REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER (a) Seller shall (i) in the case of a Material Defect other than a Qualified Mortgage Material Defect, not later than ninety (90) days after Seller’s receipt of notice of such Material Defect from any party to the Pooling and Servicing Agreement or (ii) in the case of a Qualified Mortgage Material Defect, not later than eighty-five (85) days after the earlier of (x) the discovery by Seller or any party to the Pooling and Servicing Agreement of such Material Defect and (y) receipt of notice of a Material Defect from any party to the Pooling and Servicing Agreement (such ninety (90) or eighty-five (85) day period, as applicable, the “Initial Cure Period”), (A) cure such Material Defect in all material respects, at Seller’s own expense, including reimbursement of any related reasonable additional expenses of the Issuing Entity reasonably incurred by any party to the Pooling and Servicing Agreement, (B) repurchase the affected Mortgage Loan or successor REO Loan at the applicable Purchase Price and in conformity with this Agreement and the Pooling and Servicing Agreement or (C) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan or successor REO Loan (provided that (x) such affected Mortgage Loan or successor REO Loan was not itself a Qualified Substitute Mortgage Loan and (y) in no event shall any such substitution occur on or after the second anniversary of the Closing Date) and pay the Master Servicer for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith and in conformity with this Agreement and the Pooling and Servicing Agreement; provided, that except with respect to a Material Defect resulting solely from the failure by Seller to deliver to the Trustee or Custodian the actual policy of lender’s title insurance required pursuant to clause (viii) of the definition of “Mortgage File” by a date not later than eighteen (18) months following the Closing Date and, except with respect to a Qualified Mortgage Material Defect, if such Material Defect is capable of being cured but is not cured within the Initial Cure Period, and Seller has commenced and is diligently proceeding with the cure of such Material Defect within the Initial Cure Period, Seller shall have an additional ninety (90) days commencing immediately upon the expiration of the Initial Cure Period (such additional ninety (90) day period, the “Extended Cure Period”) to complete such cure (or, failing such cure, to repurchase the related Mortgage Loan or successor REO Loan or substitute a Qualified Substitute Mortgage Loan) and provided, further, that with respect to such Extended Cure Period Seller has delivered an officer’s certificate to the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Operating Advisor and, prior to the occurrence of a Consultation Termination Event and subject to the DCH Limitations, the Directing Certificateholder, setting forth the reason such Material Defect is not capable of being cured within the Initial Cure Period and what actions Seller is pursuing in connection with the cure thereof and stating that Seller anticipates that such Material Defect will be cured within the Extended Cure Period; provided, further, that, if any such Material Defect is not cured after the Initial Cure Period and any such Extended Cure Period solely due to the failure of Seller to have received the recorded document, then Seller shall be entitled to continue to defer its cure, repurchase and/or substitution obligations in respect of such Material Defect so long as Seller certifies to the Trustee, the Master Servicer, the Special Servicer and the Certificate Administrator no less frequently than every thirty (30) days thereafter that the Material Defect is still in effect solely because of its failure to have received the recorded document and that Seller is diligently pursuing the cure of such Material Defect (specifying the actions being taken). If the affected Mortgage Loan is to be repurchased, funds in the amount of the Purchase Price, together with the portion of fees of the Asset Representations Reviewer payable pursuant to Section 4.1.12 above attributable to the Asset Review with respect to such Mortgage Loan, shall be remitted by Seller by wire transfer to the Master Servicer for deposit into the Collection Account. Any such repurchase or substitution of a Mortgage Loan shall be on a whole loan, servicing released basis. If Seller, in connection with a Material Defect (or an allegation of a Material Defect) pertaining to a Mortgage Loan agrees to a Loss of Value Payment, pursuant to any agreement or a settlement between Seller and the Special Servicer on behalf of the Issuing Entity (and, prior to the occurrence of a Control Termination Event and subject to the DCH Limitations, with the consent of the Directing Certificateholder) with respect to such Mortgage Loan, the amount of such Loss of Value Payment shall be remitted by wire transfer to the Special Servicer for deposit into the Loss of Value Reserve Fund. The Loss of Value Payment shall include the portion of any Liquidation Fees payable to the Special Servicer in respect of such Loss of Value Payment and the portion of fees of the Asset Representations Reviewer payable pursuant to Section 4.1.12 above attributable to the Asset Review of such Mortgage Loan. If such Loss of Value Payment is made, the Loss of Value Payment shall serve as the sole remedy available to the Certificateholders and the Issuing Entity regarding the related Material Defect in lieu of any obligation of Seller to otherwise cure such Material Defect or repurchase or substitute for the affected Mortgage Loan based on such Material Defect under any circumstances. This paragraph is intended to apply only to a mutual agreement or settlement between Seller and the Special Servicer on behalf of the Issuing Entity, provided, that (i) prior to any such agreement or settlement nothing in this paragraph shall preclude Seller or the Master Servicer or the Special Servicer, as applicable, from exercising any of its rights related to a Material Defect in the manner and timing set forth in this Agreement (excluding this paragraph) or the Pooling and Servicing Agreement (including any right to cure, repurchase or substitute for such Mortgage Loan), (ii) such Loss of Value Payment shall not be greater than the Purchase Price of the affected Mortgage Loan; and (iii) a Qualified Mortgage Material Defect may not be cured by a Loss of Value Payment. Seller’s obligation to cure any Material Defect or to repurchase or substitute for any affected Mortgage Loan or, if Seller agrees to make a Loss of Value Payment, to pay the Loss of Value Payment pursuant to this Section 5 shall constitute the sole remedy available to Purchaser in connection with a Material Defect; provided, that this limitation shall not in any way limit Purchaser’s rights or remedies upon breach of any other representation or warranty or covenant by Seller set forth in this Agreement (other than those set forth in Exhibit 2). If any Breach that constitutes a Material Defect pertains to a representation or warranty that the related Mortgage Loan documents or any particular Mortgage Loan document requires the related Mortgagor to bear the costs and expenses associated with any particular action or matter under such Mortgage Loan document(s), then Seller may cure such Breach within the applicable cure period (as the same may be extended) by reimbursing the Issuing Entity (by wire transfer of immediately available funds) for (i) the reasonable amount of any such costs and expenses incurred by the Master Servicer, the Special Servicer, the Certificate Administrator, the Trustee or the Issuing Entity that are incurred as a result of such Breach and have not been reimbursed by the related Mortgagor and (ii) the amount of any fees payable pursuant to Section 4.1.12 above to the extent not previously paid to the Asset Representations Reviewer by Seller attributable to the Asset Review of such Mortgage Loan. Upon such remittance, Seller shall be deemed to have cured such Breach in all respects. To the extent any fees or expenses that are the subject of a cure by Seller are subsequently obtained from the related Mortgagor, the portion of the cure payment made by Seller equal to such fees or expenses obtained from the related Mortgagor shall promptly be returned to Seller. Notwithstanding anything contained in this Agreement, if a Mortgage Loan is not secured by a Mortgaged Property that is, in whole or in part, a hotel, restaurant (operated by a Mortgagor), healthcare facility, nursing home, assisted living facility, self-storage facility, theater or fitness center (operated by a Mortgagor), then the failure to deliver copies of the UCC Financing Statements with respect to such Mortgage Loan pursuant to Section 2 hereof shall not be a Material Defect. If there is a Material Defect with respect to one or more Mortgaged Properties securing a Mortgage Loan, Seller shall not be obligated to repurchase the Mortgage Loan if (i) the affected Mortgaged Property may be released pursuant to the terms of any partial release provisions in the related Mortgage Loan documents (and such Mortgaged Property is, in fact, released), (ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan documents and Seller provides an Opinion of Counsel to the effect that such release would not (A) cause any Trust REMIC to fail to qualify as a REMIC or (B) result in the imposition of a tax upon any Trust REMIC or the Issuing Entity and (iii) each applicable Rating Agency has provided a Rating Agency Confirmation. (b) Whenever a Qualified Substitute Mortgage Loan is substituted for a Defective Loan by Seller as contemplated by this Section 5, upon direction by the Master Servicer or the Special Servicer, as applicable, Seller shall deliver to the Custodian the related Mortgage File and a certification to the effect that such Qualified Substitute Mortgage Loan satisfies all of the requirements of the definition of “Qualified Substitute Mortgage Loan” in the Pooling and Servicing Agreement. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan after the related Due Date in the month of substitution, and Periodic Payments due with respect to the corresponding replaced Mortgage Loan (a “Deleted Mortgage Loan”) on or prior to the related Due Date in the month of substitution (but after the related Cut-off Date), shall be part of the Trust Fund. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan on or prior to the Due Date in the month of substitution, and Periodic Payments due with respect to the related Deleted Mortgage Loan after the related Due Date in the month of substitution, shall not be part of the Trust Fund and are to be remitted by the Master Servicer to Seller promptly following receipt. If any Mortgage Loan is to be repurchased or replaced as contemplated by this Section 5, upon direction by the Master Servicer or the Special Servicer, as applicable, Seller shall amend the Mortgage Loan Schedule to reflect the removal of any Deleted Mortgage Loan and, if applicable, the substitution of the related Qualified Substitute Mortgage Loan and deliver or cause the delivery of such amended Mortgage Loan Schedule to the parties to the Pooling and Servicing Agreement. Upon any substitution of a Qualified Substitute Mortgage Loan for a Deleted Mortgage Loan, such Qualified Substitute Mortgage Loan shall become part of the Trust Fund and be subject to the terms of this Agreement in all respects. If any Mortgage Loan that is part of a Crossed Mortgage Loan Group is required to be repurchased or substituted, the provisions of Section 2.03(h), Section 2.03(i) and Section 2.03(j) of the Pooling and Servicing Agreement shall apply. (c) Seller shall be entitled, and Purchaser shall cause the Pooling and Servicing Agreement to entitle Seller upon (A) deposit of the full amount of the Purchase Price or Substitution Shortfall Amount (as the case may be) for any Mortgage Loan repurchased or replaced as contemplated by this Section 5 in the account designated therefor by the Certificate Administrator on behalf of the Trustee as the assignee of Purchaser (or the Master Servicer on behalf of the Trustee), (B) if applicable, receipt by the Trustee as the assignee of Purchaser (or the Custodian) of the Mortgage File for any Qualified Substitute Mortgage Loan to be substituted for a Deleted Mortgage Loan, together with any certifications and/or opinions required pursuant to this Section 5 to be delivered by Seller, and (C) delivery by Seller to each of the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer of a receipt executed by Seller evidencing such repurchase or substitution, to (i) a release of the Mortgage File and any other items previously required to be delivered by Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement for the repurchased or replaced Mortgage Loan to Seller or its designee, (ii) the execution and delivery of such instruments of release, transfer and/or assignment, in each case without recourse, as shall be prepared by Seller and are reasonably necessary to vest in Seller or its designee the legal and beneficial ownership of such repurchased or replaced Mortgage Loan (including property acquired in respect thereof and proceeds of any insurance policy with respect thereto) and the related Mortgage Loan documents, any portion of the related Servicing File and together with any Escrow Payments, reserve funds and any other items previously required to be delivered by Seller under Sections 2.01(b) and (c) of the Pooling and Servicing Agreement, held by or on behalf of the Custodian, the Master Servicer or the Special Servicer, as the case may be, with respect to the repurchased or replaced Mortgage Loan, in each case at the expense of Seller, and (iii) the execution and delivery of notice to the affected Mortgagor of such transfer of such repurchased or replaced Mortgage Loan. (d) [Reserved]. (e) Seller acknowledges and agrees that Purchaser shall have no liability to Seller for any failure of Seller or any party to the Pooling and Servicing Agreement (other than Purchaser itself) to perform its obligations provided for thereunder. (f) If Seller (i) receives from any Person (other than the Depositor) any request or demand for repurchase or replacement of a Mortgage Loan because of a breach of a representation or warranty or a document defect (any such request or demand for repurchase or replacement, a “Repurchase Request”); (ii) rejects any Repurchase Request or is in dispute with the Person making any Repurchase Request as to the merits of such Repurchase Request (a “Dispute”); or (iii) receives any withdrawal of a Repurchase Request by the Person making such Repurchase Request, then Seller shall deliver notice of such Repurchase Request, rejection, Dispute or withdrawal (each, a “Seller 15Ga-1 Notice”) to the Depositor within ten (10) Business Days of Seller’s receipt thereof (or in the case of a rejection or Dispute, the occurrence thereof). Each Seller 15Ga-1 Notice may be delivered by electronic means and shall identify (a) the date on which such Repurchase Request was received, rejected, first disputed or withdrawn, (b) the Mortgage Loan with respect to which such Repurchase Request was made, (c) the identity of the Person making such request, and (d) the basis, if any, asserted for such request or withdrawal by such Person (or, with respect to any notice of rejection or Dispute by Seller, the reason for such rejection or the nature of such Dispute). Seller represents and warrants that any information Seller provides to Purchaser pursuant to this Section 5(f) shall be true, complete and correct as of the date Seller provides such information to Purchaser. (g) Each of Seller and Purchaser acknowledge and agree that (i) a Repurchase Request Recipient under the Pooling and Servicing Agreement will not, in connection with providing Seller or Purchaser with any 15Ga-1 Notice under the Pooling and Servicing Agreement, be required to deliver any attorney-client privileged communication or
Representations and Warranties will be Relied Upon by the Company 8.1 The Subscriber acknowledges that the representations and warranties contained herein are made by it with the intention that such representations and warranties may be relied upon by the Company and its legal counsel in determining the Subscriber's eligibility to purchase the Shares under applicable securities legislation, or (if applicable) the eligibility of others on whose behalf it is contracting hereunder to purchase the Shares under applicable securities legislation. The Subscriber further agrees that by accepting delivery of the certificates representing the Shares on the Closing Date, it will be representing and warranting that the representations and warranties contained herein are true and correct as at the Closing Date with the same force and effect as if they had been made by the Subscriber on the Closing Date and that they will survive the purchase by the Subscriber of Shares and will continue in full force and effect notwithstanding any subsequent disposition by the Subscriber of such Shares.
Warranties Disclaimers a) Licensor represents and warrants that it has the right to grant to Licensee the rights granted hereunder. b) Licensor represents and warrants that during the Warranty Period the Licensed Products will perform all material functions set out in the Documentation for such Licensed Products and otherwise operate in substantial accordance with such Documentation. If, during the Warranty Period the Licensed Products fail to comply with this warranty, Licensee must notify Licensor in writing of any alleged errors or non-conformities with the Licensed Products. Licensor will have thirty (30) days from receipt of such notice or an additional period of time as reasonably agreed to by the parties to correct such errors or non-conformities in accordance with the Support Guidelines. If Licensor is unable to timely correct such errors or non- conformities, Licensee may elect to terminate the license to such Licensed Products. If Licensee terminates the license to such Licensed Products during the Warranty Period in accordance with this Section, Licensee will, as its remedy, receive a refund of all fees previously paid for such Licensed Products. c) LICENSOR DOES NOT WARRANT THAT THE LICENSED PRODUCTS WILL OPERATE ERROR-FREE OR THAT LICENSOR WILL CORRECT ALL PRODUCT ERRORS INCLUDING THOSE DESIGNATED AS MEDIUM OR LOW SEVERITY LEVEL ISSUES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE LICENSED PRODUCTS ARE PROVIDED “AS IS” AND LICENSOR AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED PRODUCTS AND SERVICES FURNISHED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. d) LICENSOR WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES CAUSED BY THE UNAUTHORIZED USE OF THE LICENSED PRODUCTS OR ACTS OF ABUSE OR MISUSE BY LICENSEE. IN ADDITION, LICENSOR WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE IN CONNECTION WITH OR ARISING OUT OF THE INTERRUPTION OR LOSS OF USE OF THE LICENSED PRODUCTS OR THE LOSS OR CORRUPTION OF LICENSEE'S DATA OR FILES PROCESSED OR STORED BY THE LICENSED PRODUCTS. e) THE LICENSED PRODUCTS MAY CONTAIN A DISABLING DEVICE OR DEVICE REQUIRING ENABLEMENT: (i) TO COMPLY WITH REQUIREMENTS OF REGULATORY AUTHORITIES; (ii) TO PREVENT USE OF THE LICENSED PRODUCTS BEYOND THE TERM OF A LICENSE IDENTIFIED IN AN ORDER OR ON A COMPUTER OTHER THAN THE COMPUTER AUTHORIZED IN AN ORDER; AND/OR (iii) TO PREVENT USE OF THE LICENSED PRODUCTS IN EXCESS OF ANY TRANSACTIONS (OR OTHER RESTRICTIONS) OR BY MORE THAN THE NUMBER OF USERS SET OUT IN AN ORDER.
Representations and Warranties by Each Party Each Party represents and warrants to the other as of the Effective Date that: 12.1.1 it is a corporation duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation; 12.1.2 it has full corporate power and authority to execute, deliver, and perform this Agreement, and has taken all corporate action required by Applicable Laws and its organizational documents to authorize the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement; 12.1.3 this Agreement constitutes a valid and binding agreement enforceable against it in accordance with its terms (except as the enforceability thereof may be limited by bankruptcy, bank moratorium or similar laws affecting creditors’ rights generally and laws restricting the availability of equitable remedies and may be subject to general principles of equity whether or not such enforceability is considered in a proceeding at law or in equity); and 12.1.4 the execution and delivery of this Agreement and all other instruments and documents required to be executed pursuant to this Agreement, and the consummation of the transactions contemplated hereby do not and shall not (a) conflict with or result in a breach of any provision of its organizational documents, (b) result in a breach of any agreement to which it is a party; or (c) violate any Applicable Laws.
Survival of Agreements, Representations and Warranties, etc All representations and warranties contained herein shall survive the execution and delivery of this Agreement.