EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of October 25, 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-C7, Commercial Mortgage Pass-Through Certificates, Series
2005-C7. 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 October 11, 2005
(the
"Pooling and Servicing Agreement"), between the Purchaser, as
depositor,
Wachovia Bank, National Association, as master servicer (the
"Master Servicer"),
Midland Loan Services, 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 ("UBSS" 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 UBSS
(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 $768,227,117 (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
November 4, 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
October 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 32.84959% 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 8 hereof, the Seller
does hereby
sell, transfer, assign, set over and otherwise convey to the
Purchaser, without
recourse, all the right, title and interest of the Seller (other
than the
primary servicing rights) in and to the Mortgage Loans identified
on the
Mortgage Loan Schedule as of such date. The Mortgage Loan Schedule,
as it may be
amended, shall conform to the requirements set forth in this
Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off
Date, and all
other recoveries of principal and interest collected after the
Cut-off Date
(other than in respect of principal and interest on the Mortgage
Loans due on or
before the Cut-off Date). All scheduled payments of principal and
interest due
on or before the Cut-off Date for each Mortgage Loan, but collected
after such
date, shall belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of
the
initial Purchaser, deliver to and deposit with (i) the Trustee or a
Custodian
appointed thereby, a Mortgage File for each Mortgage Loan in
accordance with the
terms of, and conforming to the requirements set forth in, the
Pooling and
Servicing Agreement, with copies of each Mortgage File to be
delivered by the
Trustee to, upon request, the Master Servicer (at the expense of
the Trustee),
within 10 Business Days of such request; and (ii) the Master
Servicer (or, at
the direction of the Master Servicer, to the appropriate
Sub-Servicer), 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, 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
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(ii) such assignments to be delivered to the Trustee following
their return by
the applicable public recording office, with copies of any such
returned
assignments to be delivered by the Trustee to the Master Servicer,
at the
expense of the Seller, at least every 90 days after the Closing
Date (or at
additional times upon the request of the Master Servicer if
reasonably necessary
for the ongoing administration and/or servicing of the related
Mortgage Loan by
the Master Servicer); provided that, in those instances where the
public
recording office retains the original assignment of Mortgage or
assignment of
Assignment of Leases, a certified copy of the recorded original
shall be
forwarded to the Trustee. If any such document or instrument is
lost or returned
unrecorded because of a defect therein, then the Seller shall
prepare a
substitute therefor or cure such defect or cause such to be done,
as the case
may be, and the Seller shall deliver such substitute or corrected
document or
instrument to the Trustee (or, if the Mortgage Loan is then no
longer subject to
the Pooling and Servicing Agreement, to the then holder of such
Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such
recording and delivery contemplated in the preceding paragraph,
including,
without limitation, any out-of-pocket costs and expenses that may
be incurred by
the Trustee in connection with any such recording or delivery
performed by the
Trustee at the Seller's request and the fees of the Recording
Agent.
Pursuant to the Pooling and Servicing Agreement and a letter
agreement
dated November 4, 2005 (the "Filing Letter Agreement") between
Anthracite
Capital, Inc. ("AHR"), 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 AHR (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 AHR, 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 AHR pursuant to the Filing Letter Agreement, and such
expenses are
not paid by AHR 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, 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
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agreements, reserve agreements, organization documentation for the
related
mortgagor, organizational documentation for any related guarantor
or indemnitor,
if the related guarantor or indemnitor is an entity, insurance
certificates or
insurance review reports, leases for tenants representing 10% or
more of the
annual income with respect to the related Mortgaged Property, final
seismic
report and property management agreements, rent roll, property
operating
statement and financial statements for the related guarantor or
indemnitor, cash
management or lockbox agreement, zoning letters or zoning reports
and the
documents, if any, specifically set forth on Exhibit C hereto
(collectively, the
"Mortgage Origination Documents"), but in each case, only if the
subject
document (a) was in fact obtained in connection with the
origination of such
Mortgage Loan, (b) is reasonably necessary for the ongoing
administration and/or
servicing of such Mortgage Loan by the Master Servicer or Special
Servicer in
connection with its duties under the Pooling and Servicing
Agreement, and (c) is
in the possession or under the control of the Seller shall, within
45 days of
the Closing Date, be delivered or caused to be delivered by the
Seller to the
Master Servicer (or, at the direction of the Master Servicer, to
the appropriate
Sub-Servicer); provided that the Seller shall not be required to
deliver any
draft documents, privileged or other communications or
correspondence, credit
underwriting or due diligence analyses or information, credit
committee briefs
or memoranda or other internal approval documents or data or
internal
worksheets, memoranda, communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action
inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for
actions that
are the express responsibility of another party hereunder or under
the Pooling
and Servicing Agreement, and further except for actions that the
Seller is
expressly permitted to complete subsequent to the Closing Date, the
Seller
shall, on or before the Closing Date, take all actions required
under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller
to the
Purchaser.
(g) In connection with the obligations of the Master Servicer under
Sections 3.01(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) hereof
and provide
each Seller and the Controlling Class Representative and the
Special Servicer
with a certificate (the "Master Servicer Certification") within 90
days of the
Closing Date acknowledging its (or the appropriate Sub-Servicer's)
receipt as of
the date of the Master Servicer Certification of such documents
actually
received (provided that such review shall be limited to identifying
the document
received, the Serviced Trust Mortgage Loan to which it purports to
relate, that
it appears regular on its face and that it appears to have been
executed (where
appropriate)). Notwithstanding anything to the contrary set forth
herein, to the
extent the Seller has not been notified in
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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 (i)
to
the Master Servicer for deposit in the Pool Custodial Account, the
Initial
Deposits relating to the Mortgage Loans, and (ii) to the Trustee
for deposit in
the Interest Reserve Account, the Interest Reserve Deposit with
respect to each
Mortgage Loan that is an Interest Reserve Mortgage Loan.
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:
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.
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).
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.
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.
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
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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.
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.
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.
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:
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.
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.
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
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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.
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.
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.
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.
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.
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.
The Seller is a United States Tax Person and is not a Disqualified
Organization.
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(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 Wachovia 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
Purchaser to cause the Seller's Residual Interest Certificates to
be registered
in the name of JPMorgan Chase Bank 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:
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.
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).
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.
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.
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.
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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) of the definition of Mortgage File
or a
document, if any, specifically set forth on Exhibit D hereto, has
not been
executed (if applicable) or is missing (a "Document Defect") or
(ii) of a breach
of any of the Seller's representations and warranties made pursuant
to Section
3(b) hereof (each such breach, a "Breach") relating to any Mortgage
Loan, and
such Document Defect or Breach, as of the date specified in Section
5(b)(i)
hereof, materially and adversely affects the value of the Mortgage
Loan, then
such Document Defect shall constitute a "Material Document Defect"
or such
Breach shall constitute a "Material Breach", as the case may be. In
the event
the Seller obtains actual knowledge of a Material Document Defect
or Material
Breach, then the Seller shall deliver written notification to the
Trustee with
respect thereto. Then, following receipt by the Seller of a
Seller/Depositor
Notification with respect to such Material Document Defect or
Material Breach,
as the case may be, the Seller shall (subject to Sections 5(f), (g)
and (h)
hereof), (A) not later than (1) 90 days after the Seller and the
Purchaser have
agreed upon the existence of such Material Document Defect or
Material Breach or
(2) 60 days after an arbitration panel makes a binding
determination, in
accordance with the provisions of Section 5(i) hereof, that a
Material Document
Defect or Material Breach exists or (B) in the case of a Material
Document
Defect or Material Breach that affects whether a Mortgage Loan was,
as of the
Closing Date, is or will continue to be a "qualified mortgage"
within the
meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than 90 days
following the discovery by any party of such Material Document
Defect or
Material Breach (each of such 90-day period referred to in clause
(A)(1) above,
or such 60-day period referred to in clause (A)(2) above, or such
90-day period
referred to in clause (B) above, as applicable, is referred to as
the "Initial
Resolution Period"): (i) cure such Material Document Defect or
Material Breach,
as the case may be, in all material respects (which cure shall
include payment
of any out-of-pocket expenses that are reasonably incurred and
directly
attributable to pursuing such a claim based on such Material
Document Defect or
Material Breach associated therewith), or (ii) if such Material
Document Defect
or Material Breach, as the case may be, cannot be cured within the
Initial
Resolution Period, repurchase the affected Mortgage Loan (or the
related
Mortgaged Property) from, and in accordance with the directions of,
the
Purchaser or its designee, at a price equal to the Purchase Price;
provided that
if (a) such Material Breach or Material Document Defect, as the
case may be, is
capable of being cured but not within the applicable Initial
Resolution Period,
(b) any such Material Breach or Material Document Defect, as the
case may be,
does not affect whether the Mortgage Loan was, as of the Closing
Date, is or
will continue to be a Qualified Mortgage, (c) the Seller has
commenced and is
diligently proceeding with the cure of such Material Breach or
Material Document
Defect, as the case may be, within the applicable Initial
Resolution Period, and
(d) the Seller shall have delivered to the Purchaser a
certification executed on
behalf of the Seller by an officer thereof confirming that such
Material Breach
or Material Document Defect, as the case may be, is not capable of
being cured
within the applicable Initial Resolution Period, setting forth what
actions the
Seller is pursuing in connection with the cure thereof and stating
that the
Seller anticipates that such Material Breach or Material Document
Defect, as the
case may be, will be cured within an additional period not to
exceed, 90 days
beyond the end of the Initial Resolution Period (in the event the
Seller and the
Purchaser have agreed upon the existence of such Material Document
Defect or
Material Breach as described under Section 5(a)(ii)(A)(1)), or 45
days beyond
the end of the Initial Resolution Period (in the event an
arbitration panel has
made a binding determination, as described under Section
5(a)(ii)(A)(2) hereof,
that a Material Document Defect or Material Breach exists), then
the
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Seller shall have such additional 90-day period or 45-day period,
as the case
may be (each such period, the "Resolution Extension Period"), to
complete such
cure or, failing such, to repurchase the affected Mortgage Loan (or
the related
Mortgaged Property); and provided, further, that, if any such
Material Document
Defect is still not cured after the Initial Resolution Period and
any such
applicable Resolution Extension Period solely due to the failure of
the Seller
to have received a recorded document, then the Seller shall be
entitled to
continue to defer its cure and repurchase obligations in respect of
such
Material Document Defect so long as the Seller certifies to the
Purchaser every
six months thereafter that the Material Document Defect is still in
effect
solely because of its failure to have received the recorded
document and that
the Seller is diligently pursuing the cure of such defect
(specifying the
actions being taken). The parties acknowledge that neither delivery
of a
certification or schedule of exceptions to the Seller pursuant to
Section
2.02(b) of the Pooling and Servicing Agreement or otherwise nor
possession of
such certification or schedule by the Seller shall, in and of
itself, constitute
delivery of notice of any Material Document Defect or Material
Breach or
knowledge or awareness by the Seller of any Material Document
Defect or Material
Breach.
If, during the period of deferral by the Seller of its cure and
repurchase obligations as contemplated by the last proviso of the
penultimate
sentence of the preceding paragraph, the Mortgage Loan that is the
subject of
the Material Document Defect either becomes a Specially Serviced
Mortgage Loan
or becomes the subject of a proposed or actual assumption of the
obligations of
the related Mortgagor under such Mortgage Loan, then, following
receipt by the
Seller of a Seller/Depositor Notification providing notice of such
event, the
Seller shall cure the subject Material Document Defect within the
time period
specified in such Seller/Depositor Notification. If, upon the
expiration of such
period, the Seller has failed to cure the subject Material Document
Defect, the
Master Servicer or the Special Servicer, as applicable, shall be
entitled (but
not obligated) to perform the obligations of the Seller with
respect to curing
the subject Material Document Defect and, in the event of such an
election, the
Seller shall pay all reasonable actual out-of-pocket costs and
expenses in
connection with the applicable servicer's effecting such cure.
(b) 1. Provided that any Seller/Depositor Notification with respect
to
a Material Document Defect or Material Breach is received by the
Seller in
accordance with the provisions of the Pooling and Servicing
Agreement), within
24 months of the Closing Date, the material and adverse effect of
the related
Document Defect or Breach shall be determined as of the date
hereof. After the
expiration of 24 months following the Closing Date, the material
and adverse
effect of any Document Defect or Breach that was not the subject of
another
Seller/Depositor Notification, received by the Seller (in
accordance with the
provisions of the Pooling and Servicing Agreement), within 24
months of the
Closing Date, shall be determined as of the date of such
Seller/Depositor
Notification.
In the event the Seller is obligated to repurchase any Mortgage
Loan pursuant to
this Section 5, such obligation shall extend to any successor REO
Mortgage Loan
with respect thereto as to which (A) the subject Material Breach
existed as to
the subject predecessor Mortgage Loan prior to the date the related
Mortgaged
Property became an REO Property or within 90 days thereafter, and
(B) as to
which the Seller had received, no later than 90 days following the
date on which
the related Mortgaged Property became an REO Property, a
Seller/Depositor
Notification from the Trustee regarding the occurrence of the
applicable
Material Breach and directing the Seller to repurchase the subject
Mortgage
Loan.
(c) If one or more (but not all) of the Mortgage Loans constituting
a
Cross-Collateralized Group are to be repurchased by the Seller as
contemplated
by Section 5(a) hereof, then,
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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
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,
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as set forth in such representation or warranty, then the Purchaser
or its
designee will direct the Seller in writing to wire transfer to the
Custodial
Account, within 90 days of receipt of such direction, the amount of
any such
reasonable costs and expenses incurred by the Trust that (i) are
due from the
Mortgagor, (ii) otherwise would have been required to be paid by
the Mortgagor
if such representation or warranty with respect to such costs and
expenses had
in fact been true, as set forth in the related representation or
warranty, (iii)
have not been paid by the Mortgagor, (iv) are the basis of such
Breach and (v)
constitute "Covered Costs". Upon payment of such costs, the Seller
shall be
deemed to have cured such Breach in all respects. Provided that
such payment is
made, this paragraph describes the sole remedy available to the
Purchaser
regarding any such Breach, regardless of whether it constitutes a
Material
Breach, and the Seller shall not be obligated to otherwise cure
such Breach or
repurchase the affected Mortgage Loan under any circumstances.
Amounts deposited
in the Pool Custodial Account pursuant to this paragraph shall
constitute
"Liquidation Proceeds" for all purposes of the Pooling and
Servicing Agreement
(other than Section 3.11(c) of the Pooling and Servicing
Agreement).
(g) Subject to Section 5(f) hereof and the last three sentences of
this paragraph, if the Seller determines that a Material Breach
(other than a
Material Breach of a representation or warranty on the part of the
Seller set
forth in and made pursuant to paragraph (xvii) of Exhibit B to this
Agreement)
or a Material Document Defect with respect to a Mortgage Loan is
not capable of
being cured in accordance with Section 5(a) hereof, then in lieu of
repurchasing
such Mortgage Loan the Seller may, at its sole option, pay a cash
amount equal
to the loss of value (each such payment, a "Loss of Value Payment")
with respect
to such Mortgage Loan, which loss of value is directly attributed
to such
Material Breach or Material Document Defect, as the case may be.
The amount of
each such Loss of Value Payment shall be determined either (i) by
mutual
agreement of the Special Servicer on behalf of the Trust with
respect to the
subject Material Breach or Material Document Defect, as the case
may be, and the
Seller, or (ii) by an arbitration panel pursuant to a binding
arbitration
proceeding in accordance with Section 5(i) hereof; provided that,
in the event
there is an arbitration proceeding for determining the existence of
a Material
Breach or a Material Document Defect with respect to any Mortgage
Loan, such
arbitration proceeding must also include a determination of the
amount of the
loss of value to such Mortgage Loan directly attributed to such
Material Breach
or such Material Document Defect, as the case may be. Provided that
such payment
is made, this paragraph describes the sole remedy available to the
Purchaser
regarding any such Material Breach or Material Document Defect and
the Seller
shall not be obligated to otherwise cure such Material Breach or
Material
Document Defect or repurchase the affected Mortgage Loan based on
such Material
Breach or Material Document Defect under any circumstances.
Notwithstanding the
foregoing provisions of this Section 5(g), if 95% or more of the
loss of value
to a Mortgage Loan was caused by a Material Breach or Material
Document Defect,
which Material Breach or Material Document Defect is not capable of
being cured,
this Section 5(g) shall not apply and the Seller shall be obligated
to
repurchase the affected Mortgage Loan at the applicable Purchase
Price in
accordance with Section 5(a) hereof. Furthermore, the Seller shall
not have the
option of delivering Loss of Value Payments in connection with any
Material
Breach relating to a Mortgage Loan's failure to be a Qualified
Mortgage. In the
event there is a Loss of Value Payment made by the Seller in
accordance with
this Section 5(g), the amount of such Loss of Value Payment shall
be deposited
into the Loss of Value Reserve Fund to be applied in accordance
with Section
3.05(e) of the Pooling and Servicing Agreement.
In the event the amount of any Loss of Value Payment is determined
by
an arbitration panel pursuant to a binding arbitration proceeding
in accordance
with Section 5(i) hereof, then such Loss of Value Payment shall
also include the
payment of any costs and expenses (including costs incurred in
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establishing the amount of any related loss of value to the subject
Mortgage
Loan, including reasonable legal fees) that are reasonably incurred
in good
faith by the Master Servicer, the Special Servicer and/or the
Trustee (on behalf
of the Trust) in enforcing the rights of the Trust against the
Seller with
respect to the subject Material Breach or Material Document Defect,
as the case
may be; provided that, that in the event the Seller tenders a loss
of value
payment in a specified amount in connection with a Material Breach
or Material
Document Defect, as the case may be, prior to the institution of
arbitration
proceedings and that offer is rejected and an amount equal to or
less than the
loss of value payment originally tendered by the Seller is
ultimately determined
by an arbitration panel pursuant to a binding arbitration
proceeding in
accordance with Section 5(i) hereof to be the actual amount of the
Loss of Value
Payment attributed to such Material Breach or Material Document
Defect, as the
case may be, then that Loss of Value Payment shall not include the
payment of
any costs or expenses incurred in enforcing the rights of the Trust
against the
Seller with respect to the subject Material Breach or Material
Document Defect,
as the case may be; provided, further, that if the Special Servicer
request a
loss of value payment from the Seller of a specified amount in
connection with a
Material Breach or Material Document Defect, as the case may be,
and the Seller
refuses to pay that amount and an amount equal to or greater than
the loss of
value payment originally requested by the Special Servicer is
ultimately
determined by an arbitration panel pursuant to a binding
arbitration proceeding
in accordance with Section 5(i) hereof to be the actual Loss of
Value Payment
attributable to such Material Document Defect or Material Breach,
then that Loss
of Value Payment shall also include the payment of any costs or
expenses
reasonably incurred in good faith in enforcing the rights of the
Trust against
the Seller with respect to the subject Material Breach or Material
Document
Defect, as the case may be; and provided, further, that, if the
Seller tenders a
loss of value payment in connection with a Material Breach or
Material Document
Defect, as the case may be, in a specified amount, and the Special
Servicer
rejects such tender and requests a greater loss of value payment
amount, and an
amount in between the respective amounts tendered and requested is
ultimately
determined by an arbitration panel pursuant to a binding
arbitration proceeding
in accordance with Section 5(i) hereof to be the actual Loss of
Value Payment
attributable to such Material Breach or Material Document Defect,
as the case
may be, then that Loss of Value Payment shall also include the
payment of an
amount equal to the product of (i) all costs and expenses
reasonably incurred in
connection with that arbitration proceeding, multiplied by (ii) a
fraction, the
numerator of which is the excess of the amount determined by that
arbitration
proceeding over the amount tendered by the Seller, and the
denominator of which
is the excess of the amount requested by the Special Servicer over
the amount
tendered by the Seller. Notwithstanding the foregoing, in the event
any Loss of
Value Payment is determined by the parties hereto by mutual
agreement (and not
by an arbitration proceeding), that Loss of Value Payment shall not
include any
costs and expenses incurred by the Master Servicer, the Special
Servicer or the
Trustee unless such costs and expenses were specifically included
in such mutual
agreement.
(h) Notwithstanding the foregoing, if there exists a Material
Breach
of the representation or warranty on the part of the Seller set
forth in and
made pursuant to paragraph (xvii) of Exhibit B to this Agreement,
and the
subject Mortgage Loan becomes a Qualified Mortgage prior to the
expiration of
the Initial Resolution Period applicable to a 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.
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(i) The parties hereto agree that any controversy or claim (a
"Dispute") arising under Section 5(a), Section 5(b) and/or Section
5(g) of this
Agreement shall be resolved in accordance with the following
Mediation/Arbitration procedures in this Section 5(i).
If the Seller receives a Seller/Depositor Notification pursuant to
Section 5(a) of this Agreement regarding the alleged existence of a
Material
Document Defect or Material Breach and requesting the Seller to
cure or
repurchase the affected Mortgage Loan in connection therewith (a
"Notice"), and
the Seller does not agree upon the existence of such Material
Document Defect or
Material Breach within 90 days of receiving such Notice, then,
unless otherwise
agreed to by the parties involved in the Dispute, that Dispute
shall be
submitted to non-binding mediation in accordance with the
provisions of this
paragraph; provided, that if the Seller is proceeding to cure the
subject
Material Document Defect or Material Breach, then that Dispute
shall not be
submitted to mediation until the expiration of the related
Resolution Extension
Period and the failure of the Seller to complete such cure (unless
otherwise
agreed to by the parties involved in the Dispute). Following the
90-day period
referred to in the preceding sentence and subject to the preceding
proviso, any
party to this Agreement that is involved in the Dispute may send a
written
letter (a "Mediation Letter") to another party to this Agreement
that they wish
the mediation process to begin between the sender and the recipient
of such
Mediation Letter. Following receipt of a Mediation Letter, a
mediator(s) shall
be selected by agreement of the parties to the mediation. If such
parties cannot
agree on a mediator, [a mediator will be designated by the
JAMS/Endispute at the
request of any party (provided that any mediator so designated must
be
acceptable to both the Seller and the Purchaser or its assignee)]
[then the
mediation shall be conducted by three mediators, one of which shall
be selected
by the Seller and one of which shall be selected by the Purchaser
or its
assignee. Each of the parties to the mediation shall submit the
name of the
person it has selected to serve as a mediator to the opposing party
within 10
days of the date of the Mediation Letter. If either party fails to
submit the
name of its selected mediator within 10 days of the date of the
Mediation
Letter, the other party shall have the right to select the second
mediator in
addition to its own mediator (provided that such party has
submitted the name of
its selected mediator within 10 days of the date of the Mediation
Letter). The
two mediators selected by the party(ies) shall appoint a third
mediator within
20 days of the date of the Mediation Letter or such longer time
period as agreed
to by the parties to the mediation. Any mediator(s) so designated
must be
acceptable to both the Seller and the Purchaser or its assignee.]
Any mediators
appointed or selected pursuant to the provisions of this paragraph
must be
experienced professionals in the CMBS industry.
Any mediation related to a particular Dispute and commenced in
accordance with the preceding paragraph must be completed within 90
days of the
date of the Mediation Letter (or a longer period, if the parties to
the
mediation agreed to extend the mediation). Any mediation referred
to in this
Section 5(i) shall be conducted in the manner specified by the
mediator(s) and
agreed upon by the Seller and the Purchaser or its assignee and any
such
mediation shall be conducted in New York City to the exclusion of
all other
locations (unless otherwise agreed to by the parties to the
mediation). During
the mediation process, the parties to the mediation shall discuss
their
differences voluntarily and in good faith and attempt, with the
assistance of
the mediator(s) as a facilitator of the negotiations, to reach an
amicable
resolution of the Dispute. The mediation will be treated as a
settlement
discussion and therefore will be confidential. No mediator selected
in
accordance with this Section 5(i) may testify for either party in
any later
proceeding relating to the Dispute. No recording or transcript
shall be made of
the mediation proceedings. The fees and expenses of all mediator(s)
shall be
shared equally by the parties to the mediation; provided, that the
party to the
mediation that is acting on behalf of the Trust in accordance with
the
provisions of this Section 5(i) shall be entitled to reimbursement
or
indemnification
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by the Trust Fund for such fees and expenses if and to the extent
permitted
under the Pooling and Servicing Agreement.
Notwithstanding anything to the contrary herein, no party shall be
required to agree to a Dispute resolution pursuant to mediation and
no decision
or resolution of a mediator or mediators shall be binding on any
party unless
such decision or resolution is expressly agreed to by such party.
In the event
the parties involved in the Dispute have not agreed to a Dispute
resolution
pursuant to mediation at the termination of the mediation, then
that Dispute
will be settled by arbitration in accordance with the succeeding
paragraphs of
this Section 5(i).
If a Dispute has not been resolved within 90 days of the date of
the
Mediation Letter (or such shorter or longer period as is expressly
agreed to by
the parties to the mediation), the mediation shall terminate and
the Dispute
will be settled by arbitration. Following the date of termination
of mediation,
which shall be the date occurring 90 days after the date of the
Mediation Letter
unless otherwise expressly agreed to by the parties to the
mediation,
arbitration may be commenced by any party to this Agreement
involved in the
Dispute sending a written notice to another party to this Agreement
involved in
the Dispute that they wish the arbitration process to begin with
respect to the
Dispute between the sender and the recipient of such written
notice. The date
any such party receives written notice in accordance with this
Section 5(i) from
another party that such party wishes to commence arbitration shall
be referred
to as the "Arbitration Commencement Date". Any arbitration
hereunder shall be
conducted in accordance with the provisions of this Agreement and
the American
Arbitration Association Rules for Large Complex Commercial Disputes
("AAA
Rules"), but shall not be conducted by the American Arbitration
Association
("AAA"). Discovery will be permitted in connection with the
arbitration in
accordance with the AAA Rules. In the event of a conflict, the
provisions of
this Agreement will control. Such arbitration shall be conducted
before a panel
of three arbitrators, regardless of the size of the Dispute. The
arbitration
panel shall consist of one person selected by the Seller and one
person selected
by the Purchaser or its assignee. Each such party shall submit the
name of the
person it has selected to serve as an arbitrator to the other party
within 30
days of the Arbitration Commencement Date (or such longer period as
is expressly
agreed to by the parties to the arbitration). If either such party
fails to
submit the name of its selected arbitrator within 30 days of the
Arbitration
Commencement Date, then the other such party shall have the right
to select the
second arbitrator in addition to its own arbitrator (provided that
such party
has submitted the name of its selected arbitrator within 30 days of
the
Arbitration Commencement Date). The two arbitrators designated in
accordance
with the two preceding sentences shall appoint a third arbitrator
within 45 days
of the Arbitration Commencement Date (or such longer period as is
expressly
agreed to by the parties to the arbitration). All arbitrators
appointed or
selected pursuant to the provisions of this paragraph must be
experienced
professionals in the CMBS industry. The third arbitrator shall be
an Independent
person who has not previously been employed by either party and
does not have a
direct or indirect interest in either party or the subject matter
of the
arbitration. The two (2) arbitrators appointed by the parties to
the arbitration
are not required to be neutral and it shall not be grounds for
removal of either
of such arbitrators or for vacating an arbitration award that
either of such
arbitrators has past or present relationships with the party that
appointed such
arbitrator. No potential arbitrator may serve on the panel unless
he or she has
agreed in writing to abide and be bound by the terms and provisions
of this
Agreement and the AAA Rules and to keep confidential the terms of
any
arbitration proceeding related to this Agreement and the terms of
any
discussion, negotiation, decision, agreement or resolution in
connection
therewith.
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Any issue concerning the extent to which any Dispute is subject to
arbitration, or concerning the applicability, interpretation, or
enforceability
of these procedures, including any contention that all or part of
these
procedures are invalid or unenforceable, shall be resolved by the
arbitrators.
In no event, notwithstanding that any provision of this Agreement
is held to be
invalid or unenforceable, shall the arbitrators have the power to
make an award
or impose a remedy that could not be made or imposed by a court
deciding the
matter in the same jurisdiction. In no event shall the arbitrators
have the
power to make an award or impose a remedy that is not contemplated
by, or
conflicts with the terms and provisions of, this Agreement or the
Pooling and
Servicing Agreement (other than any term or provision of this
Agreement or the
Pooling and Servicing Agreement that is held to be invalid or
unenforceable).
Without limiting the foregoing, the arbitrators shall have no
authority to award
treble, consequential or punitive damages of any type under any
circumstances,
whether or not such damages may be available under the AAA Rules or
any other
act or law. Subject to the provisions of this Agreement, the result
of the
arbitration will be binding on the parties involved in the Dispute,
and judgment
on the arbitrators' award may be entered, subject to the provisions
of Section
16 of this Agreement, in any court of competent jurisdiction.
All mediations and arbitrations shall be conducted in New York City
to
the exclusion of all other locations (unless otherwise expressly
agreed to by
the parties to the subject mediation or arbitration, as
applicable). The party
to an arbitration that is acting on behalf of the Trust in
accordance with the
provisions of this Section 5(i) shall be entitled to reimbursement
or
indemnification by the Trust Fund for the fees and expenses
incurred in
connection therewith if and to the extent permitted under the
Pooling and
Servicing Agreement.
The parties to this Agreement hereby agree to waive any right to
trial
by jury fully to the extent that any such right shall now or
hereafter exist
with regard to the rights and remedies contained in this Section 5;
provided,
that if (i) any party to an arbitration governed by this Section
5(i) fails to
abide by the rules or deadlines for that arbitration (as such
deadlines may be
extended by express agreement of the parties to that arbitration),
or (ii) the
applicable appointed arbitrators determine that the subject Dispute
cannot be
resolved through arbitration either because the AAA Rules are
inapplicable to
the Dispute and/or the Federal Arbitration Act is inapplicable to
the Dispute or
for any other reason, then the other party (in the case of clause
(i)) or any
party (in the case of clause (ii)) to this Agreement may in its
sole option,
file a complaint to resolve the Dispute through a legal proceeding
and in
accordance with the provision contained in Section 16 hereof.
If any of the provisions of this Section 5(i) are determined by a
court of law to be invalid or unenforceable, the remaining
provisions shall
remain in effect and be binding on the parties involved in the
Dispute to the
fullest extent permitted by law.
SECTION 6. Repurchase of Early Defeasance Trust Mortgage Loans.
If the Purchaser or the Master Servicer notifies the Seller or the
Additional Party that the Mortgagor under any of the Mortgage Loans
that are
Early Defeasance Trust Mortgage Loans (i) intends to defease such
Early
Defeasance Trust Mortgage Loan in whole on or before the second
anniversary of
the Closing Date and the amount tendered by such Mortgagor to
defease such Early
Defeasance Trust Mortgage Loan (in accordance with the related loan
documents)
is less than the Purchase Price that would be applicable in the
event of a
repurchase of such Mortgage Loan pursuant to or as otherwise
contemplated by
Section 5(a), or (ii) intends to partially defease such Early
Defeasance Trust
Mortgage
-16-
Loan on or prior to the second anniversary of the Closing Date, or
(iii) intends
to defease such Early Defeasance Trust Mortgage Loan in whole on or
before the
second anniversary of the Closing Date and such Mortgagor is to
tender
Defeasance Collateral or such other collateral as is permitted in
connection
with a defeasance under the related loan documents that does not
constitute a
cash amount equal to or greater than the Purchase Price set forth
in clause (i)
above in this paragraph, then the Seller shall promptly repurchase
such Mortgage
Loan at the related Purchase Price in accordance with the
directions of the
Master Servicer on a whole loan, servicing released basis.
Upon the repurchase of a Mortgage Loan that is an Early Defeasance
Trust Mortgage Loan pursuant to Section 5 hereof and/or this
Section 6, the
Purchaser shall effect a "qualified liquidation" of the related
Loan REMIC in
accordance with the REMIC Provisions. The Seller hereby agrees to
pay all
reasonable costs and expenses, including the costs of any opinions
of counsel
under the Pooling and Servicing Agreement, in connection with any
such
"qualified liquidation" of the related Loan REMIC in accordance
with the REMIC
Provisions.
SECTION 7. 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 Sections 5 and 6 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 8. 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 9 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;
-17-
(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 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 9. 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
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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 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
("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 his or her individual capacity, in each case
delivered in
connection with the opinion of CWT to be delivered pursuant to
Section 9(j)
hereof, 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;
-19-
(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 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 10. Costs.
An amount equal to 32.84959% 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 11. 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
-20-
throughout the term of this Agreement and the Pooling and Servicing
Agreement;
and, in connection with the foregoing, the Seller authorizes the
Purchaser to
file any and all appropriate Uniform Commercial Code financing
statements.
SECTION 12. 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 13. 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 14. 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 15. 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 16. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS
NEGOTIATED, MADE AND
TO BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT
PERMITTED UNDER
APPLICABLE LAW AND SUBJECT TO SECTION 5(i) HEREOF, THE SELLER, THE
ADDITIONAL
PARTY AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE
JURISDICTION
OF ANY NEW YORK
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STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY, TO THE EXCLUSION
OF ALL OTHER
COURTS, WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT
OTHER THAN MATTERS TO BE SETTLED BY MEDIATION OR ARBITRATION IN
ACCORDANCE WITH
SECTION 5(i) HEREOF; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO
SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR
FEDERAL
COURTS, TO THE EXCLUSION OF ALL OTHER COURTS; (III) WAIVES, TO THE
FULLEST
POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM IN CONNECTION
WITH SUCH
ACTION OR PROCEEDING COMMENCED IN SUCH NEW YORK STATE OR FEDERAL
COURTS; AND
(IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW; PROVIDED, THAT IN THE EVENT
SECTION 5(i)
HEREOF IS INAPPLICABLE AND BOTH A NEW YORK STATE AND A FEDERAL
COURT SITTING IN
NEW YORK IN WHICH AN ACTION OR PROCEEDING HAS BEEN DULY AND
PROPERLY COMMENCED
BY ANY PARTY TO THIS AGREEMENT REGARDING A MATTER ARISING OUT OF OR
RELATING TO
THIS AGREEMENT HAS REFUSED TO ACCEPT JURISDICTION OVER OR OTHERWISE
HAS NOT
ACCEPTED SUCH ACTION OR PROCEEDING WITHIN, IN THE CASE OF EACH SUCH
COURT, 60
DAYS OF THE COMMENCEMENT OR FILING THEREOF, THEN THE WORDS "TO THE
EXCLUSION OF
ALL OTHER COURTS" IN CLAUSE (I) AND CLAUSE (II) OF THIS SENTENCE
SHALL NOT APPLY
WITH REGARD TO SUCH ACTION OR PROCEEDING AND THE REFERENCE TO
"SHALL" IN CLAUSE
(II) OF THIS SECTION SHALL BE DEEMED TO BE "MAY".
SECTION 17. 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 18. 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 19. 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
-22-
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.
-23-
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 W. Pettinato
------------------------------------
Name: Robert W. Pettinato
Title: Executive Director
By: /s/ Brad A. Cohen
------------------------------------
Name: Brad A. Cohen
Title: Executive 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 W. Pettinato
------------------------------------
Name: Robert W. Pettinato
Title: Executive Director
By: /s/ Brad A. Cohen
------------------------------------
Name: Brad A. Cohen
Title: Executive Director
Address for Notices:
1285 Avenue of the Americas, 11th Floor
New York, New York 10019
Attention: Robert Pettinato
Telecopier No.: (212) 713-2631
-24-
PURCHASER
STRUCTURED ASSET SECURITIES CORPORATION II
By: /s/ David Nass
--------------------------------------
Name: David Nass
Title: Senior Vice President
Address for Notices:
Structured Asset Securities Corporation II
745 Seventh Avenue
New York, New York 10019
Attention: Scott Lechner
Telecopier No.: (646) 758-4203
-25-
EXHIBIT A
MORTGAGE LOAN SCHEDULE
(See Attached)
MORTGAGE LOAN NUMBER
PROPERTY NAME
ADDRESS
CITY
STATE
--------------------
----------------------------------------
------------------------------------
-----------------
-------
4
Reckson Portfolio I
Various
Various
Various
7
Bethesda Towers
4330, 4340, 4350 East West Highway
Bethesda
MD
8
Cherryvale Mall
7200 Harrison Avenue
Rockford
IL
10
Station Place I
100 F Street, NE
Washington
DC
11
Tri-County Business Park
13300 McCormick Drive
Tampa
FL
12
Sarasota Main Plaza
1991 Main Street
Sarasota
FL
14
Reckson Portfolio II
Various
Melville
NY
15
3200 Wilshire Boulevard
3200 Wilshire Boulevard and 695
Los Angeles
CA
South Vermont Avenue
18
Bunker Hill/Valley Forge
1370 and 1400 Church Street
Bohemia
NY
19
1155 Market Street
1155 Market Street
San Francisco
CA
20
Home Depot
600 Meacham Road
Elk Grove Village
IL
33
Sunchase at Longwood
501 Sunchase Boulevard
Farmville
VA
34
East Hampton Village
105 Oak View Highway
East Hampton
NY
36
Silver Blue Lake Apartments
1301-1601 Northwest 103rd Street
Miami
FL
37
Route 17 North - Paramus
350 Route 17 North
Paramus
NJ
42
96th Street
743-745 Amsterdam Avenue
New York
NY
47
Embassy Apartments
1223 Federal Avenue
Los Angeles
CA
49
Prestige Mobile Home Park
3180 State Route 96
Clifton Springs
NY
52
Courtyard Norwich
181 West Town Street
Norwich
CT
53
GRM San Francisco
41099 Boyce Road
Fremont
CA
56
Fleming, Highland and Eastway Apartments
Various
Various
NY
64
1900 Euclid Avenue
1900 Euclid Avenue
Cleveland
OH
65
Brentwood Timberlane Apartments
4515 Maplewood Avenue
Wichita Falls
TX
67
Lowe's Home Improvement Center
2888 Brice Road
Columbus
OH
70
Springhill Suites
401 North Frontage Road
Waterford
CT
71
Hampton Inn Portfolio
Various
Various
MI
73
Oak Orchard Mobile Home Park
3322 Oak Orchard Road
Albion
NY
74
Meadowbrook Apartments
4396 Northwest 36th Street
Oklahoma City
OK
76
Turtle Bay
400 Harkless Drive
Syracuse
IN
78
Lakes Estates
1 EMS B37 Lane Lot 77
Warsaw
IN
79
Phoenix Building
2901 Fox Street
Philadelphia
PA
82
American Storage
5220 South Jones Boulevard
Las Vegas
NV
84
McClellan Hospital Building
624 McClellan Street
Schenectady
NY
85
AAA Friendly Storage
12324 State Highway 155 South
Tyler
TX
86
The Shoppes at Hunt Club
474 South Hunt Club Boulevard
Altamonte Springs
FL
87
CVS - Margate
5300 Coconut Creek Parkway
Margate
FL
89
Walgreens - Anderson
2539 West Whitner Street
Anderson
SC
100
Eckerd - Southern Pines
1690 US Highway 1
Southern Pines
NC
102
Walgreens - Dallas
4702 Jim Miller Road
Dallas
TX
103
107 Pacific Avenue
107 Pacific Avenue
Jersey City
NJ
106
Storage Malls
Various
Various
NY
109
RV Ranch and Stor-More
Various
Various
TX
110
Northrup Mobile Home Park
8199 State Route 5 and 20
Bloomfield
NY
111
Riverside Plaza
320-420 South Main Street
Red Bluff
CA
113
Bayonne Mobile Home Park
191-197 and 184-194 West 24th Street
Bayonne
NJ
115
67 North Main Street
67 North Main Street
New City
NY
126
Alegra Palms Apartments
801 South Allen Genoa Road
South Houston
TX
131
Golden Triangle Mobile Home Park
11001 Rancho Place
Keller
TX
CUT-OFF
MONTHLY
MORTGAGE
REMAINING TERM
MORTGAGE LOAN NUMBER
ZIP CODE
DATE BALANCE
P&I PAYMENT
RATE
TO MATURITY
--------------------
--------
--------------
-----------
---------
--------------
4
Various
122,850,000.00
539,743.75
5.2000000
60
7
20814
87,210,000.00
457,948.39
6.2150000
60
8
61112
84,000,000.00
462,945.66
5.0000000
120
10
20549
40,360,000.00
440,777.76
5.5310000
120
11
33626
38,160,000.00
186,356.83
5.7800000
60
12
34236
36,000,000.00
206,668.44
5.6000000
120
14
11747
31,032,268.00
136,340.84
5.2000000
60
15
90010
30,000,000.00
172,981.14
5.6400000
120
18
11716
25,000,000.00
142,984.21
5.5660000
120
19
94103
22,750,000.00
132,308.67
5.5900000
120
20
60007
20,360,000.00
89,968.11
5.2300000
120
33
23901
12,800,000.00
70,561.65
5.5000000
120
34
11937
12,700,000.00
72,627.98
5.5650000
120
36
33147
11,750,000.00
71,052.67
6.0800000
60
37
07652
11,700,000.00
53,203.31
5.3820000
120
42
10025
11,000,000.00
51,990.53
5.5940000
120
47
90025
10,000,000.00
44,864.58
5.3100000
120
49
14432
9,500,000.00
52,400.53
5.2400000
120
52
06360
9,400,000.00
54,156.22
5.6325000
120
53
94538
9,191,683.07
58,150.26
6.5000000
120
56
Various
8,254,748.48
46,301.79
5.3800000
120
64
44115
6,480,000.00
36,244.50
6.6200000
60
65
76308
6,466,051.02
35,782.80
5.2500000
120
67
43232
6,400,000.00
37,024.05
5.6700000
120
70
06385
6,335,000.00
36,497.84
5.6325000
120
71
Various
6,283,005.63
40,822.37
6.0600000
60
73
14411
5,984,000.00
34,953.09
5.7500000
120
74
73112
5,833,143.63
31,798.04
5.1250000
120
76
46567
5,505,000.00
31,222.25
5.4900000
84
78
46580
5,474,000.00
31,046.43
5.4900000
84
79
19129
5,450,000.00
42,155.71
6.9700000
120
82
89118
5,194,467.07
30,016.26
5.6500000
120
84
12304
5,000,000.00
28,798.61
5.6300000
120
85
75703
4,994,496.26
28,295.41
5.4700000
120
86
32703
4,700,000.00
26,011.83
5.2700000
120
87
33063
4,600,000.00
21,492.75
5.5300000
120
89
29624
4,410,000.00
20,306.93
5.4500000
0
100
28387
3,837,000.00
17,830.50
5.5000000
120
102
75227
3,780,000.00
17,469.81
5.4700000
120
103
07304
3,667,532.90
20,912.38
5.5200000
120
106
Various
3,596,395.57
21,514.43
5.9700000
120
109
Various
3,494,851.55
22,283.87
5.8750000
120
110
14469
3,350,000.00
18,519.58
5.2600000
120
111
96080
3,350,000.00
21,820.20
6.1150000
120
113
07002
3,300,000.00
19,425.94
5.8300000
120
115
10956
2,888,000.00
16,171.97
5.3750000
120
126
77587
2,167,473.56
11,875.52
5.1700000
120
131
76248
1,668,000.00
11,691.72
5.7300000
120
REMAINING
AMORTIZATION TERM
ADMINISTRATIVE
PRIMARY SERVICING
MORTGAGE LOAN NUMBER
MATURITY DATE
INTEREST ACCRUAL BASIS
COST RATE
FEE GROUND LEASE?
MORTGAGE LOAN SELLER
--------------------
-------------
----------------------
--------------
----------------------
--------------------
4
9/11/2010
0 Act/360
0.02080
0 Fee Simple
UBS
7
11/11/2010
0 Act/360
0.02080
0 Fee Simple
UBS
8
10/5/2015
360 30/360
0.02080
0 Fee Simple
UBS
10
10/11/2015
120 Act/360
0.02080
0 Fee Simple
UBS
11
9/11/2010
0 Act/360
0.02080
0 Fee Simple
UBS
12
9/11/2015
0 Act/360
0.02080
0 Fee Simple/Leasehold
UBS
14
10/11/2010
0 Act/360
0.02080
0 Fee Simple/Leasehold
UBS
15
11/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
18
9/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
19
10/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
20
10/11/2015
0 Act/360
0.02080
0 Fee Simple
UBS
33
7/11/2015
0 Act/360
0.02080
0 Fee Simple
UBS
34
9/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
36
9/11/2012
360 Act/360
0.02080
0 Fee Simple
UBS
37
9/11/2015
360 Act/360
0.02080
0 Leasehold
UBS
42
9/11/2015
0 Act/360
0.02080
0 Fee Simple
UBS
47
9/11/2015
0 Act/360
0.02080
0 Fee Simple
UBS
49
10/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
52
8/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
53
9/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
56
9/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
64
8/11/2010
0 Act/360
0.02080
0 Fee Simple
UBS
65
8/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
67
11/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
70
8/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
71
8/11/2010
300 Act/360
0.02080
0 Fee Simple
UBS
73
10/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
74
9/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
76
11/11/2012
360 Act/360
0.02080
0 Fee Simple
UBS
78
11/11/2012
360 Act/360
0.02080
0 Fee Simple
UBS
79
11/11/2015
300 Act/360
0.02080
0 Fee Simple
UBS
82
9/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
84
2/11/2016
360 Act/360
0.02080
0 Leasehold
UBS
85
9/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
86
10/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
87
8/11/2015
0 Act/360
0.02080
0 Fee Simple
UBS
89
11/11/2015
0 Act/360
0.02080
0 Fee Simple
UBS
100
8/11/2015
0 Act/360
0.02080
0 Fee Simple
UBS
102
10/11/2015
0 Act/360
0.02080
0 Fee Simple
UBS
103
8/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
106
9/11/2015
300 Act/360
0.02080
0 Fee Simple
UBS
109
9/11/2015
300 Act/360
0.02080
0 Fee Simple
UBS
110
10/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
111
10/11/2015
300 Act/360
0.02080
0 Fee Simple
UBS
113
10/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
115
10/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
126
9/11/2015
360 Act/360
0.02080
0 Fee Simple
UBS
131
10/11/2015
240 Act/360
0.02080
0 Fee Simple
UBS
MORTGAGE LOAN NUMBER
DEFEASANCE
ARD MORTGAGE LOAN
ANTICIPATED REPAYMENT DATE
--------------------
------------------------------------------------
-----------------
--------------------------
4
Defeasance
N/A
N/A
7
Yield Maintenance-Prepayment Penalty
N/A
N/A
8
Defeasance
N/A
N/A
10
Defeasance
N/A
N/A
11
Defeasance followed by Fix Penalty or Defeasance
N/A
N/A
12
Yield Maintenance
N/A
N/A
14
Defeasance
N/A
N/A
15
Defeasance
N/A
N/A
18
Defeasance
N/A
N/A
19
Defeasance
N/A
N/A
20
Defeasance
N/A
N/A
33
Defe
