EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of June 21, 2005 (the
"Agreement"), between UBS Real Estate Investments Inc. (together
with its
successors and permitted assigns hereunder, the "Seller"), UBS
Principal Finance
LLC, as an additional party responsible for the Seller's
obligations hereunder
(in such capacity, together with its successors and permitted
assigns hereunder,
the "Additional Party"), and Structured Asset Securities
Corporation II
(together with its successors and permitted assigns hereunder, the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (collectively,
the "Mortgage
Loans") as provided herein. The Purchaser intends to deposit the
Mortgage Loans,
together with certain other multifamily and commercial mortgage
loans (the
"Other Loans"; and, together with the Mortgage Loans, the
"Securitized Loans"),
into a trust fund (the "Trust Fund"), the beneficial ownership of
which will be
evidenced by multiple classes (each, a "Class") of mortgage
pass-through
certificates (the "Certificates") to be identified as the LB-UBS
Commercial
Mortgage Trust 2005-C3, Commercial Mortgage Pass-Through
Certificates, Series
2005-C3. One or more "real estate mortgage investment conduit"
("REMIC")
elections will be made with respect to the Trust Fund. The
Certificates will be
issued pursuant to a Pooling and Servicing Agreement dated as of
June 13, 2005
(the "Pooling and Servicing Agreement"), between the Purchaser, as
depositor,
Wells Fargo Bank, National Association, as master servicer (the
"Master
Servicer"), J.E. Robert Company, Inc., as special servicer (the
"Special
Servicer"), LaSalle Bank National Association, as trustee (the
"Trustee"), and
ABN AMRO Bank N.V., as fiscal agent. Capitalized terms used but not
defined
herein have the respective meanings set forth in the Pooling and
Servicing
Agreement, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of the date hereof, with Lehman
Brothers
Inc. ("Lehman") and UBS Securities LLC ("UBS Securities" and,
together with
Lehman 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 Lehman and UBS
Securities
(together in such capacity, the "Placement Agents"), whereby the
Purchaser will
sell to the Placement Agents all of the remaining Certificates
(other than the
Residual Interest Certificates).
In connection with the transactions contemplated hereby, the
Seller,
UBS Americas Inc. (the "Co-Indemnitor"), the Purchaser, the
Underwriters and the
Placement Agents have entered into an Indemnification Agreement
(the
"Indemnification Agreement"), dated as of the date hereof.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase,
the
Mortgage Loans identified on the schedule (the "Mortgage Loan
Schedule") annexed
hereto as Exhibit A. The Mortgage Loan Schedule may be amended to
reflect the
actual Mortgage Loans accepted by the Purchaser
pursuant to the terms hereof. The Mortgage Loans will have an
aggregate
principal balance of $332,728,029 (the "Initial UBS Pool Balance")
as of the
close of business on the Cut-off Date, after giving effect to any
and all
payments of principal due thereon on or before such date, whether
or not
received. The purchase and sale of the Mortgage Loans shall take
place on June
30, 2005 or such other date as shall be mutually acceptable to the
parties
hereto (the "Closing Date"). The consideration for the Mortgage
Loans shall
consist of: (A) a cash amount equal to a percentage (mutually
agreed upon by the
parties hereto) of the Initial UBS Pool Balance, plus interest
accrued on each
Mortgage Loan at the related Mortgage Rate (net of the related
Administrative
Cost Rate), for the period from and including June 11, 2005 up to
but not
including the Closing Date, which cash amount shall be paid to the
Seller or its
designee by wire transfer in immediately available funds (or by
such other
method as shall be mutually acceptable to the parties hereto) on
the Closing
Date; and (B) a 16.91813% Percentage Interest in each Class of
Residual Interest
Certificates (all such Residual Interest Certificates, the
"Seller's Residual
Interest Certificates").
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the
purchase price referred to in Section 1 hereof and satisfaction or
waiver of the
conditions to closing set forth in Section 7 hereof, the Seller
does hereby
sell, transfer, assign, set over and otherwise convey to the
Purchaser, without
recourse, all the right, title and interest of the Seller (other
than the
primary servicing rights) in and to the Mortgage Loans identified
on the
Mortgage Loan Schedule as of such date. The Mortgage Loan Schedule,
as it may be
amended, shall conform to the requirements set forth in this
Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off
Date, and all
other recoveries of principal and interest collected after the
Cut-off Date
(other than in respect of principal and interest on the Mortgage
Loans due on or
before the Cut-off Date). All scheduled payments of principal and
interest due
on or before the Cut-off Date for each Mortgage Loan, but collected
after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of
the
initial Purchaser, deliver to and deposit with (i) the Trustee or a
Custodian
appointed thereby, a Mortgage File for each Mortgage Loan in
accordance with the
terms of, and conforming to the requirements set forth in, the
Pooling and
Servicing Agreement, with copies of each Mortgage File to be
delivered by the
Trustee to, upon request, the Master Servicer (at the expense of
the Trustee),
within 10 Business Days of such request; and (ii) the Master
Servicer (or, at
the direction of the Master Servicer, to the appropriate
Sub-Servicer), all
unapplied Escrow Payments and Reserve Funds in the possession or
under the
control of the Seller that relate to the Mortgage Loans.
(d) The Seller shall retain, with respect to each Mortgage Loan, an
Independent third party (the "Recording/Filing Agent"), through
which it shall:
(i) as and in the manner provided in the Pooling and Servicing
Agreement (and in
any event within 45 days following the later of the Closing Date
and the date on
which all necessary recording or filing, as applicable, information
is available
to the subject Recording/Filing Agent), submit for recording or
filing, as the
case may be, in the appropriate public office for real property
records or UCC
Financing Statements, as applicable (A) each related assignment of
Mortgage and
assignment of Assignment of Leases in favor of, and delivered
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under clause (iv) of the definition of "Mortgage File" to, the
Trustee, and (B)
solely with respect to nursing facilities and hospitality
properties (identified
on Schedule VI to the Pooling and Servicing Agreement), each
related assignment
of UCC Financing Statement, in favor of, and delivered under clause
(iv) of the
definition of "Mortgage File" to, the Trustee; and (ii) cause each
such
assignment of Mortgage, assignment of Assignment of Leases and
assignment of UCC
Financing Statement to be delivered to the Trustee following its
return by the
appropriate public office for real property records or UCC
Financing Statements,
as applicable, with copies of any such returned assignments to be
delivered by
the Trustee to the Master Servicer, at the expense of the Seller,
at least every
90 days after the Closing Date (or at additional times upon the
request of the
Master Servicer if reasonably necessary for the ongoing
administration and/or
servicing of the related Mortgage Loan by the Master Servicer);
provided that,
in those instances where the public recording office retains the
original
assignment of Mortgage or assignment of Assignment of Leases, the
Trustee shall
obtain a certified copy of the recorded original. Notwithstanding
the foregoing,
the Seller may request the Trustee to submit for recording or
filing, as
applicable, any of the assignments of Mortgage, assignments of
Assignment of
Leases or assignments of UCC Financing Statements referred to in
this paragraph,
and in such event, the Seller shall cause any such unrecorded or
unfiled
document to be delivered to the Trustee.
If any such assignment of Mortgage, assignment of Assignment of
Leases
and/or assignment of UCC Financing Statement referred to in the
preceding
paragraph is lost or returned unrecorded or unfiled, as the case
may be, because
of a defect therein, then the Seller shall prepare or cause the
preparation of a
substitute therefor or cure such defect, as the case may be, and
the Seller
shall deliver such substitute or corrected document or instrument
to the Trustee
(or, if the Mortgage Loan is then no longer subject to the Pooling
and Servicing
Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such
recording, filing and delivery contemplated in the preceding two
paragraphs,
including, without limitation, any out-of-pocket costs and expenses
that may be
incurred by the Trustee in connection with any such recording,
filing or
delivery performed by the Trustee at the Seller's request and the
fees of the
Recording/Filing Agent.
(e) With respect to any Mortgage Loan, the following documents
(other
than any document that constitutes part of the Mortgage File for
such Mortgage
Loan): copies of any final appraisal, final survey, final
engineering report,
final environmental report, opinion letters of counsel to the
related mortgagor
delivered in connection with the closing of such Mortgage Loan,
escrow
agreements, organization documentation for the related mortgagor,
organizational
documentation for any related guarantor or indemnitor, if the
related guarantor
or indemnitor is an entity, insurance certificates, leases for
tenants
representing 25% or more of the annual income with respect to the
related
Mortgaged Property, final seismic report and property management
agreements, but
in each case, only if the subject document (a) was in fact obtained
in
connection with the origination of such Mortgage Loan, (b) relates
to the
administration or servicing of such Mortgage Loan, (c) is
reasonably necessary
for the ongoing administration and/or servicing of such Mortgage
Loan by the
Master Servicer or Special Servicer in connection with its duties
under the
Pooling and Servicing Agreement, and (d) is in the possession or
under the
control of the Seller shall, within 45 days of the Closing Date, be
delivered or
caused to be delivered by the Seller to the Master Servicer (or, at
the
direction of the Master Servicer, to the applicable Sub-Servicer);
provided that
the Seller shall not be required to deliver any draft documents,
privileged or
other communications or correspondence, credit underwriting or due
diligence
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analyses or information, credit committee briefs or memoranda or
other internal
approval documents or data or internal worksheets, memoranda,
communications or
evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action
inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for
actions that
are the express responsibility of another party hereunder or under
the Pooling
and Servicing Agreement, and further except for actions that the
Seller is
expressly permitted to complete subsequent to the Closing Date, the
Seller
shall, on or before the Closing Date, take all actions required
under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller
to the
Purchaser.
(g) In connection with the obligations of the Master Servicer under
Sections 3.01(g) and 3.19(c) of the Pooling and Servicing
Agreement, with regard
to each Mortgage Loan that is secured by the interests of the
related Mortgagor
in a hospitality property (identified on Schedule VI to the Pooling
and
Servicing Agreement) and each Mortgage Loan that has a related
letter of credit,
the Seller shall deliver to and deposit with the Master Servicer,
on or before
the Closing Date, any related franchise agreement, franchise
comfort letter and
the original of such letter of credit. Further, in the event, with
respect to a
Mortgage Loan with a related letter of credit, the Master Servicer
determines
that a draw under such letter of credit has become necessary under
the terms
thereof prior to the assignment of such letter of credit having
been effected in
accordance with Section 3.01(g) of the Pooling and Servicing
Agreement, the
Seller shall, upon the written direction of the Master Servicer,
use its best
efforts to make such draw or to cause such draw to be made on
behalf of the
Trustee.
(h) Pursuant to the Pooling and Servicing Agreement, the Master
Servicer shall review the documents with respect to each Mortgage
Loan delivered
by the Seller pursuant to or as contemplated by Section 2(e) and
provide the
Seller with a certificate (the "Master Servicer Certification")
within 90 days
of the Closing Date acknowledging its receipt as of the date of the
Master
Servicer Certification of such documents actually received;
provided that such
review shall be limited to identifying the document received, the
Mortgage Loan
to which it purports to relate, that it appears regular on its face
and that it
appears to have been executed (where appropriate). Notwithstanding
anything to
the contrary set forth herein, to the extent the Seller has not
been notified in
writing of its failure to deliver any document with respect to a
Mortgage Loan
required to be delivered pursuant to or as contemplated by Section
2(e) hereof
prior to the first anniversary of the date of the Master Servicer
Certification,
the Seller shall have no obligation to provide such document.
(i) In addition, on the Closing Date, the Seller shall deliver to
the
Master Servicer for deposit in the Pool Custodial Account the
Initial Deposits,
if any, relating to the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of Seller and
Additional Party.
(a) Each of the Seller and the Additional Party (each, for purposes
of
this Section 3(a), a "Representing Party") hereby represent and
warrant to and
covenant with the Purchaser, as of the date hereof, that:
(i) The Representing Party is duly organized or formed, as the
case may be, validly existing and in good standing as a legal
entity under
the laws of the State of Delaware and possesses all requisite
authority,
power, licenses, permits and franchises to carry on its
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business as currently conducted by it and to execute, deliver and
comply
with its obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Representing Party and, assuming due
authorization, execution and delivery hereof by the Purchaser,
constitutes
a legal, valid and binding obligation of the Representing Party,
enforceable against the Representing Party in accordance with its
terms,
except as such enforcement may be limited by (A) bankruptcy,
insolvency,
reorganization, receivership, moratorium or other similar laws
affecting
the enforcement of creditors' rights in general, and (B) general
equity
principles (regardless of whether such enforcement is considered in
a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Representing Party and the Representing Party's performance and
compliance
with the terms of this Agreement will not (A) violate the
Representing
Party's organizational documents, (B) violate any law or regulation
or any
administrative decree or order to which the Representing Party is
subject,
or (C) constitute a default (or an event which, with notice or
lapse of
time, or both, would constitute a default) under, or result in the
breach
of, any material contract, agreement or other instrument to which
the
Representing Party is a party or by which the Representing Party is
bound.
(iv) The Representing Party is not in default with respect to any
order or decree of any court or any order, regulation or demand of
any
federal, state, municipal or other governmental agency or body,
which
default might have consequences that would, in the Representing
Party's
reasonable and good faith judgment, materially and adversely affect
the
condition (financial or other) or operations of the Representing
Party or
its properties or have consequences that would materially and
adversely
affect its performance hereunder.
(v) The Representing Party is not a party to or bound by any
agreement or instrument or subject to any organizational document
or any
other corporate or limited liability company (as applicable)
restriction or
any judgment, order, writ, injunction, decree, law or regulation
that
would, in the Representing Party's reasonable and good faith
judgment,
materially and adversely affect the ability of the Representing
Party to
perform its obligations under this Agreement or that requires the
consent
of any third person to the execution and delivery of this Agreement
by the
Representing Party or the performance by the Representing Party of
its
obligations under this Agreement.
(vi) Except for the recordation and/or filing of assignments and
other transfer documents with respect to the Mortgage Loans, as
contemplated by Section 2(d) hereof, no consent, approval,
authorization or
order of, registration or filing with, or notice to, any court or
governmental agency or body, is required for the execution,
delivery and
performance by the Representing Party of or compliance by the
Representing
Party with this Agreement or the consummation of the transactions
contemplated by this Agreement; and no bulk sale law applies to
such
transactions.
(vii) No litigation is pending or, to the best of the
Representing Party's knowledge, threatened against the Representing
Party
that would, in the Representing Party's good faith and reasonable
judgment,
prohibit its entering into this Agreement or materially and
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adversely affect the performance by the Representing Party of its
obligations under this Agreement.
(viii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Representing Party are pending or
contemplated.
In addition, the Seller hereby further represents and warrants to,
and
covenants with, the Purchaser, as of the date hereof, that:
(i) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the
transfer of the
Mortgage Loans to the Purchaser, as provided herein, as a sale of
the
Mortgage Loans to the Purchaser in exchange for the consideration
specified
in Section 1 hereof. In connection with the foregoing, the Seller
shall
cause all of its records to reflect such transfer as a sale (as
opposed to
a secured loan). The consideration received by the Seller upon the
sale of
the Mortgage Loans to the Purchaser will constitute at least
reasonably
equivalent value and fair consideration for the Mortgage Loans. The
Seller
will be solvent at all relevant times prior to, and will not be
rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The
Seller
is not selling the Mortgage Loans to the Purchaser with any intent
to
hinder, delay or defraud any of the creditors of the Seller. After
giving
effect to its transfer of the Mortgage Loans to the Purchaser, as
provided
herein, the value of the Seller's assets, either taken at their
present
fair saleable value or at fair valuation, will exceed the amount of
the
Seller's debts and obligations, including contingent and
unliquidated debts
and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and
conduct
its business. The Mortgage Loans do not constitute all or
substantially all
of the assets of the Seller. The Seller does not intend to, and
does not
believe that it will, incur debts or obligations beyond its ability
to pay
such debts and obligations as they mature.
(ii) The Seller will acquire the Seller's Residual Interest
Certificates for its own account and not with a view to, or sale or
transfer in connection with, any distribution thereof, in whole or
in part,
in any manner that would violate the Securities Act or any
applicable state
securities laws.
(iii) The Seller understands that (A) the Seller's Residual
Interest Certificates have not been and will not be registered
under the
Securities Act or registered or qualified under any applicable
state
securities laws, (B) neither the Purchaser nor any other party is
obligated
so to register or qualify the Seller's Residual Interest
Certificates and
(C) neither the Seller's Residual Interest Certificates nor any
security
issued in exchange therefor or in lieu thereof may be resold or
transferred
unless it is (1) registered pursuant to the Securities Act and
registered
or qualified pursuant to any applicable state securities laws or
(2) sold
or transferred in a transaction which is exempt from such
registration and
qualification and the Certificate Registrar has received the
certifications
and/or opinions of counsel required by the Pooling and Servicing
Agreement.
(iv) The Seller understands that it may not sell or otherwise
transfer the Seller's Residual Interest Certificates, any security
issued
in exchange therefor or in lieu thereof or any interest in the
foregoing
except in compliance with the provisions of Section 5.02 of the
Pooling and
Servicing Agreement, which provisions it has or, as of the Closing
Date,
will have
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carefully reviewed, and that the Seller's Residual Interest
Certificates
will bear legends that identify the transfer restrictions to which
such
Certificates are subject.
(v) Neither the Seller nor anyone acting on its behalf has (A)
offered, transferred, pledged, sold or otherwise disposed of any
Seller's
Residual Interest Certificate, any interest in a Seller's Residual
Interest
Certificate or any other similar security to any person in any
manner, (B)
solicited any offer to buy or accept a transfer, pledge or other
disposition of any Seller's Residual Interest Certificate, any
interest in
a Seller's Residual Interest Certificate or any other similar
security from
any person in any manner, (C) otherwise approached or negotiated
with
respect to any Seller's Residual Interest Certificate, any interest
in a
Seller's Residual Interest Certificate or any other similar
security with
any person in any manner, (D) made any general solicitation by
means of
general advertising or in any other manner, or (E) taken any other
action,
that (in the case of any of the acts described in clauses (A)
through (E)
above) would constitute a distribution of the Seller's Residual
Interest
Certificates under the Securities Act, would render the disposition
of the
Seller's Residual Interest Certificates a violation of Section 5 of
the
Securities Act or any state securities law or would require
registration or
qualification of the Seller's Residual Interest Certificates
pursuant
thereto. The Seller will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the
foregoing
sentence with respect to the Seller's Residual Interest
Certificates, any
interest in the Seller's Residual Interest Certificates or any
other
similar security.
(vi) The Seller has been furnished with all information regarding
(A) the Purchaser, (B) the Seller's Residual Interest Certificates
and
distributions thereon, (C) the nature, performance and servicing of
the
Other Loans, (D) the Pooling and Servicing Agreement and the Trust
Fund,
and (E) all related matters, that it has requested.
(vii) The Seller is either (a) a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act or (b) an
"accredited investor" as defined in any of paragraphs (1), (2), (3)
and (7)
of Rule 501(a) under the Securities Act or an entity in which all
its
equity owners are "accredited investors" as defined in such
paragraphs and
has such knowledge and experience in financial and business matters
as to
be capable of evaluating the merits and risks of an investment in
the
Seller's Residual Interest Certificates. The Seller has sought such
accounting, legal and tax advice as it has considered necessary to
make an
informed investment decision; and the Seller is able to bear the
economic
risks of such an investment and can afford a complete loss of such
investment.
(viii) The Seller is not a Plan and is not directly or indirectly
acquiring the Seller's Residual Interest Certificates on behalf of,
as
named fiduciary of, as trustee of or with assets of a Plan.
(ix) The Seller is a United States Tax Person and is not a
Disqualified Organization.
(b) The Seller hereby makes, for the benefit of the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or as of such
other date
expressly set forth therein, each of the representations and
warranties set
forth on Exhibit B hereto.
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(c) The Seller intends to transfer the Seller's Residual Interest
Certificates to Wachovia Bank, National Association on or about the
Closing
Date; and, in connection therewith, the Seller will comply with all
of the
requirements of Section 5.02 of the Pooling and Servicing
Agreement, as in
effect on the Closing Date, and applicable law. The Seller hereby
directs the
Purchaser to cause the Seller's Residual Interest Certificates to
be registered
in the name of Wachovia Bank, National Association upon initial
issuance.
SECTION 4. Representations and Warranties of the Purchaser.
In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants for the benefit of the
Seller and the
Additional Party as of the date hereof that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The
Purchaser has the full corporate power and authority and legal
right to
acquire the Mortgage Loans from the Seller and to transfer the
Mortgage
Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser and, assuming due
authorization,
execution and delivery hereof by the Seller and the Additional
Party,
constitutes a legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms,
except as
such enforcement may be limited by (A) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws
affecting
the enforcement of creditors' rights in general, and (B) general
equity
principles (regardless of whether such enforcement is considered in
a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the
terms of
this Agreement will not (A) violate the Purchaser's organizational
documents, (B) violate any law or regulation or any administrative
decree
or order to which the Purchaser is subject or (C) constitute a
default (or
an event which, with notice or lapse of time, or both, would
constitute a
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Purchaser is a party or
by which
the Purchaser is bound.
(iv) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent,
approval,
authorization or order of, registration or filing with, or notice
to, any
governmental authority or court, is required for the execution,
delivery
and performance by the Purchaser of or compliance by the Purchaser
with
this Agreement, or the consummation by the Purchaser of any
transaction
described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser, as provided herein, as a sale of the Mortgage Loans to
the
Purchaser in exchange for the consideration specified in Section 1
hereof.
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SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller receives written notice with respect to any
Mortgage
Loan (i) that any document constituting a part of clauses (i)
through (x) of the
definition of Mortgage File has not been executed or is missing (a
"Document
Defect") or (ii) of a breach of any of the Seller's representations
and
warranties made pursuant to Section 3(b) hereof (each such breach,
a "Breach")
relating to any Mortgage Loan, and such Document Defect or Breach
materially and
adversely affects the value of the Mortgage Loan at the time of
such notice,
then such Document Defect shall constitute a "Material Document
Defect" or such
Breach shall constitute a "Material Breach", as the case may be.
Then, following
receipt of a Seller/Depositor Notification with respect to such
Material
Document Defect or Material Breach, as the case may be, the Seller
shall
(subject to Sections 5(f), (g) and (h)), (A) not later than 90 days
after (1)
the Seller and the Purchaser have agreed upon the existence of such
Material
Document Defect or Material Breach or (2) a court of competent
jurisdiction
makes a final non-appealable determination that a Material Document
Defect or
Material Breach exists or (B) in the case of a Material Document
Defect or
Material Breach that affects whether a Mortgage Loan was, as of the
Closing
Date, is or will continue to be a "qualified mortgage" within the
meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days
following the
discovery by any party of such Material Document Defect or Material
Breach
(either such 90-day period, in the case of (A) or (B), as
applicable, an
"Initial Resolution Period"): (i) cure such Material Document
Defect or Material
Breach, as the case may be, in all material respects (which cure
shall include
payment of any out-of-pocket expenses that are reasonably incurred
and directly
attributable to pursuing such a claim based on such Material
Document Defect or
Material Breach associated therewith), or (ii) if such Material
Document Defect
or Material Breach, as the case may be, cannot be cured within the
Initial
Resolution Period, repurchase the affected Mortgage Loan (or the
related
Mortgaged Property) from, and in accordance with the directions of,
the
Purchaser or its designee, at a price equal to the Purchase Price;
provided that
if (a) such Material Breach or Material Document Defect, as the
case may be, is
capable of being cured but not within the applicable Initial
Resolution Period,
(b) any such Material Breach or Material Document Defect, as the
case may be,
does not affect whether the Mortgage Loan was, as of the Closing
Date, is or
will continue to be a Qualified Mortgage, (c) the Seller has
commenced and is
diligently proceeding with the cure of such Material Breach or
Material Document
Defect, as the case may be, within the applicable Initial
Resolution Period, and
(d) the Seller shall have delivered to the Purchaser a
certification executed on
behalf of the Seller by an officer thereof confirming that such
Material Breach
or Material Document Defect, as the case may be, is not capable of
being cured
within the applicable Initial Resolution Period, setting forth what
actions the
Seller is pursuing in connection with the cure thereof and stating
that the
Seller anticipates that such Material Breach or Material Document
Defect, as the
case may be, will be cured within an additional period not to
exceed 90 days
beyond the end of the Initial Resolution Period, then the Seller
shall have such
additional 90-day period (the "Resolution Extension Period"), to
complete such
cure or, failing such, to repurchase the affected Mortgage Loan (or
the related
Mortgaged Property); and provided, further, that, if any such
Material Document
Defect is still not cured after the Initial Resolution Period and
any such
Resolution Extension Period solely due to the failure of the Seller
to have
received a recorded document, then the Seller shall be entitled to
continue to
defer its cure and repurchase obligations in respect of such
Material Document
Defect so long as the Seller certifies to the Purchaser every six
months
thereafter that the Material Document Defect is still in effect
solely because
of its failure to have received the recorded document and that the
Seller is
diligently pursuing the cure of such defect (specifying the actions
being
taken). The parties acknowledge that neither delivery of a
certification or
schedule of exceptions to the Seller pursuant to Section 2.02(b) of
the Pooling
and Servicing Agreement or otherwise nor possession of such
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certification or schedule by the Seller shall, in and of itself,
constitute
delivery of notice of any Material Document Defect or Material
Breach or
knowledge or awareness by the Seller of any Material Document
Defect or Material
Breach.
If, during the period of deferral by the Seller of its cure and
repurchase obligations as contemplated by the last proviso of the
penultimate
sentence of the preceding paragraph, the Mortgage Loan that is the
subject of
the Material Document Defect either becomes a Specially Serviced
Mortgage Loan
or becomes the subject of a proposed or actual assumption of the
obligations of
the related Mortgagor under such Mortgage Loan, then, following
receipt by the
Seller of a Seller/Depositor Notification providing notice of such
event, the
Seller shall cure the subject Material Document Defect within the
time period
specified in such Seller/Depositor Notification. If, upon the
expiration of such
period, the Seller has failed to cure the subject Material Document
Defect, the
Master Servicer or the Special Servicer, as applicable, shall be
entitled (but
not obligated) to perform the obligations of the Seller with
respect to curing
the subject Material Document Defect and, in the event of such an
election, the
Seller shall pay all reasonable actual out-of-pocket costs and
expenses in
connection with the applicable servicer's effecting such cure.
(b) [Reserved]
(c) If one or more (but not all) of the Mortgage Loans constituting
a
Cross-Collateralized Group are to be repurchased by the Seller as
contemplated
by Section 5(a), then, prior to the subject repurchase, the Seller
or its
designee shall use reasonable efforts, subject to the terms of the
related
Mortgage Loans, to prepare and, to the extent necessary and
appropriate, have
executed by the related Mortgagor and record, such documentation as
may be
necessary to terminate the cross-collateralization between the
Mortgage Loans in
such Cross-Collateralized Group that are to be repurchased, on the
one hand, and
the remaining Mortgage Loans therein, on the other hand, such that
those two
groups of Mortgage Loans are each secured only by the Mortgaged
Properties
identified in the Mortgage Loan Schedule as directly corresponding
thereto;
provided that, if such Cross-Collateralized Group is still subject
to the
Pooling and Servicing Agreement, then no such termination shall be
effected
unless and until (i) the Purchaser or its designee has received
from the Seller
(A) an Opinion of Counsel to the effect that such termination will
not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an
Adverse
Grantor Trust Event with respect to the Grantor Trust and (B)
written
confirmation from each Rating Agency that such termination will not
cause an
Adverse Rating Event to occur with respect to any Class of
Certificates and (ii)
the Controlling Class Representative (if one is acting) has
consented (which
consent shall not be unreasonably withheld and shall be deemed to
have been
given if no written objection is received by the Seller within 10
Business Days
of the Controlling Class Representative's receipt of a written
request for such
consent); and provided, further, that the Seller may, at its
option, purchase
the entire Cross-Collateralized Group in lieu of terminating the
cross-collateralization. All costs and expenses incurred by the
Purchaser or its
designee pursuant to this paragraph shall be included in the
calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased. If the
cross-collateralization of any Cross-Collateralized Group is not or
cannot be
terminated as contemplated by this paragraph, then, for purposes of
(i)
determining whether the subject Breach or Document Defect, as the
case may be,
materially and adversely affects the value of such
Cross-Collateralized Group,
and (ii) the application of remedies, such Cross-Collateralized
Group shall be
treated as a single Mortgage Loan.
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(d) It shall be a condition to any repurchase of a Mortgage Loan by
the Seller pursuant to this Section 5 that the Purchaser shall have
executed and
delivered such instruments of transfer or assignment then presented
to it by the
Seller (or as otherwise required to be prepared, executed and
delivered under
the Pooling and Servicing Agreement), in each case without
recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership
of such
Mortgage Loan (including any property acquired in respect thereof
or proceeds of
any insurance policy with respect thereto), to the extent that such
ownership
interest was transferred to the Purchaser hereunder. If any
Mortgage Loan is to
be repurchased as contemplated by this Section 5, the Seller shall
amend the
Mortgage Loan Schedule to reflect the removal of such Mortgage Loan
and shall
forward such amended schedule to the Purchaser.
(e) Any repurchase of a Mortgage Loan pursuant to this Section 5
shall
be on a whole loan, servicing released basis. The Seller and the
Additional
Party shall have no obligation to monitor the Mortgage Loans
regarding the
existence of a Breach or Document Defect. It is understood and
agreed that the
obligations of the Seller set forth in this Section 5 constitute
the sole
remedies available to the Purchaser with respect to any Breach or
Document
Defect.
(f) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Seller
set forth
in, or made pursuant to, paragraph (xlviii) of Exhibit B to this
Agreement,
specifically relating to whether or not the Mortgage Loan documents
or any
particular Mortgage Loan document for any Mortgage Loan requires
the related
Mortgagor to bear the reasonable costs and expenses associated with
the subject
matter of such representation or warranty, as set forth in such
representation
or warranty, then the Purchaser or its designee will direct the
Seller in
writing to wire transfer to the Custodial Account, within 90 days
of receipt of
such direction, the amount of any such reasonable costs and
expenses incurred by
the Trust that (i) are due from the Mortgagor, (ii) otherwise would
have been
required to be paid by the Mortgagor if such representation or
warranty with
respect to such costs and expenses had in fact been true, as set
forth in the
related representation or warranty, (iii) have not been paid by the
Mortgagor,
(iv) are the basis of such Breach and (v) constitute "Covered
Costs". Upon
payment of such costs, the Seller shall be deemed to have cured
such Breach in
all respects. Provided that such payment is made, this paragraph
describes the
sole remedy available to the Purchaser regarding any such Breach,
regardless of
whether it constitutes a Material Breach, and the Seller shall not
be obligated
to otherwise cure such Breach or repurchase the affected Mortgage
Loan under any
circumstances. Amounts deposited in the Pool Custodial Account
pursuant to this
paragraph shall constitute "Liquidation Proceeds" for all purposes
of the
Pooling and Servicing Agreement (other than Section 3.11(c) of the
Pooling and
Servicing Agreement).
(g) Subject to Section 5(f) and the last three sentences of this
paragraph, if the Seller determines that a Material Breach (other
than a
Material Breach of a representation or warranty on the part of the
Seller set
forth in and made pursuant to paragraph (xvii) of Exhibit B to this
Agreement)
or a Material Document Defect with respect to a Mortgage Loan is
not capable of
being cured in accordance with Section 5(a) hereof, then in lieu of
repurchasing
such Mortgage Loan the Seller may, at its sole option, pay a cash
amount equal
to the loss of value (each such payment, a "Loss of Value Payment")
with respect
to such Mortgage Loan, which loss of value is directly attributed
to such
Material Breach or Material Document Defect, as the case may be.
The amount of
each such Loss of Value Payment shall be determined either (i) by
mutual
agreement of the Special Servicer on behalf of the Trust with
respect to the
subject Material Breach or Material Document Defect, as the case
may be, and the
Seller, or (ii) by judicial decision; provided that, in the event
there is a
legal action for determining the existence of a
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Material Breach or a Material Document Defect with respect to any
Mortgage Loan,
such legal action must also include a determination of the amount
of the loss of
value to such Mortgage Loan directly attributed to such Material
Breach or such
Material Document Defect, as the case may be. Provided that such
payment is
made, this paragraph describes the sole remedy available to the
Purchaser
regarding any such Material Breach or Material Document Defect and
the Seller
shall not be obligated to otherwise cure such Material Breach or
Material
Document Defect or repurchase the affected Mortgage Loan based on
such Material
Breach or Material Document Defect under any circumstances.
Notwithstanding the
foregoing provisions of this Section 5(g), if substantially all of
the loss of
value to a Mortgage Loan was caused by a Material Breach or
Material Document
Defect, which Material Breach or Material Document Defect is not
capable of
being cured, this Section 5(g) shall not apply and the Seller shall
be obligated
to repurchase the affected Mortgage Loan at the applicable Purchase
Price in
accordance with Section 5(a). Furthermore, the Seller shall not
have the option
of delivering Loss of Value Payments in connection with any
Material Breach
relating to a Mortgage Loan's failure to be a Qualified Mortgage.
In the event
there is a Loss of Value Payment made by the Seller in accordance
with this
Section 5(g), the amount of such Loss of Value Payment shall be
deposited into
the Loss of Value Reserve Fund to be applied in accordance with
Section 3.05(e)
of the Pooling and Servicing Agreement.
In the event the amount of any Loss of Value Payment is determined
by
judicial decision, then such Loss of Value Payment shall also
include the
payment of any costs and expenses (including costs incurred in
establishing the
amount of any related loss of value to the subject Mortgage Loan)
that are: (i)
reasonably incurred in good faith by the Master Servicer, the
Special Servicer
and/or the Trustee (on behalf of the Trust) in enforcing the rights
of the Trust
against the Seller with respect to the subject Material Breach or
Material
Document Defect, as the case may be; and (ii) directly attributable
to the
enforcement of the rights of the Trust with respect to the subject
Material
Breach or Material Document Defect, as the case may be; provided
that, that in
the event the Seller tenders a loss of value payment in a specified
amount in
connection with a Material Breach or Material Document Defect, as
the case may
be, prior to the institution of legal proceedings and that offer is
rejected and
an amount equal to or less than the loss of value payment
originally tendered by
the Seller is ultimately determined by judicial decision to be the
actual amount
of the Loss of Value Payment attributed to such Material Breach or
Material
Document Defect, as the case may be, then that Loss of Value
Payment shall not
include the payment of any costs or expenses incurred by the Master
Servicer,
the Special Servicer and/or the Trustee in connection with the
subject
litigation; provided, further, that if the Special Servicer request
a loss of
value payment from the Seller of a specified amount in connection
with a
Material Breach or Material Document Defect, as the case may be,
and the Seller
refuses to pay that amount and an amount equal to or greater than
the loss of
value payment originally requested by the Special Servicer is
ultimately
determined by judicial decision to be the actual Loss of Value
Payment
attributable to such Material Document Defect or Material Breach,
then that Loss
of Value Payment shall also include the payment of all costs and
expenses
reasonably incurred in connection with that judicial determination;
and
provided, further, that, if the Seller tenders a loss of value
payment in
connection with a Material Breach or Material Document Defect, as
the case may
be, in a specified amount, and the Special Servicer rejects such
tender and
requests a greater loss of value payment amount, and an amount in
between the
respective amounts tendered and requested is ultimately determined
by judicial
decision to be the actual Loss of Value Payment attributable to
such Material
Breach or Material Document Defect, as the case may be, then that
Loss of Value
Payment shall also include the payment of an amount equal to the
product of (i)
all costs and expenses reasonably incurred in connection with that
judicial
determination, multiplied by (ii) a fraction, the numerator of
which is the
excess of the amount determined by judicial decision over the
amount tendered by
the Seller, and the denominator of which is
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the excess of the amount requested by the Special Servicer over the
amount
tendered by the Seller. Notwithstanding the foregoing, in the event
any Loss of
Value Payment is determined by the parties hereto by mutual
agreement (and not
by a judicial decision), that Loss of Value Payment shall not
include any costs
and expenses incurred by the Master Servicer, the Special Servicer
or the
Trustee unless such costs and expenses were specifically included
in such mutual
agreement.
(h) Notwithstanding the foregoing, if there exists a Material
Breach
of the representation or warranty on the part of the Seller set
forth in and
made pursuant to paragraph (xvii) of Exhibit B to this Agreement,
and the
subject Mortgage Loan becomes a Qualified Mortgage prior to the
expiration of
the Initial Resolution Period applicable to a Material Document
Defect or
Material Breach that affects whether a Mortgage Loan is a Qualified
Mortgage,
and without otherwise causing an Adverse REMIC Event or an Adverse
Grantor Trust
Event, then such breach will be cured and the Seller will not be
obligated to
repurchase or otherwise remedy such Breach.
SECTION 6. Obligations of the Additional Party.
The Additional Party hereby covenants and agrees with the Purchaser
that the Additional Party shall be liable to the Purchaser and any
designee
thereof to the same extent as the Seller as set forth herein, for
all the
obligations of the Seller under Section 5 hereof. The Additional
Party further
agrees that the Purchaser shall not be bound or obligated to
initially request
the Seller to perform any of its obligations hereunder, but may
instead
initially request the Additional Party to perform such obligations.
Additionally, the Additional Party agrees that the Purchaser shall
not be bound
or obligated in anyway to exhaust recourse against the Seller
before being
entitled to demand the performance by the Additional Party of its
obligations
hereunder. Performance by the Additional Party of any of the
Seller's
obligations hereunder shall be deemed to be performance thereof by
the Seller.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be
held at the offices of Sidley Austin Brown & Wood LLP, 787
Seventh Avenue, New
York, New York 10019 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller and the
Additional Party set forth in or made pursuant to Sections 3(a) and
3(b) of this
Agreement, and all of the representations and warranties of the
Purchaser set
forth in Section 4 of this Agreement, shall be true and correct in
all material
respects as of the Closing Date;
(b) Insofar as it affects the obligations of the Seller hereunder,
the
Pooling and Servicing Agreement shall be in a form mutually
acceptable to the
Purchaser and the Seller;
(c) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to
the
Purchaser, shall be duly executed and delivered by all signatories
as required
pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the Trustee (or
a
Custodian on its behalf), the Master Servicer and the Special
Servicer all
documents and funds required to be delivered to
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the Trustee, the Master Servicer and the Special Servicer,
respectively,
pursuant to Section 2 of this Agreement;
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been
complied with in all
material respects, and the Seller and Additional Party shall have
the ability to
comply with all terms and conditions and perform all duties and
obligations
required to be complied with or performed after the Closing Date;
(f) The Seller shall have paid all fees and expenses payable by it
to
the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
All parties hereto agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the
Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed by the Purchaser, the Seller and
the
Additional Party;
(b) The Pooling and Servicing Agreement duly executed by the
parties
thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) Certificates of each of the Seller and the Additional Party,
executed by a duly authorized officer of the Seller or the
Additional Party, as
the case may be, and dated the Closing Date, and upon which the
initial
Purchaser, the Underwriters and the Placement Agents may rely, to
the effect
that: (i) the representations and warranties of the Seller or the
Additional
Party, as the case may be, in this Agreement and, in the case of
the Seller, in
the Indemnification Agreement are true and correct in all material
respects at
and as of the Closing Date with the same effect as if made on such
date; and
(ii) the Seller or the Additional Party, as the case may be, has,
in all
material respects, complied with all the agreements and satisfied
all the
conditions on its part that are required under this Agreement to be
performed or
satisfied at or prior to the Closing Date;
(e) An Officer's Certificate from an officer of each of the Seller
and
the Additional Party, in his or her individual capacity, dated the
Closing Date,
and upon which the initial Purchaser, the Underwriters and the
Placement Agents
may rely, to the effect that each individual who, as an officer or
representative of the Seller or the Additional Party, as the case
may be, signed
this Agreement, the Indemnification Agreement or any other document
or
certificate delivered on or before the Closing Date in connection
with the
transactions contemplated herein or, in the case of the Seller, in
the
Indemnification Agreement, was at the respective times of such
signing and
delivery, and is as of the Closing Date, duly elected or appointed,
qualified
and acting as such officer or representative, and the signatures of
such persons
appearing on such documents and certificates are their genuine
signatures;
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(f) As certified by an officer of each of the Seller and the
Additional Party, true and correct copies of (i) the resolutions of
the board of
directors authorizing the Seller's entering into the transactions
contemplated
by this Agreement and, in the case of the Seller, the
Indemnification Agreement,
(ii) the organizational documents of each of the Seller and the
Additional
Party, and (iii) a certificate of good standing of each of the
Seller and the
Additional Party, issued by the Secretary of State of the State of
Delaware not
earlier than 10 days prior to the Closing Date;
(g) A Certificate of the Co-Indemnitor, executed by a duly
authorized
officer of the Co-Indemnitor and dated the Closing Date, and upon
which the
initial Purchaser, the Underwriters and the Placement Agents may
rely, to the
effect that the representations and warranties of the Co-Indemnitor
in the
Indemnification Agreement are true and correct in all material
respects at and
as of the Closing Date with the same effect as if made on such
date;
(h) An Officer's Certificate from an officer of the Co-Indemnitor,
in
his or her individual capacity, dated the Closing Date, and upon
which the
initial Purchaser, the Underwriters and the Placement Agents may
rely, to the
effect that each individual who, as an officer or representative of
the
Co-Indemnitor, signed the Indemnification Agreement or any other
document or
certificate delivered on or before the Closing Date in connection
with the
transactions contemplated therein, was at the respective times of
such signing
and delivery, and is as of the Closing Date, duly elected or
appointed,
qualified and acting as such officer or representative, and the
signatures of
such persons appearing on such documents and certificates are their
genuine
signatures;
(i) As certified by an officer of the Co-Indemnitor, true and
correct
copies of (i) the resolutions of the board of directors authorizing
the
Co-Indemnitor's entering into the transactions contemplated by the
Indemnification Agreement, (ii) the organizational documents of the
Co-Indemnitor, and (iii) a certificate of good standing of the
Co-Indemnitor
issued by the Secretary of State of the State of Delaware not
earlier than 10
days prior to the Closing Date;
(j) A favorable opinion of Cadwalader, Wickersham & Taft LLP
("CWT"),
special counsel to the Seller, the Additional Party and the
Co-Indemnitor,
substantially in the form attached hereto as Exhibit C-1, dated the
Closing Date
and addressed to the initial Purchaser, the Underwriters, the
Placement Agents,
the Rating Agencies and, upon request, the other parties to the
Pooling and
Servicing Agreement, together with such other opinions of CWT as
may be required
by the Rating Agencies in connection with the transactions
contemplated hereby;
(k) An Officer's Certificate from an officer of each of the Seller
and
the Co-Indemnitor, in each case delivered in connection with the
opinion of CWT
to be delivered pursuant to Section 8(j) above, in form and
substance
satisfactory to the addressees of such opinion and upon which such
addressees
may rely;
(l) A favorable opinion of in-house counsel to the Additional
Party,
substantially in the form attached hereto as Exhibit C-2, dated the
Closing Date
and addressed to the initial Purchaser, the Underwriters, the
Placement Agents,
the Rating Agencies and, upon request, the other parties to the
Pooling and
Servicing Agreement;
(m) In connection with the initial issuance of the Seller's
Residual
Interest Certificates, a Transfer Affidavit and Agreement in the
form
contemplated by the Pooling and Servicing Agreement from Seller and
from the
transferee of the Seller;
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(n) In the event any of the Certificates are mortgage related
securities within the meaning of the Secondary Mortgage Market
Enhancement Act
of 1984, as amended, a Certificate of the Seller regarding
origination of the
Mortgage Loans by specified originators as set forth in Section
3(a)(41) of the
Securities Exchange Act of 1934, as amended; and
(o) Such further certificates, opinions and documents as the
Purchaser
may reasonably request.
SECTION 9. Costs.
An amount equal to 16.91813% of all reasonable out-of-pocket costs
and
expenses incurred by the Seller, the initial Purchaser, the
Underwriters, the
Placement Agents and the seller of the Other Loans to the Purchaser
in
connection with the securitization of the Securitized Loans and the
other
transactions contemplated by this Agreement, the Underwriting
Agreement and the
Certificate Purchase Agreement shall be payable by the Seller.
SECTION 10. Grant of a Security Interest.
The parties hereto agree that it is their express intent that the
conveyance of the Mortgage Loans by the Seller to the Purchaser as
provided in
Section 2 hereof be, and be construed as, a sale of the Mortgage
Loans by the
Seller to the Purchaser and not as a pledge of the Mortgage Loans
by the Seller
to the Purchaser to secure a debt or other obligation of the
Seller. However,
if, notwithstanding the aforementioned intent of the parties, the
Mortgage Loans
are held to be property of the Seller, then it is the express
intent of the
parties that: (i) such conveyance shall be deemed to be a pledge of
the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other
obligation of the
Seller; (ii) this Agreement shall be deemed to be a security
agreement within
the meaning of Articles 8 and 9 of the applicable Uniform
Commercial Code; (iii)
the conveyance provided for in Section 2 hereof shall be deemed to
be a grant by
the Seller to the Purchaser of a security interest in all of the
Seller's right,
title and interest in and to the Mortgage Loans, and all amounts
payable to the
holder of the Mortgage Loans in accordance with the terms thereof,
and all
proceeds of the conversion, voluntary or involuntary, of the
foregoing into
cash, instruments, securities or other property; (iv) the
assignment to the
Trustee of the interest of the Purchaser in and to the Mortgage
Loans shall be
deemed to be an assignment of any security interest created
hereunder; (v) the
possession by the Trustee or any of its agents, including, without
limitation,
the Custodian, of the Mortgage Notes for the Mortgage Loans, and
such other
items of property as constitute instruments, money, negotiable
documents or
chattel paper shall be deemed to be "possession by the secured
party" for
purposes of perfecting the security interest pursuant to Section
9-313 of the
applicable Uniform Commercial Code; and (vi) notifications to
persons (other
than the Trustee) holding such property, and acknowledgments,
receipts or
confirmations from such persons holding such property, shall be
deemed
notifications to, or acknowledgments, receipts or confirmations
from, financial
intermediaries, bailees or agents (as applicable) of the secured
party for the
purpose of perfecting such security interest under applicable law.
The Seller
and the Purchaser shall, to the extent consistent with this
Agreement, take such
actions as may be necessary to ensure that, if this Agreement were
deemed to
create a security interest in the Mortgage Loans, such security
interest would
be deemed to be a perfected security interest of first priority
under applicable
law and will be maintained as such throughout the term of this
Agreement and the
Pooling and Servicing Agreement; and, in connection with the
foregoing, the
Seller authorizes the Purchaser to file any and all appropriate
Uniform
Commercial Code financing statements.
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SECTION 11. Notices.
All notices, copies, requests, consents, demands and other
communications required hereunder shall be in writing and
telecopied or
delivered to the intended recipient at the "Address for Notices"
specified
beneath its name on the signature pages hereof or, as to any party,
at such
other address as shall be designated by such party in a notice
hereunder to the
other parties. Except as otherwise provided in this Agreement, all
such
communications shall be deemed to have been duly given when
transmitted by
telecopier or personally delivered or, in the case of a mailed
notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Seller, the Additional Party and/or the
Co-Indemnitor submitted
pursuant hereto, shall remain operative and in full force and
effect and shall
survive delivery of the Mortgage Loans by the Seller to the
Purchaser (and by
the initial Purchaser to the Trustee).
SECTION 13. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or
unenforceable shall
be ineffective to the extent of such prohibition or
unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is
prohibited or
unenforceable or is held to be void or unenforceable in any
particular
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of
such prohibition or unenforceability without invalidating the
remaining
provisions hereof, and any such prohibition or unenforceability in
any
particular jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law,
the parties hereto waive any provision of law which prohibits or
renders void or
unenforceable any provision hereof.
SECTION 14. Counterparts.
This Agreement may be executed in any number of counterparts, each
of
which shall be an original, but which together shall constitute one
and the same
agreement.
SECTION 15. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS
NEGOTIATED, MADE AND
TO BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT
PERMITTED UNDER
APPLICABLE LAW, THE SELLER, THE ADDITIONAL PARTY AND THE PURCHASER
EACH HEREBY
IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
AND FEDERAL
COURTS SITTING IN NEW YORK CITY, TO THE EXCLUSION OF ALL OTHER
COURTS, WITH
RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT;
(II) AGREES
THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING SHALL BE
HEARD AND
DETERMINED IN SUCH NEW YORK STATE OR
-17-
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
NEITHER A NEW
YORK STATE NOR FEDERAL COURT SITTING IN NEW YORK IN WHICH AN ACTION
OR
PROCEEDING HAS BEEN DULY AND PROPERLY COMMENCED BY ANY PARTY TO
THIS AGREEMENT
REGARDING A MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT HAS
REFUSED TO
ACCEPT JURISDICTION OVER OR OTHERWISE HAS NOT ACCEPTED SUCH ACTION
OR PROCEEDING
WITHIN, IN THE CASE OF EACH SUCH COURT, 60 DAYS OF THE COMMENCEMENT
OR FILING
THEREOF, THEN THE WORDS "TO THE EXCLUSION OF ALL OTHER COURTS" IN
CLAUSE (I) AND
CLAUSE (II) OF THIS SENTENCE SHALL NOT APPLY WITH REGARD TO SUCH
ACTION OR
PROCEEDING AND THE REFERENCE TO "SHALL" IN CLAUSE (II) OF THIS
SECTION SHALL BE
DEEMED TO BE "MAY".
SECTION 16. Further Assurances.
The Seller, the Additional Party and the Purchaser each agrees to
execute and deliver such instruments and take such further actions
as any other
such party may, from time to time, reasonably request in order to
effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller and the Additional Party
under this Agreement shall not be assigned by the Seller or the
Additional
Party, as the case may be, without the prior written consent of the
Purchaser,
except that any person into which the Seller or the Additional
Party may be
merged or consolidated, or any corporation resulting from any
merger, conversion
or consolidation to which the Seller or the Additional Party is a
party, or any
person succeeding to all or substantially all of the business of
the Seller or
the Additional Party, shall be the successor to the Seller or the
Additional
Party, as the case may be, hereunder. The Purchaser has the right
to assign its
interest under this Agreement, in whole or in part, as may be
required to effect
the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to
the extent of such assignment, succeed to the rights and
obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall
bind and inure
to the benefit of and be enforceable by the Seller, the Additional
Party, the
Purchaser, and their respective successors and permitted assigns.
SECTION 18. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a
duly authorized
officer of the party against whom such waiver or modification is
sought to be
enforced. The Seller's and the Additional Party's obligations
hereunder shall in
no way be expanded, changed or otherwise affected by any amendment
of or
modification to the Pooling and Servicing Agreement, unless the
Seller or the
Additional Party, as applicable, has consented to such amendment or
modification
in writing.
-18-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized
officers as of the
date first above written.
SELLER
UBS REAL ESTATE INVESTMENTS INC.
By: /s/ Robert Pettinato
--------------------------------------
Name: Robert Pettinato
Title: Director
By: /s/ Brad Cohen
--------------------------------------
Name: Brad Cohen
Title: Director
Address for Notices:
1285 Avenue of the Americas, 11th Floor
New York, New York 10019
Attention: Robert Pettinato
Telecopier No.: (212) 713-2631
ADDITIONAL PARTY
UBS PRINCIPAL FINANCE LLC
By: /s/ Robert Pettinato
--------------------------------------
Name: Robert Pettinato
Title: Director
By: /s/ Brad Cohen
--------------------------------------
Name: Brad Cohen
Title: Director
Address for Notices:
1285 Avenue of the Americas, 11th Floor
New York, New York 10019
Attention: Robert Pettinato
Telecopier No.: (212) 713-2631
PURCHASER
STRUCTURED ASSET SECURITIES CORPORATION
II
By: /s/ David Nass
--------------------------------------
Name: David Nass
Title: Senior Vice President
Address for Notices:
Structured Asset Securities Corporation II
745 Seventh Avenue
New York, New York 10019
Attention: Scott Lechner
Telecopier No.: (646) 758-4203
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[See Attached]
A-1
<TABLE>
MORTGAGE
LOAN NUMBER
PROPERTY NAME
ADDRESS
CITY
STATE
ZIP CODE
-------------------------------------------------------------------------------------------------------------------------
8
Pacific Pointe
879 West 190th Street
Gardena
CA
90248
9
Macquarie DDR Portfolio III
Various
Various
Various
Various
11
Cendant Office Building
40 Apple Ridge Road
Danbury
CT
06810
17
866 Third Avenue
866 Third Avenue
New York
NY
10022
18
Commerce Park Realty
Various
Danbury
CT
06810
19
Estates at Eagle's Pointe
2002 Shaw Avenue
Peru
IN
46970
21
Commerce Center II
7601-7615 Ora Glen Drive
Greenbelt
MD
20770
22
Sheraton Studio City
5905 International Drive
Orlando
FL
32819
28
Queen & Crescent Hotel
344 Camp Street
New Orleans
LA
70130
36
Clermont Shopping Center
1002 - 1086 East Highway 50
Clermont
FL
34711
35
Newtown Road Office
103, 105, 107, and 109 Newtown Road
Danbury
CT
06810
40
Davanjer Portfolio
Various
Austin
TX
78705
46
Best Western - Palm Arie
415 South International Boulevard
Weslaco
TX
78596
53
9200 East Hampton Drive
9200 East Hampton Drive
Capitol Heights
MD
20743
56
South Throop Street
2211-2233 South Throop Street
Chicago
IL
60608
68
Diamonette Industrial
10925-11091 Northwest 27th Street
Doral
FL
33172
70
Food Lion - Ocean View Commons
1100 Sabbath Home Road Southwest
Supply
NC
28462
72
Poplar Garden Apartments
464 Spencer Port Road
Gates
NY
14606
73
Ivanhoe Estates
26 Ivanhoe Drive
Urbana
IL
61802
74
Walgreens - San Leandro
1456 136th Avenue
San Leandro
CA
94578
80
8460 Edgewater Drive
8460 Edgewater Drive
Oakland
CA
94621
81
Food Lion - Circle Plaza
306 Main Street
Newton Grove
NC
28366
89
Eckerd - Concord
30 Warren C. Coleman Boulevard
Concord
NC
28027
96
Eckerd - Fayetteville
7860 Raeford Road
Fayetteville
NC
28304
98
Highland Place
16645 and 16647 Highland Road
Baton Rouge
LA
70810
99
Plum Park Apartments
600-631 Deborah Jane Drive and 110,
Plum
PA
15239
112 and 114 Elwood Court
101
Atlantic 95 Building
1301 Southwest First Court
Pompano Beach
FL
33069
104
Tower Square
600 North Colony Road
Wallingford
CT
06492
108
Hollytree Storage
6212 Hollytree Drive
Tyler
TX
75703
MORTGAGE
CUT-OFF
MONTHLY
MORTGAGE
REMAINING TERM
REMAINING
INTEREST
LOAN NUMBER
DATE BALANCE
P&I PAYMENT
RATE
TO MATURITY
MATURITY-ARD
AMORTIZATION TERM
ACCRUAL BASIS
-------------------------------------------------------------------------------------------------------------------------
8
40,000,000.00
176,078.70
5.2100000
60
6/11/2010
0
Act/360
9
39,300,000.00
166,959.50
5.0980000
58
4/5/2010
0
30/360
11
32,470,071.58
186,370.78
5.5900000
119
5/11/2015
359
Act/360
17
26,000,000.00
120,426.34
5.4820000
120
6/11/2015
0
Act/360
18
25,949,173.94
150,904.11
5.7000000
118
4/11/2015
358
Act/360
19
21,000,000.00
121,086.80
5.6400000
119
5/11/2015
360
Act/360
21
19,500,000.00
108,769.29
5.3400000
119
5/11/2015
360
Act/360
22
18,960,000.00
118,592.09
5.6900000
60
6/11/2010
300
Act/360
28
13,100,000.00
86,416.69
6.2500000
121
7/11/2015
300
Act/360
36
9,488,297.67
62,258.16
6.1800000
119
5/11/2015
299
Act/360
35
10,000,000.00
55,220.37
5.2500000
120
6/11/2015
360
Act/360
40
8,750,000.00
50,121.62
5.5800000
120
6/11/2015
360
Act/360
46
6,976,011.05
56,284.57
7.4750000
118
4/11/2015
238
Act/360
53
6,200,000.00
38,659.66
6.3700000
120
6/11/2015
360
Act/360
56
5,750,000.00
35,516.01
6.2800000
120
6/11/2015
360
Act/360
68
4,915,748.43
28,993.70
5.8400000
119
5/11/2015
359
Act/360
70
4,880,000.00
27,555.21
5.4500000
120
6/11/2015
360
Act/360
72
4,800,000.00
28,133.59
5.7900000
118
4/11/2015
360
Act/360
73
4,741,673.68
29,061.46
6.1900000
58
4/11/2010
358
Act/360
74
4,646,000.00
25,727.37
5.2750000
120
6/11/2015
360
Act/360
80
4,010,335.96
23,106.85
5.6250000
119
5/11/2015
359
Act/360
81
3,920,000.00
22,134.51
5.4500000
120
6/11/2015
360
Act/360
89
3,547,180.19
21,650.59
6.1600000
119
5/11/2015
359
Act/360
96
2,797,887.96
17,422.60
6.3500000
119
5/11/2015
359
Act/360
98
2,600,000.00
15,090.41
5.7000000
120
6/11/2015
360
Act/360
99
2,600,000.00
15,0
