UBS MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of February 15, 2007 (the
"Agreement"), between UBS Real Estate Investments Inc. (together with its
successors and permitted assigns hereunder, the "Seller") and Structured Asset
Securities Corporation II (together with its successors and permitted assigns
hereunder, the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans") as
provided herein. The Purchaser intends to deposit the Mortgage Loans, together
with certain other multifamily and commercial mortgage loans (the "Other Loans";
and, together with the Mortgage Loans, the "Securitized Loans"), into a trust
fund (the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates") to be identified as the LB-UBS Commercial Mortgage Trust
2007-C1, Commercial Mortgage Pass-Through Certificates, Series 2007-C1. 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, to be dated as of February 12, 2007 (the
"Pooling and Servicing Agreement"), between the Purchaser, as depositor, KeyCorp
Real Estate Capital Markets, Inc., as master servicer (the "Master Servicer"),
Midland Loan Services, Inc., as special servicer (the "Special Servicer") and
LaSalle Bank National Association, as trustee (the "Trustee"). Capitalized terms
used but not defined herein have the respective meanings set forth in the
Pooling and Servicing Agreement, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with ▇▇▇▇▇▇ Brothers
Inc. ("▇▇▇▇▇▇"), UBS Global Asset Management (US) Inc. ("UBS-AM") and Wachovia
Capital Markets, LLC ("Wachovia" and, together with ▇▇▇▇▇▇ and UBS-AM 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-AM (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,
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 $1,100,746,488 (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
February 27, 2007 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 February 11, 2007
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 33.68400% Percentage Interest in each of the Class R-I,
Class R-II and Class R-III 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 8 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller (other than the
primary servicing rights) in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of
the initial Purchaser, deliver to and deposit with (i) the Trustee or a
Custodian appointed thereby, a Mortgage File for each Mortgage Loan in
accordance with the terms of, and conforming to the requirements set forth in,
the Pooling and Servicing Agreement, with copies of each Mortgage File to be
delivered by the Trustee to, upon request, the Master Servicer (at the expense
of the Trustee), within 10 Business Days of such request; and (ii) the Master
Servicer (or, at the direction of the Master Servicer, to the appropriate
Sub-Servicer) or, in the case of an Outside Serviced Trust Mortgage Loan, the
applicable Outside Servicer, all unapplied Escrow Payments and Reserve Funds in
the possession or under the control of the Seller that relate to the Mortgage
Loans. In addition, the Seller shall, in the case of each Mortgage Loan that is
an Outside Serviced Trust Mortgage Loan, deliver to and deposit with the Master
Servicer, within 45 days of the Closing Date, a copy of the mortgage file that
was delivered to the related Outside Trustee under the related Non Trust
Mortgage Loan Securitization Agreement or to a custodian under a custodial
agreement that relates solely to such Outside Serviced Trust Mortgage Loan, as
applicable.
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(d) The Seller shall, through an Independent third party (the
"Recording Agent") retained by it, as and in the manner provided in the Pooling
and Servicing Agreement (and in any event within 45 days following the later of
the Closing Date and the date on which all necessary recording information is
available to the Recording Agent), cause (i) each assignment of Mortgage and
each assignment of Assignment of Leases, in favor of, and delivered as part of
the related Mortgage File to the Trustee, to be submitted for recordation in the
appropriate public office for real property records, and (ii) such assignments
to be delivered to the Trustee following their return by the applicable public
recording office, with copies of any such returned assignments to be delivered
by the Trustee to the Master Servicer, at the expense of the Seller, at least
every 90 days after the Closing Date (or at additional times upon the request of
the Master Servicer if reasonably necessary for the ongoing administration
and/or servicing of the related Mortgage Loan by the Master Servicer); provided
that, in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, a certified copy
of the recorded original shall be forwarded to the Trustee. If any such document
or instrument is lost or returned unrecorded because of a defect therein, then
the Seller shall prepare a substitute therefor or cure such defect or cause such
to be done, as the case may be, and the Seller shall deliver such substitute or
corrected document or instrument to the Trustee (or, if the Mortgage Loan is
then no longer subject to the Pooling and Servicing Agreement, to the then
holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such recording and delivery contemplated in the preceding paragraph, including,
without limitation, any out-of-pocket costs and expenses that may be incurred by
the Trustee in connection with any such recording or delivery performed by the
Trustee at the Seller's request and the fees of the Recording Agent.
Pursuant to the Pooling and Servicing Agreement and a letter
agreement dated February 27, 2007 (the "Filing Letter Agreement") between
Anthracite Capital Inc. (the "Payee"), the Depositor, the UBS Mortgage Loan
Seller and the Trustee, the Trustee, through a third party (the "Filing Agent")
retained by it, as and in the manner provided in the Pooling and Servicing
Agreement and at the expense of the Payee (and in any event within 45 days
following the later of the Closing Date and the date on which all necessary
filing information is available to the Filing Agent), is required to cause (i)
each assignment of Uniform Commercial Code financing statements prepared by the
Seller, in favor of, and delivered as part of the related Mortgage File to the
Trustee, to be submitted for filing in the appropriate public office, and (ii)
such assignments to be delivered to the Trustee following their return by the
applicable public filing office, 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). The Seller hereby agrees to reasonably cooperate with the Trustee and
the Filing Agent with respect to the filing of the assignments of Uniform
Commercial Code financing statements as described in this paragraph and to
forward to the Trustee filing confirmation, if any, received in connection with
such Uniform Commercial Code financing statements filed in accordance with this
paragraph. Notwithstanding the foregoing, to the extent the Trustee provides the
Payee, pursuant to the Filing Letter Agreement, with an invoice for the expenses
(i) reasonably to be incurred in connection with the filings referred to in this
paragraph and (ii) required to be paid by
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the Payee pursuant to the Filing Letter Agreement, and such expenses are not
paid by the Payee in advance of such filings, the Trustee, pursuant to the
Pooling and Servicing Agreement and the Filing Letter Agreement and at the
expense of the Seller, shall only be required to cause the filing agent to file
the assignments of such Uniform Commercial Code financing statements with
respect to Mortgage Loans secured by hotel or hospitality properties.
(e) With respect to any Mortgage Loan (other than an Outside
Serviced Trust Mortgage Loan), the following documents (other than any document
that constitutes part of the Mortgage File for such Mortgage Loan): copies of
any final appraisal, final survey, final engineering report, final environmental
report, opinion letters of counsel to the related mortgagor delivered in
connection with the closing of such Mortgage Loan, escrow agreements, reserve
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 or insurance review reports,
leases for tenants representing 10% or more of the annual income with respect to
the related Mortgaged Property, final seismic report and property management
agreements, rent roll, property operating statement and financial statements for
the related guarantor or indemnitor, cash management or lockbox agreement,
zoning letters or zoning reports and the documents, if any, specifically set
forth on Exhibit C hereto (collectively, the "Mortgage Origination Documents"),
but in each case, only if the subject document (a) was in fact obtained in
connection with the origination of such Mortgage Loan, (b) 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 (c) is in the possession or under the
control of the Seller shall, within 45 days of the Closing Date, be delivered or
caused to be delivered by the Seller to the Master Servicer (or, at the
direction of the Master Servicer, to the appropriate Sub-Servicer); provided
that the Seller shall not be required to deliver any draft documents, privileged
or other communications or correspondence, credit underwriting or due diligence
analyses or information, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) In connection with the obligations of the Master Servicer
under Sections 3.01(e) and 3.19(c) of the Pooling and Servicing Agreement, with
regard to each Mortgage Loan (other than an Outside Serviced Trust Mortgage
Loan) that is secured by the interests of the related Mortgagor in a hospitality
property (identified on Schedule VI to the Pooling and Servicing Agreement) and
each Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan) that has
a related letter of credit, the Seller shall deliver to and deposit with the
Master Servicer, on or before the Closing Date, any related franchise agreement,
franchise comfort letter and the original of such letter of credit. Further, in
the event, with respect to a Mortgage Loan (other than an Outside Serviced Trust
Mortgage Loan) with a related letter of credit, the Master
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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(e) 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) hereof and provide
each Seller and the Controlling Class Representative and the Special Servicer
with a certificate (the "Master Servicer Certification") within 90 days of the
Closing Date acknowledging its (or the appropriate Sub-Servicer's) 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 Serviced Trust 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 date occurring 18 months
following 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 relating to the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is duly organized or formed, as the case
may be, validly existing and in good standing as a legal entity under the
laws of the State of Delaware and possesses all requisite authority,
power, licenses, permits and franchises to carry on its business as
currently conducted by it and to execute, deliver and comply with its
obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller 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
Seller and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's organizational documents, (B)
violate any law or regulation or
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any administrative decree or order to which the Seller is subject or (C)
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material contract, agreement or other instrument to which the Seller is a
party or by which the Seller is bound.
(iv) The Seller 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 Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or have consequences
that would materially and adversely affect its performance hereunder.
(v) The Seller 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 Seller's reasonable and good faith judgment, materially and
adversely affect the ability of the Seller 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 Seller or the
performance by the Seller 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 Seller of or compliance by the Seller 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
Seller's knowledge, threatened against the Seller that would, in the
Seller's good faith and reasonable judgment, prohibit its entering into
this Agreement or materially and adversely affect the performance by the
Seller of its obligations under this Agreement.
(viii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Seller 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
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fair consideration for the Mortgage Loans. The Seller will be solvent at
all relevant times prior to, and will not be rendered insolvent by, the
sale of the Mortgage Loans to the Purchaser. The Seller is not selling the
Mortgage Loans to the Purchaser with any intent to hinder, delay or
defraud any of the creditors of the Seller. After giving effect to its
transfer of the Mortgage Loans to the Purchaser, as provided herein, the
value of the Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of the Seller's debts
and obligations, including contingent and unliquidated debts and
obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct
its business. The Mortgage Loans do not constitute all or substantially
all of the assets of the Seller. The Seller does not intend to, and does
not believe that it will, incur debts or obligations beyond its ability to
pay such debts and obligations as they mature.
(ii) The Seller will acquire the Seller's Residual Interest
Certificates for its own account and not with a view to, or sale or
transfer in connection with, any distribution thereof, in whole or in
part, in any manner that would violate the Securities Act or any
applicable state securities laws.
(iii) The Seller understands that (A) the Seller's Residual
Interest Certificates have not been and will not be registered under the
Securities Act or registered or qualified under any applicable state
securities laws, (B) neither the Purchaser nor any other party is
obligated so to register or qualify the Seller's Residual Interest
Certificates and (C) neither the Seller's Residual Interest Certificates
nor any security issued in exchange therefor or in lieu thereof may be
resold or transferred unless it is (1) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable
state securities laws or (2) sold or transferred in a transaction which is
exempt from such registration and qualification and the Certificate
Registrar has received the certifications and/or opinions of counsel
required by the Pooling and Servicing Agreement.
(iv) The Seller understands that it may not sell or
otherwise transfer the Seller's Residual Interest Certificates, any
security issued in exchange therefor or in lieu thereof or any interest in
the foregoing except in compliance with the provisions of Section 5.02 of
the Pooling and Servicing Agreement, which provisions it has or, as of the
Closing Date, will have carefully reviewed, and that the Seller's Residual
Interest Certificates will bear legends that identify the transfer
restrictions to which such Certificates are subject.
(v) Neither the Seller nor anyone acting on its behalf has
(A) offered, transferred, pledged, sold or otherwise disposed of any
Seller's Residual Interest Certificate, any interest in a Seller's
Residual Interest Certificate or any other similar security to any person
in any manner, (B) solicited any offer to buy or accept a transfer, pledge
or other disposition of any Seller's Residual Interest Certificate, any
interest in a Seller's Residual Interest Certificate or any other similar
security from any person in any manner, (C) otherwise approached or
negotiated with respect to any Seller's Residual Interest Certificate, any
interest in a Seller's Residual Interest Certificate or any other similar
security with any person in any manner, (D) made any general solicitation
by means of general advertising or in any other manner, or (E) taken any
other action, that
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(in the case of any of the acts described in clauses (A) through (E)
above) would constitute a distribution of the Seller's Residual Interest
Certificates under the Securities Act, would render the disposition of the
Seller's Residual Interest Certificates a violation of Section 5 of the
Securities Act or any state securities law or would require registration
or qualification of the Seller's Residual Interest Certificates pursuant
thereto. The Seller will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to the Seller's Residual Interest Certificates, any
interest in the Seller's Residual Interest Certificates or any other
similar security.
(vi) The Seller has been furnished with all information
regarding (A) the Purchaser, (B) the Seller's Residual Interest
Certificates and distributions thereon, (C) the nature, performance and
servicing of the Other Loans, (D) the Pooling and Servicing Agreement and
the Trust Fund, and (E) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act or (b) an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and
(7) of Rule 501(a) under the Securities Act or an entity in which all its
equity owners are "accredited investors" as defined in such paragraphs and
has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of an investment in the
Seller's Residual Interest Certificates. The Seller has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Seller is able to bear the economic
risks of such an investment and can afford a complete loss of such
investment.
(viii) The Seller is not a Plan and is not directly or
indirectly acquiring the Seller's Residual Interest Certificates on behalf
of, as named fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a
Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser,
with respect to each Mortgage Loan, as of the Closing Date or as of such other
date expressly set forth therein, each of the representations and warranties set
forth on Exhibit B hereto.
(c) The Seller intends to transfer the Seller's Residual Interest
Certificates to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated on or about
the Closing Date; and, in connection therewith, the Seller will comply with all
of the requirements of Section 5.02 of the Pooling and Servicing Agreement, as
in effect on the Closing Date, and applicable law. The Seller hereby directs the
Purchaser to cause the Seller's Residual Interest Certificates to be registered
in the name of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated upon initial
issuance.
SECTION 4. Representations and Warranties of the Purchaser.
In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants for the benefit of the Seller as of the
date hereof that:
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(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to
acquire the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser and, assuming due authorization,
execution and delivery hereof by the Seller, constitutes a legal, valid
and binding obligation of the Purchaser, enforceable against the Purchaser
in accordance with its terms, except as such enforcement may be limited by
(A) bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws affecting the enforcement of creditors' rights in
general, and (B) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of
this Agreement will not (A) violate the Purchaser's organizational
documents, (B) violate any law or regulation or any administrative decree
or order to which the Purchaser is subject or (C) constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Purchaser is a party or by
which the Purchaser is bound.
(iv) Except as may be required under federal or state
securities laws (and which will be obtained on a timely basis), no
consent, approval, authorization or order of, registration or filing with,
or notice to, any governmental authority or court, is required for the
execution, delivery and performance by the Purchaser of or compliance by
the Purchaser with this Agreement, or the consummation by the Purchaser of
any transaction described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loans by the Seller to
the Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof.
SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller receives written notice or obtains actual
knowledge with respect to any Mortgage Loan (i) that any document constituting a
part of clauses (a)(i) through (a)(xiii) (or, in the case of an Outside Serviced
Trust Mortgage Loan, clause(b)(i)) of the definition of Mortgage File or a
document, if any, specifically set forth on Exhibit D hereto, has not been
executed (if applicable) 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, as of the date specified in Section 5(b)(i)
hereof, materially and adversely affects the value of the Mortgage Loan, then
such Document Defect shall constitute a "Material Document Defect" or such
Breach shall constitute a "Material Breach", as the case may be. In the event
the Seller obtains actual knowledge of a Material Document Defect or Material
Breach, then the Seller
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shall deliver written notification to the Trustee with respect thereto. Then,
following receipt by the Seller 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) hereof), (A) not later than
(1) 90 days after the Seller and the Purchaser have agreed upon the existence of
such Material Document Defect or Material Breach or (2) 60 days after an
arbitration panel makes a binding determination, in accordance with the
provisions of Section 5(i) hereof, 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 (each
such 90-day period referred to in clause (A)(1) above, or such 60-day period
referred to in clause (A)(2) above, or such 90-day period referred to in clause
(B) above, as applicable, is referred to as the "Initial Resolution Period"):
(i) cure such Material Document Defect or Material Breach, as the case may be,
in all material respects (which cure shall include payment of any out-of-pocket
expenses that are reasonably incurred and directly attributable to pursuing such
a claim based on such Material Document Defect or Material Breach associated
therewith), or (ii) if such Material Document Defect or Material Breach, as the
case may be, cannot be cured within the Initial Resolution Period, repurchase
the affected Mortgage Loan (or the related Mortgaged Property) from, and in
accordance with the directions of, the Purchaser or its designee, at a price
equal to the Purchase Price; provided that if (a) such Material Breach or
Material Document Defect, as the case may be, is capable of being cured but not
within the applicable Initial Resolution Period, (b) any such Material Breach or
Material Document Defect, as the case may be, does not affect whether the
Mortgage Loan was, as of the Closing Date, is or will continue to be a Qualified
Mortgage, (c) the Seller has commenced and is diligently proceeding with the
cure of such Material Breach or Material Document Defect, as the case may be,
within the applicable Initial Resolution Period, and (d) the Seller shall have
delivered to the Purchaser a certification executed on behalf of the Seller by
an officer thereof confirming that such Material Breach or Material Document
Defect, as the case may be, is not capable of being cured within the applicable
Initial Resolution Period, setting forth what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller anticipates that
such Material Breach or Material Document Defect, as the case may be, will be
cured within an additional period not to exceed 90 days beyond the end of the
Initial Resolution Period (in the event the Seller and the Purchaser have agreed
upon the existence of such Material Document Defect or Material Breach as
described under Section 5(a)(ii)(A)(1)), or 45 days beyond the end of the
Initial Resolution Period (in the event an arbitration panel has made a binding
determination, as described under Section 5(a)(ii)(A)(2) hereof, that a Material
Document Defect or Material Breach exists), then the Seller shall have such
additional 90-day period or 45-day period, as the case may be (each such 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 applicable 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
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pursuing the cure of such defect (specifying the actions being taken). The
parties acknowledge that neither delivery of a certification or schedule of
exceptions to the Seller pursuant to Section 2.02(b) of the Pooling and
Servicing Agreement or otherwise nor possession of such certification or
schedule by the Seller shall, in and of itself, constitute delivery of notice of
any Material Document Defect or Material Breach or knowledge or awareness by the
Seller of any Material Document Defect or Material Breach.
If, during the period of deferral by the Seller of its cure and
repurchase obligations as contemplated by the last proviso of the penultimate
sentence of the preceding paragraph, the Mortgage Loan that is the subject of
the Material Document Defect either becomes a Specially Serviced Mortgage Loan
or becomes the subject of a proposed or actual assumption of the obligations of
the related Mortgagor under such Mortgage Loan, then, following receipt by the
Seller of a Seller/Depositor Notification providing notice of such event, the
Seller shall cure the subject Material Document Defect within the time period
specified in such Seller/Depositor Notification. If, upon the expiration of such
period, the Seller has failed to cure the subject Material Document Defect, the
Master Servicer or the Special Servicer, as applicable, shall be entitled (but
not obligated) to perform the obligations of the Seller with respect to curing
the subject Material Document Defect and, in the event of such an election, the
Seller shall pay all reasonable actual out-of-pocket costs and expenses in
connection with the applicable servicer's effecting such cure.
(b) (i) Provided that any Seller/Depositor Notification with
respect to a Material Document Defect or Material Breach is received by the
Seller in accordance with the provisions of the Pooling and Servicing Agreement,
within 24 months of the Closing Date, the material and adverse effect of the
related Document Defect or Breach shall be determined as of the date hereof.
After the expiration of 24 months following the Closing Date, the material and
adverse effect of any Document Defect or Breach that was not the subject of
another Seller/Depositor Notification received by the Seller (in accordance with
the provisions of the Pooling and Servicing Agreement) within 24 months of the
Closing Date, shall be determined as of the date of such Seller/Depositor
Notification.
(ii) In the event the Seller is obligated to repurchase any
Mortgage Loan pursuant to this Section 5, such obligation shall extend to
any successor REO Mortgage Loan with respect thereto as to which (A) the
subject Material Breach existed as to the subject predecessor Mortgage
Loan prior to the date the related Mortgaged Property became an REO
Property or within 90 days thereafter, and (B) as to which the Seller had
received, no later than 90 days following the date on which the related
Mortgaged Property became an REO Property, a Seller/Depositor Notification
from the Trustee regarding the occurrence of the applicable Material
Breach and directing the Seller to repurchase the subject Mortgage Loan.
(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) hereof, 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-
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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.
(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 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
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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) hereof 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 an arbitration panel pursuant to a binding arbitration
proceeding in accordance with Section 5(i) hereof; provided that, in the event
there is an arbitration proceeding for determining the existence of a Material
Breach or a Material Document Defect with respect to any Mortgage Loan, such
arbitration proceeding 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 95% or more 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) hereof. 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.
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In the event the amount of any Loss of Value Payment is determined
by an arbitration panel pursuant to a binding arbitration proceeding in
accordance with Section 5(i) hereof, 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, including reasonable legal fees) that are 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; provided 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 arbitration 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 an
arbitration panel pursuant to a binding arbitration proceeding in accordance
with Section 5(i) hereof 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 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; 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 an arbitration panel pursuant to a binding arbitration proceeding
in accordance with Section 5(i) hereof 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 any costs or expenses
reasonably incurred in good faith 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 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 an arbitration panel pursuant to a binding arbitration proceeding
in accordance with Section 5(i) hereof 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 arbitration proceeding, multiplied by (ii) a fraction, the
numerator of which is the excess of the amount determined by that arbitration
proceeding over the amount tendered by the Seller, and the denominator of which
is the excess of the amount requested by the Special Servicer over the amount
tendered by the Seller. Notwithstanding the foregoing, in the event any Loss of
Value Payment is determined by the parties hereto by mutual agreement (and not
by an arbitration proceeding), 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
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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.
(i) The parties hereto agree that any controversy or claim (a
"Dispute") arising under Section 5(a), Section 5(b) and/or Section 5(g) of this
Agreement shall be resolved in accordance with the following
Mediation/Arbitration procedures in this Section 5(i).
If the Seller receives a Seller/Depositor Notification pursuant to
Section 5(a) of this Agreement regarding the alleged existence of a Material
Document Defect or Material Breach and requesting the Seller to cure or
repurchase the affected Mortgage Loan in connection therewith (a "Notice"), and
the Seller does not agree upon the existence of such Material Document Defect or
Material Breach within 90 days of receiving such Notice, then, unless otherwise
agreed to by the parties involved in the Dispute, that Dispute shall be
submitted to non-binding mediation in accordance with the provisions of this
paragraph; provided, that if the Seller is proceeding to cure the subject
Material Document Defect or Material Breach, then that Dispute shall not be
submitted to mediation until the expiration of the related Resolution Extension
Period and the failure of the Seller to complete such cure (unless otherwise
agreed to by the parties involved in the Dispute). Following the 90-day period
referred to in the preceding sentence and subject to the preceding proviso,
either party to this Agreement that is involved in the Dispute may send a
written letter (a "Mediation Letter") to the other party to this Agreement that
it wishes the mediation process to begin between the sender and the recipient of
such Mediation Letter. Following receipt of a Mediation Letter, a mediator(s)
shall be selected by agreement of the parties to the mediation. If such parties
cannot agree on a mediator, then the mediation shall be conducted by three
mediators, one of which shall be selected by the Seller and one of which shall
be selected by the Purchaser or its assignee. Each of the parties to the
mediation shall submit the name of the person it has selected to serve as a
mediator to the opposing party within 10 days of the date of the Mediation
Letter. If either party fails to submit the name of its selected mediator within
10 days of the date of the Mediation Letter, the other party shall have the
right to select the second mediator in addition to its own mediator (provided
that such party has submitted the name of its selected mediator within 10 days
of the date of the Mediation Letter). The two mediators selected by the
party(ies) shall appoint a third mediator within 20 days of the date of the
Mediation Letter or such longer time period as agreed to by the parties to the
mediation. Any mediator(s) so designated must be acceptable to both the Seller
and the Purchaser or its assignee. Any mediators appointed or selected pursuant
to the provisions of this paragraph must be experienced professionals in the
CMBS industry.
Any mediation related to a particular Dispute and commenced in
accordance with the preceding paragraph must be completed within 90 days of the
date of the Mediation Letter (or a longer period, if the parties to the
mediation agreed to extend the mediation). Any mediation referred to in this
Section 5(i) shall be conducted in the manner specified by the mediator(s) and
agreed upon by the Seller and the Purchaser or its assignee and any such
mediation shall be conducted in New York City to the exclusion of all other
locations (unless otherwise agreed to by the parties to the mediation). During
the mediation process, the parties to the mediation shall discuss their
differences voluntarily and in good faith and attempt, with the assistance of
the mediator(s) as a facilitator of the negotiations, to reach an amicable
resolution
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of the Dispute. The mediation will be treated as a settlement discussion and
therefore will be confidential. No mediator selected in accordance with this
Section 5(i) may testify for either party in any later proceeding relating to
the Dispute. No recording or transcript shall be made of the mediation
proceedings. The fees and expenses of all mediator(s) shall be shared equally by
the parties to the mediation; provided, that the party to the mediation that is
acting on behalf of the Trust in accordance with the provisions of this Section
5(i) shall be entitled to reimbursement or indemnification by the Trust Fund for
such fees and expenses if and to the extent permitted under the Pooling and
Servicing Agreement.
Notwithstanding anything to the contrary herein, no party shall be
required to agree to a Dispute resolution pursuant to mediation and no decision
or resolution of a mediator or mediators shall be binding on any party unless
such decision or resolution is expressly agreed to by such party. In the event
the parties involved in the Dispute have not agreed to a Dispute resolution
pursuant to mediation at the termination of the mediation, then that Dispute
will be settled by arbitration in accordance with the succeeding paragraphs of
this Section 5(i).
If a Dispute has not been resolved within 90 days of the date of the
Mediation Letter (or such shorter or longer period as is expressly agreed to by
the parties to the mediation), the mediation shall terminate and the Dispute
will be settled by arbitration. Following the date of termination of mediation,
which shall be the date occurring 90 days after the date of the Mediation Letter
unless otherwise expressly agreed to by the parties to the mediation,
arbitration may be commenced by either party to this Agreement involved in the
Dispute sending a written notice to the other party to this Agreement involved
in the Dispute that it wishes the arbitration process to begin with respect to
the Dispute between the sender and the recipient of such written notice. The
date any such party receives written notice in accordance with this Section 5(i)
from another party that such party wishes to commence arbitration shall be
referred to as the "Arbitration Commencement Date". Any arbitration hereunder
shall be conducted in accordance with the provisions of this Agreement and the
American Arbitration Association Rules for Large Complex Commercial Disputes
("AAA Rules"), but shall not be conducted by the American Arbitration
Association ("AAA"). Discovery will be permitted in connection with the
arbitration in accordance with the AAA Rules. In the event of a conflict, the
provisions of this Agreement will control. Such arbitration shall be conducted
before a panel of three arbitrators, regardless of the size of the Dispute. The
arbitration panel shall consist of one person selected by the Seller and one
person selected by the Purchaser or its assignee. Each such party shall submit
the name of the person it has selected to serve as an arbitrator to the other
party within 30 days of the Arbitration Commencement Date (or such longer period
as is expressly agreed to by the parties to the arbitration). If either such
party fails to submit the name of its selected arbitrator within 30 days of the
Arbitration Commencement Date, then the other such party shall have the right to
select the second arbitrator in addition to its own arbitrator (provided that
such party has submitted the name of its selected arbitrator within 30 days of
the Arbitration Commencement Date). The two arbitrators designated in accordance
with the two preceding sentences shall appoint a third arbitrator within 45 days
of the Arbitration Commencement Date (or such longer period as is expressly
agreed to by the parties to the arbitration). All arbitrators appointed or
selected pursuant to the provisions of this paragraph must be experienced
professionals in the CMBS industry. The third arbitrator shall be an Independent
person who has not previously been employed by either party and does not have a
direct or indirect interest in either party or the subject matter of the
arbitration. The two (2) arbitrators appointed by the parties to the
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arbitration are not required to be neutral and it shall not be grounds for
removal of either of such arbitrators or for vacating an arbitration award that
either of such arbitrators has past or present relationships with the party that
appointed such arbitrator. No potential arbitrator may serve on the panel unless
he or she has agreed in writing to abide and be bound by the terms and
provisions of this Agreement and the AAA Rules and to keep confidential the
terms of any arbitration proceeding related to this Agreement and the terms of
any discussion, negotiation, decision, agreement or resolution in connection
therewith.
Any issue concerning the extent to which any Dispute is subject to
arbitration, or concerning the applicability, interpretation, or enforceability
of these procedures, including any contention that all or part of these
procedures are invalid or unenforceable, shall be resolved by the arbitrators.
In no event, notwithstanding that any provision of this Agreement is held to be
invalid or unenforceable, shall the arbitrators have the power to make an award
or impose a remedy that could not be made or imposed by a court deciding the
matter in the same jurisdiction. In no event shall the arbitrators have the
power to make an award or impose a remedy that is not contemplated by, or
conflicts with the terms and provisions of, this Agreement or the Pooling and
Servicing Agreement (other than any term or provision of this Agreement or the
Pooling and Servicing Agreement that is held to be invalid or unenforceable).
Without limiting the foregoing, the arbitrators shall have no authority to award
treble, consequential or punitive damages of any type under any circumstances,
whether or not such damages may be available under the AAA Rules or any other
act or law. Subject to the provisions of this Agreement, the result of the
arbitration will be binding on the parties involved in the Dispute, and judgment
on the arbitrators' award may be entered, subject to the provisions of Section
15 of this Agreement, in any court of competent jurisdiction.
All mediations and arbitrations shall be conducted in New York City
to the exclusion of all other locations (unless otherwise expressly agreed to by
the parties to the subject mediation or arbitration, as applicable). The party
to an arbitration that is acting on behalf of the Trust in accordance with the
provisions of this Section 5(i) shall be entitled to reimbursement or
indemnification by the Trust Fund for the fees and expenses incurred in
connection therewith if and to the extent permitted under the Pooling and
Servicing Agreement.
The parties to this Agreement hereby agree to waive any right to
trial by jury fully to the extent that any such right shall now or hereafter
exist with regard to the rights and remedies contained in this Section 5;
provided, that if (i) any party to an arbitration governed by this Section 5(i)
fails to abide by the rules or deadlines for that arbitration (as such deadlines
may be extended by express agreement of the parties to that arbitration), or
(ii) the applicable appointed arbitrators determine that the subject Dispute
cannot be resolved through arbitration either because the AAA Rules are
inapplicable to the Dispute and/or the Federal Arbitration Act is inapplicable
to the Dispute or for any other reason, then the other party (in the case of
clause (i)) or either party (in the case of clause (ii)) to this Agreement may
in its sole option, file a complaint to resolve the Dispute through a legal
proceeding and in accordance with the provision contained in Section 15 hereof.
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SECTION 6. Defeasance Serviced Trust Mortgage Loans; Early
Defeasance Trust Mortgage Loans.
(a) With respect to any Mortgage Loan that is a Defeasance
Serviced Trust Mortgage Loan, to the extent the related Mortgage Loan documents
expressly grant the lender or its designee the right to appoint a successor
borrower (or words of similar import) thereunder in connection with a
defeasance, the Purchaser hereby designates the Seller as its designee with
respect to the exercise of, and hereby grants to the Seller the right, in its
capacity as designee of the Purchaser as holder of the subject Serviced Trust
Mortgage Loan, to exercise, the right and/or obligation of the lender under the
related Mortgage Loan documents to appoint a "successor borrower" (as defined
under the related Mortgage Loan documents) or words of similar import, to hold
and pledge the related Defeasance Collateral in the event a related Mortgagor
exercises its right pursuant to the related Mortgage Loan documents to defease
the subject Serviced Trust Mortgage Loan and obtain the release of all or a
portion of the related Mortgaged Property from the lien of the related Mortgage
(provided that such rights and/or obligations as successor borrower shall be
exercised in accordance with customary terms and costs). In connection with the
foregoing, if the Purchaser or its assignee, as holder of the subject Defeasance
Serviced Trust Mortgage Loan, receives written notice from the related Mortgagor
that it intends to defease the subject Serviced Trust Mortgage Loan in
accordance with the related Mortgage Loan documents, then the Purchaser or its
assignee, as the case may be, shall send a copy of such written notice to the
Seller or (if the Seller has notified the Purchaser or such assignee, as the
case may be, in writing that it has appointed a designee and has provided such
party with such designee's contact information for any notice required in
connection therewith) the Seller's designee, promptly after receipt of such
written notice. If, however, the Master Servicer, in accordance with the
Servicing Standard, determines that neither the Seller nor its designee is
performing the duties related to the appointment of a successor borrower in a
timely manner and/or in accordance with the provisions of the related Mortgage
Loan documents (after the Seller and such designee having been provided with
written notice in accordance with this paragraph and a reasonable period of time
(which shall not be less than five (5) Business Days) to perform such duties),
then the Master Servicer (or a designee of the Master Servicer) shall, in
accordance with Section 3.20(k) of the Pooling and Servicing Agreement, itself
perform those obligations under the related Mortgage Loan documents in
accordance with the Servicing Standard, applicable law and the related Mortgage
Loan documents, and thereupon the appointment of the Seller or its designee in
connection therewith shall be null and void. In the event, with respect to a
Mortgage Loan that is a Defeasance Serviced Trust Mortgage Loan, the Seller, the
Master Servicer or a designee of the Seller or the Master Servicer actually
appoints a successor borrower in accordance with the related Mortgage Loan
documents and the foregoing provisions of this paragraph and the relevant
portion or all, as applicable, of the subject Mortgaged Property is released
from the lien of the related Mortgage, then, to the extent provided under the
related Mortgage Loan documents, such successor borrower shall succeed to all of
the rights and obligations of the original Mortgagor under such Serviced Trust
Mortgage Loan. In the event the Seller, by written notice to Purchaser or its
assignee, designates a third party to exercise its rights under this paragraph
and provides contact information therefor, the Purchaser or its designee, the
Trustee and the Master Servicer shall be entitled to rely on such notice and, in
such event, all notices required to be delivered to the Seller pursuant to this
paragraph shall be delivered to the Seller's designee.
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(b) If the Purchaser or the Master Servicer notifies the Seller
that the Mortgagor under any of the Mortgage Loans that are Early Defeasance
Trust Mortgage Loans (i) intends to defease such Early Defeasance Trust Mortgage
Loan in whole on or before the second anniversary of the Closing Date and the
amount tendered by such Mortgagor to defease such Early Defeasance Trust
Mortgage Loan (in accordance with the related loan documents) is less than the
Purchase Price that would be applicable in the event of a repurchase of such
Mortgage Loan pursuant to or as otherwise contemplated by Section 5(a), or (ii)
intends to partially defease such Early Defeasance Trust Mortgage Loan on or
prior to the second anniversary of the Closing Date, or (iii) intends to defease
such Early Defeasance Trust Mortgage Loan in whole on or before the second
anniversary of the Closing Date and such Mortgagor is to tender Defeasance
Collateral or such other collateral as is permitted in connection with a
defeasance under the related loan documents that does not constitute a cash
amount equal to or greater than the Purchase Price set forth in clause (i) above
in this paragraph, then the Seller shall promptly repurchase such Mortgage Loan
at a price equal to (A) the related Purchase Price and (B) the amount, if any,
by which the proceeds from any cash defeasance deposit exceeds the related
Purchase Price, in accordance with the directions of the Master Servicer on a
whole loan, servicing released basis.
Upon the repurchase of a Mortgage Loan that is an Early Defeasance
Trust Mortgage Loan pursuant to Section 5 hereof and/or this Section 6, the
Purchaser shall effect a "qualified liquidation" of the related Loan REMIC in
accordance with the REMIC Provisions. The Seller hereby agrees to pay all
reasonable costs and expenses, including the costs of any opinions of counsel
under the Pooling and Servicing Agreement, in connection with any such
"qualified liquidation" of the related Loan REMIC in accordance with the REMIC
Provisions.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, 2 World Financial
Center, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement, and all
of the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement, shall be true and correct in all material respects as of the
Closing Date;
(b) Insofar as it affects the obligations of the Seller hereunder,
the Pooling and Servicing Agreement shall be in a form mutually acceptable to
the Purchaser and the Seller;
(c) All documents specified in Section 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
-19-
be delivered to the Trustee, the Master Servicer and the Special Servicer,
respectively, pursuant to Section 2 of this Agreement;
(e) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects, and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its terms.
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 and the Seller;
(b) The Pooling and Servicing Agreement duly executed by the
parties thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) Certificate of the Seller, executed by a duly authorized
officer of the Seller 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 in this Agreement and
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 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 the Seller, 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
signed this Agreement, the Indemnification Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein or in the Indemnification Agreement, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
-20-
(f) As certified by an officer of the Seller, true and correct
copies of (i) the resolutions of the board of directors authorizing the Seller's
entering into the transactions contemplated by this Agreement and the
Indemnification Agreement, (ii) the organizational documents of the Seller, and
(iii) a certificate of good standing of the Seller, issued by the Secretary of
State of the State of Delaware not earlier than 10 days prior to the Closing
Date;
(g) A favorable opinion of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ ("CWT"),
special counsel to the Seller, 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;
(h) An Officer's Certificate from an officer of the Seller, in his
or her individual capacity, delivered in connection with the opinion of CWT to
be delivered pursuant to Section 8(g) hereof, in form and substance satisfactory
to the addressees of such opinion and upon which such addressees may rely;
(i) 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;
(j) 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
(k) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Costs.
An amount equal to 33.6% 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
-21-
to be a security agreement within the meaning of Articles 8 and 9 of the
applicable Uniform Commercial Code; (iii) the conveyance provided for in Section
2 hereof shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property; (iv) the assignment to the Trustee of the interest of the Purchaser in
and to the Mortgage Loans shall be deemed to be an assignment of any security
interest created hereunder; (v) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes for
the Mortgage Loans, and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-313 of the applicable Uniform Commercial Code; and (vi)
notifications to persons (other than the Trustee) holding such property, and
acknowledgments, receipts or confirmations from such persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the secured party for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement; and, in
connection with the foregoing, the Seller authorizes the Purchaser to file any
and all appropriate Uniform Commercial Code financing statements.
SECTION 11. Notices.
All notices, copies, requests, consents, demands and other
communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to any party, at such
other address as shall be designated by such party in a notice hereunder to the
other parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller 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
-22-
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 AND SUBJECT TO SECTION 5(i) HEREOF, THE SELLER 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
OTHER THAN MATTERS TO BE SETTLED BY MEDIATION OR ARBITRATION IN ACCORDANCE WITH
SECTION 5(i) HEREOF; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL
COURTS, TO THE EXCLUSION OF ALL OTHER COURTS; (III) WAIVES, TO THE FULLEST
POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM IN CONNECTION WITH SUCH
ACTION OR PROCEEDING COMMENCED IN SUCH NEW YORK STATE OR FEDERAL COURTS; AND
(IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW; PROVIDED, THAT IN THE EVENT SECTION 5(i)
HEREOF IS INAPPLICABLE AND BOTH A NEW YORK STATE AND A 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".
-23-
SECTION 16. Further Assurances.
The Seller 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 under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller, the Purchaser, and their respective successors
and permitted assigns.
SECTION 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 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 has consented to such amendment or
modification in writing.
-24-
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: Executive Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Director
Address for Notices:
1285 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
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
MORTGAGE
LOAN NUMBER PROPERTY NAME ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
10A Trophy Properties Portfolio Various
10B Prime Apartment Properties Portfolio Various
10C ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
10D ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
10E ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇ Four Times Square 4 Times Square
13 373 and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 373 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇ Financial Center 21515-21615 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ Cold Storage Industrial ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
18 ▇▇▇▇▇▇▇▇ Portfolio Various
22 Sheraton LA ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
24 CVS - Vero Beach ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
33 Gypsum ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
36 Memphis Multis Various
39 Foundation House ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
43 430-460 South ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
54 Hy-Vee - 51st Street ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
55 Hy-Vee - Cedar Rapids ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇-▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇-▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
64 Hilton Garden Inn ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
65 Hy-Vee - Columbus ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Portfolio 4 Various
70 Tradewinds Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Portfolio 2 Various
77 Penn Medical ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
78 AXA Building 6435 Shiloh Road
80 Hampton Inn - Cedar Rapids ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
82 CVS - ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
84 Kozy Kourt - Mobile Manor Various
85 Walgreens - Loganville ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
92 Hillcrest Oaks Apartments 3501 ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
97 Keystone Corporate Square ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Apartments 21-27, 37-49 and ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
114 Bear Pointe Apartments ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
118 Tractor Supply Various
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (SR 301)
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Retail ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
122 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
126 CVS - Garfield ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
129 Pro Storage ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
134 Apple Tree Storage ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
135 Greenfield Mobile Home Park ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
138 Rite Aid - La Plata 55 ▇▇▇▇▇ Drive
MORTGAGE CUT-OFF DATE MONTHLY
LOAN NUMBER CITY STATE ZIP CODE BALANCE P&I PAYMENT MORTGAGE RATE
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1 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 362,000,000 1,730,841.83 5.65900
10A San Francisco CA Various 49,400,000 271,717.15 6.51000
10B San Francisco CA Various 13,600,000 74,804.72 6.51000
10C ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,800,000 59,403.75 6.51000
10D ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,200,000 56,103.54 6.51000
10E ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,600,000 8,800.56 6.51000
11 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 82,933,806 925,494.72 5.59000
13 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 55,000,000 320,615.76 5.74000
15 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 52,500,000 281,005.64 6.33500
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 51,655,093 304,010.10 5.82000
18 Various NY Various 45,900,000 238,892.50 6.16000
22 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 29,979,381 193,185.57 6.68000
24 ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 29,750,000 138,750.69 5.52000
28 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 23,680,000 115,442.74 5.77000
33 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 20,000,000 102,064.81 6.04000
36 Memphis TN Various 18,100,000 107,589.45 5.92000
39 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 17,950,498 106,419.28 5.87000
43 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 15,950,000 80,992.40 6.01000
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 12,085,000 57,996.81 5.68000
55 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 11,622,000 55,774.84 5.68000
56 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 11,203,000 53,764.03 5.68000
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,400,000 50,701.20 5.77000
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,375,000 49,790.39 5.68000
64 ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,420,000 56,538.24 6.01000
65 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,243,000 44,357.84 5.68000
67 Various MI Various 9,053,534 47,357.42 6.19100
70 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,100,000 46,961.12 5.69000
73 Various IL Various 7,586,669 39,684.51 6.19100
77 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,338,635 45,350.86 6.27000
78 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,900,000 34,804.27 5.97000
80 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,291,928 40,514.00 5.98000
82 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,029,000 29,443.01 5.78000
84 Various IN Various 5,610,000 28,818.78 6.08000
85 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,610,000 27,207.20 5.74000
90 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,250,000 31,139.67 5.90000
92 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,000,000 25,854.17 6.12000
96 ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,780,000 23,181.89 5.74000
97 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,550,000 27,104.28 5.94000
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,428,500 21,514.62 5.75000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,274,000 21,197.36 5.87000
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,250,000 21,186.05 5.90000
105 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,072,000 20,866.41 6.06500
108 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,910,000 19,094.74 5.78000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,796,957 23,101.49 6.13000
114 ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,730,000 18,121.15 5.75000
118 Various TX Various 3,500,000 23,088.43 6.25000
120 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,394,002 19,884.70 5.77000
121 ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,300,000 19,594.63 5.91000
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,200,000 18,980.37 5.90000
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,100,000 15,139.05 5.78000
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,720,000 14,639.20 6.37000
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,000,000 10,679.63 6.32000
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,996,606 11,888.34 5.92000
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,627,879 10,402.70 5.90000
MORTGAGE REMAINING TERM REMAINING INTEREST ADMINISTRATIVE OUTSIDE SERVICING
LOAN NUMBER TO MATURITY MATURITY DATE AMORTIZATION TERM ACCRUAL BASIS COST RATE (%) FEE RATE (%)
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1 119 1/11/2017 0 Act/360 0.02054 N/A
10A 58 12/11/2011 0 Act/360 0.02054 N/A
10B 58 12/11/2011 0 Act/360 0.02054 N/A
10C 58 12/11/2011 0 Act/360 0.02054 N/A
10D 58 12/11/2011 0 Act/360 0.02054 N/A
10E 58 12/11/2011 0 Act/360 0.02054 N/A
11 117 11/11/2016 117 Act/360 0.01554 0.005
13 119 1/11/2017 360 Act/360 0.02054 N/A
15 120 2/11/2017 0 Act/360 0.02054 N/A
16 119 1/11/2017 359 Act/360 0.02054 N/A
18 120 2/11/2017 0 Act/360 0.02054 N/A
22 119 1/11/2017 359 Act/360 0.02054 N/A
24 119 1/11/2017 0 Act/360 0.02054 N/A
28 119 1/11/2017 0 Act/360 0.02054 N/A
33 119 1/11/2017 0 Act/360 0.02054 N/A
36 119 1/11/2017 360 Act/360 0.02054 N/A
39 117 11/11/2016 357 Act/360 0.02054 N/A
43 59 1/11/2012 0 Act/360 0.02054 N/A
54 118 12/11/2016 0 Act/360 0.02054 N/A
55 118 12/11/2016 0 Act/360 0.02054 N/A
56 118 12/11/2016 0 Act/360 0.02054 N/A
60 119 1/11/2017 0 Act/360 0.02054 N/A
61 118 12/11/2016 0 Act/360 0.02054 N/A
64 120 2/11/2017 360 Act/360 0.02054 N/A
65 118 12/11/2016 0 Act/360 0.02054 N/A
67 114 8/11/2016 0 Act/360 0.02054 N/A
70 120 2/11/2017 360 Act/360 0.02054 N/A
73 114 8/11/2016 0 Act/360 0.02054 N/A
77 58 12/11/2011 358 Act/360 0.02054 N/A
78 119 1/11/2017 0 Act/360 0.02054 N/A
80 119 1/11/2017 299 Act/360 0.02054 N/A
82 119 1/11/2017 0 Act/360 0.02054 N/A
84 119 1/11/2017 0 Act/360 0.02054 N/A
85 119 1/11/2017 0 Act/360 0.02054 N/A
90 118 12/11/2016 360 Act/360 0.02054 N/A
92 115 9/11/2016 0 Act/360 0.02054 N/A
96 119 1/11/2017 0 Act/360 0.02054 N/A
97 117 11/11/2016 360 Act/360 0.02054 N/A
100 119 1/11/2017 0 Act/360 0.02054 N/A
102 119 1/11/2017 0 Act/360 0.02054 N/A
103 118 12/11/2016 0 Act/360 0.02054 N/A
105 117 11/11/2016 0 Act/360 0.02054 N/A
108 119 1/11/2017 0 Act/360 0.02054 N/A
112 119 1/11/2017 359 Act/360 0.02054 N/A
114 119 1/11/2017 0 Act/360 0.02054 N/A
118 120 2/11/2017 300 Act/360 0.02054 N/A
120 118 12/11/2016 358 Act/360 0.02054 N/A
121 118 12/11/2016 360 Act/360 0.02054 N/A
122 118 12/11/2016 360 Act/360 0.02054 N/A
126 119 1/11/2017 0 Act/360 0.02054 N/A
129 118 12/11/2016 0 Act/360 0.02054 N/A
134 116 10/11/2016 0 Act/360 0.02054 N/A
135 118 12/11/2016 358 Act/360 0.02054 N/A
138 119 1/11/2017 299 Act/360 0.02054 N/A
MORTGAGE MORTGAGE LOAN ARD MORTGAGE
LOAN NUMBER GROUND LEASE? SELLER DEFEASANCE LOAN
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1 Fee Simple UBS Defeasance No
10A Fee Simple UBS Defeasance No
10B Fee Simple UBS Defeasance No
10C Fee Simple UBS Defeasance No
10D Fee Simple UBS Defeasance No
10E Fee Simple UBS Defeasance No
11 Leasehold UBS Defeasance No
13 Fee Simple UBS Defeasance No
15 Fee Simple UBS Defeasance No
16 Fee Simple UBS Yield Maintenance/Defeasance No
18 Fee Simple UBS Defeasance No
22 Fee Simple UBS Defeasance No
24 Fee Simple UBS Yield Maintenance/Defeasance No
28 Fee Simple UBS Defeasance No
33 Fee Simple UBS Defeasance No
36 Fee Simple UBS Defeasance No
39 Fee Simple UBS Defeasance No
43 Fee Simple UBS Defeasance No
54 Fee Simple UBS Yield Maintenance/Defeasance No
55 Fee Simple UBS Yield Maintenance/Defeasance No
56 Fee Simple UBS Yield Maintenance/Defeasance No
60 Fee Simple UBS Defeasance No
61 Fee Simple UBS Yield Maintenance/Defeasance No
64 Fee Simple UBS Defeasance No
65 Fee Simple UBS Yield Maintenance/Defeasance No
67 Fee Simple UBS Yield Maintenance/Defeasance No
70 Fee Simple UBS Defeasance No
73 Fee Simple UBS Yield Maintenance/Defeasance No
77 Fee Simple UBS Defeasance No
78 Fee Simple UBS Defeasance No
80 Fee Simple UBS Defeasance No
82 Fee Simple UBS Yield Maintenance/Defeasance No
84 Fee Simple UBS Defeasance No
85 Fee Simple UBS Yield Maintenance/Defeasance No
90 Fee Simple UBS Defeasance No
92 Fee Simple UBS Defeasance No
96 Fee Simple UBS Yield Maintenance/Defeasance No
97 Fee Simple UBS Defeasance No
100 Fee Simple UBS Yield Maintenance/Defeasance No
102 Fee Simple UBS Yield Maintenance/Defeasance No
103 Fee Simple UBS Yield Maintenance/Defeasance No
105 Fee Simple UBS Defeasance No
108 Fee Simple UBS Yield Maintenance/Defeasance No
112 Fee Simple UBS Defeasance No
114 Fee Simple UBS Defeasance No
118 Fee Simple UBS Defeasance No
120 Fee Simple UBS Defeasance No
121 Fee Simple UBS Defeasance No
122 Fee Simple UBS Defeasance No
126 Fee Simple UBS Defeasance No
129 Fee Simple UBS Yield Maintenance No
134 Fee Simple UBS Yield Maintenance No
135 Fee Simple UBS Defeasance No
138 Leasehold UBS Defeasance No
MORTGAGE ANTICIPATED ADDITIONAL CROSS MORTGAGE
LOAN NUMBER REPAYMENT DATE INTEREST RATE COLLATERALIZED LOAN GROUP
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1 ▇/▇ ▇/▇ ▇▇ ▇
▇▇▇ ▇/▇ ▇/▇ Yes (UBS-F) 2
10B N/A N/A Yes (UBS-F) 2
10C N/A N/A Yes (UBS-F) 2
10D N/A N/A Yes (UBS-F) 2
10E N/A N/A Yes (UBS-F) 2
11 N/A N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A No 1
16 N/A N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A No 1
24 N/A N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A No 1
55 N/A N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A ▇▇ ▇
▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇ ▇/▇ N/A No 1
100 N/A N/A ▇▇ ▇
▇▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇▇ ▇/▇ N/A ▇▇ ▇
▇▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇▇ ▇/▇ N/A ▇▇ ▇
▇▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇▇ ▇/▇ N/A ▇▇ ▇
▇▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇▇ ▇/▇ N/A ▇▇ ▇
▇▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇▇ ▇/▇ N/A ▇▇ ▇
▇▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇▇ ▇/▇ N/A ▇▇ ▇
▇▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇▇ ▇/▇ N/A ▇▇ ▇
▇▇▇ ▇/▇ ▇/▇ ▇▇ ▇
▇▇▇. A-1
EXHIBIT B
REPRESENTATIONS AND WARRANTIES
Except as set forth on the schedule of exceptions attached hereto as
Schedule I, the Seller hereby represents and warrants to the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or such other date
specified in the particular representation and warranty (the heading set forth
herein with respect to each representation and warranty being for the
convenience of reference only and in no way limiting, expanding or otherwise
affecting the scope or subject matter thereof), that:
(i) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct in
all material respects as of the Cut-off Date.
(ii) Legal Compliance. If such Mortgage Loan was originated by
the Seller or an Affiliate of the Seller, then, as of the date of its
origination, such Mortgage Loan complied in all material respects with, or was
exempt from, all requirements of federal, state or local law relating to the
origination of such Mortgage Loan; and, if such Mortgage Loan was not originated
by the Seller or an Affiliate of the Seller, then such Mortgage Loan is listed
on Schedule I-ii hereto and, 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.
B-1
(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-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. A natural person as
individual guarantor 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; (C) misapplication or misappropriation of rents
(received after an event of default), insurance proceeds or condemnation awards;
and (D) 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, such entity (or individual) 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. 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 and, as of the Closing
Date, to the actual knowledge of the Seller, no such claim has been asserted.
(vii) Assignments. The assignment of the related Mortgage(s) and
Assignment(s) of Leases to the Trustee (or, in the case of an Outside Serviced
Trust Mortgage Loan, to the related Outside Trustee) constitutes the legal,
valid, binding and, subject to the limitations and exceptions as to
enforceability set forth in paragraph (v) above, enforceable assignment of such
documents (provided that the unenforceability of any such assignment based on
bankruptcy, insolvency, receivership, reorganization, liquidation, moratorium
and/or other similar laws affecting the enforcement of creditors' rights
generally or based on general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) shall be a breach
of this representation and warranty only upon the declaration 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) and appurtenances and rights related thereto,
which Mortgaged Property is free and clear of all encumbrances and liens having
priority over or on a parity with the first lien of such Mortgage, except for
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 fully binding pro forma title policy or title policy
commitment); (C) the rights of tenants (as tenants only) under leases (including
subleases) pertaining to the related Mortgaged Property; (D) 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 (E) 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 as presently operated by the Mortgagor, 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 Property prior to the lien of
the related Mortgage, together with all ground rents, that prior to the Cut-off
Date became due and payable in respect of, and materially affect, any related
Mortgaged
B-3
Property have been paid or are escrowed for or are not yet delinquent, and the
Seller knows of no unpaid tax, assessment, ground rent, water charges or sewer
rent, which, in all such cases, were directly related to the subject Mortgaged
Property and could constitute liens on the subject Mortgaged Property prior to
the lien of the related Mortgage that prior to the Closing Date became due and
delinquent in respect of any related Mortgaged Property, or in any such case an
escrow of funds in an amount sufficient to cover such payments has been
established.
(x) No Material Damage. As of the date of origination of such
Mortgage Loan and, to the actual knowledge of the Seller, as of the Closing
Date, there was no pending proceeding for the total or partial condemnation of
any related Mortgaged Property that materially affects the value thereof and
such Mortgaged Property is free of material damage. Except for certain amounts
not greater than amounts which would be considered prudent by an institutional
commercial mortgage lender with respect to a similar mortgage loan and which are
set forth in the related Mortgage or other loan documents relating to such
Mortgage Loan, (and subject to any rights of the lessor under any related Ground
Lease) the related Mortgage Loan documents provide that any condemnation awards
will be applied (or, at the discretion of the mortgagee, will be applied) to
either the repair or restoration of all or part of the related Mortgaged
Property or the reduction of the outstanding principal balance of such Mortgage
Loan.
(xi) Title Insurance. Each related Mortgaged Property is
covered by an ALTA (or its equivalent) lender's title insurance policy issued by
a nationally recognized title insurance company, insuring that each related
Mortgage is a valid first lien on such Mortgaged Property in the original
principal amount of such Mortgage Loan (or, if such Mortgage Loan is part of a
Loan Combination, in the original principal amount of such Loan Combination)
after all advances of principal, subject only to Permitted Encumbrances and, in
the case of a Trust Mortgage Loan that is part of a Loan Combination, further
subject to the fact that the related Mortgage also secures the related Non-Trust
Mortgage Loan(s), (or if such policy has not yet been issued, such insurance may
be evidenced by a binding commitment or binding pro forma marked as binding and
signed (either thereon or on a related escrow letter attached thereto) by the
title insurer or its authorized agent) from a title insurer qualified and/or
licensed in the applicable jurisdiction, as required, to issue such policy; such
title insurance is in full force and effect, all premiums have been paid, is
freely assignable and will inure to the benefit of the Trustee (or, in the case
of an Outside Serviced Trust Mortgage Loan, the benefit of the related Outside
Trustee) as sole insured as mortgagee of record, or any such commitment or
binding pro forma is a legal, valid and binding obligation of such insurer; no
claims have been made by the Seller or any prior holder of such Mortgage Loan
(other than a prior holder unaffiliated with the Seller from whom the Seller has
taken by assignment) 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 an investment grade tenant, or one or
more tenants which in the aggregate do not represent more than 10% of the net
operating income with respect to the entire related Mortgaged Property, is or
are 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) and, if applicable, the related hazard
insurance policies or certificates of insurance contain appropriate endorsements
to avoid application of co-insurance, (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 an investment grade
tenant, or one or more tenants which in the aggregate do not represent more than
10% of the net operating income with respect to the entire related Mortgaged
Property, is or are 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 or, to the actual
knowledge of the Seller, by any prior mortgagee under such Mortgage Loan (other
than, with respect to a related Mortgaged Property located in New York and
Florida, a prior mortgagee unaffiliated with the Seller from whom the Seller has
taken the related Mortgage Note and Mortgage by assignment and has amended and
restated such Mortgage Note and Mortgage); 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
B-5
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 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 as of the Closing Date, 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: (1) the Seller has no actual knowledge as of the
Closing Date 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. Neither the Seller nor any prior
holder of such Mortgage Loan (other than, with respect to a related Mortgaged
Property located in New York and Florida, a prior holder unaffiliated with the
Seller from whom the Seller has taken the related Mortgage Note and Mortgage by
assignment and has amended and restated such Mortgage Note and Mortgage) has
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.
B-6
(xv) Interest Accrual Basis. Such Mortgage Loan accrues
interest on an Actual/360 Basis, an Actual/Actual Basis or a 30/360 Basis; and
such Mortgage Loan accrues interest (payable monthly in arrears) at a fixed rate
of interest throughout the remaining term thereof (except if such Mortgage Loan
is an ARD Mortgage Loan, in which case the accrual rate for interest will
increase after its Anticipated Repayment Date, and except in connection with the
occurrence of a default and the accrual of default interest).
(xvi) Subordinate Debt. Each related Mortgage or other loan
document relating to such Mortgage Loan does not provide for or permit, without
the prior written consent of the holder of the related Mortgage Note, any
related Mortgaged Property or any direct controlling interest in the Mortgagor
to secure any other promissory note or debt (other than another Mortgage Loan in
the Trust Fund and, if such Mortgage Loan is part of a Loan Combination, the
other mortgage loan(s) that are part of such Loan Combination, as applicable).
(xvii) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code. Accordingly,
either as of the date of origination or the Closing Date, the fair market value
of the real property securing such Mortgage Loan was not less than 80% of the
"adjusted issue price" (within the meaning of the REMIC Provisions) of such
Mortgage Loan. For purposes of the preceding sentence, the fair market value of
the real property securing such Mortgage Loan was first reduced by the amount of
any lien on such real property that is senior to the lien that secures such
Mortgage Loan, and was further reduced by a proportionate amount of any lien
that is on a parity with the lien that secures such Mortgage Loan. No action
that occurs by operation of the terms of such Mortgage Loan would cause such
Mortgage Loan to cease to be a "qualified mortgage" and such Mortgage Loan does
not permit the release or substitution of collateral if such release or
substitution (A) would constitute a "significant modification" of such Mortgage
Loan within the meaning of Treasury regulations section 860G-2(b), (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 updates thereof) in each instance meeting American Society of
Testing and Materials requirements 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) 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); none of the
environmental reports reveal any circumstances or conditions that are in
violation of any applicable environmental laws, or if such report does
B-7
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 set forth on Schedule I (which Mortgagor or other responsible
party has been reasonably determined by the Seller to have the creditworthiness
to do so (such determination by the Seller to be based on review of (i) the
financial statements provided to the Seller by the Mortgagor or other
responsible party, as applicable, and (ii) the reasonable cost of remediation of
the circumstances or conditions that are in violation of the applicable
environmental laws as set forth in the applicable environmental report)) 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 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.
B-8
(xxi) Bankruptcy. The related Mortgagor is not a debtor in any
bankruptcy, reorganization, insolvency or comparable proceeding; provided,
however, that this representation and warranty does not cover any such
bankruptcy, reorganization, insolvency or comparable proceeding with respect to
which: (1) the Seller has no actual knowledge and (2) written notice of the
discovery thereof is not delivered to the Seller by the Trustee or the Master
Servicer on or prior to the date occurring twelve months after the Closing Date.
(xxii) Loan Security. Such Mortgage Loan is secured by a Mortgage
on a fee simple interest and/or a leasehold estate in a commercial property or
multifamily property, including the related Mortgagor's interest in the
improvements on the related Mortgaged Property.
(xxiii) Amortization. Such Mortgage Loan does not provide for
negative amortization unless such Mortgage Loan is an ARD Mortgage Loan, in
which case it may occur only after the Anticipated Repayment Date.
(xxiv) Whole Loan. Such Mortgage Loan is a whole loan, contains
no equity participation by the lender or shared appreciation feature and does
not provide for any contingent interest in the form of participation in the cash
flow of the related Mortgaged Property.
(xxv) Due-on-Encumbrance. Each Mortgage Loan contains provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the prior written consent of the mortgagee or Rating
Agency confirmation that an Adverse Rating Event with respect to any Class of
Certificates would not occur, any related Mortgaged Property or any direct
controlling interest in the Mortgagor is directly encumbered in connection with
subordinate financing; and except in the case of a Trust Mortgage Loan that is
part of a Loan Combination (for which such consent has been granted with respect
to the other mortgage loan(s) in such Loan Combination), and except for the
respective Mortgage Loans secured by the Mortgaged Properties listed on Schedule
I (for which such consent has been granted with respect to mezzanine debt), no
such consent has been granted by the Seller. To the Seller's knowledge, no
related Mortgaged Property is encumbered in connection with subordinate
financing (except that each Mortgaged Property securing a Trust Mortgage Loan
that is part of a Loan Combination also secures the other mortgage loan(s) in
such Loan Combination); 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
B-9
interest therein is directly or indirectly transferred or sold without the
related Mortgagor having satisfied certain conditions specified in the related
Mortgage with respect to permitted transfers (which conditions are consistent
with the practices of prudent commercial mortgage lenders (as defined below)).
The Mortgage (under either specific or general expense provisions) requires the
Mortgagor to pay all reasonable fees and expenses associated with securing the
consent or approval of the holder of the Mortgage for all actions involving the
transfer of interest in such Mortgagor requiring such consent or approval under
the Mortgage.
(xxvii) Mortgagor Concentration. Except in the case of the
Mortgage Loans listed on Schedule I (xxvii), such Mortgage Loan, together with
any other Mortgage Loan made to the same Mortgagor or to an Affiliate of such
Mortgagor, does not represent more than 5% of the Initial Pool Balance.
(xxviii) Waivers; Modifications. Except as set forth in a
written instrument included in the related Mortgage File, the (A) material terms
of the related Mortgage Note, the related Mortgage(s) and any related loan
agreement and/or lock-box agreement have not been waived, modified, altered,
satisfied, impaired, canceled, subordinated or rescinded by the mortgagee in any
manner, and (B) no portion of a related Mortgaged Property has been released
from the lien of the related Mortgage, in the case of (A) and/or (B), to an
extent or in a manner that in any such event materially interferes with the
security intended to be provided by such document or instrument. Schedule I
identifies each Mortgage Loan (if any) as to which, since the latest date any
related due diligence materials were delivered to Anthracite Capital Inc. (or
its designee), there has been (in writing) given, made or consented to a
material alteration, material modification or assumption of the terms of the
related Mortgage Note, Mortgage(s) or any related loan agreement and/or lock-box
agreement and/or as to which, since such date, there has been (in writing) a
waiver other than as related to routine operational matters or minor covenants.
(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) payment of a release price equal to at least
125% of the amount of such Mortgage Loan allocated to the related Mortgaged
Property subject to the release or (D) with respect to mortgage loans listed on
Schedule I-xxx, 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,
B-10
occupancy, use and operation of such Mortgaged Property, and the related
originator performed the type of due diligence in connection with the
origination of such Mortgage Loan customarily performed by prudent commercial
mortgage lenders (as defined below) 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. For purposes of this paragraph, a
Mortgaged Property shall be deemed "grandfathered" with respect to any laws,
zoning ordinances, rules, covenants or restrictions affecting the construction,
occupancy, use or operation of the related Mortgaged Property, if and to the
extent that any of the construction, occupancy, use and operation of such
Mortgaged Property: (A) conformed in all material respects with such laws,
zoning ordinances, rules, covenants and restrictions affecting the improvements
on the related Mortgaged Property at the time the improvements on the related
Mortgaged Property were initially constructed or put into operation; and/or (B)
was not addressed or otherwise prohibited by any such laws, zoning ordinances,
rules, covenants and restrictions affecting the related Mortgaged Property at
the time the improvements on the related Mortgaged Property were initially
constructed or put into operation.
(xxxii) Property Financial Statements. The related Mortgagor has
covenanted in the related Mortgage Loan documents to deliver to the mortgagee
annual operating statements, rent rolls and related information of each related
Mortgaged Property and annual financial statements. If such Mortgage Loan had an
original principal balance greater than $15 million, the related Mortgagor has
covenanted to provide such operating statements, rent rolls and related
information on a quarterly basis. If such Mortgage Loan has an original
principal balance equal to or greater than $20 million, the related Mortgagor,
if it obtains an audited financial statement, is required to provide a copy
thereof to the holder of such Mortgage Loan at the related mortgagee's request.
(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, 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
B-11
the related Mortgage Loan documents provide substantially to the effect that
such entity: (A) is formed or organized solely for the purpose of owning and
operating one or more of the Mortgaged Properties securing such Mortgage Loan,
(B) may not engage in any business unrelated to the related Mortgaged Property
or Mortgaged Properties, (C) does not have any material assets other than those
related to its interest in and operation of such Mortgaged Property or Mortgaged
Properties and (D) may not incur indebtedness other than as permitted by the
related Mortgage or other Mortgage Loan documents. If such Mortgage Loan has an
initial principal balance of $25 million and above and the related Mortgagor is
a single member limited liability company, such Mortgagor's organizational
documents provide that such Mortgagor shall not dissolve or liquidate upon the
bankruptcy, dissolution, liquidation or death of its sole member and is
organized in a jurisdiction that provides for such continued existence and there
was obtained opinion of counsel confirming such continued existence. If such
Mortgage Loan has, or is part of a group of Mortgage Loans with affiliated
Mortgagors having, a Cut-off Date Balance equal to or greater than 2% of the
Initial Pool Balance, or if such Mortgage Loan has an original principal balance
equal to or greater than $25 million, there was obtained an opinion of counsel
regarding non-consolidation of such Mortgagor.
(xxxiv) Advancing of Funds. No advance of funds has been made,
directly or indirectly, by the originator or the Seller to the related Mortgagor
other than pursuant to the related Mortgage Note; and, to the actual knowledge
of the Seller, no funds have been received from any Person other than such
Mortgagor for or on account of payments due on the related Mortgage Note.
(xxxv) Legal Proceedings. To the Seller's actual knowledge,
there are no pending actions, suits or proceedings by or before any court or
governmental authority against or affecting the related Mortgagor or any related
Mortgaged Property that, if determined adversely to such Mortgagor or Mortgaged
Property, would materially and adversely affect the value of such Mortgaged
Property or the ability of such Mortgagor to pay principal, interest or any
other amounts due under such Mortgage Loan.
(xxxvi) Originator Duly Authorized. To the extent required under
applicable law as of the Closing Date, the originator of such Mortgage Loan was
qualified and authorized to do business in each jurisdiction in which a related
Mortgaged Property is located at all times when it held such Mortgage Loan to
the extent necessary to ensure the enforceability of such Mortgage Loan.
(xxxvii) Trustee under Deed of Trust. If the related Mortgage is a
deed of trust, a trustee, duly qualified under applicable law to serve as such,
is properly designated and serving under such Mortgage, and no fees and expenses
are payable to such trustee except in connection with a trustee sale of the
related Mortgaged Property following a default or in connection with the release
of liens securing such Mortgage Loan and any such fees and expenses are the
obligation of the Mortgagor under the terms of the Mortgage.
(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
B-12
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 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:
B-13
(A) such Ground Lease or a memorandum thereof has been or will
be duly recorded and such Ground Lease permits the
interest of the lessee thereunder to be encumbered by the
related Mortgage or, if consent of the lessor thereunder
is required, it has been obtained prior to the Closing
Date;
(B) upon the foreclosure of such Mortgage Loan (or acceptance
of a deed in lieu thereof), the Mortgagor's interest in
such Ground Lease is assignable to the Trustee (or, in the
case of an Outside Serviced Trust Mortgage Loan, to the
related Outside Trustee) without the consent of the lessor
thereunder (or, if any such consent is required, it has
been obtained prior to the Closing Date) and, in the event
that it is so assigned, is further assignable by the
Trustee (or, in the case of an Outside Serviced Trust
Mortgage Loan, by the related Outside Trustee) and its
successors without a need to obtain the consent of such
lessor (or, if any such consent is required, it has been
obtained prior to the Closing Date or may not be
unreasonably withheld);
(C) such Ground Lease may not be amended or modified without
the prior written consent of the mortgagee under such
Mortgage Loan and any such action without such consent is
not binding on such mortgagee, its successors or assigns;
(D) unless otherwise set forth in such Ground Lease, such
Ground Lease does not permit any increase in the amount of
rent payable by the ground lessee thereunder during the
term of such Mortgage Loan;
(E) such Ground Lease was in full force and effect as of the
date of origination of the related Mortgage Loan and, at
the Closing Date, such Ground Lease is in full force and
effect; to the actual knowledge of the Seller, except for
payments due but not yet 30 days or more delinquent, (1)
there is no material default under such Ground Lease, and
(2) there is no event which, with the passage of time or
with notice and the expiration of any grace or cure
period, would constitute a material default under such
Ground Lease;
(F) such Ground Lease, or an estoppel or consent letter
received by the mortgagee under such Mortgage Loan from
the lessor, requires the lessor thereunder to give notice
of any default by the lessee to such mortgagee; and such
Ground Lease, or an estoppel or consent letter received by
the mortgagee under such Mortgage Loan from the lessor,
further provides either (1) that no notice of termination
given under such Ground Lease is effective against such
mortgagee unless a copy has been delivered to the
mortgagee in the manner described in such Ground Lease,
estoppel or consent
B-14
letter or (2) that upon any termination of such Ground
Lease the lessor will enter into a new lease with such
mortgagee upon such mortgagee's request;
(G) based upon the related policy of title insurance, the
ground lessee's interest in such Ground Lease is not
subject to any liens or encumbrances superior to, or of
equal priority with, the related Mortgage, other than the
related ground lessor's related fee interest and any
Permitted Encumbrances;
(H) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity to cure any curable default under
such Ground Lease (not less than the time provided to the
related lessee under such Ground Lease to cure such
default) before the lessor thereunder may terminate or
cancel such Ground Lease;
(I) such Ground Lease has a currently effective term
(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
B-15
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 lots and an escrow of funds in an amount
sufficient to pay taxes resulting from a breach thereof has been established) or
is subject to an endorsement under the related title insurance policy; and each
related Mortgaged Property is served by a public or other acceptable water
system, a public sewer (or, alternatively, a septic) system, and other customary
utility facilities.
(xlviii) Defeasance. If such Mortgage Loan is a Defeasance Mortgage
Loan, the related Mortgage Loan documents require the related Mortgagor to pay
all reasonable costs associated with the defeasance thereof, and either: (A)
require the prior written consent of, and compliance with the conditions set by,
the holder of such Mortgage Loan for defeasance or (B) require that (1)
defeasance may not occur prior to the second anniversary of the Closing Date,
(2) the Defeasance Collateral must be government securities within the meaning
of Treasury regulations section 1.860G-2(a)(8)(i) and must be sufficient to make
all scheduled payments under the related Mortgage Note when due (assuming for
each ARD Mortgage Loan that it matures on its Anticipated Repayment Date or on
the date when any open prepayment period set forth in the related Mortgage Loan
documents commences) or, in the case of a partial defeasance that effects the
release of a material portion of the related Mortgaged Property, to make all
scheduled payments under the related Mortgage Note on that part of such Mortgage
Loan equal to at least 110% of the allocated loan amount of the portion of the
Mortgaged Property being released, (3) an independent accounting firm (which may
be the Mortgagor's independent accounting firm) certify that the Defeasance
Collateral is sufficient to make such payments, (4) such Mortgage Loan be
assumed by a successor entity designated by the holder of such Mortgage Loan (or
by the Mortgagor with the approval of such lender), and (5) counsel provide an
opinion letter to the effect that the Trustee (or, in the case of an Outside
Serviced Trust Mortgage Loan, the related Outside Trustee) has a perfected
security interest in such Defeasance Collateral prior to any other claim or
interest.
B-16
(xlix) Primary Servicing Rights. Except with respect to the
Outside Servicers, no Person has been granted or conveyed the right to primary
service such Mortgage Loan or receive any consideration in connection therewith
except (A) as contemplated in this 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, in its capacity as a primary servicer, or (C) as has been
terminated.
(l) Mechanics' and Materialmen's Liens. As of origination and,
to the Seller's actual knowledge, as of the Closing Date, (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 such
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 seventh day, the tenth day or the eleventh day of each
month.
(lii) Assignment of Leases. Subject only to Permitted
Encumbrances, the related Assignment of Leases set forth in or separate from the
related Mortgage and delivered in connection with such Mortgage Loan establishes
and creates a valid and, subject only to the exceptions and limitations in
paragraph (v) above, enforceable first priority lien and first priority security
interest in the related Mortgagor's right to receive payments due under any and
all leases, subleases, licenses or other agreements pursuant to which any Person
is entitled to occupy, use or possess all or any portion of the related
Mortgaged Property subject to the related Mortgage, except that a license may
have been granted to the related Mortgagor to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases;
and each assignor thereunder has the full right to assign the same.
(liii) Mortgagor Formation or Incorporation. To the Seller's
knowledge, the related Mortgagor is a Person formed or incorporated in a
jurisdiction within the United States.
(liv) No Ownership Interest in Mortgagor. The Seller has no
ownership interest in the related Mortgaged Property or the related Mortgagor
other than as the holder of such Mortgage Loan being sold and assigned, and
neither the Seller nor any affiliate of the Seller has any obligation to make
any capital contributions to the related Mortgagor under the Mortgage or any
other related Mortgage Loan document.
(lv) No Undisclosed Common Ownership. To the Seller's
knowledge, except where multiple properties secure an individual Mortgage Loan
and except for properties securing Mortgage Loans that are cross-defaulted and
cross-collateralized, no two properties securing Mortgage Loans are directly or
indirectly under common ownership.
B-17
(lvi) Loan Outstanding. Such Mortgage Loan has not been
satisfied in full, and except as expressly contemplated by the related loan
agreement or other documents contained in the related Mortgage File, no material
portion of the related Mortgaged Property has been released.
(lvii) Usury. Such Mortgage Loan complied with or was exempt from
all applicable usury laws in effect at its date of origination.
(lviii) ARD Mortgage Loan. If such Mortgage Loan is an ARD
Mortgage Loan, then:
(A) the related Anticipated Repayment Date is not less than
five years from the origination date for such Mortgage
Loan;
(B) such Mortgage Loan provides that from the related
Anticipated Repayment Date through the maturity date
for such Mortgage Loan, all excess cash flow (net of
normal monthly debt service on such Mortgage Loan,
monthly expenses reasonably related to the operation of
the related Mortgaged Property, amounts due for
reserves established under such Mortgage Loan, and
payments for any other expenses, including capital
expenses, related to such Mortgaged Property which are
approved by mortgagee) will be applied to repay
principal due under such Mortgage Loan;
(C) no later than the related Anticipated Repayment Date,
the related Mortgagor is required (if it has not
previously done so) to enter into a "lockbox agreement"
whereby all revenue from the related Mortgaged Property
will be deposited directly into a designated account
controlled by the mortgagee under such Mortgage Loan;
and
(D) the interest rate of such Mortgage Loan will increase
by at least two (2) percentage points in connection
with the passage of its Anticipated Repayment Date.
(lix) Appraisal. An appraisal of the related Mortgaged Property
was conducted in connection with the origination of such Mortgage Loan; and such
appraisal satisfied either (A) the requirements of the "Uniform Standards of
Professional Appraisal Practice" as adopted by the Appraisal Standards Board of
the Appraisal Foundation, or (B) the guidelines in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, in either case as in
effect on the date such Mortgage Loan was originated.
For purposes of the foregoing representations and warranties, the
phrases "to the knowledge of the Seller" or "to the Seller's knowledge" shall
mean, except where otherwise expressly set forth above, the actual state of
knowledge of the Seller at the time of the origination of the particular
Mortgage Loan regarding the matters referred to, in each case after having
conducted such inquiry and due diligence into such matters as is customarily
performed by the Seller in connection with such matters with respect o the
origination by Seller of multifamily or
B-18
commercial (as applicable) mortgage loans intended for securitization and the
phrases "to the actual knowledge of the Seller" or "to the Seller's actual
knowledge" shall mean, except where otherwise expressly set forth above, the
actual state of the Seller's knowledge, at the time of the origination of the
particular Mortgage Loan regarding the matters referred to, in each case without
any express or implied obligation to make any inquiry or conduct any due
diligence.
For purposes of the foregoing representations and warranties, the
phrases "would be considered prudent by an institutional commercial mortgage
lender" or "consistent with the practices of prudent commercial mortgage
lenders" or "customarily performed by prudent commercial mortgage lenders" or
"would not be viewed as commercially unreasonable by a prudent commercial
mortgage lender" and/or other references to "prudent commercial mortgage
lender(s)" shall, in each case, mean the subject action, inaction,
consideration, determination, or lending practice would be reasonably consistent
with the practices or procedures commonly followed (at the time the subject
action, inaction, consideration, determination, or lending practice occurred) by
commercial mortgage lenders originating fixed-rate mortgage loans for
securitization similar to the Mortgage Loans, which practices or procedures, in
each case, would be commonly applicable at such time taking into account the
facts, circumstances and characteristics of the subject Mortgage Loan.
B-19
SCHEDULE I
LB-UBS 2007-C1
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
---------------------------------------------------------------------------------------------------------------------
Control No. Representation Property Issue
---------------------------------------------------------------------------------------------------------------------
(v) Trophy Properties The loan is full recourse to borrower until the
Portfolio debt service coverage ratio for the trailing
Loan Document Status twelve month period is 1.20 on a 30 year
Prime Apartment Portfolio amortization schedule.
2238 Hyde
737 Pine
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
(v) Sheraton LA The key principal executed a shortfall guaranty
for all vacant space in excess of 8%, at a
Loan Document Status minimum of market rent, which extends five years
beyond the loan term and includes a guaranty of
all TI/LC at the property. In addition, the key
principal provided a partial payment guaranty of
up to $10 million until a debt service coverage
test is met and a guaranty of any property
improvement plan work in excess of the property
improvement plan escrow.
---------------------------------------------------------------------------------------------------------------------
(v) CVS Vero Beach There is no indemnity and guaranty for
nonrecourse carveouts by any guarantor. The
Loan Document Status borrower and the key principal are recourse for
losses in connection with three items existing
on the title.
---------------------------------------------------------------------------------------------------------------------
(v) Hy-Vee - ▇▇▇▇ ▇▇▇▇▇▇ There is no indemnity and guaranty for
nonrecourse carveouts by any guarantor.
Loan Document Hy-Vee - Cedar
---------------------------------------------------------------------------------------------------------------------
Sch I-1
---------------------------------------------------------------------------------------------------------------------
Control No. Representation Property Issue
---------------------------------------------------------------------------------------------------------------------
Status Rapids
Hy-Vee - Olathe
Hy-Vee - Grand Avenue
Hy-Vee - Columbus
CVS ▇▇▇▇▇▇▇
Walgreens Loganville
Walgreens New Castle
Walgreens Canton
Walgreens Parkville
Walgreens Natchez
---------------------------------------------------------------------------------------------------------------------
(v) Gypsum ▇▇▇▇▇ The loan is recourse to the borrower and key
principal for losses if the borrower fails to
Loan Document Status comply with the age restrictions requirements in
connection with leasing.
The loan is recourse to the borrower and key
principal for losses relating to the mobile
homes that encroach on existing easements.
---------------------------------------------------------------------------------------------------------------------
(v) Hampton Inn - Cedar The loan is full recourse to the borrower and
Rapids key principal until (i) the work in connection
Loan Document Status with the PIP is completed and (ii) the debt
service coverage ratio is equal to 1.35 for the
trailing 12 months based on a 25 year
amortization schedule, which trailing 12 month
period starts upon the completion of the PIP
work.
---------------------------------------------------------------------------------------------------------------------
(v) Penn Medical Guarantors executed an insurance shortfall
guaranty with a cap of
---------------------------------------------------------------------------------------------------------------------
Sch I-2
---------------------------------------------------------------------------------------------------------------------
Control No. Representation Property Issue
---------------------------------------------------------------------------------------------------------------------
$650,000 plus enforcement costs.
Loan Document Status
---------------------------------------------------------------------------------------------------------------------
(v) Hillcrest Oaks Apartments Key principal is recourse for the deductible in
connection with the general liability policy for
Loan Document Status any amount greater than the approved deductible
as provided in the documents.
---------------------------------------------------------------------------------------------------------------------
(v) Holiday Inn - Ashville The loan is recourse to the borrower and key
principal upon loss of the flag and reissuance
Loan Document Status Sheraton LA of a comfort level.
Hilton Garden Inn
Hampton Inn-Cedar Rapids
---------------------------------------------------------------------------------------------------------------------
(v) Walgreens Miramar The borrower and key principal are recourse for
losses in connection with the punchlist received
Loan Document Status simultaneously with closing.
---------------------------------------------------------------------------------------------------------------------
(v) River Street The loan is full recourse to the borrower and
key principal for losses incurred by the lender
Loan Document Status as a result of a casualty and the lender being
unable to rebuild a multifamily building with 99
units.
---------------------------------------------------------------------------------------------------------------------
(v) Greenfield Mobile Home The loan becomes full recourse to ▇▇▇▇▇▇▇ ▇.
▇▇▇▇ ▇▇▇▇▇ if at any time during the first 2 years of
Loan Document Status the loan term the debt service coverage ratio is
less than 1.10. Full recourse terminates once
the debt service coverage ratio exceeds 1.20.
[Recourse terminates automatically after the
first 2 years of the loan term if the debt
service coverage ratio exceeds 1.10 on the
second anniversary the loan closing.]
---------------------------------------------------------------------------------------------------------------------
Sch I-3
---------------------------------------------------------------------------------------------------------------------
Control No. Representation Property Issue
---------------------------------------------------------------------------------------------------------------------
(v) All Citizens Loans A natural person did not provide the guaranty
for nonrecourse carveouts.
Loan Document Status Four Times Square
Hilton Garden Inn
---------------------------------------------------------------------------------------------------------------------
N/A (v) All Properties With respect to the nonrecourse carveout
guarantee concerning fraud, certain of the
Loan Document Status guarantors have only agreed to be liable in
connection with and to the extent of any
material fraud or material intentional fraud or
material misrepresentations or material
intentional misrepresentation by the related
mortgagor.
With respect to the nonrecourse carveout
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.
Certain of the loans are recourse in limited
circumstances.
---------------------------------------------------------------------------------------------------------------------
(viii) Walgreens Canton Tenant is entitled to award in connection with
any condemnation insofar as the same represents
No Material Damage compensation for/or damage to tenant's fixtures,
equipment, leasehold improvements or other
property and moving expenses as well as 1/2 the
value of the loss of the leasehold estate (i.e.
the value to tenant of the unexpired balance of
the lease terms as of the date of such taking,
regardless of how such loss of leasehold is
described or named under the law of the state
where premises are located). Also, tenant is
entitled to entire award for any temporary
construction
---------------------------------------------------------------------------------------------------------------------
Sch I-4
---------------------------------------------------------------------------------------------------------------------
Control No. Representation Property Issue
---------------------------------------------------------------------------------------------------------------------
easement. Landlord is entitled to award insofar
as same represents compensation for/damage to the
fee remainder.
---------------------------------------------------------------------------------------------------------------------
With respect to any casualties in excess of $750
(xii) Four Times Square million the borrower carries coverage through a
captive insurance company.
Property Insurance
---------------------------------------------------------------------------------------------------------------------
Tenant has the right to self insure subject to
(xii) CVS Vero Beach certain requirements, however, if, at any time,
the insurance maintained by the tenant does not
Property Insurance fully comply with the requirements set forth in
the mortgage, then the borrower will immediately
procure and maintain primary or excess and
contingent insurance so that the insurance
requirements set forth in the mortgage are
satisfied.
---------------------------------------------------------------------------------------------------------------------
Tenant self insures, provided that it maintains
(xii) Hy-Vee - ▇▇▇▇ ▇▇▇▇▇▇ a net worth determined in accordance with
generally accepted accounting principles and
Property Insurance Hy-Vee - Cedar Rapids practices greater than $100,000,000 and there is
no rating requirement with respect to the tenant.
Hy-Vee - Olathe
Lender did not require business interruption
Hy-Vee - Grand Avenue insurance as per the terms of the mortgage loan
documents.
Hy-Vee - Columbus
With respect to the general liability insurance,
coverage from Employer Mutual Casualty Company,
having a rating of BBB by Standard & Poor's was
permitted under the loan documents.
---------------------------------------------------------------------------------------------------------------------
(xii) Tradewinds Apartments The current policies maintained as of the
closing date by the borrower are deemed
Property Insurance acceptable until 9/4/07, at which time the
borrower will maintain the policies required
under the mortgage.
---------------------------------------------------------------------------------------------------------------------
Sch I-5
---------------------------------------------------------------------------------------------------------------------
Control No. Representation Property Issue
---------------------------------------------------------------------------------------------------------------------
(xii) Eckerd Portfolio Eckerd currently carries the insurance.
Property Insurance
---------------------------------------------------------------------------------------------------------------------
(xii) Tractor Supply Insurance for acts of terrorism is not in
place. A key principal has guaranteed any
Property Insurance losses due to a casualty caused by acts of
terrorism.
---------------------------------------------------------------------------------------------------------------------
(xii) Greenfield Mobile Home Borrower is not required to insure occupant
Park improvements.
Property Insurance
---------------------------------------------------------------------------------------------------------------------
(xii) Rite Aid - La Plata Insurance for acts of terrorism is not in place.
Property Insurance CVS-▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
(xii) Walgreens Loganville Tenant self insures.
Property Insurance Walgreens New Castle
Walgreens Canton
Walgreens Parkville
Walgreens Miramar
Walgreens Natchez
---------------------------------------------------------------------------------------------------------------------
(xii) All Citizens Loans A $6,000,000 environmental reserve was created by
the tenant at the time the properties were
Property Insurance acquired to cover certain potential remediation
costs at certain properties. The borrower may
perform Phase II testing on certain properties to
determine whether any such remediation is
necessary. In addition, an environmental
insurance policy was purchased on behalf of the
borrowers to
---------------------------------------------------------------------------------------------------------------------
Sch I-6
---------------------------------------------------------------------------------------------------------------------
Control No. Representation Property Issue
---------------------------------------------------------------------------------------------------------------------
cover potential remediation costs.
---------------------------------------------------------------------------------------------------------------------
Sch I-7
---------------------------------------------------------------------------------------------------------------------
N/A (xii) Certain Properties, The business interruption policy is in an amount
sufficient to provide proceeds which will cover
Property Insurance the actual loss of income sustained during the
actual period of restoration.
---------------------------------------------------------------------------------------------------------------------
N/A (xii) All Properties With respect to certain mortgage loans, the
lender accepted comprehensive liability insurance
Property Insurance in an amount less than that required by the loan
documents, provided, however, that all the
mortgage loans provide a primary general
liability policy of at least $1,000,000 per
occurrence with $2,000,000 in the aggregate.
---------------------------------------------------------------------------------------------------------------------
(xvi) Trophy Properties Mezzanine debt is in place.
Portfolio
Subordinate Debt
Prime Apartment
Properties Portfolio
2238 Hyde
737 Pine
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
(xvi) Four Times Square The borrowers are permitted to procure mezzanine
debt subject to the terms of the loan
Subordinate Debt All Citizens Loans documents.
CVS Vero Beach
Hy-Vee - 51st Street
Hy-Vee - Cedar Rapids
Hy-Vee - Olathe
Hy-Vee - Grand Avenue
Hy-Vee - Columbus
CVS ▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
Sch I-8
---------------------------------------------------------------------------------------------------------------------
Walgreens Loganville
Walgreens New Castle
Walgreens Canton
Walgreens Parkville
Walgreens Columbus
Walgreens Miramar
Walgreens Natchez
CVS Garfield
---------------------------------------------------------------------------------------------------------------------
N/A (xvi) All Properties The loan documents allow the borrower to incur
certain trade payables and equipment financing up
Subordinate Debt to a predetermined amount, which is generally
less than or equal to 5% of the loan amount.
---------------------------------------------------------------------------------------------------------------------
(xix) All Citizens Loans No natural person has provided an environmental
indemnity.
Environmental CVS Vero Beach
Conditions
Hy-Vee - 51st Street
Hy-Vee - Cedar Rapids
Hy-Vee - Olathe
Hy-Vee - Grand Avenue
Hy-Vee - Columbus
CVS ▇▇▇▇▇▇▇
Walgreens Loganville
Walgreens New
---------------------------------------------------------------------------------------------------------------------
Sch I-9
---------------------------------------------------------------------------------------------------------------------
Castle
Keystone Corporate Square
Walgreens Canton
Walgreens Parkville
Walgreens Natchez
Hilton - Garden Inn
-----------------------------------------------------------------------------------------------------------------------
(xix) All Citizens Loans A $6,000,000 environmental reserve was created by
the tenant at the time the properties were
Environmental acquired to cover certain potential remediation
Conditions costs at certain properties. The borrower may
perform Phase II testing on certain properties to
determine whether any such remediation is
necessary. In addition, an environmental
insurance policy was purchased on behalf of the
borrowers to cover potential remediation costs.
-----------------------------------------------------------------------------------------------------------------------
(xxv) Four Times Square The borrowers are permitted to procure mezzanine
debt subject to the terms of the loan
Due-on-Encumbrance All Citizens Loans documents.
CVS Vero Beach
Hy-Vee - 51st Street
Hy-Vee - Cedar Rapids
Hy-Vee - Olathe
Hy-Vee - Grand Avenue
Hy-Vee - Columbus
CVS ▇▇▇▇▇▇▇
Walgreens Loganville
Walgreens New
---------------------------------------------------------------------------------------------------------------------
Sch I-10
---------------------------------------------------------------------------------------------------------------------
Castle
Walgreens Canton
Walgreens Parkville
Walgreens Columbus
Walgreens Miramar
Walgreens Natchez
CVS Garfield
---------------------------------------------------------------------------------------------------------------------
(xxv) All Citizens Loans Future mezzanine debt is permitted subject to
certain conditions including a combined debt
Due-on-Encumbrance service coverage ratio of 1.00x or greater and a
combined loan to value ratio of 95% or less.
---------------------------------------------------------------------------------------------------------------------
N/A (xxv) All Properties The loan documents allow the borrower to incur
certain trade payables and equipment financing up
Due-on-Encumbrance to a predetermined amount, which is generally
less than or equal to 5% of the loan amount.
---------------------------------------------------------------------------------------------------------------------
(xxvi) AXA Building (i) RCG Longview has the right to purchase the
interest in the borrower held by the Key
Due-on-Sale Principals without consent or fee, provided the
borrower structure must conform to a typical
conduit structure and if there is a change in day
to day effective control a substitute guarantor
must be provided for the obligation of the Key
Principals under the carve-out guaranty and the
Hazardous Substances Indemnity Agreement; (ii)
subject to certain conditions set forth in the
mortgage, RCG Longview may transfer its interests
to another Affiliate; (iii) the Key Principals
have the right to purchase the interests in the
borrower held by RCG Longview, without consent or
fee, provided the borrower structure must conform
to a typical conduit structure, and provided
---------------------------------------------------------------------------------------------------------------------
Sch I-11
---------------------------------------------------------------------------------------------------------------------
there is no change in the day-to day control of
the borrower.
---------------------------------------------------------------------------------------------------------------------
Interests in borrower may be transferred to any
(xxvi) All Citizens Loans entity in which UBS Real Estate Investments Inc.
("UBSREI") or UBS AG (or any of their respective
Due-on-Sale Hy-Vee - ▇▇▇▇ ▇▇▇▇▇▇ affiliates) holds any interests or investment in
and to any entity in which UBSREI or UBS AG is
Hy-Vee - Cedar Rapids merged into or consolidated with. Additionally,
UBSREI may, without the consent of lender,
Hy-Vee - Olathe transfer or assign, or cause the transfer or
assignment of, all or any portion of the direct
Hy-Vee - Grand Avenue or indirect interests in borrower or may permit a
transfer, directly or indirectly, of any direct
Hy-Vee - Columbus or indirect interest in UBSREI or borrower, to
(x) any fund advised by UBSREI or an "affiliate"
CVS ▇▇▇▇▇▇▇ of UBSREI, or (y) any other entity as long as, in
the case of this clause (y) only, UBSREI, an
Walgreens Loganville affiliate of UBSREI, or a fund advised by UBSREI
or an affiliate of UBSREI either directly or
Walgreens New Castle indirectly (1) "controls" such entity or (2) is
empowered to conduct, (or directly or indirectly
Walgreens Columbus controls an entity that is empowered to conduct),
all day-to-day management of the Mortgaged
Walgreens Natchez Property and, subject to obtaining the consent of
other persons or entities that may have an
CVS Garfield interest therein, has the right to participate in
(or directly or indirectly controls an entity
that has the right to participate in), all
day-to-day management of the Mortgaged Property.
Additionally, nothing in the loan documents
restricts the right of UBSREI to engage in
repurchase transactions or any pledge,
hypothecation, or re-hypothecation transaction
with respect to its indirect ownership of the
partnership interests in borrower.
With respect to the Citizens Loans there
---------------------------------------------------------------------------------------------------------------------
Sch I-12
---------------------------------------------------------------------------------------------------------------------
has been an pre-approved transfer in change of
control to (i) Citizens Bank and its affiliates
pursuant to rights of first offer under the
leases, (ii)American Financial Realty Trust and
its affiliates pursuant to the right of first
offer provisions in the organizational documents
of the borrower or its affiliates and (iii) to
entities owned and controlled by any one of the
following or any affiliates of any such entities:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or GF Capital,
pursuant to the loan documents.
---------------------------------------------------------------------------------------------------------------------
(xxvi) All Citizens Loans Certain transfers of interests in the borrower,
including transfers of controlling interests
Due-on-Sale and/or certain transfers of the property to
pre-approved persons or entities, in either case
without the consent of the mortgagee, provided
certain conditions have been satisfied.
---------------------------------------------------------------------------------------------------------------------
N/A (xxvi) All Properties Most of the loan documents provide that transfers
of direct and/or indirect interest in the related
Due-on-Sale mortgagor and/or the related mortgaged property
upon the death of any natural person which holds
such interest(s) will not constitute a transfer
of direct and/or indirect interest in mortgagor
and/or mortgaged property so long as, among
other things as set forth in loan documents: (i)
all of the direct and/or indirect interests of
such decedent in the mortgagor and/or the
mortgaged property are held and remain the
property of the legal representative of such
decedent's estate; (ii) the mortgaged property
continues to be managed in a manner acceptable to
the mortgagee and (iii) within thirty (30) days
of such death, mortgagor delivers notice thereof
to the mortgagee and thereafter provides the
mortgagee with such information as may be
reasonably requested by the mortgagee as to the
continued management of the mortgaged property.
---------------------------------------------------------------------------------------------------------------------
Sch I-13
---------------------------------------------------------------------------------------------------------------------
(xxvii) All Citizens Loans The mortgage loans to the affiliated mortgagors
constitute more than 5% of the initial pool
Mortgagor State Street Building balance.
Concentration
All Lembi Portfolio
Properties
Four Times Square
---------------------------------------------------------------------------------------------------------------------
Sch I-14
---------------------------------------------------------------------------------------------------------------------
(xxix) All Citizens Loans Only a portion of the properties with respect to
these loans were inspected.
Inspection
---------------------------------------------------------------------------------------------------------------------
(xxx) Gypsum Mill Mobile Home At closing, a parcel containing approximately 25
Park mobile homes and a golf course was included in
Property Release the mortgaged property because the parcel had not
yet been subdivided. Once the parcel is
subdivided, the portion of that parcel containing
the golf course will be released, subject to
borrower's satisfaction of several conditions set
forth in the mortgage.
---------------------------------------------------------------------------------------------------------------------
(xxx) All Citizens Loans The loan documents for these loans permit partial
defeasance on a property-by-property basis by
Property Release providing defeasance collateral of 100% of the
allocated loan amount for the property being
released.
---------------------------------------------------------------------------------------------------------------------
(xxxi) CVS Vero Beach A final plat of the mortgaged property is in the
process of being recorded, however, pursuant to a
Qualifications; letter from the Senior Planner of the Indian
Licensing; Zoning River County Board of County Commissioners, the
property is a legal lot that may be separately
conveyed, mortgaged and foreclosed upon.
---------------------------------------------------------------------------------------------------------------------
(xxxi) Gypsum Mill Mobile Home As of closing, one parcel is in the process of
Park being subdivided. Once that parcel is properly
Qualifications; subdivided, the portion of that parcel that is
Licensing; Zoning outside the mobile home park (which is improved
by a golf course) will be released from the lien
of the mortgage subject to borrower's
satisfaction of several conditions set forth in
the mortgage.
---------------------------------------------------------------------------------------------------------------------
(xxxi) River Street Apartments A certificate of occupancy is not available in
the town records. The absence of a certificate of
Qualifications; occupancy will not give rise to enforcement
Licensing; Zoning action. In addition there is a recourse carveout
in
---------------------------------------------------------------------------------------------------------------------
Sch I-15
---------------------------------------------------------------------------------------------------------------------
the Guaranty for any loss, cost or damage due to
unavailablity of a certificate of occupancy.
---------------------------------------------------------------------------------------------------------------------
(xxxi) Bear Pointe Apartments The mortgaged property is nonconforming as to
parking until such time as 13 additional parking
Qualifications; spaces are striped as per the approved site
Licensing; Zoning plan. Mortgagor acknowledges in the related loan
documents that the current striping for the
parking at the mortgaged property may provide
slightly less parking spaces than currently
required by the applicable zoning laws regarding
parking. Mortgagor further covenants that within
180 days of the date of the mortgage, mortgagor
will undertake to correct the zoning violation
pursuant to the requirements set forth in the
mortgage. In the event mortgagor fails to do so,
such failure shall be deemed an event of default
under the related loan documents and entitle the
lender to undertake such remedial work on
mortgagor's behalf and at mortgagor's expense if
the lender so elects. The lender has also
required that mortgagor provide an initial
reserve in the amount $3,986.20 to be used in
connection with correcting the zoned violation;
which said amount is based on an estimate for the
work necessary to complete the work to correct
such zoning violation.
---------------------------------------------------------------------------------------------------------------------
(xxxi) All Citizens Loans Seller did not perform full due diligence with
respect to the compliance of all properties in
Qualifications; respect of these loans with applicable laws,
Licensing; Zoning zoning ordinances and the like since all such
compliance is the responsibility of the tenants
of such properties, which tenants are investment
grade.
---------------------------------------------------------------------------------------------------------------------
(xxxii) Sheraton LA [The borrower is only obligated to submit rent
rolls upon request of the lender.]
Property Financial
---------------------------------------------------------------------------------------------------------------------
Sch I-16
---------------------------------------------------------------------------------------------------------------------
Statements
---------------------------------------------------------------------------------------------------------------------
(xxxii) Gypsum Mill Mobile Home The borrower is not required to deliver audited
Park financial statements.
Property Financial
Statements ▇▇▇▇▇▇▇▇ Portfolio
---------------------------------------------------------------------------------------------------------------------
(xxxiii) Trophy Properties Because the loans are fully guaranteed by the
Portfolio principals, non consolidation opinions were not
Single Purpose Entity provided.
Prime Apartment Portfolio
2238 Hyde
737 Pine
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
(xxxiii) Hilton Garden Inn The borrowing entity is not a single purpose
entity.
Single Purpose Entity
---------------------------------------------------------------------------------------------------------------------
N/A (xxxiii) All Properties Certain borrowers, including the borrowers with
respect to [___] may be recycled entities.
Single Purpose Entity
---------------------------------------------------------------------------------------------------------------------
(xxxv) Trophy Properties ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, and certain entities
Portfolio controlled by them, are parties to litigation
Legal Proceedings involving a group of tenants and the City and
Prime Apartment Portfolio County of San Francisco.
2238 Hyde
737 Pine
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------
(xxxv) ▇▇▇▇▇▇▇▇ Portfolio Mortgage permits a transfer of the TIC borrower
owning 19% of the property to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Legal Proceedings who currently has an $88,955 federal tax lien
filed against him. According to a letter from
▇▇. ▇▇▇▇▇▇ to the lender, he has agreed with the
IRS to
---------------------------------------------------------------------------------------------------------------------
Sch I-17
---------------------------------------------------------------------------------------------------------------------
an installment plan to payback this debt and
release the lien. One of the conditions to the
transfer of the TIC borrower is that ▇▇. ▇▇▇▇▇▇
pay the debt in full the and have the lien
released.
---------------------------------------------------------------------------------------------------------------------
(xxxix) Greenfield Mobile Home There is no flood insurance for improvements as
Park there are no improvements belonging to the
Flood Hazard borrower on the mortgaged property.
Insurance
---------------------------------------------------------------------------------------------------------------------
(xlii) River Street Apartments a certificate of occupancy is not available in
the town records. The absence of a certificate of
Licenses, Permits occupancy will not give rise to enforcement
and Authorizations action. In addition there is a recourse carveout
in the Guaranty for any loss, cost or damage due
to unavailablity of a certificate of occupancy.
---------------------------------------------------------------------------------------------------------------------
(xlii) All Citizens Loans Seller did not perform full due diligence with
respect to the compliance of all properties in
Licenses, Permits respect of these loans with applicable laws,
and Authorizations zoning ordinances and the like since all such
compliance is the responsibility of the tenants
of such properties, which tenants are investment
grade.
---------------------------------------------------------------------------------------------------------------------
(xlv) Rite Aid - La Plata An assignment upon the exercise of any
foreclosure remedy has been consented to by the
Leasehold Interest fee owner. Thereafter an assignment by the
Only lender or a purchaser upon foreclosure is subject
to reasonable consent. There are periodic
increases in the Ground Rent
A new lease is to be entered into if there is a
termination as a result of an uncurable default
or a rejection in bankruptcy, in addition the
lender has the ability of suspending the fee
owners termination notice in order for the lender
to commence proceeding to foreclose the leasehold
mortgage and curing the default.
---------------------------------------------------------------------------------------------------------------------
Sch I-18
---------------------------------------------------------------------------------------------------------------------
(xlviii) All Citizens Loans Partial defeasance on a property by property
basis is allowed upon the provision of defeasance
Defeasance collateral equal to 100% of the allocated loan
amount for the property being released.
---------------------------------------------------------------------------------------------------------------------
(xlviii) Certain Properties The defeasance collateral can consist of, in
including all Citizens addition to what is listed in representation
Defeasance Loans (xlviii), non-callable instruments, which (a)
will not cause the REMIC trust to fail to
maintain its status as a "real estate mortgage
investment conduit," (b) will not result in a
ratings reduction, downgrade or withdrawal, (c)
are then outstanding and (d) are then being
generally accepted by the rating agencies without
any reduction, downgrade or withdrawal of the
applicable ratings.
---------------------------------------------------------------------------------------------------------------------
(l) 1701 East Lake There is an open construction contract for
roofing work for a total sum of $122,749, $90,400
Mechanics' and has been paid and partial lien waivers provided.
Materialmen's Liens The balance is outstanding and is to be paid once
the work is complete. The title company has
insured over any potential lien. The title
company is holding 150% of the outstanding amount
in escrow and the lender has the right to direct
the title company to pay off any lien if a lien
is ever filed and not discharged with 60 days of
filing or 7 days of commencement of foreclosure
of any such lien. Principal is recourse for loss
costs or damages for failure to discharge any
lien that may be filed.
---------------------------------------------------------------------------------------------------------------------
(liv) Cold Storage Industrial The mortgaged property is owned pursuant to a JV
agreement between an affiliate of UBS and the
No Ownership borrower with the purpose being to acquire and
Interest in Mortgagor own the mortgaged property.
---------------------------------------------------------------------------------------------------------------------
(liv) Hy-Vee - ▇▇▇▇ ▇▇▇▇▇▇ The seller owns 90% of indirect interest in the
borrower.
---------------------------------------------------------------------------------------------------------------------
Sch I-19
---------------------------------------------------------------------------------------------------------------------
No Ownership Hy-Vee - Cedar Rapids
Interest in Mortgagor
Hy-Vee - Olathe
Hy-Vee - Grand Avenue
Hy-Vee - Columbus
CVS ▇▇▇▇▇▇▇
Walgreens Loganville
Walgreens New Castle
Walgreens Natchez
---------------------------------------------------------------------------------------------------------------------
(liv) Walgreens Canton The seller owns 100% of indirect interest in the
borrower.
No Ownership Walgreens Parkville
Interest in
Mortgagor
---------------------------------------------------------------------------------------------------------------------
(liv) All Citizens Loans The seller owns a controlling interest in the
parent entity of the borrowers.
No Ownership
Interest in
Mortgagor
---------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------
UBS also indirectly owns
(lv) CVS Vero Beach
HVIACE-0001 ARC, LLC; HVIADE-0002 ARC, LLC;
No Undisclosed Hy-Vee - 51st Street HVNECO-0004 ARC, LLC; HVKSOL-0005 ARC, LLC; ARC
Common Ownership Loganville GA Associates, LLC; ARC Natchez MS
Hy-Vee - Cedar Rapids Associates, LLC; CRE Canton Triple Net Holdings
LLC; CRE Columbus Triple Net Holdings, LLC
Hy-Vee - Olathe
Hy-Vee - Grand Avenue
Hy-Vee - Columbus
---------------------------------------------------------------------------------------------------------------------
Sch I-20
---------------------------------------------------------------------------------------------------------------------
CVS ▇▇▇▇▇▇▇
Walgreens Loganville
Walgreens New Castle
Walgreens Parkville
Walgreens Natchez
---------------------------------------------------------------------------------------------------------------------
Gypsum Mill and ▇▇▇▇▇▇▇▇ Portfolio are under
(lv) Gypsum Mill Mobile Home common ownership.
Park
No Undisclosed
Common Ownership
---------------------------------------------------------------------------------------------------------------------
UBS also indirectly owns Walgreens Columbus
(lv) Walgreens Canton
No Undisclosed
Common Ownership
---------------------------------------------------------------------------------------------------------------------
All of the properties securing these loans are
(lv) All Citizens Loans under common ownership.
No Undisclosed
Common Ownership
---------------------------------------------------------------------------------------------------------------------
Sch ▇-▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇
▇-▇
▇▇▇▇▇▇▇ C-1
OPINION OF CADWALADER, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
February 27, 2007
Addressees listed on Schedule A
Re: LB-UBS Commercial Mortgage Trust 2007-C1, Commercial Mortgage
Pass-Through Certificates, Series 2007-C1
Ladies and Gentlemen:
We are rendering this opinion pursuant to the Mortgage Loan Purchase Agreement,
dated as of February 15, 2007 (the "MLPA"), between UBS Real Estate Investments
Inc., as seller (the "Seller"), 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 $1,100,746,488 (the "UBS Mortgage Loans"), pursuant to the MLPA;
(ii) the execution by the Seller of the UBS Indemnification Agreement, dated as
of February 15, 2007 (the "Indemnification Agreement"), by and among the Seller,
SASC and the Underwriters (as defined below); and (iii) the acknowledgement by
the Seller of certain sections of the Underwriting Agreement, dated as of
February 15, 2007 (the "Underwriting Agreement"), by and among SASC, ▇▇▇▇▇▇
Brothers Inc. ("▇▇▇▇▇▇"), UBS Global Asset Management (US) Inc. ("UBS GAM") and
Wachovia Capital Markets, LLC ("Wachovia" and, together with UBS GAM and ▇▇▇▇▇▇,
the "Underwriters") and acknowledged with respect to certain sections by the
Seller, Wachovia Bank, National Association and ▇▇▇▇▇▇ Brothers Holdings Inc.
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 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 Seller, 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 4(c), 4(d) and 5 below, such
opinions are based solely on the Seller Officer's Certificate referred to below,
a review of the items, if any, identified as exceptions in the exhibits to such
certificate, conversations with internal counsel for the Seller, and the actual
knowledge of attorneys who conducted such review, had such conversations and/or
customarily represent the Seller 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 Seller and others in connection with the
preparation and delivery of this letter.
In particular, we have examined and relied upon:
the MLPA;
the Underwriting Agreement;
the Indemnification Agreement; and
the officer's certificate of Seller, dated the date hereof (the
"Seller 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, 2,
4(a), 4(b)(i), 4(c) and 4(d) below. While we are not licensed to practice law in
the State of Delaware, we have reviewed applicable provisions of the Delaware
General Corporation Law as we have deemed appropriate in connection with the
opinions expressed herein. Except as described we have neither examined nor do
we express any opinion with respect to Delaware law. References in this letter
to the term "Governmental Authorities" means executive, legislative, judicial,
administrative or regulatory bodies of the State of New York or the United
-3-
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 Seller, 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 Seller, 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 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.
3. Each of the MLPA and the Underwriting Agreement constitutes
the legal, valid and binding agreement of the Seller, enforceable against
the Seller in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium,
receivership or other laws relating to or affecting creditors' rights
generally, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity), and except
that (a) the enforcement of rights with respect to indemnification and
contribution obligations and (b) provisions (i) purporting to waive or
limit rights to trial by jury, oral amendments to written agreements or
rights of set off or (ii) relating to submission to jurisdiction, venue or
service of process, may be limited by applicable law or considerations of
public policy.
4. None of the sale of the UBS Mortgage Loans, the consummation
by the Seller of any of the other transactions contemplated by the
Agreements to which it is a party or the execution, delivery and
performance by the Seller 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 the Seller, the absence of which would have a material
adverse effect on the Seller 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 the
Seller's certificate of incorporation or bylaws or (ii) any Applicable
Laws applicable to
-4-
the Seller, (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 the Seller 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 the Seller 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 the Seller to perform under the terms of any
Agreement to which it is a party or (d) will, to our knowledge, breach or
result in a violation of, or default under, any material judgment, decree
or order that is applicable to the Seller and is issued by any
Governmental Authority having jurisdiction over the Seller or any of its
properties.
5. To our actual knowledge, there is no legal or governmental
action, investigation or proceeding pending or threatened against the
Seller (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 the Seller to perform its obligations under, or
the validity or enforceability (with respect to the Seller) of, the
Agreements to which it is a party or (ii) any rights with regard the
Mortgaged Properties or the Mortgage Loans. For purposes of the opinion
set forth in this paragraph, we have not regarded any legal or
governmental actions, investigations or proceedings to be "threatened"
unless the potential litigant or governmental authority has communicated
in writing to the Seller a present intention to initiate such actions,
investigations or proceedings against the Seller.
We are furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. Without our prior written
consent, this letter is not to be relied upon, used, circulated, quoted or
otherwise referred to by, or assigned to, any other person (including any person
that acquires any Certificates from you or that seeks to assert your rights in
respect of this letter (other than your successor in interest by means of
merger, consolidation, transfer of a business or other similar transaction)) or
for any other purpose. In addition, we disclaim any obligation to update this
letter for changes in fact or law, or otherwise.
Very truly yours,
-5-
SCHEDULE A
Structured Asset Securities Corporation II Standard & Poor's Rating Services
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10019 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
UBS Global Asset Management (US) LLC Fitch Inc.
1285 Avenue of the Americas ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Wachovia Capital Markets, LLC
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Attn: LB-UBS Commercial Mortgage Trust 2007-C1
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