EXHIBIT 4.2
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated
and effective [___], between [___], as seller (the "Seller"), and
Deutsche
Mortgage & Asset Receiving Corporation, as purchaser (the
"Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey
to
the Purchaser, and the Purchaser desires to purchase, subject to
the terms and
conditions set forth below, the commercial, multifamily and
manufactured housing
mortgage loans (collectively, the "Mortgage Loans") identified on
the schedule
annexed hereto as Exhibit A (the "Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred,
together
with other commercial, multifamily and manufactured housing
mortgage loans (such
mortgage loans, the "Other Mortgage Loans") to [_____________]
Mortgage Trust, a
trust fund (the "Trust Fund") to be formed by the Purchaser, the
beneficial
ownership of which will be evidenced by a series of mortgage
pass-through
certificates (the "Certificates"). Certain classes of the
Certificates will be
rated by [Standard & Poor's Rating Services, a division of The
McGraw-Hill
Companies, Inc. ] [and ] [Moody's Investors Service, Inc.] [Fitch,
Inc.]
[specify other rating agency] (together, the "Rating Agencies").
Certain classes
of the Certificates (the "Registered Certificates") will be
registered under the
Securities Act of 1933, as amended (the "Securities Act"). The
Trust Fund will
be created and the Certificates will be issued pursuant to a
pooling and
servicing agreement to be dated as of [___] (the "Pooling and
Servicing
Agreement"), among the Purchaser as depositor, [___] as the Master
Servicer with
respect to the Mortgage Loans sold to the Purchaser by [____] (the
"Master
Servicer"), [___], as special servicer (in such capacity, the
"Special
Servicer") and [___], as trustee (the "Trustee").
The Purchaser intends to sell certain of the Certificates to
[___]
(together, the "Underwriters") pursuant to an underwriting
agreement dated [___]
(the "Underwriting Agreement"). The Purchaser intends to sell
certain other
Certificates (the "Non-Registered Certificates") pursuant to a
certificate
purchase agreement dated [___] (the "Certificate Purchase
Agreement") to
Deutsche Bank Securities Inc. (the "Initial Purchaser").
Capitalized terms not
otherwise defined herein have the meanings assigned to them in the
Pooling and
Servicing Agreement or in the [___] Indemnification Agreement which
was entered
into by the Seller, the Purchaser and the Underwriters on
[___].
At or prior to the time when sales to investors of the
Registered
Certificates were first made (the "Time of Sale"), the Purchaser
had prepared
the following information: (i) a Free Writing Prospectus dated
[___] (the
"Preliminary Prospectus"), (ii) a Term Sheet dated as of [___] (the
"Term
Sheet") and (iii) written materials prepared by the Underwriters
and provided to
the Purchaser for filing with the Securities and Exchange
Commission (the "SEC")
prior to the Time of Sale (the "Purchaser Filed Information" and,
together with
the Preliminary Prospectus and the Term Sheet, the "Time of Sale
Information").
A list of the Purchaser Filed Information is included in Schedule A
hereto. If
subsequent to the date of the Underwriting Agreement, the Purchaser
and the
Underwriters have determined that such information included an
untrue statement
of a material fact or omitted to state a material fact necessary in
order to
make the statement therein, in the light of the circumstances in
which they were
made, not misleading and have terminated their old purchase
contract and entered
into new purchase contracts with
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purchasers of the Registered Certificates, then "Time of Sale
Information" will
refer to the information provided by the Purchaser or the
Underwriters to
purchasers at the time of entry into the first such new purchase
contract,
including any information that corrects such material misstatements
or
omissions.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey
to
the Purchaser upon receipt of the purchase price referred to in
this Section 1,
and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale
of the Mortgage Loans shall take place on [___] or such other date
as shall be
mutually acceptable to the parties hereto (the "Closing Date"). As
of the close
of business on [___], or the origination date with respect to each
Mortgage Loan
originated after [___] (the "Cut-off Date"), the Mortgage Loans
will have an
aggregate principal balance (the "Aggregate Cut-off Date Balance"),
after
application of all payments of principal due thereon on or before
such date,
whether or not received, of $[___], subject to a variance of plus
or minus 5%.
The purchase price of the Mortgage Loans (inclusive of accrued
interest, the
Interest Deposit Amount applicable to the Mortgage Loans and
exclusive of the
Seller's pro rata share of the costs set forth in clause (c) of
Section 9
hereof) (the "Mortgage Loan Purchase Price") shall be $[___].
SECTION 2. Conveyance of Mortgage Loans.
(a) On the Closing Date, subject only to receipt by the Seller
of
the purchase price referred to in Section 1 hereof, the
satisfaction of the
other closing conditions required to be satisfied on the part of
Purchaser
pursuant to Section 7 and the issuance of the Certificates, the
Seller agrees to
(i) sell, transfer, assign, set over and otherwise convey to the
Purchaser,
without recourse, all the right, title and interest of the Seller
in and to the
Mortgage Loans identified on the Mortgage Loan Schedule, including
all rights to
payment in respect thereof, which includes all interest and
principal received
or receivable by the Seller on or with respect to the Mortgage
Loans after the
Cut-off Date (subject to the proviso in the next sentence),
together with all of
the Seller's right, title and interest in and to the proceeds of
any related
title, hazard, or other insurance policies and any escrow, reserve
or other
comparable accounts related to the Mortgage Loans subject to that
certain
Servicing Rights Purchase Agreement dated as of [_____] between the
Master
Servicer and the Seller, and (ii) pay to the Purchaser the Interest
Deposit
Amount applicable to the Mortgage Loans; provided, however, to the
extent the
originator of a Mortgage Loan has the right, pursuant to the
related Mortgage
Loan documents, to establish or designate the successor borrower
with respect to
a defeasance and to purchase or cause to be purchased the related
defeasance
collateral, such right is retained by the Seller and not
transferred to the
Purchaser herein. The Purchaser shall be entitled to (and, to the
extent
received by or on behalf of the Seller, the Seller shall deliver or
cause to be
delivered to or at the direction of the Purchaser) all scheduled
payments of
principal and interest due on the Mortgage Loans after the Cut-off
Date, and all
other recoveries of principal and interest collected thereon after
the Cut-off
Date; provided, however, that all scheduled payments of principal
and interest
accrued but not paid thereon, due on or before the Cut-off Date and
collected
after the Cut-off Date shall belong
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to the Seller, and the Purchaser or its successors or assigns shall
promptly
remit any such payments to the Seller.
On or prior to the Closing Date, the Seller shall retain a
third
party vendor reasonably satisfactory to the Controlling Class
Representative to
complete the assignment and recordation of the related Loan
Documents. On or
promptly following the Closing Date, the Seller shall cause such
third party
vendor, to the extent possession of recorded copies of each
Mortgage and the
documents described in clauses (iii), (iv), (v), (viii), (xiii) and
(xiv) of
Exhibit B have been delivered to it, at the expense of the Seller,
(1) to
prepare and record (a) each Assignment of Mortgage referred to in
clause (iii)
of Exhibit B which has not yet been submitted for recording and (b)
each
Reassignment of Assignment of Leases, Rents and Profits referred to
in clause
(viii)(B) of Exhibit B (if not otherwise included in the related
Assignment of
Mortgage) which has not yet been submitted for recordation; and (2)
to prepare
and file each UCC assignment of financing statement referred to in
clause (v) or
(xiii) which has not yet been submitted for filing or recording.
The Seller
shall direct the related third party vendor to promptly prepare and
submit (and
in no event later than 30 Business Days following the receipt of
the related
documents in the case of clause 1(a) above and 60 days following
the receipt of
the applicable documents in the case of clauses 1(b) and 2 above)
for recording
or filing, as the case may be, in the appropriate public recording
or filing
office, each such document. In the event that any such document is
lost or
returned unrecorded because of a defect therein, the Seller, at its
expense,
shall promptly prepare a substitute document for signature by the
Purchaser or
itself, as applicable, and thereafter the Seller shall cause each
such document
to be duly recorded or filed. The Seller shall, promptly upon
receipt of the
original recorded or filed copy (and in no event later than five
Business Days
following such receipt) deliver such original to the Custodian (in
the case of
each UCC financing statement or UCC assignment of financing
statement, with
evidence of filing or recording thereon). Notwithstanding anything
to the
contrary contained in this Section 2, in those instances where the
public
recording office retains the original Mortgage, Assignment of
Mortgage or
Reassignment of Assignment of Leases, Rents and Profits, if
applicable, after
any has been recorded, the obligations hereunder of the Purchaser
shall be
deemed to have been satisfied upon delivery to the Custodian of a
copy of such
Mortgage, Assignment of Mortgage or Reassignment of Assignment of
Leases, Rents
and Profits, if applicable, certified by the public recording
office to be a
true and complete copy of the recorded original thereof.
(b) In connection with the Seller's assignment pursuant to
subsection (a) above, the Seller shall deliver to and deposit with,
or cause to
be delivered to and deposited with, the Custodian, on or before the
Closing
Date, the Note for each Mortgage Loan so assigned and, within 30
days following
the Closing Date, the remaining applicable documents in Exhibit B
for each such
Mortgage Loan, in each case with copies to the Master Servicer.
If the Seller cannot deliver, or cause to be delivered, as to
any
Mortgage Loan, the original Note, the Seller shall deliver a copy
or duplicate
original of such Note, together with an affidavit certifying that
the original
thereof has been lost or destroyed and an indemnification in
connection
therewith in favor of the Trustee.
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If the Seller cannot deliver, or cause to be delivered, as to
any
Mortgage Loan, the original or a copy of any of the documents
and/or instruments
referred to in clauses (ii), (v), (viii)(A), (xiv) and (xvi) of
Exhibit B and
the UCC financing statements and UCC assignments of financing
statements
referred to in clause (xiii) of Exhibit B, with evidence of
recording or filing
thereon, 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, or because such original recorded or filed document has
been lost or
returned from the recording or filing office and subsequently lost,
as the case
may be, the delivery requirements of this Section 2(b) shall be
deemed to have
been satisfied as to such missing item, and such missing item shall
be deemed to
have been included in the related Mortgage File, provided that a
copy of such
document or instrument (without evidence of recording or filing
thereon, but
certified (which certificate may relate to multiple documents
and/or
instruments) by the applicable public recording or filing office,
the applicable
title insurance company or by the Seller to be a true and complete
copy of the
original thereof submitted for recording or filing, as the case may
be) has been
delivered to the Trustee within [45] days after the Closing Date,
and either the
original of such missing document or instrument, or a copy thereof,
with
evidence of recording or filing, as the case may be, thereon, is
delivered to or
at the direction of the Purchaser (or any subsequent owner of the
affected
Mortgage Loan, including without limitation the Trustee) within
[180] days after
the Closing Date (or within such longer period after the Closing
Date as the
Purchaser (or such subsequent owner) may consent to, which consent
shall not be
unreasonably withheld so long as the Seller has provided the
Purchaser (or such
subsequent owner) with evidence of such recording or filing, as the
case may be,
or has certified to the Purchaser (or such subsequent owner) as to
the
occurrence of such recording or filing, as the case may be, and is,
as certified
to the Purchaser (or such subsequent owner) no less often than
quarterly, in
good faith attempting to obtain from the appropriate county
recorder's or filing
office such original or copy).
If the Seller cannot deliver, or cause to be delivered, as to
any
Mortgage Loan, the original or a copy of the related lender's title
insurance
policy referred to in clause (vii) of Exhibit B solely because such
policy has
not yet been issued, the delivery requirements of this Section 2(b)
shall be
deemed to be satisfied as to such missing item, and such missing
item shall be
deemed to have been included in the related Mortgage File, provided
that the
Seller has delivered to the Trustee a binder marked as binding and
countersigned
by the title insurer or its authorized agent (which may be a pro
forma or
specimen title insurance policy which has been accepted or approved
in writing
as binding by the related title insurance company) or an
acknowledged closing
instruction or escrow letter, and the Seller shall deliver to or at
the
direction of the Purchaser (or any subsequent owner of the affected
Mortgage
Loan, including without limitation the Trustee), promptly following
the receipt
thereof, the original related lender's title insurance policy (or a
copy
thereof). In addition, notwithstanding anything to the contrary
contained
herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any
document referred
to in Exhibit B covering all the Mortgage Loans in such group, then
the
inclusion of the original of such document in the Mortgage File for
any of the
Mortgage Loans in such group shall be deemed an inclusion of such
original in
the Mortgage File for each such Mortgage Loan. On the Closing Date,
upon
notification from the Seller that the purchase price referred to in
Section 1
has been received by the Seller and the issuance of the
Certificates, the
Purchaser shall be authorized to release to the Trustee or its
designee all of
the Mortgage Files in the Purchaser's possession relating to the
Mortgage Loans.
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<PAGE>
Notwithstanding anything herein to the contrary, with respect to
the
documents referred to in clause (xvii) and clause (xviii) on
Exhibit B, the
Master Servicer shall hold the original of each such document in
trust on behalf
of the Trustee in order to draw on such letter of credit on behalf
of the Trust
and the Seller shall be deemed to have satisfied the delivery
requirements of
this Agreement by delivering the original of each such document to
the Master
Servicer. The Seller shall pay any costs of assignment or amendment
of such
letter of credit required (which assignment or amendment shall
change the
beneficiary of the letter of credit to the Trust in care of the
Master Servicer)
in order for the Master Servicer to draw on such letter of credit
on behalf of
the Trust. In the event that the documents specified in clause
(xviii) on
Exhibit B are missing because the related assignment or amendment
documents have
not been completed, the Seller shall take all necessary steps to
enable the
Master Servicer to draw on the related letter of credit on behalf
of the Trust
including, if necessary, drawing on the letter of credit in its own
name
pursuant to written instructions from the Master Servicer and
immediately
remitting such funds (or causing such funds to be remitted) to the
Master
Servicer.
Contemporaneously with the execution of this Agreement by the
Purchaser and the Seller, the Seller shall deliver a power of
attorney to each
of the Master Servicer and the Special Servicer at the direction of
the
Controlling Class Representative or its assignees, to take such
other action as
is necessary to effect the delivery, assignment and/or recordation
of any
documents and/or instruments relating to any Mortgage Loan which
have not been
delivered, assigned or recorded at the time required for
enforcement by the
Trust Fund. The Seller will be required to effect at its expense
the assignment
and recordation of its Loan Documents until the assignment and
recordation of
all such Loan Documents has been completed.
(c) As to each Mortgage Loan, the Seller shall be responsible
for
all costs associated with the recording or filing, as the case may
be, of each
assignment referred to in clauses (iii) and (viii)(B) of Exhibit B
and each
UCC-2 and UCC-3 assignment of financing statement, if any, referred
to in clause
(v)(B) of Exhibit B. If any such document or instrument is lost or
returned
unrecorded or unfiled, as the case may be, because of a defect
therein, the
Seller shall promptly prepare or cause the preparation of a
substitute therefor
or cure or cause the curing of such defect, as the case may be, and
shall
thereafter deliver the substitute or corrected document to or at
the direction
of the Purchaser (or any subsequent owner of the affected Mortgage
Loan,
including without limitation the Trustee) for recording or filing,
as
appropriate, at the Seller's expense.
(d) Except as provided below, all documents and records in the
Seller's possession (or under its control) relating to the Mortgage
Loans that
are not required to be a part of a Mortgage File in accordance with
Exhibit B
but that are reasonably required to service the Mortgage Loans (all
such other
documents and records, including Environmental Reports, as to any
Mortgage Loan,
the "Servicing File"), together with copies of the documents
contained in the
related Mortgage File and all escrow payments, reserve funds and
other
comparable funds in the possession of the Seller (or under its
control) with
respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer
that shall, as of the Closing Date, begin acting on behalf of the
Master
Servicer pursuant to a written agreement between such parties) be
delivered by
the Seller (or its agent) to the Purchaser (or its designee) no
later than the
Closing Date; provided, however, the Seller shall not be required
to deliver,
and the Servicing File shall not be deemed to include drafts of
Loan Documents,
attorney-client or internal communications of the Seller or its
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<PAGE>
affiliates or Seller's credit underwriting or due diligence
analyses or related
data (as distinguished from Environmental Reports, financial
statements, credit
reports, title reports, structural and engineering reports,
appraisals and other
reports, analyses or data provided by the Borrower or third parties
other than
the Seller's attorneys). If a sub-servicer shall, as of the Closing
Date, begin
acting on behalf of the Master Servicer with respect to any
Mortgage Loan
pursuant to a written agreement between such parties, the Seller or
its agent
shall deliver a copy of the related Servicing File to the Master
Servicer.
(e) Each of the Seller's and the Purchaser's records will
reflect
the transfer of the Mortgage Loans to the Purchaser as a sale,
including for
accounting purposes.
(f) Furthermore, it is the express intent of the parties hereto
that
the conveyance of the Mortgage Loans by Seller to Depositor as
provided in this
Agreement be, and be construed as, a sale of the Mortgage Loans by
Seller to
Depositor. It is, further, not the intention of the parties that
such conveyance
be deemed a pledge of the Mortgage Loans by Seller to Depositor to
secure a debt
or other obligation of Seller. However, in the event that,
notwithstanding the
intent of the parties, the Mortgage Loans are held to be property
of Seller or
if for any reason this Agreement is held or deemed to create a
security interest
in the Mortgage Loans:
(i) this Agreement shall hereby create a security agreement
within
the
meaning of Articles 8 and 9 of the Uniform Commercial Code in
effect
in the
applicable state;
(ii) the conveyance provided for in this Agreement shall hereby
grant from
Seller to Depositor a security interest in and to all of
Seller's
right, title, and interest, whether now owned or hereafter
acquired,
in and to:
(A) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents,
money,
deposit accounts, certificates of deposit, goods, letters of
credit,
advices of credit and investment property consisting of,
arising
from or relating to any of the property described in the
Mortgage
Loans, including the related Notes, Mortgages and title, hazard
and
other insurance policies, identified on the Mortgage Loan
Schedule,
and all distributions with respect thereto payable after the
Cut-off
Date;
(B) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of
credit
and investment property arising from or by virtue of the
disposition
of, or collections with respect to, or insurance proceeds
payable
with respect to, or claims against other persons with respect
to,
all or any part of the collateral described in clause (A) above
(including any accrued discount realized on liquidation of any
investment purchased at a discount), in each case, payable after
the
Cut-off Date; and
(C) all cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above payable after the Cut-off Date;
(iii) the possession by Depositor or its assignee of the Notes
and
such other
goods, letters of credit, advices of credit, instruments,
money,
documents, chattel paper or
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<PAGE>
certificated securities shall be deemed to be possession by the
secured
party or
possession by a purchaser or a person designated by him or her,
for
purposes of perfecting the security interest pursuant to the
Uniform
Commercial
Code (including, without limitation, Sections 9-306, 9-313 and
9-314
thereof) as in force in the relevant jurisdiction; and
(iv) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding
such
property,
shall be deemed to be notifications to, or acknowledgments,
receipts
or confirmations from, securities intermediaries, bailees or
agents of,
or persons holding for (as applicable), Depositor or its
assignee
for the purpose of perfecting such security interest under
applicable
law.
The Seller at the direction of the Depositor or its assignee,
shall,
to the extent consistent with this Agreement, take such actions as
may be
necessary to ensure that, if this Agreement were deemed to create a
security
interest in the Mortgage Loans and the proceeds thereof, such
security interest
would be a perfected security interest of first priority under
applicable law
and will be maintained as such throughout the term of this
Agreement. In
connection herewith, Depositor and its assignee shall have all of
the rights and
remedies of a secured party and creditor under the Uniform
Commercial Code as in
force in the relevant jurisdiction and may execute and file such
UCC Financing
Statements as may be necessary or appropriate to accomplish the
foregoing.
(g) It is further acknowledged and agreed by the Seller that
the
Purchaser intends to convey all right, title and interest of the
Purchaser in
and to the Mortgage Loans and all rights and remedies under this
Agreement
(excluding the Seller's representations, warranties and covenants
set forth in
paragraphs (viii) and (ix) of Section 4(b), the Purchaser's rights
and remedies
under Section 9 and the [___] Indemnification Agreement) to the
Trustee on
behalf of the Certificateholders, including, without limitation,
all rights and
remedies as may be available under Section 6 to the Purchaser in
the event of a
Material Breach or a Material Defect; provided, that the Trustee on
behalf of
the Certificateholders shall be a third-party beneficiary of this
Agreement and
shall be entitled to enforce any obligations of the Seller
hereunder in
connection with a Material Breach or a Material Defect as if the
Trustee on
behalf of the Certificateholders had been an original party to this
Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with any examination of
the
Mortgage Files and Servicing Files that may be undertaken by or on
behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed
to conduct
any partial or complete examination of the Mortgage Files and/or
Servicing Files
shall not affect the Purchaser's right to pursue any remedy
available in equity
or at law under Section 6 for a breach of the Seller's
representations,
warranties and covenants set forth in or contemplated by Section
4.
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SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby makes, as of the date hereof (or as of
such
other date specifically provided in the particular representation
or warranty),
to and for the benefit of the Purchaser, the Trustee on behalf of
the
Certificateholders and the respective successors of the Purchaser
and the
Trustee, each of the representations and warranties set forth in
Exhibit C
subject to the exceptions set forth in Exhibit D and any annex
referenced in
Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser
that:
(i) The Seller is a corporation, duly organized, validly
existing
and in
good standing under the laws of the State of [___], and is in
compliance
with the laws of each State in which any Mortgaged Property is
located to
the extent necessary to ensure the enforceability of each
Mortgage
Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller,
and
the
performance of, and compliance with, the terms of this Agreement
by
the
Seller, do not violate the Seller's organizational documents or
constitute
a default (or an event which, with notice or lapse of time, or
both,
would constitute a default) under, or result in the breach of,
any
material
agreement or other instrument to which it is a party or which
is
applicable
to it or any of its assets, in each case which materially and
adversely
affects the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into
and
consummate
all transactions contemplated by this Agreement, has duly
authorized
the execution, delivery and performance of this Agreement, and
has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery
by the Purchaser, constitutes a valid, legal and binding
obligation
of the Seller, enforceable against the Seller in accordance
with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting
the
enforcement of creditors' rights generally, and the rights of
creditors of
national
banks, or any other laws that may be applicable in the context
of
the
insolvency of a national banking association, (B) general
principles
of equity,
regardless of whether such enforcement 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 or contribution for
securities
laws liabilities.
(v) The Seller is not in violation of, and its execution and
delivery
of this Agreement and its performance of, and compliance with,
the terms
of this Agreement do not constitute a violation of, any law,
any
judgment,
order or decree of any court or arbiter, or any order,
regulation
or demand of any federal, state or local governmental or
regulatory
authority, which violation, in the Seller's good faith and
reasonable
judgment,
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<PAGE>
is likely
to affect materially and adversely either the ability of the
Seller to
perform its obligations under this Agreement or the financial
condition
of the Seller.
(vi) No litigation is pending or, to the best of the Seller's
knowledge,
threatened against the Seller the outcome of which, in the
Seller's
good faith and reasonable judgment, is likely to materially and
adversely
affect the ability of the Seller to perform its obligations
under this
Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment
banker,
agent or
other person, other than the Purchaser, the Underwriters, the
Initial
Purchaser, and their respective affiliates, that may be
entitled
to any
commission or compensation in connection with the sale of the
Mortgage
Loans or the consummation of any of the other transactions
contemplated hereby.
(viii) Except with respect to Deutsche Bank Securities Inc., an
affiliate
of the Seller, acting as Underwriter and Initial Purchaser,
neither
the Seller nor anyone acting on its behalf has (A) offered,
pledged,
sold, disposed of or otherwise transferred any Certificate, any
interest
in any Certificate or any other similar security to any person
in
any
manner, (B) solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in
any
Certificate or any other similar security from any person in any
manner,
(C)
otherwise approached or negotiated with respect to any
Certificate,
any
interest in any Certificate or any other similar security with
any
person in
any manner, (D) made any general solicitation by means of
general
advertising or in any other manner with respect to any
Certificate, any interest in any Certificate or any similar
security, or
(E) taken
any other action that (in the case of any of the acts described
in clauses
(A) through (D) above) would constitute or result in a
violation
of the Securities Act or any state securities law relating to
or
in
connection with the issuance of the Certificates or require
registration or qualification pursuant to the Securities Act or any
state
securities
law of any Certificate not otherwise intended to be a
Registered
Certificate. In addition, the Seller will not act, nor has it
authorized
or will it authorize any person (other than an Underwriter
and/or the
Initial Purchaser) to act, in any manner set forth in the
foregoing
sentence with respect to any of the Certificates or interests
therein.
For purposes of this paragraph 4(b)(viii), the term "similar
security"
shall be deemed to include, without limitation, any security
evidencing
or, upon issuance, that would have evidenced an interest in the
Mortgage
Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the
information
set forth
in Annex [A-1, Annex A-2, Annex A-4, Annex A-5 and Annex A-6]
to
the
Prospectus Supplement (as defined in the [___] Indemnification
Agreement)
(the "Loan Detail") and, to the extent consistent therewith,
the
information set forth on the diskette attached to the
Prospectus
Supplement
and the accompanying prospectus (the "Diskette"), is true and
correct in
all material respects. Insofar as it relates to the Mortgage
Loans and/or the
Seller and does not represent a restatement or
aggregation of the information on the Loan Detail, the information
set
forth in
the Memorandum (as defined in the [___] Indemnification
Agreement)
and in the Prospectus Supplement under the headings "Summary of
the
Prospectus Supplement--Relevant Parties and Dates--Mortgage
Loan
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Sellers,"
"--The Mortgage Pool," "Risk Factors" and "Description of the
Mortgage
Pool", does not contain any untrue statement of a material fact
or (in the
case of the Memorandum, when read together with the other
information specified therein as being available for review by
investors)
omit to
state any material fact necessary to make the statements
therein,
in light
of the circumstances under which they were made, not
misleading.
(x) No consent, approval, authorization or order of, registration
or
filing
with, or notice to, any governmental authority or court is
required,
under federal or state law (including, with respect to any bulk
sale
laws), for the Seller's execution, delivery and performance of,
or
compliance
by, the Seller with this Agreement, or the consummation by the
Seller of
any transaction contemplated hereby, other than (1) the filing
or
recording of financing statements, instruments of assignment and
other
similar
documents necessary in connection with the Seller's sale of the
Mortgage
Loans to the Purchaser, (2) such consents, approvals,
authorizations, qualifications, registrations, filings or notices
as have
been
obtained, made or given and (3) where the lack of such consent,
approval,
authorization, qualification, registration, filing or notice
would not
have a material adverse effect on the performance by the Seller
under this
Agreement.
(c) Upon discovery by any of the Seller or the parties to the
Pooling and Servicing Agreement of a breach of any of the
representations and
warranties made pursuant to and set forth in subsection (b) above
which
materially and adversely affects the interests of the Purchaser or
a breach of
any of the representations and warranties made pursuant to
subsection (a) above
and set forth in Exhibit C which materially and adversely affects
the value of
any Mortgage Loan, the value of the related Mortgaged Property or
the interests
therein of the Purchaser, the Trustee on behalf of the
Certificateholders or any
Certificateholder, the party discovering such breach shall give
prompt written
notice to the Seller and/or the other parties, as applicable.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing
and in
good standing under the laws of State of [___].
(ii) The execution and delivery of this Agreement by the
Purchaser,
and the
performance of, and compliance with, the terms of this
Agreement
by the
Purchaser, do not violate the Purchaser's organizational
documents
or
constitute a default (or an event which, with notice or lapse of
time,
or both,
would constitute a default) under, or result in the breach of,
any
material agreement or other instrument to which it is a party or
which
is
applicable to it or any of its assets.
(iii) The
Purchaser has the full power and authority to enter into
and
consummate all transactions contemplated by this Agreement, has
duly
authorized
the
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<PAGE>
execution,
delivery and performance of this Agreement, and has duly
executed
and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery
by the Seller, constitutes a valid, legal and binding
obligation
of the
Purchaser, enforceable against the Purchaser in accordance with
the
terms
hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting
the
enforcement of creditors' rights generally, and (B) general
principles of
equity,
regardless of whether such enforcement is considered in a
proceeding
in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery
of this Agreement and its performance of, and compliance with,
the terms
of this Agreement will not constitute a violation of, any law,
any
judgment, order or decree of any court or arbiter, or any
order,
regulation
or demand of any federal, state or local governmental or
regulatory
authority, which violation, in the Purchaser's good faith and
reasonable
judgment, is likely to affect materially and adversely either
the
ability of the Purchaser to perform its obligations under this
Agreement
or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's
knowledge,
threatened against the Purchaser which would prohibit the
Purchaser
from entering into this Agreement or, in the Purchaser's good
faith and
reasonable judgment, is likely to materially and adversely
affect
either the ability of the Purchaser to perform its obligations
under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker,
agent or other person, other than the Seller, the Underwriters,
the
Initial Purchaser and their respective affiliates, that may be
entitled
to any commission or compensation in connection with the sale
of
the
Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration
or filing
with, or notice to, any governmental authority or court is
required,
under federal or state law, for the Purchaser's execution,
delivery
and performance of or compliance by the Purchaser with this
Agreement,
or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices
as have
been
obtained, made or given and (2) where the lack of such consent,
approval,
authorization, qualification, registration, filing or notice
would not
have a material adverse effect on the performance by the
Purchaser
under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of
any
of the representations and warranties set forth above which
materially and
adversely affects the interests of the Seller, the party
discovering such breach
shall give prompt written notice to the other party hereto.
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<PAGE>
SECTION 6. Repurchases; Substitutions.
(a) If any of the parties to this Agreement discovers that any
document constituting a part of a Mortgage File has not been
delivered within
the time periods provided for herein and in the Pooling and
Servicing Agreement,
has not been properly executed, is missing, does not appear to be
regular on its
face or contains information that does not conform in any material
respect with
the corresponding information set forth in the Mortgage Loan
Schedule (each, a
"Defect"), or discovers or receives notice of a breach of any
representation or
warranty of the Seller made pursuant to Section 4(a) of this
Agreement with
respect to any Mortgage Loan (a "Breach"), such party shall give
prompt written
notice thereof to each of the Rating Agencies, the Seller, the
parties to the
Pooling and Servicing Agreement and the Controlling Class
Representative. If any
such Defect or Breach materially and adversely affects the value of
any Mortgage
Loan, the value of the related Mortgaged Property or the interests
therein of
the Purchaser, the Trustee or any Certificateholders, then such
Defect shall
constitute a "Material Defect" or such Breach shall constitute a
"Material
Breach," as the case may be; provided, however, that if any of the
documents
specified in the first paragraph of Section [2.01(b)] of the
Pooling and
Servicing Agreement is not delivered, and is certified as missing,
pursuant to
the first paragraph of Section [2.01(b)] of the Pooling and
Servicing Agreement,
it shall be deemed a Material Defect. Promptly upon receiving
written notice of
any such Material Defect or Material Breach with respect to a
Mortgage Loan
(including through a written notice given by any party hereto, as
provided
above), the Seller shall, not later than [90] days from the
Seller's receipt of
notice from the Master Servicer, the Special Servicer, the Trustee
or the
Custodian of such Material Defect or Material Breach, as the case
may be (or, in
the case of a Material Defect or Material Breach relating to a
Mortgage Loan not
being a "qualified mortgage" within the meaning of the REMIC
Provisions, not
later than [90] days after the Seller or any party to the Pooling
and Servicing
Agreement discovering such Material Defect or Material Breach) (any
such 90-day
period, the "Initial Resolution Period"), (i) cure the same in all
material
respects, (ii) repurchase the affected Mortgage Loan at the
applicable
Repurchase Price or (iii) substitute a Qualifying Substitute
Mortgage Loan for
such affected Mortgage Loan (provided that in no event shall such
substitution
occur later than the second anniversary of the Closing Date) and
pay to the
Master Servicer for deposit into the Collection Account (or, with
respect to any
Loan Combination, the Loan Combination Collection Account) any
Substitution
Shortfall Amount in connection therewith; provided, however, that
with respect
to any Material Defect arising from a missing document as to which
the Trustee
inadvertently certified its possession of such document (x) on the
Closing Date,
in the form of Exhibit [S-1] to the Pooling and Servicing Agreement
or (y) no
later than [45] days following the Closing Date, in the form of
Exhibit [S-2] to
the Pooling and Servicing Agreement, the related Mortgage Loan
Seller shall have
(A) [15] days to cure the Material Defect relating to the missing
document in
the certification of clause (x) and (B) [30] days to cure the
Material Defect
relating to the missing document in the certification of clause
(y); provided,
further, that if (i) such Material Defect or Material Breach (other
than one
relating to the immediately preceding proviso) is capable of being
cured but not
within the Initial Resolution Period, (ii) such Material Defect or
Material
Breach is not related to any Mortgage Loan's not being a "qualified
mortgage"
within the meaning of the REMIC Provisions and (iii) the Seller has
commenced
and is diligently proceeding with the cure of such Material Defect
or Material
Breach within the Initial Resolution Period, then the Seller shall
have an
additional period equal to the applicable Resolution Extension
Period to
complete such cure or, failing such cure, to repurchase the
Mortgage Loan or
substitute a Qualifying Substitute
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<PAGE>
Mortgage Loan. The Seller shall have an additional [90] days
(without
duplication of the additional [90]-day period set forth in the last
sentence of
the definition of Resolution Extension Period) to cure such
Material Defect or
Material Beach, provided that, the Seller has commenced and is
diligently
proceeding with the cure of such Material Defect or Material Breach
and such
failure to cure is solely the result of a delay in the return of
documents from
the local filing or recording authorities. Notwithstanding the
foregoing, if a
Mortgage Loan is not secured by a hotel, restaurant (operated by a
Borrower),
healthcare facility, nursing home, assisted living facility,
self-storage
facility, theatre, manufactured housing or fitness center (operated
by a
Borrower) property, then the failure to deliver to the Trustee
copies of the UCC
financing statements with respect to such Mortgage Loan shall not
be a Material
Defect.
If the Seller is notified of a Defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule,
the Seller
shall promptly correct such Defect and provide a new, corrected
Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule
shall be
deemed to amend and replace the existing Mortgage Loan Schedule for
all
purposes. The failure of the Master Servicer, the Special Servicer
or the
Trustee to notify the Seller of a Material Defect or Material
Breach shall not
constitute a waiver of any cure or repurchase obligation, provided
that the
Seller must receive written notice thereof as described in this
Section 6(a)
before commencement of the Initial Resolution Period.
(b) In connection with any repurchase of, or substitution for,
a
Mortgage Loan contemplated by this Section 6, (A) the Trustee, the
Master
Servicer (with respect to any such Mortgage Loan other than a
Specially Serviced
Loan) and the Special Servicer (with respect to any such Mortgage
Loan that is a
Specially Serviced Loan) shall each tender to the Seller, upon
delivery (i) to
each of the Master Servicer or the Special Servicer, as applicable,
of a trust
receipt and (ii) to the Trustee by the Master Servicer or the
Special Servicer,
as applicable, of a Request for Release and an acknowledgement by
the Master
Servicer or applicable Special Servicer, as applicable, of its
receipt of the
Repurchase Price or the Substitution Shortfall Amount from the
Seller, (1) all
portions of the Mortgage File and other documents pertaining to
such Mortgage
Loan possessed by it and (2) each document that constitutes a part
of the
Mortgage File that was endorsed or assigned to the Trustee shall be
endorsed or
assigned without recourse in the form of endorsement or assignment
provided to
the Trustee by the Seller, as the case may be, to the Seller as
shall be
necessary to vest in the Seller the legal and beneficial ownership
of each
Removed Mortgage Loan to the extent such ownership was transferred
to the
Trustee, and (B) the Trustee shall release, or cause the release
of, any escrow
payments and reserve funds held by the Trustee, or on the Trustee's
behalf, in
respect of such Removed Mortgage Loan(s) to the Seller.
(c) This Section 6 provides the sole remedies available to the
Purchaser, and its successors and permitted assigns (i.e., the
Trustee and the
holders of the Certificates) in respect of any Defect in a Mortgage
File or any
Breach. If the Seller defaults on its obligations to cure, to
repurchase, or to
substitute for, any Mortgage Loan in accordance with this Section
6, or disputes
its obligation to cure, to repurchase, or to substitute for, any
Mortgage Loan
in accordance with Section 6, the Purchaser or the Trustee, as
applicable, may
take such action as is appropriate to enforce such payment or
performance,
including, without limitation, the institution and prosecution of
appropriate
proceedings. To the extent the Purchaser or the Trustee, as
applicable, prevails
in such proceeding, the Seller shall reimburse the Purchaser or the
Trustee,
13
<PAGE>
as applicable, for all necessary and reasonable costs and expenses
incurred in
connection with the enforcement of such obligation of the Seller to
cure, to
repurchase, or to substitute for, any Mortgage Loan in accordance
with this
Section 6.
(d) If one or more (but not all) of the Mortgage Loans
constituting
a cross-collateralized group of Mortgage Loans are to be
repurchased or
substituted by the Seller as contemplated by this Section 6, then,
prior to the
subject repurchase or substitution, the Seller or its designee
shall use its
reasonable efforts, subject to the terms of the related Mortgage
Loan(s), to
prepare and, to the extent necessary and appropriate, have executed
by the
related Borrower and record, such documentation as may be necessary
to terminate
the cross-collateralization between the Mortgage Loan(s) in
such
cross-collateralized group of Mortgage Loans that are to be
repurchased or
substituted, on the one hand, and the remaining Mortgage Loan(s)
therein, on the
other hand, such that those two groups of Mortgage Loans are each
secured only
by the Mortgaged Properties identified in the Mortgage Loan
Schedule as directly
corresponding thereto; provided that, no such termination shall be
effected
unless and until the Controlling Class Representative, if one is
then acting,
has consented in its sole discretion and the Trustee has received
from the
Seller (i) an Opinion of Counsel to the effect that such
termination would not
cause an Adverse REMIC Event to occur and (ii) written confirmation
from each
Rating Agency that the then current rating assigned to any of the
Certificates
that are currently being rated by such Rating Agency will not be
qualified,
downgraded or withdrawn by reason of such termination; provided,
further, that
the Seller, in the case of the related Mortgage Loans, may, at its
option and
within the [90]-day cure period described above (and any applicable
extension
thereof), purchase or substitute for the entire subject
cross-collateralized
group of Mortgage Loans in lieu of effecting a termination of
the
cross-collateralization. All costs and expenses
