UBS MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of February 15, 2007
(the
"Agreement"), between UBS Real Estate Investments 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
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 (the "Master
Servicer"),
Midland Loan Services, 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 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 Loans identified on the schedule (the "Mortgage Loan
Schedule") annexed
hereto as Exhibit A. The Mortgage Loan Schedule may be amended to
reflect the
actual Mortgage Loans accepted by
the Purchaser pursuant to the terms hereof. The Mortgage Loans will
have an
aggregate principal balance of $1,100,746,488 (the "Initial UBS
Pool Balance")
as of the close of business on the Cut-off Date, after giving
effect to any and
all payments of principal due thereon on or before such date,
whether or not
received. The purchase and sale of the Mortgage Loans shall take
place on
February 27, 2007 or such other date as shall be mutually
acceptable to the
parties hereto (the "Closing Date"). The consideration for the
Mortgage Loans
shall consist of: (A) a cash amount equal to a percentage (mutually
agreed upon
by the parties hereto) of the Initial UBS Pool Balance, plus
interest accrued on
each Mortgage Loan at the related Mortgage Rate (net of the related
Administrative Cost Rate), for the period from and including
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; and (B) a 33.68400% Percentage Interest in each of
the Class R-I,
Class R-II and Class R-III Certificates (all such Residual Interest
Certificates, the "Seller's Residual Interest Certificates").
SECTION 2.
Conveyance of Mortgage Loans.
(a)
Effective as of the Closing Date, subject only to receipt of
the purchase price referred to in Section 1 hereof and satisfaction
or waiver of
the conditions to closing set forth in Section 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 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) or, in the case of an Outside Serviced Trust Mortgage
Loan, the
applicable Outside Servicer, all unapplied Escrow Payments and
Reserve Funds in
the possession or under the control of the Seller that relate to
the Mortgage
Loans. In addition, the Seller shall, in the case of each Mortgage
Loan that is
an Outside Serviced Trust Mortgage Loan, deliver to and deposit
with the Master
Servicer, within 45 days of the Closing Date, a copy of the
mortgage file that
was delivered to the related Outside Trustee under the related Non
Trust
Mortgage Loan Securitization Agreement or to a custodian under a
custodial
agreement that relates solely to such Outside Serviced Trust
Mortgage Loan, as
applicable.
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(d)
The Seller shall, through an Independent third party (the
"Recording Agent") retained by it, as and in the manner provided in
the Pooling
and Servicing Agreement (and in any event within 45 days following
the later of
the Closing Date and the date on which all necessary recording
information is
available to the Recording Agent), cause (i) each assignment of
Mortgage and
each assignment of Assignment of Leases, in favor of, and delivered
as part of
the related Mortgage File to the Trustee, to be submitted for
recordation in the
appropriate public office for real property records, and (ii) such
assignments
to be delivered to the Trustee following their return by the
applicable public
recording office, with copies of any such returned assignments to
be delivered
by the Trustee to the Master Servicer, at the expense of the
Seller, at least
every 90 days after the Closing Date (or at additional times upon
the request of
the Master Servicer if reasonably necessary for the ongoing
administration
and/or servicing of the related Mortgage Loan by the Master
Servicer); provided
that, in those instances where the public recording office retains
the original
assignment of Mortgage or assignment of Assignment of Leases, a
certified copy
of the recorded original shall be forwarded to the Trustee. If any
such document
or instrument is lost or returned unrecorded because of a defect
therein, then
the Seller shall prepare a substitute therefor or cure such defect
or cause such
to be done, as the case may be, and the Seller shall deliver such
substitute or
corrected document or instrument to the Trustee (or, if the
Mortgage Loan is
then no longer subject to the Pooling and Servicing Agreement, to
the then
holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such recording and delivery contemplated in the preceding
paragraph, including,
without limitation, any out-of-pocket costs and expenses that may
be incurred by
the Trustee in connection with any such recording or delivery
performed by the
Trustee at the Seller's request and the fees of the Recording
Agent.
Pursuant to the Pooling and Servicing Agreement and a letter
agreement dated February 27, 2007 (the "Filing Letter Agreement")
between
Anthracite Capital Inc. (the "Payee"), the Depositor, the UBS
Mortgage Loan
Seller and the Trustee, the Trustee, through a third party (the
"Filing Agent")
retained by it, as and in the manner provided in the Pooling and
Servicing
Agreement and at the expense of the Payee (and in any event within
45 days
following the later of the Closing Date and the date on which all
necessary
filing information is available to the Filing Agent), is required
to cause (i)
each assignment of Uniform Commercial Code financing statements
prepared by the
Seller, in favor of, and delivered as part of the related Mortgage
File to the
Trustee, to be submitted for filing in the appropriate public
office, and (ii)
such assignments to be delivered to the Trustee following their
return by the
applicable public filing office, with copies of any such returned
assignments to
be delivered by the Trustee to the Master Servicer, at the expense
of the
Seller, at least every 90 days after the Closing Date (or at
additional times
upon the request of the Master Servicer if reasonably necessary for
the ongoing
administration and/or servicing of the related Mortgage Loan by the
Master
Servicer). The Seller hereby agrees to reasonably cooperate with
the Trustee and
the Filing Agent with respect to the filing of the assignments of
Uniform
Commercial Code financing statements as described in this paragraph
and to
forward to the Trustee filing confirmation, if any, received in
connection with
such Uniform Commercial Code financing statements filed in
accordance with this
paragraph. Notwithstanding the foregoing, to the extent the Trustee
provides the
Payee, pursuant to the Filing Letter Agreement, with an invoice for
the expenses
(i) reasonably to be incurred in connection with the filings
referred to in this
paragraph and (ii) required to be paid by
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the Payee pursuant to the Filing Letter Agreement, and such
expenses are not
paid by the Payee in advance of such filings, the Trustee, pursuant
to the
Pooling and Servicing Agreement and the Filing Letter Agreement and
at the
expense of the Seller, shall only be required to cause the filing
agent to file
the assignments of such Uniform Commercial Code financing
statements with
respect to Mortgage Loans secured by hotel or hospitality
properties.
(e)
With respect to any Mortgage Loan (other than an Outside
Serviced Trust Mortgage Loan), the following documents (other than
any document
that constitutes part of the Mortgage File for such Mortgage Loan):
copies of
any final appraisal, final survey, final engineering report, final
environmental
report, opinion letters of counsel to the related mortgagor
delivered in
connection with the closing of such Mortgage Loan, escrow
agreements, 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.
(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 (other than an Outside Serviced Trust
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 (other than an Outside Serviced Trust 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 (other than an Outside
Serviced Trust
Mortgage Loan) with a related letter of credit, the Master
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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 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 a Mortgage Loan required to be delivered
pursuant to or
as contemplated by Section 2(e) hereof prior to the date occurring
18 months
following the date of the Master Servicer Certification, the Seller
shall have
no obligation to provide such document.
(i)
In addition, on the Closing Date, the Seller shall deliver to
the Master Servicer for deposit in the Pool Custodial Account, the
Initial
Deposits relating to the Mortgage Loans.
SECTION 3.
Representations, Warranties and Covenants of Seller.
(a)
The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i)
The Seller is duly organized or formed, as the case
may be, validly existing and in good standing as a legal entity
under the
laws of the State of Delaware and possesses all requisite
authority,
power, licenses, permits and franchises to carry on its 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
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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
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
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fair consideration for the Mortgage Loans. The Seller will be
solvent at
all relevant times prior to, and will not be rendered insolvent by,
the
sale of the Mortgage Loans to the Purchaser. The Seller is not
selling the
Mortgage Loans to the Purchaser with any intent to hinder, delay or
defraud any of the creditors of the Seller. After giving effect to
its
transfer of the Mortgage Loans to the Purchaser, as provided
herein, the
value of the Seller's assets, either taken at their present fair
saleable
value or at fair valuation, will exceed the amount of the Seller's
debts
and obligations, including contingent and unliquidated debts and
obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and
conduct
its business. The Mortgage Loans do not constitute all or
substantially
all of the assets of the Seller. The Seller does not intend to, and
does
not believe that it will, incur debts or obligations beyond its
ability to
pay such debts and obligations as they mature.
(ii)
The Seller will acquire the Seller's Residual Interest
Certificates for its own account and not with a view to, or sale or
transfer in connection with, any distribution thereof, in whole or
in
part, in any manner that would violate the Securities Act or any
applicable state securities laws.
(iii)
The Seller understands that (A) the Seller's Residual
Interest Certificates have not been and will not be registered
under the
Securities Act or registered or qualified under any applicable
state
securities laws, (B) neither the Purchaser nor any other party is
obligated so to register or qualify the Seller's Residual Interest
Certificates and (C) neither the Seller's Residual Interest
Certificates
nor any security issued in exchange therefor or in lieu thereof may
be
resold or transferred unless it is (1) registered pursuant to the
Securities Act and registered or qualified pursuant to any
applicable
state securities laws or (2) sold or transferred in a transaction
which is
exempt from such registration and qualification and the Certificate
Registrar has received the certifications and/or opinions of
counsel
required by the Pooling and Servicing Agreement.
(iv)
The Seller understands that it may not sell or
otherwise transfer the Seller's Residual Interest Certificates, any
security issued in exchange therefor or in lieu thereof or any
interest in
the foregoing except in compliance with the provisions of Section
5.02 of
the Pooling and Servicing Agreement, which provisions it has or, as
of the
Closing Date, will have carefully reviewed, and that the Seller's
Residual
Interest Certificates will bear legends that identify the transfer
restrictions to which such Certificates are subject.
(v)
Neither the Seller nor anyone acting on its behalf has
(A) offered, transferred, pledged, sold or otherwise disposed of
any
Seller's Residual Interest Certificate, any interest in a Seller's
Residual Interest Certificate or any other similar security to any
person
in any manner, (B) solicited any offer to buy or accept a transfer,
pledge
or other disposition of any Seller's Residual Interest Certificate,
any
interest in a Seller's Residual Interest Certificate or any other
similar
security from any person in any manner, (C) otherwise approached or
negotiated with respect to any Seller's Residual Interest
Certificate, any
interest in a Seller's Residual Interest Certificate or any other
similar
security with any person in any manner, (D) made any general
solicitation
by means of general advertising or in any other manner, or (E)
taken any
other action, that
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(in the case of any of the acts described in clauses (A) through
(E)
above) would constitute a distribution of the Seller's Residual
Interest
Certificates under the Securities Act, would render the disposition
of the
Seller's Residual Interest Certificates a violation of Section 5 of
the
Securities Act or any state securities law or would require
registration
or qualification of the Seller's Residual Interest Certificates
pursuant
thereto. The Seller will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the
foregoing
sentence with respect to the Seller's Residual Interest
Certificates, any
interest in the Seller's Residual Interest Certificates or any
other
similar security.
(vi)
The Seller has been furnished with all information
regarding (A) the Purchaser, (B) the Seller's Residual Interest
Certificates and distributions thereon, (C) the nature, performance
and
servicing of the Other Loans, (D) the Pooling and Servicing
Agreement and
the Trust Fund, and (E) all related matters, that it has requested.
(vii)
The Seller is either (a) a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act or
(b) an
"accredited investor" as defined in any of paragraphs (1), (2), (3)
and
(7) of Rule 501(a) under the Securities Act or an entity in which
all its
equity owners are "accredited investors" as defined in such
paragraphs and
has such knowledge and experience in financial and business matters
as to
be capable of evaluating the merits and risks of an investment in
the
Seller's Residual Interest Certificates. The Seller has sought such
accounting, legal and tax advice as it has considered necessary to
make an
informed investment decision; and the Seller is able to bear the
economic
risks of such an investment and can afford a complete loss of such
investment.
(viii)
The Seller is not a Plan and is not directly or
indirectly acquiring the Seller's Residual Interest Certificates on
behalf
of, as named fiduciary of, as trustee of or with assets of a Plan.
(ix)
The Seller is a United States Tax Person and is not a
Disqualified Organization.
(b)
The Seller hereby makes, for the benefit of the Purchaser,
with respect to each Mortgage Loan, as of the Closing Date or as of
such other
date expressly set forth therein, each of the representations and
warranties set
forth on Exhibit B hereto.
(c)
The Seller intends to transfer the Seller's Residual Interest
Certificates to Merrill Lynch, Pierce, Fenner & Smith
Incorporated on or about
the Closing Date; and, in connection therewith, the Seller will
comply with all
of the requirements of Section 5.02 of the Pooling and Servicing
Agreement, as
in effect on the Closing Date, and applicable law. The Seller
hereby directs the
Purchaser to cause the Seller's Residual Interest Certificates to
be registered
in the name of Merrill Lynch, Pierce, Fenner & Smith
Incorporated upon initial
issuance.
SECTION 4.
Representations and Warranties of the Purchaser.
In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants for the benefit of the
Seller as of the
date hereof that:
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(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 or obtains actual
knowledge with respect to any Mortgage Loan (i) that any document
constituting a
part of clauses (a)(i) through (a)(xiii) (or, in the case of an
Outside Serviced
Trust Mortgage Loan, clause(b)(i)) 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. In
the event
the Seller obtains actual knowledge of a Material Document Defect
or Material
Breach, then the Seller
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shall deliver written notification to the Trustee with respect
thereto. 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 a Mortgage Loan was, as of the Closing
Date, is or
will continue to be a "qualified mortgage" within the meaning of
the REMIC
Provisions (a "Qualified Mortgage"), not later than 90 days
following the
discovery by any party of such Material Document Defect or Material
Breach (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 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
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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
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 subject Mortgage
Loan.
(c)
If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by
the Seller as
contemplated by Section 5(a) 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-
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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 a Mortgage Loan
by the Seller pursuant to this Section 5 that the Purchaser shall
have executed
and delivered such instruments of transfer or assignment then
presented to it by
the Seller (or as otherwise required to be prepared, executed and
delivered
under the Pooling and Servicing Agreement), in each case without
recourse, as
shall be necessary to vest in the Seller the legal and beneficial
ownership of
such Mortgage Loan (including any property acquired in respect
thereof or
proceeds of any insurance policy with respect thereto), to the
extent that such
ownership interest was transferred to the Purchaser hereunder. If
any Mortgage
Loan is to be repurchased as contemplated by this Section 5, the
Seller shall
amend the Mortgage Loan Schedule to reflect the removal of such
Mortgage Loan
and shall forward such amended schedule to the Purchaser.
(e)
Any repurchase of a Mortgage Loan pursuant to this Section 5
shall be on a whole loan, servicing released basis. The Seller
shall have no
obligation to monitor the Mortgage Loans regarding the existence of
a Breach or
Document Defect. It is understood and agreed that the obligations
of the Seller
set forth in this Section 5 constitute the sole remedies available
to the
Purchaser with respect to any Breach or Document Defect.
(f)
Notwithstanding the foregoing, if there exists a Breach of
that portion of the representation or warranty on the part of the
Seller 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
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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 a Mortgage Loan is
not capable of
being cured in accordance with Section 5(a) hereof, then in lieu of
repurchasing
such Mortgage Loan the Seller may, at its sole option, pay a cash
amount equal
to the loss of value (each such payment, a "Loss of Value Payment")
with respect
to such Mortgage Loan, which loss of value is directly attributed
to such
Material Breach or Material Document Defect, as the case may be.
The amount of
each such Loss of Value Payment shall be determined either (i) by
mutual
agreement of the Special Servicer on behalf of the Trust with
respect to the
subject Material Breach or Material Document Defect, as the case
may be, and the
Seller, or (ii) by an arbitration panel pursuant to a binding
arbitration
proceeding in accordance 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 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) hereof. 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.
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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 subject
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, 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 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
subject Mortgage Loan becomes a Qualified Mortgage prior to the
expiration of
the Initial Resolution Period applicable to a
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Material Document Defect or Material Breach that affects whether a
Mortgage Loan
is a Qualified Mortgage, and without otherwise causing an Adverse
REMIC Event or
an Adverse Grantor Trust Event, then such breach will be cured and
the Seller
will not be obligated to repurchase or otherwise remedy such
Breach.
(i)
The parties hereto agree that any controversy or claim (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
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
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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 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
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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 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 either 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.
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SECTION 6.
Defeasance Serviced Trust Mortgage Loans; Early
Defeasance Trust Mortgage Loans.
(a)
With respect to any Mortgage Loan that is a Defeasance
Serviced Trust Mortgage Loan, to the extent the related Mortgage
Loan documents
expressly grant the lender or its designee the right to appoint a
successor
borrower (or words of similar import) thereunder in connection with
a
defeasance, the Purchaser hereby designates the Seller as its
designee with
respect to the exercise of, and hereby grants to the Seller the
right, in its
capacity as designee of the Purchaser as holder of the subject
Serviced Trust
Mortgage Loan, to exercise, the right and/or obligation of the
lender under the
related Mortgage Loan documents to appoint a "successor borrower"
(as defined
under the related Mortgage Loan documents) or words of similar
import, to hold
and pledge the related Defeasance Collateral in the event a related
Mortgagor
exercises its right pursuant to the related Mortgage Loan documents
to defease
the subject Serviced Trust Mortgage Loan and obtain the release of
all or a
portion of the related Mortgaged Property from the lien of the
related Mortgage
(provided that such rights and/or obligations as successor borrower
shall be
exercised in accordance with customary terms and costs). In
connection with the
foregoing, if the Purchaser or its assignee, as holder of the
subject Defeasance
Serviced Trust Mortgage Loan, receives written notice from the
related Mortgagor
that it intends to defease the subject Serviced Trust Mortgage Loan
in
accordance with the related Mortgage Loan documents, then the
Purchaser or its
assignee, as the case may be, shall send a copy of such written
notice to the
Seller or (if the Seller has notified the Purchaser or such
assignee, as the
case may be, in writing that it has appointed a designee and has
provided such
party with such designee's contact information for any notice
required in
connection therewith) the Seller's designee, promptly after receipt
of such
written notice. If, however, the Master Servicer, in accordance
with the
Servicing Standard, determines that neither the Seller nor its
designee is
performing the duties related to the appointment of a successor
borrower in a
timely manner and/or in accordance with the provisions of the
related Mortgage
Loan documents (after the Seller and such designee having been
provided with
written notice in accordance with this paragraph and a reasonable
period of time
(which shall not be less than five (5) Business Days) to perform
such duties),
then the Master Servicer (or a designee of the Master Servicer)
shall, in
accordance with Section 3.20(k) of the Pooling and Servicing
Agreement, itself
perform those obligations under the related Mortgage Loan documents
in
accordance with the Servicing Standard, applicable law and the
related Mortgage
Loan documents, and thereupon the appointment of the Seller or its
designee in
connection therewith shall be null and void. In the event, with
respect to a
Mortgage Loan that is a Defeasance Serviced Trust Mortgage Loan,
the Seller, the
Master Servicer or a designee of the Seller or the Master Servicer
actually
appoints a successor borrower in accordance with the related
Mortgage Loan
documents and the foregoing provisions of this paragraph and the
relevant
portion or all, as applicable, of the subject Mortgaged Property is
released
from the lien of the related Mortgage, then, to the extent provided
under the
related Mortgage Loan documents, such successor borrower shall
succeed to all of
the rights and obligations of the original Mortgagor under such
Serviced Trust
Mortgage Loan. In the event the Seller, by written notice to
Purchaser or its
assignee, designates a third party to exercise its rights under
this paragraph
and provides contact information therefor, the Purchaser or its
designee, the
Trustee and the Master Servicer shall be entitled to rely on such
notice and, in
such event, all notices required to be delivered to the Seller
pursuant to this
paragraph shall be delivered to the Seller's designee.
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(b)
If the Purchaser or the Master Servicer notifies the Seller
that the Mortgagor under any of the Mortgage Loans that are Early
Defeasance
Trust Mortgage Loans (i) intends to defease such Early Defeasance
Trust Mortgage
Loan in whole on or before the second anniversary of the Closing
Date and the
amount tendered by such Mortgagor to defease such Early Defeasance
Trust
Mortgage Loan (in accordance with the related loan documents) is
less than the
Purchase Price that would be applicable in the event of a
repurchase of such
Mortgage Loan pursuant to or as otherwise contemplated by Section
5(a), or (ii)
intends to partially defease such Early Defeasance Trust Mortgage
Loan on or
prior to the second anniversary of the Closing Date, or (iii)
intends to defease
such Early Defeasance Trust Mortgage Loan in whole on or before the
second
anniversary of the Closing Date and such Mortgagor is to tender
Defeasance
Collateral or such other collateral as is permitted in connection
with a
defeasance under the related loan documents that does not
constitute a cash
amount equal to or greater than the Purchase Price set forth in
clause (i) above
in this paragraph, then the Seller shall promptly repurchase such
Mortgage Loan
at a price equal to (A) the related Purchase Price and (B) the
amount, if any,
by which the proceeds from any cash defeasance deposit exceeds the
related
Purchase Price, in accordance with the directions of the Master
Servicer on a
whole loan, servicing released basis.
Upon the repurchase of a Mortgage Loan that is an Early Defeasance
Trust Mortgage Loan pursuant to Section 5 hereof and/or this
Section 6, the
Purchaser shall effect a "qualified liquidation" of the related
Loan REMIC in
accordance with the REMIC Provisions. The Seller hereby agrees to
pay all
reasonable costs and expenses, including the costs of any opinions
of counsel
under the Pooling and Servicing Agreement, in connection with any
such
"qualified liquidation" of the related Loan REMIC in accordance
with the REMIC
Provisions.
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
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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.
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;
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(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 Cadwalader, Wickersham & Taft ("CWT"),
special counsel to the Seller, substantially in the form attached
hereto as
Exhibit C-1, dated the Closing Date and addressed to the initial
Purchaser, the
Underwriters, the Placement Agents, the Rating Agencies and, upon
request, the
other parties to the Pooling and Servicing Agreement, together with
such other
opinions of CWT as may be required by the Rating Agencies in
connection with the
transactions contemplated hereby;
(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.
An amount equal to 33.6% of all reasonable out-of-pocket costs and
expenses incurred by the Seller, the initial Purchaser, the
Underwriters, the
Placement Agents and the seller of the Other Loans to the Purchaser
in
connection with the securitization of the Securitized Loans and the
other
transactions contemplated by this Agreement, the Underwriting
Agreement and the
Certificate Purchase Agreement shall be payable by the Seller.
SECTION 10.
Grant of a Security Interest.
The parties hereto agree that it is their express intent that the
conveyance of the Mortgage Loans by the Seller to the Purchaser as
provided in
Section 2 hereof be, and be construed as, a sale of the Mortgage
Loans by the
Seller to the Purchaser and not as a pledge of the Mortgage Loans
by the Seller
to the Purchaser to secure a debt or other obligation of the
Seller. However,
if, notwithstanding the aforementioned intent of the parties, the
Mortgage Loans
are held to be property of the Seller, then it is the express
intent of the
parties that: (i) such conveyance shall be deemed to be a pledge of
the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other
obligation of the
Seller; (ii) this Agreement shall be deemed
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to be a security agreement within the meaning of Articles 8 and 9
of the
applicable Uniform Commercial Code; (iii) the conveyance provided
for in Section
2 hereof shall be deemed to be a grant by the Seller to the
Purchaser of a
security interest in all of the Seller's right, title and interest
in and to the
Mortgage Loans, and all amounts payable to the holder of the
Mortgage Loans in
accordance with the terms thereof, and all proceeds of the
conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities
or other
property; (iv) the assignment to the Trustee of the interest of the
Purchaser in
and to the Mortgage Loans shall be deemed to be an assignment of
any security
interest created hereunder; (v) the possession by the Trustee or
any of its
agents, including, without limitation, the Custodian, of the
Mortgage Notes for
the Mortgage Loans, and such other items of property as constitute
instruments,
money, negotiable documents or chattel paper shall be deemed to be
"possession
by the secured party" for purposes of perfecting the security
interest pursuant
to Section 9-313 of the applicable Uniform Commercial Code; and
(vi)
notifications to persons (other than the Trustee) holding such
property, and
acknowledgments, receipts or confirmations from such persons
holding such
property, shall be deemed notifications to, or acknowledgments,
receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable)
of the secured party for the purpose of perfecting such security
interest under
applicable law. The Seller and the Purchaser shall, to the extent
consistent
with this Agreement, take such actions as may be necessary to
ensure that, if
this Agreement were deemed to create a security interest in the
Mortgage Loans,
such security interest would be deemed to be a perfected security
interest of
first priority under applicable law and will be maintained as such
throughout
the term of this Agreement and the Pooling and Servicing Agreement;
and, in
connection with the foregoing, the Seller authorizes the Purchaser
to file any
and all appropriate Uniform Commercial Code financing statements.
SECTION 11.
Notices.
All notices, copies, requests, consents, demands and other
communications required hereunder shall be in writing and
telecopied or
delivered to the intended recipient at the "Address for Notices"
specified
beneath its name on the signature pages hereof or, as to any party,
at such
other address as shall be designated by such party in a notice
hereunder to the
other parties. Except as otherwise provided in this Agreement, all
such
communications shall be deemed to have been duly given when
transmitted by
telecopier or personally delivered or, in the case of a mailed
notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12.
Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Seller submitted pursuant hereto, shall remain
operative and in
full force and effect and shall survive delivery of the Mortgage
Loans by the
Seller to the Purchaser (and by the initial Purchaser to the
Trustee).
SECTION 13.
Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or
unenforceable shall
be ineffective to the extent of
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such prohibition or unenforceability without invalidating the
remaining
provisions hereof. Any part, provision, representation, warranty or
covenant of
this Agreement that is prohibited or unenforceable or is held to be
void or
unenforceable in any particular jurisdiction shall, as to such
jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without
invalidating the remaining provisions hereof, and any such
prohibition or
unenforceability in any particular jurisdiction shall not
invalidate or render
unenforceable such provision in any other jurisdiction. To the
extent permitted
by applicable law, the parties hereto waive any provision of law
which prohibits
or renders void or unenforceable any provision hereof.
SECTION 14.
Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be an original, but which together shall constitute
one and the
same agreement.
SECTION 15.
GOVERNING LAW; CONSENT TO JURISDICTION.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS
NEGOTIATED, MADE AND
TO BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT
PERMITTED UNDER
APPLICABLE LAW AND SUBJECT TO SECTION 5(i) HEREOF, THE SELLER AND
THE PURCHASER
EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW
YORK STATE
AND FEDERAL COURTS SITTING IN NEW YORK CITY, TO THE EXCLUSION OF
ALL OTHER
COURTS, WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT
OTHER THAN MATTERS TO BE SETTLED BY MEDIATION OR ARBITRATION IN
ACCORDANCE WITH
SECTION 5(i) HEREOF; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO
SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR
FEDERAL
COURTS, TO THE EXCLUSION OF ALL OTHER COURTS; (III) WAIVES, TO THE
FULLEST
POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM IN CONNECTION
WITH SUCH
ACTION OR PROCEEDING COMMENCED IN SUCH NEW YORK STATE OR FEDERAL
COURTS; AND
(IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW; PROVIDED, THAT IN THE EVENT
SECTION 5(i)
HEREOF IS INAPPLICABLE AND BOTH A NEW YORK STATE AND A FEDERAL
COURT SITTING IN
NEW YORK IN WHICH AN ACTION OR PROCEEDING HAS BEEN DULY AND
PROPERLY COMMENCED
BY ANY PARTY TO THIS AGREEMENT REGARDING A MATTER ARISING OUT OF OR
RELATING TO
THIS AGREEMENT HAS REFUSED TO ACCEPT JURISDICTION OVER OR OTHERWISE
HAS NOT
ACCEPTED SUCH ACTION OR PROCEEDING WITHIN, IN THE CASE OF EACH SUCH
COURT, 60
DAYS OF THE COMMENCEMENT OR FILING THEREOF, THEN THE WORDS "TO THE
EXCLUSION OF
ALL OTHER COURTS" IN CLAUSE (I) AND CLAUSE (II) OF THIS SENTENCE
SHALL NOT APPLY
WITH REGARD TO SUCH ACTION OR PROCEEDING AND THE REFERENCE TO
"SHALL" IN CLAUSE
(II) OF THIS SECTION SHALL BE DEEMED TO BE "MAY".
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SECTION 16.
Further Assurances.
The Seller and the Purchaser each agrees to execute and deliver
such
instruments and take such further actions as any other such party
may, from time
to time, reasonably request in order to effectuate the purposes and
to carry out
the terms of this Agreement.
SECTION 17.
Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of
the
Purchaser, except that any person into which the Seller may be
merged or
consolidated, or any corporation resulting from any merger,
conversion or
consolidation to which the Seller is a party, or any person
succeeding to all or
substantially all of the business of the Seller, shall be the
successor to the
Seller hereunder. The Purchaser has the right to assign its
interest under this
Agreement, in whole or in part, as may be required to effect the
purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the
extent of such
assignment, succeed to the rights and obligations hereunder of the
Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to
the benefit of
and be enforceable by the Seller, the Purchaser, and their
respective successors
and permitted assigns.
SECTION 18.
Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a
duly authorized
officer of the party against whom such waiver or modification is
sought to be
enforced. The Seller's obligations hereunder shall in no way be
expanded,
changed or otherwise affected by any ame
