EXECUTION COPY
LBHI MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of June 20, 2006, (the
"Agreement"), between Xxxxxx Brothers Holdings 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
2006-C4, Commercial Mortgage Pass-Through Certificates, Series 2006-C4. 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 June 12, 2006 (the "Pooling
and Servicing Agreement"), between the Purchaser, as depositor, Wachovia Bank,
National Association, as master servicer (the "Master Servicer"), LNR Partners,
Inc., as special servicer (the "Special Servicer") and LaSalle Bank National
Association, as trustee (the "Trustee"). Capitalized terms used but not defined
herein have the respective meanings set forth in the Pooling and Servicing
Agreement, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with Xxxxxx Brothers
Inc. ("Xxxxxx") and UBS Securities LLC ("UBS Securities" and, together with
Xxxxxx in such capacity, the "Underwriters"), whereby the Purchaser will sell to
the Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Purchaser has
also entered into a Certificate Purchase Agreement (the "Certificate Purchase
Agreement"), dated as of the date hereof, with Xxxxxx and UBS Securities
(together in such capacity, the "Placement Agents"), whereby the Purchaser will
sell to the Placement Agents all of the remaining Certificates (other than the
Residual Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
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 $1,629,747,518 (the "Initial LBHI Pool Balance")
as of the close of business on the Cut-off Date, after giving effect to any and
all payments of principal due thereon on or before such date, whether or not
received. The purchase and sale of the Mortgage Loans shall take place on June
29, 2006, 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 cash amount
equal to a percentage (mutually agreed upon by the parties hereto) of the
Initial LBHI Pool Balance, plus interest accrued on each Mortgage Loan at the
related Mortgage Rate (net of the related Administrative Cost Rate), for the
period from and including June 12, 2006 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.
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 6 hereof, the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse, all the right, title and interest of the Seller (other than
the primary servicing rights) in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive
all scheduled payments of principal and interest due after the Cut-off Date, and
all other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf
of the initial Purchaser, deliver to and deposit with (i) the Trustee or a
Custodian appointed thereby, a Mortgage File for each Mortgage Loan in
accordance with the terms of, and conforming to the requirements set forth in,
the Pooling and Servicing Agreement, with copies of each Mortgage File to be
delivered by the Trustee to, upon request, the Master Servicer (at the expense
of the Trustee), within 10 Business Days of such request; and (ii) the Master
Servicer (or, at the direction of the Master Servicer, to the appropriate
Sub-Servicer), all unapplied Escrow Payments and Reserve Funds in the possession
or under the control of the Seller that relate to the Mortgage Loans.
(d) The Seller shall, 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
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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 or the Purchaser's request and the fees of the Recording
Agent.
Pursuant to the Pooling and Servicing Agreement and a letter
agreement dated June 29, 2006 (the "Letter Agreement") between American Capital
Strategies Ltd. (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
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 the Payee pursuant to the 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 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, the Seller shall
deliver to and deposit with the Master Servicer, within 45 days of the Closing
Date, the Mortgage Loan Origination Documents (other than any document that
constitutes part of the Mortgage File for such Mortgage Loan); 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.
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(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 that is secured by the interests of the related
Mortgagor in a hospitality property (identified on Schedule VI to the Pooling
and Servicing Agreement) and each Mortgage Loan that has a related letter of
credit, the Seller shall deliver to and deposit with the Master Servicer, on or
before the Closing Date, any related franchise agreement, franchise comfort
letter and the original of such letter of credit. Further, in the event, with
respect to a Mortgage Loan with a related letter of credit, the Master Servicer
determines that a draw under such letter of credit has become necessary under
the terms thereof prior to the assignment of such letter of credit having been
effected in accordance with Section 3.01(g) of the Pooling and Servicing
Agreement, the Seller shall, upon the written direction of the Master Servicer,
use its best efforts to make such draw or to cause such draw to be made on
behalf of the Trustee.
(h) Pursuant to the Pooling and Servicing Agreement, the
Master Servicer shall review the documents with respect to each Mortgage Loan
delivered by the Seller pursuant to or as contemplated by Section 2(e) and
provide the Seller 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 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 a corporation duly organized,validly
existing and in good standing 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 any administrative decree or order to
which the Seller is subject, or (C) constitute a default (or an event
which, with notice
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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
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) Under generally accepted accounting principles("GAAP")
and for federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage
Loans to the Purchaser in exchange for the consideration specified in Section 1
hereof. In connection with the foregoing, the Seller shall cause all of its
records to reflect such transfer as a sale (as opposed to a secured loan). The
consideration received by the Seller upon the sale of the Mortgage Loans to the
Purchaser will constitute at least reasonably equivalent value and fair
consideration for the Mortgage Loans. The Seller will be solvent at all relevant
times prior to, and will not be rendered insolvent by, the sale of the Mortgage
Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors of
the Seller. After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business. The Mortgage Loans do not constitute all or substantially all of the
assets of the Seller. The Seller does not intend to, and does not believe that
it will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
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(ix) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Seller are pending or contemplated.
(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
made by the Purchaser pursuant to Section 2.04(b) of the Pooling and Servicing
Agreement, except that all references therein to the Purchaser shall be deemed
to be references to the Seller and all references therein to the Mortgage Pool
shall be deemed to be references to all the Securitized Loans.
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:
(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.
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(a) If the Seller receives written notice with respect to any
Mortgage Loan (i) that any document constituting a part of clauses (a)(i)
through (a)(xiii) of the definition of "Mortgage File" or a document, if any,
specifically set forth on Schedule IX to the Pooling and Servicing Agreement 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 the fourth
paragraph of Section 2.03(a) to the Pooling and Servicing Agreement, 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. Then, following receipt of a
Seller/Depositor Notification with respect to such Material Document Defect or
Material Breach, as the case may be, the Seller shall cure or repurchase the
subject Mortgage Loan, as the case may be, if and to the extent the Depositor is
required to do so, in the manner, under the circumstances, subject to the
conditions, within the time periods and upon all of the other terms set forth in
Section 2.03(a) of the Pooling and Servicing Agreement.
(b) 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), then, prior to the subject repurchase, the Seller
or its designee shall use reasonable efforts, subject to the terms of the
related Mortgage Loans, to prepare and, to the extent necessary and appropriate,
have executed by the related Mortgagor and record, such documentation as may be
necessary to terminate the cross-collateralization between the Mortgage Loans in
such Cross-Collateralized Group that are to be repurchased, on the one hand, and
the remaining Mortgage Loans therein, on the other hand, such that those two
groups of Mortgage Loans are each secured only by the Mortgaged Properties
identified in the Mortgage Loan Schedule as directly corresponding thereto;
provided that, if such Cross-Collateralized Group is still subject to the
Pooling and Servicing Agreement, then no such termination shall be effected
unless and until (i) the Purchaser or its designee has received from the Seller
(A) an Opinion of Counsel to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an Adverse
Grantor Trust Event with respect to the Grantor Trust and (B) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Certificates and (ii)
the Controlling Class Representative (if one is acting) has consented (which
consent shall not be unreasonably withheld and shall be deemed to have been
given if no written objection is received by the Seller (or by the Depositor)
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
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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 made by
virtue of the Depositor's representation set forth in, or made pursuant to
paragraph (xlviii) of Schedule II to the Pooling and Servicing Agreement,
specifically relating to whether or not the Mortgage Loan documents or any
particular Mortgage Loan document for any Mortgage Loan requires the related
Mortgagor to bear the reasonable costs and expenses associated with the subject
matter of such representation or warranty, as set forth in such representation
or warranty, then the Purchaser or its designee will direct the Seller in
writing to wire transfer to the Custodial Account, within 90 days of receipt of
such direction, the amount of any such reasonable costs and expenses incurred by
the Trust that (i) are due from the Mortgagor, (ii) otherwise would have been
required to be paid by the Mortgagor if such representation or warranty with
respect to such costs and expenses had in fact been true, as set forth in the
related representation or warranty, (iii) have not been paid by the Mortgagor,
(iv) are the basis of such Breach and (v) constitute "Covered Costs". Upon
payment of such costs, the Seller shall be deemed to have cured such Breach in
all respects. Provided that such payment is made, this paragraph describes the
sole remedy available to the Purchaser regarding any such Breach, regardless of
whether it constitutes a Material Breach, and the Seller shall not be obligated
to otherwise cure such Breach or repurchase the affected Mortgage Loan under any
circumstances. Amounts deposited in the Pool Custodial Account pursuant to this
paragraph shall constitute "Liquidation Proceeds" for all purposes of the
Pooling and Servicing Agreement (other than Section 3.11(c) of the Pooling and
Servicing Agreement).
(g) In addition, subject to Section 5(f) and the last three
sentences of this paragraph, if the Depositor determines that a Material Breach
(other than a Material Breach of a representation or warranty on the part of the
Depositor set forth in and made pursuant to paragraph (xvii) of Schedule II to
the Pooling and Servicing Agreement) or a Material Document Defect with respect
to a Mortgage Loan is not capable of being cured in accordance with Section
2.03(a) of the Pooling and Servicing Agreement, then in lieu of repurchasing the
subject Mortgage Loan, the Seller shall pay a cash amount equal to the Loss of
Value Payment, and any costs incurred in connection with such Loss of Value
Payment, in each case required to be paid by the Depositor (or, payable by the
Depositor due to the Depositor's exercise of its option) under Section 2.03(e)
of the Pooling and Servicing Agreement, but
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only if and to the extent the Depositor is required or elects to do so, in the
manner, under the circumstances, subject to the conditions, within the time
periods and upon all of the other terms set forth in Section 2.03 of the Pooling
and Servicing Agreement. 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).
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.
(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 Schedule II to the Pooling and
Servicing Agreement, and the subject Mortgage Loan becomes a Qualified Mortgage
prior to the expiration of the Initial Resolution Period applicable to a
Material Document Defect or Material Breach that affects whether a Mortgage Loan
is a Qualified Mortgage, and without otherwise causing an Adverse REMIC Event or
an Adverse Grantor Trust Event, then such breach will be cured and the Seller
will not be obligated to repurchase or otherwise remedy such Breach.
(i) The parties hereto agree that any controversy or claim
arising under Section 5(a), Section 5(b) and/or Section 5(g) of this Agreement
shall be resolved in accordance with the Mediation/Arbitration procedures set
forth in Section 2.03(i) of 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, subject to the conditions set
forth in Section 2.03(i) of the Pooling and Servicing Agreement.
SECTION 6. Closing. The closing of the sale of the Mortgage
Loans (the "Closing") shall be held at the offices of Sidley Austin LLP, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on
the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller
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 7 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;
9
(d) The Seller shall have delivered and released to the
Trustee (or a Custodian on its behalf), the Master Servicer and the Special
Servicer all documents and funds required to be delivered to the Trustee, the
Master Servicer and the Special Servicer, respectively, pursuant to Section 2 of
this Agreement;
(e) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been complied with
in all material respects, and the Seller 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.
Both 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 7. 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) A 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;
(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,
10
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 Sidley Austin LLP, special counsel
to the Seller, substantially in the form attached hereto as Exhibit B-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 Sidley
Austin LLP as may be required by the Rating Agencies in connection with the
transactions contemplated hereby;
(h) A favorable opinion of in-house counsel to the Seller,
substantially in the form attached hereto as Exhibit B-2, dated the Closing Date
and addressed to the initial Purchaser, the Underwriters, the Placement Agents,
the Rating Agencies and, upon request, the other parties to the Pooling and
Servicing Agreement;
(i) 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
(j) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 8. Costs. An amount equal to 82.21371% 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 9. Grant of a Security Interest. The parties hereto
agree that it is their express intent that the conveyance of the Mortgage Loans
by the Seller to the Purchaser as provided in Section 2 hereof be, and be
construed as, a sale of the Mortgage Loans by the Seller to the Purchaser and
not as a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a
debt or other obligation of the Seller. However, if, notwithstanding the
aforementioned intent of the parties, the Mortgage Loans are held to be property
of the Seller, then it is the express intent of the parties that: (i) such
conveyance shall be deemed to be a pledge of the Mortgage Loans by the Seller to
the Purchaser to secure a debt or other obligation of the Seller; (ii) this
Agreement shall be deemed to be a security agreement within the meaning of
Articles 8 and 9 of the applicable Uniform Commercial Code; (iii) the conveyance
provided for in Section 2 hereof shall be deemed to be a grant by the Seller to
the Purchaser of a security interest in all of the Seller's right, title and
interest in and to the Mortgage Loans, and all amounts payable to the holder of
the Mortgage Loans in accordance with the terms thereof, and all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments,
securities or other property; (iv) the assignment to the Trustee of the interest
of the Purchaser in and to the Mortgage Loans shall be deemed to be an
assignment of any security interest created hereunder; (v) the possession by the
Trustee or any of its agents, including, without limitation, the Custodian, of
the Mortgage Notes for the Mortgage Loans, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to Section 9-313 of the applicable Uniform Commercial
Code; and (vi) notifications to persons (other than the Trustee) holding such
property, and acknowledgments, receipts or confirmations from such persons
holding such property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or agents (as
11
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 10. 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 either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. 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 11. 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 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. 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 14. 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
12
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".
SECTION 15. Further Assurances. The Seller and the Purchaser
agree to execute and deliver such instruments and take such further actions as
the 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 16. 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 17. 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.
13
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
XXXXXX BROTHERS HOLDINGS INC.
By: /s/ Xxxxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Signatory
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
PURCHASER
STRUCTURED ASSET SECURITIES CORPORATION II
By: /s/Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Authorized Signatory
Address for Notices:
Structured Asset Securities Corporation II
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(SEE ATTACHED)
A-1
MORTGAGE LOAN NUMBER PROPERTY NAME ADDRESS CITY
-------------------- -------------------------------------------- ------------------------------------------ -------------------
1 One Federal Street Xxx Xxxxxxx Xxxxxx Xxxxxx
0 Xxx Xxx Xxxx Xxxxx Xxx Xxxxx Xxxxxx Xxx Xxxx
0 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxx Xxxxxxxxx
4 Chatsworth Park Apartments 11212 Chatterly Loop Manassas
5 00 Xxxxxx Xxxxxx 70 Xxxxxx Street Jersey City
6 00 Xxxx Xxxxxx 00 Xxxx Xxxxxx Xxx Xxxx
0 Xxxxxx Xxxx Technology Center Between 1200 and 1600 North,
west of 800 East Orem
0 Xxxxxxxxx Xxxxx 000 Xxxxxxxx Xxxxxx & 00-00 XX 0xx Xxxxxx Xxxxx
9 Courtyard Marriott Xxxxx Xxxxxx 0-0 Xxxx 00xx Xxxxxx Xxx Xxxx
00 Belmont at Xxxxx Place 0000 Xxxxxxx Xxxxxxx Fredericksburg
12 AMLI of North Dallas 00000 Xxxxxx Xxxx Xxxxxx
00 Xxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxx Xxxx Xxxxxxxx Xxxx
15 Two Penn Center 0000 Xxxx X. Xxxxxxx Xxxxxxxxx Xxxxxxxxxxxx
16 Pavilion Apartments 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx
00 Xxxx Xxxxxxxx 00 Xxxxxxxx Xxxxxx Xxxxxxx
18 Oxford Court Business Center Town Center Drive & Middletown Boulevard Middletown Township
19 Southridge Plaza 00000 Xxxxxx Xxxxxx Fontana
00 Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxxxxx & Xxxxxx Boulevard Falls Church
21 Grove at Landmark 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxx
00 Xxxxxxxxx Xxxxx 0000 Xxxx Xxxxxxxxx Xxxxxxxxx Xxxx Xxxxx
28 Fountains of Miramar 2901 to 0000 X.X. 000xx Xxxxxx Miramar
29 Palm Lake Apartments 0000 XX 000 Xxxxxx Xxxxx
30 Indian Springs Apartments 0000 Xxxxxx Xxxxx Xxxxx Xxxx
00 Xxxxxxxxxx Xxxxxxx 0000 Xxxxxx Xxxx Xxxxxxxxxx
34 Stetson Place 000-000 Xxxx Xxxxxx Xxxxxxxx
35 McCallum Crossing 0000 XxXxxxxx Xxxxxxxxx Xxxxxx
37 Quail Heights Plaza 00000 Xxxxx Xxxxxxx Xxxxx Xxxxx
38 Xxxxx Portfolio - A - Statesville 000 Xxxxxxxx Xxxxxx Xxxxxxxxxxx
39 McCallum Xxxxxxx 0000 XxXxxxxx Xxxxxxxxx Xxxxxx
41 XxXxxxxx Xxxx 0000 XxXxxxxx Xxxxxxxxx Xxxxxx
42 The Pointe Apartments 0000 Xxx Xxxxxx Xxxx Xxxxxxxx
43 Xxxxxxx Xxxxx Apartments 0000 Xxxxxxxxx Xxxxxxx Xxxxxxxx
45 Xxxxx Portfolio - A - Conover 1011 County Home Road Conover
46 Hampton Inn - Martinsburg 000 Xxxxxxxx Xxx Martinsburg
47 The Corporate Center One Technology Drive Westborough
50 Smithfield Plaza Shopping Center Xxxxx Church Boulevard & Cypress Run Drive Smithfield
51 Lakeridge 0000 Xxxxxx Xxxx Xxxx Xxxxxx
53 Town & Country Plaza 000 Xxxxx Xxxxxx Xxxx Xxxxxxxx
00 Xxx Xxxx Life Building 0000 Xxxxx Xxxxxxx Xxxxx Corpus Christi
55 San Marco Village Apts 2165 Xxxxxxxx Terrace Jacksonville
56 Santa Xxxxxx Auto Center 1626 & 0000 Xxxxxxx Xxxxxxxxx Santa Xxxxxx
57 Xxxxx Portfolio - A - Xxxxxx Various Various
59 Xxxxx Portfolio - B - Gibsonville/Burlington Xxxxxxx Xxxxxxx
00 Xxxxxx Xxxxx Professional Park 0000 X. Xxxxx Xxxxxx Xxxxxxx Xxxxxxxxx
61 Shiloh Village Apartments 0000 Xxxxxx Xxxx Xxxxxx
00 Xxxxxxxxxxx Corners 1400-1474 Xxxxxxxxxxx Xxxx Xxxxxxxxx
00 00000 Xxx Xxxx 15991 Red Hill Avenue Tustin
66 Xxxxx Portfolio - B - Ashboro 000 Xxxxxxxx Xxxxxx Ashewood
73 Clock Xxxxx Xxxx 000 Xxxxx 00 Xxxxx Xxxxxxxxx
74 Xxxxx Portfolio - B - Burlington II Various Burlington
75 Courts of XxXxxxxx 0000 XxXxxxxx Xxxxxxxxx Xxxxxx
78 Sangaree Plaza 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxxxxx
81 K-Mart Port Charlotte 19400 Toledo Blade Road Port Charlotte
00 Xxxxxxxxx Xxxxxx 0000 X. Xxxxxxx Xxxx Xxxxx
84 Prairie Retail Plaza 3931-3961 Artesia Boulevard &
00000 Xxxxxxx Xxxxxx Xxxxxxxx
00 Xxx-Xxxxxx Xx-Xx 0000 Xxxxxxxx Xxxxxxx Xxxxxx Xxxxxxx
87 Xxxxx Dell Corner 13170, 13190, 00000-X Xxxxx Xxxx Xxxxxxx Carmel
90 Holiday Inn Express - Knoxville Airport 130 Associates Boulevard Alcoa
91 Xxxxxxxx Place Shopping Center 0000 Xxxxx Xxxxx Xxxx Irmo
95 Berkley Center 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx
96 Tallgrass Shopping Center 2240 & 0000 X. Xxxx Xxxx Xxxxxxx
00 Xxxxxxx Xxx & Xxxxxx - Xxxxxxxxxx 0000 Xxxxxxxxxx Boulevard Tuscaloosa
98 First Colony Self Storage 00000 Xxxxxxxxx Xxxx. Sugar Land
103 Xxxxx Portfolio - B - Burlington I Various Burlington
000 Xxxxxx Xxxxxx Shopping Center 9215-9489 Xxxxxxx Road Arvada
106 Black Canyon Business Center 0000-0000 Xxxxx 00xx Xxx &
3851-3863 North 28th Av Phoenix
107 Western Center Retail Plaza 000-000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxxxxx
109 Redlands Dynasty Suites 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx
110 Northwood Apartments 0000 Xxxxxx Xx Xxxxxxxx
111 TJ Maxx - Branson 0000 Xxxxxxx Xxxxx Xxxxxxx Branson
112 Staples and Social Security 0000 0xx Xxxxxx Xxxxx Xxxxxxxxx Rapids
113 Xxxxx Portfolio - B - Mocksville 000 Xxxxxxxxxx Xxxxx Xxxxxxxxxx
114 Parkway Xxxxx 000-000 Xxxxx Xxxxxx Garland
115 Colony South Apartments 0000 Xxxxx Xxxx Xxxxxx Morton
117 Xxxxxxxx Point Shopping Center 0000-0000 Xxxxx Xxxxxxxx Xxxx Aurora
119 Rite Place Storage 2401, 2415, 2601 and 0000 Xxxxx Xxxxxx Xxxxxxxxxxx
120 Xxxxx Portfolio - A - Elon Various Elon
121 465 Boulevard 000 Xxxxxxxxx Xxxxxx Xxxxxxx
000 Aloha Self Storage 0000 Xxxxxx Xxxx Xxxxxx Xxxx
000 Xxxxxxx Xxxxxx Xxxxxxxxxx 000 Xxxxx Xxxxxxx Avenue Duncanville
126 Countryside Acres Apartments 0000 Xxxxxx Xxxx Xxxxx Xxxxxxx
000 Xxxx Self Storage 00000 Xxxxxx Xxxxxx Xxxxxxx Xxxxxxx
128 Xxxxxx Shopping Center 1671-1693 East US 223 Madison Township
129 Colonial Shoppes Shopping Center 0000 Xxxx Xxxx Xxxxxx Xxxxxx
131 Plant One 000 Xxxxxxx Xxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxxx
000 Always Storage III 000 XX 000 X Xxxxxxx
139 Midwood Self Storage 0000 Xxxxxxx 00 Xxxx Xxxxxx
140 Foothill Green Shopping Center 0000 Xxxxx Xxxxx Xxxxxx Littleton
141 0-0 Xxxxxxx Xxxxxx 0-0 Xxxxxxx Xxxxxx Xxxxxxxx
REMAINING TERM
MORTGAGE LOAN NUMBER STATE ZIP CODE CUT-OFF DATE BALANCE MONTHLY P&I PAYMENT MORTGAGE RATE TO MATURITY
-------------------- ----- -------- -------------------- ------------------- ------------- --------------
0 XX 00000 262,000,000.00 1,227,452.67 5.544908 000
0 XX 00000 200,000,000.00 1,228,115.27 5.499500 000
0 XX 00000 141,371,000.00 725,033.61 6.070000 000
0 XX 00000 84,730,000.00 444,567.72 6.210000 00
0 XX 00000 75,000,000.00 428,499.02 5.578500 000
0 XX 00000 75,000,000.00 443,533.50 5.872500 118
7 UT 84097 75,000,000.00 434,350.23 5.680000 000
0 XX 00000 58,500,000.00 320,534.64 6.485000 000
0 XX 00000 51,000,000.00 321,684.18 6.480000 000
00 XX 00000 32,760,000.00 171,887.63 6.210000 00
00 XX 00000 26,801,000.00 133,941.41 5.915000 00
00 XX 00000 24,190,000.00 126,921.91 6.210000 59
15 PA 19102 23,918,000.00 131,254.18 6.495000 00
00 XX 00000 23,300,000.00 133,466.70 5.580000 000
00 XX 00000 22,000,000.00 136,891.86 6.350000 000
00 XX 00000 20,500,000.00 129,169.75 6.470000 000
00 XX 00000 18,200,000.00 108,300.47 5.930000 000
00 XX 00000 18,050,000.00 108,247.88 6.002500 000
00 XX 00000 15,300,000.00 76,140.52 5.890000 59
22 IN 46804 15,000,000.00 93,924.12 6.410000 000
00 XX 00000 12,292,000.00 66,659.99 6.418500 000
00 XX 00000 12,290,229.96 75,014.71 6.160000 47
30 IN 46628 12,100,000.00 60,317.94 5.900000 000
00 XX 00000 11,630,000.00 57,729.35 5.875000 00
00 XX 00000 11,000,000.00 63,218.07 5.610000 000
00 XX 00000 10,700,000.00 61,561.46 5.620000 000
00 XX 00000 10,500,000.00 62,952.81 6.000000 000
00 XX 00000 9,079,288.79 53,956.47 5.910000 000
00 XX 00000 8,925,000.00 51,349.16 5.620000 000
00 XX 00000 8,575,000.00 49,335.47 5.620000 000
00 XX 00000 8,550,000.00 50,658.50 5.890000 000
00 XX 00000 8,300,000.00 49,922.89 6.030000 000
00 XX 00000 7,625,523.49 45,317.03 5.910000 000
00 XX 00000 7,590,544.82 49,572.62 6.130000 000
00 XX 00000 7,550,000.00 45,314.62 6.010000 000
00 XX 00000 7,100,000.00 43,439.24 6.190000 000
00 XX 00000 7,000,000.00 40,097.29 5.580000 000
00 XX 00000 6,900,000.00 36,553.23 6.270000 00
00 XX 00000 6,839,430.64 41,347.79 6.070000 000
00 XX 00000 6,694,563.08 40,515.14 6.080000 000
00 XX 00000 6,600,000.00 44,316.54 6.440000 120
57 NC Various 6,471,582.84 41,394.96 5.910000 119
59 NC Various 6,407,665.97 40,986.12 5.910000 000
00 XX 00000 6,300,000.00 38,177.67 6.100000 00
00 XX 00000 5,746,025.20 36,951.05 6.660000 000
00 XX 00000 5,690,143.72 35,095.88 6.250000 000
00 XX 00000 5,650,000.00 33,874.60 6.000000 000
00 XX 00000 5,600,243.61 33,281.17 5.910000 000
00 XX 00000 5,195,891.74 31,780.93 6.180000 000
00 XX 00000 5,138,635.65 30,537.93 5.910000 000
00 XX 00000 5,100,000.00 29,149.52 5.560000 000
00 XX 00000 5,000,000.00 30,009.68 6.010000 000
00 XX 00000 4,650,000.00 31,513.46 6.540000 000
00 XX 00000 4,500,000.00 28,088.86 6.380000 000
00 XX 00000 4,300,000.00 25,587.47 5.930000 000
00 XX 00000 4,300,000.00 25,808.32 6.010000 000
00 XX 00000 4,242,014.37 25,153.94 5.880000 000
00 XX 00000 3,994,984.11 25,992.56 6.090000 000
00 XX 00000 3,988,952.18 23,597.64 5.850000 000
00 XX 00000 3,800,000.00 22,685.29 5.960000 000
00 XX 00000 3,800,000.00 23,347.85 6.230000 000
00 XX 00000 3,700,000.00 24,476.43 6.280000 000
00 XX 00000 3,696,909.02 22,112.06 5.970000 59
103 NC Various 3,525,006.14 20,948.44 5.910000 000
000 XX 00000 3,450,000.00 21,332.08 6.290000 000
000 XX 00000 3,343,953.01 20,214.35 6.060000 000
000 XX 00000 3,300,000.00 21,322.50 6.030000 000
000 XX 00000 3,241,199.04 21,019.33 6.040000 000
000 XX 00000 3,193,987.28 18,939.44 5.880000 000
000 XX 00000 3,150,000.00 18,442.62 5.780000 000
000 XX 00000 3,097,544.24 18,926.23 6.170000 000
000 XX 00000 3,061,399.90 18,193.31 5.910000 000
000 XX 00000 3,022,432.99 17,961.74 5.910000 000
000 XX 00000 2,954,596.81 17,765.73 6.010000 000
000 XX 00000 2,800,000.00 16,625.74 5.910000 000
000 XX 00000 2,797,751.96 17,004.04 6.120000 000
000 XX 00000 2,772,645.14 16,477.30 5.910000 000
000 XX 00000 2,734,919.71 16,322.14 5.940000 000
000 XX 00000 2,600,000.00 15,272.14 5.810000 000
000 XX 00000 2,544,243.17 16,135.21 6.140000 000
000 XX 00000 2,480,000.00 15,318.21 6.280000 000
000 XX 00000 2,450,000.00 15,116.95 6.270000 000
000 XX 00000 2,448,100.69 15,085.07 6.250000 000
000 XX 00000 2,323,083.08 13,969.46 6.020000 000
000 XX 00000 2,298,098.69 13,804.45 6.010000 000
000 XX 00000 2,100,000.00 12,055.66 5.600000 000
000 XX 00000 1,700,000.00 10,367.89 6.160000 00
000 XX 00000 1,625,000.00 9,483.06 5.750000 000
000 XX 00000 1,500,000.00 9,022.21 6.030000 000
000 XX 00000 1,498,926.99 9,520.51 6.540000 119
INTEREST ACCRUAL ADMINISTRATIVE COST PRIMARY SERVICING
MORTGAGE LOAN NUMBER MATURITY DATE REMAINING AMORTIZATION TERM BASIS RATE FEE
-------------------- ------------- --------------------------- ---------------- ------------------- -----------------
1 6/11/2016 0 Act/360 0.02100 0.00
2 3/6/2016 300 Act/360 0.02100 0.00
3 5/11/2016 0 Act/360 0.02100 0.00
4 5/11/2011 0 Act/360 0.02100 0.00
5 4/11/2016 360 Act/360 0.02100 0.00
6 4/11/2016 360 Act/360 0.02100 0.00
7 4/11/2016 360 Act/360 0.02100 0.00
8 6/11/2016 0 Act/360 0.02100 0.00
9 5/11/2016 360 Act/360 0.02100 0.00
11 5/11/2011 0 Act/360 0.02100 0.00
12 5/11/2011 0 Act/360 0.02100 0.00
14 5/11/2011 0 Act/360 0.02100 0.00
15 6/11/2011 0 Act/360 0.02100 0.00
16 4/11/2016 360 Act/360 0.02100 0.00
17 6/11/2016 360 Act/360 0.02100 0.00
18 6/11/2016 360 Act/360 0.08100 0.07
19 4/11/2016 360 Act/360 0.08100 0.07
20 5/11/2020 360 Act/360 0.02100 0.00
21 5/11/2011 0 Act/360 0.02100 0.00
22 6/11/2016 360 Act/360 0.02100 0.00
28 6/11/2016 0 Act/360 0.02100 0.00
29 5/11/2010 359 Act/360 0.02100 0.00
30 4/11/2016 0 Act/360 0.02100 0.00
33 5/11/2011 0 Act/360 0.02100 0.00
34 12/11/2015 360 Act/360 0.08100 0.07
35 1/11/2016 360 Act/360 0.02100 0.00
37 5/11/2016 360 Act/360 0.02100 0.00
38 5/11/2016 359 Act/360 0.02100 0.00
39 1/11/2016 360 Act/360 0.02100 0.00
41 1/11/2016 360 Act/360 0.02100 0.00
42 4/11/2016 360 Act/360 0.02100 0.00
43 4/11/2016 360 Act/360 0.05100 0.04
45 5/11/2016 359 Act/360 0.02100 0.00
46 5/11/2016 299 Act/360 0.02100 0.00
47 4/11/2016 360 Act/360 0.02100 0.00
50 5/11/2016 360 Act/360 0.02100 0.00
51 4/11/2016 360 Act/360 0.02100 0.00
53 5/11/2013 0 Act/360 0.02100 0.00
54 5/11/2016 359 Act/360 0.02100 0.00
55 5/11/2016 359 Act/360 0.08100 0.07
56 6/11/2016 300 Act/360 0.02100 0.00
57 5/11/2016 299 Act/360 0.02100 0.00
59 5/11/2016 299 Act/360 0.02100 0.00
60 4/11/2011 360 Act/360 0.02100 0.00
61 5/11/2021 359 Act/360 0.02100 0.00
64 4/11/2016 358 Act/360 0.02100 0.00
65 4/11/2016 360 Act/360 0.08100 0.07
66 5/11/2016 359 Act/360 0.02100 0.00
73 5/11/2016 359 Act/360 0.02100 0.00
74 5/11/2016 359 Act/360 0.02100 0.00
75 1/11/2016 360 Act/360 0.02100 0.00
78 5/11/2016 360 Act/360 0.02100 0.00
81 12/11/2015 300 Act/360 0.08100 0.07
82 6/11/2016 360 Act/360 0.02100 0.00
84 6/11/2016 360 Act/360 0.02100 0.00
85 5/11/2016 360 Act/360 0.02100 0.00
87 4/11/2016 358 Act/360 0.08100 0.07
90 5/11/2016 299 Act/360 0.02100 0.00
91 3/11/2016 357 Act/360 0.02100 0.00
95 4/11/2016 360 Act/360 0.02100 0.00
96 6/11/2016 360 Act/360 0.11100 0.10
97 6/11/2016 300 Act/360 0.02100 0.00
98 5/11/2011 359 Act/360 0.02100 0.00
103 5/11/2016 359 Act/360 0.02100 0.00
104 6/11/2016 360 Act/360 0.02100 0.00
106 4/11/2016 358 Act/360 0.02100 0.00
107 4/11/2016 300 Act/360 0.02100 0.00
109 4/11/2016 298 Act/360 0.06100 0.05
110 4/11/2016 358 Act/360 0.02100 0.00
111 5/11/2016 360 Act/360 0.02100 0.00
112 5/11/2016 359 Act/360 0.02100 0.00
113 5/11/2016 359 Act/360 0.02100 0.00
114 5/11/2016 359 Act/360 0.06100 0.05
115 4/11/2016 358 Act/360 0.02100 0.00
117 5/11/2016 360 Act/360 0.08100 0.07
119 5/11/2016 359 Act/360 0.02100 0.00
120 5/11/2016 359 Act/360 0.02100 0.00
121 4/11/2016 358 Act/360 0.02100 0.00
123 4/11/2016 360 Act/360 0.02100 0.00
124 4/11/2016 322 Act/360 0.06100 0.05
126 6/11/2016 360 Act/360 0.02100 0.00
127 5/11/2016 360 Act/360 0.02100 0.00
128 5/11/2016 359 Act/360 0.02100 0.00
129 5/11/2016 359 Act/360 0.02100 0.00
131 5/11/2016 359 Act/360 0.02100 0.00
135 3/11/2016 360 Act/360 0.02100 0.00
138 3/11/2011 360 Act/360 0.02100 0.00
139 6/11/2016 360 Act/360 0.02100 0.00
140 5/11/2016 360 Act/360 0.11100 0.10
141 5/11/2016 359 Act/360 0.08100 0.07
MORTGAGE LOAN NUMBER GROUND LEASE? MORTGAGE LOAN SELLER DEFEASANCE ARD MORTGAGE LOAN
-------------------- ------------- -------------------- ------------------- -----------------
1 Fee Simple LB Defeasance No
2 Fee Simple LB Defeasance No
3 Fee Simple LB Defeasance No
4 Fee Simple LB Yield Maintenance No
5 Fee Simple LB Defeasance No
6 Fee Simple LB Defeasance No
7 Fee Simple LB Defeasance No
8 Fee Simple LB Yield Maintenance No
9 Leasehold LB Defeasance No
11 Fee Simple LB Yield Maintenance No
12 Fee Simple LB Defeasance No
14 Fee Simple LB Yield Maintenance No
15 Fee Simple LB Yield Maintenance No
16 Fee Simple LB Defeasance No
17 Fee Simple LB Yield Maintenance No
18 Fee Simple LB Defeasance No
19 Fee Simple LB Defeasance No
20 Fee Simple LB Yield Maintenance No
21 Fee Simple LB Defeasance No
22 Fee Simple LB Defeasance No
28 Fee Simple LB Yield Maintenance No
29 Fee Simple LB Defeasance No
30 Fee Simple LB Yield Maintenance No
33 Fee Simple LB Defeasance No
34 Fee Simple LB Defeasance No
35 Fee Simple LB Defeasance No
37 Fee Simple LB Defeasance No
38 Fee Simple LB Defeasance No
39 Fee Simple LB Defeasance No
41 Fee Simple LB Defeasance No
42 Fee Simple LB Defeasance No
43 Fee Simple LB Defeasance No
45 Fee Simple LB Defeasance No
46 Fee Simple LB Defeasance No
47 Fee Simple LB Defeasance No
50 Fee Simple LB Defeasance No
51 Fee Simple LB Defeasance No
53 Fee Simple LB Defeasance No
54 Fee Simple LB Defeasance No
55 Fee Simple LB Defeasance No
56 Fee Simple LB Defeasance No
57 Fee Simple LB Defeasance No
59 Fee Simple LB Defeasance No
60 Fee Simple LB Yield Maintenance No
61 Fee Simple LB Defeasance No
64 Fee Simple LB Defeasance No
65 Fee Simple LB Defeasance No
66 Fee Simple LB Defeasance No
73 Fee Simple LB Defeasance No
74 Fee Simple LB Defeasance No
75 Fee Simple LB Defeasance No
78 Fee Simple LB Defeasance No
81 Leasehold LB Defeasance No
82 Fee Simple LB Defeasance No
84 Fee Simple LB Defeasance No
85 Fee Simple LB Defeasance No
87 Fee Simple LB Defeasance No
90 Fee Simple LB Defeasance No
91 Fee Simple LB Defeasance No
95 Fee Simple LB Defeasance No
96 Fee Simple LB Defeasance No
97 Fee Simple LB Defeasance No
98 Fee Simple LB Defeasance No
103 Fee Simple LB Defeasance No
104 Fee Simple LB Defeasance No
106 Fee Simple LB Defeasance No
107 Fee Simple LB Defeasance No
109 Fee Simple LB Defeasance No
110 Fee Simple LB Defeasance No
111 Fee Simple LB Defeasance No
112 Fee Simple LB Defeasance No
113 Fee Simple LB Defeasance No
114 Fee Simple LB Defeasance No
115 Fee Simple LB Defeasance No
117 Fee Simple LB Defeasance No
119 Fee Simple LB Defeasance No
120 Fee Simple LB Defeasance No
121 Fee Simple LB Defeasance No
123 Fee Simple LB Defeasance No
124 Fee Simple LB Defeasance No
126 Fee Simple LB Defeasance No
127 Fee Simple LB Defeasance No
128 Fee Simple LB Defeasance No
129 Fee Simple LB Defeasance No
131 Fee Simple LB Defeasance No
135 Fee Simple LB Defeasance No
138 Fee Simple LB Defeasance No
139 Fee Simple LB Defeasance No
140 Fee Simple LB Defeasance No
141 Fee Simple LB Defeasance No
MORTGAGE LOAN NUMBER ANTICIPATED REPAYMENT DATE ARD SPREAD CROSS COLLATERALIZED MORTGAGE LOAN SELLER LOAN ID
-------------------- -------------------------- ---------- -------------------- ----------------------------
1 X/X X/X Xx 000000000
0 X/X X/X No 060112002
3 X/X X/X Xx 000000000
0 X/X X/X No 060407004
5 X/X X/X Xx 000000000
0 X/X X/X No 051031001
7 N/A N/A No 060112005
8 X/X X/X Xx 000000000
0 X/X X/X No 060210008
11 X/X X/X Xx 000000000
00 X/X X/X No 060329001
14 X/X X/X Xx 000000000
00 X/X X/X No 060223001
16 X/X X/X Xx 000000000
00 X/X X/X No 051117002
18 X/X X/X Xx 000000000
00 X/X X/X No 060227009
20 X/X X/X Xx 000000000
00 X/X X/X No 060221005
22 X/X X/X Xx 000000000
00 X/X X/X No 050126003
29 X/X X/X Xx 000000000
00 X/X X/X No 051209005
33 N/A N/A No 060221007
34 X/X X/X Xx 000000000
00 X/X X/X No 051108003
37 X/X X/X Xx 000000000
00 X/X X/X Yes (LB-A) 060124007
39 X/X X/X Xx 000000000
00 X/X X/X No 051101001
42 N/A N/A No 060209001
43 X/X X/X Xx 000000000
00 X/X X/X Yes (LB-A) 060124006
46 X/X X/X Xx 000000000
00 X/X X/X No 060210005
50 X/X X/X Xx 000000000
00 X/X X/X No 050519003
53 X/X X/X Xx 000000000
00 X/X X/X No 051121010
55 N/A N/A No 060210003
56 X/X X/X Xx 000000000
00 X/X X/X Yes (LB-A) 060124004
59 N/A N/A Yes (LB-B) 060124008
60 X/X X/X Xx 000000000
00 X/X X/X No 051213001
64 N/A N/A No 051208003
65 X/X X/X Xx 000000000
00 X/X X/X Yes (LB-B) 060124013
73 X/X X/X Xx 000000000
00 X/X X/X Yes (LB-B) 060124010
75 X/X X/X Xx 000000000
00 X/X X/X Yes (LB-I) 060117010
81 X/X X/X Xx 000000000
00 X/X X/X No 060317009
84 X/X X/X Xx 000000000
00 X/X X/X Yes (LB-I) 060117009
87 X/X X/X Xx 000000000
00 X/X X/X No 051207003
91 X/X X/X Xx 000000000
00 X/X X/X No 060106010
96 X/X X/X Xx 000000000
00 X/X X/X No 060215011
98 X/X X/X Xx 000000000
000 X/X X/X Yes (LB-B) 060124009
000 X/X X/X Xx 000000000
000 X/X X/X No 051109001
000 X/X X/X Xx 000000000
000 X/X X/X No 051116004
000 X/X X/X Xx 000000000
000 X/X X/X No 060303006
000 X/X X/X Xx 000000000
000 X/X X/X Yes (LB-B) 060124011
114 N/A N/A No 060131003
000 X/X X/X Xx 000000000
000 X/X X/X No 060227006
000 X/X X/X Xx 000000000
000 X/X X/X Yes (LB-A) 060124005
121 N/A N/A No 051128005
000 X/X X/X Xx 000000000
000 X/X X/X No 060315002
000 X/X X/X Xx 000000000
000 X/X X/X No 060127002
000 X/X X/X Xx 000000000
000 X/X X/X No 051209004
000 X/X X/X Xx 000000000
000 X/X X/X No 050831019
138 N/A N/A No 051017016
000 X/X X/X Xx 000000000
000 X/X X/X No 060227007
141 N/A N/A No 050519013
EXHIBIT B-1
OPINION OF SIDLEY AUSTIN LLP
[LETTERHEAD OF SIDLEY AUSTIN LLP]
June 29, 2006
To the Parties Listed on Annex A hereto:
Re: LB-UBS Commercial Mortgage Trust 2006-C4
Commercial Mortgage Pass-Through Certificates, Series 2006-C4
--------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Xxxxxx Brothers Holdings Inc.
("LBHI"), in connection with the following transactions (collectively, the
"Transactions"):
(i) the sale by LBHI, and the purchase by Structured Asset
Securities Corporation II (the "Depositor"), of certain multifamily and
commercial mortgage loans (collectively, the "LBHI Mortgage Loans"),
pursuant to the LBHI Mortgage Loan Purchase Agreement, dated as of June
20, 2006 (the "LBHI Mortgage Loan Purchase Agreement"), between LBHI as
seller and the Depositor as purchaser; and
(ii) the negotiation and execution of the LBHI Indemnification
Agreement, dated as of June 20, 2006 (the "LBHI Indemnification
Agreement"), between LBHI, the Depositor, Xxxxxx Brothers Inc. and UBS
Securities LLC.
In the course of our acting as special counsel to LBHI as described
above, we prepared or reviewed the LBHI Mortgage Loan Purchase Agreement and the
LBHI Indemnification Agreement (collectively, the "Agreements"). Capitalized
terms not defined herein have the respective meanings set forth in the LBHI
Mortgage Loan Purchase Agreement and, to the extent not defined therein, in the
LBHI Indemnification Agreement.
For purposes of rendering the opinions set forth below, we have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents and records as we have deemed relevant or
necessary as the basis for such opinions; we have obtained such certificates
from and made such inquiries of officers and representatives of the parties to
the Agreements and public officials as we have deemed relevant or necessary as
the basis for such opinions; and we have relied upon, and assumed the accuracy
of, such other documents and records, such certificates and the statements made
in response to such inquiries, with respect to the factual matters upon which
such opinions are based. We have also assumed (i) the truthfulness and accuracy
of each of the representations and warranties as to factual matters contained in
the Agreements, (ii) the legal capacity of natural persons, (iii) the
genuineness of all signatures, (iv) the authenticity of all documents submitted
to us as originals,
(v) the conformity to authentic originals of all documents submitted to us as
certified, conformed or photostatic copies, (vi) the due organization of each of
the parties to the Agreements and the valid existence of each such party in good
standing under the laws of its jurisdiction of organization, (vii) except as
expressly addressed in opinion paragraphs 1 and 2 below, the power and authority
of all parties to the Agreements to enter into, perform under and consummate the
transactions contemplated by the Agreements, without any resulting conflict with
or violation of the organizational documents of any such party or with or of any
law, rule, regulation, order, writ or decree applicable to any such party or its
assets, and without any resulting default under or breach of any other agreement
or instrument by which any such party is bound or which is applicable to it or
its assets, (viii) the due authorization by all necessary action, and the due
execution and delivery, of each of the Agreements by all parties thereto, (ix)
except as expressly addressed in opinion paragraph 3 below, that each of the
Agreements is the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms, (x) the compliance
with the Agreements by all parties thereto, and (xi) the absence of any other
agreement that supplements or otherwise modifies the express terms of the
Agreements.
Our opinions set forth below with respect to the enforceability of
any agreement or any particular right or obligation under any agreement are
subject to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not in writing and executed by all
relevant parties, to sever any provision of any agreement, to appoint any person
or entity as the attorney-in-fact of any other person or entity or to provide
that any agreement or any particular provision thereof is to be governed by or
construed in accordance with the laws of any jurisdiction other than the State
of New York; (4) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws affecting the rights of creditors or secured parties
generally; and (5) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
any provision of any agreement that purports or is construed to provide
indemnification with respect to securities law violations.
When used in this opinion, the term "knowledge" or words of similar
import mean the actual knowledge of facts or other information of the Sidley
Austin LLP attorneys currently practicing law with this firm who have been
actively involved in the above-described representation of LBHI. In that regard
we have conducted no special or independent investigation of factual matters in
connection with this opinion letter.
In rendering the opinions set forth below, we do not express any
opinion concerning the laws of any jurisdiction other than the General
Corporation Law of the State of Delaware (solely with respect to opinion
paragraph 2 below), the laws of the State of New York and, where expressly
referred to below, the federal laws of the United States of America (in each
case, without regard to conflicts of law principles). In addition, we do not
express any opinion with respect to the tax, securities or "doing business" laws
of any particular State, including the State of New York, or with respect to any
matter not expressly addressed below.
Based upon and subject to the foregoing, we are of the opinion that:
1. The execution, delivery and performance by LBHI of the
Agreements do not conflict with, or result in a violation of, any federal
or State of New York statute, or any rule or regulation promulgated
thereunder or pursuant thereto, which statute, rule or regulation is
applicable to LBHI (except for any such conflict or violation as would not
have a material adverse effect on the performance by LBHI of its
obligations under the Agreements).
2. The terms of the Agreements (insofar as they apply to LBHI)
do not conflict with, or result in the violation of, any provision of the
General Corporation Law of the State of Delaware that is applicable to
LBHI (except for any such conflict or violation as would not have a
material adverse effect on the performance by LBHI of its obligations
under the Agreements).
3. The LBHI Mortgage Loan Purchase Agreement is a valid, legal
and binding agreement of LBHI, enforceable against LBHI in accordance with
its terms.
4. No consent, approval, authorization or order of any federal
or State of New York court, agency or other governmental body is required
for the consummation by LBHI of the transactions contemplated by the terms
of the Agreements, except such as have been obtained.
The opinions expressed herein are being delivered to you as of the
date hereof, and we assume no obligation to advise you of any changes of law or
fact that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Transactions and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
ANNEX A
Structured Asset Securities Standard & Poor's Ratings Services,
Corporation II a division of The XxXxxx-Xxxx Companies, Inc.
000 Xxxxxxx Xxxxxx 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10019 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. Xxxxx'x Investors Service, Inc.
000 Xxxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
UBS Securities LLC Wachovia Bank, National Association
1285 Avenue of the Americas NC 1075
Xxx Xxxx, Xxx Xxxx 00000 0000 Xxxxxxxx Xxxxx, XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Xxxxxx Brothers Holdings Inc. LaSalle Bank National Association
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10019 Xxxxxxx, Xxxxxxxx 00000
LNR Partners, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
X-0-0
XXXXXXX X-0
OPINION OF IN-HOUSE COUNSEL TO THE SELLER
[LETTERHEAD OF XXXXXX BROTHERS INC.]
June 29, 2006
Structured Asset Securities LNR Partners, Inc.
Corporation II 0000 Xxxxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Inc. LaSalle Bank National Association
000 Xxxxxxx Xxxxxx 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10019 Xxxxxxx, Xxxxxxxx 00000
UBS Securities LLC Xxxxx'x Investors Service, Inc.
1285 Avenue of the Americas 00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10019 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Brothers Holdings Inc. Standard & Poor's Ratings Services,
000 Xxxxxxx Xxxxxx a division of The XxXxxx-Xxxx Companies, Inc.
Xxx Xxxx, Xxx Xxxx 00000 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10041
Wachovia Bank, National
Association NC 1075
8739 Research Drive, URP4
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Re: LB-UBS Commercial Mortgage Trust 2006-C4
Commercial Mortgage Pass-Through Certificates, Series 2006-C4
--------------------------------------------------------------
Ladies and Gentlemen:
I am internal counsel to Xxxxxx Brothers Holdings Inc.
("Xxxxxx"). I am familiar with matters pertaining to the following
agreements (collectively, the "Agreements"):
(i) the LBHI Mortgage Loan Purchase Agreement dated as of
June 20, 2006, (the "LBHI Mortgage Loan Purchase Agreement"), between
Xxxxxx and Structured Asset Securities Corporation II ("SASCO II"); and
(ii) the LBHI Indemnification Agreement dated as of June
20, 2006, between Xxxxxx, SASCO II, Xxxxxx Brothers Inc. ("LBI") and
UBS Securities LLC ("UBS Securities").
B-2-1
You have asked for my opinion regarding various legal matters
involving, among other things, Xxxxxx and the Agreements.
As to matters of fact material to this opinion, I have relied,
without independent investigation on (i) the representations and warranties of
Xxxxxx in the Agreements, (ii) the relevant resolutions of the Board of
Directors of Xxxxxx, (iii) certificates of responsible officers of Xxxxxx, and
(iv) certificates of public officials. In this connection, I have examined or
have caused to be examined on my behalf, a copy of each of the Agreements and
such other documents and instruments which I have deemed necessary or
appropriate in connection with this opinion.
I have relied on originals or copies, certified or otherwise
identified to my satisfaction, of the certificate of incorporation and by-laws
of Xxxxxx, records of proceedings taken by Xxxxxx and other corporate documents
and records of Xxxxxx, and have made such other investigations as I have deemed
relevant or necessary for the purpose of this opinion. I have assumed, without
independent investigation, the genuineness of all signatures (other than those
of officers of Xxxxxx), the authenticity of all documents submitted to me as
originals and the conformity to authentic original documents of all documents
submitted to me as certified, conformed or reproduction copies.
On the basis of and subject to the foregoing, it is my opinion that:
(1) Xxxxxx is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware. Xxxxxx has the
requisite corporate power and authority to transact business in the manner
described in the Agreements and to consummate the transactions contemplated by
the Agreements.
(2) Each Agreement has been duly authorized, executed and
delivered by Xxxxxx.
(3) The execution, delivery and performance of the Agreements by
Xxxxxx, (i) to my knowledge, do not and will not result in a material breach or
violation of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to me to which Xxxxxx is a party, (ii) do not contravene
Xxxxxx'x certificate of incorporation or by-laws, and (iii) to my knowledge, do
not contravene any order of any court or governmental agency that names Xxxxxx
and is specifically directed to its property (except for such breaches,
violations, defaults or contraventions as would not have a material adverse
effect on the ability of Xxxxxx to perform its obligations under the
Agreements).
The foregoing opinions are subject to the following additional
assumptions, exceptions, qualifications and limitations:
A. I am a member of the Bar of the State of New York and render
no opinion as to the laws of any jurisdiction other than the
laws of the State of New York, the General Corporation Law of
the State of Delaware and the federal laws of the United
States of America.
B. My opinions are limited to the present laws and to the facts
as they presently exist. I assume no obligation to revise or
supplement this opinion should the present laws of any
jurisdiction referred to in paragraph A. above be changed by
legislative action, judicial decision or otherwise.
B-2-2
This opinion is being delivered to you for your sole use in
connection with the Agreements and the related transactions and may not be used
or relied upon by any other person, firm or entity in any other context for any
other purpose. This opinion may not be quoted in whole or part, nor may copies
be furnished or delivered to any other person without my express written
consent.
The foregoing opinions are given on the express understanding that
the undersigned is an officer of Xxxxxx Brothers Inc. and shall in no event
incur any personal liability in connection with the said opinions.
Very truly yours,
B-2-3
