EXHIBIT 99.3
ARTESIA MORTGAGE LOAN PURCHASE AGREEMENT
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and effective November 29, 2007, between Artesia Mortgage Capital Corporation,
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 CD 2007-CD5 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 Xxxxx'x Investors Service, Inc., and Standard and Poor's Rating
Services, a division of The McGraw Hill Companies, Inc. (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 November 1, 2007
(the "Pooling and Servicing Agreement"), among the Purchaser, as depositor,
Capmark Finance Inc., as the master servicer with respect to the Mortgage Loans
sold to the trust by Citigroup Global Markets Realty Corp., CWCapital LLC and
SunTrust Bank (other than the Xxxxxxx River Plaza North Mortgage Loan), Wachovia
Bank, National Association, as the master servicer with respect to the Mortgage
Loans sold to the trust by German American Capital Corporation and Artesia
Mortgage Capital Corporation (other than the USFS Industrial Distribution
Portfolio Mortgage Loan, the 00 Xxxxx Xxxxxx Mortgage Loan and the Georgian
Towers Mortgage Loan) (the "Wachovia Master Servicer"), LNR Partners, Inc., as
special servicer with respect to all of the Mortgage Loans other than the
Non-Serviced Mortgage Loans (as defined in the Pooling and Servicing Agreement)
(the "Special Servicer"), Deutsche Bank Trust Company Americas, as certificate
administrator and paying agent (in its capacity as certificate administrator,
the "Certificate Administrator"), and Xxxxx Fargo Bank, N.A., as trustee and
custodian (in its capacity as trustee, the "Trustee").
The Purchaser intends to sell certain of the Certificates to
Deutsche Bank Securities Inc. ("DBS"), Citigroup Global Markets Inc. ("CGM"),
Credit Suisse Securities (USA) LLC ("CS") and SunTrust Xxxxxxxx Xxxxxxxx, Inc.
("SRH," and together with DBS, CGM and CS, the "Underwriters") pursuant to an
underwriting agreement dated November 21, 2007 (the "Underwriting Agreement").
The Purchaser intends to sell certain other Certificates (the "Non Registered
Certificates") pursuant to a certificate purchase agreement dated November 21,
2007 (the "Certificate Purchase Agreement") to DBS and CGM (collectively in such
capacity, the "Initial Purchasers"). Capitalized terms not otherwise defined
herein have the meanings assigned to them in the Pooling and Servicing Agreement
(as of the Closing Date) or in the Indemnification Agreement which was entered
into by the Seller, the Purchaser and the Underwriters on November 20, 2007 (the
"Artesia Indemnification Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
Subject to the terms and conditions set forth in this Agreement, the
Seller agrees to sell, assign, transfer and otherwise convey to the Purchaser
upon receipt of the Mortgage Loan 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 November 29, 2007 or such other date
as shall be mutually acceptable to the parties hereto (the "Closing Date"). As
of the related Due Date in November 2007 (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 the Cut-off Date, whether or not received, of $267,383,705, subject to a
variance of plus or minus 5.0%. The purchase price of the Mortgage Loans
(inclusive of accrued interest 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 $265,336,288.
SECTION 2. Conveyance of Mortgage Loans.
(a) On the Closing Date, subject only to receipt by the Seller of
the Mortgage Loan Purchase Price, 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
Agreement to Appointement of Master Servicer dated as of November 29, 2007
between the Wachovia Master Servicer, the Purchaser and the Seller. 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 to the Seller, and the Purchaser or its successors or assigns
shall promptly remit any such payments to the Seller.
The Seller shall take all actions reasonably necessary (i) to permit
the Trustee to fulfill its obligations pursuant to the fourth paragraph of
Section 2.01(a) of the Pooling and Servicing Agreement and (ii) to perform its
obligations described in the fourth paragraph of Section 2.01(a) of the Pooling
and Servicing Agreement. The Seller shall reimburse the Trustee for all
reasonable costs and expenses, if any, incurred by the Trustee for recording
and/or filing the documents required to be recorded and/or filed with respect to
the Artesia Mortgage Loans as described in the fourth paragraph of Section
2.01(a) of the Pooling and Servicing Agreement. In addition, 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.
(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 documents and/or instruments referred to in clauses (i), (ii), (vii),
(xi) and (xvii) of Exhibit B for each Mortgage Loan so assigned (with originals
with respect to clauses (i) and (xvii) and copies with respect to clauses (ii),
(vii) and (xi)) and, within 30 days following the Closing Date, the remaining
applicable documents in Exhibit B for each such Mortgage Loan with copies to the
Wachovia Master Servicer.
(c) 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.
(d) 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), (iv)(A), (v)(A), (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 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 public
recording 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 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 (i) notification from the Seller that
the purchase price referred to in Section 1 has been received by the Seller and
(ii) 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.
Notwithstanding anything herein to the contrary, with respect to the
documents referred to in clause (xvii) and clause (xviii) on Exhibit B, the
Wachovia 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 Wachovia 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
Wachovia Master Servicer) in order for the Wachovia 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 reasonably necessary steps to enable the Wachovia 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 Wachovia Master Servicer and immediately remitting such funds (or
causing such funds to be remitted) to the Wachovia 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 Wachovia 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.
(e) [Reserved]
(f) 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 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
Wachovia 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
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 Borrowers 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 Wachovia 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 Wachovia Master
Servicer.
(g) 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. Following the transfer of the Mortgage Loans to the
Purchaser, the Seller will not take any action inconsistent with the ownership
of the Mortgage Loans by the Purchaser or its assignees.
(h) Furthermore, it is the express intent of the parties hereto that
the conveyance of the Mortgage Loans by Seller to Purchaser as provided in this
Agreement be, and be construed as, a sale of the Mortgage Loans by Seller to
Purchaser and not a pledge of the Mortgage Loans by Seller to Purchaser 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 Purchaser 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 Purchaser or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments,
money, documents, chattel paper or 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), Purchaser or its
assignee for the purpose of perfecting such security interest under
applicable law.
The Seller at the direction of the Purchaser or its assignee, shall,
to the extent consistent with this Agreement, take such actions as may be
reasonably 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, Purchaser 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 reasonably necessary or appropriate
to accomplish the foregoing.
(i) 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
paragraph (viii) of Section 4(b), the Purchaser's rights and remedies under
Section 9 below and the Artesia 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.
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-in-interest of the Purchaser
and the Trustee, each of the representations and warranties set forth in Exhibit
C with respect to each Mortgage Loan, subject to the exceptions set forth in
Schedule C-1 to 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 Delaware 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, (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, 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 Purchasers, 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) Insofar as it relates to the Mortgage Loans, the information
set forth in Annex A-1 and Annex A-2 to the Prospectus Supplement (as
defined in the Artesia 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 description of 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 Time of
Sale Information (as defined in the Artesia Indemnification Agreement),
the Memorandum (as defined in the Artesia Indemnification Agreement)
(insofar as the Prospectus Supplement is an exhibit thereto) and in the
Prospectus Supplement under the headings "Summary of the Prospectus
Supplement--Relevant Parties and Dates--Sponsors," "--Mortgage Loan
Sellers," "--Originators," "--The Mortgage Pool," "Risk Factors--Risks
Related to the Mortgage Loans," "Transaction Parties--The Sponsors" and
"Description of the Mortgage Pool" and the information set forth on Annex
A-1 and Annex A-2 and Annex B to the Prospectus Supplement, and to the
extent it contains information consistent with that on such Annex A-1 and
Annex A-2 set forth on the Diskette, does not (or, in the case of the Time
of Sale Information, did not as of the Time of Sale (as defined in the
Artesia Indemnification Agreement)) 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.
(ix) 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 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 Delaware.
(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 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 Purchasers 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.
SECTION 6. Repurchases; Substitutions.
(a) If any party 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, 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 clauses (i), (ii), (vii),
(xi) and (xvii) of the definition of "Mortgage File" 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 Wachovia 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 Wachovia Master Servicer for deposit into the
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 closing date certification stated the
Trustee was not in possession of such document on the Closing Date pursuant to
the first sentence of the second paragraph of Section 2.02 of the Pooling and
Servicing Agreement, the Seller shall have 30 days to cure such Material Defect;
provided, further, 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) as of the Closing Date, in the form of Exhibit T-1 to the
Pooling and Servicing Agreement or (y) no later than 45 days following the
Closing Date, in the form of Exhibit T-2 to the Pooling and Servicing Agreement,
the Seller shall have 30 days to cure the Material Defect relating to the
missing document; 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 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 Wachovia 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.
Notwithstanding the foregoing, if (x) there exists a Breach of any
representation or warranty on the part of the Seller as set forth in, or made
pursuant to, clause 38 of Exhibit C to this Agreement relating to fees and
expenses payable by the Borrower associated with the exercise of a defeasance
option, a waiver of a "due-on-sale" provision or a "due-on-encumbrance"
provision or the release of any Mortgaged Property, and (y) the related Mortgage
Loan documents specifically prohibit the Wachovia Master Servicer or Special
Servicer from requiring the related Borrower to pay such fees and expenses,
then, upon notice by the Wachovia Master Servicer or Special Servicer, the
Seller shall transfer to the Collection Account, within 90 days of the Seller's
receipt of such notice, the amount of any such fees and expenses borne by the
Trust Fund that are the basis of such Breach. Upon its making such deposit, the
Seller shall be deemed to have cured such Breach in all respects. Provided such
payment is made, this paragraph describes the sole remedy available to the
Purchaser and its assignees regarding any such Breach, regardless of whether it
constitutes a Material Breach, and the Seller shall not be obligated to
repurchase or otherwise cure such Breach.
(b) In connection with any repurchase of, or substitution for, a
Mortgage Loan contemplated by this Section 6, (A) the Trustee, the Wachovia
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, and the
Seller shall be entitled to receive therefrom, upon delivery (i) to each of the
Wachovia Master Servicer or the Special Servicer, as applicable, of a trust
receipt and (ii) to the Trustee by the Wachovia Master Servicer or the Special
Servicer, as applicable, of a Request for Release and an acknowledgement by the
Wachovia Master Servicer or the 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 or on behalf of the Trustee, the Wachovia
Master Servicer or the Special Servicer, 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, 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 incurred by the Trustee or any
Person acting on its behalf pursuant to this paragraph shall be included in the
calculation of the Repurchase Price for the Mortgage Loan(s) to be repurchased
or substituted. If the cross-collateralization of any cross-collateralized group
of Mortgage Loans cannot be terminated as contemplated by this paragraph, then
the Seller shall repurchase or substitute the entire subject
cross-collateralized group of Mortgage Loans.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties with respect to
a Mortgage Loan or cross-collateralized group of Mortgage Loans, the Seller will
not be obligated to repurchase the Mortgage Loan or cross-collateralized group
of Mortgage Loans if (i) the affected Mortgaged Property may be released
pursuant to the terms of any partial release provisions in the related Loan
Documents (and such Mortgaged Property is, in fact, released), (ii) the
remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in
the Loan Documents and the Seller provides an Opinion of Counsel to the effect
that such release would not cause an Adverse REMIC Event to occur and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, withdrawn or downgraded.
As to any Qualifying Substitute Mortgage Loan, at the direction of
the Trustee, the Seller shall deliver to the Custodian for such Qualifying
Substitute Mortgage Loan (with a copy to the Wachovia Master Servicer), the
related Mortgage File with the related Note endorsed as required by Exhibit B
hereto. Pursuant to the Pooling and Servicing Agreement, Monthly Payments due
with respect to Qualifying Substitute Mortgage Loans in or prior to the month of
substitution shall not be part of the Trust Fund and will be retained by the
Wachovia Master Servicer and remitted by the Wachovia Master Servicer to the
Seller on the next succeeding Distribution Date. For the month of repurchase or
substitution, distributions to Certificateholders pursuant to the Pooling and
Servicing Agreement will include the Monthly Payment(s) due on the related
Removed Mortgage Loan and received by the Wachovia Master Servicer or the
Special Servicer on behalf of the Trust on or prior to the related date of
repurchase or substitution, as applicable, and the Seller shall be entitled to
retain all amounts received thereafter in respect of such Removed Mortgage Loan.
In any month in which the Seller substitutes one or more Qualifying
Substitute Mortgage Loans for one or more Removed Mortgage Loans, pursuant to
the Pooling and Servicing Agreement, the Wachovia Master Servicer will determine
the applicable Substitution Shortfall Amount. At the direction of the Trustee,
the Seller shall deposit cash equal to such amount into the Collection Account
concurrently with the delivery of the Mortgage Files for such Qualifying
Substitute Mortgage Loans, without any reimbursement thereof. At the direction
of the Trustee, the Seller shall give written notice to the Purchaser and the
Wachovia Master Servicer of such deposit.
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP,
Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York
City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller and the
Purchaser specified herein shall be true and correct as of the Closing
Date, and the Aggregate Cut-off Date Balance shall be within the range
permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and acceptable to the Purchaser and, in
the case of the Pooling and Servicing Agreement (insofar as such Agreement
affects the obligations of the Seller hereunder) and other documents to be
delivered by or on behalf of the Purchaser, to the Seller, shall be duly
executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee,
the Purchaser or the Purchaser's designee, as the case may be, all
documents and funds required to be so delivered on or before the Closing
Date pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller shall have received the Mortgage Loan Purchase
Price, and the Seller shall have paid or agreed to pay all fees, costs and
expenses payable by it to the Purchaser pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement and a xxxx of sale duly executed and delivered by
the Purchaser and the Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser, the Initial Purchasers and
each Underwriter may rely, attaching thereto as an exhibit the By-Laws of the
Seller;
(c) A certificate of good standing regarding the Seller from the
Secretary of State for the State of Delaware, dated not earlier than 30 days
prior to the Closing Date;
(d) Written opinions of counsel (which may include opinions of
in-house counsel, outside counsel or a combination thereof) for the Seller, in
form reasonably acceptable to counsel for the Purchaser and subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller and acceptable to counsel for the Purchaser, dated the Closing Date and
addressed to the Purchaser, the Initial Purchasers and each Underwriter;
(e) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates, each of which shall include the Purchaser, the Initial Purchasers
and each Underwriter as an addressee; and
(f) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Costs.
The Seller shall pay (or shall reimburse the Purchaser to the extent
that the Purchaser has paid) (a) the fees and expenses of counsel to the Seller,
(b) the expenses of filing or recording UCC assignments of financing statements,
assignments of Mortgage and Reassignments of Assignments of Leases, Rents and
Profits with respect to the Mortgage Loans as contemplated by Article 2 of the
Pooling and Servicing Agreement and (c) on the Closing Date, the Seller's pro
rata portion of the aggregate of the following amounts (the Seller's pro rata
portion to be determined according to the percentage that the aggregate
principal balance of the Mortgage Loans as of the Cut-off Date represents of the
aggregate principal balance of the Mortgage Loans and the Other Mortgage Loans
as of the Cut-off Date): (i) the costs and expenses of printing (or otherwise
reproducing) and delivering a preliminary and final Prospectus relating to the
Certificates; (ii) the up front fees, costs, and expenses of the Trustee
(including reasonable attorneys' fees) incurred in connection with the Trustee
entering into and performing certain of its obligations under the Pooling and
Servicing Agreement; (iii) the filing fee charged by the Securities and Exchange
Commission for registration of the Certificates so registered; (iv) the fees
charged by the Rating Agencies to rate the Certificates so rated; (v) the fees
and expenses of counsel to the Underwriters; (vi) the fees and expenses of
counsel to the Purchaser; (vii) the fees and expenses of counsel to the Wachovia
Master Servicer; (viii) the cost of obtaining a "comfort letter" from a firm of
certified public accountants selected by the Purchaser and the Seller with
respect to numerical information in respect of the Mortgage Loans and the Other
Mortgage Loans included in the Prospectus; and (ix) other miscellaneous costs
and expenses agreed upon by the parties hereto. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by overnight mail or courier service and received by the
addressee or (d) transmitted by facsimile (or any other type of electronic
transmission agreed upon by the parties) and confirmed by a writing delivered by
any of the means described in (a), (b) or (c), if (i) to the Purchaser,
addressed to Deutsche Mortgage & Asset Receiving Corporation, 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx, facsimile no. (000) 000-0000,
with a copy to Xxxx Xxxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile no. (000) 000-0000, or
such other address or facsimile number as may hereafter be furnished to the
Seller in writing by the Purchaser; and if (ii) to the Seller, addressed to
Artesia Mortgage Capital Corporation, 0000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxx Xxxxx, facsimile no. (425)
313-1005, or to such other address or facsimile number as the Seller may
designate in writing to the Purchaser.
SECTION 11. Notice of Exchange Act Reportable Events.
The Seller hereby agrees to deliver to the Purchaser and the
Certificate Administrator any disclosure information relating to any event,
specifically relating to the Seller, reasonably determined in good faith by the
Purchaser as required to be reported on Form 8-K, Form 10-D or Form 10-K by the
Trust Fund (in formatting reasonably appropriate for inclusion in such form),
insofar as such disclosure is required under Items 1117 and 1119 of Regulation
AB and Item 1.03 to Form 8-K. The Seller shall use reasonable efforts to deliver
proposed disclosure language relating to any event, specifically relating to the
Seller, described under Items 1117 and 1119 of Regulation AB and Item 1.03 to
Form 8-K to the Certificate Administrator and the Purchaser as soon as
reasonably practicable after the Seller becomes aware of such event and in no
event more than two business days following the occurrence of such event if such
event is reportable under Item 1.03 to Form 8-K. The obligation of the Seller to
provide the above referenced disclosure materials will terminate upon notice or
other written confirmation from the Purchaser or the Certificate Administrator
that the Certificate Administrator has filed a Form 15 with respect to the Trust
Fund as to that fiscal year in accordance with Section 10.10(a) of the Pooling
and Servicing Agreement or the reporting requirements with respect to the Trust
under the Securities Exchange Act of 1934, as amended, have otherwise
automatically suspended. The Seller hereby acknowledges that the information to
be provided by it pursuant to this Section will be used in the preparation of
reports meeting the reporting requirements of the Trust under Section 13(a)
and/or Section 15(d) of the Securities Exchange Act of 1934, as amended.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 13. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 15. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 16. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part (excluding the Seller's
representations, warranties and covenants set forth in paragraph (viii) of
Section 4(b), the Purchaser's rights and remedies under Section 9 and the
Artesia Indemnification Agreement), to the Trustee, for the benefit of the
Certificateholders, as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall, to the extent
of such assignment, succeed to the rights and obligations hereunder of the
Purchaser, provided that the Trustee shall have no right to further assign such
rights to any other Person. Subject to the foregoing, this Agreement shall bind
and inure to the benefit of and be enforceable by the Seller and the Purchaser,
and their permitted successors and permitted assigns.
SECTION 18. Amendments.
No term or provision of this Agreement may be amended, waived,
modified or in any way altered, unless such amendment, waiver, modification or
alteration is in writing and signed by a duly authorized officer of the party
against whom such amendment, waiver, modification or alteration is sought to be
enforced.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
ARTESIA MORTGAGE CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxxx Xxxxx
Title: Managing Director
DEUTSCHE MORTGAGE & ASSET
RECEIVING CORPORATION
By: /s/ Xxxxxxx X. Xxx
--------------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date;
(iv) the original principal balance;
(v) the Stated Principal Balance as of the Cut-off Date;
(vi) the Maturity Date or Anticipated Repayment Date for each
Mortgage Loan;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) the Servicing Fee Rate;
(x) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(xi) whether such Mortgage Loan has an Anticipated Repayment Date;
(xii) the Revised Rate of such Mortgage Loan, if any;
(xiii) whether such Mortgage Loan has a hard lock-box, a springing
hard lock-box, a soft-at-closing, springing hard lock-box or no lock-box at all;
(xiv) identifying any Mortgage Loans with which any such Mortgage
Loans are cross-collateralized; and
(xv) the number of units, pads, rooms or square feet with respect to
each Mortgaged Property.
Such list may be in the form of more than one list, collectively setting forth
all of the information required. Certain of the above-referenced items are
described on the Mortgage Loan Schedule attached hereto. Certain of the
above-referenced items are described on Exhibit B-1 to the Pooling and Servicing
Agreement and such descriptions are incorporated by reference into the Mortgage
Loan Schedule attached hereto.
CD 2007-CD5
ANNEX A-1 - CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS AND MORTGAGED
PROPERTIES
CD 2007-CD5
Artesia
Mortgage Loan Schedule
----------------------
*Footnotes can be found in the Footnotes to Annex-A1 in the Prospectus Supplement
Cut-off
Loan Group Original Date Interest
ID Property Name 1 or 2 Balance Balance Rate(36)
---------- ---------------------------------------------- ---------- ---------- ---------- --------
00 Xxxx Xxxxxx Xxxx Xxxxxxxx 3 1 29,100,000 29,050,931 6.3600%
24 Chicago Bridge & Iron(33) 1 21,500,000 21,500,000 6.6500%
42 Foothills Commerce Center Buildings C, D & E 1 11,200,000 11,191,668 6.4000%
00 Xxxxxxxx Xxxxx 3 & 4 1 10,900,000 10,881,620 6.3600%
00 Xxx Xxxxxxxx Xxxx Xxxxxx 0 10,849,137 10,849,137 6.5670%
48 Premier Landing 1 10,450,000 10,450,000 6.5700%
50 Xxxxxxxx Xxxxxxxx 0 9,920,000 9,902,925 6.2700%
00 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxx II(26) 2 9,200,000 9,200,000 5.9900%
00 Xxxxxxxxx Xxx - Xxxxxxxxx, XX 1 9,000,000 8,983,972 6.1200%
60 Mountain Dream Center 1 8,050,000 8,050,000 6.7100%
66 Quioccasin Center Station 1 6,950,000 6,950,000 6.5500%
00 Xxxxxxxxx Xxxxx Xxxxxx 0 6,850,000 6,850,000 6.3500%
70 CT Beverage Mart Plaza 1 6,500,000 6,500,000 6.3750%
73 Bel-Red Medical Dental Center(27) 1 6,100,000 6,097,062 6.2900%
76 Xxxx Crossing 1 5,740,000 5,740,000 5.8200%
00 Xxxx Xxxxxxxxxx 1 5,550,000 5,550,000 6.4300%
00 Xxxxxxxxxx Xxxxx Xxxxx XX Xxx 0 0 4,950,000 4,950,000 6.4400%
100 Colony Commons I and II 1 4,615,000 4,615,000 5.7700%
000 Xxxxxxxx Xxxxxxxxxx 0 4,550,000 4,550,000 6.6900%
102 14144 Ventura Office Building 1 4,500,000 4,500,000 6.3800%
107 Town Center Self Storage 1 4,250,000 4,250,000 6.3700%
108 Xxxxx Town Center(29) 1 4,200,000 4,200,000 6.6400%
110 Staples - Golden, CO 1 4,150,000 4,150,000 6.0200%
000 Xxxxxx Xxxxx Service Center 1 4,108,000 4,108,000 6.4200%
000 Xxxx Xxxxxxx Xxxx Xxxxx Xxxxxx - Xxxxxxxxx, XX 1 4,000,000 3,995,381 6.5000%
116 Willow Bend 1 3,864,000 3,864,000 6.3000%
000 Xxxxx Xxxxxxx Xxxxx 0 3,810,000 3,810,000 6.5000%
000 Xxxxxxx Xxx - Xxxxxxxx, XX 1 3,600,000 3,600,000 6.7600%
000 Xxxxxxxxx Xxxxxx Xxxxx 0 3,600,000 3,600,000 5.9700%
000 Xxxxxxx Xxxxxxxxxx 0 3,500,000 3,500,000 6.5800%
000.00 Xxxxx Xxxxx Xxxxxxx 1,945,167 1,945,167
124.02 Xxxx Terrace 1,554,833 1,554,833
000 XXXX Xxxxxxxx 0 3,440,000 3,434,462 6.5600%
000 Xxxxxxxx Xxxxxx - Xxxxx, XX 0 3,197,000 3,193,255 6.4300%
132 Georgia Center For Total Cancer Care 1 3,200,000 3,192,247 6.4000%
000 Xxxxxxx Xxxxxx(00) 1 3,100,000 3,085,877 5.9700%
000 Xxxxxxx Xxxxx 0 3,025,000 3,025,000 6.3700%
000 Xxxxxxx Xxxxxx - Xxxxx, XX 1 3,000,000 2,996,585 6.5700%
000 Xxxxxxxxx Xxxxxx 1 3,000,000 2,974,995 6.0200%
141 Shoppes of Crabapple 1 2,660,000 2,660,000 6.7400%
144 Office Depot - El Dorado, AR 1 2,360,000 2,360,000 6.3500%
000 Xxxxxx Xxxxx - Xxxxxxxxx, XX 1 2,327,000 2,327,000 6.3500%
000 Xxxxxxxxx Xxxxxx Xxxx 1 2,100,000 2,100,000 6.1900%
000 Xxxx Xxx Xxxxxxx Xxxxx - Xxxxxxx Xxxx, GA(28) 1 2,025,000 2,020,302 6.9100%
152 Xxxxxx Professional Building 1 1,735,000 1,735,000 6.4600%
000 Xxxxxxx Xxxxx Retail Center 1 1,700,000 1,700,000 6.5000%
155 Xxxxxx'x Forest Retail Center 1 1,575,000 1,575,000 6.5000%
156 Sapphire Pointe 1 1,367,100 1,367,100 6.0600%
000 Xxxxxxxx Xxxxxx Studios 1 1,200,000 1,197,184 6.5300%
161 Shoppes at Greystone 1 1,000,000 1,000,000 6.8600%
Interest Maturity Monthly Crossed
Administrative Mortgage Accrual Date Debt ARD With Payment
ID Fee Rate (2) Rate Basis or ARD Service (3) Lockbox (6) (Yes/No) Other Loans Date
------- -------------- -------- ---------- ---------- ----------- ----------- -------- ----------- -------
17 0.0207% 6.3393% Actual/360 9/11/2014 181,261 Hard No No 11
24 0.0207% 6.6293% Actual/360 11/11/2017 138,022 Hard No No 11
42 0.0207% 6.3793% Actual/360 10/1/2017 70,057 None No No 1
43 0.0207% 6.3393% Actual/360 9/11/2014 67,895 Hard No No 11
44 0.0207% 6.5463% Actual/360 11/11/2017 60,197 None No No 11
48 0.0207% 6.5493% Actual/360 10/11/2017 66,533 None No No 11
50 0.0207% 6.2493% Actual/360 9/11/2017 61,208 None No No 11
52 0.0207% 5.9693% Actual/360 9/11/2016 55,100 Springing No No 11
54 0.0207% 6.0993% Actual/360 9/11/2017 54,656 None No No 11
60 0.0207% 6.6893% Actual/360 9/11/2017 45,638 None No No 11
66 0.0207% 6.5293% Actual/360 11/11/2017 44,158 None No No 11
67 0.0207% 6.3293% Actual/360 9/11/2017 42,623 None No No 11
70 0.0207% 6.3543% Actual/360 9/11/2017 40,552 None No No 11
73 0.0207% 6.2693% Actual/360 10/11/2017 35,978 None No No 11
76 0.0207% 5.7993% Actual/360 7/11/2017 28,226 None No No 11
78 0.0207% 6.4093% Actual/360 8/11/2017 30,152 None No No 11
96 0.0207% 6.4193% Actual/360 10/11/2017 31,092 None No No 11
100 0.0207% 5.7493% Actual/360 6/11/2017 22,499 None No No 11
101 0.0207% 6.6693% Actual/360 11/11/2017 31,264 None No No 11
102 0.0207% 6.3593% Actual/360 9/11/2017 24,257 None No No 11
107 0.0207% 6.3493% Actual/360 8/11/2017 26,501 None No No 11
108 0.0207% 6.6193% Actual/360 9/11/2017 26,935 None No No 11
110 0.0207% 5.9993% Actual/360 11/11/2017 24,935 None No No 11
112 0.0207% 6.3993% Actual/360 9/11/2017 22,283 None No No 11
114 0.0207% 6.4793% Actual/360 10/11/2017 27,008 None No No 11
116 0.0207% 6.2793% Actual/360 8/11/2017 20,568 None No No 11
118 0.0207% 6.4793% Actual/360 11/11/2017 24,082 None No No 11
119 0.0907% 6.6693% Actual/360 11/11/2017 24,896 None No No 11
120 0.0207% 5.9493% Actual/360 11/11/2017 21,514 None No No 11
124 0.0207% 6.5593% Actual/360 10/11/2012 19,458 None No No 11
124.01
124.02
126 0.0207% 6.5393% Actual/360 9/11/2017 21,879 Hard No No 11
131 0.0207% 6.4093% Actual/360 10/11/2017 21,447 None No No 11
132 0.0207% 6.3793% Actual/360 8/11/2017 20,016 Soft No No 11
134 0.0207% 5.9493% Actual/360 6/11/2017 18,526 None No No 11
135 0.0207% 6.3493% Actual/360 9/11/2017 16,281 None No No 11
136 0.0507% 6.5193% Actual/360 10/11/2017 20,388 None No No 11
137 0.0207% 5.9993% Actual/360 10/11/2016 17,146 None No No 11
141 0.0207% 6.7193% Actual/360 10/11/2012 17,235 None No No 11
144 0.0207% 6.3293% Actual/360 9/11/2017 14,685 Hard No No 11
146 0.0207% 6.3293% Actual/360 9/11/2017 14,479 Hard No No 11
149 0.0207% 6.1693% Actual/360 8/11/2017 12,848 None No No 11
150 0.0207% 6.8893% Actual/360 9/11/2017 14,196 None No No 11
152 0.0207% 6.4393% Actual/360 9/11/2012 10,921 Springing No No 11
153 0.0207% 6.4793% Actual/360 9/11/2017 10,745 None No No 11
155 0.0207% 6.4793% Actual/360 9/11/2017 9,955 None No No 11
156 0.0207% 6.0393% Actual/360 7/11/2017 7,000 None No No 11
159 0.0207% 6.5093% Actual/360 8/11/2017 7,609 None No No 11
161 0.0207% 6.8393% Actual/360 9/11/2017 6,559 None No No 11
ID Address City State Zip Code
------- ----------------------------------------------------------- ---------------- ----- --------
17 000 Xxxxxx Xxxx XX Xxxxxxxx XX 00000
24 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
42 1020, 1030 and 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxxxx XX 00000
43 1102 & 0000 Xxxxxx Xxxxxx XX Xxxxxxx XX 00000
44 0000 Xxx Xxxxxxxx Xxxxxxx Xxxxxxx XX 00000
48 000-000 Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxxxx XX 00000
50 0000 Xxxxxxxx Xxxx Xxxx Xxxxxx XX 00000
52 535 & 000 Xxxxxxx Xxxxx Xxxxxx XX 00000
54 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
60 11105-11165 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
66 0000-0000 Xxxxxxxxxx Xxxx Xxxxxxxx XX 00000
67 0000 Xxxxx 0xx Xxxxxx Xxxxxxx XX 00000
70 000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
73 00000 Xxxxxxxx-Xxxxxxx Xxxx Xxxxxxxx XX 00000
76 0000 Xxxxxxx 000 Xxxxxxxxxxx XX 00000
78 000 Xxxx Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000
96 0000 Xxxxxx Xxxxxxxxx XX Xxxxxxxxxx XX 00000
100 2211 & 0000 XX 000 Xxxxxx Xxxx XX 00000
101 0000 Xxxx Xxxxxxxx Xxxxxxxx XX 00000
102 00000 Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxx XX 00000
107 0000 00xx Xxxxxx Xxxxxxxxxx Xxxxx XX 00000
108 000-000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxx XX 00000
110 00000 Xxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
112 7700-7740 Service Xxxxxx Xxxxx Xxxx Xxxxxxx XX 00000
114 0000 Xxxxx Xxxxxxxxxx 00 Xxxxxxxxx XX 00000
116 508, 510, 512, 514, 516, 518, 520 & 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000
118 0000 Xxxxxxx Xxxx, Xxxxxxxxx X & X Xxxxxx Xxxxxxx XX 00000
119 0000 Xxxxxxxxx Xxxxxxx 00 Xxxxxxxx XX 00000
120 00000 Xxxx Xxxxxx Xxxxxxx and 00000 00xx Xxxxxx Xxxxx Xxxx XX 00000
000 Xxxxxxx Xxxxxxx XX Various
124.01 000 Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000
124.02 0000 Xxxx 00xx Xxxxxx Xxxxxxx XX 00000
126 000 Xxxxxxxxxxxxx Xxxxx Xxxxxx XX 00000
131 0000 Xxxx Xxxxxxx 000 Xxxxx XX 00000
132 0000 Xxxxxx Xxxxxx Xxx Xxxxxxxxxx XX 00000
134 0000 000xx Xxxxxx XX Xxxxxxxx XX 00000
135 0000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxxx XX 00000
136 00000 Xxxxxx Xxxxx Xxxxx XX 00000
137 10515 & 00000 Xxxx 00xx Xxxxxx Xxxxxx XX 00000
141 00000 Xxxxxxxxx Xxxx Xxxxxxx XX 00000
144 0000 Xxxxx Xxxx Xxxxxx Xx Xxxxxx XX 00000
146 0000 Xxxxx Xxxx 000 Xxxxxxxxx XX 00000
149 0000 Xxxx Xxxxx Xxxxx Xxxxx Xxxxxx XX 00000
150 0000 Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxx XX 00000
152 0000 Xxxxxx Xxxxx Xxxxx Xxxx XX 00000
153 00000 Xxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000
155 00000 Xxxxxx'x Xxxx Xxxx Xxxxxx XX 00000
156 0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000
159 000 Xxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
161 0000 XX Xxxxxxx 000 Xxxxxx XX 00000
Net Units
Rentable Area of
ID SF/rooms/units/pads(13) Measure Letter of Credit
------- ----------------------- ------- ----------------
17 147,559 Sq. Ft. Yes (1,123,415)
24 176,025 Sq. Ft. No
42 108,729 Sq. Ft. Yes (379,550)
43 70,859 Sq. Ft. Yes (326,314)
44 98,993 Sq. Ft. No
48 126,447 Sq. Ft. No
50 48,470 Sq. Ft. Xx
00 00 Xxxxx Xx
00 00 Xxxxx Yes (1,150,000)
60 41,038 Sq. Ft. No
66 76,653 Sq. Ft. No
67 77,169 Sq. Ft. Yes (100,000)
70 44,000 Sq. Ft. No
73 25,898 Sq. Ft. No
76 74,347 Sq. Ft. No
78 45,289 Sq. Ft. No
96 17,527 Sq. Ft. No
100 29,980 Sq. Ft. No
101 136 Units No
102 48,172 Sq. Ft. No
107 62,997 Sq. Ft. No
108 41,987 Sq. Ft. No
110 20,390 Sq. Ft. No
112 102,575 Sq. Ft. No
114 67 Rooms No
116 54,567 Sq. Ft. No
118 19,875 Sq. Ft. No
119 70 Rooms No
120 12,697 Sq. Ft. No
124 159 Units No
124.01 87 Units
124.02 72 Units
126 62,500 Sq. Ft. No
131 52 Rooms Yes (19,000)
132 11,121 Sq. Ft. No
134 25,197 Sq. Ft. No
135 18,575 Sq. Ft. No
136 59 Rooms No
137 64,594 Sq. Ft. No
141 8,362 Sq. Ft. No
144 25,047 Sq. Ft. No
146 25,019 Sq. Ft. No
149 10,028 Sq. Ft. No
150 49 Rooms No
152 8,987 Sq. Ft. No
153 9,600 Sq. Ft. No
155 7,098 Sq. Ft. No
156 19,515 Sq. Ft. No
159 8,042 Sq. Ft. No
161 9,750 Sq. Ft. No
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section
2(b), collectively consist of the following documents:
(i) (A) the original Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the Originator, without recourse, either in
blank or to the order of the Trustee in the following form: "Pay to the order of
Xxxxx Fargo Bank, N.A., as Trustee for the registered holders of CD 2007-CD5,
Commercial Mortgage Pass-Through Certificates, without recourse" and (B) in the
case of a Serviced Companion Loan, a copy of the executed Note for such Serviced
Companion Loan;
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the Originator of the Mortgage Loan or Serviced Whole
Loan to the most recent assignee of record thereof prior to the Trustee, if any,
in each case with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the Originator, either in blank or in favor of the Trustee (in such
capacity); provided, if the related Mortgage has been recorded in the name of
MERS or its designee, no assignment of Mortgage in favor of the Trustee will be
required to be recorded or delivered and instead, the Seller shall take all
actions as are necessary to cause the Trustee, on behalf of the
Certificateholders, to be shown as (and the Trustee shall take all necessary
actions to confirm that it is shown as) the owner of the related Mortgage Loan
on the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS;
(iv) (A) an original or copy of any related security agreement (if
such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the Originator of the Mortgage Loan or Serviced Whole
Loan to the most recent assignee of record thereof prior to the Trustee, if any;
and (B) an original assignment of any related security agreement (if such item
is a document separate from the related Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the Originator,
either in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage referred to
in clause (iii) above; provided, if the related security agreement has been
recorded in the name of MERS or its designee, no assignment of security
agreement in favor of the Trustee will be required to be recorded or delivered
and instead, the Seller shall take all actions as are necessary to cause the
Trustee, on behalf of the Certificateholders, to be shown as (and the Trustee
shall take all necessary actions to confirm that it is shown as) the owner of
the related assignment of security agreement on the records of MERS for purposes
of the system of recording transfers of beneficial ownership of security
agreements maintained by MERS;
(v) (A) stamped or certified copies of any UCC financing statements
and continuation statements which were filed in order to perfect (and maintain
the perfection of) any security interest held by the Originator of the Mortgage
Loan (and each assignee of record prior to the Trustee) in and to the personalty
of the Borrower at the Mortgaged Property (in each case with evidence of filing
or recording thereon) and which were in the possession of the Seller (or its
agent) at the time the Mortgage Files were delivered to the Custodian, together
with original UCC-2 or UCC-3 assignments of financing statements showing a
complete chain of assignment from the secured party named in such UCC-1
financing statement to the most recent assignee of record thereof prior to the
Trustee, if any, and (B) if any such security interest is perfected and the
earlier UCC financing statements and continuation statements were in the
possession of the Seller, an assignment of UCC financing statement by the most
recent assignee of record prior to the Trustee or, if none, by the Originator,
evidencing the transfer of such security interest, either in blank or in favor
of the Trustee; provided, if the related UCC financing statement has been
recorded in the name of MERS or its designee, no UCC financing statement in
favor of the Trustee will be required to be recorded or delivered and instead,
the Seller shall take all actions as are necessary to cause the Trustee, on
behalf of the Certificateholders, to be shown as (and the Trustee shall take all
necessary actions to confirm that it is shown as) the owner of the related UCC
Financing Statement on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of UCC financing statements
maintained by MERS;
(vi) the original or a copy of the Loan Agreement relating to such
Mortgage Loan, if any;
(vii) the original or a copy of the lender's title insurance policy
issued in connection with the origination of the Mortgage Loan, together with
all endorsements or riders (or copies thereof) that were issued with or
subsequent to the issuance of such policy, insuring the priority of the Mortgage
as a first lien on the Mortgaged Property or a "marked-up" commitment to insure
marked as binding and countersigned by the related insurer or its authorized
agent (which may be a pro forma or specimen title insurance policy which has
been accepted or approved as binding in writing by the related title insurance
company), or an agreement to provide the same pursuant to binding escrow
instructions executed by an authorized representative of the title company;
(viii) (A) the original or a copy of the related Assignment of
Leases, Rents and Profits (if such item is a document separate from the
Mortgage) and, if applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment from the Originator
of the Mortgage Loan to the most recent assignee of record thereof prior to the
Trustee, if any, in each case with evidence of recording thereon; and (B) an
original assignment of any related Assignment of Leases, Rents and Profits (a
"Reassignment of Assignment of Leases, Rents and Profits") (if such item is a
document separate from the Mortgage), in recordable form, executed by the most
recent assignee of record thereof prior to the Trustee or, if none, by the
Originator, either in blank or in favor of the Trustee (in such capacity), which
assignment may be included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above; provided, if the related Assignment of
Leases, Rents and Profits has been recorded in the name of MERS or its designee,
no Assignment of Leases, Rents and Profits in favor of the Trustee will be
required to be recorded or delivered and instead, the Seller shall take all
actions as are necessary to cause the Trustee, on behalf of the
Certificateholders, to be shown as (and the Trustee shall take all necessary
actions to confirm that it is shown as) the owner of the related Assignment of
Leases, Rents and Profits on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of assignment of leases, rents and
profits maintained by MERS;
(ix) the original or a copy of any environmental indemnity
agreements and copies of any environmental insurance policies pertaining to the
Mortgaged Properties required in connection with origination of the Mortgage
Loans, if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Properties;
(xi) if the Borrower has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof and any related
lessor estoppel or a copy thereof;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of contracts and the
assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral Account
Agreement is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts,
if any, a copy of the UCC-1 financing statements, if any, submitted for filing
with respect to the Seller's security interest in the Reserve Accounts, Cash
Collateral Accounts and Lock-Box Accounts and all funds contained therein (and
UCC-3 assignments of financing statements assigning such UCC-1 financing
statements to the Trustee on behalf of the Certificateholders and with respect
to any Serviced Whole Loan, on behalf of Certificateholders and the related
Serviced Companion Loan Noteholders);
(xiv) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon if
appropriate, in those instances where the terms or provisions of the Mortgage,
Note or any related security document have been modified or the Mortgage Loan or
Serviced Whole Loan has been assumed;
(xv) the original or a copy of any guaranty of the obligations of
the Borrower under the Mortgage Loan or Serviced Whole Loan together with, as
applicable, (A) the original or copies of any intervening assignments of such
guaranty showing a complete chain of assignment from the Originator of the
Mortgage Loan to the most recent assignee thereof prior to the Trustee and (B)
an original assignment of such guaranty executed by the most recent assignee
thereof prior to the Trustee or, if none, by the Originator;
(xvi) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the related Borrower if the
Mortgage, Note or other document or instrument referred to above was signed on
behalf of the Borrower pursuant to such power of attorney;
(xvii) the original (or copy, if the original is held by the
Wachovia Master Servicer pursuant to Section 2(b)) of any letter of credit held
by the lender as beneficiary or assigned as security for such Mortgage Loan;
(xviii) the appropriate assignment or amendment documentation
related to the assignment to the Trust of any letter of credit securing such
Mortgage Loan (or copy thereof, if the original is held by the Wachovia Master
Servicer pursuant to Section 2(b)) which entitles the Wachovia Master Servicer
on behalf of the Trust to draw thereon;
(xix) with respect hospitality properties, a copy of the franchise
agreement, if any, an original or copy of the comfort letter, if any, and any
transfer documents with respect to any such comfort letter; and
(xx) with respect to each Whole Loan, a copy of the related
Co-Lender Agreement and a copy of the related Other Pooling and Servicing
Agreement, if applicable.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received. The original assignments referred to in clauses
(iii), (iv)(B), (viii)(B) and (xv)(B), may be in the form of one or more
instruments in recordable form in any applicable filing or recording offices.
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date herein specified or, if no such date is specified, as
of the Closing Date, except as set forth on Schedule C-1 hereto, that:
1) Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of
the date of this Agreement and as of the Cut-off Date.
2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan.
Immediately prior to the transfer to the Purchaser of the Mortgage Loans,
the Seller had good title to, and was the sole owner of, each Mortgage
Loan. The Seller has full right, power and authority to transfer and
assign each of the Mortgage Loans to or at the direction of the Purchaser
and has validly and effectively conveyed (or caused to be conveyed) to the
Purchaser or its designee all of the Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all
pledges, liens, charges, security interests and/or other encumbrances. The
sale of the Mortgage Loans to the Purchaser or its designee does not
require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3) Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-off
Date, and no Mortgage Loan was 30 days or more delinquent in the
twelve-month period immediately preceding the Cut-off Date.
4) Lien; Valid Assignment. None of the matters referred to in
clauses (B), (C) or (D) of the definition of "Permitted Encumbrances" (as
defined below), individually or in the aggregate, materially interferes
with the security intended to be provided by such Mortgage, the
marketability or current use of the Mortgaged Property, or the current
ability of the Mortgaged Property to generate operating income sufficient
to service the Mortgage Loan debt. The related assignment of such Mortgage
executed and delivered in favor of the Trustee is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to
the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage; provided, if the related assignment of
Mortgage has been recorded in the name of Mortgage Electronic Registration
Systems, Inc. ("MERS") or its designee, no assignment of Mortgage in favor
of the Trustee will be required to be prepared or delivered and instead,
the Seller shall take all actions as are necessary to cause the Trust to
be shown as the owner of the related Mortgage Loan on the records of MERS
for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS. Such Mortgage, together with any separate
security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and enforceable (subject to the exceptions
set forth in paragraph 13 below) first lien on the Mortgaged Property
(subject to the Permitted Encumbrances) and, subject to the exceptions set
forth in paragraph 13 below, valid and enforceable security interest in
favor of the holder thereof in all of the related Borrower's personal
property used in, and reasonably necessary to operate, the related
Mortgaged Property. In the case of a Mortgaged Property operated as a
hotel or an assisted living facility, the Borrower's personal property
includes all personal property that a prudent mortgage lender making a
similar Mortgage Loan would deem reasonably necessary to operate the
related Mortgaged Property as it is currently being operated. A Uniform
Commercial Code financing statement has been filed and/or recorded in all
places necessary to perfect a valid security interest in such personal
property, to the extent a security interest may be so created therein, and
such security interest is a first priority security interest, subject to
any prior purchase money security interest in such personal property and
any personal property leases applicable to such personal property;
provided, if the related Uniform Commercial Code Financing Statement has
been recorded in the name of MERS or its designee, no assignment of
Uniform Commercial Code Financing Statement in favor of the Trustee will
be required to be prepared or delivered and instead, the Seller shall take
all actions as are necessary to cause the Trust to be shown as the owner
of the related Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS). Notwithstanding the foregoing, no representation is
made as to the perfection of any security interest in rents or other
personal property to the extent that possession or control of such items
or actions other than the filing of Uniform Commercial Code financing
statements are required in order to effect such perfection.
"Permitted Encumbrances" shall mean, (A) the lien for current real estate
taxes and assessments not yet due and payable, (B) covenants, conditions
and restrictions, rights of way, easements and other matters that are of
public record and/or are referred to in the related lender's title
insurance policy, (C) exceptions and exclusions specifically referred to
in such lender's title insurance policy, (D) other matters to which like
properties are commonly subject and (E) the lien created through the
cross-collateralization of the subject Mortgage Loan with another Mortgage
Loan.
5) Assignment of Leases and Rents. The Assignment of Leases related
to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
paragraph 13 below, enforceable first priority lien and first priority
security interest in the related Borrower's interest in all leases,
sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full
right to assign the same; provided, if the related Assignment of Leases
has been recorded in the name of MERS or its designee, no Assignment of
Leases in favor of the Trustee will be required to be prepared or
delivered and instead, the Seller shall take all actions as are necessary
to cause the Trust to be shown as the owner of the related Mortgage Loan
on the records of MERS for purposes of the system of recording transfers
of beneficial ownership of mortgages maintained by MERS. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form
and constitutes a legal, valid and binding assignment, sufficient to
convey to the assignee named therein all of the assignor's right, title
and interest in, to and under such Assignment of Leases.
6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and
the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination,
rescission or release, in any manner that, in each case, materially
adversely affects the value of the related Mortgaged Property. None of the
terms of any Mortgage Note, Mortgage or Assignment of Leases has been
impaired, waived, altered or modified in any respect, except by written
instruments, all of which are included in the related Mortgage File.
7) Condition of Property; Condemnation. (i) With respect to each
Mortgaged Property securing the Mortgage Loans that was the subject of an
engineering report within 18 months prior to the Cut-off Date, each such
Mortgaged Property is, to the Seller's knowledge, free and clear of any
damage (or adequate reserves therefor have been established) that would
materially and adversely affect its value as security for the related
Mortgage Loan and (ii) with respect to each Mortgaged Property securing
the Mortgage Loans that was not the subject of an engineering report
within 18 months prior to the Cut-off Date as set forth on Schedule C-1 to
this Exhibit C, each such Mortgaged Property is in good repair and
condition and all building systems contained therein are in good working
order (or adequate reserves therefor have been established) and each
Mortgaged Property is free of structural defects, in each case, that would
materially and adversely affect its value as security for the related
Mortgage Loan as of the date hereof. The Seller has received no notice of
the commencement of any proceeding for the condemnation of all or any
material portion of any Mortgaged Property. To the Seller's knowledge
(based on surveys and/or title insurance obtained in connection with the
origination of the Mortgage Loans), as of the date of the origination of
each Mortgage Loan, all of the material improvements on the related
Mortgaged Property that were considered in determining the appraised value
of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are
insured against by the lender's title insurance policy referred to herein
or that do not materially and adversely affect the value or marketability
of such Mortgaged Property, and no improvements on adjoining properties
materially encroached upon such Mortgaged Property so as to materially and
adversely affect the value or marketability of such Mortgaged Property,
except those encroachments that are insured against by the Title Policy
referred to herein.
8) Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy or a marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance
policy (the "Title Policy") in the original principal amount of the
related Mortgage Loan after all advances of principal. Each Title Policy
insures that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to Permitted Encumbrances. Each Title
Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid,
and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or
omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the
related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. To
the Seller's knowledge, the insurer issuing such Title Policy is qualified
to do business in the jurisdiction in which the related Mortgaged Property
is located.
9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as
to completion of any on-site or off-site improvement and as to
disbursements of any funds escrowed for such purpose that were to have
been complied with on or before the Closing Date have been complied with,
or any such funds so escrowed have not been released.
10) Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph
13) such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby.
11) Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(i) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (ii) no fees or
expenses are payable to such trustee by the Seller, the Purchaser or any
transferee thereof except in connection with a trustee's sale after
default by the related Borrower or in connection with any full or partial
release of the related Mortgaged Property or related security for the
related Mortgage Loan.
12) Environmental Conditions.
i) Each of the Mortgaged Properties securing the Mortgage
Loans was the subject of an environmental site assessment, or an
update of a previous such report, in connection with the origination
or the sale of the related Mortgage Loan, within 18 months prior to
the Cut-off Date or the Mortgaged Property is covered under
paragraph 12(iii) below. A report of each such assessment (or the
most recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser, and the
Seller has no knowledge of any material and adverse environmental
condition or circumstance affecting any Mortgaged Property that was
not disclosed in such report. Each Mortgage requires the related
Borrower to comply with all applicable federal, state and local
environmental laws and regulations. Where such assessment disclosed
the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (a) a party not
related to the Borrower was identified as the responsible party for
such condition or circumstance or (b) environmental insurance
covering such condition was obtained or must be maintained until the
condition is remediated, or (c) the related Borrower was required
either to provide additional security that was deemed to be
sufficient by the originator in light of the circumstances and/or to
establish an operations and maintenance plan. With respect to any
multifamily property, an Environmental Report addressed the presence
of lead based paint ("LBP") and with respect to any multifamily
property located in an area designated radon zone 1, an
Environmental Report addressed the presence of radon gas ("RG").
With respect to any Mortgaged Property built before 1985, the
Environmental Report addressed the presence of asbestos containing
materials ("ACM"). If the Environmental Report, with respect to any
multifamily property, disclosed the existence of a material and
adverse LBP, ACM or RG environmental condition or circumstance
affecting the related Mortgaged Property, the related Borrower (A)
was required to remediate the identified condition prior to closing
the Mortgage Loan or provide additional security or establish with
the lender a reserve from loan proceeds, in an amount deemed to be
sufficient by the Seller, for the remediation of the problem, and/or
(B) agreed in the Mortgage Loan documents to establish an operations
and maintenance plan after the closing of the Mortgage Loan.
ii) In the case of each Mortgage Loan set forth on Schedule
C-2 to this Exhibit C, (a) such Mortgage Loan is the subject of a
Secured Creditor Impaired Property Policy, issued by the issuer set
forth on Schedule C-2 (the "Policy Issuer") and effective as of the
date thereof (the "Environmental Insurance Policy"), (b) the
Environmental Insurance Policy is in full force and effect, (c) on
the effective date of the Environmental Insurance Policy, Seller as
originator had no knowledge of any material and adverse
environmental condition or circumstance affecting the Mortgaged
Property that was not disclosed to the Policy Issuer in one or more
of the following: (i) the application for insurance, (ii) a borrower
questionnaire that was provided to the Policy Issuer, or (iii) an
engineering or other report provided to the Policy Issuer, and (d)
the premium of any Environmental Insurance Policy has been paid
through the maturity of the policy's term and the term of such
policy extends at least five years beyond the maturity of the
Mortgage Loan.
iii) With respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an environmental site
assessment within 18 months prior to the Cut-off Date, which
Mortgaged Properties are set forth on Schedule C-3 to this Exhibit
C, (a) no Hazardous Material is present on such Mortgaged Property
such that (i) the value of such Mortgaged Property is materially and
adversely affected or (ii) under applicable federal, state or local
law, (1) such Hazardous Material could be required to be eliminated
at a cost materially and adversely affecting the value of the
Mortgaged Property before such Mortgaged Property could be altered,
renovated, demolished or transferred, or (2) the presence of such
Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting
the value of the Mortgaged Property, and (b) such Mortgaged Property
is in material compliance with all applicable federal, state and
local laws pertaining to Hazardous Materials or environmental
hazards, any noncompliance with such laws does not have a material
adverse effect on the value of such Mortgaged Property, and neither
Seller nor, to Seller's knowledge, the related Borrower or any
current tenant thereon, has received any notice of violation or
potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials and any other substance or material as
may be defined as a hazardous or toxic substance by any federal,
state or local environmental law ordinance, rule, regulation or
order, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. xx.xx. 9601 et seq.), the Hazardous Materials Transportation
Act as amended (42 U.S.C. xx.xx. 6901 et seq.), the Federal Water
Pollution Control Act as amended (33 U.S.C. xx.xx. 1251 et seq.),
the Clean Air Act (42 U.S.C. xx.xx. 1251 et seq.) and any
regulations promulgated pursuant thereto.
13) Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by
or on behalf of the related Borrower is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related
Borrower with respect to such Mortgage Note, Mortgage or other agreement.
14) Insurance. Each Mortgaged Property is, and is required pursuant
to the related Mortgage to be, insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot
attending a strike, civil commotion, aircraft, vehicles and smoke, and, to
the extent required as of the date of origination by the originator of
such Mortgage Loan consistent with its normal commercial mortgage lending
practices, against other risks insured against by persons operating like
properties in the locality of the Mortgaged Property in an amount not less
than the lesser of the principal balance of the related Mortgage Loan and
the replacement cost of the Mortgaged Property, and contains no provisions
for a deduction for depreciation, and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
Mortgaged Property; (b) a business interruption or rental loss insurance
policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of
buildings or other structures on the Mortgaged Property are located in an
area identified by the Federal Emergency Management Agency as having
special flood hazards and the Federal Emergency Management Agency requires
flood insurance to be maintained); and (d) a comprehensive general
liability insurance policy in amounts as are generally required by
commercial mortgage lenders, and in any event not less than $1 million per
occurrence. Such insurance policy contains a standard mortgagee clause
that names the mortgagee as an additional insured in the case of liability
insurance policies and as a loss payee in the case of property insurance
policies and requires prior notice to the holder of the Mortgage of
termination or cancellation. No such notice has been received, including
any notice of nonpayment of premiums, that has not been cured. Each
Mortgage obligates the related Borrower to maintain all such insurance
and, upon such Borrower's failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at the Borrower's cost and expense and
to seek reimbursement therefor from such Borrower. Each Mortgage provides
that casualty insurance proceeds will be applied (a) to the restoration or
repair of the related Mortgaged Property, (b) to the restoration or repair
of the related Mortgaged Property, with any excess insurance proceeds
after restoration or repair being paid to the Borrower, or (c) to the
reduction of the principal amount of the Mortgage Loan.
15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in
future installments) or other outstanding charges affecting any Mortgaged
Property that are or may become a lien of priority equal to or higher than
the lien of the related Mortgage. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered
unpaid until the date on which interest or penalties would be first
payable thereon.
16) Borrower Bankruptcy. No Borrower under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar
proceeding.
17) Leasehold Estate. Each Mortgaged Property consists of a fee
simple estate in real estate or, if the related Mortgage Loan is secured
in whole or in part by the interest of a Borrower as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Borrower's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest"), and as to such
Ground Leases:
i) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease (or the related estoppel letter
or lender protection agreement between the Seller and related
lessor) does not prohibit the current use of the Mortgaged Property
and does not prohibit the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no material
change in the payment terms of such Ground Lease since the
origination of the related Mortgage Loan, with the exception of
material changes reflected in written instruments that are a part of
the related Mortgage File;
ii) The lessee's interest in such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with,
the related Mortgage, other than Permitted Encumbrances;
iii) The Borrower's interest in such Ground Lease is
assignable to the Purchaser and its successors and assigns upon
notice to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
iv) Such Ground Lease is in full force and effect, and the
Ground Lease provides that no material amendment to such Ground
Lease is binding on a mortgagee unless the mortgagee has consented
thereto, and the Seller has received no notice that an event of
default has occurred thereunder, and, to the Seller's knowledge,
there exists no condition that, but for the passage of time or the
giving of notice, or both, would result in an event of default under
the terms of such Ground Lease;
v) Such Ground Lease or an estoppel letter or other agreement,
(A) requires the lessor under such Ground Lease to give notice of
any default by the lessee to the holder of the Mortgage; and (B)
provides that no notice of termination given under such Ground Lease
is effective against the holder of the Mortgage unless a copy of
such notice has been delivered to such holder and the lessor has
offered or is required to enter into a new lease with such holder on
terms that do not materially vary from the economic terms of the
Ground Lease.
vi) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the receipt
of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
vii) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less than
twenty years beyond the Stated Maturity Date of the related Mortgage
Loan;
viii) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease
interest will be applied either (A) to the repair or restoration of
all or part of the related Mortgaged Property, with the mortgagee or
a trustee appointed by the related Mortgage having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (B) to the
payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon;
ix) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an uncured default,
to disturb the possession, interest or quiet enjoyment of the lessee
thereunder for any reason, or in any manner, which would materially
adversely affect the security provided by the related Mortgage; and
x) Such Ground Lease requires the Lessor to enter into a new
lease upon termination of such Ground Lease or if such Ground Lease
is rejected in a bankruptcy proceeding.
18) Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury
regulation section 1.860G-2(a), and the related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) (without regard to Section 856(e)(4) of the Code).
19) Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be
deposited or paid have been so deposited or paid.
20) Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required
by such Mortgage Loan.
21) No Mechanics' Liens. Each Mortgaged Property is free and clear
of any and all mechanics' and materialmen's liens that are prior or equal
to the lien of the related Mortgage, and no rights are outstanding that
under law could give rise to any such lien that would be prior or equal to
the lien of the related Mortgage except, in each case, for liens insured
against by the Title Policy referred to herein.
22) Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
23) Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or
more other Mortgage Loans.
24) Releases of Mortgaged Property. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the
related Mortgaged Property (that was included in the appraisal for such
Mortgaged Property and/or generates income) from the lien of the related
Mortgage, except (i) upon payment in full of all amounts due under the
related Mortgage Loan, (ii) in connection with a full or partial
defeasance pursuant to provisions in the related loan documents, (iii)
those Mortgage Loans set forth on Schedule C-4 which provide for certain
releases upon the satisfaction of certain legal and underwriting
requirements or (iv) upon the payment of a release price and prepayment
consideration in connection therewith. Except with respect to a release of
a portion of the Mortgaged Properties that was not included in the
appraisal or does not generate income, no Mortgage Loan permits the full
or partial release or substitution of collateral unless the mortgagee or
servicer can require the Borrower to provide an opinion of tax counsel to
the effect that such release or substitution of collateral (a) would not
constitute a "significant modification" of such Mortgage Loan within the
meaning of Treas. Reg. ss.1.860G-2 and (b) would not cause such Mortgage
Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
25) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of
interest at an increased rate after the Anticipated Repayment Date) or for
any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property.
26) No Material Default. There exists no material Event of Default,
breach, violation or event of acceleration (and, to the Seller's actual
knowledge, no event which, with the passage of time or the giving of
notice, or both, would constitute any of the foregoing) under the
documents evidencing or securing the Mortgage Loan, in any such case to
the extent the same materially and adversely affects the value of the
Mortgage Loan and the related Mortgaged Property; provided, however, that
this representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any of paragraphs 3, 7, 12, 14, 15, 16, 17,
28, 32, 33 and 36 of this Exhibit C.
27) Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of
the related Mortgage Loan.
28) Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area
where the Mortgaged Property is located, the improvements located on or
forming part of each Mortgaged Property comply with applicable zoning laws
and ordinances, or constitute a legal non-conforming use or structure or,
if any such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance does not materially
and adversely affect the value of the related Mortgaged Property, such
value as determined by the appraisal performed at origination or in
connection with the sale of the related Mortgage Loan by the Seller
hereunder.
29) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified
therein. The Seller has no knowledge that any of the Mortgaged Properties
is encumbered by any lien junior to the lien of the related Mortgage.
30) Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits, or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Borrower
or related Mortgaged Property that might adversely affect title to the
Mortgaged Property or the validity or enforceability of the related
Mortgage or that might materially and adversely affect the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which
the premises were intended.
31) Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in
all material respects legal, proper and prudent and have met customary
industry standards.
32) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage Loan or as
of the date of the sale of the related Mortgage Loan by the Seller
hereunder, the related Borrower was in possession of all material
licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated.
33) Assisted Living Facility Regulation. If the Mortgaged Property
is operated as an assisted living facility, to the Seller's knowledge (a)
the related Borrower is in compliance in all material respects with all
federal and state laws applicable to the use and operation of the related
Mortgaged Property, and (b) if the operator of the Mortgaged Property
participates in Medicare or Medicaid programs, the facility is in
compliance in all material respects with the requirements for
participation in such programs.
34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to
the Purchaser.
35) Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any
material portion thereof, or a controlling interest in the related
Borrower, is transferred, sold, or encumbered; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Borrower's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Borrower or constituent entities of the Borrower to a
third party or parties related to the Borrower upon the Borrower's
satisfaction of certain conditions precedent.
36) Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this
purpose, a "Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents provide substantially to the
effect that it is formed or organized solely for the purpose of owning and
operating one or more of the Mortgaged Properties securing the Mortgage
Loans and it is prohibited from engaging in any business unrelated to such
Mortgaged Property or Properties, and whose organizational documents
further provide, or which entity represented in the related Mortgage Loan
documents, substantially to the effect that it does not have any assets
other than those related to its interest in and operation of such
Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage Loan documents, that it has its own
books and records and accounts separate and apart from any other person
(other than a Borrower for a Mortgage Loan that is cross-collateralized
and cross-defaulted with the related Mortgage Loan), and that it holds
itself out as a legal entity, separate and apart from any other person.
37) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the
non-recourse obligations of the related Borrower, provided that at least
one natural person (and the Borrower if the Borrower is not a natural
person) is liable to the holder of the Mortgage Loan for damages arising
in the case of fraud or willful misrepresentation by the Borrower,
misappropriation of rents, insurance proceeds, or condemnation awards and
breaches of the environmental covenants in the Mortgage Loan documents.
38) Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the payment
of all reasonable costs and expenses of the lender incurred in connection
with the defeasance of such Mortgage Loan and the release of the related
Mortgaged Property, and the borrower is required to pay all reasonable
costs and expenses of the lender associated with the approval of an
assumption of such Mortgage Loan.
39) Defeasance. No Mortgage Loan provides that it can be defeased
until the date that is more than two years after the Closing Date or
provides that it can be defeased with any property other than government
securities (as defined in Section 2(a)(16) of the Investment Company Act
of 1940, as amended) or any direct non-callable security issued or
guaranteed as to principal or interest by the United States.
40) Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance
charges payable under the terms of the Mortgage Loans, in respect of
voluntary prepayments, constituted customary prepayment premiums and yield
maintenance charges for commercial mortgage loans.
41) [Reserved]
42) [Reserved]
For purposes of these representations and warranties, the phrases "to the
knowledge of the Seller" or "to the Seller's knowledge" shall mean (except where
otherwise expressly set forth below) the actual state of knowledge of the Seller
(i) after the Seller's having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Seller's underwriting standards, at the time of the Seller's origination or
acquisition of the particular Mortgage Loan; and (ii) subsequent to such
origination, utilizing the monitoring practices customarily utilized by prudent
commercial or multifamily, as applicable, mortgage lenders with respect to
securitizable commercial or multifamily, as applicable, mortgage loans,
including inquiry with a representative of the loan servicer designated as the
party responsible for the knowledge of the servicer pertaining to the Mortgage
Loans. Also for purposes of these representations and warranties, the phrases
"to the actual knowledge of the Seller" or "to the Seller's actual knowledge"
shall mean (except where otherwise expressly set forth below) the actual state
of knowledge of the Seller without any express or implied obligation to make
inquiry. All information contained in the documents included in the definition
of Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Seller, to the extent that
the Seller or its closing counsel or custodian, if any, has reviewed or had
possession of such document at any time. For purposes of these representations
and warranties, to the extent that any representation or warranty is qualified
by the Seller's knowledge with respect to the contents of the Mortgage Note,
Mortgage, lender's title policy and any letters of credit or Ground Leases, if
such document is not included in the Mortgage File, the Seller shall make such
representation or warranty without any such qualification. Wherever there is a
reference in a representation or warranty to receipt by, or possession of, the
Seller of any information or documents, or to any action taken by the Seller or
to any action which has not been taken by the Seller or its agents or employees,
such reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking such action by, the
Seller. For purposes of these representations and warranties, when referring to
the conduct of "reasonable prudent institutional commercial or multifamily, as
applicable mortgage lenders" (or similar such phrases and terms), such conduct
shall be measured by reference to the industry standards generally in effect as
of the date the related representation or warranty relates to or is made.
It is understood and agreed that the representations and warranties set forth in
this Exhibit C shall survive delivery of the respective Mortgage Files to the
Purchaser and/or the Trustee and shall inure to the benefit of the Purchaser and
its successors and assigns (including without limitation the Trustee and the
holders of the Certificates), notwithstanding any restrictive or qualified
endorsement or assignment.
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Representation numbers referred to below relate to the corresponding
Mortgage Loan representations and warranties set forth in Exhibit C to the
Mortgage Loan Purchase Agreement for Artesia Mortgage Capital Corporation.
Annex A-1 ID Mortgage Loan Exception
#
Exceptions to Representation 4: Lien; Valid Assignment.
24 Chicago Bridge & Iron The related single tenant occupying
the entire related Mortgaged Property
has an option to purchase the
Property, in accordance with certain
terms and conditions contained in the
related tenant's lease, including,
among other things, that in the event
such purchase option is exercised,
tenant shall either assume or prepay
the Mortgage Loan.
24 Chicago Bridge & Iron In each instance, the single tenant
occupying the entire related Mortgaged
126 NJVC Building Property has a right of first refusal
("ROFR") to purchase the Mortgaged
Property, in accordance with certain
terms and conditions contained in such
tenant's lease, in the event the
borrower elects to sell the related
Mortgaged Property.
54 Residence Inn - The hotel franchisor has a ROFR to
Livermore, CA purchase the Mortgaged Property, in
accordance with certain terms and
conditions described in the franchise
agreement between the borrower and
franchisor.
96 Snoqualmie Ridge Phase IV The prior owner of the Mortgaged
Lot 2 Property has the right to repurchase
the Mortgaged Property until the
construction of certain improvements
on the Mortgage Property is completed
in accordance with the applicable
municipal requirements.
124.01 North Cliff Terrace The related Mortgaged Property is
subject to a regulatory agreement with
the State of Washington which requires
that 40% of the units in the related
Mortgaged Property be rented to low
income households.
124.02 Xxxx Terrace The related Mortgaged Property is
subject to a regulatory agreement with
the State of Washington which requires
that 100% of the units in the related
Mortgaged Property be rented to
elderly or special needs tenants.
Exceptions to Representation 6: Mortgage Status; Waivers and
Modifications.
00 Xxxxxxx Xxxxx Apartments With respect to the Mortgage Loan
Phase II listed on the left, the Mortgage
contemplated a conversion of the
related Mortgage Property to the
Torrens title system and associated
modification of the related Mortgage
Loan documents to incorporate the
resulting revised and updated legal
description; the conversion is in
process but not yet complete and the
related Mortgage Loan modifications
may not be included in the related
Mortgage File as of the Closing Date.
Exceptions to Representation 7: Condition of Property; Condemnation.
000 Xxxxxx Xxxxx Service The related borrower and lender have
Center received notice indicating that an
approximately 1 acre unimproved
portion of the Mortgaged Property is
currently subject to a condemnation
proceeding instituted by the related
municipality in order to obtain land
to construct highway improvements.
The related complaint indicates that
the municipality has valued the
portion of the Mortgaged Property to
be condemned at approximately $91,000.
Exceptions to Representation 12: Environmental Conditions.
00 Xxx Xxxxxxxx Xxxx Xxxxxx With respect to the Mortgage Loan
listed on the left, the environmental
assessment indicated a dry cleaner
historically located at the adjacent
shopping center to the north of the
Mortgaged Property impacted soil and
groundwater with chlorinated solvents
and, in addition, petroleum
hydrocarbon contamination associated
with a gas station to the northeast of
the former dry cleaner reported during
prior subsurface assessment activities
and a second dry cleaner (located
north of the former adjacent shopping
center) reportedly impacted
groundwater beneath the shopping
center. While the environmental
assessment did not include a
recommendation for further action or
investigation, the environmental
assessment indicated that
these off-site facilities have the
potential to have adversely impacted
the environmental integrity of the
Mortgaged Property. The borrower is
obligated under the Mortgage Loan
documents to remediate and indemnify
lender for violations of environmental
laws, and this obligation, which would
include any past
or current violations at the Mortgaged
Property resulting from off-site
contamination, is a recourse
obligation of the borrower that is
guaranteed by DBSI Housing,
Inc., a borrower sponsor, under the
applicable Mortgage Loan documents.
66 Quioccasin Center Station With respect to the Mortgage Loan
listed on the left, the related
Mortgaged Property includes a
dry-cleaning operation. A subsurface
investigation report included among
the environmental assessments
recommended a complete evaluation and
mitigation of risk for the documented
solvents on site and estimated the
costs for the remediation to range
from $60,000 to $65,000. The subject
property has been accepted into the
Virginia Voluntary Remediation Program
(VRP) by the Virginia Department of
Environmental Quality (VDEQ). An
environmental remediation escrow of
$140,000 is being held by the lender,
to be released when the borrower has
completed the remediation and obtained
a no further action letter, or its
equivalent, from the VDEQ. The
borrower is obligated under the
Mortgage Loan documents to remediate
and indemnify lender for violations of
environmental laws, and this
obligation, which would include any
past or current violations pertaining
to the dry-cleaning operation, is a
recourse obligation of the borrower
that is guaranteed by Manakin Farms,
Inc., a borrower sponsor, under the
applicable Mortgage Loan documents.
108 Xxxxx Town Center With respect to the Mortgage Loan
listed on the left, the related
Mortgaged Property includes a
dry-cleaning operation. Chlorinated
solvents were detected in soil borings
adjacent to the rear side of the dry
cleaning machines near the floor
drains and solvent storage area. The
estimated cost of the remediation
necessary to receive a no further
action letter from the applicable
regulatory agency, was $91,562
including a 25% contingency. The
seller of the Mortgage Property to the
borrower deposited $73,250 in an
escrow account with the title
insurance company, as escrow agent,
under an escrow agreement between the
seller, borrower and title insurance
company, the borrower's interest in
which was collaterally assigned to the
lender. Additionally, the
borrower established a $73,249 in an
escrow reserve with the lender, to
be released when a "no further action"
letter is received from the applicable
regulatory authority. The borrower is
obligated under the Mortgage Loan
documents to remediate and indemnify
lender for violations of environmental
laws, and this obligation, which would
include any past or current
violations pertaining to the
dry-cleaning operation, is a recourse
obligation of the borrower that is
guaranteed by Xxx Xxxxxxxx and R.
Xxxxx Xxxxxxx, certain sponsors or
the borrower, under the applicable
Mortgage Loan documents.
000 Xxxxxxx Xxxxx Retail With respect to the Mortgage Loan
Center listed on the left, the related
Mortgaged Property includes a
dry-cleaning operation . While
the environmental assessment did not
include evidence of any reported
incidents or releases from the site or
a recommendation for further action,
the dry-cleaning operation is
listed on a public database for
drycleaners. The borrower is
obligated under the Mortgage Loan
documents to remediate and indemnify
lender for violations of environmental
laws, and this obligation, which would
include any past
or current violations pertaining to
the dry-cleaning operation, is a
recourse obligation of the borrower
that is guaranteed by Xxxxx
Xxxxxxx, a borrower sponsor, under
the applicable Mortgage Loan documents.
Exceptions to Representation 14: Insurance.
All All The Mortgage Loan documents do not
generally require a "fire and extended
perils" property insurance policy but
instead generally require an "all
risk" property insurance policy,
including loss or damage sustained by
reason of windstorm/hail (except as
specifically disclosed below), riot
and civil commotion, but the Mortgage
Loan documents (and the current
certificates or other evidence of
insurance) do not expressly by their
terms state that such "all risk"
policies shall include loss or damage
sustained by reason of "explosion",
"riot attending a strike", "aircraft",
"vehicles" or "smoke", and all
policies exclude mold.
All All The related insurance policies cover
certified acts of terrorism, but no
representation is made as to the
existence or requirement in the
Mortgage Loan documents that borrowers
maintain insurance covering
"non-certified acts of terrorism" as
defined in the Federal Terrorism Risk
Insurance Act.
All All Certain of the insurance certificates
for the related liability insurance
policies may provide that in the event
such related insurance policies are
terminated or cancelled, the insurer
shall endeavor to provide Mortgagee
notice, but do not expressly indicate
that no cancellation or termination
occurs until notice is given.
Various Various Some of the Mortgaged Properties are
covered under a blanket policy.
70 CT Beverage Mart Plaza The related Mortgage Loan documents do
not explicitly require that
76 Xxxx Crossing windstorm/hail coverage be maintained,
however, the insurance certificates
107 Town Center Self Storage provided by the related borrower
indicate that windstorm/hail coverage
000 Xxxxxx Xxxx is included under the related
"all-risk" policy.
000 Xxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx Xxxx
156 Sapphire Pointe
000 Xxxxxxxx Xxxxxx Studios
161 Shoppes at Greystone
100 Colony Commons I and II The related windstorm policy carries a
$250,000 deductible.
114 Best Western Casa Valla The related windstorm policy is issued
Suites - Harlingen, Texas under the state windpool program and
is subject to 90% co-insurance,
however, lender is holding an escrow
until such time as borrower delivers a
windstorm policy by a sufficiently
rated carrier, and not subject to
co-insurance.
149 Xxxxxxxxx Office Park The related property insurance policy
is maintained by the condominium
association and lender is not named as
loss payee, however, lender is named
as Mortgagee thereon. Additionally,
lender is named as loss payee on the
loss of rents policy maintained by the
borrower.
Exceptions to Representation 24: Releases of Mortgaged Property.
131 Mainstay Business Suites The related Mortgage Loan documents
- Clute, TX permit the partial release of a
certain portion of the related
Mortgaged Property without payment
upon the satisfaction of certain
conditions contained in the related
documents, including, amount other
things: (a) no event of default shall
have occurred or be continuing, (b)
the loan-to-value ratio of the then
unpaid loan balance to the remaining
property shall be less than 75%, and
(c) the debt service coverage ratio
shall be at least 1.40:1.00.
Exceptions to Representation 29: Junior Liens.
42 Foothills Commerce Center The Mortgage Loan documents permit
Buildings C, D&E borrower to obtain a second mortgage
subject to certain conditions set
forth in the Mortgage Loan documents.
00 Xxxxxxx Xxxxx Apartments The Mortgage Loan documents permit
Phase II borrower to enter into a contract for
deed installment sale agreement
whereby borrower agrees to sell the
entire Mortgaged Property to a third
party subject to the Mortgage Loan and
subject to certain conditions set
forth in the Mortgage Loan documents,
including, among other things, the
prior consent of lender and the
delivery of a subordination and
standstill agreement satisfactory to
lender and the rating agencies.
Exceptions to Representation 32: Licenses and Permits.
00 Xxxxxxxx Xxxxxxxx Final CO's have not been issued for
certain related improvements located
96 Snoqualmie Ridge Phase IV on the related Mortgaged Properties
Lot 2 and the related borrower has funded
110 certain reserves to be released upon,
Staples - Golden, CO among other things, the issuance of
120 final CO's for such improvements.
Starbucks Center South
Exceptions to Representation 35: Due on Sale.
All All The Mortgage Loan documents permit, in
certain instances, without the consent
of lender, (a) the sale of the
Mortgaged Property and assumption of
the Mortgage Loan upon the
satisfaction of certain conditions in
the Mortgage Loan Documents, (b)
transfers of shares in public
companies, (c) transfers of a
controlling interest in the borrower
(i) for purposes of family and estate
planning, (ii) by devise or descent,
(iii) to certain pre-approved entities
or to other entities meeting certain
criteria specified in the related
Mortgage Loan documents, (iv) among
existing principals, members, partners
shareholders or affiliates of
borrower, (v) that accommodate a 1031
exchange or reverse 1031 exchange,
(vi) with respect to Mortgage Loans to
tenant-in-common borrowers, transfers
among and to additional
tenant-in-common borrowers, (vii)
among affiliated borrowers with
respect to multi-property Mortgage
Loans, or (d) transfers meeting the
requirements of the Mortgage Loan.
The Mortgage Loans generally permit
the related borrower to incur debt in
the ordinary course of business.
42 Foothills Commerce Center The Mortgage Loan documents permit
Buildings C, D&E borrower to encumber the Mortgaged
Property with a junior mortgage
subject to certain conditions
contained therein, including, among
other things, the combined
loan-to-value ratio shall not exceed
70%, the combined debt service
coverage ratio shall not be less than
1.25:1.00, and the delivery of a
subordination and intercreditor
agreement acceptable to lender.
00 Xxxxxxx Xxxxx Apartments The Mortgage Loan documents permit
Phase II borrower to enter into a contract for
deed installment sale agreement
whereby borrower agrees to sell the
entire Mortgaged Property to a third
party subject to the Mortgage Loan and
subject to certain conditions set
forth in the Mortgage Loan documents,
including, among other things, the
lender's approval of the purchaser,
the delivery of a subordination and
standstill agreement satisfactory to
lender and the rating agencies, and
the purchaser's assumption of the
Mortgage Loan.
108 Xxxxx Town Center The Mortgage Loan documents permit
future mezzanine debt, subject to
certain conditions contained therein,
including, among other things, the
combined loan-to-value ratio shall not
exceed 90%, the combined debt service
coverage ratio shall not be less than
1.10:1.00, and the delivery of an
intercreditor agreement acceptable to
lender.
132 Georgia Center For Total An equity owner of the Borrower has
Cancer Care incurred $400,000 of Mezzanine debt.
Additionally, the Mortgage Loan
documents permit future mezzanine
debt, subject to certain conditions
contained therein, including, among
other things, the combined
loan-to-value ratio shall not exceed
88%, the combined debt service
coverage ratio shall not be less than
1.04:1.00, and the delivery of an
intercreditor agreement acceptable to
lender .
000 Xxxxxxxxx Xxxxxx The Mortgage Loan documents permit the
borrower to incur additional unsecured
subordinate debt from certain members
of the borrower provided, among other
things, the aggregate principal amount
of such unsecured subordinate debt
does not exceed $450,000 and borrower
delivers a subordination and
standstill agreement.
Exceptions to Representation 37: Non-Recourse Exceptions.
All All The Mortgage Loans in many or all
cases provide for recourse liability
and/or liability for lender losses for
items in addition to fraud or willful
misrepresentation by the Borrower,
misappropriation of rents, insurance
proceeds or condemnation awards, or
breach of the environmental covenants
set forth in the Mortgage Loan
Documents.
All All The Mortgage Loans in many or all
cases provide for recourse liability
for losses incurred due to the
misapplication of rents only with
respect to rents received by the
related borrower after lender makes
written demand therefor pursuant to
any Mortgage Loan document.
42 Foothills Commerce Center The non-recourse carve-out guarantor
Buildings C, D&E is not a natural person.
00 Xxx Xxxxxxxx Xxxx Xxxxxx
00 Xxxxxxx Xxxxx Apartments
Phase II
54 Residence Inn -
Livermore, CA
66 Quioccasin Center Station
76 Xxxx Crossing
00 Xxxx Xxxxxxxxxx
000 Xxxxxx Xxxxxxx I and II
000 Xxxxxx Xxxxx Service Center
000 Xxxxxx Xxxx
126 NJVC Building
000 Xxxxxxx Xxxxx
144 Office Depot - El Dorado, AR
146 Office Depot - Palestine, TX
156 Sapphire Pointe
ANNEX A TO EXHIBIT C
MORTGAGE LOANS WITH ENVIRONMENTAL INSURANCE COVERAGE
None.
EXHIBIT D
FORM OF CERTIFICATE OF AN OFFICER OF THE SELLER
Certificate of Officer of Artesia Mortgage Capital Corporation
I, ______________________, a ______________________ of Artesia
Mortgage Capital Corporation (the "Seller"), hereby certify as follows:
The Seller is a corporation duly organized and validly existing
under the laws of the State of Delaware.
Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times in
full force and effect.
To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been duly elected and qualified
officer or authorized signatory of the Seller and his or her genuine signature
is set forth opposite his or her name:
Name Office Signature
-------------------------- -------------------------- --------------------------
-------------------------- -------------------------- --------------------------
-------------------------- -------------------------- --------------------------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated November 29, 2007 (the
"Purchase Agreement"), between the Seller and Deutsche Mortgage & Asset
Receiving Corporation providing for the purchase by Deutsche Mortgage & Asset
Receiving Corporation from the Seller of the Mortgage Loans, was, at the
respective times of such signing and delivery, duly authorized or appointed to
execute such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of __________ __, 20__.
By:
--------------------------------------
Name:
Title:
I, [name], [title], hereby certify that __________ is a duly elected
or appointed, as the case may be, qualified and acting __________ of the Seller
and that the signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of __________ __, 20__.
By:
--------------------------------------
Name:
Title:
