EXHIBIT 4.2
MORTGAGE LOAN PURCHASE AGREEMENT
Pursuant to this Mortgage Loan Purchase Agreement dated as of
[__]
(the "Agreement"), between [_________________] (together with its
successors and
permitted assigns hereunder, the "Seller") and CWCapital Commercial
Funding
Corp. (together with its successors and permitted assigns
hereunder, the
"Purchaser"), the Seller intends to sell and the Purchaser intends
to purchase
certain multifamily and commercial mortgage loans (collectively,
the "Mortgage
Loans"), as identified on the schedule annexed hereto as Exhibit A
(the
"Mortgage Loan Schedule").
The Purchaser intends to deposit the Mortgage Loans, together
with
other assets, into a trust fund (the "Trust Fund"), the beneficial
ownership of
which will be evidenced by multiple classes (each, a "Class") of
mortgage
pass-through certificates (the "Certificates") to be identified as
the CWCapital
Commercial Funding Corp., Commercial Mortgage Trust 200[__]-[__],
Commercial
Mortgage Pass-Through Certificates, Series 200[__]-[__]. One or
more "real
estate mortgage investment conduit" ("REMIC") elections will be
made with
respect to the Trust Fund. The Certificates will be issued pursuant
to a Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), to
be dated as
of [__], among the Purchaser, as depositor, [__], as master
servicer (the
"Master Servicer"), [__], as special servicer (the "Special
Servicer"), and
[__], as trustee (the "Trustee"). Capitalized terms used but not
defined herein
have the respective meanings set forth in the Pooling and Servicing
Agreement,
as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of [__], with [_______]
("[_____]"), and
[__] (collectively in such capacity, the "Underwriters"), whereby
the Purchaser
will sell to the Underwriters all of the Certificates that are to
be registered
under the Securities Act of 1933, as amended (the "Securities
Act"). The
Purchaser has also entered into a Certificate Purchase Agreement
(the
"Certificate Purchase Agreement"), dated as of [__] with [__] and
[__]
(together, in such capacity, the "Initial Purchasers"), whereby the
Purchaser
will sell to the Initial Purchasers all of the remaining
Certificates (other
than the Residual Interest Certificates).
In connection with the transactions contemplated hereby, the
Seller,
the Purchaser, the Underwriters and the Initial Purchasers have
entered into an
Indemnification Agreement (the "Indemnification Agreement"), dated
as of the
date hereof.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and
the
Purchaser agrees to purchase, the Mortgage Loans identified on the
Mortgage Loan
Schedule. The Mortgage Loan Schedule may be amended to reflect the
actual
Mortgage Loans accepted by the Purchaser pursuant to the terms
hereof. The
Mortgage Loans will have an aggregate principal balance of $[__]
(the "Initial
Principal Balance") as of the close of business on (i) its Due Date
in [__] with
respect to each Mortgage Loan that pays in [___________], and (ii)
[_________]
with respect to each Mortgage Loan (collectively, the "Cut-off
Date"), after
giving effect to any and all payments of principal due thereon on
or before such
date, whether or not received. The purchase and sale of the
Mortgage Loans shall
take place on [__], or such other date as shall be mutually
acceptable to the
parties hereto (the "Closing Date"). The consideration for the
Mortgage Loans
shall consist of a cash amount equal to [__]% of the Initial
Principal Balance,
which cash amount shall be paid to the Seller or its designee by
wire transfer
in immediately available funds (or by such other method as shall be
mutually
acceptable to the parties hereto) on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the
purchase price referred to in Section 1 hereof and satisfaction or
waiver of the
conditions to closing set forth in Section 5 hereof, the Seller
does hereby
sell, transfer, assign, set over and otherwise convey to the
Purchaser, without
recourse, all the right, title and interest of the Seller in and to
the Mortgage
Loans identified on the Mortgage Loan Schedule as of such date,
subject to the
rights of the holders of any related Companion Loans as specified
in the related
Co-Lender Agreement, as applicable, and the Purchaser hereby
assumes such
Mortgage Loans, together with the rights and obligations related to
such
Mortgage Loans as specified in the related Co-Lender Agreement. The
Mortgage
Loan Schedule, as it may be amended, shall conform to the
requirements set forth
in this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall, subject to the rights
of
the holders of any related Companion Loans, as applicable, be
entitled to
receive all scheduled payments of principal and interest due after
the Cut-off
Date, and all other recoveries of principal and interest collected
after the
Cut-off Date (other than in respect of principal and interest on
the Mortgage
Loans due on or before the Cut-off Date). All scheduled payments of
principal
and interest due on or before the Cut-off Date for each Mortgage
Loan, but
collected after such date, shall, subject to the rights of the
holders of any
related Companion Loans, as applicable, belong to, and be promptly
remitted to,
the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf
of
the initial Purchaser, deliver to and deposit, or cause to be
delivered and
deposited, with the Trustee a Mortgage File for each Mortgage Loan
in accordance
with the terms of, and conforming to the requirements set forth in,
the Pooling
and Servicing Agreement; provided that, with respect to any
Non-Serviced Trust
Loan, the preceding delivery requirements will be satisfied by
delivery of the
original Mortgage Note (and all intervening endorsements) related
to such
Non-Serviced Trust Loan and a copy of the "mortgage file" delivered
under the
applicable Lead PSA. If the Seller cannot deliver or cause to be
delivered the
documents and/or instruments referred to in clauses (a)(ii),
(a)(iii), (a)(vi)
(if recorded) and (a)(viii) of the definition of "Mortgage File"
solely because
of delay caused by the public recording office where such document
or instrument
has been delivered for recordation, the Seller shall deliver to the
Trustee a
copy of the original, certified by the Seller to be a true and
complete copy of
the original thereof submitted for recording. Concurrently with
such delivery,
the Seller shall deliver, or cause to be delivered, to the Master
Servicer and
the Special Servicer copies of the Mortgage Note, Mortgage(s) and
any reserve
and cash management agreements with respect to each Mortgage Loan
for which a
Mortgage File is required to be delivered to the Trustee.
(d) For each Mortgage Loan for which a Mortgage File is required
to
be delivered to the Trustee, the Seller shall bear the
out-of-pocket costs and
expenses related to recording or filing, as the case may be, in the
appropriate
public office for real property records or Uniform Commercial Code
financing
statements, as appropriate, each related assignment of Mortgage and
assignment
of Assignment of Leases, in favor of the Trustee referred to in
clause (a)(iv)
of the definition of "Mortgage File" and each related UCC-2 and
UCC-3 assignment
referred to in clause (a)(viii) of the definition of "Mortgage
File." If any
such document or instrument is lost or returned unrecorded or
unfiled, as the
case may be, because of a defect therein, then the Seller shall
prepare a
substitute therefor or cure such defect or cause such to be done,
as the case
may be, and the Seller shall deliver such substitute or corrected
document or
instrument to the Trustee (or, if the Mortgage Loan is then no
longer subject to
the Pooling and Servicing Agreement, to the then holder of such
Mortgage Loan).
(e) The Seller shall deliver, or cause to be delivered, to the
Master Servicer within 10 business days after the Closing Date, all
documents
and records that (i) relate to the servicing and administration of
the Serviced
Loans, (ii) are reasonably necessary for the ongoing administration
and/or
servicing of the Serviced Loans (including any asset summaries
related to the
Mortgage Loans that were delivered to the Rating Agencies in
connection with the
rating of the Certificates) and (iii) are in possession or control
of the
Mortgage Loan Seller, together with (x) all unapplied Escrow
Payments and
Reserve Funds in the possession or under control of the Seller that
relate to
the Serviced Loans and (y) a statement indicating which Escrow
Payments and
Reserve Funds are allocable to such Serviced Loans), provided that
the Seller
shall not be required to deliver any draft documents, privileged or
other
internal communications, credit underwriting, due diligence
analyses or data or
internal worksheets, memoranda, communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action
inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for
actions that
are the express responsibility of another party hereunder or under
the Pooling
and Servicing Agreement, and further except for actions that the
Seller is
expressly permitted to complete subsequent to the Closing Date, the
Seller
shall, on or before the Closing Date, take all actions required
under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller
to the
Purchaser.
(g) The Seller shall provide, or cause to be provided, to the
Master
Servicer the initial data with respect to each Mortgage Loan for
the CMSA
Financial File and the CMSA Loan Periodic Update File that are
required to be
prepared by the Master Servicer pursuant to the Pooling and
Servicing Agreement.
(h) The Seller shall provide the Master Servicer with the
Supplemental Servicer Schedule.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing
and
in good
standing under the laws of the State of [_____], is duly
qualified
as a
foreign organization in good standing in all jurisdictions to
the
extent
such qualification is necessary to hold and sell the Mortgage
Loans
or
otherwise comply with its obligations under this Agreement,
except
where the
failure to be so qualified would not have a material adverse
effect on
its ability to perform its obligations hereunder, and possesses
all
requisite authority and power to carry on its business as
currently
conducted
by it and to execute, deliver and comply with its obligations
under the
terms of this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed
and
delivered by the Seller and, assuming due authorization, execution
and
delivery
hereof by the Purchaser, constitutes a legal, valid and binding
obligation
of the Seller, enforceable against the Seller in accordance
with its
terms, except as such enforcement may be limited by (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or
other
similar
laws affecting the enforcement of creditors' rights in general,
and (B)
general equity principles (regardless of whether such
enforcement
is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and
the
Seller's performance and compliance with the terms of this
Agreement
will not
(A) violate the Seller's organizational documents, (B) violate
any law or
regulation or any administrative decree or order to which the
Seller is
subject or (C) constitute a default (or an event which, with
notice or
lapse of time, or both, would constitute a default) under, or
result in
the breach of, any material contract, agreement or other
instrument
to which the Seller is a party or by which the Seller is bound.
(iv) The Seller is not in default with respect to any order or
decree of
any court or any order, regulation or demand of any federal,
state,
municipal or other governmental agency or body, which default
might
have
consequences that would, in the Seller's reasonable and good
faith
judgment, materially
and adversely affect the condition (financial or
other) or
operations of the Seller or its properties or have consequences
that
would, in the Seller's reasonable and good faith judgment,
materially
and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument
or subject to any organizational document or any other
corporate
restriction or any judgment, order, writ, injunction, decree,
law or
regulation that would, in the Seller's reasonable and good
faith
judgment,
materially and adversely affect the ability of the Seller to
perform
its obligations under this Agreement or that requires the
consent
of any
third person to the execution and delivery of this Agreement by
the
Seller or
the performance by the Seller of its obligations under this
Agreement.
(vi) Except for the recordation and/or filing of assignments
and
other
transfer documents with respect to the Mortgage Loans, as
contemplated by Section 2(d), no consent, approval, authorization
or order
of,
registration or filing with, or notice to, any court or
governmental
agency or
body, is required for the execution, delivery and performance
by
the Seller
of or compliance by the Seller with this Agreement or the
consummation of the transactions contemplated by this Agreement;
and no
bulk sale
law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's
knowledge,
threatened against the Seller that would, in the Seller's good
faith and
reasonable judgment, prohibit its entering into this Agreement
or
materially and adversely affect the performance by the Seller of
its
obligations under this Agreement.
(viii) The Seller intends to treat the transfer of the Mortgage
Loans to
the Purchaser as a sale for accounting and tax purposes. In
connection
with the foregoing, the Seller shall cause all of its records
to reflect
such transfer as a sale (as opposed to a secured loan). The
consideration received by the Seller upon the sale of the Mortgage
Loans
to the
Purchaser will constitute at least reasonably equivalent value
and
fair
consideration for the Mortgage Loans. The Seller will be solvent
at
all
relevant times prior to, and will not be rendered insolvent by,
the
sale of
the Mortgage Loans to the Purchaser. The Seller is not selling
the
Mortgage
Loans to the Purchaser with any intent to hinder, delay or
defraud
any of the creditors of the Seller. After giving effect to its
transfer
of the Mortgage Loans to the Purchaser, as provided herein, the
value of
the Seller's assets, either taken at their present fair
saleable
value or
at fair valuation, will exceed the amount of the Seller's debts
and
obligations, including contingent and unliquidated debts and
obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and
conduct
its
business. The Mortgage Loans do not constitute all or
substantially
all of the
assets of the Seller. The Seller does not intend to, and does
not
believe that it will, incur debts or obligations beyond its ability
to
pay such
debts and obligations as they mature.
(ix) No proceedings looking toward merger, liquidation,
dissolution
or
bankruptcy of the Seller are pending or contemplated.
(b) The Seller hereby makes, for the benefit of the Purchaser,
with
respect to each Mortgage Loan, as of the Closing Date or as of such
other date
expressly set forth therein, each of the representations and
warranties set
forth on Exhibit B attached hereto, except as otherwise set forth
on Exhibit C
attached hereto.
SECTION 4. Representations and Warranties of the Purchaser. In
order
to induce the Seller to enter into this Agreement, the Purchaser
hereby
represents and warrants for the benefit of the Seller as of the
date hereof
that:
(i) The Purchaser is a corporation duly organized, validly
existing
and in
good standing under the laws of the State of Delaware. The
Purchaser
has the full corporate power and authority and legal right to
acquire
the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to
the Trustee.
(ii) This Agreement has been duly and validly authorized,
executed
and
delivered by the Purchaser and, assuming due authorization,
execution
and
delivery hereof by the Seller, constitutes a legal, valid and
binding
obligation
of the Purchaser, enforceable against the Purchaser in
accordance
with its terms, except as such enforcement may be limited by
(A)
bankruptcy, insolvency, reorganization, receivership, moratorium
or
other
similar laws affecting the enforcement of creditors' rights in
general,
and (B) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser
and the
Purchaser's performance and compliance with the terms of this
Agreement
will not (A) violate the Purchaser's organizational documents,
(B)
violate any law or regulation or any administrative decree or order
to
which the
Purchaser is subject or (C) constitute a default (or an event
which,
with notice or lapse of time, or both, would constitute a
default)
under, or
result in the breach of, any material contract, agreement or
other
instrument to which the Purchaser is a party or by which the
Purchaser
is bound.
(iv) Except as may be required under federal or state
securities
laws (and
which will be obtained on a timely basis), no consent,
approval,
authorization or order of, registration or filing with, or notice
to, any
governmental authority or court, is required for the execution,
delivery
and
performance by the Purchaser of or compliance by the Purchaser
with
this
Agreement, or the consummation by the Purchaser of any
transaction
described
in this Agreement.
(v) Under GAAP and for federal income tax purposes, the
Purchaser
will
report the transfer of the Mortgage Loans by the Seller to the
Purchaser,
as provided herein, as a sale of the Mortgage Loans to the
Purchaser
in exchange for the consideration specified in Section 1
hereof.
SECTION 5. Notice of Breach; Cure; Repurchase; Covenant of the
Seller.
(a) If the Seller discovers or receives notice in accordance
with
Section 10 hereof of a Document Defect or a breach of any of its
representations
and warranties made pursuant to Section 3(b) hereof (each such
breach, a
"Breach") relating to any Mortgage Loan, and such Document Defect
or Breach
materially and adversely affects the value of the Mortgage Loan or
the related
Mortgaged Property or the interests of the Purchaser in such
Mortgage Loan (in
which case any such Document Defect or Breach would be a "Material
Document
Defect" or a "Material Breach," as the case may be), then (subject
to Section
5(b)) the Seller shall, within 90 days after its discovery or
receipt of such
notice of such Material Document Defect or Material Breach (or, in
the case of a
Material Document Defect or Material Breach that affects whether a
Mortgage Loan
was, as of the Closing Date, is or will continue to be a "qualified
mortgage"
within the meaning of the REMIC Provisions (a "Qualified
Mortgage"), not later
than 90 days after any party discovering such Material Document
Defect or
Material Breach) (such 90-day period, in either case, the "Initial
Resolution
Period"), (i) cure such Material Document Defect or Material
Breach, as the case
may be, in all material respects, which cure shall include payment
of any
Additional Trust Fund Expenses associated therewith, or (ii)
repurchase the
affected Mortgage Loan (or the related Mortgaged Property, or in
the case of any
Mortgaged Property related to a Loan Group, to the extent of the
Seller's
interest therein) from, and in accordance with the directions of,
the Purchaser
or its designee, at a price equal to the Purchase Price; provided
that if (A)
any such Material Breach or Material Document Defect, as the case
may be, does
not affect whether the Mortgage Loan was, as of the Closing Date,
is or will
continue to be a Qualified Mortgage, (B) such Material Breach or
Material
Document Defect, as the case may be, is capable of being cured but
not within
the applicable Initial Resolution Period, (C) the Seller has
commenced and is
diligently proceeding with the cure of such Material Breach or
Material Document
Defect, as the case may be, within the applicable Initial
Resolution Period, (D)
the Seller shall have delivered to the Purchaser a certification
executed on
behalf of the Seller by an officer thereof confirming that such
Material Breach
or Material Document Defect, as the case may be, is not capable of
being cured
within the applicable Initial Resolution Period, setting forth what
actions the
Seller is pursuing in connection with the cure thereof and stating
that the
Seller anticipates that such Material Breach or Material Document
Defect, as the
case may be, will be cured within an additional period not to
exceed 90 days
beyond the end of the applicable Initial Resolution Period, and (E)
the affected
Mortgage Loan is not then a Specially Serviced Mortgage Loan, then
the Seller
shall have such additional 90-day period (the "Resolution Extension
Period") to
complete such cure or, failing such, to repurchase the affected
Mortgage Loan
(or the related Mortgaged Property); and provided, further, that,
if any such
Material Document Defect is still not cured after the initial
90-day period and
any such additional 90-day period solely due to the failure of the
Seller to
have received the recorded document, then the Seller shall be
entitled to
continue to defer its cure and repurchase obligations in respect of
such
Document Defect so long as the Seller certifies to the Purchaser
every 30 days
thereafter that the Document Defect is still in effect solely
because of its
failure to have received the recorded document and that the Seller
is diligently
pursuing the cure of such defect (specifying the actions being
taken), except
that no such deferral of cure or repurchase may continue beyond the
second
anniversary of the Closing Date. Any such repurchase of a Mortgage
Loan shall be
on a whole loan, servicing released basis. The Seller shall have no
obligation
to monitor the Mortgage Loans regarding the existence of a Breach
or Document
Defect, but if the Seller discovers a Material Breach or Material
Document
Defect with respect to a Mortgage Loan, it will notify the
Purchaser. Provided
that the Master Servicer has notice of such Material Document
Defect or Material
Breach, the Master Servicer shall notify the Seller if the related
Mortgage Loan
becomes a Specially Serviced Mortgage Loan during any applicable
cure periods.
Any of the following document defects shall be conclusively
presumed to be a
Material Document Defect: (a) the absence from the Mortgage File of
the original
signed Mortgage Note, together with the endorsements referred to in
clause
(a)(i) of the definition of "Mortgage File," unless the Mortgage
File contains a
signed lost note affidavit and indemnity with respect to the
missing Mortgage
Note and any missing endorsement that appears to be regular on its
face, (b)
other than with respect to a Non-Serviced Trust Loan, the absence
from the
Mortgage File of the original executed Mortgage or a copy of such
Mortgage
certified by the local authority with which the Mortgage was
recorded, in each
case with evidence of recording thereon, that appears to be regular
on its face,
unless there is included in the Mortgage File a copy of the
executed Mortgage
and a certificate stating that the original signed Mortgage was
sent for
recordation, (c) other than with respect to a Non-Serviced Trust
Loan, the
absence from the Mortgage File of the original or a copy of the
lender's title
insurance policy, together with all endorsements or riders (or
copies thereof)
that were issued with or subsequent to the issuance of such policy,
or marked up
insurance binder or title commitment which is marked as a binding
commitment and
countersigned by title company, insuring the priority of the
Mortgage as a first
lien on the Mortgaged Property, (d) other than with respect to a
Non-Serviced
Trust Loan, the absence from the Mortgage File of any intervening
assignments
required to create a complete chain of assignment to the Trustee on
behalf of
the Trust and a certificate stating that the original intervening
assignments
were sent for recordation, unless there is included in the Mortgage
File a
certified copy of the intervening assignment or (e) other than with
respect to a
Non-Serviced Trust Loan, the absence from the Servicing File of any
original
letter of credit.
(b) If (x) any Mortgage Loan is subject to a Material Breach or
Material Document Defect and would otherwise be required to be
repurchased as
contemplated by Section 5(a), (y) such Mortgage Loan is a
Cross-Collateralized
Mortgage Loan or is secured by a portfolio of Mortgaged Properties,
and (z) the
applicable Material Breach of Material Document Defect does not
constitute a
Material Breach or Material Document Defect, as the case may be, as
to any
related Cross-Collateralized Mortgage Loan or applies to only
specific Mortgaged
Properties in such portfolio, the Purchaser or its designee shall
use reasonable
efforts, subject to the terms of the related Mortgage Loans, to
prepare and, to
the extent necessary and appropriate, have executed by the related
Mortgagor and
record, such documentation as may be necessary to (i) in the case
of a
Cross-Collateralized Group, terminate the cross-collateralization
between the
Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased, on
the one hand, and the remaining Mortgage Loans therein, on the
other hand, such
that those two groups of Mortgage Loans are each secured only by
the Mortgaged
Properties identified in the Mortgage Loan Schedule as directly
corresponding
thereto or (ii) in the case of Mortgage Loan secured by a portfolio
of Mortgaged
Properties, release the affected Mortgaged Properties from the
cross-collateralization of the Mortgage Loan; provided that, if
such
Cross-Collateralized Group is still subject to the Pooling and
Servicing
Agreement, then no such termination shall be effected unless and
until (i) the
Purchaser or its designee has received from the Seller (A) an
Opinion of Counsel
to the effect that such termination or release will not cause an
Adverse REMIC
Event to occur with respect to any REMIC Pool or an Adverse Grantor
Trust Event
to occur with respect to the Grantor Trust and (B) a written
confirmation from
each Rating Agency that such termination or release will not cause
an Adverse
Rating Event to occur with respect to any Class of Certificates,
(ii) the debt
service coverage ratio for the four preceding calendar quarters for
all of the
Mortgage Loans relating to such Cross-Collateralized Group
remaining is not less
than 0.05x below the debt service coverage ratio for all Mortgage
Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such
Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the
affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged
Property) set
forth in the Prospectus Supplement, (iii) the loan-to-value ratio
for all of the
Mortgage Loans of such Cross-Collateralized Group remaining is not
greater than
5% more than the loan-to-value ratio for all Mortgage Loans of
such
Cross-Collateralized Group or Mortgaged Properties relating to such
Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the
affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged
Property) set
forth in the Prospectus Supplement, and (iv) the Directing Holder
(if one is
acting) has consented (which consent shall not be unreasonably
withheld and
shall be deemed to have been given if no written objection is
received by the
Seller within 10 Business Days of the Directing Holder's receipt of
a written
request for such consent); and provided, further, that the Seller
may, at its
option, purchase the entire Cross-Collateralized Group or Mortgage
Loan in lieu
of terminating the cross-collateralization or a release of the
affected
Mortgaged Properties from the cross-collateralization of the
Mortgage Loan. In
the event that the cross-collateralization of any
Cross-Collateralized Group is
terminated or any Mortgaged Property related to a Mortgage Loan
secured by a
portfolio of Mortgaged Properties is released pursuant to this
paragraph, the
Seller may elect either to repurchase only the affected
Cross-Collateralized
Mortgage Loan or Mortgaged Properties as to which the Material
Breach or
Material Document Defect exists or to repurchase the aggregate
Cross-Collateralized Mortgage Loans or Mortgaged Properties. All
costs and
expenses incurred by the Purchaser or its designee pursuant to this
paragraph
shall be included in the calculation of Purchase Price for the
Mortgage Loan(s)
to be repurchased. If the cross-collateralization of any
Cross-Collateralized
Group is not or cannot be terminated as contemplated by this
paragraph, then,
for purposes of (i) determining whether any Breach or Document
Defect, as the
case may be, is a Material Breach or Material Document Defect, and
(ii) the
application of remedies, such Cross-Collateralized Group shall be
treated as a
single Mortgage Loan.
It shall be a condition to any repurchase of a Mortgage Loan by
the
Seller pursuant to Section 5(a) that (i) the Purchaser shall have
executed and
delivered such instruments of endorsement, transfer or assignment
then presented
to it by the Seller, in each case without recourse, as shall be
necessary to
vest in the Seller the legal and beneficial ownership of such
Mortgage Loan
(including any property acquired in respect thereof or proceeds of
any insurance
policy with respect thereto), to the extent that such ownership
interest was
transferred to the Purchaser hereunder; (ii) the Purchaser shall
deliver to the
Seller all portions of the Mortgage File and other documents
pertaining to such
Mortgage Loan; and (iii) the Purchaser shall release to the Seller
any escrow
payments or reserve funds held by it, or on its behalf, in respect
of such
Mortgage Loan. If any Mortgage Loan is to be repurchased as
contemplated by
Section 5(a), the Seller shall amend the Mortgage Loan Schedule to
reflect the
removal of such Mortgage Loan and shall forward such amended
schedule to the
Purchaser.
(c) The Seller hereby acknowledges and agrees that any
modification
of the Mortgage Loan pursuant to a workout, foreclosure, sale or
other
liquidation pursuant to, and in accordance with, the Pooling and
Servicing
Agreement shall not constitute a defense to any repurchase claim
disputed by the
Seller nor shall such modification change the Purchase Price due
from the Seller
for any repurchase claim. In the event of any such modification,
the Seller
hereby agrees to repurchase the Mortgage Loan as modified, if the
Seller is
required to or elects to repurchase such Mortgage Loan in
accordance with the
terms of this Section 5. Any sale of the related Mortgage Loan, or
foreclosure
upon such Mortgage Loan and sale of the successor REO Property,
shall be without
(i) recourse of any kind (either expressed or implied) by such
Person against
the Seller and (ii) representation or warranty of any kind (either
expressed or
implied) by the Seller to or for the benefit of such Person.
(d) The fact that a Material Document Defect or Material Breach
is
not discovered until after foreclosure (but in all instances prior
to the sale
of the successor REO Property or Mortgage Loan) shall not prejudice
any claim
against the Seller for repurchase of the REO Mortgage Loan or
successor REO
Property, which claim shall be made in accordance with this Section
5. If a
court of competent jurisdiction issues a final order that the
Seller is or was
obligated to repurchase the related Mortgage Loan or the successor
REO Loan or
the Seller otherwise accepts liability, then, after the expiration
of any
applicable appeal period, but in no event later than the
termination of the
Trust pursuant to Section 9.01 of the Pooling and Servicing
Agreement, the
Seller will be obligated to pay to the Trust the difference between
(i) any
Liquidation Proceeds received upon such liquidation net of
Liquidation Expenses
and (ii) the Purchase Price; provided that the prevailing party in
such action
shall be entitled to recover from the other party all costs, fees
and expenses
(including reasonable attorneys fees) related thereto.
(e) [Reserved].
(f) It is understood and agreed that the obligations of the
Seller
set forth in Section 5(a) to cure any Material Breach or Material
Document
Defect or to repurchase such Mortgage Loan constitute the sole
remedies
available to the Purchaser with respect to any Breach or Document
Defect.
(g) Notwithstanding the foregoing, if there exists a Breach of
that
portion of the representation or warranty on the part of the Seller
set forth
in, or made pursuant to, paragraph 23 or paragraph 43 of Exhibit B
to this
Agreement, specifically relating to whether or not the Mortgage
Loan documents
or any particular Mortgage Loan document for any Mortgage Loan
requires the
related Mortgagor to bear the Rating Agency fees reflected in
paragraph 23 or
reasonable costs and expenses associated with a defeasance, as set
forth in
paragraph 43 (any such fees, costs or expenses, referred to herein
as "Covered
Costs"), then the Purchaser or its designee will direct the Seller
in writing to
wire transfer to the Custodial Account, within 90 days of receipt
of such
direction, the amount of any such reasonable costs and expenses
incurred by the
Trust that (i) otherwise would have been required to be paid by the
Mortgagor if
such representation or warranty with respect to such costs and
expenses had in
fact been true, as set forth in the related representation or
warranty, (ii)
have not been paid by the Mortgagor, (iii) are the basis of such
Breach and (iv)
constitute "Covered Costs." Upon payment of such costs, the Seller
shall be
deemed to have cured such Breach in all respects. Provided that
such payment is
made, this paragraph describes the sole remedy available to the
Purchaser
regarding any such Breach, regardless of whether it constitutes a
Material
Breach, and the Seller shall not be obligated to otherwise cure
such Breach or
repurchase the affected Mortgage Loan under any circumstances.
(h) For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the
Purchaser (or
with respect to any Serviced Companion Loan that is deposited into
another
securitization, the depositor of such securitization) and the
Trustee with any
Additional Form 10-D Disclosure and any Additional Form 10-K
Disclosure set
forth next the Purchaser's name on Exhibit P and Exhibit Q of the
Pooling and
Servicing Agreement within the time periods set forth in the
Pooling and
Servicing Agreement.
SECTION 6. Closing. The closing of the sale of the Mortgage
Loans
(the "Closing") shall be held at the offices of Cadwalader,
Wickersham & Taft
LLP, One World Financial Center, New York, NY 10281 at 10:00 A.M.,
New York City
time, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this
Agreement, and all
of the representations and warranties of the Purchaser set forth in
Section 4 of
this Agreement, shall be true and correct in all material respects
as of the
Closing Date;
(b) Insofar as it affects the obligations of the Seller
hereunder,
the Pooling and Servicing Agreement shall be in a form mutually
acceptable to
the Purchaser and the Seller;
(c) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to
the
Purchaser, shall be duly executed and delivered by all signatories
as required
pursuant to the respective terms thereof;
(d
