WACHOVIA MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of February 15, 2007
(the
"Agreement"), between Wachovia Bank, National Association (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 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 2007-C1,
Commercial
Mortgage Pass-Through Certificates, Series 2007-C1. One or more
"real estate
mortgage investment conduit" ("REMIC") elections will be made with
respect to
the Trust Fund. The Certificates will be issued pursuant to a
Pooling and
Servicing Agreement, to be dated as of February 12, 2007 (the
"Pooling and
Servicing Agreement"), between the Purchaser, as depositor, KeyCorp
Real Estate
Capital Markets, Inc., as master servicer (in such capacity, the
"Master
Servicer"), Midland Loan Services, Inc., as special servicer (the
"Special
Servicer") and LaSalle Bank National Association, as trustee (the
"Trustee").
The Mortgage Loan is identified in the Pooling and Servicing
Agreement as the
"1745 Broadway Note A-2/A-4 Trust Mortgage Loan". 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 Wachovia
Capital Markets, LLC ("Wachovia" 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 and UBS-AM
(together in
such capacity, the "Placement Agents"), whereby the Purchaser will
sell to the
Placement Agents all of the remaining Certificates (other than the
Residual
Interest Certificates).
In connection with the transactions contemplated hereby, the
Seller,
the Purchaser, the Underwriters and the Placement Agents have
entered into an
Indemnification Agreement (the "Indemnification Agreement"), dated
as of the
date hereof.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1.
Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase,
the
Mortgage 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 Loans
accepted by the Purchaser pursuant to the terms hereof. The
Mortgage Loan will
have a principal balance of $85,000,000 (the "Initial Wachovia 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
February 27, 2007 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 Wachovia Pool Balance, plus
interest accrued
on the Mortgage Loan at the Mortgage Rate (net of the related
Administrative
Cost Rate), for the period from and including February 11, 2007 up
to but not
including the Closing Date, which cash amount shall be paid to the
Seller or its
designee by wire transfer in immediately available funds (or by
such other
method as shall be mutually acceptable to the parties hereto) on
the Closing
Date.
SECTION 2.
Conveyance of Mortgage Loans.
(a)
Effective as of the Closing Date, subject only to receipt of
the purchase price referred to in Section 1 hereof and satisfaction
or waiver of
the conditions to closing set forth in Section 8 hereof, the Seller
does hereby
sell, transfer, assign, set over and otherwise convey to the
Purchaser, without
recourse, all the right, title and interest of the Seller (other
than the
primary servicing rights) in and to the Mortgage Loans identified
on the
Mortgage Loan Schedule as of such date. The Mortgage Loan Schedule,
as it may be
amended, shall conform to the requirements set forth in this
Agreement and the
Pooling and Servicing Agreement.
(b)
The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off
Date, and all
other recoveries of principal and interest collected after the
Cut-off Date
(other than in respect of principal and interest on the Mortgage
Loans due on or
before the Cut-off Date). All scheduled payments of principal and
interest due
on or before the Cut-off Date for 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 the Trustee or a
Custodian
appointed thereby, the items identified under clause (a)(i)(A) of
the definition
of "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. In addition, the Seller shall cooperate with Lehman
Brothers Holdings
Inc. ("LBHI") and its Affiliates with respect to the delivery of
the remainder
of the Mortgage File, Mortgage Loan Origination Documents and
Servicing File to
the Trustee and/or Master Servicer, as required under the Pooling
and Servicing
Agreement, relating to the Mortgage Loan including, without
limitation, the
execution and delivery of any and all assignments and other
documents necessary
to effectuate the transfer of the Mortgage Loan and the related
loan documents
to the Trustee and/or the Master Servicer.
With respect to the Trustee's and/or the Purchaser's obligation
under Section 2.01(c) of the Pooling and Servicing Agreement
regarding
assignments of Mortgage, assignments of Assignments of Leases,
filing of Uniform
Commercial Code financing statements and filings of assigments of
Uniform
Commercial Code financing statements (and all delivery or
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other obligations with respect thereto) relating to the 1745
Broadway Trust
Mortgage Loan, the Seller shall bear a pro rata share all costs and
expenses
incurred by the Purchaser or the Trustee (to the extent the Trustee
is entitled
to reimbursement under the Pooling and Servicing Agreement) in
connection with
such obligations (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
Purchaser's
request and the fees of the Recording Agent), based on the relative
principal
balances of the 1745 Broadway Note A-1/A-3 Trust Mortgage Loan and
the Mortgage
Loan. The Seller shall promptly reimburse the Purchaser by wire
transfer of
immediately available funds promptly upon request for such
reimbursement. The
Seller further hereby agrees to reasonably cooperate with the
Trustee and the
Filing Agent with respect to the filing of the assignments of
Uniform Commercial
Code financing statements as described in this paragraph and to
forward to the
Trustee filing confirmation, if any, received in connection with
such Uniform
Commercial Code financing statements filed in accordance with this
paragraph.
If any of the assignments of Mortgage and/or assignments of
Assignment of Leases referred to in the first two paragraphs of
Section 2.01(c)
of the Pooling and Servicing Agreement relating to the 1745
Broadway Trust
Mortgage Loan are lost or returned unrecorded because of a defect
therein, then
the Trustee shall direct the Seller promptly to prepare or cause
the preparation
of any substitute documents necessary to cure such defect to the
extent
applicable to the Seller and to deliver to the Trustee such
substitute or
corrected documents.
(d)
The Seller shall cooperate with LBHI and its Affiliates with
respect to delivery of the following documents with respect to the
Mortgage Loan
(other than any document that constitutes part of the Mortgage File
for such
Mortgage Loan): copies of any final appraisal, final survey, final
engineering
report, final environmental report, opinion letters of counsel to
the related
mortgagor delivered in connection with the closing of such Mortgage
Loan, escrow
agreements, reserve agreements, organization documentation for the
related
mortgagor, organizational documentation for any related guarantor
or indemnitor,
if the related guarantor or indemnitor is an entity, insurance
certificates or
insurance review reports, leases for tenants representing 10% or
more of the
annual income with respect to the related Mortgaged Property, final
seismic
report and property management agreements, rent roll, property
operating
statement and financial statements for the related guarantor or
indemnitor, cash
management or lockbox agreement, zoning letters or zoning reports
and the
documents, if any, specifically set forth on Exhibit C hereto
(collectively, the
"Mortgage Origination Documents"), but in each case, only if the
subject
document (a) was in fact obtained in connection with the
origination of such
Mortgage Loan, (b) is reasonably necessary for the ongoing
administration and/or
servicing of such Mortgage Loan by the Master Servicer or Special
Servicer in
connection with its duties under the Pooling and Servicing
Agreement, and (c) is
in the possession or under the control of the Seller shall, within
45 days of
the Closing Date, be delivered or caused to be delivered by the
Seller to the
Master Servicer (or, at the direction of the Master Servicer, to
the appropriate
Sub-Servicer); provided that the Seller shall not be required to
deliver any
draft documents, privileged or other communications or
correspondence, credit
underwriting or due diligence analyses or information, credit
committee briefs
or memoranda or other internal approval documents or data or
internal
worksheets, memoranda, communications or evaluations.
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(e)
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.
(f)
Reserved.
(g)
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) hereof
and provide
each Seller and the Controlling Class Representative and the
Special Servicer
with a certificate (the "Master Servicer Certification") within 90
days of the
Closing Date acknowledging its (or the appropriate Sub-Servicer's)
receipt as of
the date of the Master Servicer Certification of such documents
actually
received (provided that such review shall be limited to identifying
the document
received, the Serviced Trust Mortgage Loan to which it purports to
relate, that
it appears regular on its face and that it appears to have been
executed (where
appropriate)). Notwithstanding anything to the contrary set forth
herein, to the
extent the Seller has not been notified in writing of its failure
to deliver any
document with respect to the Mortgage Loan required to be delivered
pursuant to
or as contemplated by Section 2(e) hereof prior to the date
occurring 18 months
following the date of the Master Servicer Certification, the Seller
shall have
no obligation to provide such document.
(h)
In addition, on the Closing Date, the Seller shall deliver to
the Master Servicer for deposit in the Pool Custodial Account, the
Initial
Deposits relating to the Mortgage Loans.
SECTION 3.
Representations, Warranties and Covenants of Seller.
(a)
The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i)
The Seller is duly organized or formed, as the case
may be, validly existing and in good standing as a legal entity
under the
laws of the United States 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).
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(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 or limited liability company (as applicable) restriction
or any
judgment, order, writ, injunction, decree, law or regulation that
would,
in the Seller's reasonable and good faith judgment, materially and
adversely affect the ability of the Seller to perform its
obligations
under this Agreement or that requires the consent of any third
person to
the execution and delivery of this Agreement by the Seller or the
performance by the Seller of its obligations under this Agreement.
(vi)
Except for the recordation and/or filing of
assignments and other transfer documents with respect to the
Mortgage
Loans, as contemplated by Section 2(d) hereof, no consent,
approval,
authorization or order of, registration or filing with, or notice
to, any
court or governmental agency or body, is required for the
execution,
delivery and performance by the Seller of or compliance by the
Seller with
this Agreement or the consummation of the transactions contemplated
by
this Agreement; and no bulk sale law applies to such transactions.
(vii)
No litigation is pending or, to the best of the
Seller's knowledge, threatened against the Seller that would, in
the
Seller's good faith and reasonable judgment, prohibit its entering
into
this Agreement or materially and adversely affect the performance
by the
Seller of its obligations under this Agreement.
(viii)
No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Seller are pending or
contemplated.
In addition, the Seller hereby further represents and warrants to,
and covenants with, the Purchaser, as of the date hereof, that:
(i)
Under generally accepted accounting principles
("GAAP") and for federal income tax purposes, the Seller will
report the
transfer of the Mortgage Loans to the Purchaser, as provided
herein, as a
sale of the Mortgage Loans to the Purchaser in exchange for the
consideration specified in Section 1 hereof. In connection with the
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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.
(b)
The Seller hereby makes, for the benefit of the Purchaser,
with respect to the 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.
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.
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(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 the
Mortgage Loan (i) that any document constituting a part of clauses
(a)(i)
through (a)(xiii) of the definition of Mortgage File or a document,
if any,
specifically set forth on Exhibit D hereto, has not been executed
(if
applicable) or is missing (a "Document Defect") or (ii) of a breach
of any of
the Seller's representations and warranties made pursuant to
Section 3(b) hereof
(each such breach, a "Breach") relating to any Mortgage Loan, and
such Document
Defect or Breach, as of the date specified in Section 5(b)(i)
hereof, materially
and adversely affects the value of the Mortgage Loan, then such
Document Defect
shall constitute a "Material Document Defect" or such Breach shall
constitute a
"Material Breach", as the case may be. Then, following receipt by
the Seller of
a Seller/Depositor Notification with respect to such Material
Document Defect or
Material Breach, as the case may be, the Seller shall (subject to
Sections 5(f),
(g) and (h) hereof), (A) not later than (1) 90 days after the
Seller and the
Purchaser have agreed upon the existence of such Material Document
Defect or
Material Breach or (2) 60 days after an arbitration panel makes a
binding
determination, in accordance with the provisions of Section 5(i)
hereof, that a
Material Document Defect or Material Breach exists or (B) in the
case of a
Material Document Defect or Material Breach that affects whether
the Mortgage
Loan was, as of the Closing Date, is or will continue to be a
"qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified
Mortgage"),
not later than 90 days following the discovery by any party of such
Material
Document Defect or Material Breach (each such 90-day period
referred to in
clause (A)(1) above, or such 60-day period referred to in clause
(A)(2) above,
or such 90-day period referred to in clause (B) above, as
applicable, is
referred to as the "Initial Resolution Period"): (i) cure such
Material Document
Defect or Material Breach, as the case may be, in all material
respects (which
cure shall include payment of any out-of-pocket expenses that are
reasonably
incurred and directly attributable to pursuing such a claim based
on such
Material Document Defect or Material Breach associated therewith),
or (ii) if
such Material Document Defect or Material Breach, as the case may
be, cannot be
cured within the Initial Resolution Period, repurchase the affected
Mortgage
Loan (or the related Mortgaged Property) from, and in accordance
with the
directions of, the Purchaser or its designee, at a price equal to
the Purchase
Price; provided that if (a) such Material Breach or Material
Document Defect, as
the case may be, is capable of being cured but not within the
applicable Initial
Resolution Period, (b) any such Material Breach or Material
Document Defect, as
the case may be, does not affect whether the Mortgage Loan was, as
of the
Closing Date, is or will continue to be a Qualified Mortgage, (c)
the Seller has
commenced and is diligently proceeding with the cure of such
Material Breach
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or Material Document Defect, as the case may be, within the
applicable Initial
Resolution Period, and (d) the Seller shall have delivered to the
Purchaser a
certification executed on behalf of the Seller by an officer
thereof confirming
that such Material Breach or Material Document Defect, as the case
may be, is
not capable of being cured within the applicable Initial Resolution
Period,
setting forth what actions the Seller is pursuing in connection
with the cure
thereof and stating that the Seller anticipates that such Material
Breach or
Material Document Defect, as the case may be, will be cured within
an additional
period not to exceed, 90 days beyond the end of the Initial
Resolution Period
(in the event the Seller and the Purchaser have agreed upon the
existence of
such Material Document Defect or Material Breach as described under
Section
5(a)(ii)(A)(1)), or 45 days beyond the end of the Initial
Resolution Period (in
the event an arbitration panel has made a binding determination, as
described
under Section 5(a)(ii)(A)(2) hereof, that a Material Document
Defect or Material
Breach exists), then the Seller shall have such additional 90-day
period or
45-day period, as the case may be (each such period, the
"Resolution Extension
Period"), to complete such cure or, failing such, to repurchase the
affected
Mortgage Loan (or the related Mortgaged Property); and provided,
further, that,
if any such Material Document Defect is still not cured after the
Initial
Resolution Period and any such applicable Resolution Extension
Period solely due
to the failure of the Seller to have received a recorded document,
then the
Seller shall be entitled to continue to defer its cure and
repurchase
obligations in respect of such Material Document Defect so long as
the Seller
certifies to the Purchaser every six months thereafter that the
Material
Document Defect is still in effect solely because of its failure to
have
received the recorded document and that the Seller is diligently
pursuing the
cure of such defect (specifying the actions being taken). The
parties
acknowledge that neither delivery of a certification or schedule of
exceptions
to the Seller pursuant to Section 2.02(b) of the Pooling and
Servicing Agreement
or otherwise nor possession of such certification or schedule by
the Seller
shall, in and of itself, constitute delivery of notice of any
Material Document
Defect or Material Breach or knowledge or awareness by the Seller
of any
Material Document Defect or Material Breach.
If, during the period of deferral by the Seller of its cure and
repurchase obligations as contemplated by the last proviso of the
penultimate
sentence of the preceding paragraph, the Mortgage Loan that is the
subject of
the Material Document Defect either becomes a Specially Serviced
Mortgage Loan
or becomes the subject of a proposed or actual assumption of the
obligations of
the related Mortgagor under such Mortgage Loan, then, following
receipt by the
Seller of a Seller/Depositor Notification providing notice of such
event, the
Seller shall cure the subject Material Document Defect within the
time period
specified in such Seller/Depositor Notification. If, upon the
expiration of such
period, the Seller has failed to cure the subject Material Document
Defect, the
Master Servicer or the Special Servicer, as applicable, shall be
entitled (but
not obligated) to perform the obligations of the Seller with
respect to curing
the subject Material Document Defect and, in the event of such an
election, the
Seller shall pay all reasonable actual out-of-pocket costs and
expenses in
connection with the applicable servicer's effecting such cure.
(b)
(i)
Provided that any Seller/Depositor Notification with
respect to a Material Document Defect or Material Breach is
received by the
Seller in accordance with the provisions of the Pooling and
Servicing
Agreement), within 24 months of the Closing Date, the material and
adverse
effect of the related Document Defect or Breach shall be determined
as of the
date hereof. After the expiration of 24 months following the
Closing Date, the
material and
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adverse effect of any Document Defect or Breach that was not the
subject of
another Seller/Depositor Notification, received by the Seller (in
accordance
with the provisions of the Pooling and Servicing Agreement), within
24 months of
the Closing Date, shall be determined as of the date of such
Seller/Depositor
Notification.
(ii)
In the event the Seller is obligated to repurchase any
Mortgage Loan pursuant to this Section 5, such obligation shall
extend to
any successor REO Mortgage Loan with respect thereto as to which
(A) the
subject Material Breach existed as to the subject predecessor
Mortgage
Loan prior to the date the related Mortgaged Property became an REO
Property or within 90 days thereafter, and (B) as to which the
Seller had
received, no later than 90 days following the date on which the
related
Mortgaged Property became an REO Property, a Seller/Depositor
Notification
from the Trustee regarding the occurrence of the applicable
Material
Breach and directing the Seller to repurchase the Mortgage Loan.
(c)
If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by
the Seller as
contemplated by Section 5(a) hereof, then, prior to the subject
repurchase, the
Seller or its designee shall use reasonable efforts, subject to the
terms of the
related Mortgage Loans, to prepare and, to the extent necessary and
appropriate,
have executed by the related Mortgagor and record, such
documentation as may be
necessary to terminate the cross-collateralization between the
Mortgage Loans in
such Cross-Collateralized Group that are to be repurchased, on the
one hand, and
the remaining Mortgage Loans therein, on the other hand, such that
those two
groups of Mortgage Loans are each secured only by the Mortgaged
Properties
identified in the Mortgage Loan Schedule as directly corresponding
thereto;
provided that, if such Cross-Collateralized Group is still subject
to the
Pooling and Servicing Agreement, then no such termination shall be
effected
unless and until (i) the Purchaser or its designee has received
from the Seller
(A) an Opinion of Counsel to the effect that such termination will
not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an
Adverse
Grantor Trust Event with respect to the Grantor Trust and (B)
written
confirmation from each Rating Agency that such termination will not
cause an
Adverse Rating Event to occur with respect to any Class of
Certificates and (ii)
the Controlling Class Representative (if one is acting) has
consented (which
consent shall not be unreasonably withheld and shall be deemed to
have been
given if no written objection is received by the Seller within 10
Business Days
of the Controlling Class Representative's receipt of a written
request for such
consent); and provided, further, that the Seller may, at its
option, purchase
the entire Cross-Collateralized Group in lieu of terminating the
cross-collateralization. All costs and expenses incurred by the
Purchaser or its
designee pursuant to this paragraph shall be included in the
calculation of
Purchase Price for the Mortgage Loan(s) to be repurchased. If the
cross-collateralization of any Cross-Collateralized Group is not or
cannot be
terminated as contemplated by this paragraph, then, for purposes of
(i)
determining whether the subject Breach or Document Defect, as the
case may be,
materially and adversely affects the value of such
Cross-Collateralized Group,
and (ii) the application of remedies, such Cross-Collateralized
Group shall be
treated as a single Mortgage Loan.
(d)
It shall be a condition to any repurchase of the 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
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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 the Mortgage Loan pursuant to this Section 5
shall be on a whole loan, servicing released basis. The Seller
shall have no
obligation to monitor the Mortgage Loans regarding the existence of
a Breach or
Document Defect. It is understood and agreed that the obligations
of the Seller
set forth in this Section 5 constitute the sole remedies available
to the
Purchaser with respect to any Breach or Document Defect.
(f)
Notwithstanding the foregoing, if there exists a Breach of
that portion of the representation or warranty on the part of the
Seller set
forth in, or made pursuant to, paragraph (xlviii) of Exhibit B to
this
Agreement, specifically relating to whether or not the Mortgage
Loan documents
or any particular Mortgage Loan document for any Mortgage Loan
requires the
related Mortgagor to bear the reasonable costs and expenses
associated with the
subject matter of such representation or warranty, as set forth in
such
representation or warranty, then the Purchaser or its designee will
direct the
Seller in writing to wire transfer to the Custodial Account, within
90 days of
receipt of such direction, the amount of any such reasonable costs
and expenses
incurred by the Trust that (i) are due from the Mortgagor, (ii)
otherwise would
have been required to be paid by the Mortgagor if such
representation or
warranty with respect to such costs and expenses had in fact been
true, as set
forth in the related representation or warranty, (iii) have not
been paid by the
Mortgagor, (iv) are the basis of such Breach and (v) constitute
"Covered Costs".
Upon payment of such costs, the Seller shall be deemed to have
cured such Breach
in all respects. Provided that such payment is made, this paragraph
describes
the sole remedy available to the Purchaser regarding any such
Breach, regardless
of whether it constitutes a Material Breach, and the Seller shall
not be
obligated to otherwise cure such Breach or repurchase the affected
Mortgage Loan
under any circumstances. Amounts deposited in the Pool Custodial
Account
pursuant to this paragraph shall constitute "Liquidation Proceeds"
for all
purposes of the Pooling and Servicing Agreement (other than Section
3.11(c) of
the Pooling and Servicing Agreement).
(g)
Subject to Section 5(f) hereof and the last three sentences of
this paragraph, if the Seller determines that a Material Breach
(other than a
Material Breach of a representation or warranty on the part of the
Seller set
forth in and made pursuant to paragraph (xvii) of Exhibit B to this
Agreement)
or a Material Document Defect with respect to the Mortgage Loan is
not capable
of being cured in accordance with Section 5(a) hereof, then in lieu
of
repurchasing such Mortgage Loan the Seller may, at its sole option,
pay a cash
amount equal to the loss of value (each such payment, a "Loss of
Value Payment")
with respect to such Mortgage Loan, which loss of value is directly
attributed
to such Material Breach or Material Document Defect, as the case
may be. The
amount of each such Loss of Value Payment shall be determined
either (i) by
mutual agreement of the Special Servicer on behalf of the Trust
with respect to
the subject Material Breach or Material Document Defect, as the
case may be, and
the Seller, or (ii) by an arbitration panel pursuant to a binding
arbitration
proceeding in accordance
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with Section 5(i) hereof; provided that, in the event there is an
arbitration
proceeding for determining the existence of a Material Breach or a
Material
Document Defect with respect to any Mortgage Loan, such arbitration
proceeding
must also include a determination of the amount of the loss of
value to such
Mortgage Loan directly attributed to such Material Breach or such
Material
Document Defect, as the case may be. Provided that such payment is
made, this
paragraph describes the sole remedy available to the Purchaser
regarding any
such Material Breach or Material Document Defect and the Seller
shall not be
obligated to otherwise cure such Material Breach or Material
Document Defect or
repurchase the affected Mortgage Loan based on such Material Breach
or Material
Document Defect under any circumstances. Notwithstanding the
foregoing
provisions of this Section 5(g), if 95% or more of the loss of
value to the
Mortgage Loan was caused by a Material Breach or Material Document
Defect, which
Material Breach or Material Document Defect is not capable of being
cured, this
Section 5(g) shall not apply and the Seller shall be obligated to
repurchase the
affected Mortgage Loan at the applicable Purchase Price in
accordance with
Section 5(a) hereof. Furthermore, the Seller shall not have the
option of
delivering Loss of Value Payments in connection with any Material
Breach
relating to the 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 an arbitration panel pursuant to a binding arbitration
proceeding in
accordance with Section 5(i) hereof, then such Loss of Value
Payment shall also
include the payment of any costs and expenses (including costs
incurred in
establishing the amount of any related loss of value to the
Mortgage Loan,
including reasonable legal fees) that are reasonably incurred in
good faith by
the Master Servicer, the Special Servicer and/or the Trustee (on
behalf of the
Trust) in enforcing the rights of the Trust against the Seller with
respect to
the subject Material Breach or Material Document Defect, as the
case may be;
provided that, that in the event the Seller tenders a loss of value
payment in a
specified amount in connection with a Material Breach or Material
Document
Defect, as the case may be, prior to the institution of arbitration
proceedings
and that offer is rejected and an amount equal to or less than the
loss of value
payment originally tendered by the Seller is ultimately determined
by an
arbitration panel pursuant to a binding arbitration proceeding in
accordance
with Section 5(i) hereof to be the actual amount of the Loss of
Value Payment
attributed to such Material Breach or Material Document Defect, as
the case may
be, then that Loss of Value Payment shall not include the payment
of any costs
or expenses incurred in enforcing the rights of the Trust against
the Seller
with respect to the subject Material Breach or Material Document
Defect, as the
case may be; provided, further, that if the Special Servicer
request a loss of
value payment from the Seller of a specified amount in connection
with a
Material Breach or Material Document Defect, as the case may be,
and the Seller
refuses to pay that amount and an amount equal to or greater than
the loss of
value payment originally requested by the Special Servicer is
ultimately
determined by an arbitration panel pursuant to a binding
arbitration proceeding
in accordance with Section 5(i) hereof to be the actual Loss of
Value Payment
attributable to such Material Document Defect or Material Breach,
then that Loss
of Value Payment shall also include the payment of any costs or
expenses
reasonably incurred in good faith in enforcing the rights of the
Trust against
the Seller with respect to the subject Material Breach or Material
Document
Defect, as the case may be; and provided, further, that, if the
Seller tenders a
loss of value payment in connection with a Material Breach or
Material
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Document Defect, as the case may be, in a specified amount, and the
Special
Servicer rejects such tender and requests a greater loss of value
payment
amount, and an amount in between the respective amounts tendered
and requested
is ultimately determined by an arbitration panel pursuant to a
binding
arbitration proceeding in accordance with Section 5(i) hereof to be
the actual
Loss of Value Payment attributable to such Material Breach or
Material Document
Defect, as the case may be, then that Loss of Value Payment shall
also include
the payment of an amount equal to the product of (i) all costs and
expenses
reasonably incurred in connection with that arbitration proceeding,
multiplied
by (ii) a fraction, the numerator of which is the excess of the
amount
determined by that arbitration proceeding over the amount tendered
by the
Seller, and the denominator of which is the excess of the amount
requested by
the Special Servicer over the amount tendered by the Seller.
Notwithstanding the
foregoing, in the event any Loss of Value Payment is determined by
the parties
hereto by mutual agreement (and not by an arbitration proceeding),
that Loss of
Value Payment shall not include any costs and expenses incurred by
the Master
Servicer, the Special Servicer or the Trustee unless such costs and
expenses
were specifically included in such mutual agreement.
(h)
Notwithstanding the foregoing, if there exists a Material
Breach of the representation or warranty on the part of the Seller
set forth in
and made pursuant to paragraph (xvii) of Exhibit B to this
Agreement, and the
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 the Mortgage Loan is a Qualified
Mortgage, and
without otherwise causing an Adverse REMIC Event or an Adverse
Grantor Trust
Event, then such breach will be cured and the Seller will not be
obligated to
repurchase or otherwise remedy such Breach.
(i)
The parties hereto agree that any controversy or claim (a
"Dispute") arising under Section 5(a), Section 5(b) and/or Section
5(g) of this
Agreement shall be resolved in accordance with the following
Mediation/Arbitration procedures in this Section 5(i).
If the Seller receives a Seller/Depositor Notification pursuant to
Section 5(a) of this Agreement regarding the alleged existence of a
Material
Document Defect or Material Breach and requesting the Seller to
cure or
repurchase the affected Mortgage Loan in connection therewith (a
"Notice"), and
the Seller does not agree upon the existence of such Material
Document Defect or
Material Breach within 90 days of receiving such Notice, then,
unless otherwise
agreed to by the parties involved in the Dispute, that Dispute
shall be
submitted to non-binding mediation in accordance with the
provisions of this
paragraph; provided, that if the Seller is proceeding to cure the
subject
Material Document Defect or Material Breach, then that Dispute
shall not be
submitted to mediation until the expiration of the related
Resolution Extension
Period and the failure of the Seller to complete such cure (unless
otherwise
agreed to by the parties involved in the Dispute). Following the
90-day period
referred to in the preceding sentence and subject to the preceding
proviso,
either party to this Agreement that is involved in the Dispute may
send a
written letter (a "Mediation Letter") to the other party to this
Agreement that
it wishes the mediation process to begin between the sender and the
recipient of
such Mediation Letter. Following receipt of a Mediation Letter, a
mediator(s)
shall be selected by agreement of the parties to the mediation. If
such parties
cannot agree on a mediator, then the mediation shall be conducted
by three
mediators, one of which shall be selected by the Seller and one of
which shall
be selected by the Purchaser or its assignee. Each of the parties
to the
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mediation shall submit the name of the person it has selected to
serve as a
mediator to the opposing party within 10 days of the date of the
Mediation
Letter. If either party fails to submit the name of its selected
mediator within
10 days of the date of the Mediation Letter, the other party shall
have the
right to select the second mediator in addition to its own mediator
(provided
that such party has submitted the name of its selected mediator
within 10 days
of the date of the Mediation Letter). The two mediators selected by
the
party(ies) shall appoint a third mediator within 20 days of the
date of the
Mediation Letter or such longer time period as agreed to by the
parties to the
mediation. Any mediator(s) so designated must be acceptable to both
the Seller
and the Purchaser or its assignee. Any mediators appointed or
selected pursuant
to the provisions of this paragraph must be experienced
professionals in the
CMBS industry.
Any mediation related to a particular Dispute and commenced in
accordance with the preceding paragraph must be completed within 90
days of the
date of the Mediation Letter (or a longer period, if the parties to
the
mediation agreed to extend the mediation). Any mediation referred
to in this
Section 5(i) shall be conducted in the manner specified by the
mediator(s) and
agreed upon by the Seller and the Purchaser or its assignee and any
such
mediation shall be conducted in New York City to the exclusion of
all other
locations (unless otherwise agreed to by the parties to the
mediation). During
the mediation process, the parties to the mediation shall discuss
their
differences voluntarily and in good faith and attempt, with the
assistance of
the mediator(s) as a facilitator of the negotiations, to reach an
amicable
resolution of the Dispute. The mediation will be treated as a
settlement
discussion and therefore will be confidential. No mediator selected
in
accordance with this Section 5(i) may testify for either party in
any later
proceeding relating to the Dispute. No recording or transcript
shall be made of
the mediation proceedings. The fees and expenses of all mediator(s)
shall be
shared equally by the parties to the mediation; provided, that the
party to the
mediation that is acting on behalf of the Trust in accordance with
the
provisions of this Section 5(i) shall be entitled to reimbursement
or
indemnification by the Trust Fund for such fees and expenses if and
to the
extent permitted under the Pooling and Servicing Agreement.
Notwithstanding anything to the contrary herein, no party shall be
required to agree to a Dispute resolution pursuant to mediation and
no decision
or resolution of a mediator or mediators shall be binding on any
party unless
such decision or resolution is expressly agreed to by such party.
In the event
the parties involved in the Dispute have not agreed to a Dispute
resolution
pursuant to mediation at the termination of the mediation, then
that Dispute
will be settled by arbitration in accordance with the succeeding
paragraphs of
this Section 5(i).
If a Dispute has not been resolved within 90 days of the date of
the
Mediation Letter (or such shorter or longer period as is expressly
agreed to by
the parties to the mediation), the mediation shall terminate and
the Dispute
will be settled by arbitration. Following the date of termination
of mediation,
which shall be the date occurring 90 days after the date of the
Mediation Letter
unless otherwise expressly agreed to by the parties to the
mediation,
arbitration may be commenced by either party to this Agreement
involved in the
Dispute sending a written notice to the other party to this
Agreement involved
in the Dispute that it wishes the arbitration process to begin with
respect to
the Dispute between the sender and the recipient of such written
notice. The
date any such party receives written notice in accordance with this
Section 5(i)
from another party that such party wishes to commence arbitration
shall be
referred to as the "Arbitration Commencement Date". Any arbitration
hereunder
shall be conducted in accordance
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with the provisions of this Agreement and the American Arbitration
Association
Rules for Large Complex Commercial Disputes ("AAA Rules"), but
shall not be
conducted by the American Arbitration Association ("AAA").
Discovery will be
permitted in connection with the arbitration in accordance with the
AAA Rules.
In the event of a conflict, the provisions of this Agreement will
control. Such
arbitration shall be conducted before a panel of three arbitrators,
regardless
of the size of the Dispute. The arbitration panel shall consist of
one person
selected by the Seller and one person selected by the Purchaser or
its assignee.
Each such party shall submit the name of the person it has selected
to serve as
an arbitrator to the other party within 30 days of the Arbitration
Commencement
Date (or such longer period as is expressly agreed to by the
parties to the
arbitration). If either such party fails to submit the name of its
selected
arbitrator within 30 days of the Arbitration Commencement Date,
then the other
such party shall have the right to select the second arbitrator in
addition to
its own arbitrator (provided that such party has submitted the name
of its
selected arbitrator within 30 days of the Arbitration Commencement
Date). The
two arbitrators designated in accordance with the two preceding
sentences shall
appoint a third arbitrator within 45 days of the Arbitration
Commencement Date
(or such longer period as is expressly agreed to by the parties to
the
arbitration). All arbitrators appointed or selected pursuant to the
provisions
of this paragraph must be experienced professionals in the CMBS
industry. The
third arbitrator shall be an Independent person who has not
previously been
employed by either party and does not have a direct or indirect
interest in
either party or the subject matter of the arbitration. The two (2)
arbitrators
appointed by the parties to the arbitration are not required to be
neutral and
it shall not be grounds for removal of either of such arbitrators
or for
vacating an arbitration award that either of such arbitrators has
past or
present relationships with the party that appointed such
arbitrator. No
potential arbitrator may serve on the panel unless he or she has
agreed in
writing to abide and be bound by the terms and provisions of this
Agreement and
the AAA Rules and to keep confidential the terms of any arbitration
proceeding
related to this Agreement and the terms of any discussion,
negotiation,
decision, agreement or resolution in connection therewith.
Any issue concerning the extent to which any Dispute is subject to
arbitration, or concerning the applicability, interpretation, or
enforceability
of these procedures, including any contention that all or part of
these
procedures are invalid or unenforceable, shall be resolved by the
arbitrators.
In no event, notwithstanding that any provision of this Agreement
is held to be
invalid or unenforceable, shall the arbitrators have the power to
make an award
or impose a remedy that could not be made or imposed by a court
deciding the
matter in the same jurisdiction. In no event shall the arbitrators
have the
power to make an award or impose a remedy that is not contemplated
by, or
conflicts with the terms and provisions of, this Agreement or the
Pooling and
Servicing Agreement (other than any term or provision of this
Agreement or the
Pooling and Servicing Agreement that is held to be invalid or
unenforceable).
Without limiting the foregoing, the arbitrators shall have no
authority to award
treble, consequential or punitive damages of any type under any
circumstances,
whether or not such damages may be available under the AAA Rules or
any other
act or law. Subject to the provisions of this Agreement, the result
of the
arbitration will be binding on the parties involved in the Dispute,
and judgment
on the arbitrators' award may be entered, subject to the provisions
of Section
15 of this Agreement, in any court of competent jurisdiction.
All mediations and arbitrations shall be conducted in New York City
to the exclusion of all other locations (unless otherwise expressly
agreed to by
the parties to the subject
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mediation or arbitration, as applicable). The party to an
arbitration that is
acting on behalf of the Trust in accordance with the provisions of
this Section
5(i) shall be entitled to reimbursement or indemnification by the
Trust Fund for
the fees and expenses incurred in connection therewith if and to
the extent
permitted under the Pooling and Servicing Agreement.
The parties to this Agreement hereby agree to waive any right to
trial by jury fully to the extent that any such right shall now or
hereafter
exist with regard to the rights and remedies contained in this
Section 5;
provided, that if (i) any party to an arbitration governed by this
Section 5(i)
fails to abide by the rules or deadlines for that arbitration (as
such deadlines
may be extended by express agreement of the parties to that
arbitration), or
(ii) the applicable appointed arbitrators determine that the
subject Dispute
cannot be resolved through arbitration either because the AAA Rules
are
inapplicable to the Dispute and/or the Federal Arbitration Act is
inapplicable
to the Dispute or for any other reason, then the other party (in
the case of
clause (i)) or any party (in the case of clause (ii)) to this
Agreement may in
its sole option, file a complaint to resolve the Dispute through a
legal
proceeding and in accordance with the provision contained in
Section 15 hereof.
SECTION 6.
[Reserved.]
SECTION 7.
Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Thacher Proffitt & Wood LLP, 2 World
Financial Center,
New York, New York 10281 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(a)
All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this
Agreement, and all
of the representations and warranties of the Purchaser set forth in
Section 4 of
this Agreement, shall be true and correct in all material respects
as of the
Closing Date;
(b)
Insofar as it affects the obligations of the Seller hereunder,
the Pooling and Servicing Agreement shall be in a form mutually
acceptable to
the Purchaser and the Seller;
(c)
All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to
the
Purchaser, shall be duly executed and delivered by all signatories
as required
pursuant to the respective terms thereof;
(d)
The Seller shall have delivered and released to the Trustee
(or a Custodian on its behalf), the Master Servicer and the Special
Servicer all
documents and funds required to 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;
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(f)
The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement; and
(g)
Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with
its terms.
All parties hereto agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the
Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8.
Closing Documents.
The Closing Documents shall consist of the following:
(a)
This Agreement duly executed by the Purchaser and the Seller;
(b)
The Pooling and Servicing Agreement duly executed by the
parties thereto;
(c)
The Indemnification Agreement duly executed by the parties
thereto;
(d)
Certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which
the initial
Purchaser, the Underwriters and the Placement Agents may rely, to
the effect
that: (i) the representations and warranties of the Seller in this
Agreement and
in the Indemnification Agreement are true and correct in all
material respects
at and as of the Closing Date with the same effect as if made on
such date; and
(ii) the Seller has, in all material respects, complied with all
the agreements
and satisfied all the conditions on its part that are required
under this
Agreement to be performed or satisfied at or prior to the Closing
Date;
(e)
An Officer's Certificate from an officer of the Seller, in his
or her individual capacity, dated the Closing Date, and upon which
the initial
Purchaser, the Underwriters and the Placement Agents may rely, to
the effect
that each individual who, as an officer or representative of the
Seller signed
this Agreement, the Indemnification Agreement or any other document
or
certificate delivered on or before the Closing Date in connection
with the
transactions contemplated herein or in the Indemnification
Agreement, was at the
respective times of such signing and delivery, and is as of the
Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on
such documents
and certificates are their genuine signatures;
(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 corporate existence of the Seller, issued by
the
Comptroller of the Currency not earlier than 10 days prior to the
Closing Date;
(g)
A favorable opinion of Cadwalader, Wickersham & Taft ("CWT"),
special counsel to the Seller, substantially in the form attached
hereto as
Exhibit C-1, dated the Closing
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Date and addressed to the initial Purchaser, the Underwriters, the
Placement
Agents, the Rating Agencies and, upon request, the other parties to
the Pooling
and Servicing Agreement, together with such other opinions of CWT
as may be
required by the Rating Agencies in connection with the transactions
contemplated
hereby;
(h)
An Officer's Certificate from an officer of the Seller, in his
or her individual capacity, delivered in connection with the
opinion of CWT to
be delivered pursuant to Section 8(g) hereof, in form and substance
satisfactory
to the addressees of such opinion and upon which such addressees
may rely;
(i)
In connection with the initial issuance of the Seller's
Residual Interest Certificates, a Transfer Affidavit and Agreement
in the form
contemplated by the Pooling and Servicing Agreement from Seller and
from the
transferee of the Seller;
(j)
In the event any of the Certificates are mortgage related
securities within the meaning of the Secondary Mortgage Market
Enhancement Act
of 1984, as amended, a Certificate of the Seller regarding
origination of the
Mortgage Loans by specified originators as set forth in Section
3(a)(41) of the
Securities Exchange Act of 1934, as amended; and
(k)
Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9.
Costs.
The Seller shall pay its Allocable Share of all reasonable
out-of-p
