Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document constituting a part of clauses (a)(i) through (a)(x) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) receives written notice of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan materially and adversely affects the value of such Trust Mortgage Loan at the time of such notice, then such Document Defect shall constitute a "Material Document Defect" or such Breach shall constitute a "Material Breach", as the case may be. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction makes a final non-appealable determination that a Material Document Defect or Material Breach exists or (B) in the case of a Material Document Defect or Material Breach that affects whether a Lehman Trust Mortgage Loan is or will continue to be a "qualified xxxxxxge" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either such 90-day period, in the case of (A) or (B) (with respect to a Lehman Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein 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 any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Trust Mortgage Loan or any related REO Property (or, in the xxxx of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed 90 days beyond the end of the Initial Resolution Period, then the Depositor shall have an additional 90-day period (such additional 90-day period (with respect to a Lehman Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the Initial Resolution Period and any such Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C8), Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C8)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document (A) constituting a part of the related Mortgage File pursuant to clauses (a)(i) through (a)(x) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" ", (B) specifically set forth on Schedule XI hereto (in the case of a Xxxxxx Trust Mortgage Loan only) or (C) specifically set forth on Exhibit D to the UBS/Depositor Mortgage Loan Purchase Agreement (in the case of a UBS Trust Mortgage Loan only), in any event has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) receives written notice or obtains actual knowledge of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan Loan, as of the date specified in the fourth paragraph of this Section 2.03(a), materially and adversely affects the value of such Trust Mortgage Loan at the time of such noticeLoan, 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 Depositor obtains actual knowledge of a Material Document Defect or Material Breach, then the Depositor shall deliver written notification to the Trustee with respect thereto. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than (1) 90 days after (1) the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction 60 days after an arbitration panel makes a final non-appealable determination binding determination, in accordance with the provisions of Section 2.03(i), 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 Lehman Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either and such 90-day or 60-day period, as applicable, in the case of clause (AA)(1), (A)(2) or (B) (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the an "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, in all material respects (which cure shall include payment of any out-of-pocket expenses that are reasonably incurred and directly attributable to pursuing such a claim based on such Material Document Defect or Material Breach associated therewith) or (ii) if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed either 90 days beyond the end of the applicable Initial Resolution PeriodPeriod (in the event the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach as described in clause (A)(1) of the second sentence of this paragraph) or 45 days beyond the end of the applicable Initial Resolution Period (in the event an arbitration panel has made a binding determination, as described in clause (A)(2) of the second sentence of this paragraph, that a Material Document Defect or Material Breach exists), then the Depositor shall have an such additional 90-day period or 45-day period, as the case may be (such additional 90-day period or 45-day period, as the case may be (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the a "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the applicable Initial Resolution Period and any such applicable Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure. Provided that any Seller/Depositor Notification with respect to a Material Document Defect or Material Breach is received by the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, the material and adverse effect of the subject Document Defect or Breach shall be determined as of the date of the Mortgage Loan Purchase Agreements. 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 Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, shall be determined as of the date of such Seller/Depositor Notification. If, in connection with any Material Breach, the Depositor is obligated to repurchase any Xxxxxx Trust Mortgage Loan pursuant to this Section 2.03, and/or the UBS Mortgage Loan Seller is obligated to repurchase any UBS Trust Mortgage Loan pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement, then such obligation shall extend to any REO Trust Mortgage Loan with respect thereto; provided that (i) the subject Material Breach existed as to the subject predecessor Trust Mortgage Loan prior to the date the related Mortgaged Property became an REO Property or within 90 days thereafter, and (ii) the party having the repurchase obligation 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 subject Material Breach and directing such party to repurchase the subject Trust Mortgage Loan.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C7), Pooling and Servicing Agreement (Structured Asset Securities Corp Ii)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document constituting a part of the related Mortgage File pursuant to clauses (a)(i) through (a)(x) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) receives written notice of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan Loan, materially and adversely affects the value of such Trust Mortgage Loan at the time of such notice, then such Document Defect shall constitute a "Material Document Defect" or such Breach shall constitute a "Material Breach", as the case may be. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction makes a final non-appealable determination that a Material Document Defect or Material Breach exists or (B) in the case of a Material Document Defect or Material Breach that affects whether a Lehman Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either such 90-day period, in the case of (A) or (B) (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the an "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, in all material respects (which cure shall include payment of any out-of-pocket expenses that are reasonably incurred and directly attributable to pursuing such a claim based on such Material Document Defect or Material Breach associated therewith) or (ii) if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed 90 days beyond the end of the Initial Resolution Period, then the Depositor shall have an additional 90-day period (such additional 90-day period (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the Initial Resolution Period and any such Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C5), Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C5)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document (A) constituting a part of the related Mortgage File pursuant to clauses (a)(i) through (a)(xa)(xiii) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" ", (B) specifically set forth on Schedule IX hereto with respect to a Xxxxxx Trust Mortgage Loan only or (C) specifically set forth on Exhibit D to the related Mortgage Loan Purchase Agreement with respect to any Non-Xxxxxx Trust Mortgage Loan only, has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the UBS related Unaffiliated Mortgage Loan Seller made pursuant to Section 3(b) of the UBSrelated UMLS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Non-Xxxxxx Trust Mortgage Loan (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS related Unaffiliated Mortgage Loan Seller (in thx xxxx the case of a UBS Non-Xxxxxx Trust Mortgage Loan) receives written notice or obtains actual knowledge of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan Loan, and such Document Defect or Breach, as of the date specified in the fourth paragraph of this Section 2.03(a), materially and adversely affects the value of such the subject Trust Mortgage Loan at the time of such noticeLoan, 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 Depositor obtains actual knowledge of a Material Document Defect or Material Breach, then the Depositor shall deliver written notification to the Trustee with respect thereto. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Non-Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS related Unaffiliated Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS related Unaffiliated Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor applicable Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than (1) 90 days after (1) the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction 60 days after an arbitration panel makes a final non-appealable determination binding determination, in accordance with the provisions of Section 2.03(i), 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 Lehman Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either and such 90-day or 60-day period, as applicable, in the case of clause (AA)(1), (A)(2) or (B) (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBSrelated UMLS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Non-Xxxxxx Trust Mortgage Loan), as applicable, are each referred to herein as the an "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, in all material respects (which cure shall include payment of any out-of-pocket expenses that are reasonably incurred and directly attributable to pursuing such a claim based on such Material Document Defect or Material Breach associated therewith) or (ii) if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed either 90 days beyond the end of the applicable Initial Resolution PeriodPeriod (in the event the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach as described in clause (A)(1) of the second sentence of this paragraph) or 45 days beyond the end of the applicable Initial Resolution Period (in the event an arbitration panel has made a binding determination, as described in clause (A)(2) of the second sentence of this paragraph, that a Material Document Defect or Material Breach exists), then the Depositor shall have an such additional 90-day period or 45-day period, as the case may be (such additional 90-day period or 45-day period, as the case may be (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor related Mortgage Loan Purchase Agreement (with respect to a UBS Non-Xxxxxx Trust Mortgage Loan), as applicable, are each referred to herein as the a "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the applicable Initial Resolution Period and any such applicable Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS related Unaffiliated Mortgage Loan Seller (in thx xxxx the case of a UBS Non-Xxxxxx Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) ), or the UBS related Unaffiliated Mortgage Loan Seller (in thx xxxx the case of a UBS Non-Xxxxxx Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS related Unaffiliated Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS an Unaffiliated Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBSrelated UMLS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, Trustee and either the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and or the UBS related Unaffiliated Mortgage Loan Seller (in txx xxxe the case of a UBS Non-Xxxxxx Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, Servicer and either the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and or the UBS related Unaffiliated Mortgage Loan Seller (in txx xxxe the case of a UBS Non-Xxxxxx Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS related Unaffiliated Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS related Unaffiliated Mortgage Loan Seller, as applicable, has failed to cure the subject Material Document Defect, then the Master Servicer or the Special Servicer, as applicable, shall be entitled (but not obligated) to perform the obligations of the Depositor or the UBS related Unaffiliated Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS each related Unaffiliated Mortgage Loan Seller will be obligated under the UBSrelated UMLS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure. Provided that if any Seller/Depositor Notification with respect to a Material Document Defect or Material Breach is received by the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, the material and adverse effect of the subject Document Defect or Breach shall be determined as of the date of the Mortgage Loan Purchase Agreements. 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 Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, shall be determined as of the date of such Seller/Depositor Notification. If, in connection with any Material Breach, the Depositor is obligated to repurchase any Xxxxxx Trust Mortgage Loan pursuant to this Section 2.03, or an Unaffiliated Mortgage Loan Seller is obligated to repurchase any Non-Xxxxxx Trust Mortgage Loan pursuant to the related UMLS/Depositor Mortgage Loan Purchase Agreement, then such obligation shall extend to any REO Trust Mortgage Loan with respect thereto; provided that (i) the subject Material Breach existed as to the subject predecessor Trust Mortgage Loan prior to the date the related Mortgaged Property became an REO Property or within 90 days thereafter, and (ii) the party having the repurchase obligation 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 subject Material Breach and directing such party to repurchase the subject Trust Mortgage Loan.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (LB Commercial Mortgage Trust 2007-C3), Pooling and Servicing Agreement (LB Commercial Mortgage Trust 2007-C3)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document constituting a part of the related Mortgage File pursuant to clauses (a)(ii) through (a)(x) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)x) of the definition of "Mortgage File" has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) receives written notice of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan Loan, materially and adversely affects the value of such Trust Mortgage Loan at the time of such notice, then such Document Defect shall constitute a "Material Document Defect" or such Breach shall constitute a "Material Breach", as the case may be. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction makes a final non-appealable determination that a Material Document Defect or Material Breach exists or (B) in the case of a Material Document Defect or Material Breach that affects whether a Lehman Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either such 90-day period, in the case of (A) or (B) (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the an "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, in all material respects (which cure shall include payment of any out-of-pocket expenses that are reasonably incurred and directly attributable to pursuing such a claim based on such Material Document Defect or Material Breach associated therewith) or (ii) if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed 90 days beyond the end of the Initial Resolution Period, then the Depositor shall have an additional 90-day period (such additional 90-day period (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the Initial Resolution Period and any such Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C3)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document (A) constituting a part of the related Mortgage File pursuant to clauses (a)(ii) through (a)(x) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)xiii) of the definition of "Mortgage File" ", (B) specifically set forth on Schedule X hereto (in the case of a Xxxxxx Trust Mortgage Loan only) or (C) specifically set forth on Exhibit D to the UBS/Depositor Mortgage Loan Purchase Agreement (in the case of a UBS Trust Mortgage Loan only), in any event has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) receives written notice of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan Loan, as of the date specified in the fourth paragraph of this Section 2.03(a), materially and adversely affects the value of such Trust Mortgage Loan at the time of such noticeLoan, then such Document Defect shall constitute a "Material Document Defect" or such Breach shall constitute a "Material Breach", as the case may be. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than (1) 90 days after (1) the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction 60 days after an arbitration panel makes a final non-appealable determination binding determination, in accordance with the provisions of Section 2.03(i), 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 Lehman Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either and such 90-day or 60-day period, as applicable, in the case of clause (AA)(1), (A)(2) or (B) (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the an "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, in all material respects (which cure shall include payment of any out-of-pocket expenses that are reasonably incurred and directly attributable to pursuing such a claim based on such Material Document Defect or Material Breach associated therewith) or (ii) if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed either 90 days beyond the end of the applicable Initial Resolution PeriodPeriod (in the event the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach as described in clause (A)(1) of the second sentence of this paragraph) or 45 days beyond the end of the applicable Initial Resolution Period (in the event an arbitration panel has made a binding determination, as described in clause (A)(2) of the second sentence of this paragraph, that a Material Document Defect or Material Breach exists), then the Depositor shall have an such additional 90-day period or 45-day period, as the case may be (such additional 90-day period or 45-day period, as the case may be (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the a "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the applicable Initial Resolution Period and any such applicable Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure. Provided that any Seller/Depositor Notification with respect to a Material Document Defect or Material Breach is received by the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, the material and adverse effect of the subject Document Defect or Breach shall be determined as of the date of the Mortgage Loan Purchase Agreements. 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 Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, shall be determined as of the date of such Seller/Depositor Notification. If, in connection with any Material Breach, the Depositor is obligated to repurchase any Xxxxxx Trust Mortgage Loan pursuant to this Section 2.03, and/or the UBS Mortgage Loan Seller is obligated to repurchase any UBS Trust Mortgage Loan pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement, then such obligation shall extend to any REO Trust Mortgage Loan with respect thereto; provided that (i) the subject Material Breach existed as to the subject predecessor Trust Mortgage Loan prior to the date the related Mortgaged Property became an REO Property or within 90 days thereafter, and (ii) the party having the repurchase obligation 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 subject Material Breach and directing such party to repurchase the subject Trust Mortgage Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2005-C1)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document constituting a part of clauses (a)(i) through (a)(x) (or, in the case of an Outside Serviced Trust a Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" File has not been executed (if applicable) properly executed, is missing, contains information that does not conform in any material respect with the corresponding information set forth in the Trust Mortgage Loan Schedule, or is missing does not appear to be regular on its face (each, a "Document Defect") ), or (ii) there exists discovers or receives notice of a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (a "Breach") ), or discovers or receives notice of a breach of any representation or warranty of the Depositor made pursuant to set forth in Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) receives written notice of a Document Defect or a Breach and any such Document Defect or Breach with respect to any Trust Mortgage Loan materially and adversely affects the value interests of the Certificateholders therein (which material and adverse effect shall be determined as of the date of such notice with respect to any Document Defect or Breach for which the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan at Seller or UBS Principal Finance LLC (in the time case of such noticea UBS Trust Mortgage Loan) receives notice more than 24 months from the date hereof), then such Document Defect shall constitute a "Material Document Defect" or such Breach shall constitute a "Material Breach", as the case may be. Notwithstanding anything herein to the contrary, the failure by the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and/or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) to deliver, to the extent required, any item set forth under clause (a)(viii) of the definition of "Mortgage File", with respect to a Trust Mortgage Loan secured by any property other than a hospitality property, can never constitute a Material Document Defect for any purpose under this Agreement or under the UBS/Depositor Mortgage Loan Purchase Agreement. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after from the earlier of (1i) the date on which the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or Breach, as the case may be, and (2ii) a court the 120th day following the Depositor's receipt of competent jurisdiction makes a final non-appealable determination that a such Seller/Depositor Notification regarding such Material Document Defect or Material Breach exists or Breach, as the case may be (B) or, in the case of a Material Document Defect or Material Breach that affects whether relating to a Lehman Xxxxxx Trust Mortgage Loan is or will continue to be not being a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage")Provisions, not later than 90 days following the discovery by any party of discovering such Material Document Defect or Material Breach Breach) (either any such 90-day period, in the case of (A) or (B) period (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, same in all material respects (which cure shall include payment of losses and 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 Additional Trust Fund Expenses associated therewith) or (ii) or, if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (wi) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (xii) such Material Document Defect or Material Breach, as the case may be, does Breach is not affect whether related to any Lehman Xxxxxx Trust Mortgage Loan is Loan's not being a Qualified Mortgage, "qualified mortgage" within the meaning of the REMIC Provisions and (yiii) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, Breach within the Initial Resolution Period, and (z) then the Depositor shall have delivered an additional period equal to the Trustee applicable Resolution Extension Period to complete such cure or, in the event of a failure to so cure, to complete such repurchase (it being understood and agreed that, in connection with the Depositor's receiving such extension of time equal to the applicable Resolution Extension Period, the Depositor shall deliver an Officer's Certificate confirming that to the Trustee setting forth the reasons such Material Breach Document Defect or Material Document Defect, as the case may be, Breach is not capable of being cured within the applicable Initial Resolution Period, setting forth Period and what actions the Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach Document Defect or Material Document Defect, as the case may be, Breach will be cured within an additional period not to exceed 90 days beyond the end of the Initial Resolution Period, then the Depositor shall have an additional 90-day period (such additional 90-day period (with respect to a Lehman Trust Mortgage Loan), and any "applicable Resolution Extension Period", xx xefined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the Initial Resolution Period and any such Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Sec Corp Lb-Ubs Comm Mort Trust 2004-C2)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document (A) constituting a part of the related Mortgage File pursuant to clauses (a)(i) through (a)(xa)(xiii) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" ", (B) specifically set forth on Schedule IX hereto with respect to a Xxxxxx Trust Mortgage Loan only or (C) specifically set forth on Exhibit D to the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan only, in each such case, has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) receives written notice of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan Loan, as of the date specified in the fifth paragraph of this Section 2.03(a) materially and adversely affects the value of such Trust Mortgage Loan at the time of such noticeLoan, then such Document Defect shall constitute a "Material Document Defect" or such Breach shall constitute a "Material Breach", as the case may be. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction makes a final non-appealable determination that a Material Document Defect or Material Breach exists or (B) in the case of a Material Document Defect or Material Breach that affects whether a Lehman Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either such 90-day period, in the case of clause (A) or (B) (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the an "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, in all material respects (which cure shall include payment of any out-of-pocket expenses that are reasonably incurred and directly attributable to pursuing such a claim based on such Material Document Defect or Material Breach associated therewith) or (ii) if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed 90 days beyond the end of the Initial Resolution Period, then the Depositor shall have an additional 90-day period (such additional 90-day period (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the a "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the Initial Resolution Period and any such Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure. Provided that the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and/or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) provides a materially complete and accurate list of the Mortgage Loan Origination Documents applicable to any Serviced Trust Mortgage Loan within 90 days of the Closing Date, then all Seller/Depositor Notifications relative to Material Document Defects with respect to such Serviced Trust Mortgage Loan must be given within 12 months of the first anniversary of the later of (i) the initial custodial certification given with respect to such Serviced Trust Mortgage Loan (pursuant to Section 2.02(b)) and (ii) the date of delivery of the related mortgage loan checklist, in order for such notice to be effective and give rise to any obligation on the part of the Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to the subject Document Defect pursuant to or as contemplated by this Section 2.03. Nothing contained in this Agreement shall be construed to obligate the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan) to deliver a mortgage loan checklist with respect to any Trust Mortgage Loan, and in the event that any such party, in its sole discretion, delivers a mortgage loan checklist in respect of any Serviced Trust Mortgage Loan, the delivery thereof shall not give rise to any liability whatsoever on the part of such party to any party to this Agreement, to the Certificateholders or to any other Person. Provided that any Seller/Depositor Notification with respect to a Material Document Defect or Material Breach is received by the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, the material and adverse effect of the subject 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 Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, shall be determined as of the date of such Seller/Depositor Notification. If, in connection with any Material Breach, the Depositor is obligated to repurchase any Xxxxxx Trust Mortgage Loan pursuant to this Section 2.03, and/or the UBS Mortgage Loan Seller is obligated to repurchase any UBS Trust Mortgage Loan pursuant to the UBS/Depositor Mortgage Loan Purchase Agreement, then such obligation shall extend to any REO Trust Mortgage Loan; provided that (i) the subject Material Breach existed as to the subject predecessor Trust Mortgage Loan prior to the date the related Mortgaged Property became an REO Property or within 90 days thereafter, and (ii) the party having the repurchase obligation 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 subject Material Breach and directing such party to repurchase the subject Trust Mortgage Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C3)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document (A) constituting a part of the related Mortgage File pursuant to clauses (a)(i) through (a)(xa)(xiii) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" ", (B) specifically set forth on Schedule IX hereto with respect to a Lehman Trust Mortgage Loan only, (C) specifically set forth on Exhixxx X to the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan only or (D) specifically set forth on Exhibit D to the KeyBank/Depositor Mortgage Loan Purchase Agreement with respect to any KeyBank Trust Mortgage Loan only, in each such case, has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the KeyBank Mortgage Loan Seller made pursuant to Section 3(b) of the KeyBank/Depositor Mortgage Loan Purchase Agreement with respect to any KeyBank Trust Mortgage Loan (a "Breach"), a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (also, a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shalx xxxx prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Trust Mortgage Loan) or ), the UBS Mortgage Loan Seller (in thx xxxx the cxxx xx a UBS Trust Mortgage Loan) or the KeyBank Mortgage Loan Seller (in the case of a UBS KeyBank Trust Mortgage Loan) receives written notice or obtains actual knowledge of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan Loan, as of the date specified in the fourth paragraph of this Section 2.03(a) materially and adversely affects the value of such Trust Mortgage Loan at the time of such noticeLoan, 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 Depositor obtains actual knowledge of a Material Document Defect or Material Breach, then the Depositor shall deliver written notification to the Trustee with respect thereto. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan or a KeyBank Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller or the KeyBank Mortgage Loan Seller, as the case may be, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller or the KeyBank Mortgage Loan Seller, as the case may be, within the time period and subject to the conditions provided for in the UBS/Depositor applicable Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depoxxxxx Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) 30 days after the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction 30 days after an arbitration panel makes a final non-appealable determination binding determination, in accordance with the provisions of Section 2.03(i), 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 Lehman Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemxxxxxxe" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either and such 30-day or 90-day period, as applicable, in the case of clause (AA)(1), (A)(2) or (B) (with respect to a Lehman Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined ax xxxxned in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan) or the KeyBank/Depositor Mortgage Loan Purchase Agreement (with respect to a KeyBank Trust Mortgage Loan), as applicable, are each referred to herein as the an "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, in all material respects (which cure shall include payment of any out-of-pocket expenses that are reasonably incurred and directly attributable to pursuing such a claim based on such Material Document Defect or Material Breach associated therewith) or (ii) if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Trust Mortgage Loan or any related REO Property (or, in the xxxx of xf an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositxx xxx commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed either 90 days beyond the end of the applicable Initial Resolution PeriodPeriod (in the event the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach as described in clause (A)(1) of the second sentence of this paragraph) or 45 days beyond the end of the applicable Initial Resolution Period (in the event an arbitration panel has made a binding determination, as described in clause (A)(2) of the second sentence of this paragraph, that a Material Document Defect or Material Breach exists), then the Depositor shall have an such additional 90-day period or 45-day period, as the case may be (such additional 90-day period or 45-day period, as the case may be (with respect to a Lehman Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined xxfined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan) or the KeyBank/Depositor Mortgage Loan Purchase Agreement (with respect to a KeyBank Trust Mortgage Loan), as applicable, are each referred to herein as the a "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the applicable Initial Resolution Period and any such applicable Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Trust Mortgage Loan) or ), the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure.cxxx
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2006-C7)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document (A) constituting a part of the related Mortgage File pursuant to clauses (a)(i) through (a)(xa)(xiii) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" ", (B) specifically set forth on Schedule IX hereto with respect to a Xxxxxx Trust Mortgage Loan only or (C) specifically set forth on Exhibit D to the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan only, in each such case, has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) receives written notice or obtains actual knowledge of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan Loan, as of the date specified in the fourth paragraph of this Section 2.03(a) materially and adversely affects the value of such Trust Mortgage Loan at the time of such noticeLoan, 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 Depositor obtains actual knowledge of a Material Document Defect or Material Breach, then the Depositor shall deliver written notification to the Trustee with respect thereto. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) 30 days after the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction 30 days after an arbitration panel makes a final non-appealable determination binding determination, in accordance with the provisions of Section 2.03(i), 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 Lehman Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either and such 30-day or 90-day period, as applicable, in the case of clause (AA)(1), (A)(2) or (B) (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the an "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, in all material respects (which cure shall include payment of any out-of-pocket expenses that are reasonably incurred and directly attributable to pursuing such a claim based on such Material Document Defect or Material Breach associated therewith) or (ii) if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed either 90 days beyond the end of the applicable Initial Resolution PeriodPeriod (in the event the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach as described in clause (A)(1) of the second sentence of this paragraph) or 45 days beyond the end of the applicable Initial Resolution Period (in the event an arbitration panel has made a binding determination, as described in clause (A)(2) of the second sentence of this paragraph, that a Material Document Defect or Material Breach exists), then the Depositor shall have an such additional 90-day period or 45-day period, as the case may be (such additional 90-day period or 45-day period, as the case may be (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the a "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related -133- Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the applicable Initial Resolution Period and any such applicable Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure.. Provided that if any Seller/Depositor Notification with respect to a Material Document Defect or Material Breach is received by the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in the case of a UBS Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, the material and adverse effect of the subject Document Defect or Breach shall be determined as of the date of the Mortgage Loan
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C4)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) that any document constituting a part of clauses (a)(i) through (a)(x) (or, in the case of an Outside Serviced the Two Penn Plaza Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) that there exists a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to set forth in Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) receives written notice of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan materially and adversely affects the value of such Trust Mortgage Loan at the time of such notice, then such Document Defect shall constitute a "Material Document Defect" or such Breach shall constitute a "Material Breach", as the case may be. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction makes a final non-appealable determination that a Material Document Defect or Material Breach exists or (B) in the case of a Material Document Defect or Material Breach that affects whether a Lehman Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either such 90-day period, in the case of (A) or (B) (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein 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 any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor 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 -109- Period, then the Depositor shall have an additional 90-day period (such additional 90-day period (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the Initial Resolution Period and any such Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2004-C6)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document (A) constituting a part of the related Mortgage File pursuant to clauses (a)(i) through (a)(xa)(xx) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" ", (B) specifically set forth on Schedule IX hereto with respect to a Lehman Trust Mortgagx Xxxx only or (C) specifically set forth on Exhibit D to the related Mortgage Loan Purchase Agreement with respect to any Non-Lehman Trust Mortgagx Xxxx only, has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the UBS related Unaffiliated Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor related Mortgage Loan Purchase Agreement with respect to any UBS Non-Lehman Trust Mortgage Loan Mortgagx Xxxx (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Trust Mortgage Loan Mortgagx Xxxx (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Trust Mortgage LoanMortgagx Xxxx) or the UBS related Unaffiliated Mortgage Loan Seller (in thx xxxx the case of a UBS Non-Lehman Trust Mortgage LoanMortgagx Xxxx) receives written notice or obtains actual knowledge of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan Loan, and such Document Defect or Breach, as of the date specified in the fourth paragraph of this Section 2.03(a), materially and adversely affects the value of such the subject Trust Mortgage Loan at the time of such noticeLoan, 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 Depositor obtains actual knowledge of a Material Document Defect or Material Breach, then the Depositor shall deliver written notification to the Trustee with respect thereto. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Non-Lehman Trust Mortgage LoanMortgagx Xxxx, the Trustee shall deliver a Seller/Depositor Notification to the UBS related Unaffiliated Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS related Unaffiliated Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor applicable Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Trust Mortgage LoanMortgagx Xxxx, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than (1) 90 days after (1) the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction 60 days after an arbitration panel makes a final non-appealable determination binding determination, in accordance with the provisions of Section 2.03(i), 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 Lehman Trust Mortgage Loan Mortgagx Xxxx is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either and such 90-day or 60-day period, as applicable, in the case of clause (AA)(1), (A)(2) or (B) (with respect to a Lehman Trust Mortgage LoanMortgagx Xxxx), and any "Initial Resolution Period", xx xxxined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein 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 any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Trust Mortgage Loan or any related REO Property (or, in the xxxx of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed 90 days beyond the end of the Initial Resolution Period, then the Depositor shall have an additional 90-day period (such additional 90-day period (with respect to a Lehman Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the Initial Resolution Period and any such Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure.Initial
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2007-C2)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document constituting a part of clauses (a)(i) through (a)(x) (or, in the case of an Outside Serviced Trust a Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" File has not been executed (if applicable) properly executed, is missing, contains information that does not conform in any material respect with the corresponding information set forth in the Trust Mortgage Loan Schedule, or is missing does not appear to be regular on its face (each, a "Document Defect") ), or (ii) there exists discovers or receives notice of a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (a "Breach") ), or discovers or receives notice of a breach of any representation or warranty of the Depositor made pursuant to set forth in Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, Seller and the other parties hereto and the Controlling Class Representativehereto. If the Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) receives written notice of a Document Defect or a Breach and any such Document Defect or Breach with respect to any Trust Mortgage Loan materially and adversely affects the value interests of such Trust Mortgage Loan at the time of such noticeCertificateholders therein, then such Document Defect shall constitute a "Material Document Defect" or such Breach shall constitute a "Material Breach", as the case may be. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) from the Depositor's receipt of such Seller/Depositor and the Trustee have agreed upon the existence of Notification regarding such Material Document Defect or Material Breach or Breach, as the case may be (2) a court of competent jurisdiction makes a final non-appealable determination that a Material Document Defect or Material Breach exists or (B) or, in the case of a Material Document Defect or Material Breach that affects whether relating to a Lehman Xxxxxx Trust Mortgage Loan is or will continue to be not being a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage")Provisions, not later than 90 days following the discovery by any party of discovering such Material Document Defect or Material Breach Breach) (either any such 90-day period, in the case of (A) or (B) period (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, same in all material respects (which cure shall include payment of losses and 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 Additional Trust Fund Expenses associated therewith) or (ii) or, if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account (or, in the case of a XX Xxxx REO Property, to the XX Xxxx REO Account); provided, however, that if (wi) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (xii) such Material Document Defect or Material Breach, as the case may be, does Breach is not affect whether related to any Lehman Xxxxxx Trust Mortgage Loan is Loan's not being a Qualified Mortgage, "qualified mortgage" within the meaning of the REMIC Provisions and (yiii) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, Breach within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed 90 days beyond the end of the Initial Resolution Period, then the Depositor shall have an additional 90-day period (any such additional 90-day period (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the "Resolution Extension Period"), ) to complete such cure or, failing suchin the event of a failure to so cure, to complete such repurchase (it being understood and agreed that, in connection with the affected Trust Mortgage Loan (Depositor's receiving such extension of time equal to the applicable Resolution Extension Period, the Depositor shall deliver an Officer's Certificate to the Trustee setting forth the reasons such Material Document Defect or Material Breach is not capable of being cured within the related Mortgaged PropertyInitial Resolution Period and what actions the Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Document Defect or Material Breach will be cured within the applicable Resolution Extension Period); and provided, further, that, if any such Material Document Defect is still not cured after the Initial Resolution Period and any such Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 5(a) of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Sec Corp Lb Ubs Com Mort Tr 2003-C8)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document (A) constituting a part of the related Mortgage File pursuant to clauses (a)(i) through (a)(xa)(xiii) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" ", (B) specifically set forth on Schedule IX hereto with respect to a Xxxxxx Trust Mortgage Loan only, (C) specifically set forth on Exhibit D to the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan only or (D) specifically set forth on Exhibit D to the KeyBank/Depositor Mortgage Loan Purchase Agreement with respect to any KeyBank Trust Mortgage Loan only, in each such case, has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the KeyBank Mortgage Loan Seller made pursuant to Section 3(b) of the KeyBank/Depositor Mortgage Loan Purchase Agreement with respect to any KeyBank Trust Mortgage Loan (a "Breach"), a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (also, a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or ), the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) or the KeyBank Mortgage Loan Seller (in the case of a KeyBank Trust Mortgage Loan) receives written notice or obtains actual knowledge of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan Loan, as of the date specified in the fourth paragraph of this Section 2.03(a) materially and adversely affects the value of such Trust Mortgage Loan at the time of such noticeLoan, 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 Depositor obtains actual knowledge of a Material Document Defect or Material Breach, then the Depositor shall deliver written notification to the Trustee with respect thereto. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan or a KeyBank Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller or the KeyBank Mortgage Loan Seller, as the case may be, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller or the KeyBank Mortgage Loan Seller, as the case may be, within the time period and subject to the conditions provided for in the UBS/Depositor applicable Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) 30 days after the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction 30 days after an arbitration panel makes a final non-appealable determination binding determination, in accordance with the provisions of Section 2.03(i), 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 Lehman Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either and such 30-day or 90-day period, as applicable, in the case of clause (AA)(1), (A)(2) or (B) (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan) or the KeyBank/Depositor Mortgage Loan Purchase Agreement (with respect to a KeyBank Trust Mortgage Loan), as applicable, are each referred to herein as the an "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, in all material respects (which cure shall include payment of any out-of-pocket expenses that are reasonably incurred and directly attributable to pursuing such a claim based on such Material Document Defect or Material Breach associated therewith) or (ii) if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed either 90 days beyond the end of the applicable Initial Resolution PeriodPeriod (in the event the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach as described in clause (A)(1) of the second sentence of this paragraph) or 45 days beyond the end of the applicable Initial Resolution Period (in the event an arbitration panel has made a binding determination, as described in clause (A)(2) of the second sentence of this paragraph, that a Material Document Defect or Material Breach exists), then the Depositor shall have an such additional 90-day period or 45-day period, as the case may be (such additional 90-day period or 45-day period, as the case may be (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan) or the KeyBank/Depositor Mortgage Loan Purchase Agreement (with respect to a KeyBank Trust Mortgage Loan), as applicable, are each referred to herein as the a "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the applicable Initial Resolution Period and any such applicable Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or ), the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure.case
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2006-C7)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) that any document constituting a part of clauses (a)(i) through (a)(x) (or, in the case of an Outside Serviced the 000 Xxxxx Xxxxxx Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) that there exists a breach of any representation or warranty of the UBS Mortgage Loan Seller made pursuant to Section 3(b) of the UBS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Trust Mortgage Loan (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to set forth in Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) receives written notice of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan materially and adversely affects the value of such Trust Mortgage Loan at the time of such notice, then such Document Defect shall constitute a "Material Document Defect" or such Breach shall constitute a "Material Breach", as the case may be. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), ) to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections Section 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction makes a final non-appealable determination that a Material Document Defect or Material Breach exists or (B) in the case of a Material Document Defect or Material Breach that affects whether a Lehman Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either such 90-day period, in the case of (A) or (B) (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein 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 any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed 90 days beyond the end of the Initial Resolution Period, then the Depositor shall have an additional 90-day period (such additional 90-day period (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Trust Mortgage Loan), as applicable, are each referred to herein as the "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the Initial Resolution Period and any such Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS Mortgage Loan Seller (in thx xxxx the case of a UBS Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and the UBS Mortgage Loan Seller (in txx xxxe the case of a UBS Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS Mortgage Loan Seller, as applicable, 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 Depositor or the UBS Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS Mortgage Loan Seller will be obligated under the UBS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Sec Corp Ii Lb-Ubs Comm Mort Trust 2004-C4)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document (A) constituting a part of the related Mortgage File pursuant to clauses (a)(i) through (a)(xa)(xiii) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" ", (B) specifically set forth on Schedule IX hereto with respect to a Xxxxxx Trust Mortgage Loan only or (C) specifically set forth on Exhibit D to the related Mortgage Loan Purchase Agreement with respect to any Non-Xxxxxx Trust Mortgage Loan only, has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the UBS related Unaffiliated Mortgage Loan Seller made pursuant to Section 3(b) of the UBSrelated UMLS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Non-Xxxxxx Trust Mortgage Loan (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS related Unaffiliated Mortgage Loan Seller (in thx xxxx the case of a UBS Non-Xxxxxx Trust Mortgage Loan) receives written notice of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan Loan, and such Document Defect or Breach, as of the date specified in the fourth paragraph of this Section 2.03(a), materially and adversely affects the value of such the subject Trust Mortgage Loan at the time of such noticeLoan, then such Document Defect shall constitute a "Material Document Defect" or such Breach shall constitute a "Material Breach", as the case may be. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Non-Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS related Unaffiliated Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS related Unaffiliated Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor applicable Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction makes a final non-appealable determination that a Material Document Defect or Material Breach exists exists, or (B) in the case of a Material Document Defect or Material Breach that affects whether a Lehman Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either such 90-day period, period in the case of clause (AA)(1), (A)(2) or (B) (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBSrelated UMLS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Non-Xxxxxx Trust Mortgage Loan), as applicable, are each referred to herein as the an "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, in all material respects (which cure shall include payment of any out-of-pocket expenses that are reasonably incurred and directly attributable to pursuing such a claim based on such Material Document Defect or Material Breach associated therewith) or (ii) if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed 90 days beyond the end of the Initial Resolution Period, then the Depositor shall have an additional 90-day period (such additional 90-day period (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor related Mortgage Loan Purchase Agreement (with respect to a UBS Non-Xxxxxx Trust Mortgage Loan), as applicable, are each referred to herein as the a "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the applicable Initial Resolution Period and any such applicable Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS related Unaffiliated Mortgage Loan Seller (in thx xxxx the case of a UBS Non-Xxxxxx Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) ), or the UBS related Unaffiliated Mortgage Loan Seller (in thx xxxx the case of a UBS Non-Xxxxxx Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS related Unaffiliated Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS an Unaffiliated Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBSrelated UMLS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, Trustee and either the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and or the UBS related Unaffiliated Mortgage Loan Seller (in txx xxxe the case of a UBS Non-Xxxxxx Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, Servicer and either the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and or the UBS related Unaffiliated Mortgage Loan Seller (in txx xxxe the case of a UBS Non-Xxxxxx Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS related Unaffiliated Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS related Unaffiliated Mortgage Loan Seller, as applicable, has failed to cure the subject Material Document Defect, then the Master Servicer or the Special Servicer, as applicable, shall be entitled (but not obligated) to perform the obligations of the Depositor or the UBS related Unaffiliated Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS each related Unaffiliated Mortgage Loan Seller will be obligated under the UBSrelated UMLS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure. Provided that the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) and/or the Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan) provides a materially complete and accurate list of the Mortgage Loan Origination Documents applicable to any Serviced Trust Mortgage Loan within 90 days of the Closing Date, then all Seller/Depositor Notifications relative to Material Document Defects with respect to such Serviced Trust Mortgage Loan must be given within 12 months of the first anniversary of the later of (i) the initial custodial certification given with respect to such Serviced Trust Mortgage Loan (pursuant to Section 2.02(b)) and (ii) the date of delivery of the related mortgage loan checklist, in order for such notice to be effective and give rise to any obligation on the part of the Depositor or the Unaffiliated Mortgage Loan Seller, as applicable, with respect to the subject Document Defect pursuant to or as contemplated by this Section 2.03. Nothing contained in this Agreement shall be construed to obligate the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan) to deliver a mortgage loan checklist with respect to any Trust Mortgage Loan, and in the event that any such party, in its sole discretion, delivers a mortgage loan checklist in respect of any Serviced Trust Mortgage Loan, the delivery thereof shall not give rise to any liability whatsoever on the part of such party to any party to this Agreement, to the Certificateholders or to any other Person. Provided that if any Seller/Depositor Notification with respect to a Material Document Defect or Material Breach is received by the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, the material and adverse effect of the subject Document Defect or Breach shall be determined as of the date of the Mortgage Loan Purchase Agreements. 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 Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, shall be determined as of the date of such Seller/Depositor Notification. If, in connection with any Material Breach, the Depositor is obligated to repurchase any Xxxxxx Trust Mortgage Loan pursuant to this Section 2.03, or an Unaffiliated Mortgage Loan Seller is obligated to repurchase any Non-Xxxxxx Trust Mortgage Loan pursuant to the related UMLS/Depositor Mortgage Loan Purchase Agreement, then such obligation shall extend to any REO Trust Mortgage Loan with respect thereto; provided that (i) the subject Material Breach existed as to the subject predecessor Trust Mortgage Loan prior to the date the related Mortgaged Property became an REO Property or within 90 days thereafter, and (ii) the party having the repurchase obligation 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 subject Material Breach and directing such party to repurchase the subject Trust Mortgage Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2008-C1)
Repurchase of Trust Mortgage Loans for Document Defects and Breaches of Representations and Warranties. (a) If any party hereto (other than the Depositor) discovers or receives written notice, with respect to any Trust Mortgage Loan, that (i) any document (A) constituting a part of the related Mortgage File pursuant to clauses (a)(i) through (a)(xa)(xiii) (or, in the case of an Outside Serviced Trust Mortgage Loan, clause (b)(i)) of the definition of "Mortgage File" ", (B) specifically set forth on Schedule IX hereto with respect to a Xxxxxx Trust Mortgage Loan only or (C) specifically set forth on Exhibit D to the related Mortgage Loan Purchase Agreement with respect to any Non-Xxxxxx Trust Mortgage Loan only, has not been executed (if applicable) or is missing (each, a "Document Defect") or (ii) there exists a breach of any representation or warranty of the UBS related Unaffiliated Mortgage Loan Seller made pursuant to Section 3(b) of the UBSrelated UMLS/Depositor Mortgage Loan Purchase Agreement with respect to any UBS Non-Xxxxxx Trust Mortgage Loan (a "Breach") or a breach of any representation or warranty of the Depositor made pursuant to Section 2.04(b) hereof with respect to any Lehman Xxxxxx Trust Mortgage Loan (also, a "Breach"), then such party shaxx xxxe shall give prompt written notice thereof to each Rating Agency, the related Mortgage Loan Seller, the other parties hereto and the Controlling Class Representative. If the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS related Unaffiliated Mortgage Loan Seller (in thx xxxx the case of a UBS Non-Xxxxxx Trust Mortgage Loan) receives written notice or obtains actual knowledge of a Document Defect or a Breach and such Document Defect or Breach with respect to any Trust Mortgage Loan Loan, and such Document Defect or Breach, as of the date specified in the fourth paragraph of this Section 2.03(a), materially and adversely affects the value of such the subject Trust Mortgage Loan at the time of such noticeLoan, 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 Depositor obtains actual knowledge of a Material Document Defect or Material Breach, then the Depositor shall deliver written notification to the Trustee with respect thereto. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a UBS Non-Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depositor Notification to the UBS related Unaffiliated Mortgage Loan Seller, the Master Servicer and the Special Servicer and shall require the UBS related Unaffiliated Mortgage Loan Seller, within the time period and subject to the conditions provided for in the UBS/Depositor applicable Mortgage Loan Purchase Agreement, except as otherwise contemplated by Sections 2.03(d) and 2.03(e), to cure such Material Document Defect or Material Breach, as the case may be, in all material respects, or repurchase the affected Trust Mortgage Loan or any related REO Property (or, in the case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account. Promptly upon becoming aware of any such Material Document Defect or Material Breach with respect to a Lehman Xxxxxx Trust Mortgage Loan, the Trustee shall deliver a Seller/Depxxxxxx Depositor Notification to the Depositor, the Master Servicer and the Special Servicer, and the Depositor shall, subject to Sections 2.03(d), 2.03(e) and 2.03(f), (A) not later than 90 days after (1) 30 days after the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach or (2) a court of competent jurisdiction 30 days after an arbitration panel makes a final non-appealable determination binding determination, in accordance with the provisions of Section 2.03(i), 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 Lehman Xxxxxx Trust Mortgage Loan is or will continue to be a "qualified xxxxxxgemortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days following the discovery by any party of such Material Document Defect or Material Breach (either and such 30-day or 90-day period, as applicable, in the case of clause (AA)(1), (A)(2) or (B) (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Initial Resolution Period", xx xxxined as defined in the UBSrelated UMLS/Depositor Mortgage Loan Purchase Agreement (with respect to a UBS Non-Xxxxxx Trust Mortgage Loan), as applicable, are each referred to herein as the an "Initial Resolution Period"), (i) cure such Material Document Defect or Material Breach, as the case may be, in all material respects (which cure shall include payment of any out-of-pocket expenses that are reasonably incurred and directly attributable to pursuing such a claim based on such Material Document Defect or Material Breach associated therewith) or (ii) if any such Material Document Defect or Material Breach, as the case may be, cannot be cured within the Initial Resolution Period, repurchase the affected Lehman Xxxxxx Trust Mortgage Loan or any related REO Property (or, in the xxxx case of an REO Property related to a Loan Combination, the Trust's interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Pool Custodial Account; provided, however, that if (w) such Material Document Defect or Material Breach is capable of being cured but not within the Initial Resolution Period, (x) such Material Document Defect or Material Breach, as the case may be, does not affect whether any Lehman Xxxxxx Trust Mortgage Loan is a Qualified Mortgage, (y) the Deposixxx xxs Depositor has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach, as the case may be, within the Initial Resolution Period, and (z) the Depositor shall have delivered to the Trustee an Officer's Certificate 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 Depositor is pursuing in connection with the cure thereof and stating that the Depositor anticipates that such Material Breach or Material Document Defect, as the case may be, will be cured within an additional period not to exceed either 90 days beyond the end of the applicable Initial Resolution PeriodPeriod (in the event the Depositor and the Trustee have agreed upon the existence of such Material Document Defect or Material Breach as described in clause (A)(1) of the second sentence of this paragraph) or 45 days beyond the end of the applicable Initial Resolution Period (in the event an arbitration panel has made a binding determination, as described in clause (A)(2) of the second sentence of this paragraph, that a Material Document Defect or Material Breach exists), then the Depositor shall have an such additional 90-day period or 45-day period, as the case may be (such additional 90-day period or 45-day period, as the case may be (with respect to a Lehman Xxxxxx Trust Mortgage Loan), and any "Resolution Extension Period", xx xefined as defined in the UBS/Depositor related Mortgage Loan Purchase Agreement (with respect to a UBS Non-Xxxxxx Trust Mortgage Loan), as applicable, are each referred to herein as the a "Resolution Extension Period"), to complete such cure or, failing such, to repurchase the affected Trust Mortgage Loan (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured after the applicable Initial Resolution Period and any such applicable Resolution Extension Period solely due to the failure of the Depositor to have received a recorded document, then the Depositor shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Depositor certifies to the Trustee 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 Depositor 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 Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) or the UBS related Unaffiliated Mortgage Loan Seller (in thx xxxx the case of a UBS Non-Xxxxxx Trust Mortgage Loan) pursuant to Section 2.02(b) or otherwise nor possession of such certification or schedule by the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) ), or the UBS related Unaffiliated Mortgage Loan Seller (in thx xxxx the case of a UBS Non-Xxxxxx Trust Mortgage Loan) shall, in and of itself, constitute delivery of notice of any Material Document Defect or Material Breach or knowledge or awareness by the Depositor or the UBS related Unaffiliated Mortgage Loan Seller, as the case may be, of any Material Document Defect or Material Breach. If, during the period of deferral by the Depositor of its cure and repurchase obligations as contemplated by the last proviso of the penultimate sentence of the preceding paragraph, or during any comparable deferral by the UBS an Unaffiliated Mortgage Loan Seller of its cure and repurchase obligations as provided in Section 5 of the UBSrelated UMLS/Depositor Mortgage Loan Purchase Agreement, as applicable, the Trust Mortgage Loan that is the subject of the Material Document Defect either becomes a Specially Serviced Trust Mortgage Loan or becomes the subject of a proposed or actual assumption of the obligations of the related Mortgagor under such Trust Mortgage Loan, then (i) any party to this Agreement that becomes aware of such event shall deliver a Seller/Depositor Notification to such effect (unless a Seller/Depositor Notification with respect to such event has already been delivered by another party) to the Master Servicer, the Special Servicer, the Trustee, Trustee and either the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and or the UBS related Unaffiliated Mortgage Loan Seller (in txx xxxe the case of a UBS Non-Xxxxxx Trust Mortgage Loan), and (ii) the Trustee, upon becoming aware of such event, shall deliver a Seller/Depositor Notification to the Master Servicer, the Special Servicer, Servicer and either the Depositor (in the case of a Lehman Xxxxxx Trust Mortgage Loan) and or the UBS related Unaffiliated Mortgage Loan Seller (in txx xxxe the case of a UBS Non-Xxxxxx Trust Mortgage Loan), providing notice of such event and directing the Depositor or the UBS related Unaffiliated Mortgage Loan Seller, as applicable, to cure the subject Material Document Defect within 15 days of receipt of such Seller/Depositor Notification. If, upon the expiration of such 15-day period, the Depositor or the UBS related Unaffiliated Mortgage Loan Seller, as applicable, has failed to cure the subject Material Document Defect, then the Master Servicer or the Special Servicer, as applicable, shall be entitled (but not obligated) to perform the obligations of the Depositor or the UBS related Unaffiliated Mortgage Loan Seller, as applicable, with respect to curing the subject Material Document Defect; and, upon electing to perform such obligations, the Master Servicer or the Special Servicer, as applicable, shall promptly deliver a Seller/Depositor Notification to such effect. In connection with the preceding sentence, the Depositor will, and the UBS each related Unaffiliated Mortgage Loan Seller will be obligated under the UBSrelated UMLS/Depositor Mortgage Loan Purchase Agreement to, pay all reasonable actual out-of-pocket costs and expenses in connection with the applicable servicer's effecting such cure. Provided that if any Seller/Depositor Notification with respect to a Material Document Defect or Material Breach is received by the Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, the material and adverse effect of the subject Document Defect or Breach shall be determined as of the date of the Mortgage Loan Purchase Agreements. 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 Depositor (in the case of a Xxxxxx Trust Mortgage Loan) or the related Unaffiliated Mortgage Loan Seller (in the case of a Non-Xxxxxx Trust Mortgage Loan), in accordance with the provisions of this Section 2.03, within 24 months of the Closing Date, shall be determined as of the date of such Seller/Depositor Notification. If, in connection with any Material Breach, the Depositor is obligated to repurchase any Xxxxxx Trust Mortgage Loan pursuant to this Section 2.03, or an Unaffiliated Mortgage Loan Seller is obligated to repurchase any Non-Xxxxxx Trust Mortgage Loan pursuant to the related UMLS/Depositor Mortgage Loan Purchase Agreement, then such obligation shall extend to any REO Trust Mortgage Loan with respect thereto; provided that (i) the subject Material Breach existed as to the subject predecessor Trust Mortgage Loan prior to the date the related Mortgaged Property became an REO Property or within 90 days thereafter, and (ii) the party having the repurchase obligation 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 subject Material Breach and directing such party to repurchase the subject Trust Mortgage Loan.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (LB-UBS Commercial Mortgage Trust 2007-C7)
