EXHIBIT 4.2
MORTGAGE LOAN PURCHASE AGREEMENT
Pursuant to this Mortgage Loan Purchase Agreement dated as of [__]
(the "Agreement"), between [_________________] (together with its successors and
permitted assigns hereunder, the "Seller") and CWCapital Commercial Funding
Corp. (together with its successors and permitted assigns hereunder, the
"Purchaser"), the Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (collectively, the "Mortgage
Loans"), as identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
The Purchaser intends to deposit the Mortgage Loans, together with
other assets, into a trust fund (the "Trust Fund"), the beneficial ownership of
which will be evidenced by multiple classes (each, a "Class") of mortgage
pass-through certificates (the "Certificates") to be identified as the CWCapital
Commercial Funding Corp., Commercial Mortgage Trust 200[__]-[__], Commercial
Mortgage Pass-Through Certificates, Series 200[__]-[__]. One or more "real
estate mortgage investment conduit" ("REMIC") elections will be made with
respect to the Trust Fund. The Certificates will be issued pursuant to a Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), to be dated as
of [__], among the Purchaser, as depositor, [__], as master servicer (the
"Master Servicer"), [__], as special servicer (the "Special Servicer"), and
[__], as trustee (the "Trustee"). Capitalized terms used but not defined herein
have the respective meanings set forth in the Pooling and Servicing Agreement,
as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of [__], with [_______] ("[_____]"), and
[__] (collectively in such capacity, the "Underwriters"), whereby the Purchaser
will sell to the Underwriters all of the Certificates that are to be registered
under the Securities Act of 1933, as amended (the "Securities Act"). The
Purchaser has also entered into a Certificate Purchase Agreement (the
"Certificate Purchase Agreement"), dated as of [__] with [__] and [__]
(together, in such capacity, the "Initial Purchasers"), whereby the Purchaser
will sell to the Initial Purchasers all of the remaining Certificates (other
than the Residual Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
the Purchaser, the Underwriters and the Initial Purchasers have entered into an
Indemnification Agreement (the "Indemnification Agreement"), dated as of the
date hereof.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans identified on the Mortgage Loan
Schedule. The Mortgage Loan Schedule may be amended to reflect the actual
Mortgage Loans accepted by the Purchaser pursuant to the terms hereof. The
Mortgage Loans will have an aggregate principal balance of $[__] (the "Initial
Principal Balance") as of the close of business on (i) its Due Date in [__] with
respect to each Mortgage Loan that pays in [___________], and (ii) [_________]
with respect to each Mortgage Loan (collectively, the "Cut-off Date"), after
giving effect to any and all payments of principal due thereon on or before such
date, whether or not received. The purchase and sale of the Mortgage Loans shall
take place on [__], or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The consideration for the Mortgage Loans
shall consist of a cash amount equal to [__]% of the Initial Principal Balance,
which cash amount shall be paid to the Seller or its designee by wire transfer
in immediately available funds (or by such other method as shall be mutually
acceptable to the parties hereto) on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction or waiver of the
conditions to closing set forth in Section 5 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the Mortgage
Loans identified on the Mortgage Loan Schedule as of such date, subject to the
rights of the holders of any related Companion Loans as specified in the related
Co-Lender Agreement, as applicable, and the Purchaser hereby assumes such
Mortgage Loans, together with the rights and obligations related to such
Mortgage Loans as specified in the related Co-Lender Agreement. The Mortgage
Loan Schedule, as it may be amended, shall conform to the requirements set forth
in this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall, subject to the rights of
the holders of any related Companion Loans, as applicable, be entitled to
receive all scheduled payments of principal and interest due after the Cut-off
Date, and all other recoveries of principal and interest collected after the
Cut-off Date (other than in respect of principal and interest on the Mortgage
Loans due on or before the Cut-off Date). All scheduled payments of principal
and interest due on or before the Cut-off Date for each Mortgage Loan, but
collected after such date, shall, subject to the rights of the holders of any
related Companion Loans, as applicable, belong to, and be promptly remitted to,
the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of
the initial Purchaser, deliver to and deposit, or cause to be delivered and
deposited, with the Trustee a Mortgage File for each Mortgage Loan in accordance
with the terms of, and conforming to the requirements set forth in, the Pooling
and Servicing Agreement; provided that, with respect to any Non-Serviced Trust
Loan, the preceding delivery requirements will be satisfied by delivery of the
original Mortgage Note (and all intervening endorsements) related to such
Non-Serviced Trust Loan and a copy of the "mortgage file" delivered under the
applicable Lead PSA. If the Seller cannot deliver or cause to be delivered the
documents and/or instruments referred to in clauses (a)(ii), (a)(iii), (a)(vi)
(if recorded) and (a)(viii) of the definition of "Mortgage File" solely because
of delay caused by the public recording office where such document or instrument
has been delivered for recordation, the Seller shall deliver to the Trustee a
copy of the original, certified by the Seller to be a true and complete copy of
the original thereof submitted for recording. Concurrently with such delivery,
the Seller shall deliver, or cause to be delivered, to the Master Servicer and
the Special Servicer copies of the Mortgage Note, Mortgage(s) and any reserve
and cash management agreements with respect to each Mortgage Loan for which a
Mortgage File is required to be delivered to the Trustee.
(d) For each Mortgage Loan for which a Mortgage File is required to
be delivered to the Trustee, the Seller shall bear the out-of-pocket costs and
expenses related to recording or filing, as the case may be, in the appropriate
public office for real property records or Uniform Commercial Code financing
statements, as appropriate, each related assignment of Mortgage and assignment
of Assignment of Leases, in favor of the Trustee referred to in clause (a)(iv)
of the definition of "Mortgage File" and each related UCC-2 and UCC-3 assignment
referred to in clause (a)(viii) of the definition of "Mortgage File." If any
such document or instrument is lost or returned unrecorded or unfiled, as the
case may be, because of a defect therein, then the Seller shall prepare a
substitute therefor or cure such defect or cause such to be done, as the case
may be, and the Seller shall deliver such substitute or corrected document or
instrument to the Trustee (or, if the Mortgage Loan is then no longer subject to
the Pooling and Servicing Agreement, to the then holder of such Mortgage Loan).
(e) The Seller shall deliver, or cause to be delivered, to the
Master Servicer within 10 business days after the Closing Date, all documents
and records that (i) relate to the servicing and administration of the Serviced
Loans, (ii) are reasonably necessary for the ongoing administration and/or
servicing of the Serviced Loans (including any asset summaries related to the
Mortgage Loans that were delivered to the Rating Agencies in connection with the
rating of the Certificates) and (iii) are in possession or control of the
Mortgage Loan Seller, together with (x) all unapplied Escrow Payments and
Reserve Funds in the possession or under control of the Seller that relate to
the Serviced Loans and (y) a statement indicating which Escrow Payments and
Reserve Funds are allocable to such Serviced Loans), provided that the Seller
shall not be required to deliver any draft documents, privileged or other
internal communications, credit underwriting, due diligence analyses or data or
internal worksheets, memoranda, communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) The Seller shall provide, or cause to be provided, to the Master
Servicer the initial data with respect to each Mortgage Loan for the CMSA
Financial File and the CMSA Loan Periodic Update File that are required to be
prepared by the Master Servicer pursuant to the Pooling and Servicing Agreement.
(h) The Seller shall provide the Master Servicer with the
Supplemental Servicer Schedule.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of [_____], is duly qualified
as a foreign organization in good standing in all jurisdictions to the
extent such qualification is necessary to hold and sell the Mortgage Loans
or otherwise comply with its obligations under this Agreement, except
where the failure to be so qualified would not have a material adverse
effect on its ability to perform its obligations hereunder, and possesses
all requisite authority and power to carry on its business as currently
conducted by it and to execute, deliver and comply with its obligations
under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller and, assuming due authorization, execution and
delivery hereof by the Purchaser, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of creditors' rights in general,
and (B) general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's organizational documents, (B) violate
any law or regulation or any administrative decree or order to which the
Seller is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is bound.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or have consequences
that would, in the Seller's reasonable and good faith judgment, materially
and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any organizational document or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the ability of the Seller to
perform its obligations under this Agreement or that requires the consent
of any third person to the execution and delivery of this Agreement by the
Seller or the performance by the Seller of its obligations under this
Agreement.
(vi) Except for the recordation and/or filing of assignments and
other transfer documents with respect to the Mortgage Loans, as
contemplated by Section 2(d), no consent, approval, authorization or order
of, registration or filing with, or notice to, any court or governmental
agency or body, is required for the execution, delivery and performance by
the Seller of or compliance by the Seller with this Agreement or the
consummation of the transactions contemplated by this Agreement; and no
bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would, in the Seller's good
faith and reasonable judgment, prohibit its entering into this Agreement
or materially and adversely affect the performance by the Seller of its
obligations under this Agreement.
(viii) The Seller intends to treat the transfer of the Mortgage
Loans to the Purchaser as a sale for accounting and tax purposes. In
connection with the foregoing, the Seller shall cause all of its records
to reflect such transfer as a sale (as opposed to a secured loan). The
consideration received by the Seller upon the sale of the Mortgage Loans
to the Purchaser will constitute at least reasonably equivalent value and
fair consideration for the Mortgage Loans. The Seller will be solvent at
all relevant times prior to, and will not be rendered insolvent by, the
sale of the Mortgage Loans to the Purchaser. The Seller is not selling the
Mortgage Loans to the Purchaser with any intent to hinder, delay or
defraud any of the creditors of the Seller. After giving effect to its
transfer of the Mortgage Loans to the Purchaser, as provided herein, the
value of the Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of the Seller's debts
and obligations, including contingent and unliquidated debts and
obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct
its business. The Mortgage Loans do not constitute all or substantially
all of the assets of the Seller. The Seller does not intend to, and does
not believe that it will, incur debts or obligations beyond its ability to
pay such debts and obligations as they mature.
(ix) No proceedings looking toward merger, liquidation, dissolution
or bankruptcy of the Seller are pending or contemplated.
(b) The Seller hereby makes, for the benefit of the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or as of such other date
expressly set forth therein, each of the representations and warranties set
forth on Exhibit B attached hereto, except as otherwise set forth on Exhibit C
attached hereto.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to
acquire the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser and, assuming due authorization, execution
and delivery hereof by the Seller, constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforcement may be limited by
(A) bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws affecting the enforcement of creditors' rights in
general, and (B) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Purchaser
and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's organizational documents,
(B) violate any law or regulation or any administrative decree or order to
which the Purchaser is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Purchaser is a party or by which the
Purchaser is bound.
(iv) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required for the execution, delivery
and performance by the Purchaser of or compliance by the Purchaser with
this Agreement, or the consummation by the Purchaser of any transaction
described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof.
SECTION 5. Notice of Breach; Cure; Repurchase; Covenant of the
Seller.
(a) If the Seller discovers or receives notice in accordance with
Section 10 hereof of a Document Defect or a breach of any of its representations
and warranties made pursuant to Section 3(b) hereof (each such breach, a
"Breach") relating to any Mortgage Loan, and such Document Defect or Breach
materially and adversely affects the value of the Mortgage Loan or the related
Mortgaged Property or the interests of the Purchaser in such Mortgage Loan (in
which case any such Document Defect or Breach would be a "Material Document
Defect" or a "Material Breach," as the case may be), then (subject to Section
5(b)) the Seller shall, within 90 days after its discovery or receipt of such
notice of such Material Document Defect or Material Breach (or, in the case of a
Material Document Defect or Material Breach that affects whether a Mortgage Loan
was, as of the Closing Date, is or will continue to be a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than 90 days after any party discovering such Material Document Defect or
Material Breach) (such 90-day period, in either case, 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
Additional Trust Fund Expenses associated therewith, or (ii) repurchase the
affected Mortgage Loan (or the related Mortgaged Property, or in the case of any
Mortgaged Property related to a Loan Group, to the extent of the Seller's
interest therein) from, and in accordance with the directions of, the Purchaser
or its designee, at a price equal to the Purchase Price; provided that if (A)
any such Material Breach or Material Document Defect, as the case may be, does
not affect whether the Mortgage Loan was, as of the Closing Date, is or will
continue to be a Qualified Mortgage, (B) such Material Breach or Material
Document Defect, as the case may be, is capable of being cured but not within
the applicable Initial Resolution Period, (C) the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, (D)
the Seller shall have delivered to the Purchaser a certification executed on
behalf of the Seller by an officer thereof confirming that such Material Breach
or Material Document Defect, as the case may be, is not capable of being cured
within the applicable Initial Resolution Period, setting forth what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed 90 days
beyond the end of the applicable Initial Resolution Period, and (E) the affected
Mortgage Loan is not then a Specially Serviced Mortgage Loan, then the Seller
shall have such additional 90-day period (the "Resolution Extension Period") to
complete such cure or, failing such, to repurchase the affected Mortgage Loan
(or the related Mortgaged Property); and provided, further, that, if any such
Material Document Defect is still not cured after the initial 90-day period and
any such additional 90-day period solely due to the failure of the Seller to
have received the recorded document, then the Seller shall be entitled to
continue to defer its cure and repurchase obligations in respect of such
Document Defect so long as the Seller certifies to the Purchaser every 30 days
thereafter that the Document Defect is still in effect solely because of its
failure to have received the recorded document and that the Seller is diligently
pursuing the cure of such defect (specifying the actions being taken), except
that no such deferral of cure or repurchase may continue beyond the second
anniversary of the Closing Date. Any such repurchase of a Mortgage Loan shall be
on a whole loan, servicing released basis. The Seller shall have no obligation
to monitor the Mortgage Loans regarding the existence of a Breach or Document
Defect, but if the Seller discovers a Material Breach or Material Document
Defect with respect to a Mortgage Loan, it will notify the Purchaser. Provided
that the Master Servicer has notice of such Material Document Defect or Material
Breach, the Master Servicer shall notify the Seller if the related Mortgage Loan
becomes a Specially Serviced Mortgage Loan during any applicable cure periods.
Any of the following document defects shall be conclusively presumed to be a
Material Document Defect: (a) the absence from the Mortgage File of the original
signed Mortgage Note, together with the endorsements referred to in clause
(a)(i) of the definition of "Mortgage File," unless the Mortgage File contains a
signed lost note affidavit and indemnity with respect to the missing Mortgage
Note and any missing endorsement that appears to be regular on its face, (b)
other than with respect to a Non-Serviced Trust Loan, the absence from the
Mortgage File of the original executed Mortgage or a copy of such Mortgage
certified by the local authority with which the Mortgage was recorded, in each
case with evidence of recording thereon, that appears to be regular on its face,
unless there is included in the Mortgage File a copy of the executed Mortgage
and a certificate stating that the original signed Mortgage was sent for
recordation, (c) other than with respect to a Non-Serviced Trust Loan, the
absence from the Mortgage File of the original or a copy of the lender's title
insurance policy, together with all endorsements or riders (or copies thereof)
that were issued with or subsequent to the issuance of such policy, or marked up
insurance binder or title commitment which is marked as a binding commitment and
countersigned by title company, insuring the priority of the Mortgage as a first
lien on the Mortgaged Property, (d) other than with respect to a Non-Serviced
Trust Loan, the absence from the Mortgage File of any intervening assignments
required to create a complete chain of assignment to the Trustee on behalf of
the Trust and a certificate stating that the original intervening assignments
were sent for recordation, unless there is included in the Mortgage File a
certified copy of the intervening assignment or (e) other than with respect to a
Non-Serviced Trust Loan, the absence from the Servicing File of any original
letter of credit.
(b) If (x) any Mortgage Loan is subject to a Material Breach or
Material Document Defect and would otherwise be required to be repurchased as
contemplated by Section 5(a), (y) such Mortgage Loan is a Cross-Collateralized
Mortgage Loan or is secured by a portfolio of Mortgaged Properties, and (z) the
applicable Material Breach of Material Document Defect does not constitute a
Material Breach or Material Document Defect, as the case may be, as to any
related Cross-Collateralized Mortgage Loan or applies to only specific Mortgaged
Properties in such portfolio, the Purchaser or its designee shall use reasonable
efforts, subject to the terms of the related Mortgage Loans, to prepare and, to
the extent necessary and appropriate, have executed by the related Mortgagor and
record, such documentation as may be necessary to (i) in the case of a
Cross-Collateralized Group, terminate the cross-collateralization between the
Mortgage Loans in such Cross-Collateralized Group that are to be repurchased, on
the one hand, and the remaining Mortgage Loans therein, on the other hand, such
that those two groups of Mortgage Loans are each secured only by the Mortgaged
Properties identified in the Mortgage Loan Schedule as directly corresponding
thereto or (ii) in the case of Mortgage Loan secured by a portfolio of Mortgaged
Properties, release the affected Mortgaged Properties from the
cross-collateralization of the Mortgage Loan; provided that, if such
Cross-Collateralized Group is still subject to the Pooling and Servicing
Agreement, then no such termination shall be effected unless and until (i) the
Purchaser or its designee has received from the Seller (A) an Opinion of Counsel
to the effect that such termination or release will not cause an Adverse REMIC
Event to occur with respect to any REMIC Pool or an Adverse Grantor Trust Event
to occur with respect to the Grantor Trust and (B) a written confirmation from
each Rating Agency that such termination or release will not cause an Adverse
Rating Event to occur with respect to any Class of Certificates, (ii) the debt
service coverage ratio for the four preceding calendar quarters for all of the
Mortgage Loans relating to such Cross-Collateralized Group remaining is not less
than 0.05x below the debt service coverage ratio for all Mortgage Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged Property) set
forth in the Prospectus Supplement, (iii) the loan-to-value ratio for all of the
Mortgage Loans of such Cross-Collateralized Group remaining is not greater than
5% more than the loan-to-value ratio for all Mortgage Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged Property) set
forth in the Prospectus Supplement, and (iv) the Directing Holder (if one is
acting) has consented (which consent shall not be unreasonably withheld and
shall be deemed to have been given if no written objection is received by the
Seller within 10 Business Days of the Directing Holder's receipt of a written
request for such consent); and provided, further, that the Seller may, at its
option, purchase the entire Cross-Collateralized Group or Mortgage Loan in lieu
of terminating the cross-collateralization or a release of the affected
Mortgaged Properties from the cross-collateralization of the Mortgage Loan. In
the event that the cross-collateralization of any Cross-Collateralized Group is
terminated or any Mortgaged Property related to a Mortgage Loan secured by a
portfolio of Mortgaged Properties is released pursuant to this paragraph, the
Seller may elect either to repurchase only the affected Cross-Collateralized
Mortgage Loan or Mortgaged Properties as to which the Material Breach or
Material Document Defect exists or to repurchase the aggregate
Cross-Collateralized Mortgage Loans or Mortgaged Properties. All costs and
expenses incurred by the Purchaser or its designee pursuant to this paragraph
shall be included in the calculation of Purchase Price for the Mortgage Loan(s)
to be repurchased. If the cross-collateralization of any Cross-Collateralized
Group is not or cannot be terminated as contemplated by this paragraph, then,
for purposes of (i) determining whether any Breach or Document Defect, as the
case may be, is a Material Breach or Material Document Defect, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
It shall be a condition to any repurchase of a Mortgage Loan by the
Seller pursuant to Section 5(a) that (i) the Purchaser shall have executed and
delivered such instruments of endorsement, transfer or assignment then presented
to it by the Seller, in each case without recourse, as shall be necessary to
vest in the Seller the legal and beneficial ownership of such Mortgage Loan
(including any property acquired in respect thereof or proceeds of any insurance
policy with respect thereto), to the extent that such ownership interest was
transferred to the Purchaser hereunder; (ii) the Purchaser shall deliver to the
Seller all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan; and (iii) the Purchaser shall release to the Seller any escrow
payments or reserve funds held by it, or on its behalf, in respect of such
Mortgage Loan. If any Mortgage Loan is to be repurchased as contemplated by
Section 5(a), the Seller shall amend the Mortgage Loan Schedule to reflect the
removal of such Mortgage Loan and shall forward such amended schedule to the
Purchaser.
(c) The Seller hereby acknowledges and agrees that any modification
of the Mortgage Loan pursuant to a workout, foreclosure, sale or other
liquidation pursuant to, and in accordance with, the Pooling and Servicing
Agreement shall not constitute a defense to any repurchase claim disputed by the
Seller nor shall such modification change the Purchase Price due from the Seller
for any repurchase claim. In the event of any such modification, the Seller
hereby agrees to repurchase the Mortgage Loan as modified, if the Seller is
required to or elects to repurchase such Mortgage Loan in accordance with the
terms of this Section 5. Any sale of the related Mortgage Loan, or foreclosure
upon such Mortgage Loan and sale of the successor REO Property, shall be without
(i) recourse of any kind (either expressed or implied) by such Person against
the Seller and (ii) representation or warranty of any kind (either expressed or
implied) by the Seller to or for the benefit of such Person.
(d) The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the successor REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or successor REO
Property, which claim shall be made in accordance with this Section 5. If a
court of competent jurisdiction issues a final order that the Seller is or was
obligated to repurchase the related Mortgage Loan or the successor REO Loan or
the Seller otherwise accepts liability, then, after the expiration of any
applicable appeal period, but in no event later than the termination of the
Trust pursuant to Section 9.01 of the Pooling and Servicing Agreement, the
Seller will be obligated to pay to the Trust the difference between (i) any
Liquidation Proceeds received upon such liquidation net of Liquidation Expenses
and (ii) the Purchase Price; provided that the prevailing party in such action
shall be entitled to recover from the other party all costs, fees and expenses
(including reasonable attorneys fees) related thereto.
(e) [Reserved].
(f) It is understood and agreed that the obligations of the Seller
set forth in Section 5(a) to cure any Material Breach or Material Document
Defect or to repurchase such Mortgage Loan constitute the sole remedies
available to the Purchaser with respect to any Breach or Document Defect.
(g) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Seller set forth
in, or made pursuant to, paragraph 23 or paragraph 43 of Exhibit B to this
Agreement, specifically relating to whether or not the Mortgage Loan documents
or any particular Mortgage Loan document for any Mortgage Loan requires the
related Mortgagor to bear the Rating Agency fees reflected in paragraph 23 or
reasonable costs and expenses associated with a defeasance, as set forth in
paragraph 43 (any such fees, costs or expenses, referred to herein as "Covered
Costs"), then the Purchaser or its designee will direct the Seller in writing to
wire transfer to the Custodial Account, within 90 days of receipt of such
direction, the amount of any such reasonable costs and expenses incurred by the
Trust that (i) otherwise would have been required to be paid by the Mortgagor if
such representation or warranty with respect to such costs and expenses had in
fact been true, as set forth in the related representation or warranty, (ii)
have not been paid by the Mortgagor, (iii) are the basis of such Breach and (iv)
constitute "Covered Costs." Upon payment of such costs, the Seller shall be
deemed to have cured such Breach in all respects. Provided that such payment is
made, this paragraph describes the sole remedy available to the Purchaser
regarding any such Breach, regardless of whether it constitutes a Material
Breach, and the Seller shall not be obligated to otherwise cure such Breach or
repurchase the affected Mortgage Loan under any circumstances.
(h) For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any Serviced Companion Loan that is deposited into another
securitization, the depositor of such securitization) and the Trustee with any
Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure set
forth next the Purchaser's name on Exhibit P and Exhibit Q of the Pooling and
Servicing Agreement within the time periods set forth in the Pooling and
Servicing Agreement.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ at 10:00 A.M., New York City
time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement, and all
of the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement, shall be true and correct in all material respects as of the
Closing Date;
(b) Insofar as it affects the obligations of the Seller hereunder,
the Pooling and Servicing Agreement shall be in a form mutually acceptable to
the Purchaser and the Seller;
(c) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the Trustee (or
a Custodian on its behalf), the Master Servicer and the Special Servicer all
documents and funds required to be delivered to the Trustee, the Master Servicer
and the Special Servicer, respectively, pursuant to Section 2 of this Agreement;
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects, and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) The Pooling and Servicing Agreement duly executed by the parties
thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) A Certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser,
the Underwriters and the Initial Purchasers may rely, to the effect that the
Seller has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part that are required under this Agreement
to be performed or satisfied at or prior to the Closing Date;
(e) An Officer's Certificate from an officer of the Seller, dated
the Closing Date, and upon which the Purchaser, the Underwriters and the Initial
Purchasers may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or in the
Indemnification Agreement, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed, qualified
and acting as such officer or representative, and the signatures of such persons
appearing on such documents or certificates are their genuine signatures, or
such other statement relating to incumbency that is acceptable to the Purchaser,
the Underwriters and the Initial Purchasers;
(f) As certified by an officer of the Seller, true and correct
copies of (i) the resolutions of the board of directors authorizing the Seller's
entering into the transactions contemplated by this Agreement and the
Indemnification Agreement, (ii) the organizational documents of the Seller, and
(iii) a certificate of good standing of the Seller issued by the Secretary of
State of the State of Delaware as of a recent date;
(g) A favorable opinion of counsel to the Seller, subject to
customary exceptions and carveouts, dated the Closing Date and addressed to the
Purchaser, the Underwriters, the Initial Purchasers, the Rating Agencies and,
upon request, the other parties to the Pooling and Servicing Agreement, together
with such other opinions of such counsel as may be required by the Rating
Agencies in connection with the transactions contemplated hereby;
(h) A favorable opinion of in-house counsel to the Seller, subject
to customary exceptions and carveouts, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Initial Purchasers, the Rating Agencies
and, upon request, the other parties to the Pooling and Servicing Agreement;
(i) A letter of counsel of the Seller, subject to customary
exceptions and carveouts, dated the Closing Date and addressed to the
Underwriters, to the effect that nothing has come to such counsel's attention
that would lead such counsel to believe that the Prospectus Supplement as of the
date thereof or as of the Closing Date contains, with respect to the Seller or
the Mortgage Loans, any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein relating to the
Seller or the Mortgage Loans, in the light of the circumstances under which they
were made, not misleading; and
(j) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 8. Costs. The reasonable out-of-pocket costs and expenses
incurred by the Seller, each other mortgage loan seller, the Purchaser, the
Underwriters and the Initial Purchasers in connection with the securitization of
the Mortgage Loans and the other transactions contemplated by this Agreement,
the Underwriting Agreement and the Certificate Purchase Agreement shall be
payable as set forth in a separate writing among such parties on the Closing
Date.
SECTION 9. Grant of a Security Interest. The parties hereto agree
that it is their express intent that the conveyance of the Mortgage Loans by the
Seller to the Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the Mortgage Loans by the Seller to the Purchaser and not as a pledge
of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then
it is the express intent of the parties that: (i) such conveyance shall be
deemed to be a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller; (ii) this Agreement shall be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
applicable Uniform Commercial Code; (iii) the conveyance provided for in Section
2 hereof shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property; (iv) the assignment to the Trustee of the interest of the Purchaser in
and to the Mortgage Loans shall be deemed to be an assignment of any security
interest created hereunder; (v) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes for
the Mortgage Loans, and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-313 of the applicable Uniform Commercial Code; and (vi)
notifications to persons (other than the Trustee) holding such property, and
acknowledgments, receipts or confirmations from such persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the secured party for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee) until the
termination of the Pooling and Servicing Agreement pursuant to the terms
thereof.
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY
IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SELLER
AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL
CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE
EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
SECTION 15. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, and their respective successors and permitted assigns.
SECTION 17. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, unless the Seller has
consented to such amendment or modification in writing.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
[___________________________________]
By:____________________________________
Name:
Title:
Address for Notices:
[__________________________]
[__________________________]
Attention: [_________________]
Facsimile No.: [______________]
and
Attention: [_________________]
Facsimile No.: [______________]
PURCHASER
CWCAPITAL COMMERCIAL FUNDING CORP.
By:____________________________________
Name:
Title:
Address for Notices:
[_____________]
[_____________]
Attention: [_____________]
Facsimile No.: [_____________]
and
Attention: [_____________]
Facsimile No.: [_____________]
EXHIBIT A
Mortgage Loan Schedule
EXHIBIT B
Mortgage Loan Representations and Warranties
1) Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is complete, true and correct in all material respects as of the
date of this Agreement and as of the Cut-off Date.
2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller
had good title to, and was the sole owner of, each Mortgage Loan. The
Seller has full right, power and authority to transfer and assign each of
the Mortgage Loans to or at the direction of the Purchaser and has validly
and effectively conveyed (or caused to be conveyed) to the Purchaser or
its designee all of the Seller's legal and beneficial interest in and to
the Mortgage Loans free and clear of any and all pledges, liens, charges,
security interests and/or other encumbrances. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not
been obtained.
3) Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Cut-off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-off Date.
4) Lien; Valid Assignment. None of the matters referred to in clauses (B),
(C) or (D) of the definition of "Permitted Liens" (as defined below),
individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the marketability or current use
of the Mortgaged Property, or the current ability of the Mortgaged
Property to generate operating income sufficient to service the Mortgage
Loan debt. The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form and constitutes a legal,
valid and binding assignment, sufficient to convey to the assignee named
therein all of the assignor's right, title and interest in, to and under
such Mortgage. Such Mortgage, together with any separate security
agreements, chattel mortgages or equivalent instruments, establishes and
creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder thereof in all
of the related Mortgagor's personal property used in, and reasonably
necessary to operate, the related Mortgaged Property. In the case of a
Mortgaged Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a
prudent mortgage lender making a similar Mortgage Loan would deem
reasonably necessary to operate the related Mortgaged Property as it is
currently being operated. A Uniform Commercial Code financing statement
has been filed and/or recorded in all places necessary to perfect a valid
security interest in such personal property, to the extent a security
interest may be so created therein, and such security interest is a first
priority security interest, subject to any prior purchase money security
interest in such personal property and any personal property leases
applicable to such personal property. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest in
rents or other personal property to the extent that possession or control
of such items or actions other than the filing of Uniform Commercial Code
financing statements are required in order to effect such perfection.
"Permitted Liens" shall mean, (A) the lien for current real estate taxes
and assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters that are of
public record and/or are referred to in the related lender's title
insurance policy, (C) exceptions and exclusions specifically referred to
in such lender's title insurance policy, (D) other matters to which like
properties are commonly subject.
5) Assignment of Leases and Rents. The Assignment of Leases related to and
delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, sub-leases,
licenses or other agreements pursuant to which any person is entitled to
occupy, use or possess all or any portion of the real property subject to
the related Mortgage, and each assignor thereunder has the full right to
assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage has been executed and delivered in favor of the
Trustee and is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all
of the assignor's right, title and interest in, to and under such
Assignment of Leases.
6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and
the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part (except for partial reconveyances of real
property that are set forth on Schedule B-1 to this Exhibit B), nor has
any instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release, in any manner that, in
each case, materially adversely affects the value of the related Mortgaged
Property. None of the terms of any Mortgage Note, Mortgage or Assignment
of Leases has been impaired, waived, altered or modified in any respect,
except by written instruments, all of which are included in the related
Mortgage File.
7) Condition of Property; Condemnation. (i) With respect to the Mortgaged
Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-off Date as set forth
on Schedule B-1 to this Exhibit B, each Mortgaged Property is, to the
Seller's knowledge, free and clear of any damage (or adequate reserves
therefor have been established) that would materially and adversely affect
its value as security for the related Mortgage Loan, and (ii) with respect
to the Mortgaged Properties securing the Mortgage Loans that were not the
subject of an engineering report within 18 months prior to the Cut-off
Date as set forth on Schedule B-1 to this Exhibit B, each Mortgaged
Property is in good repair and condition and all building systems
contained therein are in good working order (or adequate reserves therefor
have been established) and each Mortgaged Property is free of structural
defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for
the condemnation of all or any material portion of any Mortgaged Property.
To the Seller's knowledge (based on surveys and/or title insurance
obtained in connection with the origination of the Mortgage Loans), as of
the date of the origination of each Mortgage Loan, all of the material
improvements on the related Mortgaged Property that were considered in
determining the appraised value of the Mortgaged Property lay wholly
within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and
adversely affect the value or marketability of such Mortgaged Property,
and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments
that are insured against by the Title Policy referred to herein.
8) Title Insurance. Each Mortgaged Property is covered by an American Land
Title Association (or an equivalent form of) lender's title insurance
policy or a marked-up title insurance commitment (on which the required
premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage
Loan after all advances of principal. Each Title Policy insures that the
related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to Permitted Encumbrances. Each Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in
full force and effect, all premiums thereon have been paid, and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or
omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the
related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. To
the Seller's knowledge, the insurer issuing such Title Policy is qualified
to do business in the jurisdiction in which the related Mortgaged Property
is located.
9) No Holdbacks. The proceeds of each Mortgage Loan have been fully disbursed
and there is no obligation for future advances with respect thereto. With
respect to each Mortgage Loan, any and all requirements as to completion
of any on-site or off-site improvement and as to disbursements of any
funds escrowed for such purpose that were to have been complied with on or
before the Closing Date have been complied with, or any such funds so
escrowed have not been released.
10) Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage Loan,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) such as
to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the
principal benefits of the security intended to be provided thereby.
11) Trustee under Deed of Trust. If any Mortgage is a deed of trust, (i) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (ii) no fees or expenses
are payable to such trustee by the Seller, the Purchaser or any transferee
thereof except in connection with a trustee's sale after default by the
related Mortgagor or in connection with any full or partial release of the
related Mortgaged Property or related security for the related Mortgage
Loan.
12) Environmental Conditions.
i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment within 18
months prior to the Cut-off Date as set forth on Schedule B-1 to this
Exhibit B, an environmental site assessment, or an update of a previous
such report, was performed with respect to each Mortgaged Property in
connection with the origination or the sale of the related Mortgage Loan,
a report of each such assessment (or the most recent assessment with
respect to each Mortgaged Property) (an "Environmental Report") has been
delivered to the Purchaser, and the Seller has no knowledge of any
material and adverse environmental condition or circumstance affecting any
Mortgaged Property that was not disclosed in such report. Each Mortgage
requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition
or circumstance affecting any Mortgaged Property, (i) a party not related
to the Mortgagor was identified as the responsible party for such
condition or circumstance or (ii) environmental insurance covering such
condition was obtained or must be maintained until the condition is
remediated, or (iii) the related Mortgagor was required either to provide
additional security that was deemed to be sufficient by the originator in
light of the circumstances and/or to establish an operations and
maintenance plan. In the case of each Mortgage Loan set forth on Schedule
B-1 to this Exhibit B, (i) such Mortgage Loan is the subject of a Secured
Creditor Impaired Property Policy, issued by the issuer set forth on
Schedule B-1 (the "Policy Issuer") and effective as of the date thereof
(the "Environmental Insurance Policy"), (ii) the Environmental Insurance
Policy is in full force and effect, (iii)(a) a property condition or
engineering report was prepared with respect to lead based paint ("LBP"),
asbestos containing materials ("ACM") and radon gas ("RG") at each related
Mortgaged Property, and (b) if such report disclosed the existence of a
material and adverse LBP, ACM or RG environmental condition or
circumstance affecting the related Mortgaged Property, the related
Mortgagor (A) was required to remediate the identified condition prior to
closing the Mortgage Loan or provide additional security or establish with
the lender a reserve from loan proceeds, in an amount deemed to be
sufficient by the Seller, for the remediation of the problem, and/or (B)
agreed in the Mortgage Loan documents to establish an operations and
maintenance plan after the closing of the Mortgage Loan, (iv) on the
effective date of the Environmental Insurance Policy, Seller as originator
had no knowledge of any material and adverse environmental condition or
circumstance affecting the Mortgaged Property (other than the existence of
LBP, ACM or RG) that was not disclosed to the Policy Issuer in one or more
of the following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the Policy Issuer, or (c) an
engineering or other report provided to the Policy Issuer, and (v) the
premium of any Environmental Insurance Policy has been paid through the
maturity of the policy's term and the term of such policy extends at least
five years beyond the maturity of the Mortgage Loan.
ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment within
18 months prior to the Cut-off Date as set forth on Schedule B-1 to this
Exhibit B, (i) no Hazardous Material is present on such Mortgaged Property
such that (1) the value of such Mortgaged Property is materially and
adversely affected or (2) under applicable federal, state or local law,
(a) such Hazardous Material could be required to be eliminated at a cost
materially and adversely affecting the value of the Mortgaged Property
before such Mortgaged Property could be altered, renovated, demolished or
transferred, or (b) the presence of such Hazardous Material could (upon
action by the appropriate governmental authorities) subject the owner of
such Mortgaged Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting the
value of the Mortgaged Property, and (ii) such Mortgaged Property is in
material compliance with all applicable federal, state and local laws
pertaining to Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse effect on
the value of such Mortgaged Property, and neither Seller nor, to Seller's
knowledge, the related Mortgagor or any current tenant thereon, has
received any notice of violation or potential violation of any such law.
iii) "Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or related or
similar materials and any other substance or material as may be defined as
a hazardous or toxic substance by any federal, state or local
environmental law ordinance, rule, regulation or order, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. ▇▇.▇▇. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C. ▇▇.▇▇. 6901
et seq.), the Federal Water Pollution Control Act as amended (33 U.S.C.
▇▇.▇▇. 1251 et seq.), the Clean Air Act (42 U.S.C. ▇▇.▇▇. 1251 et seq.)
and any regulations promulgated pursuant thereto.
13) Loan Document Status. Each Mortgage Note, Mortgage and other agreement
that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor is the legal, valid and binding obligation
of the maker thereof (subject to any non-recourse provisions contained in
any of the foregoing agreements and any applicable state anti-deficiency
or market value limit deficiency legislation), enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law) and there is no valid defense, counterclaim or right of
offset or rescission available to the related Mortgagor with respect to
such Mortgage Note, Mortgage or other agreement.
14) Insurance. Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot
attending a strike, civil commotion, aircraft, vehicles and smoke, and, to
the extent required as of the date of origination by the originator of
such Mortgage Loan consistent with its normal commercial mortgage lending
practices, against other risks insured against by persons operating like
properties in the locality of the Mortgaged Property in an amount not less
than the lesser of the principal balance of the related Mortgage Loan and
the replacement cost of the Mortgaged Property, and contains no provisions
for a deduction for depreciation, and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
Mortgaged Property; (b) a business interruption or rental loss insurance
policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of
buildings or other structures on the Mortgaged Property are located in an
area identified by the Federal Emergency Management Agency as having
special flood hazards and the Federal Emergency Management Agency requires
flood insurance to be maintained); and (d) a comprehensive general
liability insurance policy in amounts as are generally required by
commercial mortgage lenders, and in any event not less than $1 million per
occurrence. Such insurance policy contains a standard mortgagee clause
that names the mortgagee as an additional insured in the case of liability
insurance policies and as a loss payee in the case of property insurance
policies and requires prior notice to the holder of the Mortgage of
termination or cancellation. No such notice has been received, including
any notice of nonpayment of premiums, that has not been cured. Each
Mortgage obligates the related Mortgagor to maintain all such insurance
and, upon such Mortgagor's failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at the Mortgagor's cost and expense
and to seek reimbursement therefor from such Mortgagor. Each Mortgage
provides that casualty insurance proceeds will be applied (a) to the
restoration or repair of the related Mortgaged Property, (b) to the
restoration or repair of the related Mortgaged Property, with any excess
insurance proceeds after restoration or repair being paid to the
Mortgagor, or (c) to the reduction of the principal amount of the Mortgage
Loan.
15) Taxes and Assessments. As of the Closing Date, there are no delinquent or
unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged
Property that are or may become a lien of priority equal to or higher than
the lien of the related Mortgage. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered
unpaid until the date on which interest or penalties would be first
payable thereon.
16) Mortgagor Bankruptcy. No Mortgaged Property, nor any portion thereof is
the subject of, and no Mortgagor under a Mortgage loan is, a debtor in any
state or federal bankruptcy or insolvency or similar proceeding.
17) Leasehold Estate. Each Mortgaged Property consists of a fee simple estate
in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest
in the Ground Lease but not by the related fee interest in such Mortgaged
Property (the "Fee Interest"), and as to such Ground Leases:
i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) does not
prohibit the current use of the Mortgaged Property and does not prohibit
the interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment terms of
such Ground Lease since the origination of the related Mortgage Loan, with
the exception of material changes reflected in written instruments that
are a part of the related Mortgage File;
ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances;
iii) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it
has been obtained prior to the Closing Date) and, in the event that it is
so assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of,
such lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
iv) Such Ground Lease is in full force and effect, and the Ground
Lease provides that no material amendment to such Ground Lease is binding
on a mortgagee unless the mortgagee has consented thereto, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in an
event of default under the terms of such Ground Lease;
v) Such Ground Lease or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any default
by the lessee to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is effective against
the holder of the Mortgage unless a copy of such notice has been delivered
to such holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground Lease;
vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years beyond
the Stated Maturity Date of the related Mortgage Loan;
viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
awarded to the holder of the ground lease interest will be applied either
(A) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by the related
Mortgage having the right to hold and disburse such proceeds as the repair
or restoration progresses (except in such cases where a provision
entitling a third party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon;
ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent commercial
mortgage lenders lending on a similar Mortgaged Property in the lending
area where the Mortgaged Property is located; and such Ground Lease
contains a covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession, interest or
quiet enjoyment of the lessee thereunder for any reason, or in any manner,
which would materially adversely affect the security provided by the
related Mortgage; and
x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease or if such Ground Lease is rejected
in a bankruptcy proceeding.
18) Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a), and the related Mortgaged Property, if acquired in
connection with the default or imminent default of such Mortgage Loan,
would constitute "foreclosure property" within the meaning of Section
860G(a)(8) (without regard to Section 856(e)(4) of the Code).
19) Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited
or paid have been so deposited or paid.
20) Advancement of Funds by the Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such
Mortgage Loan.
21) No Mechanics' Liens. Each Mortgaged Property is free and clear of any and
all mechanics' and materialmen's liens that are prior or equal to the lien
of the related Mortgage, and no rights are outstanding that under law
could give rise to any such lien that would be prior or equal to the lien
of the related Mortgage except, in each case, for liens insured against by
the Title Policy referred to herein.
22) Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
23) Cross-collateralization. Except as set forth on Schedule B-1 to this
Exhibit B, no Mortgage Loan is cross-collateralized or cross-defaulted
with any loan other than one or more other Mortgage Loans.
24) Releases of Mortgaged Property. Except as described in the next sentence,
no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property that was included in
the appraisal for such Mortgaged Property, and/or generates income from
the lien of the related Mortgage except upon payment in full of all
amounts due under the related Mortgage Loan or in connection with the
defeasance provisions of the related Note and Mortgage. The Mortgages
relating to those Mortgage Loans identified on Schedule B-1 hereto require
the mortgagee to grant releases of portions of the related Mortgaged
Properties upon (a) the satisfaction of certain legal and underwriting
requirements and/or (b) the payment of a release price and prepayment
consideration in connection therewith. Except as described in the first
sentence hereof and for those Mortgage Loans identified on Schedule B-1
hereto, no Mortgage Loan permits the full or partial release or
substitution of collateral unless the mortgagee or servicer can require
the Borrower to provide an opinion of tax counsel to the effect that such
release or substitution of collateral (a) would not constitute a
"significant modification" of such Mortgage Loan within the meaning of
Treas. Reg. ss.1.1001-3 and (b) would not cause such Mortgage Loan to fail
to be a "qualified mortgage" within the meaning of Section 860G(a)(3)(A)
of the Code.
25) No Equity Participation or Contingent Interest. No Mortgage Loan contains
any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of
interest at an increased rate after the Anticipated Repayment Date) or for
any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property.
26) No Material Default. There exists no material Event of Default, breach,
violation or event of acceleration (and, to the Seller's actual knowledge,
no event which, with the passage of time or the giving of notice, or both,
would constitute any of the foregoing) under the documents evidencing or
securing the Mortgage Loan, in any such case to the extent the same
materially and adversely affects the value of the Mortgage Loan and the
related Mortgaged Property; provided, however, that this representation
and warranty does not address or otherwise cover any default, breach,
violation or event of acceleration that specifically pertains to any
matter otherwise covered by any other representation and warranty made by
the Seller in any of paragraphs 3, 7, 12, 14, 15, 16 and 17 of this
Exhibit B.
27) Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected
each Mortgaged Property in connection with the origination of the related
Mortgage Loan.
28) Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part
of each Mortgaged Property comply with applicable zoning laws and
ordinances, or constitute a legal non-conforming use or structure or, if
any such improvement does not so comply, such non-compliance does not
materially and adversely affect the value of the related Mortgaged
Property, such value as determined by the appraisal performed at
origination or in connection with the sale of the related Mortgage Loan by
the Seller hereunder.
29) Junior Liens. None of the Mortgage Loans permits the related Mortgaged
Property to be encumbered by any lien (other than a Permitted Encumbrance)
junior to or of equal priority with the lien of the related Mortgage
without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified
therein. The Seller has no knowledge that any of the Mortgaged Properties
is encumbered by any lien junior to the lien of the related Mortgage.
30) Actions Concerning Mortgage Loans. To the knowledge of the Seller, there
are no actions, suits, or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged
Property or the validity or enforceability of the related Mortgage or that
might materially and adversely affect the value of the Mortgaged Property
as security for the Mortgage Loan or the use for which the premises were
intended.
31) Servicing. The servicing and collection practices used by the Seller or
any prior holder or servicer of each Mortgage Loan have been in all
material respects legal, proper and prudent and have met customary
industry standards.
32) Licenses and Permits. To the Seller's knowledge, based on due diligence
that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the
date of the sale of the related Mortgage Loan by the Seller hereunder, the
related Mortgagor was in possession of all material licenses, permits and
franchises required by applicable law for the ownership and operation of
the related Mortgaged Property as it was then operated.
33) Assisted Living Facility Regulation. If the Mortgaged Property is operated
as an assisted living facility, to the Seller's knowledge (a) the related
Mortgagor is in compliance in all material respects with all federal and
state laws applicable to the use and operation of the related Mortgaged
Property, and (b) if the operator of the Mortgaged Property participates
in Medicare or Medicaid programs, the facility is in compliance in all
material respects with the requirements for participation in such
programs.
34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to the
Purchaser.
35) Due on Sale. Each Mortgage Loan contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any
material portion thereof, or a controlling interest in the related
Mortgagor, is transferred, sold, or encumbered; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Mortgagor or constituent entities of the Mortgagor to a
third party or parties related to the Mortgagor upon the Mortgagor's
satisfaction of certain conditions precedent.
36) Single Purpose Entity. The Mortgagor on each Mortgage Loan with a Cut-off
Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this
purpose, a "Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents provide substantially to the
effect that it was formed or organized solely for the purpose of owning
and operating one or more of the Mortgaged Properties securing the
Mortgage Loans and prohibit it from engaging in any business unrelated to
such Mortgaged Property or Properties, and whose organizational documents
further provide, or which entity represented in the related Mortgage Loan
documents, substantially to the effect that it does not have any assets
other than those related to its interest in and operation of such
Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and
apart from any other person (other than a Mortgagor for a Mortgage Loan
that is cross-collateralized and cross-defaulted with the related Mortgage
Loan), and that it holds itself out as a legal entity, separate and apart
from any other person.
37) Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage
Loan provide that such Mortgage Loan constitutes either (a) the recourse
obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural
person (and the Mortgagor if the Mortgagor is not a natural person) is
liable to the holder of the Mortgage Loan for damages arising in the case
of fraud or willful misrepresentation by the Mortgagor, misappropriation
of rents, insurance proceeds, or condemnation awards and breaches of the
environmental covenants in the Mortgage Loan documents.
38) Defeasance and Assumption Costs. The related Mortgage Loan Documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the lender incurred in connection with
the defeasance of such Mortgage Loan and the release of the related
Mortgaged Property, and the borrower is required to pay all reasonable
costs and expenses of the lender associated with the approval of an
assumption of such Mortgage Loan.
39) Defeasance. No Mortgage Loan provides that it can be defeased until the
date that is more than two years after the Closing Date or provides that
it can be defeased with any property other than government securities (as
defined in Section 2(a)(16) of the Investment Company Act of 1940, as
amended) or any direct non-callable security issued or guaranteed as to
principal or interest by the United States.
40) Prepayment Premiums. As of the applicable date of origination of each such
Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield
maintenance charges for commercial mortgage loans.
41) [Reserved]
42) Single Asset REMIC. With respect to each of the single asset REMICs, there
has been no amendment, waiver, impairment, alteration, or modification to
any provision of the related REMIC declaration or to any provisions of the
related Mortgage Loan documents since the startup day of the single asset
REMIC. With respect to each of the single asset REMICs, the single asset
REMIC has been administered, the related Mortgage Loan has been serviced,
and each provision of the related REMIC declaration has been complied with
in a manner such that the single asset REMIC has not failed to qualify as
a REMIC for federal income tax purposes at any time since the Startup Day.
For purposes of these representations and warranties, the phrases "to the
knowledge of the Seller" or "to the Seller's knowledge" shall mean (except where
otherwise expressly set forth below) the actual state of knowledge of the Seller
(i) after the Seller's having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Seller's underwriting standards, at the time of the Seller's origination or
acquisition of the particular Mortgage Loan; and (ii) subsequent to such
origination, utilizing the monitoring practices customarily utilized by prudent
commercial or multifamily, as applicable, mortgage lenders with respect to
securitizable commercial or multifamily, as applicable, mortgage loans,
including inquiry with a representative of the loan servicer designated as the
party responsible for the knowledge of the servicer pertaining to the Mortgage
Loans. Also for purposes of these representations and warranties, the phrases
"to the actual knowledge of the Seller" or "to the Seller's actual knowledge"
shall mean (except where otherwise expressly set forth below) the actual state
of knowledge of the Seller without any express or implied obligation to make
inquiry. All information contained in the documents included in the definition
of Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Seller, to the extent that
the Seller or its closing counsel or custodian, if any, has reviewed or had
possession of such document at any time. For purposes of these representations
and warranties, to the extent that any representation or warranty is qualified
by the Seller's knowledge with respect to the contents of the Mortgage Note,
Mortgage, lender's title policy and any letters of credit or Ground Leases, if
such document is not included in the Mortgage File, the Seller shall make such
representation or warranty without any such qualification. Wherever there is a
reference in a representation or warranty to receipt by, or possession of, the
Seller of any information or documents, or to any action taken by the Seller or
to any action which has not been taken by the Seller or its agents or employees,
such reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking such action by, the
Seller. For purposes of these representations and warranties, when referring to
the conduct of "reasonable prudent institutional commercial or multifamily, as
applicable mortgage lenders" (or similar such phrases and terms), such conduct
shall be measured by reference to the industry standards generally in effect as
of the date the related representation or warranty relates to or is made.
It is understood and agreed that the representations and warranties set forth in
this Exhibit B shall survive delivery of the respective Mortgage Files to the
Purchaser and/or the Trustee and shall inure to the benefit of the Purchaser and
its successors and assigns (including without limitation the Trustee and the
holders of the Certificates), notwithstanding any restrictive or qualified
endorsement or assignment.