3650 REIT COMMERCIAL MORTGAGE SECURITIES II LLC, PURCHASER
Exhibit 4.6
and
[LOAN SELLER],
SELLER
SELLER
[SERIES DESIGNATION]
This Mortgage Loan Purchase Agreement (“Agreement”), dated as of [DATE], is between 3650 REIT Commercial Mortgage Securities II LLC, a Delaware limited
liability company, as purchaser (in such capacity, the “Purchaser”), and [LOAN SELLER], a [STATE] [TYPE OF ENTITY], as seller (the “Seller”).
Capitalized terms used in this Agreement not defined herein shall have the meanings ascribed to them in the Indenture and Servicing Agreement, dated as of [DATE]
(the “Indenture and Servicing Agreement”), among the Purchaser, as depositor (the “Depositor”), [ISSUER], as issuer (the “Issuer”), [MASTER SERVICER], as master servicer (the “Master Servicer”), [SPECIAL SERVICER], as
special servicer (the “Special Servicer”), [NOTE ADMINISTRATOR], as note administrator (the “Note Administrator”), [INDENTURE TRUSTEE], as indenture trustee (the “Indenture Trustee”), [OPERATING ADVISOR], as Operating Advisor
(the “Operating Advisor”), and [ASSET REPRESENTATIONS REVIEWER], as Asset Representations Reviewer (the “Asset Representations Reviewer”), pursuant to which the Purchaser will transfer the Mortgage Loans (as defined herein), together
with certain other mortgage loans, to the Issuer. In exchange for the Mortgage Loans and the other mortgage loans, the Issuer will issue notes secured by assets of the Issuer, consisting primarily of ownership interests in the Mortgage Loans,
together with the other mortgage loans, to be known as [NAME OF ISSUING ENTITY], Commercial Mortgage-Backed Notes, Series [SERIES DESIGNATION] (collectively, the “Notes”), a portion of which it will transfer to the Depositor. For purposes
of this Agreement, “Mortgage Loans” refers to the mortgage loans listed on Exhibit A and “Mortgaged Properties” refers to the properties securing such Mortgage Loans.
The Purchaser and the Seller wish to prescribe the manner of sale of the Mortgage Loans from the Seller to the Purchaser and in consideration of the premises and
the mutual agreements hereinafter set forth, agree as follows:
SECTION 1 Sale and Conveyance of Mortgages; Possession of Mortgage File. The Seller does hereby
sell, transfer, assign, set over and convey to the Purchaser, without recourse (except as otherwise specifically set forth herein) (subject to the rights of each holder of an interest in any related Companion Loan, as and to the extent
applicable), all of its right, title and interest (subject to certain agreements regarding servicing as provided in the Indenture and Servicing Agreement, certain subservicing agreements permitted thereunder and any agreement to the appointment
of the Master Servicer, dated prior to or as of the Closing Date, among the Depositor, the Master Servicer and the Seller (any such agreement a “Servicing Rights Purchase Agreement”)) in and to the Mortgage Loans identified on Exhibit
A to this Agreement (the “Mortgage Loan Schedule”) including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date (and, in any event, notwithstanding anything herein to the contrary,
excluding payments of principal and interest first due on the Mortgage Loans on or before the Cut-off Date, and excluding any defeasance rights and obligations of the Seller with respect to the Mortgage Loans). Upon the sale of the Mortgage Loans
(including, in the case of the [LOAN-SPECIFIC] AB Whole Loan, the separate Mortgage Note evidencing the Owned Subordinate Companion Loan), the ownership of each related Mortgage Note, the Seller’s interest in the related Mortgage represented by
the Mortgage Note and the other contents of the related Mortgage File (subject to the rights of each holder of an interest in any related
Companion Loan, as and to the extent applicable), will be vested in the Purchaser and immediately thereafter the Indenture Trustee, and the ownership of records and documents with
respect to each Mortgage Loan prepared by or which come into the possession of the Seller shall (subject to the rights of each holder of an interest in any related Companion Loan, as and to the extent applicable) immediately vest in the Purchaser
and immediately thereafter the Indenture Trustee. [In connection with the transfer of each of the [LIST ALL MORTGAGE LOANS THAT ARE PART OF A SPLIT LOAN STRUCTURE] pursuant to this Section 1, the Seller does hereby assign to the Purchaser
all of its rights, title and interest (solely in its capacity as the holder of each of the [LIST ALL MORTGAGE LOANS THAT ARE PART OF A SPLIT LOAN STRUCTURE], as applicable) in, to and under the related Intercreditor Agreement (it being understood
and agreed that the Seller does not assign any right, title or interest that it or any other party may have thereunder in its capacity as holder of any related Companion Loan, if applicable).] The Purchaser will sell certain of the Notes (the “Public
Notes”) to the underwriters (the “Underwriters”) specified in the Underwriting Agreement, dated as of [DATE] (the “Underwriting Agreement”), between the Purchaser and the Underwriters, and the Purchaser will sell certain of the
Notes (the “Private Notes”) to the initial purchaser (the “Initial Purchaser” and, collectively with the Underwriters, the “Dealers”) specified in the Purchase Agreement, dated as of [DATE] (the “Note Purchase Agreement”),
between the Purchaser and Initial Purchaser. The Purchaser intends to sell the Class [LOAN-SPECIFIC] Notes (together with the Public Notes and the Private Notes, the “Notes”) to [LOAN-SPECIFIC INITIAL PURCHASER] as the initial purchaser (in
such capacity, the “Class [LOAN-SPECIFIC] Note Initial Purchaser” and, together with the Initial Purchaser, the “Initial Purchasers”) specified in the note purchase agreement, dated as of [DATE] (the “Class [LOAN-SPECIFIC] Note
Purchase Agreement” and, together with the Private Note Purchase Agreement, the “Note Purchase Agreements”).
The sale and conveyance of the Mortgage Loans is being conducted on an arms-length basis and upon commercially reasonable terms. As consideration for the
Mortgage Loans, the Purchaser shall pay, by wire transfer of immediately available funds, to the Seller or at the Seller’s direction $[_____], plus accrued interest on the Mortgage Loans from and including [DATE] to but excluding the Closing Date
(but subject to certain post-settlement adjustments for expenses incurred by the Underwriters and the Initial Purchaser on behalf of the Depositor and for which the Seller is specifically responsible). The purchase and sale of the Mortgage Loans
shall take place on the Closing Date.
SECTION 2 Books and Records; Certain Funds Received After the Cut-off Date. From and after the
sale of the Mortgage Loans to the Purchaser, record title to each Mortgage (other than with respect to any Mortgage Loan that is a Non-Serviced Mortgage Loan) and each Mortgage Note shall be transferred to the Indenture Trustee subject to and in
accordance with this Agreement. Any funds due after the Cut-off Date in connection with a Mortgage Loan received by the Seller or any of its Affiliates shall be held in trust on behalf of the Indenture Trustee (for the benefit of the
Noteholders) as the owner of such Mortgage Loan and shall be transferred promptly to the Note Administrator. All scheduled payments of principal and interest due on or before the Cut-off Date but collected after the Cut-off Date, and all
recoveries and payments 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.
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The transfer of each Mortgage Loan shall be reflected on the Seller’s balance sheets (and any consolidated balance sheet that includes the Seller) and other
financial statements as the sale of such Mortgage Loan by the Seller to the Purchaser. The Seller intends to treat the transfer of each Mortgage Loan to the Purchaser as a sale for tax purposes. Following the transfer of the Mortgage Loans by the
Seller to the Purchaser, the Seller shall not take any actions inconsistent with the ownership of the Mortgage Loans by the Purchaser and its assignees.
The transfer of each Mortgage Loan shall be reflected on the Purchaser’s balance sheets and other financial statements as the purchase of such Mortgage Loan by
the Purchaser from the Seller. The Purchaser intends to treat the transfer of each Mortgage Loan from the Seller as a purchase for tax purposes. The Purchaser shall be responsible for maintaining, and shall maintain, a set of records for each
Mortgage Loan which shall be clearly marked to reflect the transfer of ownership of each Mortgage Loan by the Seller to the Purchaser pursuant to this Agreement.
SECTION 3 Delivery of Mortgage Loan Documents; Additional Costs and Expenses. (a) The Purchaser
hereby directs the Seller, and the Seller hereby agrees, such agreement effective upon the transfer of the Mortgage Loans contemplated herein, to deliver or cause to be delivered to the Custodian (on behalf of the Indenture Trustee), the Master
Servicer and the Special Servicer, respectively, on the dates set forth in Section 2.01 of the Indenture and Servicing Agreement, all documents, instruments and agreements required to be delivered by the Purchaser, or contemplated to be delivered
by the Seller (whether at the direction of the Purchaser or otherwise), to the Custodian, the Master Servicer and the Special Servicer, as applicable, with respect to the Mortgage Loans under Section 2.01 of the Indenture and Servicing
Agreement, and meeting all the requirements of such Section 2.01 of the Indenture and Servicing Agreement; provided that the Seller shall not be required to deliver any draft documents, privileged communications, credit underwriting, due
diligence analyses or data or internal worksheets, memoranda, communications or evaluations.
(b) The Seller shall deliver to and deposit with (or cause to be delivered to and deposited with) the
Master Servicer, within five (5) Business Days after the Closing Date, a copy of the Mortgage File and documents and records not otherwise required to be contained in the Mortgage File that (i) relate to the origination and/or servicing and
administration of the Mortgage Loans and each related Serviced Companion Loan, as applicable, (ii) are reasonably necessary for the ongoing administration and/or servicing of the Mortgage Loans and each related Serviced Companion Loan, as
applicable (including any asset summaries related to the Mortgage Loans that were delivered to the Rating Agencies in connection with the rating of the Notes), or for evidencing or enforcing any of the rights of the holder of the Mortgage Loans
and each related Serviced Companion Loan, as applicable, or holders of interests therein and (iii) are in the possession or under the control of the Seller, together with (x) all unapplied Escrow Payments and reserve funds in the possession or
under control of the Seller that relate to the Mortgage Loans (other than any Mortgage Loan that is a Non-Serviced Mortgage Loan as of the Closing Date) and any related Serviced Companion Loan, as applicable, and (y) a statement indicating which
Escrow Payments and reserve funds are allocable to each Mortgage Loan, (or any related Serviced Companion Loan, as the case may be); provided that copies of any document in the Mortgage File and any other document, record or item referred
to above in this
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sentence that constitutes a Designated Servicing Document shall be delivered to the Master Servicer on or before the Closing Date; provided, further, that the Seller
shall not be required to deliver any draft documents, privileged or other communications, credit underwriting, due diligence analyses or data or internal worksheets, memoranda, communications or evaluations.
(c) With respect to any Mortgage Loan secured by a Mortgaged Property that is subject to a franchise
agreement with a related comfort letter in favor of the Seller that requires notice to or request of the related franchisor to transfer or assign any related comfort letter to the Indenture Trustee for the benefit of the Noteholders or have a new
comfort letter (or any such new document or acknowledgement as may be contemplated under the existing comfort letter) issued in the name of the Indenture Trustee for the benefit of the Noteholders, the Seller or its designee shall, within 45 days
of the Closing Date (or any shorter period if required by the applicable comfort letter), provide any such required notice or make any such required request to the related franchisor for the transfer or assignment of such comfort letter or
issuance of a new comfort letter (or any such new document or acknowledgement as may be contemplated under the existing comfort letter), with a copy of such notice or request to the Custodian (who shall include such document in the related
Mortgage File), the Master Servicer and the Special Servicer, and the Indenture and Servicing Agreement shall require the Master Servicer to use reasonable efforts in accordance with the Servicing Standard to acquire such replacement comfort
letter, if necessary (or to acquire any such new document or acknowledgement as may be contemplated under the existing comfort letter).
SECTION 4 Treatment as a Security Agreement. Pursuant to Section 1 hereof, the Seller has
(subject to the limitations set forth therein) conveyed to the Purchaser all of its right, title and interest in and to the Mortgage Loans. The parties intend that such conveyance of the Seller’s right, title and interest in and to the Mortgage
Loans pursuant to this Agreement shall constitute a purchase and sale and not a loan. If such conveyance is deemed to be a pledge and not a sale, then the parties also intend and agree that the Seller shall be deemed to have granted, and in such
event does hereby grant, to the Purchaser, a first priority security interest in all of its right, title and interest in, to and under the Mortgage Loans, all payments of principal or interest on such Mortgage Loans due after the Cut-off Date,
all other payments made in respect of such Mortgage Loans after the Cut-off Date (and, in any event, excluding scheduled payments of principal and interest due on or before the Cut-off Date) and all proceeds thereof, and that this Agreement shall
constitute a security agreement under applicable law. If such conveyance is deemed to be a pledge and not a sale, the Seller consents to the Purchaser hypothecating and transferring such security interest in favor of the Indenture Trustee and
transferring the obligation secured thereby to the Indenture Trustee.
SECTION 5 Covenants of the Seller. The Seller covenants with the Purchaser as follows:
(a) except with respect to any Mortgage Loan that is a Non-Serviced Mortgage Loan, it shall record or
cause a third party to record and file in the appropriate public recording office for real property records or UCC financing statements, as appropriate (or, with respect to any assignments that the Custodian has agreed to record or file pursuant
to the Indenture and Servicing Agreement, deliver to the Custodian for such purpose and cause the Custodian to record and file), the assignments of assignment of leases, rents and profits and the
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assignments of Mortgage and each related UCC financing statement referred to in the definition of Mortgage File from the Seller to the Indenture Trustee as and to the extent
contemplated under Section 2.01(c) of the Indenture and Servicing Agreement. All out of pocket costs and expenses relating to the recordation or filing of such assignments, assignments of Mortgage and financing statements shall be paid by the
Seller. 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 or cause the preparation of a substitute therefor or cure such defect or cause
such defect to be cured, as the case may be, and the Seller shall record or file, or cause the recording or filing of, such substitute or corrected document or instrument or, with respect to any assignments that the Custodian has agreed to record
or file pursuant to the Indenture and Servicing Agreement, deliver such substitute or corrected document or instrument to the Custodian (or, if the Mortgage Loan is then no longer subject to the Indenture and Servicing Agreement, the then holder of
such Mortgage Loan);
(b) as to each Mortgage Loan, except with respect to any Mortgage Loan that is a Non-Serviced Mortgage
Loan, if the Seller cannot deliver or cause to be delivered the documents and/or instruments referred to in clauses (ii), (iv), (vii) (if recorded), (ix) and (x) of the definition of “Mortgage File” in the Indenture and Servicing Agreement solely
because of a delay caused by the public recording or filing office where such document or instrument has been delivered for recordation or filing, as applicable, it shall forward to the Custodian a copy of the original certified by the Seller to
be a true and complete copy of the original thereof submitted for recording. The Seller shall cause each assignment referred to in Section (5)(a) above that is recorded and the file copy of each UCC financing statement assignment
referred to in Section (5)(a) above to reflect that it should be returned by the public recording or filing office to the Custodian or its agent following recording (or, alternatively, to the Seller or its designee, in which case the
Seller shall deliver or cause the delivery of the recorded original to the Custodian promptly following receipt); provided that, in those instances where the public recording office retains the original assignment of Mortgage or
assignment of Assignment of Leases, the Custodian shall obtain therefrom a certified copy of the recorded original. On a monthly basis, at the expense of the Seller, the Custodian shall forward to the Master Servicer a copy of each of the
aforementioned assignments following the Custodian’s receipt thereof;
(c) it shall take any action reasonably required by the Purchaser, the Note Administrator, the Indenture
Trustee or the Master Servicer in order to assist and facilitate the transfer of the servicing of the Mortgage Loans (other than any Non-Serviced Mortgage Loans) to the Master Servicer, including effectuating the transfer of any letters of credit
with respect to any Mortgage Loan (other than any Non‑Serviced Mortgage Loans) to the Master Servicer on behalf of the Indenture Trustee for the benefit of Noteholders (and, in the case of each Serviced Whole Loan, the holder of the related
Serviced Companion Loan, as and to the extent applicable). Prior to the date that a letter of credit with respect to any Mortgage Loan is transferred to the Master Servicer, the Seller will cooperate with the reasonable requests of the Master
Servicer or Special Servicer, as applicable, in connection with effectuating a draw under such letter of credit as required under the terms of the related Mortgage Loan documents;
(d) the Seller shall provide the Master Servicer the initial data with respect to each Mortgage Loan for
the CREFC® Financial File and the CREFC® Loan Periodic Update File
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that are required to be prepared by the Master Servicer pursuant to the Indenture and Servicing Agreement;
(e) if (during the period of time that the Underwriters are required, under applicable law, to deliver a
Prospectus related to the Public Notes in connection with sales of the Public Notes by an Underwriter or a dealer) the Seller has obtained actual knowledge of undisclosed or corrected information related to an event that occurred prior to the
Closing Date, which event causes there to be an untrue statement of a material fact with respect to the disclosure materials, or causes there to be an omission to state
therein a material fact with respect to the disclosure materials required to be stated therein or necessary to make the statements therein with respect to the disclosure materials, in the light of the circumstances under which they were made, not
misleading, then the Seller shall promptly notify the Dealers and the Depositor. If as a result of any such event the Dealers’ legal counsel determines that it is necessary to amend or supplement the Prospectus, dated [DATE] relating to the
Public Notes, the annexes and exhibits thereto, or the Offering Circular dated [DATE] relating to the Private Notes, the annexes and exhibits thereto (collectively, the “Offering Documents”) in order to correct the untrue statement, or to
make the statements therein, in the light of the circumstances when the Offering Documents are delivered to a purchaser, not misleading, or to make the Offering Documents in compliance with applicable law, the Seller shall (to the extent that
such amendment or supplement solely relates to the disclosure materials) at the expense of the Seller, do all things reasonably necessary to assist the Depositor to prepare and furnish to the Dealers, such amendments or supplements to the
Offering Documents as may be necessary so that the disclosure materials, as so amended or supplemented, will not contain an untrue statement, will not, in the light of the circumstances when the Offering Documents are delivered to a purchaser, be
misleading and will comply with applicable law. (All terms under this clause (e) and not otherwise defined in this Agreement shall have the meanings set forth in the Indemnification Agreement, dated as of [DATE], among the Underwriters,
the Initial Purchaser, the Seller and the Purchaser (the “Indemnification Agreement” and, together with this Agreement, the “Operative Documents”));
(f) if the Seller requires the Master Servicer to retain any Servicing Function Participant to service
any Mortgage Loan as of the Closing Date, it shall cause such Servicing Function Participant to comply, as evidenced by written documentation between such Servicing Function Participant and the Seller, Purchaser or Master Servicer, with all
reporting requirements set forth in Sections 12.04, 12.05, 12.06, 12.07, 12.08, 12.09, 12.10, 12.11, 12.12 and 12.13 of the Indenture and Servicing Agreement applicable to such Servicing Function Participant for the Mortgage Loans, for so long as
the Issuer is subject to the reporting requirements of the Exchange Act;
(g) for so long as the Issuer (or any Other Securitization that holds a related Companion Loan) is
subject to the reporting requirements of the Exchange Act, the Seller shall provide the Purchaser [(or with respect to each of the [LIST ANY COMPANION LOANS], if such Companion Loan (or a portion thereof) is deposited into another securitization,
the depositor of such securitization)] and the Note Administrator with any Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure and any Form 8-K Disclosure Information indicated on Exhibit BB, Exhibit CC and Exhibit DD to the
Indenture and Servicing Agreement, to the extent contemplated to be provided by the Seller in its capacity as a “Sponsor”, within the
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time periods set forth in the Indenture and Servicing Agreement; provided that, in connection with providing Additional Form 10-K Disclosure and the Seller’s reporting
obligations under Item 1119 of Regulation AB, upon reasonable request by the Seller, the Purchaser shall provide the Seller with a list of all parties to the Indenture and Servicing Agreement and any other Servicing Function Participant;
(h) [With respect to each of the [LIST ALL MORTGAGE LOANS THAT ARE PART OF A SPLIT LOAN STRUCTURE], the
Seller agrees that if disclosure related to the description of a party to the Indenture and Servicing Agreement is requested by the holder of a related Companion Loan for inclusion in the disclosure materials relating to the securitization of
such Companion Loan, the reasonable costs of such party related to such disclosure and any opinion(s) of counsel, certifications and/or indemnification agreement(s) shall be paid or caused to be paid by the Seller;]
(i) it shall indemnify and hold harmless the Depositor and its directors and officers, and each other
person who controls the Depositor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs
of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of or based upon (i) a failure of the Seller to perform its obligations under Section 5(g) or (ii) negligence, bad faith or willful
misconduct on the part of the Seller in the performance of such obligations;
(j) no later than [__] days after the Closing Date, the Seller shall deliver or cause to be delivered an
electronic copy of the Diligence File for each Mortgage Loan to the Depositor by uploading such Diligence File to the Designated Site, each such Diligence File being organized and categorized in accordance with the electronic file structure
reasonably agreed to by the Depositor and the Seller;
(k) promptly upon completion of such delivery of the Diligence Files (but in no event later than [__]
days after the Closing Date), the Seller shall provide the Depositor with a certificate (with a copy (which may be sent by email) to each of the Master Servicer, the Special Servicer, the Note Administrator, the Indenture Trustee, the Custodian,
the Asset Representations Reviewer and the Operating Advisor) substantially in the form of Exhibit E to this Agreement certifying that the electronic copy of the Diligence File for each Mortgage Loan uploaded to the Designated Site
contains all documents and information required under the definition of “Diligence File” and such Diligence Files are organized and categorized in accordance with the electronic file structure reasonably agreed to by the Depositor and the Seller;
(l) upon written request of the Asset Representations Reviewer (pursuant to Section 13.01(b)(ii) of the
Indenture and Servicing Agreement), the Seller shall provide to the Master Servicer or the Special Servicer, as applicable, within [__] Business Days of receipt of such written request (which time period may be extended upon mutual agreement
between the Seller and the Asset Representations Reviewer), copies of all relevant information, documents and records (including, but not limited to, records stored electronically on computer tapes, electronic discs, and similar media) requested
by the Asset Representations Reviewer, and only to the extent in the possession of such Seller, relating to the related Mortgage Loan that is a Delinquent Mortgage Loan (as defined in the Indenture and Servicing Agreement) to enable the
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Asset Representations Reviewer to perform its duties under the Indenture and Servicing Agreement; provided that the Seller shall not be required to deliver any draft
documents, privileged or other communications, credit underwriting, due diligence analyses or data or internal worksheets, memoranda, communications or evaluations;
(m) it acknowledges and agrees that in the event an Enforcing Party elects a dispute resolution method
pursuant to Section 2.03 of the Indenture and Servicing Agreement, the Seller shall abide by the selected dispute resolution method and otherwise comply with the terms and provisions set forth in the Indenture and Servicing Agreement (including
the exhibits thereto) related to the dispute resolution method;
(n) it shall timely deliver (or cause any Originator of the Mortgage Loans to timely deliver) to the Note
Administrator each Sponsor Credit Risk Retention Certification required to be delivered pursuant to Section 3.33 of the Indenture and Servicing Agreement and, if the Seller or any Originator transfers its Required Sponsor Retention Amount or
Required Originator Retention Amount, as applicable, as contemplated therein, the Seller shall cause its transferee or the transferee of such Originator to deliver any Credit Risk Retention Certification required pursuant to Section 3.33 of the
Indenture and Servicing Agreement; and
(o) [3650 SELLER ONLY: it shall not take any action that results in the Issuer failing to qualify as a
Qualified REIT Subsidiary of the Seller for federal income tax purposes, unless based on an Opinion of Counsel, the Issuer will be treated as a Qualified REIT Subsidiary of a REIT other than the Seller].
SECTION 6 Representations and Warranties.
(a) The Seller represents and warrants to the Purchaser as of the date hereof and as of the Closing Date
that:
(i) The Seller is a [TYPE OF ENTITY], duly organized, validly existing and in good
standing under the laws of the [JURISDICTION] with full power and authority to own its assets and conduct its business, 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 the Seller has taken all necessary action to authorize the execution and delivery of, and performance under, the Operative Documents and has duly executed and delivered each Operative Document, and has the power and authority to execute,
deliver and perform under each Operative Document and all the transactions contemplated hereby and thereby, including, but not limited to, the power and authority to sell, assign, transfer, set over and convey the Mortgage Loans in accordance
with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this Agreement by the
Purchaser, this Agreement will constitute 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,
moratorium,
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liquidation or other similar laws affecting the enforcement of creditors’ rights generally, (B) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement
that purport to provide indemnification for securities laws liabilities;
(iii) The execution and delivery of each Operative Document by the Seller and the
performance of its obligations hereunder and thereunder will not conflict with any provision of any law or regulation to which the Seller is subject, or conflict with, result in a breach of, or constitute a default under, any of the terms,
conditions or provisions of any of the Seller’s organizational documents or any agreement or instrument to which the Seller is a party or by which it is bound, or any order or decree applicable to the Seller, or result in the creation or
imposition of any lien on any of the Seller’s assets or property, in each case which would materially and adversely affect the ability of the Seller to carry out the transactions contemplated by the Operative Documents;
(iv) There is no action, suit, proceeding or investigation pending or, to the Seller’s
knowledge, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Seller to carry out the
transactions contemplated by each Operative Document;
(v) 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 governmental agency, which default might have consequences that, in the Seller’s good faith and reasonable judgment, is likely to materially and adversely affect the condition
(financial or other) or operations of the Seller or its properties or might have consequences that, in the Seller’s good faith and reasonable judgment, is likely to materially and adversely affect its performance under any Operative Document;
(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, each Operative Document or the consummation of the transactions contemplated hereby or thereby, other than those which have been
obtained by the Seller;
(vii) The transfer, assignment and conveyance of the Mortgage Loans by the Seller to
the Purchaser is not subject to bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction;
(viii) The Seller has no actual knowledge that any statement, report, officer’s
certificate or other document prepared and furnished or to be furnished by such Seller in connection with the transactions contemplated hereby (including, without limitation, any financial cash flow models and underwriting file abstracts
furnished by such Seller) (collectively, the “Provided Information”) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained
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therein, in the light of the circumstances under which they were made, not misleading, or, to the extent that it has become aware of any material misstatement or
omission in any Provided Information, the Seller has notified the Purchaser in writing of such material misstatement or omission at least one Business Day prior to the Time of Sale (as defined in the Indemnification Agreement) and updated such
Provided Information or the material misstatement or omission has been corrected in the Time of Sale Information (as defined in the Indemnification Agreement); and
(ix) The Seller has caused each Servicing Function Participant that the Seller has
caused the Master Servicer, if any, to retain and that services a Mortgage Loan as of the Closing Date to comply, as evidenced by written documentation between each such Servicing Function Participant and the Seller, Purchaser or Master Servicer,
with all reporting requirements set forth in Sections 12.04, 12.05, 12.06, 12.07, 12.08, 12.09, 12.10, 12.11, 12.12, 12.13 and 12.15 of the Indenture and Servicing Agreement applicable to such Servicing Function Participant for the Mortgage
Loans, for so long as the Issuer is subject to the reporting requirements of the Exchange Act.
(x) Except for the agreed-upon procedures report obtained from the accounting firm
engaged to provide procedures involving a comparison of information in loan files for the Mortgage Loans to information on a data tape relating to the Mortgage Loans (the “Accountants’ Due Diligence Report”), the Seller has not obtained
(and, through and including the Closing Date, will not obtain without the consent of the Purchaser) any “third party due diligence report” (as defined in Rule 15Ga-2 under the Exchange Act) in connection with the transactions contemplated herein
and in the Offering Documents and, except for the accountants with respect to the Accountants’ Due Diligence Report, the Seller has not employed (and, through and including the Closing Date, will not employ without the consent of the Purchaser)
any third party to engage in any activity that constitutes “due diligence services” within the meaning of Rule 17g-10 under the Exchange Act in connection with the transactions contemplated herein and in the Offering Documents. The Underwriters
and Initial Purchasers are third-party beneficiaries of the provisions set forth in this SECTION 6(a)(x).
(b) The Purchaser represents and warrants to the Seller as of the Closing Date that:
(i) The Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, with full corporate power and authority to own its assets and conduct its business, is duly qualified as a foreign corporation in good standing in all jurisdictions in which the ownership or lease
of its property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the ability of the Purchaser to perform its obligations hereunder, and the
Purchaser has taken all necessary action to authorize the execution, delivery and performance of this Agreement by it, and has duly executed and delivered this Agreement, and has the power and authority to execute, deliver and perform this
Agreement and all the transactions contemplated hereby;
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(ii) Assuming the due authorization, execution and delivery of this Agreement by the
Seller, this Agreement will constitute 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 bankruptcy, insolvency, reorganization,
moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement by the Purchaser and the
performance of its obligations hereunder will not conflict with any provision of any law or regulation to which the Purchaser is subject, or conflict with, result in a breach of, or constitute a default under, any of the terms, conditions or
provisions of any of the Purchaser’s organizational documents or any agreement or instrument to which the Purchaser is a party or by which it is bound, or any order or decree applicable to the Purchaser, or result in the creation or imposition of
any lien on any of the Purchaser’s assets or property, in each case which would materially and adversely affect the ability of the Purchaser to carry out the transactions contemplated by this Agreement;
(iv) There is no action, suit, proceeding or investigation pending or, to the
Purchaser’s knowledge, threatened against the Purchaser in any court or by or before any 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 perform under the terms of this Agreement;
(v) 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, 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 under any Operative Document;
(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 Purchaser of or compliance by the Purchaser with this Agreement or the consummation of the transactions contemplated by this Agreement other than those that have been obtained
by the Purchaser; and
(vii) The Purchaser (A) prepared one or more reports on Form ABS-15G (each, a “Form
15G”) containing the findings and conclusions of the Accountants’ Due Diligence Report and meeting the requirements of Form 15G, Rule 15Ga-2, any other rules and regulations of the Commission and the Exchange Act; (B) provided a copy of the
final draft of each such Form 15G to the [Underwriters and Initial Purchaser(s)] at least [seven] ([7]) Business Days before the first sale in the offering contemplated by the Offering Documents; and (C) furnished each such Form 15G to the
Commission on XXXXX at least five (5) Business Days before the first sale in the offering contemplated by the Offering Documents as required by Rule 15Ga-2.
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(c) The Seller further makes the representations and warranties as to the Mortgage Loans set forth in Exhibit
B to this Agreement as of the Cut-off Date or such other date set forth in Exhibit B to this Agreement, which representations and warranties are subject to the exceptions thereto set forth in Exhibit C to this Agreement.
(d) Pursuant to the Indenture and Servicing Agreement, if (i) any party thereto discovers or receives
notice alleging that any document constituting a part of a Mortgage File has not been properly executed, is missing, contains information that does not conform in any material respect with the corresponding information set forth in the Mortgage
Loan Schedule, or does not appear to be regular on its face (each, a “Document Defect”), or discovers or receives notice alleging a breach of any representation or warranty of the Seller made pursuant to SECTION 6(c) of this
Agreement with respect to any Mortgage Loan (a “Breach”) or (ii) the Special Servicer or the Purchaser receives a Repurchase Request, such party is required to give prompt written notice thereof to the Seller, the Directing Holder (prior
to the occurrence and continuance of a Consultation Termination Event), the parties to the Indenture and Servicing Agreement, any related Companion Loan Holder (if applicable) and the 17g-5 Information Provider.
(e) Pursuant to the Indenture and Servicing Agreement, the Special Servicer is required to determine
whether any such Document Defect or Breach with respect to any Mortgage Loan materially and adversely affects, or such Document Defect is deemed in accordance with Section 2.03 of the Indenture and Servicing Agreement to materially and adversely
affect, the value of the Mortgage Loan or any related REO Property or the interests of the Noteholders therein (any such Document Defect shall constitute a “Material Document Defect” and any such Breach shall constitute a “Material
Breach”). If such Document Defect or Breach has been determined to be a Material Document Defect or Material Breach, then the Special Servicer will be required to give prompt written notice thereof to the Seller, the parties to the
Indenture and Servicing Agreement and the Directing Noteholder (prior to the occurrence and continuance of a Consultation Termination Event). Promptly upon becoming aware of any such Material Document Defect or Material Breach (including through
a written notice given by the Master Servicer or the Special Servicer, as provided above if the Document Defect or Breach identified therein is a Material Document Defect or Material Breach, as the case may be), the Seller shall, not later than
90 days from the earlier of the Seller’s discovery or receipt of notice of, and receipt of a demand to take action with respect to, such Material Document Defect or Material Breach, as the case may be, cure the same in all material respects
(which cure shall include payment of any losses and additional issuer expenses associated therewith) or, if such Material Document Defect or Material Breach, as the case may be, cannot be cured within such 90 day period, the Seller shall either
(i) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (provided that in no event shall any such substitution occur later than the second anniversary of the Closing Date) and pay the Master Servicer, for
deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith or (ii) repurchase the affected Mortgage Loan or any related REO Property (or the Issuer’s interest therein) at the applicable Purchase Price by wire
transfer of immediately available funds to the Collection Account; provided, however, that if (i) such Material Document Defect or Material Breach is capable of being cured but not within such 90 day period, and (ii) the Seller
has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach within such 90 day period, then the Seller shall have an additional 90 days to complete such cure
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(or, in the event of a failure to so cure, to complete such repurchase of the related Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as described above) it being
understood and agreed that, in connection with the Seller’s receiving such additional 90 day period, the Seller shall deliver an Officer’s Certificate to the Indenture Trustee, the Special Servicer and the Note Administrator setting forth the
reasons such Material Document Defect or Material Breach is not capable of being cured within the initial 90 day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such
Material Document Defect or Material Breach will be cured within such additional 90 day period; 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, substitution or repurchase obligations in respect of such Document Defect so
long as the Seller certifies to the Indenture Trustee, the Special Servicer and the Note Administrator 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, substitution or repurchase may continue beyond the date that is 18 months following the Closing Date. Any
such repurchase or substitution 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 a Document Defect, but if the Seller
discovers a Material Breach or Material Document Defect with respect to a Mortgage Loan, it shall notify the Purchaser.
Notwithstanding the foregoing provisions of this Section 6(e), in lieu of the Seller performing its repurchase or substitution obligations with respect to
any Breach or Document Defect provided in this Section 6(e), to the extent that the Seller and the Purchaser (or, following the assignment of the Mortgage Loans to the Issuer, the Special Servicer on behalf of the Issuer, and, [if no
Control Termination Event has occurred and is continuing, with the consent of the Directing Holder][with the consent of the Senior Controlling Class]) are able to agree upon the Loss of Value Payment for a Breach or Document Defect, the Seller may
elect, in its sole discretion, to pay such Loss of Value Payment to the Purchaser (or its assignee). Upon its making such payment, the Seller shall be deemed to have cured such Breach or Document Defect in all respects. Provided such payment is
made, this paragraph describes the sole remedy available to the Purchaser and its assignees regarding any such Breach or Document Defect, and the Seller shall not be obligated to repurchase or replace the related Mortgage Loan or otherwise cure
such Breach or Document Defect.
If any Breach pertains to a representation or warranty that the related Mortgage Loan documents or any particular Mortgage Loan document requires the related
Mortgagor to bear the costs and expenses associated with any particular action or matter under such Mortgage Loan document(s), then the Seller shall not be required to repurchase or replace such Mortgage Loan and the sole remedy with respect to any
Breach of such representation shall be to cure such Breach within the applicable cure period (as the same may be extended) by reimbursing the Issuer (by wire transfer of immediately available funds) for (i) the reasonable amount of any such costs
and expenses incurred by the Purchaser, the Master Servicer, the Special Servicer, the Note Administrator, the Indenture Trustee or the Issuer that are the basis of such Breach and have not been reimbursed by the related Mortgagor and (ii) the
amount of any fees and reimbursable expenses of the Asset Representations Reviewer attributable to the Asset Review of
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such Mortgage Loan; provided, however, that in the event any such costs and expenses exceed $10,000, the Seller shall have the option to either repurchase or
substitute for the related Mortgage Loan as provided above or pay such costs and expenses. Except as provided in the proviso to the immediately preceding sentence, the Seller shall remit the amount of such costs and expenses and upon its making
such remittance, the Seller shall be deemed to have cured such Breach in all respects. To the extent any fees or expenses that are the subject of a cure by the Seller are subsequently obtained from the related Mortgagor, the portion of the cure
payment equal to such fees or expenses obtained from the Mortgagor shall be returned to the Seller pursuant to Section 2.03(b) or Section 2.03(g), as applicable, of the Indenture and Servicing Agreement. No delay in either the discovery of a
Document Defect or Breach on the part of any party to the Indenture and Servicing Agreement in providing notice of such Document Defect or Breach will relieve the Seller of its obligation to repurchase the related Mortgage Loan unless (i) the
Seller did not otherwise discover or have knowledge of such Document Defect or Breach and (ii) such delay is the result of the failure by a party to this Agreement or the Indenture and Servicing Agreement to provide prompt notice as required by the
terms hereof or of the Indenture and Servicing Agreement after such party has actual knowledge of such Document Defect or Breach (knowledge shall not be deemed to exist by reason of the Custodial Exception Report) and such delay precludes the
Seller from curing such Document Defect or Breach.
Subject to the Seller’s right to cure set forth above in this Section 6(e), and further subject to Sections 2.01(b) and 2.01(c) of the Indenture and
Servicing Agreement, failure of the Seller to deliver the documents referred to in clauses (i), (ii), (viii), (xii), (xiii) and (xv) in the definition of “Mortgage File” in the Indenture and Servicing Agreement in accordance with this Agreement and
the Indenture and Servicing Agreement for any Mortgage Loan shall be deemed a Material Document Defect; provided, however, that no Document Defect (except such deemed Material Document Defect described above) shall be considered to
be a Material Document Defect unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the lender’s rights or remedies under the related Mortgage Loan, defending any claim
asserted by any Mortgagor or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the Mortgage Loan or for any immediate significant servicing obligation.
[With respect to each of the [LIST NON-SERVICED MORTGAGE LOANS], as applicable, the Seller agrees that if a “Material Document Defect” under, and as such term or
any analogous term is defined in, the related Other Pooling and Servicing Agreement exists with respect to the related Non‑Serviced Companion Loan and the Seller repurchases the related controlling Non-Serviced Companion Loan from the related Other
Securitization, then the Seller shall also repurchase the [LIST NON-SERVICED MORTGAGE LOANS], as applicable from the Issuer; provided, however, that the foregoing shall not apply to any Material Document Defect related solely to the
promissory note for the related Non-Serviced Companion Loan.]
[FOR CROSS-COLLATERALIZED MORTGAGE LOANS][If (i) any Mortgage Loan is required to be repurchased or substituted for in the manner described in the first paragraph
of this Section 6(e), (ii) such Mortgage Loan is a Crossed Underlying Loan, and (iii) the applicable Defect or Breach does not constitute a Document Defect or Breach, as the case may be, as to any other Crossed Underlying Loan in such
Crossed Mortgage Loan Group (without regard to this paragraph), then the applicable Defect or Breach, as the case may be, will
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be deemed to constitute a Document Defect or Breach, as the case may be, as to each other Crossed Underlying Loan in the Crossed Mortgage Loan Group for purposes of this paragraph,
and the Seller will be required to repurchase or substitute for all of the remaining Crossed Underlying Loans in the related Crossed Mortgage Loan Group as provided in the first paragraph of this Section 6(e) unless such other Crossed
Underlying Loans in such Crossed Mortgage Loan Group satisfy the Crossed Underlying Loan Repurchase Criteria. In the event that the remaining Crossed Underlying Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase
or substitute for only the affected Crossed Underlying Loan as to which the related Breach or Document Defect exists or to repurchase or substitute for all of the Crossed Underlying Loans in the related Crossed Mortgage Loan Group. The Seller
shall be responsible for the cost of any Appraisal required to be obtained to determine if the Crossed Underlying 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 Underlying Loan hereunder in the manner prescribed above while the Indenture
Trustee continues to hold any other Crossed Underlying Loans in such Crossed Mortgage Loan Group, neither the Seller nor the Purchaser shall enforce any remedies against the other’s Primary Collateral, but each is permitted to exercise remedies
against the Primary Collateral securing its respective Crossed Underlying Loans, including with respect to the Indenture Trustee, the Primary Collateral securing Crossed Underlying Loans still held by the Indenture 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 Underlying 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 Underlying 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 Underlying Loans shall be allocated between such Crossed Underlying Loans in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding Stated
Principal Balances. Any expenses incurred by the Purchaser in connection with such modification or accommodation (including but not limited to recoverable attorney fees) shall be paid by the Seller.]
(f) In connection with any repurchase or substitution of one or more Mortgage Loans pursuant to this Section 6,
the Indenture and Servicing Agreement shall provide that the Indenture Trustee, the Note Administrator, the Custodian, the Master Servicer and the Special Servicer shall each tender to the repurchasing entity, upon delivery to each of them of a
receipt executed by the repurchasing or substituting entity evidencing such repurchase or substitution, all portions of the Mortgage File, the Servicing File and other documents and all Escrow Payments and reserve funds pertaining to such
Mortgage Loan possessed by it, and each document that constitutes a part of the Mortgage File shall be endorsed or assigned to the extent necessary or appropriate to the repurchasing or substituting entity or its designee in the same manner, but
only if the respective documents have been previously assigned or endorsed to the Indenture Trustee, and pursuant to appropriate forms of assignment, substantially similar to the manner and forms pursuant to which such documents were previously
assigned to the Indenture
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Trustee or as otherwise reasonably requested to effect the retransfer and reconveyance of the Mortgage Loan and the security therefor to the Seller or its designee; provided
that such tender by the Indenture Trustee and the Custodian shall be conditioned upon its receipt from the Master Servicer of a Request for Release and an Officer’s Certificate to the effect that the requirements for repurchase or substitution, as
the case may be, have been satisfied.
(g) The representations and warranties of the parties hereto shall survive the execution and delivery and
any termination of this Agreement and shall inure to the benefit of the respective parties, notwithstanding any restrictive or qualified endorsement on the Mortgage Notes or Assignment of Mortgage or the examination of the Mortgage Files.
(h) Each party hereto agrees to promptly notify the other party of any breach of a representation or
warranty contained in SECTION 6(c) of this Agreement. Subject to the dispute resolution provisions of Section 2.03 of the Indenture and Servicing Agreement, the Seller’s obligation to cure any Material Breach or Material Document Defect,
to repurchase or substitute any affected Mortgage Loan or pay the Loss of Value Payment or other required payment pursuant to this Section 6 shall constitute the sole remedy available to the Purchaser in connection with a breach of any of
the Seller’s representations or warranties contained in SECTION 6(c) of this Agreement or a Document Defect with respect to any Mortgage Loan.
(i) The Seller shall promptly notify the Purchaser if (i) the Seller receives a Repurchase Communication
of a Repurchase Request (other than from the Purchaser), (ii) the Seller repurchases or replaces a Mortgage Loan, (iii) the Seller receives a Repurchase Communication of a withdrawal of a Repurchase Request of which notice has been previously
received or given and which withdrawal is by the Person making such Repurchase Request (a “Repurchase Request Withdrawal”) (other than from the Purchaser) or (iv) the Seller rejects or disputes any Repurchase Request. Each such notice
shall be given no later than the tenth (10th) Business Day after (A) with respect to clauses (i) and (iii) of the preceding sentence, receipt of a Repurchase Communication of a Repurchase Request or a Repurchase Request
Withdrawal, as applicable, and (B) with respect to clauses (ii) and (iv) of the preceding sentence, the occurrence of the event giving rise to the requirement for such notice, and shall include (1) the identity of the related
Mortgage Loan, (2) the date (x) such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal was received, (y) the related Mortgage Loan was repurchased or replaced or (z) the Repurchase Request was rejected or
disputed, as applicable, and (3) if known, the basis for (x) the Repurchase Request (as asserted in the Repurchase Request) or (y) any rejection or dispute of a Repurchase Request, as applicable.
The Seller shall provide to the Purchaser and the Note Administrator the Seller’s “Central
Index Key” number assigned by the Securities and Exchange Commission and a true, correct and complete copy of the relevant portions of any Form ABS-15G that the Seller is required to file with the Securities
and Exchange Commission with respect to the Mortgage Loans on or before the date that is five (5) Business Days before the date such Form ABS-15G is required to be filed with the Securities and Exchange Commission. For the avoidance of doubt, the
foregoing obligation shall not prohibit the Seller from filing a Form ABS-15G on or prior to the date on which such copy is provided to the Purchaser and the Note Administrator.
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In addition, the Seller shall provide the Purchaser, upon request, such other information in its possession as would permit the Purchaser to comply with its
obligations under Rule 15Ga-1 under the Exchange Act to disclose fulfilled and unfulfilled repurchase requests. Any such information requested shall be provided as promptly as practicable after such request is made.
The Seller agrees that no Person that is required to provide a 15Ga‑1 Notice (a “15Ga‑1 Notice Provider”) will be required to provide information in a
15Ga-1 Notice that is protected by the attorney-client privilege or attorney work product doctrines. In addition, the Seller hereby acknowledges that (i) any 15Ga-1 Notice provided pursuant to Section 2.02(g) of the Indenture and Servicing
Agreement is so provided only to assist the Seller, the Depositor and their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii)(A) no
action taken by, or inaction of, a 15Ga-1 Notice Provider and (B) no information provided pursuant to Section 2.02(g) of the Indenture and Servicing Agreement by a 15Ga-1 Notice Provider in a 15Ga-1 Notice shall be deemed to constitute a waiver or
defense to the exercise of any legal right the 15Ga-1 Notice Provider may have with respect to this Agreement, including with respect to any Repurchase Request that is the subject of a 15Ga-1 Notice.
Each party hereto agrees that the receipt of a 15Ga-1 Notice or the delivery of any notice required to be delivered pursuant to this SECTION 6(i) shall
not, in and of itself, constitute delivery of notice of, receipt of notice of, or knowledge of the Seller of, any Material Document Defect or Material Breach.
Each party hereto agrees and acknowledges that, as of the date of this Agreement, the “Central Index Key” number of the Issuer is [_________].
“Repurchase Communication” means, for purposes of this Section 6(i) only, any communication, whether oral or written, which need not be in any
specific form.
SECTION 7 Review of Mortgage File. The Purchaser shall require the Custodian pursuant to the
Indenture and Servicing Agreement to review the Mortgage Files pursuant to Section 2.02 of the Indenture and Servicing Agreement and if it finds any document or documents not to have been properly executed, or to be missing or to be defective on
its face in any material respect, to notify the Purchaser, which shall promptly notify the Seller.
SECTION 8 Conditions to Closing. The obligation of the Seller to sell the Mortgage Loans shall be
subject to the Seller having received the consideration for the Mortgage Loans as contemplated by Section 1 of this Agreement. The obligations of the Purchaser to purchase the Mortgage Loans shall be subject to the satisfaction, on or
prior to the Closing Date, of the following conditions:
(a) Each of the obligations of the Seller required to be performed by it at or prior to the Closing Date pursuant to the terms of this Agreement shall have been duly performed and complied with and all of the representations and warranties of
the Seller under this Agreement shall, subject to any applicable exceptions set forth on Exhibit C to this Agreement, be true and correct in all material respects as of the Closing Date or as of such other date as of
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which such representation is made under the terms of Exhibit B to this Agreement, and no event shall have occurred as of the Closing Date which, with notice or the passage
of time, would constitute a default on the part of the Seller under this Agreement, and the Purchaser shall have received a certificate to the foregoing effect signed by an authorized officer of the Seller substantially in the form of Exhibit D
to this Agreement.
(b) The Indenture and Servicing Agreement (to the extent it affects the obligations of the Seller
hereunder), in such form as is agreed upon and acceptable to the Purchaser, the Seller, the Underwriters, the Initial Purchaser and their respective counsel in their reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the terms thereof.
(c) The Purchaser shall have received the following additional closing documents:
(i) copies of the Seller’s [ORGANIZATIONAL DOCUMENTS] and all amendments, revisions,
restatements and supplements thereof, certified as of a recent date by the Secretary of the Seller;
(ii) a certificate as of a recent date of the [Secretary of State of the State of
[STATE]] to the effect that the Seller is duly organized, existing and in good standing in the [Jurisdiction];
(iii) an officer’s certificate of the Seller in form reasonably acceptable to the
Underwriters, the Initial Purchaser and each Rating Agency;
(iv) an opinion of counsel of the Seller, subject to customary exceptions and
carve-outs, in form reasonably acceptable to the Underwriters, the Initial Purchaser and each Rating Agency; and
(v) a letter from counsel to the Seller substantially to the effect that (a) nothing
has come to such counsel’s attention that would lead such counsel to believe that the Preliminary Prospectus, the Prospectus, the Preliminary Offering Circular and the Final Offering Circular (each as defined in the Indemnification Agreement), as
of the date thereof or as of the Closing Date (or, in the case of the Preliminary Prospectus or the Preliminary Offering Circular, solely as of the time of sale) contained or contain, as applicable, with respect to the Seller, the Mortgage Loans,
any related Companion Loan(s), the related Mortgagors or the related Mortgaged Properties, any untrue statement of a material fact or omitted or omits, as applicable, to state a material fact necessary in order to make the statements therein
relating to the Seller, the Mortgage Loans, any related Companion Loan(s), the related Mortgagors or the related Mortgaged Properties, in the light of the circumstances under which they were made, not misleading and (b) the information relating
to the Mortgage Loans (including any related Whole Loan, including, without limitation, the servicing terms thereof if not serviced under the Indenture and Servicing Agreement, including identification of the parties to the related Other
Indenture and Servicing Agreement), the related borrowers, the related Mortgaged Properties or the Seller and its affiliates (to the extent such affiliate is not an Underwriter
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or Initial Purchaser) in the Prospectus appears to be appropriately responsive in all material respects to the applicable requirements of Regulation AB.
(d) The Public Notes shall have been concurrently issued and sold pursuant to the terms of the
Underwriting Agreement. The Private Notes shall have been concurrently issued and sold pursuant to the terms of the Note Purchase Agreement.
(e) The Seller shall have executed and delivered concurrently herewith the Indemnification Agreement.
(f) The Seller shall furnish the Purchaser, the Underwriters and the Initial Purchaser with such other
certificates of its officers or others and such other documents and opinions to evidence fulfillment of the conditions set forth in this Agreement as the Purchaser and its counsel may reasonably request.
(g) The Seller shall have executed and delivered the Credit Risk Retention Compliance Agreement.
SECTION 9 Closing. The closing for the purchase and sale of the Mortgage Loans shall take place
at the office of Cadwalader, Xxxxxxxxxx & Xxxx LLP, New York, New York, at [TIME], on the Closing Date or such other place and time as the parties shall agree.
SECTION 10 Expenses. The Seller will pay its pro rata
share (the Seller’s pro rata portion to be determined according to the percentage that the aggregate principal balance as of the Cut-off Date of all the Mortgage Loans represents as to the aggregate
principal balance as of the Cut-off Date of all the Mortgage Loans to be sold to the Issuer) of all costs and expenses of the Purchaser in connection with the transactions contemplated herein, including, but not limited to: (i) the costs and
expenses of the Purchaser in connection with the purchase of the Mortgage Loans; (ii) the costs and expenses of reproducing and delivering the Indenture and Servicing Agreement and this Agreement and printing (or otherwise reproducing) and
delivering the Notes; (iii) the reasonable and documented fees, costs and expenses of the Indenture Trustee, the Note Administrator and their respective counsel; (iv) 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 Notes included in the Preliminary Prospectus, the Prospectus, the Preliminary Offering Circular, the Final Offering Circular and any
related disclosure for the initial Form 8-K, including the cost of obtaining any “comfort letters” with respect to such items; (v) the costs and expenses in connection with the qualification or exemption of the Notes under state securities or
blue sky laws, including filing fees and reasonable fees and disbursements of counsel in connection therewith; (vi) the costs and expenses in connection with any determination of the eligibility of the Notes for investment by institutional
investors in any jurisdiction and the preparation of any legal investment survey, including reasonable fees and disbursements of counsel in connection therewith; (vii) the costs and expenses in connection with printing (or otherwise reproducing)
and delivering the Registration Statement, Preliminary Prospectus, the Prospectus, the Preliminary Offering Circular, the Final Offering Circular and the reproducing and delivery of this Agreement and the furnishing to the Underwriters of such
copies of the Registration Statement, Preliminary Prospectus, Prospectus, Preliminary Offering Circular, Final Offering Circular and this
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Agreement as the Underwriters may reasonably request; (viii) the fees of the rating agency or agencies requested to rate the Notes; (ix) the reasonable fees and expenses of
Cadwalader, Xxxxxxxxxx & Xxxx LLP, as counsel to the Purchaser; and (x) the reasonable fees and expenses of [_____], as counsel to the Underwriters and the Initial Purchaser.
SECTION 11 Severability of Provisions. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement
and shall in no way affect the validity or enforceability of the other provisions of this Agreement. Furthermore, the parties shall in good faith endeavor to replace any provision held to be invalid or unenforceable with a valid and enforceable
provision which most closely resembles, and which has the same economic effect as, the provision held to be invalid or unenforceable.
SECTION 12 Governing Law. THIS AGREEMENT AND ANY CLAIM,
CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW
SHALL APPLY TO THIS AGREEMENT.
SECTION 13 Waiver of Jury Trial. THE PARTIES HERETO HEREBY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 14 Submission to Jurisdiction. EACH OF THE PARTIES
HERETO IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY
CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER AND AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY MANNER PERMITTED BY LAW.
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SECTION 15 No Third‑Party Beneficiaries. The parties do not intend the benefits of this Agreement
to inure to any third party except as expressly set forth in Section 6 and Section 16.
SECTION 16 Assignment. The Seller hereby acknowledges that the Purchaser has, concurrently with
the execution hereof, executed and delivered the Indenture and Servicing Agreement and that, in connection therewith, it has assigned its rights hereunder to the Indenture Trustee for the benefit of the Noteholders. The Seller hereby
acknowledges its obligations pursuant to Sections 2.01, 2.02 and 2.03 of the Indenture and Servicing Agreement. This Agreement shall bind and inure to the benefit of and be enforceable by the Seller, the Purchaser and their permitted successors
and assigns. Any Person into which the Seller may be merged or consolidated, or any Person resulting from any merger, conversion or consolidation to which the Seller may become 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 without any further act. The warranties and representations and the agreements made by the Seller herein shall survive delivery of the Mortgage Loans to the Indenture Trustee
until the termination of the Indenture and Servicing Agreement, but shall not be further assigned by the Indenture Trustee to any Person.
SECTION 17 Notices. All communications hereunder shall be in writing and effective only upon
receipt and (i) if sent to the Purchaser, will be mailed, hand delivered, couriered or sent by facsimile transmission or electronic mail to it at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to the attention of Xxxxxxx Xxx, fax number: (000)
000-0000, with a copy to Xxxxx Xxxxxx, Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax number (000) 000-0000 (ii) if sent to the Seller, will be mailed,
hand delivered, couriered or sent by facsimile transmission or electronic mail and confirmed to it at [______], with a copy to [______], (iii) if sent to any party other than the Purchaser or the Seller, will be mailed, hand delivered, couriered
or sent by facsimile transmission or electronic mail to such party’s address provided in Section 14.05 of the Indenture and Servicing Agreement, and (iv) in the case of any of the preceding parties, such other address as may hereafter be
furnished to the other party in writing by such parties.
SECTION 18 Amendment. This Agreement may be amended only by a written instrument which
specifically refers to this Agreement and is executed by the Purchaser and the Seller. This Agreement shall not be deemed to be amended orally or by virtue of any continuing custom or practice. No amendment to the Indenture and Servicing
Agreement which relates to defined terms contained therein or to any obligations or rights of the Seller whatsoever shall be effective against the Seller unless the Seller shall have agreed to such amendment in writing.
SECTION 19 Counterparts. This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument, and the words “executed,” “signed,” “signature,” and words of like import as used above and elsewhere in this Agreement
or in any other certificate, agreement or document related to this transaction shall include, in addition to manually executed signatures, images of manually executed signatures transmitted by facsimile or other electronic format (including,
without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, any electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a
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person with the intent to sign the record). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated,
sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable
law, including the federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform
Electronic Transactions Act or the Uniform Commercial Code.
SECTION 20 Exercise of Rights. No failure or delay on the part of any party to exercise any
right, power or privilege under this Agreement and no course of dealing between the Seller and the Purchaser shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement
preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as set forth in SECTION 6(h) of this Agreement, the rights and remedies herein expressly provided are cumulative and not
exclusive of any rights or remedies which any party would otherwise have pursuant to law or equity. No notice to or demand on any party in any case shall entitle such party to any other or further notice or demand in similar or other
circumstances, or constitute a waiver of the right of either party to any other or further action in any circumstances without notice or demand.
SECTION 21 No Partnership. Nothing herein contained shall be deemed or construed to create a
partnership or joint venture between the parties hereto. Nothing herein contained shall be deemed or construed as creating an agency relationship between the Purchaser and the Seller and neither the Purchaser nor the Seller shall take any action
which could reasonably lead a third party to assume that it has the authority to bind the other party or make commitments on such party’s behalf.
SECTION 22 Miscellaneous. This Agreement supersedes all prior agreements and understandings
relating to the subject matter hereof. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
SECTION 23 Further Assurances. The Seller and Purchaser each agree to execute and deliver such
instruments and take such further actions as any party hereto may, from time to time, reasonably request in order to effectuate the purposes and carry out the terms of this Agreement.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the day and year
first above written.
| 3650 REIT COMMERCIAL MORTGAGE SECURITIES II LLC | |||
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By:
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| Name: | |||
| Title: | |||
| [SELLER] | |||
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By:
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EXHIBIT A
MORTGAGE LOAN SCHEDULE
MORTGAGE LOAN SCHEDULE
A-1
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
[Sample Representations and Warranties: Actual Representations and Warranties for an individual series may vary.]
1. Complete Servicing File. All documents comprising the Servicing File will be or have been delivered to the Master Servicer with respect to each Mortgage Loan by the deadlines set forth in the Indenture and Servicing Agreement and/or
this Agreement.
2. Whole Loan; Ownership of Mortgage Loans. Except with respect to each Serviced Mortgage Loan and each Non-Serviced Mortgage Loan, each Mortgage Loan is a whole loan and not an interest in a mortgage loan. Each Mortgage Loan is a
senior portion (or a pari passu portion of a senior portion) of a whole mortgage loan evidenced by a senior note. Immediately prior to the sale, transfer and assignment to the Depositor, no Note or
Mortgage was subject to any assignment (other than assignments to the Seller), participation (other than with respect to Serviced Mortgage Loans and the Non-Serviced Mortgage Loans) or pledge, and the Seller had good title to, and was the sole
owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations (other than with respect to any Co-Lender Agreement with respect to a Whole Loan), any other ownership interests and other interests
on, in or to such Mortgage Loan (subject to certain agreements regarding servicing and/or defeasance successor borrower rights as provided in the Indenture and Servicing Agreement, subservicing agreements permitted thereunder and any Servicing
Rights Purchase Agreement, dated on or before the Closing Date, among the Depositor, the Master Servicer and the Seller). The Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to the Depositor
constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan (subject to certain agreements regarding servicing
and/or defeasance successor borrower rights as provided in the Indenture and Servicing Agreement, subservicing agreements permitted thereunder and any Servicing Rights Purchase Agreement, dated on or before the Closing Date, among the Depositor,
the Master Servicer and the Seller).
3. Loan Document Status. Each related Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such
Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (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), as applicable, and is enforceable in accordance with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws
affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law and except that certain provisions in such Mortgage Loan
Documents (including, without limitation, provisions requiring the payment of default interest, late fees or prepayment/yield maintenance premiums) may be further limited or rendered unenforceable by applicable law, but (subject to the
limitations set forth above) such
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limitations or unenforceability will not render such Mortgage Loan Documents invalid as a whole or materially interfere with the mortgagee’s realization of the principal benefits
and/or security provided thereby (clauses (i) and (ii) collectively, the “Insolvency Qualifications”).
Except as set forth in the immediately preceding sentences, there is no valid offset, defense, counterclaim or right of rescission available to the related
Mortgagor with respect to any of the related Notes, Mortgages or other Mortgage Loan Documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by the Seller in connection with the
origination of the Mortgage Loan, that would deny the mortgagee the principal benefits intended to be provided by the Note, Mortgage or other Mortgage Loan Documents.
4. Mortgage Provisions. The Mortgage Loan Documents for each Mortgage Loan contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the
principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, nonjudicial foreclosure subject to the limitations set forth in the Insolvency Qualifications.
5. Hospitality Provisions. The Mortgage Loan Documents for each Mortgage Loan that is secured by a hospitality property operated pursuant to a franchise agreement includes an executed comfort letter or similar agreement signed by the
Mortgagor and franchisor of such property enforceable by the Issuer against such franchisor, either directly or as an assignee of the originator. The Mortgage or related security agreement for each Mortgage Loan secured by a hospitality property
creates a security interest in the revenues of such property for which a UCC financing statement has been filed in the appropriate filing office.
6. Mortgage Status; Waivers and Modifications. Since origination and except by written instruments set forth in the related Mortgage File or as otherwise provided in the related Mortgage Loan Documents (a)(1) there has been no
forbearance, waiver or modification of the material terms of the Mortgage Loan which such forbearance, waiver or modification relates to the COVID-19 emergency and (2) other than as related to the COVID-19 emergency, the material terms of such
Mortgage, Note, Mortgage Loan guaranty, and related Mortgage Loan Documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect; (b) no related Mortgaged Property or any portion thereof
has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of such Mortgaged Property; and (c) neither Mortgagor nor
guarantor has been released from its obligations under the Mortgage Loan. The material terms of such Mortgage, Note, Mortgage Loan guaranty, and related Mortgage Loan Documents have not been waived, impaired, modified, altered, satisfied,
canceled, subordinated or rescinded in any respect since [_____].
7. Lien; Valid Assignment. Subject to the Insolvency Qualifications, each endorsement and assignment of Mortgage and assignment of Assignment of Leases from the Seller constitutes a legal, valid and binding endorsement or assignment
from the Seller. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or if identified
on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property in the
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principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below)), except as the enforcement thereof may be limited by the
Insolvency Qualifications. Such Mortgaged Property (subject to Permitted Encumbrances) as of origination was, and as of the Cut-off Date to the Seller’s knowledge, is free and clear of any recorded mechanics’ liens, recorded materialmen’s liens and
other recorded encumbrances, and to the Seller’s knowledge and subject to the rights of tenants, no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage,
except those which are insured against by a lender’s title insurance policy (as described below). Any security agreement, chattel mortgage or equivalent document related to and delivered in connection with the Mortgage Loan establishes and creates
a valid and enforceable lien on property described therein subject to Permitted Encumbrances, except as such enforcement may be limited by Insolvency Qualifications subject to the limitations described in clause (11) below. Notwithstanding
anything herein to the contrary, 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 is required in order to effect such perfection.
At the time of the assignment of the Mortgage Loans to the Depositor, the Seller had good and marketable title to and was the sole owner and holder of, each
Mortgage Loan, free and clear of any pledge, lien, encumbrance or security interest (subject to certain agreements regarding servicing and/or defeasance successor borrower rights as provided in the Indenture and Servicing Agreement, subservicing
agreements permitted thereunder and any Servicing Rights Purchase Agreement, dated prior to or as of the Closing Date, among the Depositor, the Master Servicer and the Seller) and such assignment validly and effectively transfers and conveys all
legal and beneficial ownership of the Mortgage Loans to the Depositor free and clear of any pledge, lien, encumbrance or security interest (subject to certain agreements regarding servicing as provided in the Indenture and Servicing Agreement,
subservicing agreements permitted thereunder and any Servicing Rights Purchase Agreement, dated prior to or as of the Closing Date, among the Depositor, the Master Servicer and the Seller).
8. Permitted Liens; Title Insurance. Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in
the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary title policy with escrow instructions or a “marked up” commitment, in each case binding on the title insurer) (the “Title Policy”) in
the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all
advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage, which lien is subject only to (a) the lien
of current real property taxes, water charges, sewer rents and assessments not yet due and payable; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record specifically identified in the Title
Policy; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases)
pertaining to the related Mortgaged Property which the Mortgage Loan Documents do not require to be subordinated to the lien of such Mortgage; and (f) if the related Mortgage Loan constitutes a
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cross-collateralized Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in the same crossed Mortgage Loan group; provided that none of items (a)
through (f), individually or in the aggregate, materially interferes with the value, current use or operation of the Mortgaged Property or the security intended to be provided by such Mortgage or with the current ability of the related Mortgaged
Property to generate net cash flow sufficient to service the related Mortgage Loan or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”). Except as contemplated by clause (f)
of the preceding sentence none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage. Such 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 claims have been made by the Seller thereunder and no claims have been paid thereunder. Neither the Seller, nor to the Seller’s knowledge, any other holder of the
Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy. Each Title Policy contains no exclusion for, or affirmatively insures (except for any Mortgaged Property located in a
jurisdiction where such affirmative insurance is not available in which case such exclusion may exist), (a) that the Mortgaged Property shown on the survey is the same as the property legally described in the Mortgage, and (b) to the extent that
the Mortgaged Property consists of two or more adjoining parcels, such parcels are contiguous.
9. Junior Liens. It being understood that B notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, there are no subordinate mortgages or junior liens encumbering the related Mortgaged
Property. The Seller has no knowledge of any mezzanine debt related to the Mortgaged Property and secured directly by the ownership interests in the Mortgagor.
10. Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related Mortgage). Each related Assignment of Leases creates a valid
first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and
to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Insolvency Qualifications; no person other than the
related Mortgagor owns any interest in any payments due under such lease or leases that is superior to or of equal priority with the lender’s interest therein. The related Mortgage or related Assignment of Leases, subject to applicable law,
provides for, upon an event of default under the Mortgage Loan, a receiver to be appointed for the collection of rents or for the related mortgagee to enter into possession to collect the rents or for rents to be paid directly to the mortgagee.
11. Financing Statements. Each Mortgage Loan or related security agreement establishes a valid security interest in, and a UCC-1 financing statement has been filed (except, in the case of fixtures, the Mortgage constitutes a fixture
filing) in all places necessary to perfect a valid security interest in, the personal property (the creation and perfection of which is governed by the UCC) owned by the Mortgagor and necessary to operate any Mortgaged Property in its current use
other than (1) non-material personal property, (2) personal property subject to purchase money security interests and (3) personal property that is leased equipment. Each UCC-
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1 financing statement, if any, filed with respect to personal property constituting a part of the related Mortgaged Property and each UCC-3 assignment, if any, filed with respect to
such financing statement was in suitable form for filing in the filing office in which such financing statement was filed.
12. Condition of Property. The Seller or the originator of the Mortgage Loan inspected or caused to be inspected each related Mortgaged Property within four months of origination of the Mortgage Loan and within twelve months of the
Cut-off Date.
An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than twelve months prior to
the Cut-off Date, which indicates that, except as set forth in such engineering report or with respect to which repairs were required to be reserved for or made, all building systems for the improvements of each related Mortgaged Property are in
good working order, and further indicates that each related Mortgaged Property (a) is free of any material damage, (b) is in good repair and condition, and (c) is free of structural defects, except to the extent (i) any damage or deficiencies that
would not materially and adversely affect the use, operation or value of the Mortgaged Property or the security intended to be provided by such Mortgage or repairs with respect to such damage or deficiencies estimated to cost less than $50,000 in
the aggregate per Mortgaged Property; (ii) such repairs have been completed; or (iii) escrows in an aggregate amount consistent with the standards utilized by the Seller with respect to similar loans it originates for securitization have been
established, which escrows will in all events be in an aggregate amount not less than the estimated cost of such repairs. The Seller has no knowledge of any material issues with the physical condition of the Mortgaged Property that the Seller
believes would have a material adverse effect on the use, operation or value of the Mortgaged Property other than those disclosed in the engineering report and those addressed in sub-clauses (i), (ii) and (iii) of the preceding
sentence.
13. Taxes and Assessments. As of the date of origination and as of the Closing Date, all taxes and governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges) due with
respect to the Mortgaged Property (excluding any related personal property) securing a Mortgage Loan that is or if left unpaid could become a lien on the related Mortgaged Property that would be of equal or superior priority to the lien of the
Mortgage and that became due and delinquent and owing prior to the Cut-off Date with respect to each related Mortgaged Property have been paid, or, if the appropriate amount of such taxes or charges is being appealed or is otherwise in dispute,
the unpaid taxes or charges are covered by an escrow of funds or other security sufficient to pay such tax or charge and reasonably estimated interest and penalties, if any, thereon. For purposes of this representation and warranty, real property
taxes, governmental assessments and other outstanding governmental charges shall not be considered delinquent until the date on which interest and/or penalties would be payable thereon.
14. Condemnation. As of the date of origination and to the Seller’s knowledge as of the Closing Date, there is no proceeding pending or threatened for the total or partial condemnation of such Mortgaged Property that would have a
material adverse effect on the use or operation of the Mortgaged Property.
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15. Actions Concerning Mortgage Loan. As of the date of origination and to the Seller’s knowledge as of the Closing Date, there was no pending, filed or threatened action, suit or proceeding, arbitration or governmental investigation
involving any Mortgagor, guarantor, or Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage,
(c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the use, operation or value of the Mortgaged Property, (f) the principal benefit of the security
intended to be provided by the Mortgage Loan Documents, (g) the current ability of the Mortgaged Property to generate net cash flow sufficient to service such Mortgage Loan, or (h) the current principal use of the Mortgaged Property.
16. Escrow Deposits. All escrow deposits and payments required pursuant to each Mortgage Loan (including capital improvements and environmental remediation reserves) are in the possession, or under the control, of the Seller or its
servicer, and there are no deficiencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required under the related Mortgage Loan Documents are being
conveyed by the Seller to the Depositor or its servicer and identified as such with appropriate detail. Any and all requirements under the Mortgage Loan as to completion of any material improvements and as to disbursements of any funds escrowed
for such purpose, which requirements were to have been complied with on or before Closing Date, have been complied with in all material respects or the funds so escrowed have not been released unless such release was consistent with proper and
prudent commercial mortgage servicing practices or such released funds were otherwise used for their intended purpose. No other escrow amounts have been released except in accordance with the terms and conditions of the related Mortgage Loan
Documents.
17. No Holdbacks. The principal amount of the Mortgage Loan stated on the Mortgage Loan Schedule has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (except in those cases where the
full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs, occupancy, performance or other matters with
respect to the related Mortgaged Property), and any requirements or conditions to disbursements of any loan proceeds held in escrow have been satisfied with respect to any disbursement of any such escrow fund prior to the Cut-off Date.
18. Insurance. Each related Mortgaged Property is, and is required pursuant to the related Mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a “special cause of
loss form” or “all-risk form” that includes replacement cost valuation issued by an insurer meeting the requirements of the related Mortgage Loan Documents and having a claims-paying or financial strength rating of at least “A-:VIII” (for a
Mortgage Loan with a principal balance below $35 million) and “A:VIII” (for a Mortgage Loan with a principal balance of $35 million or more) from A.M. Best Company or “A3” (or the equivalent) from Xxxxx’x Investors Service, Inc. or “A-” from
S&P Global Ratings (collectively the “Insurance Rating Requirements”), in an amount not less than the lesser of (1) the original principal balance of the Mortgage Loan and (2) the full insurable value on a replacement cost basis of the
improvements, furniture, furnishings, fixtures and equipment
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owned by the Mortgagor and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such
endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property.
Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Mortgage Loan Documents, by business interruption or rental
loss insurance which (i) covers a period of not less than 12 months (or with respect to each Mortgage Loan with a principal balance of $35 million or more, 18 months); (ii) for a Mortgage Loan with a principal balance of $50 million or more
contains a 180-day “extended period of indemnity”; and (iii) covers the actual loss sustained during restoration.
If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards, the related Mortgagor is required to maintain insurance in the maximum amount available under the National Flood Insurance Program, plus such additional excess flood coverage in
an amount as is generally required by the Seller originating mortgage loans for securitization.
If windstorm and/or windstorm related perils and/or “named storms” are excluded from the primary property damage insurance policy the Mortgaged Property is
insured by a separate windstorm insurance policy issued by an insurer meeting the Insurance Rating Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms, in an amount at least equal to 100%
of the full insurable value on a replacement cost basis of the Improvements and personalty and fixtures owned by the Mortgagor and included in the related Mortgaged Property by an insurer meeting the Insurance Rating Requirements.
The Mortgaged Property is covered, and required to be covered pursuant to the related Mortgage Loan Documents, by a commercial general liability insurance policy
issued by an insurer meeting the Insurance Rating Requirements including broad-form coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Seller for
loans originated for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate.
An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the
structural and seismic condition of such property, for the sole purpose of assessing the probable maximum loss (“PML”) for the Mortgaged Property in the event of an earthquake. In such instance, the PML or equivalent was based on a 475-year
return period, an exposure period of 50 years and a 10% probability of exceedance. If the resulting report concluded that the PML or equivalent would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on
such Mortgaged Property was obtained by an insurer rated at least “A:VIII” by A.M. Best Company or “A3” (or the equivalent) from Xxxxx’x Investors Service, Inc. or “A-” by S&P Global Ratings in an amount not less than 100% of the PML or the
equivalent.
The Mortgage Loan Documents require insurance proceeds in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the
related Mortgaged Property, with
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respect to all property losses in excess of 5% of the then-outstanding principal amount of the related Mortgage Loan, the lender (or a trustee appointed by it) having the right to
hold and disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon.
All premiums on all insurance policies referred to in this section required to be paid as of the Cut-off Date have been paid, and such insurance policies name the
lender under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the
benefit of the Indenture Trustee. Each related Mortgage Loan obligates the related Mortgagor to maintain, or cause to be maintained, all such insurance and, at such Mortgagor’s failure to do so, authorizes the lender to maintain such insurance at
the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. All such insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the lender of termination or cancellation arising
because of nonpayment of a premium and at least 30 days prior notice to the lender of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of
a premium and no such notice has been received by the Seller.
19. Access; Utilities; Separate Tax Lots. Each Mortgaged Property (a) is located on or adjacent to a public road and has direct legal access to such road, or has access via an irrevocable easement or irrevocable right of way permitting
ingress and egress to/from a public road, (b) is served by or has uninhibited access rights to public or private water and sewer (or well and septic) and all required utilities, all of which are appropriate for the current use of the Mortgaged
Property, and (c) constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in
certain cases, an application has been made to the applicable governing authority for creation of separate tax lots, in which case the Mortgage Loan requires the Mortgagor to escrow an amount sufficient to pay taxes for the existing tax parcel of
which the Mortgaged Property is a part until the separate tax lots are created.
20. No Encroachments. To the Seller’s knowledge and based solely on surveys obtained in connection with origination and the lender’s Title Policy (or, if such policy is not yet issued, a pro forma title policy, a preliminary title
policy with escrow instructions or a “marked up” commitment) obtained in connection with the origination of each Mortgage Loan, (a) all material improvements that were included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except encroachments that do not materially and adversely affect the value or current use of such Mortgaged
Property, or are insured by applicable provisions of the Title Policy, (b) no improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that do not materially and adversely affect the value or current
use of such Mortgaged Property, or are insured by applicable provisions of the Title Policy and (c) no improvements encroach upon any easements except for encroachments the removal of which would not materially and adversely affect the value or
current use of such Mortgaged Property or are insured by applicable provisions of the Title Policy.
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21. No Contingent Interest or Equity Participation. No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization feature (except that an ARD Loan may provide for the accrual of the
portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by the Seller.
22. [RESERVED]
23. Compliance. The terms of the Mortgage Loan Documents evidencing such Mortgage Loan, comply in all material respects with all applicable local, state and federal laws and regulations, and the Seller has complied with all material
requirements pertaining to the origination of the Mortgage Loans, including but not limited to, usury and any and all other material requirements of any federal, state or local law to the extent non-compliance would have a material adverse effect
on the Mortgage Loan.
24. Authorized to do Business. To the extent required under applicable law, as of the Closing Date or as of the date that such entity held the Note, each holder of the Note was authorized to transact and do business in the jurisdiction
in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan.
25. Trustee under Deed of Trust. With respect to each Mortgage which is a deed of trust, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in
accordance with the Mortgage and applicable law or may be substituted in accordance with the Mortgage and applicable law by the related mortgagee, and except in connection with a trustee’s sale after a default by the related Mortgagor or in
connection with any full or partial release of the related Mortgaged Property or related security for such Mortgage Loan, no fees are payable to such trustee except for de minimis fees paid.
26. Local Law Compliance. To the Seller’s knowledge, based solely upon any of a letter from any governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s report, an endorsement to the related Title Policy,
or other affirmative investigation of local law compliance consistent with the investigation conducted by the Seller for similar commercial and multifamily mortgage loans intended for securitization, the improvements located on or forming part of
each Mortgaged Property securing a Mortgage Loan are in material compliance with applicable laws, zoning ordinances, rules, covenants, and restrictions (collectively “Zoning Regulations”) governing the occupancy, use, and operation of such
Mortgaged Property or constitute a legal non-conforming use or structure and any non-conformity with zoning laws constitutes a legal non-conforming use or structure which does not materially and adversely affect the use or operation of such
Mortgaged Property. In the event of casualty or destruction, (a) the Mortgaged Property may be restored or repaired to the extent necessary to maintain the use of the structure immediately prior to such casualty or destruction, (b) law and
ordinance insurance coverage has been obtained for the Mortgaged Property in amounts customarily required by the Seller for loans originated for securitization that provides coverage for additional costs to rebuild and/or repair the property to
current Zoning Regulations, (c) the inability to restore the Mortgaged Property to the full extent of the use or structure immediately prior to the
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casualty would not materially and adversely affect the use or operation of such Mortgaged Property, or (d) title insurance coverage has been obtained for such nonconformity.
27. Licenses and Permits. Each Mortgagor covenants in the Mortgage Loan Documents that it shall keep all material licenses, permits, franchises, certificates of occupancy, consents, and other approvals necessary for the operation of the
Mortgaged Property in full force and effect, and to the Seller’s knowledge based upon any of a letter from any government authorities or other affirmative investigation of local law compliance consistent with the investigation conducted by the
Seller for similar commercial and multifamily mortgage loans intended for securitization; all such material licenses, permits, franchises, certificates of occupancy, consents, and other approvals are in effect or the failure to obtain or maintain
such material licenses, permits, franchises or certificates of occupancy does not materially and adversely affect the use and/or operation of the Mortgaged Property as it was used and operated as of the date of origination of the Mortgage Loan or
the rights of a holder of the related Mortgage Loan. The Mortgage Loan requires the related Mortgagor to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located and for the Mortgagor and the Mortgaged
Property to be in compliance in all material respects with all regulations, zoning and building laws.
28. Recourse Obligations. The Mortgage Loan Documents for each Mortgage Loan provide that such Mortgage Loan (a) becomes full recourse to the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the
Mortgagor (but may be affiliated with the Mortgagor) that, as of the date of origination of the related Mortgage Loan, has assets other than equity in the related Mortgaged Property that are not de minimis)
in any of the following events: (i) if any petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by, consented to, or acquiesced in by, the
Mortgagor; (ii) Mortgagor or guarantor shall have colluded with other creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) transfers of either the Mortgaged Property or equity interests in Mortgagor made in
violation of the Mortgage Loan Documents; and (b) contains provisions providing for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated with the
Mortgagor) that, as of the date of origination of the related Mortgage Loan, has assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages sustained in
the case of (i) (A) misapplication, misappropriation or conversion of insurance proceeds or condemnation awards or of rents following an event of default, or (B) any security deposits not delivered to lender upon foreclosure or action in lieu
thereof (except to the extent applied in accordance with leases prior to a Mortgage Loan event of default); (ii) the Mortgagor’s fraud or intentional misrepresentation; (iii) willful misconduct by the Mortgagor or guarantor; (iv) breaches of the
environmental covenants in the Mortgage Loan Documents; or (v) commission of material physical waste at the Mortgaged Property, which may, with respect to this clause (v), in certain instances, be limited to acts or omissions of the
related Mortgagor, guarantor, property manager or their affiliates, employees or agents.
29. Mortgage Releases. The terms of the related Mortgage or related Mortgage Loan Documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) a partial release,
accompanied by principal repayment of not less than a specified percentage at least equal to 115% of the related allocated loan amount of
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such portion of the Mortgaged Property, (b) upon payment in full of such Mortgage Loan, (c) upon a Defeasance (defined in paragraph (34) below), (d) releases of out-parcels
that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any material value in the appraisal obtained at the
origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (e) as required pursuant to an order of condemnation.
30. Financial Reporting and Rent Rolls. Each Mortgage requires the Mortgagor to provide the owner or holder of the Mortgage with quarterly (other than for single-tenant properties) and annual operating statements, and quarterly (other
than for single-tenant properties) rent rolls for properties that have leases contributing more than 5% of the in-place base rent and annual financial statements, which annual financial statements (i) with respect to each Mortgage Loan with more
than one Mortgagor are in the form of an annual combined balance sheet of the Mortgagor entities (and no other entities), together with the related combined statements of operations, members’ capital and cash flows, including a combining balance
sheet and statement of income for the Mortgaged Properties on a combined basis and (ii) for each Mortgage Loan with an original principal balance greater than $50 million shall be audited by an independent certified public accountant upon the
request of the owner or holder of the Mortgage.
31. Acts of Terrorism Exclusion. Acts of Terrorism Exclusion. With respect to each Mortgage Loan over $20 million, the related special-form all-risk insurance policy and business interruption policy (issued by an insurer meeting
the Insurance Rating Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended by the Terrorism Risk Insurance Program Reauthorization Act of 2007, the Terrorism Risk Insurance
Program Reauthorization Act of 2015 and the Terrorism Risk Insurance Program Reauthorization Act of 2019 (collectively referred to as “TRIPRA”), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance
policy. With respect to each other Mortgage Loan, the related special all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) did not, as of the date of origination of the
Mortgage Loan, and, to the Seller’s knowledge, do not, as of the Cut-off Date, specifically exclude Acts of Terrorism, as defined in TRIPRA, from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy.
With respect to each Mortgage Loan, the related Mortgage Loan documents do not expressly waive or prohibit the mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIPRA, or damages related thereto, except to the extent that
any right to require such coverage may be limited by availability on commercially reasonable terms.
32. Due on Sale or Encumbrance. Subject to specific exceptions set forth below, each Mortgage Loan contains a “due-on-sale” or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage and/or complying with the requirements of the related Mortgage Loan Documents (which provide for transfers without the consent of the lender which are customarily acceptable to the Seller
lending on the security of property comparable to the related Mortgaged Property, such as transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by
leases entered into in accordance with the Mortgage Loan Documents), (a) the related Mortgaged Property, or any
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controlling equity interest in the related Mortgagor, is directly or indirectly pledged, transferred or sold, other than as related to (i) family and estate planning transfers or
transfers upon death or legal incapacity, (ii) transfers to certain affiliates as defined in the related Mortgage Loan Documents, (iii) transfers of less than a controlling interest in a Mortgagor, (iv) transfers to another holder of direct or
indirect equity in the Mortgagor, a specific Person designated in the related Mortgage Loan Documents or a Person satisfying specific criteria identified in the related Mortgage Loan Documents, (v) transfers of common stock in publicly traded
companies or (vi) a substitution or release of collateral within the parameters of paragraphs 29 and 34 in this Exhibit B, or (vii) by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan, or
future permitted mezzanine debt or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Companion Loan of any Mortgage Loan or any subordinate debt
that existed at origination and is permitted under the related Mortgage Loan Documents, (ii) purchase money security interests, (iii) any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan or (iv) Permitted
Encumbrances. The Mortgage or other Mortgage Loan Documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment
along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance.
33. Single-Purpose Entity. Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding. Both the Mortgage Loan Documents and the organizational documents of the
Mortgagor with respect to each Mortgage Loan with a Cut-off Date Principal Balance in excess of $5 million provide that the Mortgagor is a Single-Purpose Entity, and each Mortgage Loan with a Cut-off Date Principal Balance of $20 million or more
has a counsel’s opinion regarding non-consolidation of the Mortgagor. For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents (or if the Mortgage Loan has a Cut-off Date
Principal Balance equal to $5 million or less, its organizational documents or the related Mortgage Loan 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 those of 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 or entity.
34. Defeasance. With respect to any Mortgage Loan that, pursuant to the Mortgage Loan documents, can be defeased (a “Defeasance”), (i) the Mortgage Loan documents provide for defeasance as a unilateral right of the Mortgagor, subject to
satisfaction of conditions specified in the Mortgage Loan documents; (ii) the defeasance collateral is not permitted to be subject to prepayment, call, or early redemption; (iii) if the Mortgagor would continue to own assets in addition to the
defeasance collateral, the portion of the Mortgage Loan secured by defeasance
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collateral is required to be assumed by a Single-Purpose Entity; (iv) the Mortgagor is required to deliver an opinion of counsel that the trustee has a perfected security interest
in such collateral prior to any other claim or interest; and (v) the Mortgagor is required to pay all rating agency fees associated with defeasance (if rating confirmation is a specific condition precedent thereto) and all other reasonable expenses
associated with defeasance, including, but not limited to, accountant’s fees and opinions of counsel.
35. Fixed Interest Rates. Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in the case of an ARD Loan and situations where default interest is imposed.
36. Ground Leases. For purposes of this Agreement, a “Ground Lease” shall mean a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and
buildings and other improvements, if any, to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner.
With respect to any Mortgage Loan where the Mortgage Loan is secured by a ground leasehold estate in whole or in part, and the related Mortgage does not also
encumber the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of the Seller, its successors and assigns, the Seller
represents and warrants that:
(A) The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel
or other agreement received from the ground lessor permits the interest of the lessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner
that would adversely affect the security provided by the related Mortgage. To the Seller’s knowledge, no material change in the terms of the Ground Lease had occurred since its recordation, except by any written instruments which are included in
the related Mortgage File;
(B) The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease) that the Ground Lease may not be amended, modified, canceled or terminated without the prior
written consent of the lender and that any such action without such consent is not binding on the lender, its successors or assigns;
(C) The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either borrower or the mortgagee) that
extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an
actual 360 basis, substantially amortizes);
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(D) The Ground Lease is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted
Encumbrances;
(E) The Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the
consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor;
(F) The Seller has not received any written notice of default under or notice of termination of such Ground Lease. To the Seller’s knowledge, there is no default under such Ground Lease and no condition that, but for the
passage of time or giving of notice, would result in a default under the terms of such Ground Lease and to the Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(G) The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, provides that no notice of default or termination is effective unless such
notice is given to the lender, and requires that the ground lessor will supply an estoppel;
(H) A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the
Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(I) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Seller in connection with loans originated for securitization;
(J) Under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award
allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (K)) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property
with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration
progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(K) In the case of a total or substantial taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the
condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged
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Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with
any accrued interest; and
(L) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the Ground Lease for any reason, including rejection
of the Ground Lease in a bankruptcy proceeding.
37. Servicing. The servicing and collection practices used by the Seller in respect of each Mortgage Loan complied in all material respects with all applicable laws and regulations and was in all material respects legal, proper and
prudent, in accordance with Seller’s customary commercial mortgage servicing practices.
38. ARD Loans. Each Mortgage Loan identified in the Mortgage Loan Schedule as an ARD Loan starts to amortize no later than the Due Date of the calendar month immediately after the calendar month in which such ARD Loan closed and
substantially fully amortizes over its stated term, which term is at least 60 months after the related Anticipated Repayment Date. Each ARD Loan has an Anticipated Repayment Date not less than five years following the origination of such Mortgage
Loan. If the related Mortgagor elects not to prepay its ARD Loan in full on or prior to the Anticipated Repayment Date pursuant to the existing terms of the Mortgage Loan or a unilateral option (as defined in Treasury Regulations under
Section 1001 of the Code) in the Mortgage Loan exercisable during the term of the Mortgage Loan, (i) the Mortgage Loan’s interest rate will step up to an interest rate per annum as specified in the
related Mortgage Loan Documents; provided, however, that payment of such Excess Interest shall be deferred until the principal of such ARD Loan has been paid in full; (ii) all or a substantial portion of
the excess cash flow (which is net of certain costs associated with owning, managing and operating the related Mortgaged Property) collected after the Anticipated Repayment Date shall be applied towards the prepayment of such ARD Loan and once
the principal balance of an ARD Loan has been reduced to zero all excess cash flow will be applied to the payment of accrued Excess Interest; and (iii) if the property manager for the related Mortgaged Property can be removed by or at the
direction of the mortgagee on the basis of a debt service coverage test, the subject debt service coverage ratio shall be calculated without taking account of any increase in the related Mortgage Loan Rate on such Mortgage Loan’s Anticipated
Repayment Date. No ARD Loan provides that the property manager for the related Mortgaged Property can be removed by or at the direction of the mortgagee solely because of the passage of the related Anticipated Repayment Date.
39. Rent Rolls; Operating Histories. The Seller has obtained a rent roll (the “Certified Rent Roll(s)”) other than with respect to hospitality properties certified by the related Mortgagor or the related guarantor(s) as accurate
and complete in all material respects as of a date within 180 days of the date of origination of the related Mortgage Loan. The Seller has obtained operating histories (the “Certified Operating Histories”) with respect to each Mortgaged
Property certified by the related Mortgagor or the related guarantor(s) as accurate and complete in all material respects as of a date within 180 days of the date of origination of the related Mortgage Loan. The Certified Operating Histories
collectively report on operations for a period equal to (a) at least a continuous three-year period or (b) in the event the Mortgaged Property was owned, operated or constructed by the Mortgagor or an affiliate for less than three years then for
such shorter period
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of time, it being understood that for mortgaged properties acquired with the proceeds of a Mortgage Loan, Certified Operating Histories may not have been available.
40. No Material Default; Payment Record. No Mortgage Loan has been more than 30 days delinquent, without giving effect to any grace or cure period, in making required payments since origination, and as of the Closing Date, no Mortgage
Loan is delinquent (beyond any applicable grace or cure period) in making required payments. To the Seller’s knowledge, there is (a) no, and since origination there has been no, material default, breach, violation or event of acceleration
existing under the related Mortgage Loan, or (b) no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach,
violation or event of acceleration, provided, however, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises
out of an exception scheduled to any other representation and warranty made by the Seller in Exhibit C to this Agreement. No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate
any indebtedness under the Mortgage Loan Documents.
41. Bankruptcy. In respect of each Mortgage Loan, as of the date of origination of the Mortgage Loan and to the Seller’s knowledge as of the Cut-off Date, the related Mortgagor is not a debtor in any bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or similar proceeding.
42. Organization of Mortgagor. The Seller has obtained an organizational chart or other description of each Mortgagor which identifies all beneficial controlling owners of the Mortgagor (i.e.,
managing members, general partners or similar controlling person for such Mortgagor) (the “Controlling Owner”) and all owners that hold a 20% or greater direct ownership share (i.e., the “Major
Sponsors”). The Seller (1) required questionnaires to be completed by each Controlling Owner and guarantor or performed other processes designed to elicit information from each Controlling Owner and guarantor regarding such Controlling
Owner’s or guarantor’s prior history for at least 10 years regarding any bankruptcies or other insolvencies, any felony convictions, and (2) performed or caused to be performed searches of the public records or services such as Lexis/Nexis, or a
similar service designed to elicit information about each Controlling Owner, Major Sponsor and guarantor regarding such Controlling Owner’s, Major Sponsor’s or guarantor’s prior history for at least 10 years regarding any bankruptcies or other
insolvencies, any felony convictions, and provided, however, that records searches were limited to the last 10 years. ((1) and (2) collectively, the “Sponsor Diligence”). Based solely on the
Sponsor Diligence, to the knowledge of the Seller, no Major Sponsor or guarantor (i) was in a state of federal bankruptcy or insolvency proceeding, (ii) had a prior record of having been in a state of federal bankruptcy or insolvency, or
(iii) had been convicted of a felony.
43. Environmental Conditions. At origination, each Mortgagor represented and warranted that to its knowledge no hazardous materials or any other substances or materials which are included under or regulated by environmental laws are
located on, or have been handled, manufactured, generated, stored, processed, or disposed of on or released or discharged from the Mortgaged Property, except as disclosed by a Phase I environmental assessment (or a Phase II
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environmental assessment, if applicable) delivered in connection with the origination of the Mortgage Loan or except for those substances commonly used in the operation and
maintenance of properties of kind and nature similar to those of the Mortgaged Property in compliance with all environmental laws and in a manner that does not result in contamination of the Mortgaged Property. A Phase I environmental site
assessment (or update of a previous Phase I and or Phase II site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements conducted by a reputable
environmental consultant in connection with such Mortgage Loan within 12 months prior to its origination date (or an update of a previous ESA was prepared), and such ESA (i) did not reveal any known circumstance or condition that rendered the
Mortgaged Property at the date of the ESA in material noncompliance with applicable environmental laws or the existence of recognized environmental conditions (as such term is defined in ASTM E1527-13 or its successor, hereinafter “Environmental
Condition”) or the need for further investigation, or (ii) if any material noncompliance with environmental laws or the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one
of the following statements is true: (A) 125% of the funds reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable environmental laws or the
Environmental Condition has been escrowed by the related Mortgagor and is held by the related lender; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint, or lead
in drinking water, and the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that can reasonably be expected to mitigate the
identified risk; (C) the Environmental Condition identified in the related environmental report was remediated or abated in all material respects prior to the Cut-off Date, and, as appropriate, a no further action or closure letter was obtained
from the applicable governmental regulatory authority (or the environmental issue affecting the related Mortgaged Property was otherwise listed by such governmental authority as administratively “closed” or a reputable environmental consultant has
concluded that no further action is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy meeting the requirements set forth below that covers liability for the identified circumstance or condition was
obtained from an insurer rated no less than “A-” (or the equivalent) by Xxxxx’x Investors Service, Inc., S&P Global Ratings and/or Fitch Ratings, Inc.; (E) a party not related to the Mortgagor with assets reasonably estimated to be adequate to
effect all necessary remediation was identified as the responsible party for such condition or circumstance; or (F) a party related to the Mortgagor with assets reasonably estimated to be adequate to effect all necessary remediation was identified
as the responsible party for such condition or circumstance is required to take action. The ESA will be part of the Servicing File; and to the Seller’s knowledge, except as set forth in the ESA, there is no (i) known circumstance or condition that
rendered the Mortgaged Property in material noncompliance with applicable environmental laws, (ii) Environmental Conditions (as such term is defined in ASTM E1527-13 or its successor), or (iii) need for further investigation.
In the case of each Mortgage Loan set forth on Schedule I to this Agreement, (i) such Mortgage Loan is the subject of an environmental insurance policy, issued by
the issuer set forth on Schedule I (the “Policy Issuer”) and effective as of the date thereof (the “Environmental Insurance Policy”), (ii) as of the origination date of the related Mortgage Loan and to the Seller’s knowledge as of the
Cut-off Date, the Environmental Insurance Policy is in full force and effect,
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there is no deductible and the Seller and its successors and assigns is a named insured under such policy, (iii)(a) a property condition or engineering report was prepared, if the
related Mortgaged Property was constructed prior to 1985, with respect to asbestos-containing materials (“ACM”) and, if the related Mortgaged Property is a multifamily property, with respect to radon gas (“RG”) and lead-based paint (“LBP”),
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 mortgagee a reserve 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 that should reasonably be expected to mitigate the environmental risk related to the identified LBP, ACM or RG condition, (iv) on the effective date of the
Environmental Insurance Policy, the 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 Mortgagor 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.
44. Lease Estoppels. With respect to each Mortgage Loan predominantly secured by a retail, office or industrial property leased to a single tenant, the Seller reviewed such estoppel obtained from such tenant no earlier than 90 days
prior to the origination date of the related Mortgage Loan, and to the Seller’s knowledge based solely on the related estoppel certificate, the related lease is in full force and effect or if not in full force and effect the related space was
underwritten as vacant, subject to customary reservations of tenant’s rights, such as, without limitation, with respect to common area maintenance (“CAM”) and pass-through audits and verification of landlord’s compliance with co-tenancy
provisions. With respect to each Mortgage Loan predominantly secured by a retail, office or industrial property, the Seller has received lease estoppels executed within 90 days of the origination date of the related Mortgage Loan that
collectively account for at least 65% of the in-place base rent for the Mortgaged Property or set of cross-collateralized properties that secure a Mortgage Loan that is represented on the Certified Rent Roll. To the Seller’s knowledge, each lease
represented on the Certified Rent Roll is in full force and effect, subject to customary reservations of tenant’s rights, such as with respect to CAM and pass-through audits and verification of landlord’s compliance with co-tenancy provisions.
45. Appraisal. The Mortgage File contains an appraisal of the related Mortgaged Property with an appraisal date within 6 months of the Mortgage Loan origination date, and within 12 months of the Closing Date. The appraisal is signed by
an appraiser who is a Member of the Appraisal Institute (“MAI”) and, to the Seller’s knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage Loan. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional
Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation. The related appraisal contained a
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statement or was accompanied by a letter from the related appraiser to the effect that the appraisal was performed in accordance with the requirements of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, as in effect on the date the related appraisal was completed.
46. Mortgage Loan Schedule. The information pertaining to each Mortgage Loan which is set forth in the Mortgage Loan Schedule attached as an exhibit to this Agreement is true and correct in all material respects as of the Cut-off Date
and contains all information required by the Indenture and Servicing Agreement to be contained therein.
47. Cross-Collateralization. No Mortgage Loan is cross-collateralized or cross-defaulted with any other Mortgage Loan that is outside the Mortgage Pool.
48. Advance of Funds by the Seller. No advance of funds has been made by the Seller to the related Mortgagor, and no funds have been received from any person other than the related Mortgagor or an affiliate, directly, or, to the
knowledge of the Seller, indirectly for, or on account of, payments due on the Mortgage Loan. Neither the Seller nor any affiliate thereof has any obligation to make any capital contribution to any Mortgagor under a Mortgage Loan, other than
contributions made on or prior to the Closing Date.
49. Compliance with Anti-Money Laundering Laws. The Seller has complied with its internal procedures with respect to all applicable anti-money laundering laws and regulations, including without limitation the USA Patriot Act of 2001 in
connection with the origination of the Mortgage Loan.
50. Litigation. Whether or not a Mortgage Loan was originated by the Seller, to the Seller’s knowledge, with respect to each Mortgage Loan originated by the Seller and each Mortgage Loan originated by any Person other than the Seller,
as of the date of origination of the related Mortgage Loan, and, to the Seller’s actual knowledge, with respect to each Mortgage Loan originated by the Seller and any prior holder of the Mortgage Loan, as of the Closing Date, there are no
actions, suits, arbitrations or governmental investigations or proceedings by or before any court or other governmental authority or agency now pending against or affecting the Mortgagor under any Mortgage Loan or any of the Mortgaged Properties
which, if determined against such Mortgagor or such Mortgaged Property, would materially and adversely affect the value of such Mortgaged Property, the security intended to be provided with respect to the related Mortgage Loan, or the ability of
such Mortgagor and/or the current use of such Mortgaged Property to generate net cash flow to pay principal, interest and other amounts due under the related Mortgage Loan; and to the Seller’s actual knowledge there are no such actions, suits or
proceedings threatened against such Mortgagor.
For purposes of these representations and warranties, the phrases “the Seller’s knowledge” or “the Seller’s belief” and other words and phrases of like import shall mean, except where
otherwise expressly set forth herein, the actual state of knowledge or belief of the officers and employees of the Seller directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters
expressly set forth herein. All information contained in documents which are part of or required to be part of a Servicing File, as specified in the Indenture and Servicing Agreement (to the extent such documents exist or existed), shall be
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deemed to be within the Seller’s knowledge including but not limited to any written notices from or on behalf of the Mortgagor.
“Servicing File”: A copy of the Mortgage File and documents and records not otherwise required to be contained in the Mortgage File that (i) relate to the
origination and/or servicing and administration of the Mortgage Loans, (ii) are reasonably necessary for the ongoing administration and/or servicing of the Mortgage Loans or for evidencing or enforcing any of the rights of the holder of the
Mortgage Loans or holders of interests therein and (iii) are in the possession or under the control of the Seller, provided that the Seller shall not be required to deliver any draft documents, privileged
or other communications, credit underwriting, due diligence analyses or data or internal worksheets, memoranda, communications or evaluations.
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EXHIBIT B-30-1
LIST OF MORTGAGE LOANS WITH CURRENT MEZZANINE DEBT
LIST OF MORTGAGE LOANS WITH CURRENT MEZZANINE DEBT
|
Loan #
|
Mortgage Loan
|
B-30-1-1
EXHIBIT B-30-2
LIST OF MORTGAGE LOANS WITH PERMITTED MEZZANINE DEBT
LIST OF MORTGAGE LOANS WITH PERMITTED MEZZANINE DEBT
|
Loan #
|
Mortgage Loan
|
B-30-2-1
EXHIBIT B-30-3
LIST OF CROSS-COLLATERALIZED AND CROSS-DEFAULTED MORTGAGE LOANS
LIST OF CROSS-COLLATERALIZED AND CROSS-DEFAULTED MORTGAGE LOANS
|
Loan #
|
Mortgage Loan
|
B-30-3-1
EXHIBIT C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
|
Representation
|
Mortgage Loan and
Number as Identified
on Annex A
|
Description of Exception
|
C-1
EXHIBIT D
FORM OF OFFICER’S CERTIFICATE
FORM OF OFFICER’S CERTIFICATE
[LOAN SELLER] (“Seller”) hereby certifies as follows:
| 1. |
All of the representations and warranties (except as set forth on Exhibit C) of the Seller under the Mortgage Loan Purchase Agreement, dated as of [DATE], (the “Agreement”), between 3650 REIT Commercial
Mortgage Securities II LLC and Seller, are true and correct in all material respects on and as of the date hereof (or as of such other date as of which such representation is made under the terms of Exhibit B to the Agreement) with the same
force and effect as if made on and as of the date hereof (or as of such other date as of which such representation is made under the terms of Exhibit B to the Agreement).
|
| 2. |
The Seller has complied in all material respects with all the covenants and satisfied all the conditions on its part to be performed or satisfied under the Agreement on or prior to the date hereof and no event
has occurred which would constitute a default on the part of the Seller under the Agreement.
|
| 3. |
Neither the Preliminary Prospectus, dated [DATE] (the “Preliminary Prospectus”), nor the Prospectus, dated [DATE], (the “Prospectus”), relating to the offering of the [PUBLIC CERTIFICATES], nor the
Preliminary Offering Circular, dated [DATE] (the “Preliminary Offering Circular”), nor the Offering Circular, dated [DATE] (the “Final Offering Circular”), relating to the offering of the [PRIVATE CERTIFICATES], in the case of
the Prospectus, as of the date of the Prospectus or as of the date hereof, or the Offering Circular, as of the date thereof or as of the date hereof, included or includes any untrue statement of a material fact relating to the Mortgage
Loans (including any related Whole Loan, including, without limitation, the servicing terms thereof if not serviced under the Indenture and Servicing Agreement, including identification of the parties to the related Other Pooling and
Servicing Agreement), the related borrowers, the related Mortgaged Properties or the Seller and its affiliates (to the extent such affiliate is not an Underwriter or Initial Purchaser) (collectively, the “Loan Detail”) or omitted or
omits to state therein any material fact necessary in order to make the statements therein relating to the Loan Detail, in the light of the circumstances under which they were made, not misleading.
|
Capitalized terms used herein without definition have the meanings given them in the Agreement or, if not defined therein, in the
Indemnification Agreement.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
D-1
Certified this [__] day of [____].
| [SELLER] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
D-2
EXHIBIT E
FORM OF DILIGENCE FILE CERTIFICATION
Reference is hereby made to that certain Indenture and Servicing Agreement, dated [__], and that certain Mortgage Loan Purchase Agreement, dated [___] (the “Mortgage Loan Purchase
Agreement”), between the undersigned (the “Seller”) and 3650 REIT Commercial Mortgage Securities II LLC. In accordance with Section 5(k) of the Mortgage Loan Purchase Agreement, the Seller hereby certifies to the Depositor, the Master Servicer, the
Note Administrator, the Special Servicer, the Indenture Trustee, the Operating Advisor and the Asset Representations Reviewer), as follows:
| 1. |
The Seller has reviewed the Diligence File (as defined in the Indenture and Servicing Agreement) with respect to each Mortgage Loan uploaded to the Designated Site (as defined in the Indenture and Servicing
Agreement); and
|
| 2. |
Each Diligence File contains all documents and information required under the definition of “Diligence File” and such Diligence File is organized and categorized in accordance with the electronic file structure
reasonably agreed to by the Depositor and Seller.
|
Capitalized terms used herein without definition have the meanings given them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this diligence file certification to be executed by its duly authorized officer or representative, the [___] day of [___], 20[__].
| [SELLER] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
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SCHEDULE I
MORTGAGED PROPERTY FOR WHICH ENVIRONMENTAL INSURANCE IS MAINTAINED
MORTGAGED PROPERTY FOR WHICH ENVIRONMENTAL INSURANCE IS MAINTAINED
[_________]
Sch. I-1
