EXECUTION COPY
LUBS 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, "LBHI"), LUBS 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 previously acquired the Mortgage Loans from LBHI or an
Affiliate thereof and, in connection therewith, LBHI has agreed to
enter into
this Agreement and the Indemnification Agreement (as defined
below).
The Seller intends to sell and the Purchaser intends to purchase a
certain commercial mortgage loan (the "Mortgage Loan") as provided
herein. The
Purchaser intends to deposit the Mortgage Loan, together with
certain other
multifamily and commercial mortgage loans (the "Other Loans"; and,
together with
the Mortgage Loan, 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, LBHI, 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 Loan 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 Loan accepted by the Purchaser pursuant
to the terms
hereof. The Mortgage Loan will have an aggregate principal balance
of
$400,000,000 (the "Initial LUBS 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 Loan shall take place on October 4, 2006, 2006, or
such other
date as shall be mutually acceptable to the parties hereto (the
"Closing Date").
The consideration for the Mortgage Loan shall consist of a cash
amount equal to
a percentage (mutually agreed upon by the parties hereto) of the
Initial LUBS
Pool Balance, plus interest accrued on the 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 Loan.
(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 Loan 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
Loan due on or
before the Cut-off Date). All scheduled payments of principal and
interest due
on or before the Cut-off Date for the 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, or cause to be
delivered to and
deposited with (i) the Trustee or a Custodian appointed thereby, a
Mortgage File
for the 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 Loan.
(d) The Seller or LBHI shall retain, with respect to the 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
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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
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 or cause such to be done,
as the case
may be, and the Seller shall deliver such substitute or corrected
document or
instrument to the Trustee (or, if the Mortgage Loan is then no
longer subject to
the Pooling and Servicing Agreement, to the then holder of such
Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such
recording and delivery contemplated in the preceding 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 or delivery
performed by the
Trustee at the Seller's or the Purchaser's request and the fees of
the Recording
Agent.
(e) With respect to the Mortgage Loan, the Seller shall deliver to
and
deposit with, or cause to be delivered to and deposited 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 Loan to the
Purchaser,
as provided herein, the Seller shall not take any action
inconsistent with the
Purchaser's ownership of the Mortgage Loan. 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 Loan by the Seller to the
Purchaser.
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(g) In connection with the obligations of the Master Servicer under
Sections 3.01(e) and 3.19(c) of the Pooling and Servicing
Agreement, with regard
to each Mortgage Loan that is secured by the interests of the
related Mortgagor
in a hospitality property (identified on Schedule VI to the Pooling
and
Servicing Agreement) and each Mortgage Loan that has a related
letter of credit,
the Seller shall deliver to and deposit with, or cause to be
delivered to and
deposited 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 the Mortgage
Loan delivered
by the Seller pursuant to or as contemplated by Section 2(e) and
provide the
Seller and the Controlling Class Representative and the Special
Servicer with a
certificate (the "Master Servicer Certification") within 90 days of
the Closing
Date acknowledging its (or the appropriate Sub-Servicer's) receipt
as of the
date of the Master Servicer Certification of such documents
actually received;
provided that such review shall be limited to identifying the
document received;
the Mortgage Loan to which it purports to relate, that it appears
regular on its
face and that it appears to have been executed (where appropriate).
Notwithstanding anything to the contrary set forth herein, to the
extent the
Seller has not been notified in writing of its failure to deliver
any document
with respect to the 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 (i)
to
the Master Servicer for deposit in the Pool Custodial Account the
Initial
Deposits relating to the Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of LBHI and
Seller.
(a) Each of LBHI and the Seller (each, for purposes of this Section
3(a), the "Representing Party") hereby represents and warrants to
and covenants
with the Purchaser, as of the date hereof, that:
(i) The Representing Party 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 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).
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(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 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 Loan, 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
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:
(ix) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the
transfer of the
Mortgage Loan to the Purchaser, as provided herein, as a sale of
the
Mortgage Loan 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
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consideration received by the Seller upon the sale of the Mortgage
Loan to
the Purchaser will constitute at least reasonably equivalent value
and fair
consideration for the Mortgage Loan. The Seller will be solvent at
all
relevant times prior to, and will not be rendered insolvent by, the
sale of
the Mortgage Loan to the Purchaser. The Seller is not selling the
Mortgage
Loan 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 Loan 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
Loan does 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.
(b) LBHI 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 LBHI and all references therein to the Mortgage Pool
shall be
deemed to be references to all the Securitized Loans.
SECTION 4. Representations and Warranties of the Purchaser. In
order
to induce the Seller and LBHI to enter into this Agreement, the
Purchaser hereby
represents and warrants for the benefit of the Seller and LBHI 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 Loan from the Seller and to transfer the
Mortgage Loan
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 LBHI, 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,
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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 Loan by the Seller to the
Purchaser, as provided herein, as a sale of the Mortgage Loan to
the
Purchaser in exchange for the consideration specified in Section 1
hereof.
SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller or LBHI 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 (if
applicable) or is missing (a "Document Defect") or (ii) of a breach
of any of
LBHI'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,
LBHI shall cure or repurchase the subject Mortgage Loan, as the
case may be, if
and to the extent the Depositor is required to do so, in the
manner, under the
circumstances, subject to the conditions, within the time periods
and upon all
of the other terms set forth in Section 2.03(a) of the Pooling and
Servicing
Agreement.
(b) [Reserved]
(c) If one or more (but not all) of the Mortgage Loans constituting
a
Cross-Collateralized Group are to be repurchased by LBHI as
contemplated by
Section 5(a), then, prior to the subject repurchase, LBHI 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 LBHI (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 LBHI
(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 LBHI 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
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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 the repurchase of the Mortgage Loan
by
LBHI pursuant to this Section 5 that the Purchaser shall have
executed and
delivered such instruments of transfer or assignment then presented
to it by
LBHI (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 LBHI the legal and beneficial ownership of the
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 the
Mortgage Loan is to
be repurchased as contemplated by this Section 5, LBHI shall amend
the Mortgage
Loan Schedule to reflect the removal of the Mortgage Loan and shall
forward such
amended schedule to the Purchaser.
(e) The repurchase of the Mortgage Loan pursuant to this Section 5
shall be on a whole loan, servicing released basis. The Seller and
LBHI shall
have no obligation to monitor the Mortgage Loan regarding the
existence of a
Breach or Document Defect. It is understood and agreed that the
obligations of
LBHI 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 LBHI 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 the Mortgage Loan requires the related
Mortgagor to
bear the reasonable costs and expenses associated with the subject
matter of
such representation or w
