LBHI MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of February 15, 2007,
(the "Agreement"), between Lehman Brothers Holdings Inc. (together
with its
successors and permitted assigns hereunder, the "Seller") and
Structured Asset
Securities Corporation II (together with its successors and
permitted assigns
hereunder, the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage
Loans") as
provided herein. The Purchaser intends to deposit the Mortgage
Loans, together
with certain other multifamily and commercial mortgage loans (the
"Other Loans";
and, together with the Mortgage Loans, the "Securitized Loans"),
into a trust
fund (the "Trust Fund"), the beneficial ownership of which will be
evidenced by
multiple classes (each, a "Class") of mortgage pass-through
certificates (the
"Certificates") to be identified as the LB-UBS Commercial Mortgage
Trust
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 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 $2,527,430,347 (the "Initial LBHI
Pool Balance")
as of the close of business on the Cut-off Date, after giving
effect to any and
all payments of principal due thereon on or before such date,
whether or not
received. The purchase and sale of the Mortgage Loans shall take
place on
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 cash amount equal to a
percentage (mutually agreed upon by the parties hereto) of the
Initial LBHI Pool
Balance, plus interest accrued on each Mortgage Loan at the related
Mortgage
Rate (net of the related Administrative Cost Rate), for the period
from and
including 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 6 hereof, the Seller
does hereby
sell, transfer, assign, set over and otherwise convey to the
Purchaser, without
recourse, all the right, title and interest of the Seller (other
than the
primary servicing rights) in and to the Mortgage Loans identified
on the
Mortgage Loan Schedule as of such date. The Mortgage Loan Schedule,
as it may be
amended, shall conform to the requirements set forth in this
Agreement and the
Pooling and Servicing Agreement.
(b)
The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off
Date, and all
other recoveries of principal and interest collected after the
Cut-off Date
(other than in respect of principal and interest on the Mortgage
Loans due on or
before the Cut-off Date). All scheduled payments of principal and
interest due
on or before the Cut-off Date for each Mortgage Loan, but collected
after such
date, shall belong to, and be promptly remitted to, the Seller.
(c)
On or before the Closing Date, the Seller shall, on behalf of
the initial Purchaser, deliver to and deposit with (i) the Trustee
or a
Custodian appointed thereby, a Mortgage File for each Mortgage Loan
in
accordance with the terms of, and conforming to the requirements
set forth in,
the Pooling and Servicing Agreement, with copies of each Mortgage
File to be
delivered by the Trustee to, upon request, the Master Servicer (at
the expense
of the Trustee), within 10 Business Days of such request; and (ii)
the Master
Servicer (or, at the direction of the Master Servicer, to the
appropriate
Sub-Servicer), 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.
(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
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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 or the Purchaser'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 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 Seller shall deliver to and
deposit with the
Master Servicer, within 45 days of the Closing Date, the Mortgage
Loan
Origination Documents (other than any document that constitutes
part of the
Mortgage File for such Mortgage Loan); provided that the Seller
shall not be
required to deliver any draft documents, privileged or other
communications or
correspondence, credit underwriting or due diligence analyses or
information,
credit committee briefs or memoranda or other internal approval
documents or
data or internal worksheets, memoranda, communications or
evaluations.
(f)
After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action
inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for
actions that
are the express responsibility of another party hereunder or under
the
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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 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) and
provide the
Seller and the Controlling Class Representative and the Special
Servicer with a
certificate (the "Master Servicer Certification") within 90 days of
the Closing
Date acknowledging its (or the appropriate Sub-Servicer's) receipt
as of the
date of the Master Servicer Certification of such documents
actually received;
provided that such review shall be limited to identifying the
document received,
the 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 a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and
possesses all requisite authority, power, licenses, permits and
franchises
to carry on its business as currently conducted by it and to
execute,
deliver and comply with its obligations under the terms of this
Agreement.
(ii)
This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due
authorization,
execution and delivery hereof by the Purchaser, constitutes a
legal, valid
and binding obligation of the Seller, enforceable against the
Seller in
accordance with its terms, except as such enforcement may be
limited by
(A)
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bankruptcy, insolvency, reorganization, receivership, moratorium or
other
similar laws affecting the enforcement of creditors' rights in
general,
and (B) general equity principles (regardless of whether such
enforcement
is considered in a proceeding in equity or at law).
(iii)
The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms
of this
Agreement will not (A) violate the Seller's organizational
documents, (B)
violate any law or regulation or any administrative decree or order
to
which the Seller is subject, or (C) constitute a default (or an
event
which, with notice or lapse of time, or both, would constitute a
default)
under, or result in the breach of, any material contract, agreement
or
other instrument to which the Seller is a party or by which the
Seller is
bound.
(iv)
The Seller is not in default with respect to any order
or decree of any court or any order, regulation or demand of any
federal,
state, municipal or other governmental agency or body, which
default might
have consequences that would, in the Seller's reasonable and good
faith
judgment, materially and adversely affect the condition (financial
or
other) or operations of the Seller or its properties or have
consequences
that would materially and adversely affect its performance
hereunder.
(v)
The Seller is not a party to or bound by any agreement
or instrument or subject to any organizational document or any
other
corporate restriction or any judgment, order, writ, injunction,
decree,
law or regulation that would, in the Seller's reasonable and good
faith
judgment, materially and adversely affect the ability of the Seller
to
perform its obligations under this Agreement or that requires the
consent
of any third person to the execution and delivery of this Agreement
by the
Seller or the performance by the Seller of its obligations under
this
Agreement.
(vi)
Except for the recordation and/or filing of
assignments and other transfer documents with respect to the
Mortgage
Loans, as contemplated by Section 2(d) hereof, no consent,
approval,
authorization or order of, registration or filing with, or notice
to, any
court or governmental agency or body, is required for the
execution,
delivery and performance by the Seller of or compliance by the
Seller with
this Agreement or the consummation of the transactions contemplated
by
this Agreement; and no bulk sale law applies to such transactions.
(vii)
No litigation is pending or, to the best of the
Seller's knowledge, threatened against the Seller that would, in
the
Seller's good faith and reasonable judgment, prohibit its entering
into
this Agreement or materially and adversely affect the performance
by the
Seller of its obligations under this Agreement.
(viii)
Under generally accepted accounting principles
("GAAP") and for federal income tax purposes, the Seller will
report the
transfer of the Mortgage Loans to the Purchaser, as provided
herein, as a
sale of the Mortgage Loans to the Purchaser in exchange for the
consideration specified in Section 1 hereof. In connection with the
foregoing, the Seller shall cause all of its records to reflect
such
transfer as a sale (as opposed to a secured loan). The
consideration
received by the Seller upon the sale of the Mortgage Loans to the
Purchaser will constitute at least reasonably equivalent value and
fair
consideration for the Mortgage Loans. The Seller will be solvent at
all
relevant times prior to, and will not be rendered insolvent by, the
sale
of the Mortgage Loans to the Purchaser. The Seller is not selling
the
Mortgage Loans to the Purchaser with any intent to hinder, delay or
defraud any of the creditors of the Seller. After giving effect to
its
transfer of the Mortgage Loans to the Purchaser, as provided
herein, the
value
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of the Seller's assets, either taken at their present fair saleable
value
or at fair valuation, will exceed the amount of the Seller's debts
and
obligations, including contingent and unliquidated debts and
obligations
of the Seller, and the Seller will not be left with unreasonably
small
assets or capital with which to engage in and conduct its business.
The
Mortgage Loans do not constitute all or substantially all of the
assets of
the Seller. The Seller does not intend to, and does not believe
that it
will, incur debts or obligations beyond its ability to pay such
debts and
obligations as they mature.
(ix)
No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Seller are pending or
contemplated.
(b)
The Seller hereby makes, for the benefit of the Purchaser,
with respect to each Mortgage Loan, as of the Closing Date or as of
such other
date expressly set forth therein, each of the representations and
warranties
made by the Purchaser pursuant to Section 2.04(b) of the Pooling
and Servicing
Agreement, except that all references therein to the Purchaser
shall be deemed
to be references to the Seller and all references therein to the
Mortgage Pool
shall be deemed to be references to all the Securitized Loans.
SECTION 4.
Representations and Warranties of the Purchaser. In
order to induce the Seller to enter into this Agreement, the
Purchaser hereby
represents and warrants for the benefit of the Seller as of the
date hereof
that:
(i)
The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The
Purchaser has the full corporate power and authority and legal
right to
acquire the Mortgage Loans from the Seller and to transfer the
Mortgage
Loans to the Trustee.
(ii)
This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser and, assuming due
authorization,
execution and delivery hereof by the Seller, constitutes a legal,
valid
and binding obligation of the Purchaser, enforceable against the
Purchaser
in accordance with its terms, except as such enforcement may be
limited by
(A) bankruptcy, insolvency, reorganization, receivership,
moratorium or
other similar laws affecting the enforcement of creditors' rights
in
general, and (B) general equity principles (regardless of whether
such
enforcement is considered in a proceeding in equity or at law).
(iii)
The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the
terms of
this Agreement will not (A) violate the Purchaser's organizational
documents, (B) violate any law or regulation or any administrative
decree
or order to which the Purchaser is subject or (C) constitute a
default (or
an event which, with notice or lapse of time, or both, would
constitute a
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Purchaser is a party or
by
which the Purchaser is bound.
(iv)
Except as may be required under federal or state
securities laws (and which will be obtained on a timely basis), no
consent, approval, authorization or order of, registration or
filing with,
or notice to, any governmental authority or court, is required for
the
execution, delivery and performance by the Purchaser of or
compliance by
the Purchaser with this Agreement, or the consummation by the
Purchaser of
any transaction described in this Agreement.
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(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 Schedule IX to the
Pooling and
Servicing Agreement 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 the fourth paragraph of Section 2.03(a) to
the Pooling
and Servicing Agreement, 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 that the Seller obtains actual knowledge of a Material
Document
Defect or Material Breach, then the Seller shall deliver written
notification to
the Purchaser with respect thereto. Then, following receipt of a
Seller/Depositor Notification with respect to such Material
Document Defect or
Material Breach, as the case may be, the Seller shall cure or
repurchase the
subject Mortgage Loan, as the case may be, if and to the extent the
Depositor is
required to do so, in the manner, under the circumstances, subject
to the
conditions, within the time periods and upon all of the other terms
set forth in
Section 2.03(a) of the Pooling and Servicing Agreement.
(b)
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), 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
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acting) has consented (which consent shall not be unreasonably
withheld and
shall be deemed to have been given if no written objection is
received by the
Seller (or by the Depositor) within 10 Business Days of the
Controlling Class
Representative's receipt of a written request for such consent);
and provided,
further, that the Seller may, at its option, purchase the entire
Cross-Collateralized Group in lieu of terminating the
cross-collateralization.
All costs and expenses incurred by the Purchaser or its designee
pursuant to
this paragraph shall be included in the calculation of Purchase
Price for the
Mortgage Loan(s) to be repurchased. If the cross-collateralization
of any
Cross-Collateralized Group is not or cannot be terminated as
contemplated by
this paragraph, then, for purposes of (i) determining whether the
subject Breach
or Document Defect, as the case may be, materially and adversely
affects the
value of such Cross-Collateralized Group, and (ii) the application
of remedies,
such Cross-Collateralized Group shall be treated as a single
Mortgage Loan.
(d)
It shall be a condition to any repurchase of a Mortgage Loan
by the Seller pursuant to this Section 5 that the Purchaser shall
have executed
and delivered such instruments of transfer or assignment then
presented to it by
the Seller (or as otherwise required to be prepared, executed and
delivered
under the Pooling and Servicing Agreement), in each case without
recourse, as
shall be necessary to vest in the Seller the legal and beneficial
ownership of
such Mortgage Loan (including any property acquired in respect
thereof or
proceeds of any insurance policy with respect thereto), to the
extent that such
ownership interest was transferred to the Purchaser hereunder. If
any Mortgage
Loan is to be repurchased as contemplated by this Section 5, the
Seller shall
amend the Mortgage Loan Schedule to reflect the removal of such
Mortgage Loan
and shall forward such amended schedule to the Purchaser.
(e)
Any repurchase of a Mortgage Loan pursuant to this Section 5
shall be on a whole loan, servicing released basis. The Seller
shall have no
obligation to monitor the Mortgage Loans regarding the existence of
a Breach or
Document Defect. It is understood and agreed that the obligations
of the Seller
set forth in this Section 5 constitute the sole remedies available
to the
Purchaser with respect to any Breach or Document Defect.
(f)
Notwithstanding the foregoing, if there exists a Breach of
that portion of the representation or warranty on the part of the
Seller made by
virtue of the Depositor's representation set forth in, or made
pursuant to
paragraph (xlviii) of Schedule II to the Pooling and Servicing
Agreement,
specifically relating to whether or not the Mortgage Loan documents
or any
particular Mortgage Loan document for any Mortgage Loan requires
the related
Mortgagor to bear the reasonable costs and expenses associated with
the subject
matter of such representation or warranty, as set forth in such
representation
or warranty, then the Purchaser or its designee will direct the
Seller in
writing to wire transfer to the Custodial Account, within 90 days
of receipt of
such direction, the amount of any such reasonable costs and
expenses incurred by
the Trust that (i) are due from the Mortgagor, (ii) otherwise would
have been
required to be paid by the Mortgagor if such representation or
warranty with
respect to such costs and expenses had in fact been true, as set
forth in the
related representation or warranty, (iii) have not been paid by the
Mortgagor,
(iv) are the basis of such Breach and (v) constitute "Covered
Costs". Upon
payment of such costs, the Seller shall be deemed to have cured
such Breach in
all respects. Provided that such payment is made, this paragraph
describes the
sole remedy available to the Purchaser regarding any such Breach,
regardless of
whether it constitutes a Material Breach, and the Seller shall not
be obligated
to otherwise cure such Breach or repurchase the affected Mortgage
Loan under any
circumstances. Amounts deposited in the Pool Custodial Account
pursuant to this
paragraph shall constitute "Liquidation Proceeds" for all purposes
of the
Pooling and Servicing Agreement (other than Section 3.11(c) of the
Pooling and
Servicing Agreement).
8
(g)
In addition, subject to Section 5(f) and the last three
sentences of this paragraph, if the Depositor determines that a
Material Breach
(other than a Material Breach of a representation or warranty on
the part of the
Depositor set forth in and made pursuant to paragraph (xvii) of
Schedule II to
the Pooling and Servicing Agreement) or a Material Document Defect
with respect
to a Mortgage Loan is not capable of being cured in accordance with
Section
2.03(a) of the Pooling and Servicing Agreement, then in lieu of
repurchasing the
subject Mortgage Loan, the Seller shall pay a cash amount equal to
the Loss of
Value Payment, and any costs incurred in connection with such Loss
of Value
Payment, in each case required to be paid by the Depositor (or,
payable by the
Depositor due to the Depositor's exercise of its option) under
Section 2.03(e)
of the Pooling and Servicing Agreement, but only if and to the
extent the
Depositor is required or elects to do so, in the manner, under the
circumstances, subject to the conditions, within the time periods
and upon all
of the other terms set forth in Section 2.03 of the Pooling and
Servicing
Agreement. Provided that such payment is made, this paragraph
describes the sole
remedy available to the Purchaser regarding any such Material
Breach or Material
Document Defect and the Seller shall not be obligated to otherwise
cure such
Material Breach or Material Document Defect or repurchase the
affected Mortgage
Loan based on such Material Breach or Material Document Defect
under any
circumstances. Notwithstanding the foregoing provisions of this
Section 5(g), if
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).
Furthermore, the
Seller shall not have the option of delivering Loss of Value
Payments in
connection with any Material Breach relating to a Mortgage Loan's
failure to be
a Qualified Mortgage. In the event there is a Loss of Value Payment
made by the
Seller in accordance with this Section 5(g), the amount of such
Loss of Value
Payment shall be deposited into the Loss of Value Reserve Fund to
be applied in
accordance with Section 3.05(e) of the Pooling and Servicing
Agreement.
(h)
Notwithstanding the foregoing, if there exists a Material
Breach of the representation or warranty on the part of the Seller
set forth in
and made pursuant to paragraph (xvii) of Schedule II to the Pooling
and
Servicing Agreement, and the subject Mortgage Loan becomes a
Qualified Mortgage
prior to the expiration of the Initial Resolution Period applicable
to a
Material Document Defect or Material Breach that affects whether a
Mortgage Loan
is a Qualified Mortgage, and without otherwise causing an Adverse
REMIC Event or
an Adverse Grantor Trust Event, then such breach will be cured and
the Seller
will not be obligated to repurchase or otherwise remedy such
Breach.
(i)
The parties hereto agree that any controversy or claim arising
under Section 5(a), Section 5(b) and/or Section 5(g) of this
Agreement shall be
resolved in accordance with the Mediation/Arbitration procedures
set forth in
Section 2.03(i) of 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, subject to the conditions set
forth in
Section 2.03(i) of the Pooling and Servicing Agreement.
SECTION 6.
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
9
Purchaser set forth in Section 4 of this Agreement, shall be true
and correct in
all material respects as of the Closing Date;
(b)
Insofar as it affects the obligations of the Seller hereunder,
the Pooling and Servicing Agreement shall be in a form mutually
acceptable to
the Purchaser and the Seller;
(c)
All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to
the
Purchaser, shall be duly executed and delivered by all signatories
as required
pursuant to the respective terms thereof;
(d)
The Seller shall have delivered and released to the Trustee
(or a Custodian on its behalf), the Master Servicer and the Special
Servicer all
documents and funds required to be delivered to the Trustee, the
Master Servicer
and the Special Servicer, respectively, pursuant to Section 2 of
this Agreement;
(e)
All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been
complied with in
all material respects, and the Seller shall have the ability to
comply with all
terms and conditions and perform all duties and obligations
required to be
complied with or performed after the Closing Date;
(f)
The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement; and
(g)
Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with
its terms.
Both parties hereto agree to use their best efforts to perform
their
respective obligations hereunder in a manner that will enable the
Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 7.
Closing Documents. The Closing Documents shall consist
of the following:
(a)
This Agreement duly executed by the Purchaser and the Seller;
(b)
The Pooling and Servicing Agreement duly executed by the
parties thereto;
(c)
The Indemnific
