EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of April 11, 2005
(the "Agreement"), between UBS Real Estate Investments Inc.
(together with its
successors and permitted assigns hereunder, the "Seller"), UBS
Principal Finance
LLC, as an additional party responsible for the Seller's
obligations hereunder
(in such capacity, together with its successors and permitted
assigns hereunder,
the "Additional Party"), 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 2005-C2, Commercial Mortgage Pass-Through
Certificates, Series
2005-C2. 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 April 11,
2005 (the "Pooling and Servicing Agreement"), between the
Purchaser, as
depositor, Wells Fargo Bank, National Association, as master
servicer (the
"Master Servicer"), Lennar Partners, Inc., as special servicer (the
"Special
Servicer"), LaSalle Bank National Association, as trustee (the
"Trustee"), and
ABN AMRO Bank N.V., as fiscal agent. 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") and UBS Securities LLC ("UBS Securities" and,
together with
Lehman 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
Securities
(together in such capacity, the "Placement Agents"), whereby the
Purchaser will
sell to the Placement Agents all of the remaining Certificates
(other than the
Residual Interest Certificates).
In connection with the transactions contemplated hereby, the
Seller, UBS Americas Inc. (the "Co-Indemnitor"), 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 $878,046,090 (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 April
20, 2005 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 April 11, 2005 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 39.36390% Percentage Interest in each Class of
Residual Interest
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 7 hereof, the
Seller does
hereby sell, transfer, assign, set over and otherwise convey to the
Purchaser,
without recourse, all the right, title and interest of the Seller
(other than
the primary servicing rights) in and to the Mortgage Loans
identified on the
Mortgage Loan Schedule as of such date. The Mortgage Loan Schedule,
as it may be
amended, shall conform to the requirements set forth in this
Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive
all scheduled payments of principal and interest due after the
Cut-off Date, and
all other recoveries of principal and interest collected after the
Cut-off Date
(other than in respect of principal and interest on the Mortgage
Loans due on or
before the Cut-off Date). All scheduled payments of principal and
interest due
on or before the Cut-off Date for each Mortgage Loan, but collected
after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf
of the initial Purchaser, deliver to and deposit with (i) the
Trustee or a
Custodian appointed thereby, a Mortgage File for each Mortgage Loan
in
accordance with the terms of, and conforming to the requirements
set forth in,
the Pooling and Servicing Agreement, with copies of each Mortgage
File to be
delivered by the Trustee to, upon request, the Master Servicer (at
the expense
of the Trustee), within 10 Business Days of such request; and (ii)
the Master
Servicer (or, at the direction of the Master Servicer, to the
appropriate
Sub-Servicer), all unapplied Escrow Payments and Reserve Funds in
the possession
or under the control of the Seller that relate to the Mortgage
Loans.
(d) The Seller shall retain,with respect to each Mortgage
Loan, an Independent third party (the "Recording/Filing Agent"),
through which
it shall: (i) as and in the manner provided in the Pooling and
Servicing
Agreement (and in any event within 45 days following the later of
the Closing
Date and the date on which all necessary recording or filing, as
applicable,
information is available to the subject Recording/Filing Agent),
submit for
recording or filing, as the case may be, in the appropriate public
office for
real property records or UCC Financing Statements, as applicable
(A) each
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related assignment of Mortgage and assignment of Assignment of
Leases in favor
of, and delivered under clause (iv) of the definition of Mortgage
File to, the
Trustee, and (B) solely with respect to nursing facilities and
hospitality
properties (identified on Schedule VI to the Pooling and Servicing
Agreement),
each assignment of UCC Financing Statement, in favor of, and
delivered under
clause (iv) of the definition of Mortgage File to, the Trustee; and
(ii) cause
each such assignment of Mortgage, assignment of Assignment of
Leases and
assignment of UCC Financing Statement to be delivered to the
Trustee following
its return by the appropriate public office for real property
records or UCC
Financing Statements, as applicable, with copies of any such
returned
assignments to be delivered by the Trustee to the Master Servicer,
at the
expense of the Seller, at least every 90 days after the Closing
Date (or at
additional times upon the request of the Master Servicer if
reasonably necessary
for the ongoing administration and/or servicing of the related
Mortgage Loan by
the Master Servicer); provided that, in those instances where the
public
recording office retains the original assignment of Mortgage or
assignment of
Assignment of Leases, the Trustee shall obtain a certified copy of
the recorded
original.
If any such assignment of Mortgage, assignment of Assignment
of Leases and/or assignment of UCC Financing Statement referred to
in the
preceding paragraph is lost or returned unrecorded or unfiled, as
the case may
be, because of a defect therein, then the Seller shall prepare or
cause the
preparation of a substitute therefor or cure such defect, as the
case may be,
and the Seller shall deliver such substitute or corrected document
or instrument
to the Trustee (or, if the Mortgage Loan is then no longer subject
to the
Pooling and Servicing Agreement, to the then holder of such
Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of
all such recording, filing and delivery contemplated in the
preceding two
paragraphs, including, without limitation, any out-of-pocket costs
and expenses
that may be incurred by the Trustee in connection with any such
recording,
filing or delivery performed by the Trustee at the Seller's request
and the fees
of the Recording/Filing Agent.
(e) With respect to any 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, 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, leases for
tenants
representing 25% or more of the annual income with respect to the
related
Mortgaged Property, final seismic report and property management
agreements, but
in each case, only if the subject document (a) was in fact obtained
in
connection with the origination of such Mortgage Loan, (b) relates
to the
administration or servicing of such Mortgage Loan, (c) 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 (d) 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 applicable Sub-Servicer);
provided that
the Seller shall not be required to deliver any draft documents,
privileged or
other communications or correspondence, credit underwriting or due
diligence
analyses or information, credit committee briefs or memoranda or
other internal
approval documents or data or internal worksheets, memoranda,
communications or
evaluations.
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(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(g) and 3.19(c) of the Pooling and Servicing
Agreement, with
regard to each Mortgage Loan that is secured by the interests of
the related
Mortgagor in a hospitality property (identified on Schedule VI to
the Pooling
and Servicing Agreement) and each Mortgage Loan that has a related
letter of
credit, the Seller shall deliver to and deposit with the Master
Servicer, on or
before the Closing Date, any related franchise agreement, franchise
comfort
letter and the original of such letter of credit. Further, in the
event, with
respect to a Mortgage Loan with a related letter of credit, the
Master Servicer
determines that a draw under such letter of credit has become
necessary under
the terms thereof prior to the assignment of such letter of credit
having been
effected in accordance with Section 3.01(g) 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 with a certificate (the "Master Servicer
Certification")
within 90 days of the Closing Date acknowledging its receipt as of
the date of
the Master Servicer Certification of such documents actually
received; provided
that such review shall be limited to identifying the document
received, the
Mortgage Loan to which it purports to relate, that it appears
regular on its
face and that it appears to have been executed (where appropriate).
Notwithstanding anything to the contrary set forth herein, to the
extent the
Seller has not been notified in writing of its failure to deliver
any document
with respect to a Mortgage Loan required to be delivered pursuant
to or as
contemplated by Section 2(e) hereof prior to the first anniversary
of the date
of the Master Servicer Certification, the Seller shall have no
obligation to
provide such document.
(i) In addition, on the Closing Date, the Seller shall deliver
to the Master Servicer for deposit in the Pool Custodial Account
the Initial
Deposits relating to the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of Seller
and Additional Party.
(a) Each of the Seller and the Additional Party (each, for
purposes of this Section 3(a), a "Representing Party") hereby
represent and
warrant to and covenant with the Purchaser, as of the date hereof,
that:
(i) The Representing Party 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.
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(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Representing Party and, assuming
due authorization, execution and delivery hereof by the
Purchaser, constitutes a legal, valid and binding obligation of
the Representing Party, enforceable against the Representing
Party in accordance with its terms, except as such enforcement
may be limited by (A) bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws affecting the
enforcement of creditors' rights in general, and (B) general
equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Representing Party and the Representing Party's performance and
compliance with the terms of this Agreement will not (A)
violate the Representing Party's organizational documents, (B)
violate any law or regulation or any administrative decree or
order to which the Representing Party is subject, or (C)
constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result
in the breach of, any material contract, agreement or other
instrument to which the Representing Party is a party or by
which the Representing Party is bound.
(iv) The Representing Party is not in default with respect
to any order or decree of any court or any order, regulation or
demand of any federal, state, municipal or other governmental
agency or body, which default might have consequences that
would, in the Representing Party's reasonable and good faith
judgment, materially and adversely affect the condition
(financial or other) or operations of the Representing Party or
its properties or have consequences that would materially and
adversely affect its performance hereunder.
(v) The Representing Party is not a party to or bound by
any agreement or instrument or subject to any organizational
document or any other corporate or limited liability company
(as applicable) restriction or any judgment, order, writ,
injunction, decree, law or regulation that would, in the
Representing Party's reasonable and good faith judgment,
materially and adversely affect the ability of the Representing
Party to perform its obligations under this Agreement or that
requires the consent of any third person to the execution and
delivery of this Agreement by the Representing Party or the
performance by the Representing Party of its obligations under
this Agreement.
(vi) Except for the recordation and/or filing of
assignments and other transfer documents with respect to the
Mortgage 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 Representing Party of or compliance by the Representing
Party with this Agreement or the consummation of the
transactions contemplated by this Agreement; and no bulk sale
law applies to such transactions.
(vii) No litigation is pending or, to the best of the
Representing Party's knowledge, threatened against the
Representing Party that would, in the Representing Party's good
faith and reasonable judgment, prohibit its entering into this
Agreement or materially and adversely affect the performance by
the Representing Party of its obligations under this Agreement.
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(viii) No proceedings looking toward merger, liquidation,
dissolution or bankruptcy of the Representing Party are pending
or contemplated.
In addition, the Seller hereby further represents and warrants
to, and covenants with, the Purchaser, as of the date hereof, that:
(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 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.
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(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 (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 JPMorgan Chase Bank, National Association
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
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Purchaser to cause the Seller's Residual Interest Certificates to
be registered
in the name of JPMorgan Chase Bank, National Association 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 and
the Additional Party 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 and
the Additional Party, constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser
in accordance with its terms, except as such enforcement may be
limited by (A) bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws affecting the
enforcement of creditors' rights in general, and (B) general
equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with
the terms of this Agreement will not (A) violate the
Purchaser's organizational documents, (B) violate any law or
regulation or any administrative decree or order to which the
Purchaser is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute
a default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Purchaser
is a party or by which the Purchaser is bound.
(iv) Except as may be required under federal or state
securities laws (and which will be obtained on a timely basis),
no consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or
court, is required for the execution, delivery and performance
by the Purchaser of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loans by the
Seller to the Purchaser, as provided herein, as a sale of the
Mortgage Loans to the Purchaser in exchange for the
consideration specified in Section 1 hereof.
SECTION 5. Notice of Breach; Cure; Repurchase.
(a) If the Seller receives written notice with respect to any
Mortgage Loan (i) that any document constituting a part of clauses
(i) through
(x) of the definition of Mortgage File has not been executed or is
missing (a
"Document Defect") or (ii) of a breach of any of the Seller's
representations
and warranties made pursuant to Section 3(b) hereof (each such
breach, a
"Breach") relating to any
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Mortgage Loan, and such Document Defect or Breach materially and
adversely
affects the value of the Mortgage Loan at the time of such notice,
then such
Document Defect shall constitute a "Material Document Defect" or
such Breach
shall constitute a "Material Breach", as the case may be. Then,
following
receipt of a Seller/Depositor Notification with respect to such
Material
Document Defect or Material Breach, as the case may be, the Seller
shall
(subject to Sections 5(f), (g) and (h)), (A) not later than 90 days
after (1)
the Seller and the Purchaser have agreed upon the existence of such
Material
Document Defect or Material Breach or (2) a court of competent
jurisdiction
makes a final non-appealable determination 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
(either such 90-day period, in the case of (A) or (B), as
applicable, an
"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, then the Seller
shall have such
additional 90-day 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
Resolution Extension Period solely due to the failure of the Seller
to have
received a recorded document, then the Seller shall be entitled to
continue to
defer its cure and repurchase obligations in respect of such
Material Document
Defect so long as the Seller certifies to the Purchaser every six
months
thereafter that the Material Document Defect is still in effect
solely because
of its failure to have received the recorded document and that the
Seller is
diligently pursuing the cure of such defect (specifying the actions
being
taken). The parties acknowledge that neither delivery of a
certification or
schedule of exceptions to the Seller pursuant to Section 2.02(b) of
the Pooling
and Servicing Agreement or otherwise nor possession of such
certification or
schedule by the Seller shall, in and of itself, constitute delivery
of notice of
any Material Document Defect or Material Breach or knowledge or
awareness by the
Seller of any Material Document Defect or Material Breach.
If, during the period of deferral by the Seller of its cure
and repurchase obligations as contemplated by the last proviso of
the
penultimate sentence of the preceding paragraph, the Mortgage
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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) [Reserved.]
(c) If one or more (but not all) of the Mortgage Loans
constituting a Cross-Collateralized Group are to be repurchased by
the Seller as
contemplated by Section 5(a), then, prior to the subject
repurchase, the Seller
or its designee shall use reasonable efforts, subject to the terms
of the
related Mortgage Loans, to prepare and, to the extent necessary and
appropriate,
have executed by the related Mortgagor and record, such
documentation as may be
necessary to terminate the cross-collateralization between the
Mortgage Loans in
such Cross-Collateralized Group that are to be repurchased, on the
one hand, and
the remaining Mortgage Loans therein, on the other hand, such that
those two
groups of Mortgage Loans are each secured only by the Mortgaged
Properties
identified in the Mortgage Loan Schedule as directly corresponding
thereto;
provided that, if such Cross-Collateralized Group is still subject
to the
Pooling and Servicing Agreement, then no such termination shall be
effected
unless and until (i) the Purchaser or its designee has received
from the Seller
(A) an Opinion of Counsel to the effect that such termination will
not cause an
Adverse REMIC Event to occur with respect to any REMIC Pool or an
Adverse
Grantor Trust Event with respect to the Grantor Trust and (B)
written
confirmation from each Rating Agency that such termination will not
cause an
Adverse Rating Event to occur with respect to any Class of
Certificates and (ii)
the Controlling Class Representative (if one is acting) has
consented (which
consent shall not be unreasonably withheld and shall be deemed to
have been
given if no written objection is received by the Seller 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
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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
and the
Additional Party shall have no obligation to monitor the Mortgage
Loans
regarding the existence of a Breach or Document Defect. It is
understood and
agreed that the obligations of the Seller set forth in this Section
5 constitute
the sole remedies available to the Purchaser with respect to any
Breach or
Document Defect.
(f) Notwithstanding the foregoing, if there exists a Breach of
that portion of the representation or warranty on the part of the
Seller set
forth in, or made pursuant to, paragraph (xlviii) of Exhibit B to
this
Agreement, specifically relating to whether or not the Mortgage
Loan documents
or any particular Mortgage Loan document for any Mortgage Loan
requires the
related Mortgagor to bear the reasonable costs and expenses
associated with the
subject matter of such representation or warranty, as set forth in
such
representation or warranty, then the Purchaser or its designee will
direct the
Seller in writing to wire transfer to the Custodial Account, within
90 days of
receipt of such direction, the amount of any such reasonable costs
and expenses
incurred by the Trust that (i) are due from the Mortgagor, (ii)
otherwise would
have been required to be paid by the Mortgagor if such
representation or
warranty with respect to such costs and expenses had in fact been
true, as set
forth in the related representation or warranty, (iii) have not
been paid by the
Mortgagor, (iv) are the basis of such Breach and (v) constitute
"Covered Costs".
Upon payment of such costs, the Seller shall be deemed to have
cured such Breach
in all respects. Provided that such payment is made, this paragraph
describes
the sole remedy available to the Purchaser regarding any such
Breach, regardless
of whether it constitutes a Material Breach, and the Seller shall
not be
obligated to otherwise cure such Breach or repurchase the affected
Mortgage Loan
under any circumstances. Amounts deposited in the Pool Custodial
Account
pursuant to this paragraph shall constitute "Liquidation Proceeds"
for all
purposes of the Pooling and Servicing Agreement (other than Section
3.11(c) of
the Pooling and Servicing Agreement).
(g) Subject to Section 5(f) 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 judicial decision; provided that, in the event
there is a
legal action for determining the existence of a Material Breach or
a Material
Document Defect with respect to any Mortgage Loan, such legal
action 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
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the foregoing provisions of this Section 5(g), if substantially all
of the loss
of value to a Mortgage Loan was caused by a Material Breach or
Material Document
Defect, which Material Breach or Material Document Defect is not
capable of
being cured, this Section 5(g) shall not apply and the Seller shall
be obligated
to repurchase the affected Mortgage Loan at the applicable Purchase
Price in
accordance with Section 5(a). Furthermore, the Seller shall not
have the option
of delivering Loss of Value Payments in connection with any
Material Breach
relating to a Mortgage Loan's failure to be a Qualified Mortgage.
In the event
there is a Loss of Value Payment made by the Seller in accordance
with this
Section 5(g), the amount of such Loss of Value Payment shall be
deposited into
the Loss of Value Reserve Fund to be applied in accordance with
Section 3.05(e)
of the Pooling and Servicing Agreement.
In the event the amount of any Loss of Value Payment is
determined by judicial decision, 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) that are: (i) 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; and (ii)
directly
attributable to the enforcement of the rights of the Trust with
respect to the
subject Material Breach or Material Document Defect, as the case
may be;
provided that, that in the event the Seller tenders a loss of value
payment in a
specified amount in connection with a Material Breach or Material
Document
Defect, as the case may be, prior to the institution of legal
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 judicial
decision 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
by the Master Servicer, the Special Servicer and/or the Trustee in
connection
with the subject litigation; 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 judicial decision 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 all
costs and
expenses reasonably incurred in connection with that judicial
determination; 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 judicial
decision 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
judicial
determination, multiplied by (ii) a fraction, the numerator of
which is the
excess of the amount determined by judicial decision 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 a judicial
decision), 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.
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(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 Material Document
Defect or
Material Breach that affects whether a Mortgage Loan is a Qualified
Mortgage,
and without otherwise causing an Adverse REMIC Event or an Adverse
Grantor Trust
Event, then such breach will be cured and the Seller will not be
obligated to
repurchase or otherwise remedy such Breach.
SECTION 6. Obligations of the Additional Party.
The Additional Party hereby covenants and agrees with the
Purchaser that the Additional Party shall be liable to the
Purchaser and any
designee thereof to the same extent as the Seller as set forth
herein, for all
the obligations of the Seller under Section 5 hereof. The
Additional Party
further agrees that the Purchaser shall not be bound or obligated
to initially
request the Seller to perform any of its obligations hereunder, but
may instead
initially request the Additional Party to perform such obligations.
Additionally, the Additional Party agrees that the Purchaser shall
not be bound
or obligated in anyway to exhaust recourse against the Seller
before being
entitled to demand the performance by the Additional Party of its
obligations
hereunder. Performance by the Additional Party of any of the
Seller's
obligations hereunder shall be deemed to be performance thereof by
the Seller.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Sidley Austin Brown & Wood LLP,
787 Seventh
Avenue, New York, New York 10019 at 10:00 a.m., New York City time,
on the
Closing Date.
The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller
and the Additional Party set forth in or made pursuant to Sections
3(a) and 3(b)
of this Agreement, and all of the representations and warranties of
the
Purchaser set forth in Section 4 of this Agreement, shall be true
and correct in
all material respects as of the Closing Date;
(b) Insofar as it affects the obligations of the Seller
hereunder, the Pooling and Servicing Agreement shall be in a form
mutually
acceptable to the Purchaser and the Seller;
(c) All documents specified in Section 8 of this Agreement
(the "Closing Documents"), in such forms as are reasonably
acceptable to the
Purchaser, shall be duly executed and delivered by all signatories
as required
pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the
Trustee (or a Custodian on its behalf), the Master Servicer and the
Special
Servicer all documents and funds required to be delivered to the
Trustee, the
Master Servicer and the Special Servicer, respectively, pursuant to
Section 2 of
this Agreement;
(e) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been
complied with
in all material respects, and the Seller and
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Additional Party 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, the Seller
and the Additional Party;
(b) The Pooling and Servicing Agreement duly executed by the
parties thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) Certificates of each of the Seller and the Additional
Party, executed by a duly authorized officer of the Seller or the
Additional
Party, as the case may be, 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
or the
Additional Party, as the case may be, in this Agreement and, in the
case of the
Seller, 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 or the Additional Party, as the case may
be, 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 each of the
Seller and the Additional Party, 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 or the Additional Party, as the
case may be,
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 case of the Seller, in
the
Indemnification Agreement, was at the respective times of such
signing and
delivery, and is as of the Closing Date, duly elected or appointed,
qualified
and acting as such officer or representative, and the signatures of
such persons
appearing on such documents and certificates are their genuine
signatures;
(f) As certified by an officer of each of the Seller and the
Additional Party, 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, in the case of the Seller, the
Indemnification Agreement,
(ii) the organizational documents of each of the Seller and the
Additional
Party, and (iii) a
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certificate of good standing of each of the Seller and the
Additional Party,
issued by the Secretary of State of the State of Delaware not
earlier than 10
days prior to the Closing Date;
(g) A Certificate of the Co-Indemnitor, executed by a duly
authorized officer of the Co-Indemnitor and dated the Closing Date,
and upon
which the initial Purchaser, the Underwriters and the Placement
Agents may rely,
to the effect that the representations and warranties of the
Co-Indemnitor 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;
(h) An Officer's Certificate from an officer of the
Co-Indemnitor, 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 Co-Indemnitor, signed the Indemnification Agreement or any
other document or
certificate delivered on or before the Closing Date in connection
with the
transactions contemplated therein, 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;
(i) As certified by an officer of the Co-Indemnitor, true and
correct copies of (i) the resolutions of the board of directors
authorizing the
Co-Indemnitor's entering into the transactions contemplated by the
Indemnification Agreement, (ii) the organizational documents of the
Co-Indemnitor, and (iii) a certificate of good standing of the
Co-Indemnitor
issued by the Secretary of State of the State of Delaware not
earlier than 10
days prior to the Closing Date;
(j) A favorable opinion of Cadwalader, Wickersham & Taft LLP
("CWT"), special counsel to the Seller, the Additional Party and
the
Co-Indemnitor, 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;
(k) An Officer's Certificate from an officer of each of the
Seller and the Co-Indemnitor, in each case delivered in connection
with the
opinion of CWT to be delivered pursuant to Section 8(j) above, in
form and
substance satisfactory to the addressees of such opinion and upon
which such
addressees may rely;
(l) A favorable opinion of in-house counsel to the Additional
Party, substantially in the form attached hereto as Exhibit C-2,
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;
(m) 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;
(n) 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
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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
(o) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Costs.
An amount equal to 39.36390% 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 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.
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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, the Additional Party and/or
the
Co-Indemnitor 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 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, THE SELLER, THE ADDITIONAL PARTY 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; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
SHALL BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR
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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
NEITHER A NEW
YORK STATE NOR 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".
SECTION 16. Further Assurances.
The Seller, the Additional Party 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 and the Additional
Party under this Agreement shall not be assigned by the Seller or
the Additional
Party, as the case may be, without the prior written consent of the
Purchaser,
except that any person into which the Seller or the Additional
Party may be
merged or consolidated, or any corporation resulting from any
merger, conversion
or consolidation to which the Seller or the Additional Party is a
party, or any
person succeeding to all or substantially all of the business of
the Seller or
the Additional Party, shall be the successor to the Seller or the
Additional
Party, as the case may be, 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 Additional
Party, 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 and the Additional Party's
obligations
hereunder shall in no way be expanded, changed or otherwise
affected by any
amendment of or modification to the Pooling and Servicing
Agreement, unless the
Seller or the Additional Party, as applicable, has consented to
such amendment
or modification in writing.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized
officers as
of the date first above written.
SELLER
UBS REAL ESTATE INVESTMENTS INC.
By: /s/ Robert Pettinato
--------------------
Name: Robert Pettinato
Title: Director
By: /s/ Brad Cohen
--------------
Name: Brad Cohen
Title: Director
Address for Notices:
1285 Avenue of the Americas, 11th Floor
New York, New York 10019
Attention: Robert Pettinato
Telecopier No.: (212) 713-2631
ADDITIONAL PARTY
UBS PRINCIPAL FINANCE LLC
By: /s/ Robert Pettinato
--------------------
Name: Robert Pettinato
Title: Director
By: /s/ Brad Cohen
--------------
Name: Brad Cohen
Title:
