the related
Mortgage Loan documents to own the related Mortgaged Property and no other
material assets, except such as are incidental to the ownership of such
Mortgaged Property for so long as such Mortgage Loan is outstanding. For
purposes of this representation, "Single Purpose Entity" means an entity
whose organizational documents or the related Mortgage Loan documents
provide substantially to the effect that such entity: (A) is formed or
organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing such Mortgage Loan, (B) may not engage in any
business unrelated to the related Mortgaged Property or Mortgaged
Properties, (C) does not have any material assets other than those related
to its interest in and operation of such Mortgaged Property or Mortgaged
Properties and (D) may not incur indebtedness other than as permitted by
B-10
the related Mortgage or other Mortgage Loan documents. If such Mortgage
Loan has an initial principal balance of $25 million and above and the
related Mortgagor is a single member limited liability company, such
Mortgagor's organizational documents provide that such Mortgagor shall not
dissolve or liquidate upon the bankruptcy, dissolution, liquidation or
death of its sole member and is organized in a jurisdiction that provides
for such continued existence and there was obtained opinion of counsel
confirming such continued existence. If such Mortgage Loan has, or is part
of a group of Mortgage Loans with affiliated Mortgagors having, a Cut-off
Date Balance equal to or greater than 2% of the Initial Pool Balance, or if
such Mortgage Loan has an original principal balance equal to or greater
than $25 million, there was obtained an opinion of counsel regarding
non-consolidation of such Mortgagor.
(xxxiv) Advancing of Funds. No advance of funds has been made,
directly or indirectly, by the originator or the Seller to the related
Mortgagor other than pursuant to the related Mortgage Note; and, to the
actual knowledge of the Seller, no funds have been received from any Person
other than such Mortgagor for or on account of payments due on the related
Mortgage Note.
(xxxv) Legal Proceedings. To the Seller's actual knowledge, there
are no pending actions, suits or proceedings by or before any court or
governmental authority against or affecting the related Mortgagor or any
related Mortgaged Property that, if determined adversely to such Mortgagor
or Mortgaged Property, would materially and adversely affect the value of
such Mortgaged Property or the ability of such Mortgagor to pay principal,
interest or any other amounts due under such Mortgage Loan.
(xxxvi) Originator Duly Authorized. To the extent required under
applicable law as of the Closing Date, the originator of such Mortgage Loan
was qualified and authorized to do business in each jurisdiction in which a
related Mortgaged Property is located at all times when it held such
Mortgage Loan to the extent necessary to ensure the enforceability of such
Mortgage Loan.
(xxxvii) Trustee under Deed of Trust. If the related Mortgage is
a deed of trust, a trustee, duly qualified under applicable law to serve as
such, is properly designated and serving under such Mortgage, and no fees
and expenses are payable to such trustee except in connection with a
trustee sale of the related Mortgaged Property following a default or in
connection with the release of liens securing such Mortgage Loan.
(xxxviii) Cross-Collateralization. The related Mortgaged Property
is not, to the Seller's knowledge, collateral or security for any mortgage
loan that is not in the Trust Fund and, if such Mortgage Loan is
cross-collateralized, it is cross-collateralized only with other Mortgage
Loans in the Trust Fund, except that a Trust Mortgage Loan that is part of
a Loan Combination is secured by one or more Mortgaged Properties that also
secure the related Non-Trust Mortgage Loan(s). The security interest/lien
on each material item of collateral for such Mortgage Loan has been
assigned to the Trustee.
(xxxix) Flood Hazard Insurance. None of the improvements on any
related Mortgaged Property are located in a flood hazard area as defined by
the Federal Insurance Administration or, if any portion of the improvements
on the related Mortgaged Property are in an area identified in the Federal
Register by the Federal Emergency Management Agency as
B-11
having special flood hazards falling within zones A or V in the national
flood insurance program, the Mortgagor has obtained and is required to
maintain flood insurance.
(xl) Engineering Assessments. One or more engineering assessments
or updates of a previously conducted engineering assessment were performed
by an Independent engineering consulting firm with respect to each related
Mortgaged Property during the 12-month period preceding the Cut-off Date,
and the Seller, having made no independent inquiry other than to review the
report(s) prepared in connection with such assessment(s) and or update(s),
does not have any knowledge of any material and adverse engineering
condition or circumstance affecting such Mortgaged Property that was not
disclosed in such report(s); and, to the extent such assessments revealed
deficiencies, deferred maintenance or similar conditions, either (A) the
estimated cost has been escrowed or a letter of credit has been provided,
(B) repairs have been made or (C) the scope of the deferred maintenance
relative to the value of such Mortgaged Property was de minimis.
(xli) Escrows. All escrow deposits and payments relating to such
Mortgage Loan are under control of the Seller or the servicer of such
Mortgage Loan and all amounts required as of the date hereof under the
related Mortgage Loan documents to be deposited by the related Mortgagor
have been deposited. The Seller is transferring to the Trustee all of its
right, title and interest in and to such amounts.
(xlii) Licenses, Permits and Authorizations. The related
Mortgagor has represented in the related Mortgage Loan documents that, and
to the actual knowledge of the Seller, as of the date of origination of
such Mortgage Loan, all material licenses, permits and authorizations then
required for use of the related Mortgaged Property by such Mortgagor, the
related lessee, franchisor or operator have been issued and were valid and
in full force and effect.
(xliii) Servicing and Collection Practices. The servicing and
collection practices used by the Seller or, to the Seller's knowledge, any
prior holder of the related Mortgage Note with respect to such Mortgage
Loan have been in all respects legal and have met customary industry
standards.
(xliv) Fee Simple. Unless such Mortgage Loan is covered by the
representation and warranty in the immediately following paragraph (xlv),
such Mortgage Loan is secured in whole or material part by a fee simple
interest.
(xlv) Leasehold Interest Only. If such Mortgage Loan is secured
in whole or in material part by the interest of the related Mortgagor as a
lessee under a Ground Lease but not by the related fee interest, then:
(A) such Ground Lease or a memorandum thereof has been or will
be duly 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
B-12
to the Trustee without the consent of the lessor thereunder
(or, if any such consent is required, it has been obtained
prior to the Closing Date) and, in the event that it is so
assigned, is further assignable by the Trustee and its
successors without a need to obtain the consent of such
lessor (or, if any such consent is required, it has been
obtained prior to the Closing Date or may not be
unreasonably withheld);
(C) such Ground Lease may not be amended or modified without the
prior written consent of the mortgagee under such Mortgage
Loan and any such action without such consent is not binding
on such mortgagee, its successors or assigns;
(D) unless otherwise set forth in such Ground Lease, such Ground
Lease does not permit any increase in the amount of rent
payable by the ground lessee thereunder during the term of
such Mortgage Loan;
(E) such Ground Lease was in full force and effect as of the
date of origination of the related Mortgage Loan and, at the
Closing Date, such Ground Lease is in full force and effect;
to the actual knowledge of the Seller, except for payments
due but not yet 30 days or more delinquent, (1) there is no
material default under such Ground Lease, and (2) there is
no event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute
a material default under such Ground Lease;
(F) such Ground Lease, or an estoppel or consent letter received
by the mortgagee under such Mortgage Loan from the lessor,
requires the lessor thereunder to give notice of any default
by the lessee to such mortgagee; and such Ground Lease, or
an estoppel or consent letter received by the mortgagee
under such Mortgage Loan from the lessor, further provides
either (1) that no notice of termination given under such
Ground Lease is effective against such mortgagee unless a
copy has been delivered to the mortgagee in the manner
described in such Ground Lease, estoppel or consent letter
or (2) that upon any termination of such Ground Lease the
lessor will enter into a new lease with such mortgagee upon
such mortgagee's request;
(G) based upon the related policy of title insurance, the ground
lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than the related ground
lessor's related fee interest and any Permitted
Encumbrances;
(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;
B-13
(I) such Ground Lease has a currently effective term (including
any options exercisable by the holder of the related
Mortgage) that extends not less than 20 years beyond the
Stated Maturity Date of the related Mortgage Loan;
(J) under the terms of such Ground Lease, any estoppel or
consent letter received by the mortgagee under such Mortgage
Loan from the lessor and the related Mortgage Loan
documents, taken together, any related insurance proceeds,
other than de minimis amounts for minor casualties, with
respect to the leasehold interest, or condemnation proceeds
will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as the repair or restoration
progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan, together
with any accrued interest thereon;
(K) such Ground Lease does not impose any restrictions on use or
subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender;
(L) upon the request of the mortgagee under such Mortgage Loan,
the ground lessor under such Ground Lease is required to
enter into a new lease upon termination of the Ground Lease
for any reason prior to the expiration of the term thereof,
including as a result of the rejection of the Ground Lease
in a bankruptcy of the related Mortgagor unless the
mortgagee under such Mortgage Loan fails to cure a default
of the lessee under such Ground Lease following notice
thereof from the lessor; and
(M) the terms of the related Ground Lease have not been waived,
modified, altered, satisfied, impaired, canceled,
subordinated or rescinded in any manner which materially
interferes with the security intended to be provided by such
Mortgage, except as set forth in an instrument or document
contained in the related Mortgage File.
(xlvi) Fee Simple and Leasehold Interest. If such Mortgage Loan
is secured by the interest of the related Mortgagor under a Ground Lease
and by the related fee interest, then (A) such fee interest is subject, and
subordinated of record, to the related Mortgage, (B) the related Mortgage
does not by its terms provide that it will be subordinated to the lien of
any other mortgage or other lien upon such fee interest, and (C) upon
occurrence of a default under the terms of the related Mortgage by the
related Mortgagor, the mortgagee under such Mortgage Loan has the right
(subject to the limitations and exceptions set forth in paragraph (v)
above) to foreclose upon or otherwise exercise its rights with respect to
such fee interest.
(xlvii) Tax Lot; Utilities. Each related Mortgaged Property
constitutes one or more complete separate tax lots (or the related
Mortgagor has covenanted to obtain separate tax
B-14
lots and an escrow of funds in an amount sufficient to pay taxes resulting
from a breach thereof has been established) or is subject to an endorsement
under the related title insurance policy; and each related Mortgaged
Property is served by a public or other acceptable water system, a public
sewer (or, alternatively, a septic) system, and other customary utility
facilities.
(xlviii) Defeasance. If such Mortgage Loan is a Defeasance
Mortgage Loan, the related Mortgage Loan documents require the related
Mortgagor to pay all reasonable costs associated with the defeasance
thereof, and either: (A) require the prior written consent of, and
compliance with the conditions set by, the holder of such Mortgage Loan for
defeasance or (B) require that (1) defeasance may not occur prior to the
second anniversary of the Closing Date, (2) the Defeasance Collateral must
be government securities within the meaning of Treasury regulations section
1.860G-2(a)(8)(i) and must be sufficient to make all scheduled payments
under the related Mortgage Note when due or, in the case of a partial
defeasance that effects the release of a material portion of the related
Mortgaged Property, to make all scheduled payments under the related
Mortgage Note on that part of such Mortgage Loan equal to at least 110% of
the allocated loan amount of the portion of the Mortgaged Property being
released, (3) an independent accounting firm (which may be the Mortgagor's
independent accounting firm) certify that the Defeasance Collateral is
sufficient to make such payments, (4) such Mortgage Loan be assumed by a
successor entity designated by the holder of such Mortgage Loan (or by the
Mortgagor with the approval of such lender), and (5) counsel provide an
opinion letter to the effect that the Trustee has a perfected security
interest in such Defeasance Collateral prior to any other claim or
interest.
(xlix) Primary Servicing Rights. No Person has been granted or
conveyed the right to primary service such Mortgage Loan or receive any
consideration in connection therewith except (A) as contemplated in the
Pooling and Servicing Agreement with respect to primary servicers that are
to be sub-servicers of the Master Servicer, (B) as has been conveyed to the
Master Servicer, or (C) as has been terminated.
(l) Mechanics' and Materialmen's Liens. As of origination, (A)
the related Mortgaged Property is free and clear of any and all mechanics'
and materialmen's liens that are not bonded, insured against or escrowed
for, and (B) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related
Mortgage (unless affirmatively covered by the title insurance referred to
in paragraph (xi) above (or an endorsement thereto)). The Seller has not
received actual notice with respect to such Mortgage Loan that any
mechanics' and materialmen's liens have encumbered the related Mortgaged
Property since origination that have not been released, bonded, insured
against or escrowed for.
(li) Due Date. Subject to any business day convention imposed by
the related loan documents, the Due Date for such Mortgage Loan is
scheduled to be the first day, the sixth day, the tenth day or the eleventh
day of each month.
(lii) Assignment of Leases. Subject only to Permitted
Encumbrances, the related Assignment of Leases set forth in or separate
from the related Mortgage and delivered in connection with such Mortgage
Loan establishes and creates a valid and, subject only to the exceptions
and limitations in paragraph (v) above, enforceable first priority lien and
first priority security interest in the related Mortgagor's right to
receive payments due under any and all
B-15
leases, subleases, licenses or other agreements pursuant to which any
Person is entitled to occupy, use or possess all or any portion of the
related Mortgaged Property subject to the related Mortgage, except that a
license may have been granted to the related Mortgagor to exercise certain
rights and perform certain obligations of the lessor under the relevant
lease or leases; and each assignor thereunder has the full right to assign
the same.
(liii) Mortgagor Formation or Incorporation. To the Seller's
knowledge, the related Mortgagor is a Person formed or incorporated in a
jurisdiction within the United States.
(liv) No Ownership Interest in Mortgagor. The Seller has no
ownership interest in the related Mortgaged Property or the related
Mortgagor other than as the holder of such Mortgage Loan being sold and
assigned, and neither the Seller nor any affiliate of the Seller has any
obligation to make any capital contributions to the related Mortgagor under
the Mortgage or any other related Mortgage Loan document.
(lv) No Undisclosed Common Ownership. To the Seller's knowledge,
except where multiple properties secure an individual Mortgage Loan and
except for properties securing Mortgage Loans that are cross-defaulted and
cross-collateralized and, except as listed on Schedule I no two properties
securing Mortgage Loans are directly or indirectly under common ownership.
(lvi) Loan Outstanding. Such Mortgage Loan has not been satisfied
in full, and except as expressly contemplated by the related loan agreement
or other documents contained in the related Mortgage File, no material
portion of the related Mortgaged Property has been released.
(lvii) Usury. Such Mortgage Loan complied with or was exempt from
all applicable usury laws in effect at its date of origination.
(lviii) [Reserved.]
(lix) Appraisal. An appraisal of the related Mortgaged Property
was conducted in connection with the origination of such Mortgage Loan; and
such appraisal satisfied either (A) the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, or (B) the guidelines in Title
XI of the Financial Institutions Reform, Recovery and Enforcement Act of
1989, in either case as in effect on the date such Mortgage Loan was
originated.
With respect to the foregoing Mortgage Loans, notwithstanding anything to
the contrary, no Mortgage Loan is part of a Loan Combination.
B-16
SCHEDULE I
LB-UBS 2005-C3
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
CONTROL
NUMBER PROPERTY ISSUE
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EXCEPTIONS TO REPRESENTATION (IV): NO HOLDBACK.
--------------------------------------------------------------------------------
Hollytree Storage The proceeds of the Mortgage Loan have been
fully disbursed. The amount of $450,000
will be held back and deposited into a
reserve account until the Mortgagor
satisfies certain debt service coverage
conditions as set forth in the related loan
documents. The Mortgagor has a one-time
right to the disbursement of all or a
portion of the entire holdback amount
depending on the Mortgagor's satisfaction
of the debt service coverage conditions.
Such conditions must be met by April 1,
2007 for the Mortgagor to receive the money
from the holdback. If such conditions are
not met by April 1, 2007, the lender will
retain the amount of $450,000 as additional
collateral.
--------------------------------------------------------------------------------
Pacific Pointe The proceeds of the Mortgage Loan have been
fully disbursed. The amount of $4,000,000
will be held back and deposited into a
reserve account until the Mortgagor
satisfies certain debt service coverage
conditions as set forth in the related loan
documents. Such conditions must be met by
June 11, 2007. The Mortgagor has a right to
the disbursement of all or a portion of the
entire holdback amount depending on the
Mortgagor's satisfaction of the debt
service coverage conditions. In the event
that the Mortgagor has not requested an
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Sch. I-1
CONTROL
NUMBER PROPERTY ISSUE
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advance of the entire holdback amount by
June 11, 2007, the remaining holdback
amount will be applied to the payment of
the outstanding principal balance of the
mortgage loan.
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EXCEPTIONS TO REPRESENTATION (V): LOAN DOCUMENT STATUS.
--------------------------------------------------------------------------------
Ivanhoe Estates The loan is fully recourse until (i) the
Mortgaged Property achieves a DSCR of 1.25x
on a trailing 6 month basis and (ii) 85% of
the mobile home pads are occupied by
tenants.
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▇▇▇▇▇▇-Landover The loan is fully recourse.
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South ▇▇▇▇▇▇ Street The loan is fully recourse.
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Walgreens-San-Leandro The loan is fully recourse until the
Mortgagor has completed all of the required
punchlist items relating to the leased
space and has delivered to the lender a new
estoppel from Walgreens which states that
there is no work required to be performed
by the Mortgagor.
--------------------------------------------------------------------------------
Commerce Center II The loan is recourse to the sponsor (T.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇) for up to $1,250,000 in the
event that one of the major tenants
(Lockheed ▇▇▇▇▇▇) exercises its termination
option.
--------------------------------------------------------------------------------
Atlantic 95 Building The loan is fully recourse.
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ The loan is fully recourse until the
Mortgagor delivers (i) final certificates
of occupancy for all five (5) tenants; (ii)
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Sch. I-2
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NUMBER PROPERTY ISSUE
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unconditional estoppels from Payless Shoes,
EB Games and Red Brick Pizza confirming
that they are open for business, paying
full unabated rent and have received all
tenant improvement allowances and (iii) an
estoppel from WalMart confirming that
WalMart has no current lien on the
Mortgaged Property under the recorded
Development Agreement described under
Exception to Representation (viii) for ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Three out of five tenants
are in the process of conducting
construction of their leased spaces.
--------------------------------------------------------------------------------
Macquarie DDR
Portfolio III The recourse guarantor is not a natural
person.
--------------------------------------------------------------------------------
All Properties With respect to the non-recourse carveout
guarantee concerning fraud, certain of the
guarantors have only agreed to be, in
connection with and to the extent of any
material fraud or material intentional
fraud or material misrepresentations or
material intentional misrepresentation by
the related borrower.
With respect to the non-recourse carve-out
covering misapplication or
misappropriation, some guarantors have
agreed to cover "misapplication or
conversion" or "misappropriation or
conversion" and some such non-recourse
carve-outs apply only during the
continuance of an event of default.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (VIII): FIRST LIEN.
--------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ The Mortgaged Property constitutes an
outparcel in a shopping center. The
developer of the shopping center (which
also sold the Mortgaged Property to the
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Sch. I-3
CONTROL
NUMBER PROPERTY ISSUE
--------------------------------------------------------------------------------
Mortgagor) and WalMart have entered into a
Development Agreement for the construction
of the shopping center. The developer's
obligation with respect to the construction
of the shopping center is secured, among
others, by a construction bond and a letter
of credit. However, in the event the
developer fails to perform its obligations
under the Development Agreement, WalMart
may, under the Development Agreement,
impose a lien on the shopping center,
including the Mortgaged Property. The loan
is fully recourse to the principals of the
Mortgagor until WalMart provides an
estoppel that all obligations are satisfied
or WalMart has released the Mortgagor.
--------------------------------------------------------------------------------
Davanjer Portfolio A title restriction has been recorded for
the property known as 2841 San ▇▇▇▇▇▇▇
limiting the use of this property to "one
residence." However, 2841 San ▇▇▇▇▇▇▇
property has been a duplex since 1961, and
on this basis, the title company has
insured over the restriction. The
principals of the related Mortgagor are
liable for losses, costs or damages
incurred as a result of the recorded
restriction.
--------------------------------------------------------------------------------
Sheraton Studio City The related Mortgaged Property is operated
as a hotel. GMAC has perfected a first
priority security interest pursuant to a
loan in the amount of $274,000 with respect
to a portion of the furniture located
within the hotel rooms at the Mortgaged
Property.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (X). NO MATERIAL DAMAGE.
--------------------------------------------------------------------------------
Poplar Garden Apartments There were two separate incidents of fire
reported in April 2005 at the subject
mortgaged real property which resulted in
property damage estimated by the
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Sch. I-4
CONTROL
NUMBER PROPERTY ISSUE
--------------------------------------------------------------------------------
Mortgagor to be approximately $35,000. The
extent of insurance coverage available for
the fires has not been determined as of the
date hereof.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XII). PROPERTY INSURANCE.
--------------------------------------------------------------------------------
Poplar Garden Apartments So long as the Mortgagor is obtaining
policies from Harleysville Group Insurance,
then a claims paying ability rating of at
least A-:XI from A.M. Best Company or BBB-
or better from Standard & Poor's Rating
Services is acceptable. The Mortgage Loan
is fully recourse to the guarantors of the
non-recourse carveouts to the extent that
(1) the insurance proceeds for any casualty
are insufficient to fully restore the
Mortgaged Property and (2) the insurance
maintained by the Mortgagor does not
insure, pay or otherwise cover any claims
against the Mortgagor or the Mortgaged
Property for which the Mortgagor is
required to maintain insurance under the
related loan documents.
--------------------------------------------------------------------------------
Eckerd-Fayetteville Under the lease, the tenant is providing
insurance. The Mortgagor is required to
carry additional general liability and
business interruption insurance naming the
mortgagee as additional insured.
--------------------------------------------------------------------------------
Eckerd-Concord Under the lease, the tenant is providing
insurance. The Mortgagor is required to
carry additional general liability and
business interruption insurance naming the
--------------------------------------------------------------------------------
Sch. I-5
CONTROL
NUMBER PROPERTY ISSUE
--------------------------------------------------------------------------------
mortgagee as additional insured.
--------------------------------------------------------------------------------
Walgreens-San Leandro Under the lease, the sole tenant,
Walgreens, is self-insuring.
--------------------------------------------------------------------------------
All Properties With respect to certain mortgage loans, the
lender accepted comprehensive liability
insurance in an amount less than that
required by the loan documents, provided,
however, that all of the Mortgage Loans
provide a primary general liability policy
of at least $1,000,000 per occurrence with
$2,000,000 in the aggregate. This exception
does not apply to the following Mortgage
Loans: Macquarie DDR Portfolio III, Pacific
Pointe Mortgage Loan, Commerce Park Realty
Portfolio, Cendant Office Building.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XVI). SUBORDINATE DEBT.
--------------------------------------------------------------------------------
All Properties The loan documents allow the Mortgagor 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 (XXV): DUE-ON-ENCUMBRANCE.
--------------------------------------------------------------------------------
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 (XXXVI). DUE-ON-SALE.
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Sch. I-6
CONTROL
NUMBER PROPERTY ISSUE
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Pacific Pointe The loan documents permit the transfer of
all of the ownership interests in the
Mortgagor by one of the two sponsors of the
Mortgagor to the other sponsor on and after
December 11, 2005. In connection with such
transfer, the Morgagor may prepay the
mortgage loan in part (provided that such
partial prepayment in connection with such
transfer does not cause the outstanding
principal balance to be less than
$20,000,000) with payment of a yield
maintenance premium.
--------------------------------------------------------------------------------
Poplar Garden Apartments Subject to satisfaction of certain
requirements set forth in the Mortgage, a
transfer of one of the principals 50%
interest in the Mortgagor to a family
limited partnership for estate planing
purposes is permitted.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XL). ENGINEERING ASSESSMENTS.
--------------------------------------------------------------------------------
Macquarie DDR
Portfolio III No deferred maintenance escrow was
established in respect of certain required
immediate repairs identified by the
engineering assessment estimated to cost
approximately $3,850. The Mortgagor's
obligation to complete the deferred
maintenance has been guaranteed by the
related sponsor.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXX). PROPERTY RELEASE.
--------------------------------------------------------------------------------
Davanjer Portfolio In the event of a casualty at any single
property in the Davanjer Portfolio which
results in a loss of more than 50% of the
allocated loan amount for such Mortgaged
Property, the lender may, in its
discretion, require the Mortgagor to prepay
an amount equal to 125% of the allocated
loan amount
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Sch. I-7
CONTROL
NUMBER PROPERTY ISSUE
--------------------------------------------------------------------------------
for the related Mortgaged Property and,
provided that the Mortgagor satisfies
certain other conditions set forth in the
loan documents, the Mortgagor may obtain a
release of such Mortgaged Property affected
by the casualty.
--------------------------------------------------------------------------------
Food Lion-Circle Plaza Based on the Mortgage, the Mortgagor may
release a non-improved, non-income
producing parcel from the lien of the
mortgage.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXXI). QUALIFICATIONS; LICENSING; ZONING.
--------------------------------------------------------------------------------
Commerce Center II The certificates of occupancy have not been
obtained for the 2 major tenants. One of
the major tenants (Precidio) currently
occupies the first floor of its leased
space and is constructing the second floor
of its leased space. The second tenant
(Lockheed ▇▇▇▇▇▇) is conducting
construction of its leased space. With
respect to the space under construction,
the certificate of occupancy cannot be
obtained until the construction is
complete. The lender has reserved the
amount of $230,000 which will not be
released to the Mortgagor until the
certificates of occupancy have been
obtained and the two tenants are in
occupancy.
--------------------------------------------------------------------------------
Highland Place The certificate of occupancy has not been
obtained for one of the two suites (Suite
M) leased by one of the tenants
(Definitions). Any losses, costs or
expenses incurred by the mortgagee as a
result of the lack of the certificate of
occupancy are recourse to the Mortgagor and
the guarantors of the non-recourse
carveouts. In addition, it is the
post-closing obligation of the Mortgagor to
obtain the certificate of
--------------------------------------------------------------------------------
Sch. I-8
CONTROL
NUMBER PROPERTY ISSUE
--------------------------------------------------------------------------------
occupancy.
--------------------------------------------------------------------------------
Clermont Shopping Center The certificates of occupancy have not been
obtained for most of the tenants at the
Mortgaged Property. The loan is fully
recourse to the principals of the Mortgagor
until the Mortgagor delivers the
certificates of occupancy.
--------------------------------------------------------------------------------
Davanjer Portfolio The properties located at 908 and ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ and 3410 Speedway, encroach upon the
zoning code side yard and rear yard set
backs applicable at the time of
construction. Each encroachment is minor
and each property has a certificate of
occupancy. The City of Austin has advised
that it regards the issuance of a
certificate of occupancy at the time as
evidence that it considers the properties
to be in compliance. The Mortgage Loan is
recourse to the key principals of the
related Mortgagor for loss, costs or
damages incurred as a result of enforcement
of the zoning code as to these matters.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XXXIII). SINGLE PURPOSE ENTITY.
--------------------------------------------------------------------------------
Commerce Park Realty The Mortgagor is not a newly formed entity.
However, since the date of its formation on
August 25, 1997, the Mortgagor does not and
has not owned any material assets other
than the Mortgaged Property.
--------------------------------------------------------------------------------
Cendant Office Building The Mortgagor is not a newly formed entity.
However, since the date of its formation on
August 6, 1997, the Mortgagor does not and
has not owned any material assets other
than the Mortgaged
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Sch. I-9
CONTROL
NUMBER PROPERTY ISSUE
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Property.
--------------------------------------------------------------------------------
Clermont Shopping Center The Mortgagor is not a newly formed entity.
However, since the date of its formation on
August 28, 2001, the Mortgagor does not and
has not owned any material assets other
than the Mortgaged Property.
--------------------------------------------------------------------------------
Newtown Road Office The Mortgagor is not a newly formed entity.
However, since the date of its formation on
October 29, 2003, the Mortgagor does not
and has not owned any material assets other
than the Mortgaged Property.
--------------------------------------------------------------------------------
Sheraton Studio City The Mortgagor is not a newly formed entity,
it was formed on January 10, 1997. In 1999,
the Mortgagor sold two unimproved
outparcels, which used to be a part of the
Mortgaged Property. Since the date of its
formation, the Mortgagor does not and has
not owned any material assets other than
the two unimproved outparcels sold to the
third party and the Mortgaged Property.
--------------------------------------------------------------------------------
Commerce Center II The Mortgagors are not newly formed
entities. However, since the dates of their
formation, the Mortgagors do not and have
not owned any material assets other than
the Mortgaged Property.
--------------------------------------------------------------------------------
Plum Park Apartments The Mortgagor is not a newly formed entity.
However, since the date of its formation on
June 25, 1998, the Mortgagor does not and
has not owned any material assets other
than the Mortgaged Property.
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Sch. I-10
CONTROL
NUMBER PROPERTY ISSUE
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EXCEPTION TO REPRESENTATION (XXXV). LEGAL PROCEEDINGS
--------------------------------------------------------------------------------
Eckerd-Concord The principals of the Mortgagor are
involved in a pending litigation in which
they are defendants in a breach of guaranty
claim brought by the lender under two notes
in the aggregate amount of $2.2 million
secured by a mortgage on another property
(located in ▇▇▇▇▇▇▇▇, CA) in which the
principals have an interest. The principals
have filed a cross-claim asserting that the
lender is in reality an equity provider and
that such lender took control of the
project in order to sell the property to a
buyer introduced by the lender. That sale
resulted in a year-long litigation in which
the proposed buyer acquired the property by
specific performance for the original
purchase price. According to the
principals, the lender was paid the
outstanding principal on the mortgage loans
from the proceeds of such sale and the
lender's breach of guaranty claim seeks to
recover interest that accrued over the
course of the lender's litigation with
buyer.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLV). LEASEHOLD INTEREST ONLY.
--------------------------------------------------------------------------------
Food Lion-Ocean View Mortgagor possesses a leasehold interest in
a non-income producing portion of the
Mortgaged Property, which property provides
private sewer facilities for the shopping
center at the Mortgaged Property.
Exception to Representation (xlv)(B): In
the event of the foreclosure of the
Mortgage Property, the Mortgagor's interest
in such Ground Lease may not be assigned to
the Trustee. However, under
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Sch. I-11
CONTROL
NUMBER PROPERTY ISSUE
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the ground lease, the lessor will execute a
new lease with Mortgagee upon foreclosure.
Exception to Representation (xlv)(C): The
Ground Lease may be amended or modified
without the prior written consent of the
mortgagee under the Mortgage Loan.
Exception to Representation (xlv) (I): The
term of the Ground Lease terminates in
2025, subject to automatic one year
renewals until 90 days after public sewer
facilities are available to the shopping
center at the Mortgaged Property.
Exception to Representation (xlv) (J):
Ground Lease does not explicitly provide
for the application of insurance or
condemnation proceeds to the repair or
restoration of the related Mortgaged
Property or to the payment of the
outstanding principal balance of the
Mortgage Loan.
Exception to Representation (xlv)(E): With
respect to Representation (xlv) (E),
Mortgagor was unable to obtain an estoppel
from ground lessor in response to
Mortgagor's written request therefor on May
26, 2005. Under the ground lease, if ground
lessor fails to execute, acknowledge and
deliver such estoppel within 10 days of
such request, then it will be deemed that:
(A) the ground lease is in full force and
effect; (B) the ground lease has not been
modified; (C) all rent and other payments
due under the ground lease have been paid
as of the date of ground lessee's request;
and (D) any defaults that may have existed
before the date of ground
--------------------------------------------------------------------------------
Sch. I-12
CONTROL
NUMBER PROPERTY ISSUE
--------------------------------------------------------------------------------
lessee's request are waived.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (XLVII). TAX LOT; UTILITIES.
--------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ The Mortgaged Property constitutes an
outparcel that has been recently
subdivided. As a result of such
subdivision, the Mortgaged Property will
become a separate tax lot after the next
property tax fiscal year, commencing on
July 1, 2005.
--------------------------------------------------------------------------------
The Estates at Eagle's
Pointe The Mortgaged Property is comprised of 450
separate tax lots, that are not contiguous,
but within the same Planned Unit
Development.
--------------------------------------------------------------------------------
Food Lion-Ocean View The Mortgaged Property does not currently
have access to public sewer facilities. The
private sewer facilities serve the
Mortgaged Property.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (L): MECHANICS' AND MATERIALMEN'S LIENS.
--------------------------------------------------------------------------------
South ▇▇▇▇▇▇ Street Certain work, including window replacement,
is being done at the subject Mortgaged
Property estimated to cost $412,000. There
may be a potential for a future mechanic's
lien that would be prior to the lien of the
Mortgage with respect to such work. Under
Illinois law, if "enhancement of the
property" can be proven with respect to
certain work for which the loan proceeds
were used, such lien may be prior to the
lien of the Mortgage. The title insurance
company has provided insurance with respect
to this issue and the lender has reserved
$546,250 with respect to this possibility.
--------------------------------------------------------------------------------
Sch. I-13
CONTROL
NUMBER PROPERTY ISSUE
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LI): DUE DATE
--------------------------------------------------------------------------------
Macquarie DDR III
Portfolio The due date is the fifth day of
each month.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LIV): NO OWNERSHIP INTEREST IN MORTGAGOR.
--------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION (LV). NO UNDISCLOSED COMMON OWNERSHIP.
--------------------------------------------------------------------------------
Food Lion-Ocean View The Ocean View Commons Shopping Center and
the Circle Plaza Shopping Center are
indirectly under common ownership.
--------------------------------------------------------------------------------
Food Lion-Circle Plaza The Ocean View Commons Shopping Center and
the Circle Plaza Shopping Center are
indirectly under common ownership.
--------------------------------------------------------------------------------
Cendant Office Building The Cendant Office Building and the
and Commerce Park Realty Commerce Park Realty are directly or
indirectly under common ownership.
--------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ and South Throop
and South ▇▇▇▇▇▇ Street Street are directly or indirectly under
common ownership.
--------------------------------------------------------------------------------
Sch. I-14
EXHIBIT C-1
OPINION OF CADWALADER, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
[LETTERHEAD OF CADWALADER, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇]
June 30, 2005
Addressees listed on Schedule A
Re: LB-UBS Commercial Mortgage Trust 2005-C3 Commercial Mortgage Pass-Through
Certificates, Series 2005-C3
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 8(j) of the Mortgage
Loan Purchase Agreement, dated as of June 21, 2005 (the "MLPA"), among UBS Real
Estate Investments Inc., as seller (the "Seller"), UBS Principal Finance LLC, as
an additional party ("UBSPF") and Structured Asset Securities Corporation II, as
purchaser ("SASC").
We have acted as special counsel to the Seller in connection with the
following transactions: (i) the sale by the Seller, and the purchase by SASC, of
multifamily and commercial mortgage loans in the principal amount of
approximately $332,728,029 (the "UBS Mortgage Loans"), pursuant to the MLPA;
(ii) the execution by the Seller of the UBS Indemnification Agreement, dated as
of June 21, 2005 (the "Indemnification Agreement"), by and among the Seller, UBS
Americas Inc. ("UBS Americas" and, together with the Seller, the "UBS
Entities"), SASC and the Underwriters (as defined below); and (iii) the
acknowledgement by the Seller of certain sections of the Underwriting Agreement,
dated as of June 21, 2005 (the "Underwriting Agreement"), by and among SASC, UBS
Securities LLC ("UBS Securities") and ▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇", and
together with UBS Securities, the "Underwriters"), and acknowledged with respect
to certain sections by the Seller and ▇▇▇▇▇▇ Brothers Holdings Inc. ("LBHI").
We have also acted as special counsel to UBS Americas in connection
with the execution by UBS Americas of the Indemnification Agreement and to UBSPF
in connection with the execution by UBSPF of the MLPA.
The MLPA, the Indemnification Agreement and the Underwriting Agreement
are collectively referred to herein as the "Agreements." Capitalized terms not
defined herein have the respective meanings set forth in the MLPA.
In rendering the opinions set forth below, we have examined and, as to
factual matters relevant to the opinions set forth below, relied upon the
originals, copies or specimens, certified or otherwise identified to our
satisfaction, of the Agreements and such certificates, corporate and public
records, agreements, instruments and other documents, including, among other
things, the documents and agreements delivered at the closing of the purchase
and sale of the Certificates (the "Closing"), as we have deemed appropriate as a
basis for the opinions
expressed below. In such examination we have assumed the genuineness of all
signatures, the authenticity of all documents, agreements and instruments
submitted to us as originals, the conformity to original documents, agreements
and instruments of all documents, agreements and instruments submitted to us as
copies or specimens, the authenticity of the originals of such documents,
agreements and instruments submitted to us as copies or specimens, the
conformity of the text of each document filed with the Securities and Exchange
Commission through its Electronic Data Gathering, Analysis and Retrieval System
to the printed document reviewed by us, and the accuracy of the matters set
forth in the documents, agreements and instruments we reviewed. As to any facts
material to the opinions expressed below that were not known to us, we have
relied upon statements, certificates and representations of officers and other
representatives of the UBS Entities, UBSPF, SASC and the Underwriters, including
those contained in the Agreements and other documents, certificates, agreements
and opinions delivered at the Closing, and of public officials. In addition,
with respect to the opinions referred to in paragraphs 8(c), 8(d) and 9 below,
such opinions are based solely on the Seller Officer's Certificate and the UBS
Americas Officer's Certificate referred to below, a review of the items, if any,
identified as exceptions in the exhibits to such certificates, conversation with
internal counsel for each of the UBS Entities, and the actual knowledge of
attorneys who conducted such review, had such conversations and/or customarily
represent the UBS Entities in real estate lending transactions, financing
transactions, and/or transactions similar to those contemplated by the
Agreements. Except as expressly set forth herein, we have not undertaken any
independent investigation (including, without limitation, conducting any review,
search or investigation of any public files, records or dockets) to determine
the existence or absence of the facts that are material to our opinion, and no
inference as to our knowledge concerning such facts should be drawn from our
reliance on the representations of the UBS Entities, UBSPF and others in
connection with the preparation and delivery of this letter.
In particular, we have examined and relied upon:
(i) the MLPA;
(ii) the Underwriting Agreement;
(iii) the Indemnification Agreement;
(iv) the officer's certificate of Seller, dated the date hereof (the
"Seller Officer's Certificate"); and
(v) the officer's certificate of UBS Americas, dated the date hereof
(the "UBS Americas Officer's Certificate").
References in this letter to "Applicable Laws" shall mean those laws,
rules and regulations of the State of New York and of the United States of
America which, in our experience, are normally applicable to transactions of the
type contemplated by the Agreements, as well as the General Corporation Law of
the State of Delaware with respect to the opinions referred to in paragraphs 1
through 4, 8(a), 8(b)(i), 8(c) and 8(d) below. While we are not licensed to
practice law in the State of Delaware, we have reviewed applicable provisions of
the Delaware General Corporation Law as we have deemed appropriate in connection
with the
C-1-2
opinions expressed herein. Except as described we have neither examined nor do
we express any opinion with respect to Delaware law. References in this letter
to the term "Governmental Authorities" means executive, legislative, judicial,
administrative or regulatory bodies of the State of New York or the United
States of America. References in this letter to the term "Governmental Approval"
means any consent, approval, license, authorization or validation of, or filing,
recording or registration with, any Governmental Authority pursuant to
Applicable Laws.
We have also assumed, except as to the UBS Entities, that all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties are validly existing and
in good standing under the laws of their respective jurisdictions of
organization, that all such parties had the power and legal right to execute and
deliver all such documents, agreements and instruments, and, except as to the
UBS Entities and UBSPF, that such documents, agreements and instruments are
legal, valid and binding obligations of such parties, enforceable against such
parties in accordance with their respective terms. As used herein, "to our
knowledge," "known to us" or words of similar import mean the actual knowledge,
without independent investigation (except as expressly set forth herein), of any
lawyer in our firm actively involved in the transactions contemplated by the
Agreements.
We express no opinion concerning any law other than Applicable Law.
Based upon and subject to the foregoing, we are of the opinion that:
1. Each of the Agreements has been duly authorized, executed and
delivered by the Seller.
2. The Indemnification Agreement has been duly authorized, executed
and delivered by UBS Americas.
3. The Seller is a corporation validly existing and in good standing
under the laws of the State of Delaware, with corporate power and authority
to enter into and perform its obligations under the Agreements.
4. UBS Americas is a corporation validly existing and in good standing
under the laws of the State of Delaware, with corporate power and authority
to enter into and perform its obligations under the Indemnification
Agreement.
5. Each of the MLPA and the Underwriting Agreement constitutes the
legal, valid and binding agreement of the Seller, and the MLPA constitutes
the legal, valid and binding agreement of UBSPF, enforceable against the
Seller or UBSPF, as applicable, in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to or affecting creditors'
rights generally, and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity), and
except that (a) the enforcement of rights with respect to indemnification
and contribution obligations and (b) provisions (i) purporting to waive or
limit rights to trial by jury, oral amendments to
C-1-3
written agreements or rights of set off or (ii) relating to submission to
jurisdiction, venue or service of process, may be limited by applicable law
or considerations of public policy.
6. Neither the consummation by UBSPF of any of the transactions
contemplated by the MLPA nor the execution, delivery and performance of the
terms of the MLPA by UBSPF will conflict with, or result in the violation
of, any New York State or federal law that is applicable to UBSPF.
7. The execution, delivery and performance by UBSPF of the MLPA and
the consummation by UBSPF of the transactions contemplated under the MLPA
do not require any consent, approval, license, authorization or validation
of, or filing, recording or registration with, any executive, legislative,
judicial, administrative or regulatory bodies of the United States of
America pursuant to those laws, rules and regulations of the United States
of America which, in our experience are normally applicable to transactions
of the type contemplated by the MLPA, to be obtained by UBSPF except those
that may be required under state securities or blue sky laws, and such
other approvals that have been obtained and, to our knowledge, are in
effect.
8. None of the sale of the UBS Mortgage Loans, the consummation by
either UBS Entity of any of the other transactions contemplated by the
Agreements to which it is a party or the execution, delivery and
performance by each UBS Entity of the terms of the Agreements to which it
is a party, (a) will require any Governmental Approval to be obtained or
made on the part of either UBS Entity, the absence of which would have a
material adverse effect on such UBS Entity or the transactions contemplated
by the Agreements, except those that may be required under state securities
or blue sky laws, and except for such other approvals that have been
obtained and, to our knowledge, are in full force and effect, (b) will
conflict with, or result in a violation of, any provision of (i) either UBS
Entity's certificate of incorporation or bylaws or (ii) any Applicable Laws
applicable to either UBS Entity, (c) will, to our knowledge, breach,
constitute a default under, require any consent under, or result in the
acceleration or require prepayment of any indebtedness pursuant to the
terms of, any agreement or instrument to which either UBS Entity is a party
or by which it is bound or to which it is subject, or result in the
creation or imposition of any lien upon any property of either UBS Entity
pursuant to the terms of any such agreement or instrument, any of which
occurrences, either in any one instance or in the aggregate, would call
into question the validity of any Agreement to which it is a party or be
reasonably likely to impair materially the ability of such UBS Entity to
perform under the terms of any Agreement to which it is a party and (d)
will, to our knowledge, breach or result in a violation of, or default
under, any material judgment, decree or order that is applicable to either
UBS Entity and is issued by any Governmental Authority having jurisdiction
over either UBS Entity or any of its properties.
9. To our actual knowledge, there is no legal or governmental action,
investigation or proceeding pending or threatened against either UBS Entity
(a) asserting the invalidity of the Agreements to which it is a party, (b)
seeking to prevent the consummation of any of the transactions provided for
in the Agreements, or (c) that would materially and adversely affect (i)
the ability of either UBS Entity to perform its obligations under, or the
validity or enforceability (with respect to either UBS Entity) of,
C-1-4
the Agreements to which it is a party or (ii) any rights with regard the
Mortgaged Properties or the Mortgage Loans. For purposes of the opinion set
forth in this paragraph, we have not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless the
potential litigant or governmental authority has communicated in writing to
a UBS Entity a present intention to initiate such actions, investigations
or proceedings against such UBS Entity.
We are furnishing this letter to you in your capacity as Underwriter,
Initial Purchaser or Depositor, as the case may be, solely for your benefit in
connection with the transactions referred to herein. Without our prior written
consent, this letter is not to be relied upon, used, circulated, quoted or
otherwise referred to by, or assigned to, any other person (including any person
that acquires any Certificates from you or that seeks to assert your rights in
respect of this letter (other than your successor in interest by means of
merger, consolidation, transfer of a business or other similar transaction)) or
for any other purpose. In addition, we disclaim any obligation to update this
letter for changes in fact or law, or otherwise.
Very truly yours,
C-1-5
SCHEDULE A
Structured Asset Securities
Corporation II Standard & Poor's Rating Services
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10019 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
UBS Securities LLC ▇▇▇▇▇'▇ Investors Service, Inc.
1285 Avenue of the Americas ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABN AMRO Bank N.V
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
C-1-6
EXHIBIT C-2
OPINION OF IN-HOUSE COUNSEL TO ADDITIONAL PARTY
[UBS LETTERHEAD]
June 30, 2005
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
LB-UBS Commercial Mortgage Trust 2005-C3, Commercial
Mortgage Pass-Through Certificates, Series 2005-C3
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 June 21, 2005 (the "Agreement"), by and among SASC, as
purchaser, UBSREI, as seller, and UBSPF, as additional party. Capitalized terms
used and not otherwise defined herein have the meanings given to them in the
Agreement.
I, or others under my supervision, have examined such documents as I
believe are necessary or appropriate for the purposes of this opinion, including
the certificate of formation, incumbency resolution and limited liability
company agreement adopted by the members of UBSPF and the Agreement and all
exhibits thereto. In reaching such opinions, I have assumed without
investigation, except as expressly set forth below, that there are no facts
inconsistent with the assumptions made in paragraphs A through D below.
A. All signatures of parties, other than UBSPF, on all documents are
genuine. Each person executing any such instrument, document or agreement,
whether individually or on behalf of a firm or other business entity, other than
UBSPF, is duly authorized to do so.
B. All documents submitted as original are authentic, and all
photostatic copies, and all copies certified by a governmental custodian or a
party to the transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf of a
business entity, are legally competent.
D. All other parties to documents, other than UBSPF, have the
requisite power and authority to consummate the transactions contemplated by the
Agreement and to execute and deliver the applicable documents.
Based on my review of the foregoing and such other considerations of
law and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
1. The Agreement has been duly authorized, executed and delivered by
UBSPF.
2. UBSPF is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the requisite power and authority to enter into and perform its obligations
under the Agreement.
3. The execution, delivery and performance of the terms of the
Agreement will not result in the breach or violation of or a default under any
material order or decree of any court, regulatory body, administrative agency or
governmental body having jurisdiction over UBSPF and known to me as being
applicable to UBSPF.
4. There is no action, suit or proceeding against, or investigation
of, UBSPF pending or, to my knowledge, threatened against UBSPF before any
court, administrative agency or other tribunal which, either individually or in
the aggregate, (a) asserts the invalidity of the Agreement, (b) seeks to prevent
the consummation of any of the transactions contemplated by the Agreement or (c)
would materially and adversely affect (i) the performance by UBSPF of its
obligations under, or the validity or enforceability of, the Agreement, or (ii)
any rights with regard to the Mortgaged Properties or the Mortgage Loans.
5. No consent, approval, authorization or order of, and no filing or
registration with, any court or governmental agency or regulatory body, of which
I have actual knowledge, the absence of which would have a material adverse
effect on UBSPF or the transactions contemplated by the Agreement, is required
on the part of UBSPF for the execution, delivery or performance by UBSPF of the
Agreement, except those which have been obtained and are in full force and
effect.
6. The execution, delivery and performance by UBSPF of, and the
consummation of the transactions contemplated by, the Agreement do not and will
not result in a breach of any term or provision of the certificate of formation
or limited liability company agreement of UBSPF or in a breach of, constitute a
default under, require any consent under, or result in the acceleration or
require prepayment of any indebtedness pursuant to the terms of, any agreement
or instrument, of which I have actual knowledge, to which UBSPF is a party or by
which it is bound or to which it is subject, or result in the creation or
imposition of any lien upon any property of UBSPF pursuant to the terms of any
such agreement or instrument, any of which occurrences,
C-2-2
either in any one instance or in the aggregate, would call into question the
validity of the Agreement or be reasonably likely to impair materially the
ability of UBSPF to perform under the terms of the Agreement.
In addition to the qualifications set forth above, the opinions herein
are also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the opinions
expressed herein concern only the laws of the State of New York, as currently in
effect, the limited liability company law of the State of Delaware, as currently
in effect, and solely with respect to paragraphs 3 and 4 above, the federal laws
of the United States of America, as currently in effect.
2. I assume no obligation to supplement this opinion if, after the
date hereof, any applicable laws change or I become aware of any facts that
might change the opinions set forth herein.
3. The opinions are limited to the matters set forth in this letter.
No other opinions should be inferred beyond the matters expressly stated.
The opinions expressed in this letter may be relied upon solely by the
addressees hereof solely with respect to the transactions described in the
Agreement, and may not be relied upon by any other person or entity, without my
specific prior written consent.
Sincerely,
▇▇▇▇ ▇▇▇▇▇▇
Executive Director
C-2-3
SCHEDULE A
UBS Securities LLC Standard & Poor's Rating Services
1285 Avenue of the Americas ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇'▇ Investors Service, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Structured Asset Securities Corporation II ABN AMRO Bank N.V
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10019 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
C-2-4