Common use of Mortgage Files Clause in Contracts

Mortgage Files. (a) On or prior to the fourth (4th) Business Day prior to the related Purchase Date the Seller shall deliver to the Custodian (as agent on behalf of the Purchaser and the Agent) each of the documents and instruments below (the “Mortgage File”) with respect to each Mortgage Loan to be transferred by the Seller to the Purchaser on such date: (i) the related original Mortgage Note, including any riders thereto, endorsed by manual or facsimile signature by the Seller in blank in the following form: “Pay to the order of ________________ without recourse”, with all intervening endorsements that show a complete and unbroken chain of title from the originator of such Mortgage Loan to the Seller (each such endorsement being sufficient to transfer all right, title and interest of the party so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note), or, if the related original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit stating that such original Mortgage Note was lost or destroyed and not replaced, together with a copy of such Mortgage Note. (ii) the related original recorded Mortgage, with evidence of recording indicated thereon (subject to the provisions of Section 2.05(b) below relating to items in the process of being recorded), or (if the original Mortgage has been lost or retained by a public recording office) a copy of such Mortgage certified by the public recording office in which such Mortgage has been recorded, and evidence that all related mortgage tax (if any) has been paid. (iii) A duly executed Assignment of Mortgage from the Purchaser, in blank and recordable form, to be held by the Custodian for the benefit of the Agent, on behalf of the Secured Parties. (iv) all interim executed recorded assignments of such Mortgage to the Purchaser, in each case with evidence of recording indicated thereon (subject to the provisions of Section 2.05(b) below relating to items in the process of being recorded) or (if the original assignment has been lost or retained by a public recording office) a copy of such assignment certified by the public recording office in which such assignment has been recorded, and evidence that all related mortgage tax (if any) has been paid. (v) the original or copies of each executed assumption, modification, written assurance or substitution agreement relating thereto, if any. (vi) with respect to each Mortgage Note, the original executed power of attorney (if any) used in connection with the closing thereof, with evidence of recording thereon. (vii) the original or duplicate original lender’s Title Insurance Policy relating thereto, or a printout of the electronic equivalent and all riders thereto (in the event such original Title Insurance Policy has not been received on or prior to the related Purchase Date by the Seller from the related insurer, such original or duplicate original lender’s Title Insurance Policy and all riders thereto shall be delivered by the Seller to the Custodian within 90 days of the related Purchase Date). (viii) in the event the related Title Insurance Policy has not yet been issued on or prior to the related Purchase Date, then the Seller shall deliver to the Custodian (as agent on behalf of the Purchaser and the Agent) on or before the related Purchase Date an escrow letter or a marked up title insurance commitment (on which the required premium has been paid) which evidences that such Title Insurance Policy will be issued. (ix) the original executed guaranty, if any, of the related Mortgagor’s obligations under such Mortgage Loan. (x) [Reserved] (xi) with respect to each Mortgage Loan pursuant to which the related Mortgagor and the Seller shall (in additional to entering into the related Mortgage Note) have entered into a loan agreement or substantively equivalent agreement, document or instrument, or any intercreditor agreement, subordination agreement, security agreement, participation agreement, control agreement, servicing agreement, chattel mortgage guarantee or other document, agreement or instrument, the executed original, or if not available a copy of such loan agreement or other agreement, document or instrument and all assignments, modifications and amendments thereof and the environmental assessment (if any) and the original executed environmental indemnity agreement or similar guaranty or indemnity, whether stand-alone or organized into the applicable loan documents (if any), relating to such Mortgage Loan or the related Mortgaged Property. (xii) evidence that the related Mortgaged Property constitutes one (1) or more separate tax lots, which evidence shall be reasonably satisfactory in form and substance to the Purchaser and the Agent and may be satisfied through the related Title Insurance Policy. (xiii) any documents and instruments evidencing, guaranteeing, insuring or otherwise constituting or modifying or otherwise affecting such Mortgage Loan, or otherwise executed or delivered in connection with such Mortgage Loan. (xiv) if the related assignment of leases is separate from the related Mortgage, the original of such executed assignment of leases with evidence of recording thereon (subject to the provisions of Section 2.05(b) below relating to items in the process of being recorded) or (if the original assignment of leases has been lost or retained by a public recording office) a copy of such assignment of leases certified by the public recording office in which such assignment has been recorded and evidence that all related mortgage tax (if any) has been paid. (xv) either (A) the original of each executed letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned and delivered to the Purchaser with a copy to be held by the Agent, and applied, drawn, reduced or released in accordance with documents evidencing or securing such Mortgage Loan, or (B) the original of each executed letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be held by the Custodian as agent of the Purchaser and the Agent, with a copy to be held by the Agent, and applied, drawn, reduced or released in accordance with documents evidencing or securing such Mortgage Loan (it being understood that each of Seller and the Purchaser has severally agreed (1) that such letter of credit has been sold by the Seller to the Purchaser hereunder and contemporaneously pledged by the Purchaser to the Agent, (2) to notify in writing, on or before the related Purchase Date, the bank issuing the letter of credit that such letter of credit has been sold by the Seller to the Purchaser hereunder and contemporaneously pledged by the Purchaser to the Agent, (3) to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within ninety (90) days) following the related Purchase Date, an acknowledgement thereof by such bank (with a copy of such acknowledgement to be sent to the Agent), and (4) to indemnify the Agent and the Lender for any losses, liabilities, charges, costs, fees or other expenses accruing from the failure of Seller or the Purchaser, as the case may be, to assign such letter of credit hereunder). (xvi) if any, opinions of counsel executed and delivered in connection with the related Mortgage Loan. (xvii) copies of all tenant leases affecting the related Mortgaged Property, if any. (xviii) a current rent roll, if any, relating to the related Mortgaged Property. (xix) a copy of the Mortgage Appraisal relating to the related Mortgaged Property. (b) In the event that the Seller or the Purchaser cannot deliver (A) the original recorded Mortgage, (B) all interim recorded assignments or (C) all assignment of leases separate from the related Mortgage, satisfying the requirements of clauses (ii), (iv) or (xiv) above, respectively, on the related Purchase Date because such document or documents have not been returned from the applicable public recording office, then the Seller and the Purchaser shall promptly deliver to the Custodian (as agent for the Purchaser and the Agent) the original Mortgage or the interim assignment, as the case may be, with evidence of recording indicated thereon promptly following the Seller’s or the Purchaser’s receipt thereof from the public recording office, certified, if appropriate, by the relevant recording office; provided that, if such original Mortgage, assignment(s) and/or assignment of leases cannot be delivered with evidence of recording thereon on or prior to the 90th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage, assignment(s) and/or assignment of leases has been delivered for recordation or because such original Mortgage, assignment(s) and/or assignment of leases has been lost, the Seller shall deliver or cause to be delivered to the Custodian a true and correct copy of such Mortgage, assignment(s) and/or assignment of leases together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the Seller stating that such original Mortgage, assignment(s) and/or assignment of leases has been sent to the appropriate public recording official for recordation or to a closing agent with instructions to deliver such original Mortgage assignment(s) of leases to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage, assignment(s) and/or assignment(s) of leases that has been lost after recordation, a copy of such recorded Mortgage, assignment(s) and/or assignment(s) of leases, together with a certification by the appropriate county recording office where such Mortgage, assignment(s) and/or assignment(s) of leases is recorded, that such copy(s) is a true and complete copy of the original recorded Mortgage, assignment(s) and/or assignment(s) of leases. (c) If the Seller cannot deliver, or cause to be delivered, any of the documents and/or instruments required pursuant to Section 2.05(a) above (other than pursuant to clause (ii), (iv) or (xiv) thereof as a result of being in the recording process or having been lost or retained by a public recording office) to be delivered as originals, then the Seller shall deliver a photocopy thereof and an Officer’s Certificate of the Seller certifying that such copy represents a true and correct copy of the original. If the Seller has a legitimate and reasonable opportunity to obtain the original documents in question, if the document in question exists in original form, then the Seller shall (1) use reasonable efforts to obtain and deliver the original document within sixty (60) days after the related Purchase Date (or such longer period after the related Purchase Date as the Purchaser (following consultation with the Agent) may consent to, which consent shall not be unreasonably withheld so long as the Seller in good faith is attempting to obtain the original) and (2) after the expiration of such reasonable efforts period, deliver to the Purchaser a written certification that states that, despite the Seller’s best efforts, the Seller was unable to obtain such original document. (d) The Seller hereby represents and warrants, as of each Purchase Date, that: (i) the Custodian is in possession of all Mortgage Files with respect to the Mortgage Loans sold or transferred by it hereunder and under the related Supplemental Conveyance, as the case may be, on such date, and each such Mortgage File contains all documents required to be in such Mortgage File as set forth in Section 2.05(a) (subject only to Sections 2.05(b) and 2.05(c); and (ii) the Seller has made the appropriate entries in its general accounting records as required pursuant to Section 5.01(h)(ii). (e) Each of the Purchaser and the Agent is hereby appointed as the attorney-in-fact of the Seller with the power to prepare, execute and record Assignments of Mortgages and endorsements to Mortgage Notes, and to otherwise act as set forth in herein, in the event that the Seller fails to do so on a timely basis as provided in this Section 2.05.

Mortgage Files. (a) On or prior to the fourth (4th) Business Day prior to the related Purchase Date the Seller shall deliver to the Custodian (as agent on behalf of the Purchaser and the Agent) each of the documents and instruments below (the “Mortgage File”) with respect to each Mortgage Loan to be transferred by the Seller to the Purchaser on such date: (i) the related original Mortgage Note, including any riders thereto, endorsed by manual or facsimile signature by the Seller in blank in the following form: “Pay to the order of ________________ without recourse”, with all intervening endorsements that show a complete and unbroken chain of title from the originator of such Mortgage Loan to the Seller (each such endorsement being sufficient to transfer all right, title and interest of the party so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note), or, if the related original Mortgage Note has been lost or destroyed and not replaced, an original lost note affidavit stating that such original Mortgage Note was lost or destroyed and not replaced, together with a copy of such Mortgage Note. (ii) the related original recorded Mortgage, with evidence of recording indicated thereon (subject to the provisions of Section 2.05(b) below relating to items in the process of being recorded), or (if the original Mortgage has been lost or retained by a public recording office) a copy of such Mortgage certified by the public recording office in which such Mortgage has been recorded, and evidence that all related mortgage tax (if any) has been paid. (iii) A duly executed Assignment of Mortgage from the Purchaser, in blank and recordable form, to be held by the Custodian for the benefit of the Agent, on behalf of the Secured Parties. (iv) all interim executed recorded assignments of such Mortgage to the Purchaser, in each case with evidence of recording indicated thereon (subject to the provisions of Section 2.05(b) below relating to items in the process of being recorded) or (if the original assignment has been lost or retained by a public recording office) a copy of such assignment certified by the public recording office in which such assignment has been recorded, and evidence that all related mortgage tax (if any) has been paid. (v) the original or copies of each executed assumption, modification, written assurance or substitution agreement relating thereto, if any. (vi) with respect to each Mortgage Note, the original executed power of attorney (if any) used in connection with the closing thereof, with evidence of recording thereon. (vii) the original or duplicate original lender’s Title Insurance Policy relating thereto, or a printout of the electronic equivalent and all riders thereto (in the event such original Title Insurance Policy has not been received on or prior to the related Purchase Date by the Seller from the related insurer, such original or duplicate original lender’s Title Insurance Policy and all riders thereto shall be delivered by the Seller to the Custodian within 90 days of the related Purchase Date). (viii) in the event the related Title Insurance Policy has not yet been issued on or prior to the related Purchase Date, then the Seller shall deliver to the Custodian (as agent on behalf of the Purchaser and the Agent) on or before the related Purchase Date an escrow letter or a marked up title insurance commitment (on which the required premium has been paid) which evidences that such Title Insurance Policy will be issued. (ix) the original executed guaranty, if any, of the related Mortgagor’s obligations under such Mortgage Loan. (x) [Reserved] (xi) with respect to each Mortgage Loan pursuant to which the related Mortgagor and the Seller shall (in additional to entering into the related Mortgage Note) have entered into a loan agreement or substantively equivalent agreement, document or instrument, or any intercreditor agreement, subordination agreement, security agreement, participation agreement, control agreement, servicing agreement, chattel mortgage guarantee or other document, agreement or instrument, the executed original, or if not available a copy of such loan agreement or other agreement, document or instrument and all assignments, modifications and amendments thereof and the environmental assessment (if any) and the original executed environmental indemnity agreement or similar guaranty or indemnity, whether stand-alone or organized into the applicable loan documents (if any), relating to such Mortgage Loan or the related Mortgaged Property. (xii) evidence that the related Mortgaged Property constitutes one (1) or more separate tax lots, which evidence shall be reasonably satisfactory in form and substance to the Purchaser and the Agent and may be satisfied through the related Title Insurance Policy. (xiii) any documents and instruments evidencing, guaranteeing, insuring or otherwise constituting or modifying or otherwise affecting such Mortgage Loan, or otherwise executed or delivered in connection with such Mortgage Loan. (xiv) if the related assignment of leases is separate from the related Mortgage, the original of such executed assignment of leases with evidence of recording thereon (subject to the provisions of Section 2.05(b) below relating to items in the process of being recorded) or (if the original assignment of leases has been lost or retained by a public recording office) a copy of such assignment of leases certified by the public recording office in which such assignment has been recorded and evidence that all related mortgage tax (if any) has been paid. (xv) either (A) the original of each executed letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be assigned and delivered to the Purchaser with a copy to be held by the Agent, and applied, drawn, reduced or released in accordance with documents evidencing or securing such Mortgage Loan, or (B) the original of each executed letter of credit, if any, constituting additional collateral for such Mortgage Loan, which shall be held by the Custodian as agent of the Purchaser and the Agent, with a copy to be held by the Agent, and applied, drawn, reduced or released in accordance with documents evidencing or securing such Mortgage Loan (it being understood that each of Seller and the Purchaser has severally agreed (1) that such letter of credit has been sold by the Seller to the Purchaser hereunder and contemporaneously pledged by the Purchaser to the Agent, (2) to notify in writing, on or before the related Purchase Date, the bank issuing the letter of credit that such letter of credit has been sold by the Seller to the Purchaser hereunder and contemporaneously pledged by the Purchaser to the Agent, (3) to use reasonable efforts to obtain within thirty (30) days (but in any event to obtain within ninety (90) days) following the related Purchase Date, an acknowledgement thereof by such bank (with a copy of such acknowledgement to be sent to the Agent), and (4) to indemnify the Agent and the Lender for any losses, liabilities, charges, costs, fees or other expenses accruing from the failure of Seller or the Purchaser, as the case may be, to assign such letter of credit hereunder). (xvi) if any, opinions of counsel executed and delivered in connection with the related Mortgage Loan. (xvii) copies of all tenant leases affecting the related Mortgaged Property, if any. (xviii) a current rent roll, if any, relating to the related Mortgaged Property. (xix) a copy of the Mortgage Appraisal relating to the related Mortgaged Property. (xx) an executed copy of the WesCorp Release. (b) In the event that the Seller or the Purchaser cannot deliver (A) the original recorded Mortgage, (B) all interim recorded assignments or (C) all assignment of leases separate from the related Mortgage, satisfying the requirements of clauses (ii), (iv) or (xiv) above, respectively, on the related Purchase Date because such document or documents have not been returned from the applicable public recording office, then the Seller and the Purchaser shall promptly deliver to the Custodian (as agent for the Purchaser and the Agent) the original Mortgage or the interim assignment, as the case may be, with evidence of recording indicated thereon promptly following the Seller’s or the Purchaser’s receipt thereof from the public recording office, certified, if appropriate, by the relevant recording office; provided that, if such original Mortgage, assignment(s) and/or assignment of leases cannot be delivered with evidence of recording thereon on or prior to the 90th day following the Closing Date because of a delay caused by the public recording office where such original Mortgage, assignment(s) and/or assignment of leases has been delivered for recordation or because such original Mortgage, assignment(s) and/or assignment of leases has been lost, the Seller shall deliver or cause to be delivered to the Custodian a true and correct copy of such Mortgage, assignment(s) and/or assignment of leases together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the Seller stating that such original Mortgage, assignment(s) and/or assignment of leases has been sent to the appropriate public recording official for recordation or to a closing agent with instructions to deliver such original Mortgage assignment(s) of leases to the appropriate public recording official for recordation or (ii) in the case of an original Mortgage, assignment(s) and/or assignment(s) of leases that has been lost after recordation, a copy of such recorded Mortgage, assignment(s) and/or assignment(s) of leases, together with a certification by the appropriate county recording office where such Mortgage, assignment(s) and/or assignment(s) of leases is recorded, that such copy(s) is a true and complete copy of the original recorded Mortgage, assignment(s) and/or assignment(s) of leases. (c) If the Seller cannot deliver, or cause to be delivered, any of the documents and/or instruments required pursuant to Section 2.05(a) above (other than pursuant to clause (ii), (iv) or (xiv) thereof as a result of being in the recording process or having been lost or retained by a public recording office) to be delivered as originals, then the Seller shall deliver a photocopy thereof and an Officer’s Certificate of the Seller certifying that such copy represents a true and correct copy of the original. If the Seller has a legitimate and reasonable opportunity to obtain the original documents in question, if the document in question exists in original form, then the Seller shall (1) use reasonable efforts to obtain and deliver the original document within sixty (60) days after the related Purchase Date (or such longer period after the related Purchase Date as the Purchaser (following consultation with the Agent) may consent to, which consent shall not be unreasonably withheld so long as the Seller in good faith is attempting to obtain the original) and (2) after the expiration of such reasonable efforts period, deliver to the Purchaser a written certification that states that, despite the Seller’s best efforts, the Seller was unable to obtain such original document. (d) The Seller hereby represents and warrants, as of each Purchase Date, that: (i) the Custodian is in possession of all Mortgage Files with respect to the Mortgage Loans sold or transferred by it hereunder and under the related Supplemental Conveyance, as the case may be, on such date, and each such Mortgage File contains all documents required to be in such Mortgage File as set forth in Section 2.05(a) (subject only to Sections 2.05(b) and 2.05(c); and (ii) the Seller has made the appropriate entries in its general accounting records as required pursuant to Section 5.01(h)(ii). (e) Each of the Purchaser and the Agent is hereby appointed as the attorney-in-fact of the Seller with the power to prepare, execute and record Assignments of Mortgages and endorsements to Mortgage Notes, and to otherwise act as set forth in herein, in the event that the Seller fails to do so on a timely basis as provided in this Section 2.05.