Common use of Repurchase or Transfer and Exchange for Document Defects, Collateral Defects and Breaches of Representations and Warranties Clause in Contracts

Repurchase or Transfer and Exchange for Document Defects, Collateral Defects and Breaches of Representations and Warranties. (a) If any party hereto discovers or receives notice that any document required to be included in any Loan File or Lease File is missing (after the date it is required to be delivered) or is otherwise deficient or that there exists a breach of any representation or warranty relating to any Mortgage Loan, Property or Lease set forth in Section 2.20, Section 2.21 or Section 2.22 of the Indenture and if such absence, deficiency or breach materially and adversely affects (a) the interests of the applicable Issuer in, or the value of, such Mortgage Loan, Property or Lease or (b) the collectability or enforceability of the Lease or Mortgage with respect to the Property (a “Collateral Defect”), the party discovering such Collateral Defect shall give prompt written notice thereof to the other parties hereto. Promptly upon becoming aware of any such Collateral Defect, the Property Manager shall request that such Issuer, not later than 60 days from the receipt by such Issuer of such request, (i) cure such Collateral Defect in all material respects, (ii) cause such Property, Lease or Mortgage Loan to be released from the Collateral in accordance with Section 7.04 of this Agreement, or (iii) substitute one or more Qualified Substitute Properties for the subject Property, one or more Qualified Substitute Properties or Qualified Substitute Loans for the subject Mortgage Loan or one or more Qualified Substitute Hybrid Leases for the subject Hybrid Lease in accordance with the procedures set forth in Section 7.01 of this Agreement; provided that if (i) such Collateral Defect is capable of being cured but not within such 60-day period, (ii) such Issuer has commenced and is diligently proceeding with the cure of such Collateral Defect within such 60-day period, and (iii) such Issuer shall have delivered to, the Property Manager, the Indenture Trustee and the Custodian a certification executed on behalf of such Issuer by an officer thereof setting forth the reason such Collateral Defect is not reasonably capable of being cured within an initial 60-day period and what actions such Issuer is pursuing in connection with the cure thereof and stating that such Issuer anticipates that such Collateral Defect will be cured within an additional period not to exceed 60 more days, then such Issuer shall have up to an additional 60 days commencing on the 61st day from receipt by such Issuer of such request to complete such cure. (b) If an Issuer has elected to release or to substitute one or more of the Properties or Mortgage Loans and the Property Manager and/or such Issuer has delivered the Officer’s Certificates referenced in Sections 7.01 and 7.04, respectively, the Property Manager shall, and is hereby authorized and empowered by such Issuer and the Indenture Trustee to, prepare, execute and deliver in its own name, on behalf of such Issuer, the Indenture Trustee and the Collateral Agent, on behalf of the Indenture Trustee, or any of them, the endorsements, assignments and other documents contemplated by Section 7.01 or Section 7.04 necessary to effectuate an exchange or release pursuant to Section 2.03(a), and such Issuer, the Indenture Trustee and the Collateral Agent shall execute and deliver any limited powers of attorney substantially in the form of Exhibit D prepared by the Property Manager and necessary to permit the Property Manager to do so; provided, however, that none of the applicable Issuer, the applicable Issuer Member, the applicable Issuer board of managers, the Indenture Trustee or the Collateral Agent shall be held liable for any misuse of any such power of attorney by the Property Manager and the Property Manager hereby agrees to indemnify such Issuer, such Issuer Member, such Issuer board of managers, the Indenture Trustee and the Collateral Agent against, and hold such Issuer, such Issuer Member, such Issuer board of managers, the Indenture Trustee and the Collateral Agent harmless from, any loss or liability arising from any misuse of such power of attorney. In connection with any such release or substitution by an Issuer, the Property Manager or the Special Servicer, as appropriate, shall concurrently deliver the related Lease File or Loan File, as applicable, to such Issuer. (c) Subject to the terms of the Guaranty, this Section 2.03 provides the sole remedies available to the Indenture Trustee and the Noteholders with respect to any Collateral Defect. If any Issuer defaults on its obligations to release or substitute for any Property or Mortgage Loan as contemplated by Section 2.03(a), such default shall be deemed an Event of Default under the Indenture and the Property Manager shall promptly notify the Indenture Trustee and any applicable Rating Agency and shall take such actions with respect to the enforcement of such obligations, including the institution and prosecution of appropriate proceedings, and the Property Manager shall notify the Controlling Party of each Series of any proposed action and, prior to the Property Manager taking such action, such Controlling Parties shall consent to such action. Any and all expenses incurred by the Property Manager or the Indenture Trustee with respect to the foregoing shall constitute Property Protection Advances in respect of the affected Property or Mortgage Loan.