EXECUTION COPY
LBHI MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of September 22, 2006,
(the
"Agreement"), between Lehman 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-C6, Commercial Mortgage Pass-Through Certificates, Series
2006-C6. 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 September 11,
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 Lehman
Brothers
Inc. ("Lehman"), UBS Global Asset Management (US) Inc. ("UBS-AM")
and UBS
Securities LLC ("UBS Securities" and, together with Lehman and
UBS-AM in such
capacity, the "Underwriters"), whereby the Purchaser will sell to
the
Underwriters all of the Certificates that are to be registered
under the
Securities Act of 1933, as amended (the "Securities Act"). The
Purchaser has
also entered into a Certificate Purchase Agreement (the
"Certificate Purchase
Agreement"), dated as of the date hereof, with Lehman, UBS-AM 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 $2,183,996,928 (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 October 4, 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
September 11, 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 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
under clause
(a)(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 assignment of UCC
Financing
Statement, in favor of, and delivered under clause (a)(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
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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.
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 or cause such to be done,
as the case
may be, and the Seller shall deliver such substitute or corrected
document or
instrument to the Trustee (or, if the Mortgage Loan is then no
longer subject to
the Pooling and Servicing Agreement, to the then holder of such
Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such
recording, filing and delivery contemplated in the preceding 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 or the
Purchaser's request and
the fees of the Recording/Filing Agent.
(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.
(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(e) of the Pooling and Servicing
Agreement, the
Seller shall, upon the written direction of the Master Servicer,
use its best
efforts to make such draw or to cause such draw to be made on
behalf of the
Trustee.
(h) Pursuant to the Pooling and Servicing Agreement, the Master
Servicer shall review the documents with respect to each Mortgage
Loan delivered
by the Seller pursuant to or as
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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 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
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 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
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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.
(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.
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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.
(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)(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 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
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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) [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 (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 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.
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(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 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
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.
(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
8
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. Closing. The closing of the sale of the Mortgage Loans
(the
"Closing") shall be held at the offices of Sidley Austin 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 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;
(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;
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(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, 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 ot
