MORTGAGE LOAN PURCHASE AGREEMENT
Exhibit 4(b)
This Mortgage Loan Purchase Agreement, dated as of
[_________] (the “Agreement”), is
entered into between [_________] (the “Seller”) and Xxxxx
Fargo Commercial Mortgage Securities, Inc. (the “Purchaser”).
The Seller intends to sell and the Purchaser intends to
purchase certain multifamily and commercial mortgage loans (the “Mortgage Loans”)
identified on the schedule (the “Mortgage Loan
Schedule”) annexed hereto as Exhibit A. The Purchaser intends to
deposit the Mortgage Loans, along with certain other mortgage loans (the “Other Mortgage
Loans”), into a trust fund (the “Trust Fund”), the
beneficial ownership of which will be evidenced by multiple classes (each, a
“Class”) of
mortgage pass-through certificates (the “Certificates”).
One or more “real estate mortgage investment conduit” (“REMIC”) elections
will be made with respect to most of the Trust Fund. The Trust Fund will
be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the “Pooling and Servicing
Agreement”), dated as of [_________], among the Purchaser, as depositor,
[Xxxxx Fargo Bank, National Association], as master servicer (in such
capacity, the “Master
Servicer”), [_________], as special servicer (the “Special Servicer”)
and [_________], as trustee (the “Trustee”).
Capitalized terms used but not defined herein (including the Schedules attached
hereto) have the respective meanings set forth in the Pooling and Servicing
Agreement.
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 delivered to the Purchaser
pursuant to the terms hereof. The Mortgage Loans are expected to have an
aggregate principal balance of $[_________] (the “[_________] Mortgage Loan
Balance”) (subject to a variance of plus or minus 5.0%) as of the close
of business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not such payments are received.
The
[_________] Mortgage Loan Balance, together with the aggregate principal balance
of the Other Mortgage Loans as of the Cut-Off Date (after giving effect to any
payments due on or before such date whether or not such payments are received),
is expected to equal an aggregate principal balance (the “Cut-Off Date Pool
Balance”) of $[_________] (subject to a variance of plus or minus
5.0%). The purchase and sale of the Mortgage Loans shall take place
[_________], or such other date as shall be mutually acceptable to the parties
to this Agreement (the “Closing Date”).
The consideration (the “Aggregate Purchase
Price”) for the Mortgage Loans shall be equal to (i) [_________]% of the
[_________] Mortgage Loan Balance as of the Cut-Off Date, plus (ii)
$[_________], which amount represents the amount of interest accrued on the
[_________] Mortgage Loan Balance at the related Net Mortgage Rate for the
period from and including the Cut-Off Date up to but not including the Closing
Date.
The Aggregate Purchase Price shall be paid to the
Seller or its designee by wire transfer in immediately available funds on the
Closing Date.
SECTION
2.
Conveyance of Mortgage
Loans.
(a)
Effective as of the Closing Date,
subject only to receipt by the Seller of the Aggregate Purchase Price and
satisfaction of the other conditions to closing that are for the benefit of the
Seller, the Seller does hereby sell, transfer, assign, set over and otherwise
convey to the Purchaser, without recourse (except as set forth in this
Agreement), 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, on a
servicing released basis, together with all of the Seller’s right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance proceeds.
(b)
The Purchaser or its assignee shall be
entitled to receive all scheduled payments of principal and interest due after
the Cut-Off Date, and all other recoveries of principal and interest collected
after the Cut-Off Date (other than in respect of principal and interest on the
Mortgage Loans due on or before the Cut-Off Date). All scheduled payments
of principal and interest due on or before the Cut-Off Date but collected on or
after the Cut-Off Date, and recoveries of principal and interest collected on or
before the Cut-Off Date (only in respect of principal and interest on the
Mortgage Loans due on or before the Cut-Off Date and principal prepayments
thereon), shall belong to, and shall be promptly remitted to, the
Seller.
(c)
No later than the Closing Date, the
Seller shall, on behalf of the Purchaser, deliver to the Trustee, the documents
and instruments specified below with respect to each Mortgage Loan (each a
“Mortgage
File”). All Mortgage Files so delivered will be held by the Trustee
in escrow at all times prior to the Closing Date. Each Mortgage File shall
contain the following documents:
(i)
the original executed Mortgage Note
including any power of attorney related to the execution thereof, together with
any and all intervening endorsements thereon, endorsed on its face or by
allonge attached thereto (without recourse, representation or
warranty, express or implied) to the order of “[_________], as trustee for the
registered holders of Xxxxx Fargo Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series [_________]” or in blank (or a lost note
affidavit and indemnity with a copy of such Mortgage Note attached
thereto);
(ii)
an original or copy of the Mortgage,
together with any and all intervening assignments thereof, in each case (unless
not yet returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office;
(iii)
an original or copy of any related
Assignment of Leases (if such item is a document separate from the Mortgage),
together with any and all intervening assignments thereof, in each case (unless
not yet returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office;
(iv)
an original executed assignment, in
recordable form (except for any missing recording information), of (a) the
Mortgage, (b) any related Assignment of
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Leases (if such
item is a document separate from the Mortgage and to the extent not already
assigned pursuant to preceding clause (a)) and (c) any other recorded document
relating to the Mortgage Loan otherwise included in the Mortgage File, in favor
of “[_________], as trustee for the registered holders of Xxxxx Fargo Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
[_________]”, or in blank;
(v)
an original assignment of all
unrecorded documents relating to the Mortgage Loan (to the extent not already
assigned pursuant to clause (iv) above), in favor of “[_________], as trustee
for the registered holders of Xxxxx Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series [_________]”, or in
blank;
(vi)
originals or copies of any
modification, consolidation, assumption and substitution agreements in those
instances where the terms or provisions of the Mortgage or Mortgage Note have
been consolidated or modified or the Mortgage Loan has been assumed or
consolidated;
(vii)
the original or a copy of the policy or
certificate of lender’s title insurance or, if such policy has not been issued
or located, an original or copy of an irrevocable, binding commitment (which may
be a marked version of the policy that has been executed by an authorized
representative of the title company or an agreement to provide the same pursuant
to binding escrow instructions executed by an authorized representative of the
title company) to issue such title insurance policy;
(viii) any filed copies
(bearing evidence of filing) or other evidence of filing satisfactory to the
Purchaser of any prior UCC Financing Statements in favor of the originator of
such Mortgage Loan or in favor of any assignee prior to the Trustee (but only to
the extent the Seller had possession of such UCC Financing Statements prior to
the Closing Date) and, if there is an effective UCC Financing Statement and
continuation statement in favor of the Seller on record with the applicable
public office for UCC Financing Statements, an original UCC Amendment, in form
suitable for filing in favor of “[_________], as trustee for the registered
holders of Xxxxx Fargo Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series [_________], as assignee”, or in blank;
(ix)
an original or copy of (a) any
Ground Lease, Memorandum of Ground Lease and ground lessor estoppel, (b) any
loan guaranty or indemnity and (c) any environmental insurance
policy;
(x)
any intercreditor agreement
relating to permitted debt (including, without limitation, mezzanine debt) of
the Mortgagor;
(xi)
copies of any loan agreement, escrow
agreement or security agreement relating to such Mortgage Loan;
(xii)
a copy of any letter of credit
and related transfer documents relating to such Mortgage Loan;
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(xiii)
copies of franchise agreements and
franchisor comfort letters, if any, for hospitality properties and applicable
transfer or assignment documents; and
(xiv)
with respect to any Companion Loan, all
of the above documents with respect to such Companion Loan and the related
Intercreditor Agreement; provided that a copy
of each Mortgage Note relating to such Companion Loan, rather than the original,
shall be provided, and no assignments shall be provided.
(d)
The Seller shall take all actions
reasonably necessary (i) to permit the Trustee to fulfill its obligations
pursuant to Section 2.01(d) of the Pooling and Servicing Agreement and (ii) to
perform its obligations described in Section 2.01(d) of the Pooling and
Servicing Agreement. Without limiting the generality of the foregoing, if
a draw upon a letter of credit is required before its transfer to the Trust Fund
can be completed, the Seller shall draw upon such letter of credit for the
benefit of the Trust pursuant to written instructions from the Master
Servicer. The Seller shall reimburse the Trustee for all reasonable costs
and expenses, if any, incurred by the Trustee for recording any documents
described in Section 2(c)(iv)(c) hereof and filing any assignments of UCC
Financing Statements described in the proviso in the third to last sentence in
Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All documents and records (except draft
documents, privileged communications and internal correspondence and credit, due
diligence and other underwriting analysis, documents, data or internal
worksheets, memoranda, communications and evaluations of the Seller) relating to
each Mortgage Loan and in the Seller’s possession (the “Additional Mortgage Loan
Documents”) that are not required to be delivered to the Trustee shall
promptly be delivered or caused to be delivered by the Seller to the Master
Servicer or at the direction of the Master Servicer to the appropriate
sub-servicer, together with any related escrow amounts and reserve
amounts.
(f)
The Seller shall take such actions as
are reasonably necessary to assign or otherwise grant to the Trust Fund the
benefit of any letters of credit in the name of the Seller which secure any
Mortgage Loan.
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 [national banking
association]/[corporation] organized and validly existing and in good standing
under the laws of the [United States]/[State of [_________]] and possesses all
requisite authority, power, licenses, permits and franchises to carry on its
business as currently conducted by it and to execute, deliver and comply with
its obligations under the terms of this Agreement;
(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 bankruptcy, insolvency, reorganization, receivership, moratorium and other
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laws
relating to or affecting the enforcement of creditors’ rights in general, as
they may be applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and by public
policy considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from liabilities under
applicable securities laws;
(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 [articles of
association]/[certificate of incorporation] or bylaws, (B) violate any law or
regulation or any administrative decree or order to which it is subject or (C)
constitute a material default (or an event which, with notice or lapse of time,
or both, would constitute a material 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 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 [articles of
association]/[certificate of incorporation], bylaws 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 of
this Agreement or the performance by the Seller of its obligations under this
Agreement (except to the extent such consent has been obtained);
(vi)
No consent, approval, authorization or
order of 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
except as have previously been obtained, and no bulk sale law applies to such
transactions;
(vii)
No litigation is pending or, to 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)
Under generally accepted accounting
principles (“GAAP”) and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for consideration
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consisting of a cash amount equal to the Aggregate Purchase Price.
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; and
(ix) The Seller has examined the information set
forth under the caption “Description of the Mortgage Pool—Significant
Originators” and “—The Sponsor” (the “Regulation AB
Information”) in the Preliminary Prospectus Supplement (as defined
below), the Preliminary Memorandum (as defined below), the Prospectus
Supplement, (as defined below), to the accompanying Prospectus (as defined
below) and the Memorandum (as defined below), relating to the
Certificates. The Regulation AB Information fully complies with all
applicable requirements of Regulation AB (as defined below).
(b)
The Seller hereby makes the
representations and warranties contained in Schedule I for the
benefit of the Purchaser and the Trustee for the benefit of the
Certificateholders as of the Closing Date, with respect to (and solely with
respect to) each Mortgage Loan, which representations and warranties are subject
to the exceptions set forth on Schedule
II.
(c)
With respect to the schedule of
exceptions delivered by the Trustee on the Closing Date, within [_____] Business
Days (or, in the reasonable discretion of the Controlling Class Representative,
[____] Business Days) of the Closing Date, with respect to the documents
specified in clauses (i), (ii), (vii), (ix) (solely with respect to Ground
Leases) and (xii) of the definition of Mortgage File, the Seller shall cure any
material exception listed therein (for the avoidance of doubt, any deficiencies
with respect to the documents specified in clause (ii) resulting solely from a
delay in the return of the related documents from the applicable recording
office, shall be cured in the time and manner described in Section 2.01(c) of
the Pooling and Servicing Agreement). If such exception is not so cured,
the Seller shall either (1) repurchase the related Mortgage Loan, (2) with
respect to exceptions relating to clause (xii) of the definition of “Mortgage
File”, deposit with the Trustee an amount, to be held in trust in a Special
Reserve Account pursuant to the Pooling and Servicing Agreement, equal to the
amount of the undelivered letter of credit (in the alternative, the Seller may
deliver to the Trustee, with a certified copy to the Master Servicer and
Trustee, a letter of credit for the benefit of the Master Servicer on behalf of
the Trustee and upon the same terms and conditions as the undelivered letter of
credit) which the Master Servicer on behalf of the Trustee may use (or draw
upon, as the case may be) under the same circumstances and conditions as the
Master Servicer would have been entitled to draw on the undelivered letter of
credit, or (3) with respect to any exceptions relating to clauses (i), (ii) and
(vii), deposit with the Trustee an amount, to be held in trust in a Special
Reserve Account pursuant to the Pooling and Servicing Agreement, equal to 25% of
the Stated Principal Balance of the related Mortgage Loan on such date.
Any funds or letter of credit deposited pursuant to clauses (2) and (3) shall be
held by the Trustee until the earlier of (x) the date on which the Master
Servicer certifies to the Trustee and the Controlling Class Representative that
such exception has been cured (or the Trustee certifies the same to the
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Controlling Class Representative),
at which time such funds or letter of credit, as applicable, shall be returned
to the Seller and (y) [___] Business Days or, if the Controlling Class
Representative has extended the cure period, [___] Business Days after the
Closing Date; provided, however, that if such
exception is not cured within such [___] Business Days or [___] Business Days,
as the case may be, (A) in the case of clause (2), the Trustee shall retain the
funds or letter of credit, as applicable, or (B) in the case of clause (3), the
Seller shall repurchase the related Mortgage Loan in accordance with the terms
and conditions of this Agreement, at which time such funds shall be applied to
the Purchase Price of the related Mortgage Loan and any letter of credit will be
returned to the Seller.
If
the Seller receives written notice of a Document Defect or a Breach pursuant to
Section 2.03(a) of the Pooling and Servicing Agreement relating to a Mortgage
Loan, then the Seller shall not later than [__] days from receipt of such notice
(or, in the case of a Document Defect or Breach relating to a Mortgage Loan not
being a “qualified mortgage” within the meaning of the REMIC Provisions (a
“Qualified
Mortgage”), not later than [__] days from the date that any party to the
Pooling and Servicing Agreement discovers such Document Defect or Breach; provided the Seller
receives such notice in a timely manner), if such Document Defect or Breach
shall materially and adversely affect the value of the applicable Mortgage Loan,
the interest of the Trust therein or the interests of any Certificateholder,
cure such Document Defect or Breach, as the case may be, in all material
respects, which shall include payment of actual or provable losses and any
Additional Trust Fund Expenses directly resulting from any such Document Defect
or Breach or, if such Document Defect or Breach (other than omissions solely due
to a document not having been returned by the related recording office) cannot
be cured within such [__]-day period, (i) repurchase the affected Mortgage Loan
at the applicable Purchase Price not later than the end of such [__]-day period
or (ii) substitute a Qualified Substitute Mortgage Loan for such affected
Mortgage Loan not later than the end of such [__]-day period (and in no event
later than the second anniversary of the Closing Date) and pay the Master
Servicer for deposit into the Certificate Account, any Substitution Shortfall
Amount in connection therewith; provided, however, that unless
the Breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if
such Document Defect or Breach is capable of being cured but not within such
[__]-day period and the Seller has commenced and is diligently proceeding with
the cure of such Document Defect or Breach within such [__]-day period, such
Seller shall have an additional [__] days to complete such cure (or, failing
such cure, to repurchase or substitute the related Mortgage Loan); provided, further, that with
respect to such additional [__]-day period the Seller shall have delivered an
officer’s certificate to the Trustee setting forth what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Document Defect or Breach will be cured within the
additional [__]-day period; provided, further, that no
Document Defect (other than with respect to a Mortgage Note, Mortgage, title
insurance policy, Ground Lease, any letter of credit, any franchise agreement,
any comfort letter and (if required) any comfort letter transfer documents
(collectively, the “Core Material
Documents”)) shall be considered to materially and adversely affect the
value of the related Mortgage Loan, the interests of the Trust therein or the
interests of any Certificateholder unless the document with respect to which the
Document Defect exists is required in connection with an imminent enforcement of
the mortgagee’s rights or remedies under the related Mortgage Loan, defending
any claim asserted by any borrower or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien or any collateral
securing the Mortgage Loan or for any immediate significant servicing
obligations; provided, further, with respect
to
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Document Defects
which materially and adversely affect the interests of any Certificateholder,
the interests of the Trust therein or the value of the related Mortgage Loan,
other than with respect to Document Defects relating to the Core Material
Documents, any applicable cure period following the initial [__] day cure period
may be extended by the Master Servicer or the Special Servicer if the document
involved is not needed imminently. Such extension will end upon [__] days
notice of such need as reasonably determined by the Master Servicer or Special
Servicer (with a possible [__] day extension if the Master Servicer or Special
Servicer agrees that the Seller is diligently pursuing a cure). The Seller
shall cure all Document Defects which materially and adversely affect the
interests of any Certificateholder, the interests of the Trust therein or the
value of the related Mortgage Loan, regardless of the document involved, no
later than two years following the Closing Date; provided that the
initial [__] day cure period referenced in this paragraph may not be
reduced. For a period of two years from the Closing Date, so long as there
remains any Mortgage File relating to a Mortgage Loan as to which there is any
uncured Document Defect or Breach, the Seller shall provide the officer’s
certificate to the Trustee described above as to the reasons such Document
Defect or Breach remains uncured and as to the actions being taken to pursue
cure. Notwithstanding the foregoing, the delivery of a commitment to issue
a policy of lender’s title insurance as described in Representation 12 of
Schedule I hereof in lieu of the delivery of the actual policy of lender’s title
insurance shall not be considered a Document Defect or Breach with respect to
any Mortgage File if such actual policy of insurance is delivered to the Trustee
or a Custodian on its behalf not later than the [__]th day following the
Closing Date.
If
(i) any Mortgage Loan is required to be repurchased or substituted for in the
manner described above, (ii) such Mortgage Loan is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans (each, a “Crossed Loan”), and
(iii) the applicable Document Defect or Breach does not constitute a Document
Defect or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Group (without regard to this paragraph), then the applicable Document
Defect or Breach, as the case may be, will be deemed to constitute a Document
Defect or Breach, as the case may be, as to any other Crossed Loan in the
Crossed Group for purposes of this paragraph, and the Seller will be required to
repurchase or substitute for all of the remaining Crossed Loan(s) in the related
Crossed Group as provided in the immediately preceding paragraph unless such
other Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase
Criteria and satisfy all other criteria for substitution or repurchase of
Mortgage Loans set forth herein. In the event that the remaining Crossed
Loans satisfy the aforementioned criteria, the Seller may elect either to
repurchase or substitute for only the affected Crossed Loan as to which the
related Breach or Document Defect exists or to repurchase or substitute for all
of the Crossed Loans in the related Crossed Group. The Seller shall be
responsible for the cost of any Appraisal required to be obtained by the Master
Servicer to determine if the Crossed Loan Repurchase Criteria have been
satisfied, so long as the scope and cost of such Appraisal has been approved by
the Seller (such approval not to be unreasonably withheld).
To
the extent that the Seller is required to repurchase or substitute for a Crossed
Loan hereunder in the manner prescribed above while the Trustee continues to
hold any other Crossed Loans in such Crossed Group, neither the Seller nor the
Purchaser shall enforce any remedies against the other’s Primary Collateral, but
each is permitted to exercise remedies
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against the Primary
Collateral securing its respective Crossed Loans, including with respect to the
Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If
the exercise of remedies by one party would materially impair the ability of the
other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loans held by such party, then the Seller and the Purchaser
shall forbear from exercising such remedies until the Mortgage Loan documents
evidencing and securing the relevant Crossed Loans can be modified in a manner
that complies with this Agreement to remove the threat of material impairment as
a result of the exercise of remedies or some other accommodation can be
reached. Any reserve or other cash collateral or letters of credit
securing the Crossed Loans shall be allocated between such Crossed Loans in
accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon
their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate
the related cross-collateralization and/or cross-default provisions, as a
condition to such modification, the Seller shall furnish to the Trustee an
Opinion of Counsel that any modification shall not cause an Adverse REMIC
Event. Any expenses incurred in good faith by the Purchaser in connection
with such modification or accommodation (including, but not limited to,
recoverable attorney fees) shall be paid by the
Seller.
(d)
In connection with any permitted
repurchase or substitution of one or more Mortgage Loans contemplated hereby,
upon receipt of a certificate from a Servicing Officer certifying as to the
receipt of the Purchase Price or Substitution Shortfall Amount(s), as
applicable, in the Certificate Account, and the delivery of the Mortgage File(s)
and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s)
to the Custodian and the Master Servicer, respectively, if applicable (i) the
Trustee shall execute and deliver such endorsements and assignments as are
provided to it by the Master Servicer, in each case without recourse,
representation or warranty, as shall be necessary to vest in the Seller, the
legal and beneficial ownership of each repurchased Mortgage Loan or substituted
Mortgage Loan, as applicable, (ii) the Trustee, the Custodian, the Master
Servicer and the Special Servicer shall each tender to the Seller, upon delivery
to each of them of a receipt executed by the Seller, all portions of the
Mortgage File and other documents pertaining to such Mortgage Loan possessed by
it, and (iii) the Master Servicer and the Special Servicer shall release to the
Seller any Escrow Payments and Reserve Funds held by it in respect of such
repurchased or deleted Mortgage Loans.
(e)
Without limiting the remedies of the
Purchaser, the Certificateholders or the Trustee on behalf of the
Certificateholders pursuant to this Agreement, it is acknowledged that the
representations and warranties are being made for risk allocation
purposes. This Section 3 provides the sole remedy available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to this
Section 3. Nothing in this Agreement shall prohibit the Purchaser or its
assigns (including the Master Servicer and/or the Special Servicer) from
pursuing any course of action authorized by the Pooling and Servicing Agreement
while the Purchaser asserts a claim or brings a cause of action to enforce any
rights set forth herein against the Seller.
(f)
With respect to any Mortgage Loan which
has become a Defaulted Mortgage Loan under the Pooling and Servicing Agreement
or with respect to which the related
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Mortgaged Property has been
foreclosed and which is the subject of a repurchase claim under this Agreement,
in accordance with Section 2.03 of the Pooling and Servicing Agreement, the
Special Servicer with the consent of the Controlling Class Representative shall
notify the Seller in writing of its intention to liquidate such Defaulted
Mortgage Loan or REO Property at least [__] days prior to any such action.
If (a) the Seller consents to such sale and voluntarily agrees to repurchase
such Defaulted Mortgage Loan or REO Property or (b) a court of competent
jurisdiction determines that the Seller is liable under this Agreement to
repurchase such Defaulted Mortgage Loan or REO Property, then such Seller shall
remit to the Purchaser an amount equal to the difference if any of the price of
such Defaulted Mortgage Loan or REO Property as sold and the price at which the
Seller would have had to repurchase such Defaulted Mortgage Loan or REO Property
under this Agreement. The Seller shall have [__] Business Days after
receipt of notice to determine whether or not to consent to such sale. If
the Seller does not consent to such sale, the Special Servicer shall contract
with a Determination Party (as defined in the Pooling and Servicing Agreement)
as to the merits of such proposed sale. If the related Determination Party
determines that such proposed sale is in accordance with the Servicing Standard
and the provisions of the Pooling and Servicing Agreement with respect to the
sale of Defaulted Mortgage Loans and REO Properties and, subsequent to such
sale, a court of competent jurisdiction determines that the Seller was liable
under this Agreement and required to repurchase such Defaulted Mortgage Loan or
REO Property in accordance with the terms hereof, then the Seller shall remit to
the Purchaser an amount equal to the difference (if any) between the proceeds of
the related action and the price at which the Seller would have been obligated
to pay had the Seller repurchased such Defaulted Mortgage Loan or REO Property
prior to the execution of a binding contract of sale with a third party in
accordance with the terms hereof including the costs related to contracting with
the related Determination Party; provided that the
foregoing procedure in this Section 3(f) shall not preclude such Seller from
repurchasing the Defaulted Mortgage Loan or REO Property prior to the execution
of a binding contract of sale with a third party in accordance with the other
provisions of this Section 3 (excluding this Section 3(f)). If the related
Determination Party determines that the sale of the related Defaulted Mortgage
Loan or REO Property is not in accordance with the Servicing Standards and the
provisions of the Pooling and Servicing Agreement with respect to the sale of
Defaulted Mortgage Loans and REO Properties and the Special Servicer
subsequently sells such Mortgage Loan or REO Property, then the Seller will not
be liable for any such difference (nor any cost of contracting with the
Determination Party).
(g)
Notwithstanding the foregoing, if there
exists a Breach relating to whether or not the Mortgage Loan documents or any
particular Mortgage Loan document requires the related Mortgagor to bear the
costs and expenses associated with any particular action or matter under such
Mortgage Loan document(s) with respect to matters described in Representations
[23] and [43] of Schedule I hereof, then the Purchaser shall direct the Seller
in writing to wire transfer to the Master Servicer for deposit into the
Certificate Account, within [___] days of the Seller’s receipt of such
direction, the amount of any such costs and expenses borne by the Purchaser, the
Certificateholders, the Master Servicer, the Special Servicer and the Trustee on
their behalf that are the basis of such Breach. Upon its making such
deposit, the Seller shall be deemed to have cured such Breach in all
respects. Provided such payment is made in full, this paragraph describes
the sole remedy available to the Purchaser, the Certificateholders, the Master
Servicer, the Special Servicer and the Trustee on their behalf regarding any
such Breach and the
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Seller shall not be obligated to
repurchase the affected Mortgage Loan on account of such Breach or otherwise
cure such Breach.
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:
(a)
The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
North Carolina. 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.
(b)
This Agreement has been duly and
validly authorized, executed and delivered by the Purchaser, all requisite
action by the Purchaser’s directors and officers has been taken in connection
therewith, and (assuming the due authorization, execution and delivery hereof by
the Seller) this Agreement constitutes the valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its
terms, except as such enforcement may be limited by (A) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or (C) general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c)
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, under federal or
state law, 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.
(d)
None of the acquisition of the Mortgage
Loans by the Purchaser, the transfer of the Mortgage Loans to the Trustee, or
the execution, delivery or performance of this Agreement by the Purchaser,
results or will result in the creation or imposition of any lien on any of the
Purchaser’s assets or property, or conflicts or will conflict with, results or
will result in a breach of, or require or will require the consent of any third
person or constitutes or will constitute a default under (A) any term or
provision of the Purchaser’s certificate of incorporation or bylaws, (B) any
term or provision of any material agreement, contract, instrument or indenture,
to which the Purchaser is a party or by which the Purchaser is bound, or (C) any
law, rule, regulation, order, judgment, writ, injunction or decree of any court
or governmental authority having jurisdiction over the Purchaser or its
assets.
(e)
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 a sale of the Mortgage Loans to the Purchaser in
exchange for consideration consisting of a cash amount equal to the Aggregate
Purchase Price.
(f)
There is no action, suit, proceeding or
investigation pending or to the knowledge of the Purchaser, threatened against
the Purchaser in any court or by or before any
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other governmental agency or
instrumentality which would materially and adversely affect the validity of this
Agreement or any action taken in connection with the obligations of the
Purchaser contemplated herein, or which would be likely to impair materially the
ability of the Purchaser to enter into and/or perform its obligations under the
terms of this Agreement.
(g)
The Purchaser 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 governmental agency or body, which default
might have consequences that would materially and adversely affect the condition
(financial or other) or operations of the Purchaser or its properties or might
have consequences that would materially and adversely affect its performance
hereunder.
SECTION
5.
Closing. The
closing of the sale of the Mortgage Loans (the “Closing”) shall be
held at the offices of [_________] 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)
The Pooling and Servicing Agreement (to
the extent it affects the obligations of the Seller hereunder) and all documents
specified in Section 6 of this Agreement (the “Closing Documents”),
in such forms as are agreed upon and acceptable to the Purchaser, the Seller,
the Underwriters, the Initial Purchasers and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c)
The Seller shall have delivered and
released to the Trustee (or a Custodian on its behalf) and the Master Servicer,
respectively, all documents represented to have been or required to be delivered
to the Trustee and the Master Servicer pursuant to Section 2 of this
Agreement;
(d)
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;
(e)
The Seller shall have paid all fees and
expenses payable by it to the Purchaser or otherwise pursuant to this Agreement
as of the Closing Date; and
(f)
The letters shall have been received
from the independent accounting firm [_______], in form satisfactory to the
Purchaser, relating to certain information regarding the Mortgage Loans and
Certificates as set forth in the Prospectus, the Prospectus Supplement, the
Preliminary Memorandum] and the Memorandum.
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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
6.
Closing
Documents. The Closing Documents shall consist of the
following:
(a)
This Agreement duly executed by the
Purchaser and the Seller;
(b)
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: (i) the representations and warranties of the Seller in
this Agreement are true and correct in all material respects at and as of the
Closing Date with the same effect as if made on such date; and (ii) the Seller
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;
(c)
An officer’s certificate from an
officer of the Seller (signed in his/her capacity as an officer), dated the
Closing Date, and upon which the Purchaser may rely, to the effect that each
individual who, as an officer or representative of the Seller, signed this
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine
signatures;
(d)
An officer’s certificate from an
officer of the Seller (signed in his/her capacity as an officer), dated the
Closing Date, and upon which the Purchaser, the Underwriters and the Initial
Purchasers may rely, to the effect that with respect to the Seller, the Mortgage
Loans, the related Mortgagors and the related Mortgaged Properties (i) such
officer has carefully examined the Specified Portions of the Preliminary
Prospectus Supplement together with all other Time of Sale Information delivered
prior to the Time of Sale and nothing has come to his attention that would lead
him to believe that the Specified Portions of the Preliminary Prospectus
Supplement together with all other Time of Sale Information delivered prior to
the Time of Sale, as of the Time of Sale, or as of the Closing Date, included or
include any untrue statement of a material fact relating to the Mortgage Loans
or omitted or omit to state therein a material fact necessary in order to make
the statements therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading, (ii) such officer has
carefully examined the Specified Portions of the Prospectus Supplement and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Prospectus Supplement, as of the date of the
Prospectus Supplement, or as of the Closing Date, included or include any untrue
statement of a
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material fact relating to the
Mortgage Loans or omitted or omit to state therein a material fact necessary in
order to make the statements therein relating to the Mortgage Loans, in light of
the circumstances under which they were made, not misleading, and
(iii) such officer has examined the Specified Portions of the
Memorandum and nothing has come to his attention that would lead him to believe
that the Specified Portions of the Memorandum, as of the date thereof or as of
the Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading. The “Specified Portions” of the Prospectus Supplement shall
consist of Annex A thereto, the diskette which accompanies the Prospectus
Supplement (insofar as such diskette is consistent with such Annex A) and the
following sections of the Prospectus Supplement (exclusive of any statements in
such sections that purport to summarize the servicing and administration
provisions of the Pooling and Servicing Agreement): “Summary of Prospectus
Supplement—The Parties—The Mortgage Loan Sellers,” “Summary of Prospectus
Supplement—The Mortgage Loans,” “Risk Factors—The Mortgage Loans,” and
“Description of the Mortgage Pool—General,” “—Mortgage Loan History,” “—Certain
Terms and Conditions of the Mortgage Loans,” “—Assessments of Property
Condition,” “—Co-Lender Loans,” “—Additional Mortgage Loan Information,”
“—Twenty Largest Mortgage Loans,” “—The Mortgage Loan Sellers,” “—Underwriting
Standards,” and “—Representations and Warranties; Repurchases and
Substitutions.” The “Specified Portions” of the Memorandum shall consist
of the Specified Portions of the Prospectus Supplement and the first and second
full paragraphs on page “[__]” of the Memorandum.
(e)
The resolutions of the requisite
committee of the Seller’s [special loan committee]/[board of directors]
authorizing the Seller’s entering into the transactions contemplated by this
Agreement, the [articles of association]/[certificate of incorporation] and
by-laws of the Seller, and an original or copy of a certificate of good standing
of the Seller issued by the [Comptroller of the Currency]/[State of [_________]]
not earlier than [__] days prior to the Closing Date;
(f)
A written opinion of counsel for the
Seller (which opinion may be from in-house counsel, outside counsel or a
combination thereof), reasonably satisfactory to the Purchaser, its counsel and
the Rating Agencies, dated the Closing Date and addressed to the Purchaser, the
Trustee, the Underwriters, the Initial Purchasers and each of the Rating
Agencies, together with such other written opinions as may be required by the
Rating Agencies; and
(g)
Such further certificates, opinions and
documents as the Purchaser may reasonably request.
SECTION
7.
Indemnification.
(a)
The Seller shall indemnify and hold
harmless the Purchaser, the Underwriters, the Initial Purchasers, their
respective officers and directors, and each person, if any, who controls the
Purchaser, any Underwriter or any Initial Purchasers within the meaning of
either Section 15 of the Securities Act of 1933, as amended (the “1933 Act”) or Section
20 of the Securities Exchange Act of 1934, as amended (the “1934 Act”), against
any and all losses, expenses (including the reasonable fees and expenses of
legal counsel), claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in (A) the Prospectus Supplement,
the Preliminary Memorandum, the Memorandum, the Diskette
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or in any revision or amendment of
or supplement to any of the foregoing, (B) any Time of Sale Information or any
Issuer Information contained in any Free Writing Prospectus prepared by or on
behalf of the Underwriters (an “Underwriter Free Writing
Prospectus”) or contained in any Free Writing Prospectus which is
required to be filed in accordance with the terms of the Underwriting Agreement,
(C) any items similar to Free Writing Prospectuses forwarded by the Seller to
the Initial Purchasers, or in any revision or amendment of or supplement to any
of the foregoing or (D) the summaries, reports, documents and other written and
computer materials and all other information regarding the Mortgage Loans or the
Seller furnished by the Seller for review by prospective investors (the items in
(A), (B), (C) and (D) above being defined as the “Disclosure
Material”), (ii) arise out of or are based upon the omission or alleged
omission to state therein (in the case of Free Writing Prospectuses, when read
in conjunction with any Time of Sale Information, in the case of any items
similar to Free Writing Prospectuses, when read in conjunction with the
Memorandum) and in the case of any summaries, reports, documents, written or
computer materials, or other information contemplated in clause (D) above, when
read in conjunction with the Memorandum and in the case of any Free Writing
Prospectus, when read in conjunction with the other Time of Sale Information) a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; but, with respect to any Disclosure Material described in clauses
(A), (B) and (C) of the definition thereof, only if and to the extent that (I)
any such untrue statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, such Disclosure Material, arises out
of or is based upon an untrue statement or omission with respect to the Mortgage
Loans, the related Mortgagors and/or the related Mortgaged Properties contained
in the Data File (it being herein acknowledged that the Data File was and will
be used to prepare the Prospectus Supplement and the Preliminary Prospectus
Supplement, including without limitation Annex A thereto, any other Time of
Sale Information, the Preliminary Memorandum, the Memorandum and the Diskette
with respect to the Registered Certificates and any items similar to Free
Writing Prospectuses forwarded to prospective investors in the Non-Registered
Certificates and any Free Writing Prospectus), (II) any such untrue statement or
alleged untrue statement or omission or alleged omission of a material fact
occurring in, or with respect to, such Disclosure Material, is with respect to,
or arises out of or is based upon an untrue statement or omission of a material
fact with respect to, the information regarding the Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties and/or the Seller set forth in the
Specified Portions of each of the Prospectus Supplement, the Preliminary
Prospectus Supplement, the Preliminary Memorandum and the Memorandum, (III) any
such untrue statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, such Disclosure Material, arises out
of or is based upon a breach of the representations and warranties of the Seller
set forth in or made pursuant to Section 3 hereof or (IV) any such untrue
statement or alleged untrue statement or omission or alleged omission occurring
in, or with respect to, such Disclosure Material, arises out of or is based upon
any other written information concerning the characteristics of the Mortgage
Loans, the related Mortgagors or the related Mortgaged Properties furnished to
the Purchaser, the Underwriters or the Initial Purchasers by the Seller; provided, that the
indemnification provided by this Section 7 shall not apply to the extent that
such untrue statement or omission of a material fact was made as a result of an
error in the manipulation of, or in any calculations based upon, or in any
aggregation of the information regarding the Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties set forth in the Data File or
Annex A to the Prospectus Supplement or the Preliminary
-15-
Prospectus Supplement to the
extent such information was not materially incorrect in the Data File or such
Annex A, as applicable, including without limitation the aggregation of such
information with comparable information relating to the Other Mortgage
Loans. Notwithstanding the foregoing, the indemnification provided in this
Section 7(a) shall not inure to the benefit of any Underwriter or Initial
Purchasers (or to the benefit of any person controlling such Underwriter or
Initial Purchasers) from whom the person asserting claims giving rise to any
such losses, claims, damages, expenses or liabilities purchased Certificates if
(x) the subject untrue statement or omission or alleged untrue statement or
omission made in any Disclosure Material (exclusive of the Prospectus or any
corrected or amended Prospectus or the Memorandum or any corrected or amended
Memorandum) is eliminated or remedied in the Prospectus or the Memorandum or,
with respect to any Time of Sale Information only, by the delivery of a
Corrected Free Writing Prospectus prior to the Time of Sale (in each case, as
corrected or amended, if applicable), as applicable, and (y) a copy of the
Prospectus, Memorandum or Corrected Free Writing Prospectus (in each case, as
corrected or amended, if applicable), as applicable, shall not have been sent to
such person at or prior to the Time of Sale of such Certificates, and (z) in the
case of a corrected or amended Prospectus, Memorandum or Corrected Free Writing
Prospectus, such Underwriter or Initial Purchasers received electronically or in
writing notice of such untrue statement or omission and updated information
concerning the untrue statement or omission at least one Business Day prior to
the Time of Sale. The Seller shall, subject to clause (c) below, reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action.
(b)
For purposes of this Agreement, “Registration
Statement” shall mean such registration statement No. 333-[______] filed
by the Purchaser on Form S-3, including without limitation exhibits thereto and
information incorporated therein by reference; “Base Prospectus”
shall mean the prospectus dated [__________], as supplemented by the prospectus
supplement dated [_________] (the “Prospectus
Supplement” and, together with the Base Prospectus, the “Prospectus”) relating
to the Registered Certificates, including all annexes thereto; “Preliminary Prospectus
Supplement” shall mean the free writing prospectus dated [__________]
consisting of the preliminary free writing prospectus, including the base
prospectus, dated [_________] attached thereto, as supplemented and corrected by
that certain free writing prospectus dated [__________]; “Preliminary
Memorandum” shall mean the preliminary private placement memorandum dated
[_________], relating to the Non-Registered Certificates, including all annexes
thereto; “Memorandum” shall
mean the private placement memorandum dated [_________], relating to the
Non-Registered Certificates, including all exhibits thereto; “Registered
Certificates” shall mean the Class [___] and Class [___] Certificates;
“Non-Registered
Certificates” shall mean the Certificates other than the Registered
Certificates; “Diskette” shall mean
the diskette or compact disc attached to each of the Prospectus, the Preliminary
Prospectus Supplement and the Memorandum; and “Data File” shall mean
the compilation of information and data regarding the Mortgage Loans covered by
the Agreed Upon Procedures Letters dated [_________] and rendered by [_________]
(a “hard copy” of which Data File was initialed on behalf of the Seller and the
Purchaser). “Free Writing
Prospectus” shall mean a “free writing prospectus” as such term is
defined pursuant to Rule 405 under the 1933 Act. “Corrected Free Writing
Prospectus” shall mean a Free Writing Prospectus that corrects any
previous Free Writing Prospectus prepared by or on behalf of any Underwriter and
delivered to any purchaser that contained any untrue statement of a material
fact or omitted to
-16-
state a material fact necessary in
order to make the statements contained therein, in light of the circumstances in
which they were made, not misleading. “Time of Sale” shall
mean the time at which sales to investors of the Certificates were first made as
determined in accordance with Rule 159 of the 1933 Act. “Time of Sale
Information” shall mean each free writing prospectus listed on Exhibit B
hereto. “Issuer
Information” shall have the meaning given to such term in Rule 433(h)
under the 1933 Act (as discussed by the SEC in footnote 271 of the Commission’s
Securities Offering Reform Release No. 33—8591). “Regulation AB” shall
have the meaning as defined in Subpart 229.1100 – Asset Backed Securities
(Regulation AB), 17 C.F.R. §§229.1100-229.1123 of the 1933 Act, as such may be
amended from time to time, and subject to such clarification and interpretation
as have been provided by the Securities and Exchange Commission (the “Commission”) in the
adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518,
70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or
as may be provided by the Commission or its staff from time to
time.
(c)
As promptly as reasonably practicable
after receipt by any person entitled to indemnification under this Section 7 (an
“indemnified
party”) of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the Seller (the
“indemnifying
party”) under this Section 7, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability that it may have to any indemnified party
under Section 7(a) (except to the extent that such omission has prejudiced the
indemnifying party in any material respect) or from any liability which it may
have otherwise than under this Section 7. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel selected by the
indemnifying party and reasonably satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified party of
its election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser, the Underwriters and
the Initial Purchasers, representing all the indemnified parties under Section
7(a) who are parties to such action), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall only be
in respect of the counsel referred to in such clause (i) or (iii).
-17-
Unless it shall assume the defense
of any proceeding, an indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel or any other expenses for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than [__] days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. If an indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement provides for an
unconditional release of the indemnified party in connection with all matters
relating to the proceeding that have been asserted against the indemnified party
in such proceeding by the other parties to such settlement, which release does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party without the consent of the
indemnified party.
(d)
If the indemnification provided for in
this Section 7 is unavailable to an indemnified party under Section 7(a) hereof
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities, in
such proportion as is appropriate to reflect the relative fault of the
indemnified and indemnifying parties in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations (taking into account the parties’
relative knowledge and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct and prevent any
statement or omission or failure to comply, and any other equitable
considerations appropriate under the circumstances). The relative fault of
the indemnified and indemnifying parties shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by such parties; provided that no
Underwriter or Initial Purchasers shall be obligated to contribute more than its
share of underwriting discounts and commissions and other fees pertaining to the
Certificates less any damages otherwise paid by such Underwriter or Initial
Purchasers with respect to such loss, liability, claim, damage or expense.
It is hereby acknowledged that the respective Underwriters’ and Initial
Purchasers’ obligations under this Section 7 shall be several and not
joint. For purposes of this Section, each person, if any, who controls an
Underwriter or an Initial Purchasers within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, and such Underwriter’s or Initial
Purchasers’ officers and directors, shall have the same rights to contribution
as such Underwriter or Initial Purchaser, as the case may be, and each director
of the Seller and each person, if any who controls the Seller within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Seller.
(e)
The Purchaser and the Seller agree that
it would not be just and equitable if contribution pursuant to Section 7(d) were
determined by pro rata
allocation or by any other
-18-
method of allocation that does not
take account of the considerations referred to in Section 7(d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in this Section 7 shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 7, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party will be ultimately
obligated to pay such expenses. If any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party that received such payment shall
promptly refund the amount so paid to the party which made such payment.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(f)
The indemnity and contribution
agreements contained in this Section 7 shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by the Purchaser, the Underwriters, the Initial Purchasers,
any of their respective directors or officers, or any person controlling the
Purchaser, the Underwriters or the Initial Purchasers, and (iii) acceptance of
and payment for any of the Certificates.
(g)
Without limiting the generality or
applicability of any other provision of this Agreement, the Underwriters, the
Initial Purchasers and their directors, officers and controlling parties shall
be third-party beneficiaries of the provisions of this Section 7.
SECTION
8.
Costs. The
Seller shall pay (or shall reimburse the Purchaser to the extent that the
Purchaser has paid) the Seller’s pro rata portion of the
aggregate of the following amounts (the Seller’s pro rata portion to be
determined according to the percentage that the [_________] Mortgage Loan
Balance represents as of the Cut-Off Date Pool Balance): (i) the costs and
expenses of printing and delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a final Prospectus, Term Sheet, Preliminary Prospectus
Supplement, each other Free Writing Prospectus, Preliminary Memorandum and
Memorandum relating to the Certificates; (iii) the initial fees, costs, and
expenses of the Trustee (including reasonable attorneys’ fees); (iv) the filing
fee charged by the Securities and Exchange Commission for registration of the
Certificates so registered; (v) the fees charged by the Rating Agencies to rate
the Certificates so rated; (vi) the fees and disbursements of a firm of
certified public accountants selected by the Purchaser and the Seller with
respect to numerical information in respect of the Mortgage Loans and the
Certificates included in any Free Writing Prospectus, the Prospectus and the
Memorandum, including in respect of the cost of obtaining any “comfort letters”
with respect to such items; (vii) the reasonable out-of-pocket costs and
expenses in connection with the qualification or exemption of the Certificates
under state securities or “Blue Sky” laws, including filing fees and reasonable
fees and disbursements of counsel in connection therewith, in connection with
the preparation of any “Blue Sky” survey and in connection with any
determination of the eligibility of the Certificates for investment by
institutional investors and the preparation of any legal investment survey;
(viii) the expenses of printing any such “Blue Sky” survey and legal investment
survey; and (ix) the reasonable fees and disbursements of counsel to the
Underwriters
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or Initial Purchasers; provided, however, Seller shall
pay (or shall reimburse the Purchaser to the extent that the Purchaser has paid)
the expense of recording any assignment of Mortgage or assignment of Assignment
of Leases as contemplated by Section 2 hereof with respect to the Seller’s
Mortgage Loans. All other costs and expenses in connection with the
transactions contemplated hereunder shall be borne by the party incurring such
expense.
SECTION
9.
Grant of a Security
Interest. It is the express intent of the parties hereto 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, (a) it is the
express intent of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller, and (b) (i) this Agreement shall also be deemed to be
a security agreement within the meaning of Article 9 of the Uniform Commercial
Code of the applicable jurisdiction; (ii) 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, including, without limitation, all amounts, other than investment
earnings, from time to time held or invested in the Certificate Account, the
Distribution Account or, if established, the REO Account (each as defined in the
Pooling and Servicing Agreement) whether in the form of cash, instruments,
securities or other property; (iii) the assignment to the Trustee of the
interest of the Purchaser as contemplated by Section 1 hereof shall be deemed to
be an assignment of any security interest created hereunder; (iv) the possession
by the Trustee or any of its agents, including, without limitation, the
Custodian, of the Mortgage Notes, 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 Uniform Commercial Code of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other than the Trustee) 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.
Covenants of
Purchaser. The Purchaser shall provide the Seller with all forms of
Disclosure Materials (including the final form of the Memorandum and the
preliminary and final forms of the Prospectus Supplement) promptly upon any such
document becoming available.
-20-
SECTION
11.
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
12.
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).
SECTION
13.
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
14.
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
15.
GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE
PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION
16.
Attorneys Fees.
If any legal action, suit or proceeding is commenced between the Seller and the
Purchaser regarding their respective rights and obligations under this
Agreement, the prevailing party shall be entitled to recover, in addition to
damages or other relief, costs and expenses, attorneys’ fees and court costs
(including, without limitation, expert witness fees). As used herein, the
term “prevailing party” shall mean the party which obtains the principal relief
it has sought, whether by compromise settlement or judgment. If the party
which commenced or instituted the action, suit or proceeding shall dismiss
or
-21-
discontinue it without the
concurrence of the other party, such other party shall be deemed the prevailing
party.
SECTION
17.
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
18.
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, the
Underwriters and the Initial Purchasers (each as intended third party
beneficiaries hereof) and their permitted successors and assigns, and the
officers, directors and controlling persons referred to in Section 7.
This Agreement is enforceable by the Underwriters, the Initial Purchasers and
the other third party beneficiaries hereto in all respects to the same extent as
if they had been signatories hereof.
SECTION
19.
Amendments. No
term or provision of this Agreement may be waived or modified unless such waiver
or modification is in writing and signed by a duly authorized officer of the
party, or third party beneficiary, against whom such waiver or modification is
sought to be enforced. No amendment to the Pooling and Servicing Agreement
which relates to defined terms contained therein, Section 2.01(d) thereof or the
repurchase obligations or any other obligations of the Seller shall be effective
against the Seller (in such capacity) unless the Seller shall have agreed to
such amendment in writing.
SECTION
20.
Accountants’
Letters. The parties hereto shall cooperate with [_____] in making
available all information and taking all steps reasonably necessary to permit
such accountants to deliver the letters required by the Underwriting
Agreement.
-22-
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:
[
]
[ ]
[ ]
Telecopier No.: ([___])
[_________]
Telephone No.: ([___]) [_________] |
|||
-23-
|
PURCHASER
|
|||
|
XXXXX
FARGO COMMERCIAL
MORTGAGE SECURITIES, INC.
|
|||
|
By:
|
|
||
|
Name:
|
|||
|
Title:
|
|||
|
Address
for Notices:
000
Xxxxx Xxxxxxx Xxxxxx]
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 Telecopier No.: (000) 000-0000 Telephone No.: (000) 000-0000 Email Address: xxxxxx.xxxx@xxxxxxxxxx.xxx |
|||
-24-
SCHEDULE
I
General Mortgage
Representations and Warranties
I-1
SCHEDULE
II
EXCEPTIONS TO
REPRESENTATIONS AND WARRANTIES
Exception to Representations
[ ]
| Loans | Description of Exception
|
||
II-1
EXHIBIT
A
Mortgage Loan
Schedule
A-1
EXHIBIT
B
Free Writing
Prospectuses
B-1
