Exhibit 99.1
GACC Mortgage Loan Purchase Agreement
See attached
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and effective October 30, 2006, between German American 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 2006-CD3 Mortgage Trust, a
trust fund (the "Trust Fund") to be formed by the Purchaser, the beneficial
ownership of which will be evidenced by a series of mortgage pass-through
certificates (the "Certificates"). Certain classes of the Certificates will be
rated by Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc. and Xxxxx'x Investors Service, 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 October 1, 2006
(the "Pooling and Servicing Agreement"), among the Purchaser as depositor,
Capmark Finance Inc., as a master servicer with respect to all of the Mortgage
Loans other than the Mortgage Loans known as the Ala Moana Portfolio loan and
the Fair Lakes Office Portfolio loan (the "Capmark Master Servicer"), and
Wachovia Bank, National Association with respect to the Mortgage Loans known as
the Ala Moana Portfolio loan and the Fair Lakes Office Portfolio loan (the
"Wachovia Master Servicer" and, collectively with the Capmark Master Servicer,
the "Master Servicers"), X.X. Xxxxxx Company, Inc., as special servicer (in such
capacity, the "Special Servicer") and LaSalle Bank National Association, as
trustee (the "Trustee").
The Purchaser intends to sell certain of the Certificates to
Deutsche Bank Securities Inc. ("DBS"), Citigroup Global Markets Inc. ("CGM"),
Capmark Securities Inc. ("CSI"), Barclays Capital Inc. ("BCI"), Banc of America
Securities LLC ("B of A") and Wachovia Capital Markets, LLC ("Wachovia" and
collectively with DBS, CGM, CSI, BCI and B of A, the "Underwriters") pursuant to
an underwriting agreement dated October 23, 2006 (the "Underwriting Agreement").
The Purchaser intends to sell certain other Certificates (the "Non-Registered
Certificates") pursuant to a certificate purchase agreement dated October 23,
2006 (the "Certificate Purchase Agreement") to Deutsche Bank Securities Inc. and
Citigroup Global Markets Inc. (together, in such capacity the "Initial
Purchaser"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement or in the GACC
Indemnification Agreement which was entered into by the Seller, the Purchaser
and the Underwriters on October 23, 2006.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to
the Purchaser upon receipt of the purchase price referred to in this Section 1,
and the Purchaser agrees to purchase, the Mortgage Loans. The purchase and sale
of the Mortgage Loans shall take place on October 30, 2006 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date"). As of
the close of business on the related due date for each Mortgage Loan occurring
in October 2006 (the "Cut-off Date"), the Mortgage Loans will have an aggregate
principal balance (the "Aggregate Cut-off Date Balance"), after application of
all payments of principal due thereon on or before such date, whether or not
received, of $1,310,759,610, subject to a variance of plus or minus 5%. 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
$1,369,096,550.35.
SECTION 2. Conveyance of Mortgage Loans.
(a) On the Closing Date, subject only to receipt by the Seller of
the purchase price referred to in Section 1 hereof, the satisfaction of the
other closing conditions required to be satisfied on the part of Purchaser
pursuant to Section 7 and the issuance of the Certificates, the Seller agrees to
(i) sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse, all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule, including all rights to
payment in respect thereof, which includes all interest and principal received
or receivable by the Seller on or with respect to the Mortgage Loans after the
Cut-off Date (subject to the proviso in the next sentence), together with all of
the Seller's right, title and interest in and to the proceeds of any related
title, hazard, or other insurance policies and any escrow, reserve or other
comparable accounts related to the Mortgage Loans subject to that certain
Servicing Rights Purchase Agreement dated as of October 30, 2006 between the
Capmark Master Servicer and the Seller and that certain Servicing Rights
Purchase Agreement dated as of October 30, 2006 between the Wachovia Master
Servicer and the Seller; provided, however, to the extent the originator of a
Mortgage Loan has the right, pursuant to the related Mortgage Loan documents, to
establish or designate the successor borrower with respect to a defeasance and
to purchase or cause to be purchased the related defeasance collateral, such
right is retained by the Seller and not transferred to the Purchaser herein. The
Purchaser shall be entitled to (and, to the extent received by or on behalf of
the Seller, the Seller shall deliver or cause to be delivered to or at the
direction of the Purchaser) all scheduled payments of principal and interest due
on the Mortgage Loans after the Cut-off Date, and all other recoveries of
principal and interest collected thereon after the Cut-off Date; provided,
however, that all scheduled payments of principal and interest accrued but not
paid thereon, due on or before the Cut-off Date and collected after the Cut-off
Date shall belong to the Seller, and the Purchaser or its successors or assigns
shall promptly remit any such payments to the Seller.
On or prior to the Closing Date, the Seller shall retain a third
party vendor reasonably satisfactory to the Controlling Class Representative to
complete the assignment and recordation of the related Loan Documents. On or
promptly following the Closing Date, the Seller shall cause such third party
vendor, to the extent possession of recorded copies of each Mortgage and the
documents described in clauses (iii), (iv), (v), (viii), (xiii) and (xiv) of
Exhibit B have been delivered to it, at the expense of the Seller, (1) to
prepare and record (a) each Assignment of Mortgage referred to in clause (iii)
of Exhibit B which has not yet been submitted for recording and (b) each
Reassignment of Assignment of Leases, Rents and Profits referred to in clause
(viii)(B) of Exhibit B (if not otherwise included in the related Assignment of
Mortgage) which has not yet been submitted for recordation; and (2) to prepare
and file each UCC assignment of financing statement referred to in clause (v) or
(xiii) which has not yet been submitted for filing or recording. The Seller
shall direct the related third party vendor to promptly prepare and submit (and
in no event later than 30 Business Days following the receipt of the related
documents in the case of clause 1(a) above and 60 days following the receipt of
the applicable documents in the case of clauses 1(b) and 2 above) for recording
or filing, as the case may be, in the appropriate public recording or filing
office, each such document. In the event that any such document is lost or
returned unrecorded because of a defect therein, the Seller, at its expense,
shall promptly prepare a substitute document for signature by the Purchaser or
itself, as applicable, and thereafter the Seller shall cause each such document
to be duly recorded or filed. The Seller shall, promptly upon receipt of the
original recorded or filed copy (and in no event later than five Business Days
following such receipt) deliver such original to the Custodian (in the case of
each UCC financing statement or UCC assignment of financing statement, with
evidence of filing or recording thereon). Notwithstanding anything to the
contrary contained in this Section 2, in those instances where the public
recording office retains the original Mortgage, Assignment of Mortgage or
Reassignment of Assignment of Leases, Rents and Profits, if applicable, after
any has been recorded, the obligations hereunder of the Purchaser shall be
deemed to have been satisfied upon delivery to the Custodian of a copy of such
Mortgage, Assignment of Mortgage or Reassignment of Assignment of Leases, Rents
and Profits, if applicable, certified by the public recording office to be a
true and complete copy of the recorded original thereof.
(b) In connection with the Seller's assignment pursuant to
subsection (a) above, the Seller shall deliver to and deposit with, or cause to
be delivered to and deposited with, the Custodian, on or before the Closing
Date, the Note for each Mortgage Loan, within 30 days following the Closing
Date, the remaining applicable documents in Exhibit B for each such Mortgage
Loan or Serviced Companion Loan, in each case with copies to each of the Master
Servicers, as applicable.
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.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of any of the documents and/or instruments
referred to in clauses (ii), (v), (viii)(A), (xiv) and (xvi) of Exhibit B and
the UCC financing statements and UCC assignments of financing statements
referred to in clause (xiii) of Exhibit B, with evidence of recording or filing
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, or because such original recorded or filed document has been lost or
returned from the recording or filing office and subsequently lost, as the case
may be, the delivery requirements of this Section 2(b) shall be deemed to have
been satisfied as to such missing item, and such missing item shall be deemed to
have been included in the related Mortgage File, provided that a copy of such
document or instrument (without evidence of recording or filing thereon, but
certified (which certificate may relate to multiple documents and/or
instruments) by the applicable public recording or filing office, the applicable
title insurance company or by the Seller to be a true and complete copy of the
original thereof submitted for recording or filing, as the case may be) has been
delivered to the Trustee within 45 days after the Closing Date, and either the
original of such missing document or instrument, or a copy thereof, with
evidence of recording or filing, as the case may be, thereon, is delivered to or
at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee) within 180 days after
the Closing Date (or within such longer period after the Closing Date as the
Purchaser (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Seller has provided the Purchaser (or such
subsequent owner) with evidence of such recording or filing, as the case may be,
or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or filing, as the case may be, and is, as certified
to the Purchaser (or such subsequent owner) no less often than quarterly, in
good faith attempting to obtain from the appropriate county recorder's or filing
office such original or copy).
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (vii) of Exhibit B solely because such policy has
not yet been issued, the delivery requirements of this Section 2(b) shall be
deemed to be satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that the
Seller has delivered to the Trustee a binder marked as binding and countersigned
by the title insurer or its authorized agent (which may be a pro forma or
specimen title insurance policy which has been accepted or approved in writing
as binding by the related title insurance company) or an acknowledged closing
instruction or escrow letter, and the Seller shall deliver to or at the
direction of the Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee), promptly following the receipt
thereof, the original related lender's title insurance policy (or a copy
thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan. On the Closing Date, upon
notification from the Seller that the purchase price referred to in Section 1
has been received by the Seller and the issuance of the Certificates, the
Purchaser shall be authorized to release to the Trustee or its designee all of
the Mortgage Files in the Purchaser's possession relating to the Mortgage Loans.
Notwithstanding anything herein to the contrary, with respect to the
documents referred to in clause (xvii) and clause (xviii) on Exhibit B, each of
the Master Servicers, as applicable, 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 each of the Master Servicers, as applicable. 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 each of the Master Servicers, as applicable) in
order for each of the Master Servicers, as applicable, to draw on such letter of
credit on behalf of the Trust. In the event that the documents specified in
clause (xviii) on Exhibit B are missing because the related assignment or
amendment documents have not been completed, the Seller shall take all necessary
steps to enable each of the Master Servicers 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 related Master
Servicers, as applicable, and immediately remitting such funds (or causing such
funds to be remitted) to each of the Master Servicers, as applicable.
Contemporaneously with the execution of this Agreement by the
Purchaser and the Seller, the Seller shall deliver a power of attorney to each
of the Master Servicers, as applicable, and the Special Servicer at the
direction of the Controlling Class Representative or its assignees, to take such
other action as is necessary to effect the delivery, assignment and/or
recordation of any documents and/or instruments relating to any Mortgage Loan
which have not been delivered, assigned or recorded at the time required for
enforcement by the Trust Fund. The Seller will be required to effect at its
expense the assignment and recordation of its Loan Documents until the
assignment and recordation of all such Loan Documents has been completed.
(c) As to each Mortgage Loan, the Seller shall be responsible for
all costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (viii)(B) of Exhibit B and each
UCC-2 and UCC-3 assignment of financing statement, if any, referred to in clause
(v)(B) of Exhibit B. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause the preparation of a substitute therefor
or cure or cause the curing of such defect, as the case may be, and shall
thereafter deliver the substitute or corrected document to or at the direction
of the Purchaser (or any subsequent owner of the affected Mortgage Loan,
including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) Except as provided below, all documents and records in the
Seller's possession (or under its control) relating to the Mortgage Loans that
are not required to be a part of a Mortgage File in accordance with Exhibit B
but that are reasonably required to service the Mortgage Loans (all such other
documents and records, including Environmental Reports, as to any Mortgage Loan,
the "Servicing File"), together with copies of the documents contained in the
related Mortgage File and all escrow payments, reserve funds and other
comparable funds in the possession of the Seller (or under its control) with
respect to the Mortgage Loans, shall (unless they are held by a sub-servicer
that shall, as of the Closing Date, begin acting on behalf of a 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 Borrower or third parties other than the
Seller's attorneys). If a sub-servicer shall, as of the Closing Date, begin
acting on behalf of either of the Master Servicers, 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 related Master
Servicers.
(e) Each of the Seller's and the Purchaser's records will reflect
the transfer of the Mortgage Loans to the Purchaser as a sale, including for
accounting purposes.
(f) Furthermore, it is the express intent of the parties hereto that
the conveyance of the Mortgage Loans by Seller to Depositor as provided in this
Agreement be, and be construed as, a sale of the Mortgage Loans by Seller to
Depositor. It is, further, not the intention of the parties that such conveyance
be deemed a pledge of the Mortgage Loans by Seller to Depositor to secure a debt
or other obligation of Seller. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of Seller or
if for any reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans:
(i) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect
in the applicable state;
(ii) the conveyance provided for in this Agreement shall hereby
grant from Seller to Depositor a security interest in and to all of
Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property consisting of, arising
from or relating to any of the property described in the Mortgage
Loans, including the related Notes, Mortgages and title, hazard and
other insurance policies, identified on the Mortgage Loan Schedule,
and all distributions with respect thereto payable after the Cut-off
Date;
(B) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit
and investment property arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable
with respect to, or claims against other persons with respect to,
all or any part of the collateral described in clause (A) above
(including any accrued discount realized on liquidation of any
investment purchased at a discount), in each case, payable after the
Cut-off Date; and
(C) all cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above payable after the Cut-off Date;
(iii) the possession by Depositor or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments,
money, documents, chattel paper or certificated securities shall be deemed
to be possession by the secured party or possession by a purchaser or a
person designated by him or her, for purposes of perfecting the security
interest pursuant to the Uniform Commercial Code (including, without
limitation, Sections 9-306, 9-313 and 9-314 thereof) as in force in the
relevant jurisdiction; and
(iv) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, securities intermediaries, bailees or
agents of, or persons holding for (as applicable), Depositor or its
assignee for the purpose of perfecting such security interest under
applicable law.
The Seller at the direction of the Depositor or its assignee, shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans and the proceeds thereof, such security interest
would be a perfected security interest of first priority under applicable law
and will be maintained as such throughout the term of this Agreement. In
connection herewith, Depositor and its assignee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction and may execute and file such UCC Financing
Statements as may be necessary or appropriate to accomplish the foregoing.
(g) It is further acknowledged and agreed by the Seller that the
Purchaser intends to convey all right, title and interest of the Purchaser in
and to the Mortgage Loans and all rights and remedies under this Agreement
(excluding the Seller's representations, warranties and covenants set forth in
paragraphs (viii) and (ix) of Section 4(b), the Purchaser's rights and remedies
under Section 9 and the GACC 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 of the Purchaser and the
Trustee, each of the representations and warranties set forth in Exhibit C
subject to the exceptions set forth in Exhibit D and any schedule referenced in
Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Maryland, and is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of, and compliance with, the terms of this Agreement by
the Seller, do not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, in each case which materially and
adversely affects the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and the rights of creditors of
national banks, or any other laws that may be applicable in the context of
the insolvency of a national banking association, (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification or contribution for
securities laws liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement do not constitute a violation of, any law, any
judgment, order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(vi) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Seller to perform its obligations
under this Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the
Initial Purchaser, and their respective affiliates, that may be entitled
to any commission or compensation in connection with the sale of the
Mortgage Loans or the consummation of any of the other transactions
contemplated hereby.
(viii) Except with respect to Deutsche Bank Securities Inc., an
affiliate of the Seller, acting as Underwriter and Initial Purchaser,
neither the Seller nor anyone acting on its behalf has (A) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in
any manner, (B) solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner,
(C) otherwise approached or negotiated with respect to any Certificate,
any interest in any Certificate or any other similar security with any
person in any manner, (D) made any general solicitation by means of
general advertising or in any other manner with respect to any
Certificate, any interest in any Certificate or any similar security, or
(E) taken any other action that (in the case of any of the acts described
in clauses (A) through (D) above) would constitute or result in a
violation of the Securities Act or any state securities law relating to or
in connection with the issuance of the Certificates or require
registration or qualification pursuant to the Securities Act or any state
securities law of any Certificate not otherwise intended to be a
Registered Certificate. In addition, the Seller will not act, nor has it
authorized or will it authorize any person (other than an Underwriter
and/or the Initial Purchaser) to act, in any manner set forth in the
foregoing sentence with respect to any of the Certificates or interests
therein. For purposes of this paragraph 4(b)(viii), the term "similar
security" shall be deemed to include, without limitation, any security
evidencing or, upon issuance, that would have evidenced an interest in the
Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information
set forth in Annex A-1 and Annex A-2 to the Prospectus Supplement (as
defined in the GACC Indemnification Agreement) (the "Loan Detail") and, to
the extent consistent therewith, the information set forth on the diskette
attached to the Prospectus Supplement and the accompanying prospectus (the
"Diskette"), is true and correct in all material respects. Insofar as it
relates to the Mortgage Loans and/or the Seller and does not represent a
restatement or aggregation of the information on the Loan Detail, the
information set forth in the Memorandum (as defined in the GACC
Indemnification Agreement) and in the Prospectus Supplement under the
headings "Summary of the Prospectus Supplement--Relevant Parties and
Dates--Sponsors" "--The Mortgage Pool," "Risk Factors, "The Sponsors,
Mortgage Loan Sellers and Originators" 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 contain any untrue statement of a material fact or (in
the case of the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to
state any material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(x) The information set forth in any Disclosure Information (as
defined in the GACC Indemnification Agreement), as last forwarded to each
prospective investor at or prior to the date on which a contract for sale
was entered into with such prospective investor, (i) does not contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and (ii) complies with the
requirements of and contains all of the applicable information required by
Regulation AB (as defined in the GACC Indemnification Agreement); but only
to the extent that (i) such information regards the Mortgage Loans and is
contained in the Loan Detail or, to the extent consistent therewith, the
Diskette or (ii) such information regarding the Seller or the Mortgage
Loans was contained in the Memorandum or 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," "Transaction Parties--The Sponsors"
"Description of the Mortgage Pool" and Annex B and such information does
not represent an incorrect restatement or an incorrect aggregation of
correct information regarding the Mortgage Loans contained in the Loan
Detail.
(xi) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any bulk
sale laws), for the Seller's execution, delivery and performance of, or
compliance by, the Seller with this Agreement, or the consummation by the
Seller of any transaction contemplated hereby, other than (1) the filing
or recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (2) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as have
been obtained, made or given and (3) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the Seller
under this Agreement.
(c) Upon discovery by any of the Seller or the parties to the
Pooling and Servicing Agreement of a breach of any of the representations and
warranties made pursuant to and set forth in subsection (b) above which
materially and adversely affects the interests of the Purchaser or a breach of
any of the representations and warranties made pursuant to subsection (a) above
and set forth in Exhibit C which materially and adversely affects the value of
any Mortgage Loan, the value of the related Mortgaged Property or the interests
therein of the Purchaser, the Trustee on behalf of the Certificateholders or any
Certificateholder, the party discovering such breach shall give prompt written
notice to the Seller and/or the other parties, as applicable.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of State of 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 Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale of
the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the Purchaser's execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as have
been obtained, made or given and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any
of the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases; Substitutions.
(a) If any of the parties to this Agreement discovers that any
document constituting a part of a Mortgage File has not been delivered within
the time periods provided for herein and in the Pooling and Servicing Agreement,
has not been properly executed, is missing, does not appear to be regular on its
face or contains information that does not conform in any material respect with
the corresponding information set forth in the Mortgage Loan Schedule (each, a
"Defect"), or discovers or receives notice of a breach of any representation or
warranty of the Seller made pursuant to Section 4(a) of this Agreement with
respect to any Mortgage Loan (a "Breach"), such party shall give prompt written
notice thereof to each of the Rating Agencies, the Seller, the parties to the
Pooling and Servicing Agreement and the Controlling Class Representative. If any
such Defect or Breach materially and adversely affects the value of any Mortgage
Loan, the value of the related Mortgaged Property or the interests therein of
the Purchaser, the Trustee or any Certificateholders, then such Defect shall
constitute a "Material Defect" or such Breach shall constitute a "Material
Breach," as the case may be; provided, however, that if any of the documents
specified in the first paragraph of Section 2.01(b) of the Pooling and Servicing
Agreement is not delivered, and is certified as missing, pursuant to the first
paragraph of Section 2.01(b) of the Pooling and Servicing Agreement, it shall be
deemed a Material Defect. Promptly upon receiving written notice of any such
Material Defect or Material Breach with respect to a Mortgage Loan (including
through a written notice given by any party hereto, as provided above), the
Seller shall, not later than 90 days from the Seller's receipt of notice from
each of the Master Servicers, as applicable, 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 each of the Master Servicers as applicable for deposit into the
Collection Account (or, with respect to any Serviced Whole Loan, the applicable
Serviced Whole Loan Collection Account) any Substitution Shortfall Amount in
connection therewith; provided, however, that with respect to any Material
Defect arising from a missing document as to which the Trustee inadvertently
certified its possession of such document (x) on the Closing Date, in the form
of Exhibit S-1 to the Pooling and Servicing Agreement or (y) no later than 45
days following the Closing Date, in the form of Exhibit S-2 to the Pooling and
Servicing Agreement, the related Seller shall have (A) 15 days to cure the
Material Defect relating to the missing document in the certification of clause
(x) and (B) 30 days to cure the Material Defect relating to the missing document
in the certification of clause (y); provided, further, that if (i) such Material
Defect or Material Breach (other than one relating to the immediately preceding
proviso) is capable of being cured but not within the Initial Resolution Period,
(ii) such Material Defect or Material Breach is not related to any Mortgage
Loan's not being a "qualified mortgage" within the meaning of the REMIC
Provisions and (iii) the Seller has commenced and is diligently proceeding with
the cure of such Material Defect or Material Breach within the Initial
Resolution Period, then the Seller shall have an additional period equal to the
applicable Resolution Extension Period to complete such cure or, failing such
cure, to repurchase the Mortgage Loan or substitute a Qualifying Substitute
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 either of the Master Servicers, the Special Servicer or
the Trustee to notify the Seller of a Material Defect or Material Breach shall
not constitute a waiver of any cure or repurchase obligation, provided that the
Seller must receive written notice thereof as described in this Section 6(a)
before commencement of the Initial Resolution Period.
(b) In connection with any repurchase of, or substitution for, a
Mortgage Loan contemplated by this Section 6, (A) the Trustee, each of the
Master Servicers, as applicable (with respect to any such Mortgage Loan other
than a Specially Serviced Loan) and the Special Servicer (with respect to any
such Mortgage Loan that is a Specially Serviced Loan) shall each tender to the
Seller, upon delivery (i) to each of the Master Servicers or the Special
Servicer, as applicable, of a trust receipt and (ii) to the Trustee by each of
the Master Servicers or the Special Servicer, as applicable, of a Request for
Release and an acknowledgement by each of the Master Servicers or Special
Servicer, as applicable, of its receipt of the Repurchase Price or the
Substitution Shortfall Amount from the Seller, (1) all portions of the Mortgage
File and other documents pertaining to such Mortgage Loan possessed by it and
(2) each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Trustee shall be endorsed or assigned without recourse in the
form of endorsement or assignment provided to the Trustee by the Seller, as the
case may be, to the Seller as shall be necessary to vest in the Seller the legal
and beneficial ownership of each Removed Mortgage Loan to the extent such
ownership was transferred to the Trustee, and (B) the Trustee shall release, or
cause the release of, any escrow payments and reserve funds held by the Trustee,
or on the Trustee's behalf, in respect of such Removed Mortgage Loan(s) to the
Seller.
(c) This Section 6 provides the sole remedies available to the
Purchaser, and its successors and permitted assigns (i.e., the Trustee and the
holders of the Certificates) in respect of any Defect in a Mortgage File or any
Breach. If the Seller defaults on its obligations to cure, to repurchase, or to
substitute for, any Mortgage Loan in accordance with this Section 6, or disputes
its obligation to cure, to repurchase, or to substitute for, any Mortgage Loan
in accordance with Section 6, the Purchaser or the Trustee, as applicable, may
take such action as is appropriate to enforce such payment or performance,
including, without limitation, the institution and prosecution of appropriate
proceedings. To the extent the Purchaser or the Trustee, as applicable, prevails
in such proceeding, the Seller shall reimburse the Purchaser or the Trustee, 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 related Master Servicers), the
related Mortgage File with the related Note endorsed as required by Section
2.01(a)(i) of the Pooling and Servicing Agreement. 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 each of the related Master Servicers, and
remitted by each of the Master Servicers, as applicable, to the related 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 each of the Master Servicers, as
applicable, 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, each of the Master Servicers, as
applicable, 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 and/or the applicable Serviced Whole Loan Collection
Account, as applicable, 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
Depositor and each of the Master Servicers, as applicable, 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 of the 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 consideration for the
Mortgage Loans as specified in Section 1, 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
E-1 hereto, executed by the Secretary or an assistant secretary of the Seller,
and dated the Closing Date, and upon which the Purchaser, the Initial Purchaser
and each Underwriter may rely, attaching thereto as exhibits the organizational
documents of the Seller;
(c) A certificate of good standing regarding the Seller from the
Secretary of State for the State of Maryland, 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 Purchaser 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 Purchaser
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 assignments 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 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 and reasonable
attorney's fees and legal expenses in connection therewith; (iv) the fees
charged by the Rating Agencies to rate the Certificates so rated and reasonable
attorney's fees and legal expenses in connection therewith; (v) the fees and
expenses of counsel to the Underwriter; (vi) the fees and expenses of counsel to
the Depositor; (vii) the fees and expenses of counsel to the Servicers; (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
German American Capital Corporation, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxx, facsimile no. (000) 000-0000 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 Trustee
any disclosure information relating to any event 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), including, without limitation, the disclosure required under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best efforts to deliver proposed disclosure language relating to any event
described under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K
to the Trustee and the Purchaser within one Business Day and in any event no
later than two Business Days of the Seller becoming aware of such event and
shall provide disclosure relating to any other event reasonably determined by
the Purchaser as required to be disclosed on Form 8-K, Form 10-D or Form 10-K
within two Business Days following the Purchaser's request for such disclosure
language. The obligation of the Seller to provide the above referenced
disclosure materials will terminate upon notice from the Purchaser or the
Trustee that the Trustee 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. 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 paragraphs (viii) and
(ix) of Section 4(b), the Purchaser's rights and remedies under Section 9 and
the GACC 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.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
DEUTSCHE MORTGAGE & ASSET RECEIVING
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth 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) in the case of the Credit Lease Loan, the identity of the Tenant
and the Guarantor under any applicable Guaranty, and the publicly available
corporate credit ratings of such Tenant and Guarantor as of the Closing Date;
(x) the Servicing Fee Rate;
(xi) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(xii) whether such Mortgage Loan has an Anticipated Repayment Date;
(xiii) the Revised Rate of such Mortgage Loan, if any;
(xiv) 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;
(xv) identifying any Mortgage Loans with which any such Mortgage Loans
are cross-collateralized;
(xvi) the applicable Loan Group to which such Mortgage Loan belongs;
and
(xvii) 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 are incorporated by reference into the Mortgage Loan Schedule
attached hereto.
ID Mortgage Loan Seller City State Zip Code
------ -------------------- ----------------- ----- --------
0 XXXX Xxxx Xxxxx XX 00000
0 XXXX Xxxxxx XX 0000
0 XXXX Xxxxxxx XX 00000
0 XXXX Xxxxx Xxxxxx XX 00000
9 XXXX Xxxxxxxxxx XX 00000
00 XXXX Xxx Xxxxxxx XX 00000
00 XXXX Xxxxxx XX 00000
00 XXXX Xxxxxx XX 00000
00 XXXX Xxxxxxxxx XX 00000
00 XXXX Xxxxxxxxx XX 00000
00 XXXX XxXxxxxxx XX 00000
00 XXXX Xxxxx XX 00000
00 XXXX Xxxxxxxx XX 00000
00 XXXX Xxxxxx Xxxx XX 0000
00 XXXX Xxxxxxxxx Xxxxxxx XX 00000
00 XXXX Xxxxxxx Xxx XX 00000
00 XXXX Xxxxxxxxxx Xxxxx XX 00000
00 XXXX Xxxxxx XX 0000
00 XXXX Xxxxxxxxxx XX 00000
00 XXXX Xxxxxxxxx XX 00000
56 GACC Xxxxxxxxxx XX 00000
00 XXXX Xx Xxxxx XX 00000
00 XXXX Xxxxx XX 00000
00 XXXX Xxxxxxxx XX 00000
00 XXXX Xxxxxxxx XX 00000
70 XXXX Xxxxxxxxxx XX 00000
00 XXXX Xxxxxxxxxxxx XX 00000
00 XXXX Xxxxxxx Xxx XX 00000
78.3 XXXX Xxxxxxx XX 00000
81.3 GACC Xxxxxxxxxxxx XX 00000
83.3 XXXX Xxxx XX 00000
84.3 GACC Greenwich CT 6830
86.2 XXXX Xxxxxxxxxx XX 00000
87.2 XXXX Xxxxx XX 00000
103.2 XXXX Xxx Xxxxxxx XX 00000
108.2 GACC Xxxxxxxxxx Xxxxx XX 00000
111.2 XXXX Xxxxxxxxxx XX 00000
112.2 GACC Xxxx Xxxxxxx XX 00000
000.0 XXXX Xxxx Xxxxxx Xxxx XX 00000
146.2 GACC Xxxxxx XX 00000
000.0 XXXX Xxxx Xxx Xxxxxxx XX 00000
162.2 GACC Xxx Xxxxxxx XX 00000
165.2 XXXX Xxxxxx Xxxx XX 00000
169.2 XXXX Xxxxxxxxx XX 00000
170.2 GACC Xxxxxxxx XX 00000
175.2 XXXX Xxxxxxxxx XX 00000
181.2 GACC Xxxxxxxxx XX 00000
187.2 XXXX Xx Xxxxx XX 00000
189.2 GACC Xxx Xxxxxxx XX 00000
ID Address
------ -------------------------------------------------
3 Various
4 000 Xxxxxxxx Xxxxxx
5 Various
8 000 Xxxxxxxx Xxxxxx & 0 Xxxxx Xxxxxxxx
9 000 00xx Xxxxxx XX
10 000 Xxxxx Xxxxxxxx Xxxxxx
11 9901 Business Parkway; 4601, 4640, 4850 & 0000
Xxxxxx Xxxxxxxxx; 0000 Xxxxxxxxxxxx Xxxxx; 5000 &
0000 Xxxxxxxxxxxx Xxx; 4819-4881 Xxxxxx Xxxx
00 0000 Xxxxx Xxxx
22 000 Xxxxxxxx Xxxxx
24 0000 Xxxxxxxxx Xxxxxxxxx
26 1900 Waterford Landing
27 6100 & 0000 Xxxxxxxx Xxxxxxx
29 000 Xxxxxx Xxxx Xxxx
31 000 Xxxxxxx Xxxxxx
35 000-000 Xxxxxxx Xxxxxx
38 Various
39 000 Xxxxxxxxxxxxx Xxxx
49 000 Xxxxxxxx Xxxxxx
51 000 Xxxxxx Xxxx
00 000 Xxxxx Xxxxx Xxxxxxxxx
56 0000 Xxxxx Xxxx
00 00000 Xxxx Xxxxxx Boulevard
63 1105 North Central Expressway
64 3970 - 0000 Xxxxxx Xxxx
69 0000 Xxxxxxxx Xxxxx Xxxxx
70 0000 Xxxxxxxxxx Xxxxxxx
71 0000 Xxxx Xxxxxx
76 00000 Xxxxxxxxxxxx Xxx Xxxxx
78.3 0000 Xxx Xxxx Xxxxxxxxx
81.3 000 Xxx Xxxxx Xxxxxx Xxxxxxx
83.3 0000 Xxxxxxxxx Xxxx
84.3 00 Xxxxx Xxxxx Xxxx
86.2 0000-0000 Xxxxxxxxxxx Xxxxxx XX
87.2 0000-0000 Xxxxx Xxxx Xxxxx
103.2 0000 Xxxxxxx Xxxx Xxxx
108.2 00000 Xxxxxxxxxxxx Xxxxxxx
111.2 0-X Xxxxxxx Xxxxx
000.0 000 Xxxxx Xxxx Xxxxxx & 000 Xxxxx Xxxxxxx Xxxx
121.2 00-00 00xx Xxxxxx
146.2 106-112 Route 59
154.2 668 & 000 Xxxxx Xxxxxxxx Xxxxxxxxx
162.2 0000 Xxxxxxxx Xxxxxxxxx
165.2 20901-20917 Xxxxxxx Xxx & 0000-0000 XxXxxx Xxxxxx
169.2 0000 Xxxxxxx Xxxxxx
170.2 000 Xxxxxxxxxxxxx Xxxxxx
175.2 0000 Xxxx 0xx Xxxxxx
181.2 0000 Xxxx Xxxxx Xxxxxxxxx Xxxxxxx
187.2 1291-1299 Xxxx Xxxx Xxxxxx & 000 Xxxxxxx Xxxx
189.2 0000-0000 Xxxxx Xxxxxxxx
XX Interest Rate Original Balance Cut-off Date Balance Maturity/ARD Balance Payment Date
------ ------------- ---------------- -------------------- -------------------- ------------
3 6.1050% $195,000,000 $195,000,000 $172,950,837 1
4 6.5359% $175,000,000 $175,000,000 $175,000,000 5
5 6.2180% $142,450,000 $142,450,000 $142,450,000 1
8 6.2000% $80,000,000 $80,000,000 $80,000,000 1
9 6.1990% $75,000,000 $75,000,000 $63,997,448 1
10 6.2700% $62,000,000 $62,000,000 $58,215,721 1
11 6.0800% $55,000,000 $55,000,000 $51,512,254 1
20 6.0714% $34,800,000 $34,800,000 $31,492,820 1
22 6.0000% $32,940,000 $32,940,000 $30,818,370 1
24 6.0620% $29,200,000 $29,200,000 $27,342,950 1
26 6.0000% $25,800,000 $25,800,000 $24,138,249 1
27 6.0070% $25,250,000 $25,250,000 $23,626,063 1
29 6.0000% $24,560,000 $24,560,000 $22,978,116 1
31 5.8840% $23,365,000 $23,365,000 $844,458 1
35 6.1240% $22,000,000 $22,000,000 $19,928,799 1
38 6.2500% $20,100,000 $20,100,000 $18,568,624 1
39 6.3450% $20,000,000 $20,000,000 $18,796,531 1
49 10.3785% $17,000,000 $17,000,000 $17,000,000 5
51 6.1740% $16,500,000 $16,500,000 $15,473,449 1
55 6.3260% $14,550,000 $14,550,000 $13,671,152 1
56 6.3290% $14,500,000 $14,500,000 $13,186,088 1
59 6.4400% $14,000,000 $13,976,840 $12,026,168 1
63 5.9250% $12,080,000 $12,080,000 $12,080,000 1
64 6.1320% $12,000,000 $12,000,000 $11,247,222 1
69 6.2850% $11,340,000 $11,340,000 $11,340,000 1
70 6.3220% $11,200,000 $11,200,000 $10,523,432 1
71 6.1100% $11,200,000 $11,200,000 $10,494,004 1
76 6.1560% $10,700,000 $10,700,000 $10,323,795 1
78.3 5.9460% $10,250,000 $10,250,000 $9,423,142 1
81.3 6.2130% $9,400,000 $9,400,000 $8,819,350 1
83.3 6.1450% $9,300,000 $9,300,000 $8,428,519 1
84.3 5.9000% $9,150,000 $9,056,042 $- 1
86.2 5.8700% $9,000,000 $9,000,000 $8,405,919 1
87.2 5.6430% $9,000,000 $9,000,000 $9,000,000 1
103.2 5.9650% $7,400,000 $7,400,000 $7,400,000 1
108.2 6.4050% $7,000,000 $7,000,000 $6,314,900 1
111.2 6.2300% $6,900,000 $6,900,000 $6,475,438 1
112.2 5.9500% $6,800,000 $6,800,000 $6,144,461 1
121.2 6.0270% $6,250,000 $6,250,000 $5,651,032 1
146.2 6.4200% $4,700,000 $4,700,000 $4,353,696 1
154.2 6.1150% $4,285,000 $4,285,000 $3,806,923 1
162.2 6.1330% $3,590,000 $3,590,000 $3,252,407 1
165.2 6.4400% $3,500,000 $3,494,210 $3,006,541 1
169.2 6.0830% $3,296,000 $3,296,000 $3,087,135 1
170.2 6.1600% $3,250,000 $3,244,268 $2,769,547 1
175.2 6.4000% $3,200,000 $3,192,251 $2,746,071 1
181.2 6.2000% $2,650,000 $2,650,000 $2,260,546 1
187.2 6.1430% $2,240,000 $2,240,000 $2,029,744 1
189.2 6.1150% $2,200,000 $2,200,000 $1,954,546 1
ID Monthly Debt Service CTL Tenant
------ -------------------- ---------------------------------------------
3 $1,182,320
4 $966,395 InterContinental Hotels Group Resources, Inc.
5 $748,380
8 $419,074
9 $459,303
10 $382,552
11 $332,587
20 $210,244
22 $197,492
24 $176,234
26 $154,684
27 $151,500
29 $147,250
31 $139,878 Home Depot U.S.A., Inc.
35 $133,660
38 $123,759
39 $124,382
49 $149,071
51 $100,779
55 $90,307
56 $90,025
59 $87,938
63 $60,473
64 $72,968
69 $60,218
70 $69,486
71 $67,944
76 $65,229
78.3 $61,099
81.3 $57,651
83.3 $56,628
84.3 $77,154
86.2 $53,210
87.2 $42,910
103.2 $37,295
108.2 $43,808
111.2 $42,395
112.2 $43,605
121.2 $37,580
146.2 $29,460
154.2 $26,008
162.2 $21,832
165.2 $21,984
169.2 $19,937
170.2 $19,821
175.2 $20,016
181.2 $16,230
187.2 $13,637
189.2 $13,353
ID CTL Guarantor CTL Tenant Corporate Credit Rating (S/M/F)
------ -------------------------------------- ------------------------------------------
3
4 InterContinental Hotels Limited, (1)
Six Continents Limited
5
8
9
10
11
20
22
24
26
27
29
31 Home Depot U.S.A., Inc. (2)
35
38
39
49
51
55
56
59
63
64
69
70
71
76
78.3
81.3
83.3
84.3
86.2
87.2
103.2
108.2
111.2
112.2
121.2
146.2
154.2
162.2
165.2
169.2
170.2
175.2
181.2
187.2
189.2
ID Administrative Fee Rate Interest Accrual Basis ARD (Yes/No)
------ ----------------------- ---------------------- ------------
3 0.03% Actual/360 No
4 0.03% Actual/360 No
5 0.03% Actual/360 No
8 0.03% Actual/360 No
9 0.03% Actual/360 No
10 0.03% Actual/360 No
11 0.03% Actual/360 No
20 0.03% Actual/360 No
22 0.03% Actual/360 No
24 0.03% Actual/360 No
26 0.03% Actual/360 No
27 0.03% Actual/360 No
29 0.03% Actual/360 No
31 0.03% 30/360 No
35 0.03% Actual/360 No
38 0.03% Actual/360 No
39 0.03% Actual/360 No
49 0.03% Actual/360 No
51 0.03% Actual/360 No
55 0.03% Actual/360 No
56 0.03% Actual/360 No
59 0.03% Actual/360 No
63 0.03% Actual/360 No
64 0.03% Actual/360 No
69 0.03% Actual/360 No
70 0.03% Actual/360 No
71 0.03% Actual/360 No
76 0.03% Actual/360 No
78.3 0.03% Actual/360 No
81.3 0.03% Actual/360 No
83.3 0.03% Actual/360 No
84.3 0.03% Actual/360 No
86.2 0.03% Actual/360 No
87.2 0.03% Actual/360 No
103.2 0.06% Actual/360 No
108.2 0.03% Actual/360 No
111.2 0.03% Actual/360 No
112.2 0.03% Actual/360 No
121.2 0.03% Actual/360 No
146.2 0.03% Actual/360 No
154.2 0.03% Actual/360 No
162.2 0.03% Actual/360 No
165.2 0.03% Actual/360 No
169.2 0.08% Actual/360 No
170.2 0.03% Actual/360 No
175.2 0.03% Actual/360 No
181.2 0.03% Actual/360 No
187.2 0.03% Actual/360 No
189.2 0.09% Actual/360 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
LaSalle Bank National Association, as Trustee for the registered holders of CD
2006-CD3, Commercial Mortgage Pass-Through Certificates, without recourse"; and
(B) in the case of each related 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);
(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;
(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;
(vi) the original or a copy of the Loan Agreement thereof 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 (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;
(ix) copies of the original environmental indemnity agreements and
environmental insurance policies pertaining to the Mortgaged Properties required
in connection with origination of the Mortgage Loans, if any;
(x) [Reserved];
(xi) if the Borrower has a leasehold interest in the related
Mortgaged Property, the original Ground Lease 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 related
Master Servicers, pursuant to Section 2(b) of any letter of credit for the
benefit of the lender securing 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 each of the Master
Servicers, as applicable, pursuant to Section 2(b) which entitles each of the
Master Servicers, as applicable, 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.
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
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date, except as set forth on Exhibit D hereto and the Annex
hereto referred to below:
1. The information pertaining to each Mortgage Loan set forth in the
Mortgage Loan Schedule was true and correct in all material respects as of the
Cut-off Date.
2. As of the date of its origination, such Mortgage Loan and, the
interest (exclusive of any default interest, late charges or prepayment
premiums) contracted for thereunder, complied in all material respects with, or
was exempt from, all requirements of federal, state or local law relating to the
origination of such Mortgage Loan, including those pertaining to usury.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good and marketable title to, and was the sole owner
of, each Mortgage Loan, and the Seller is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges or security interests of any
nature encumbering such Mortgage Loan. Upon consummation of the transactions
contemplated by the Mortgage Loan Purchase Agreement, the Seller will have
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to such Mortgage Loan free and clear of any pledge, lien or
security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed
(except if such Mortgage Loan is a Mortgage Loan as to which a portion of the
funds disbursed are being held in escrow or reserve accounts) and there is no
requirement for future advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed by the Borrower in connection with such
Mortgage Loan is a legal, valid and binding obligation of the related Borrower
(subject to any non-recourse provisions therein and any state anti-deficiency or
market value limit deficiency legislation), enforceable in accordance with its
terms, except (a) that certain provisions contained in such Mortgage Loan
documents are or may be unenforceable in whole or in part under applicable state
or federal laws, but neither the application of any such laws to any such
provision nor the inclusion of any such provisions renders any of the Mortgage
Loan documents invalid as a whole and such Mortgage Loan documents taken as a
whole are enforceable to the extent necessary and customary for the practical
realization of the rights and benefits afforded thereby and (b) as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). The related Mortgage Note and Mortgage contain no provision limiting
the right or ability of the Seller to assign, transfer and convey the related
Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with respect to any of
the related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-off Date, there is no valid offset,
defense, counterclaim or right to rescission with respect to such Mortgage Note,
Mortgage(s) or other agreements, except in each case, with respect to the
enforceability of any provisions requiring the payment of default interest, late
fees, additional interest, prepayment premiums or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment
of Leases from the Seller to the Trustee constitutes the legal, valid and
binding assignment from the Seller, except as such enforcement may be limited by
bankruptcy, insolvency, redemption, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights generally or
by general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). Each Mortgage and Assignment of
Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property subject only to the exceptions set forth in
representation (5) above and the following title exceptions (each such title
exception, a "Title Exception", and collectively, the "Title Exceptions"): (a)
the lien of current real property taxes, ground rents, water charges, sewer
rents and assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record, none
of which, individually or in the aggregate, materially and adversely interferes
with the current use of the Mortgaged Property or the security intended to be
provided by such Mortgage or with the Borrower's ability to pay its obligations
under the Mortgage Loan when they become due or materially and adversely affects
the value of the Mortgaged Property, (c) the exceptions (general and specific)
and exclusions set forth in the applicable policy described in representation
(12) below or appearing of record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the Borrower's
ability to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (d) other
matters to which like properties are commonly subject, none of which,
individually or in the aggregate, materially and adversely interferes with the
current use of the Mortgaged Property or the security intended to be provided by
such Mortgage or with the Borrower's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely affects the value
of the Mortgaged Property, (e) the right of tenants (whether under ground
leases, space leases or operating leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such tenants are
performing under such leases), (f) if such Mortgage Loan is cross-collateralized
with any other Mortgage Loan, the lien of the Mortgage for such other Mortgage
Loan, and (g) if such Mortgage Loan is part of a Serviced Whole Loan, the lien
of the Mortgage for the related Companion Loan, none of which, individually or
in the aggregate, materially and adversely interferes with the current use of
the Mortgaged Property or the security intended to be provided by such Mortgage
or with the Borrower's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property. Except with respect to cross-collateralized and
cross-defaulted Mortgage Loans and Mortgage Loans that are part of a Serviced
Whole Loan, there are no mortgage loans that are senior or pari passu with
respect to the related Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if
not filed and/or recorded, have been submitted in proper form for filing and
recording) in all public places necessary at the time of the origination of each
Mortgage Loan to perfect a valid security interest in all items of personal
property reasonably necessary to operate the Mortgaged Property owned by a
Borrower and located on the related Mortgaged Property (other than any personal
property subject to a purchase money security interest or a sale and leaseback
financing arrangement permitted under the terms of such Mortgage Loan or any
other personal property leases applicable to such personal property), to the
extent perfection may be effected pursuant to applicable law by recording or
filing, and the Mortgages, security agreements, chattel Mortgages or equivalent
documents related to and delivered in connection with the related Mortgage Loan
establish and create a valid and enforceable lien and priority security interest
on such items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium, redemption,
liquidation or other laws affecting the enforcement of creditor's rights
generally, or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). Notwithstanding
any of 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 UCC
Financing Statements are required in order to effect such perfection.
10. All real estate taxes and governmental assessments, or
installments thereof, which would be a lien on the Mortgaged Property and that
prior to the Cut-off Date have become delinquent in respect of each related
Mortgaged Property have been paid, or an escrow of funds in an amount sufficient
to cover such payments has been established. For purposes of this representation
and warranty, real estate taxes and governmental assessments and installments
thereof shall not be considered delinquent until the earlier of (a) the date on
which interest and/or penalties would first be payable thereon and (b) the date
on which enforcement action is entitled to be taken by the related taxing
authority.
11. To the Seller's actual knowledge as of the Cut-off Date, and to
the Seller's actual knowledge based solely upon due diligence customarily
performed with the origination of comparable mortgage loans by the Seller, each
related Mortgaged Property was free and clear of any material damage (other than
deferred maintenance for which escrows were established at origination) that
would materially and adversely affect the value of such Mortgaged Property as
security for the Mortgage Loan and to the Seller's actual knowledge as of the
Cut-off Date there was no proceeding pending for the total or partial
condemnation of such Mortgaged Property.
12. The lien of each related Mortgage as a first priority lien in
the original principal amount of such Mortgage Loan (and, in the case of a
Mortgage Loan that is part of a Serviced Whole Loan, in the original (aggregate,
if applicable) principal amount of the other mortgage loan(s) constituting the
related Serviced Whole Loan) after all advances of principal (as set forth on
the Mortgage Loan Schedule) is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller, its successors and assigns,
subject only to the Title Exceptions; the Seller or its successors or assigns is
the named insured of such policy; such policy is assignable without consent of
the insurer and will inure to the benefit of the Trustee as mortgagee of record;
such policy is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; all premiums thereon have been
paid; no material claims have been made under such policy and the Seller has not
done anything, by act or omission, and the Seller has no actual knowledge of any
matter, which would impair or diminish the coverage of such policy. The insurer
issuing such policy is either (x) a nationally recognized title insurance
company or (y) qualified to do business in the jurisdiction in which the related
Mortgaged Property is located to the extent required; such policy contains no
material exclusions for, or affirmatively insures (except for any Mortgaged
Property located in a jurisdiction where such insurance is not available) (a)
access to a public road or (b) against any loss due to encroachments of any
material portion of the improvements thereon.
13. 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
capital markets conduit 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 improvements located at the
Mortgaged Property, and not less than the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged Property,
and the policy contains no provisions for a deduction for depreciation; (b) a
business interruption or rental loss insurance policy, in an amount at least
equal to twelve months of operations of the Mortgaged Property estimated as of
the date of origination by the originator of such Mortgage Loan consistent with
its capital markets conduit lending practices; (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 for properties of similar types and in any event not less than
$1 million per occurrence. Each 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, reduction of coverage 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 Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will (or at the lender's option 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 Mortgagor, or
(c) to the reduction of the principal amount of the Mortgage Loan. For each
Mortgaged Property located in a Zone 3 or Zone 4 seismic zone, either: (i) a
seismic report which indicated a PML of less than 20% was prepared, based on a
450 or 475-year average return period with a 10% probability of exceedance in a
50-year period, in connection with the origination of the Mortgage Loan secured
by such Mortgaged Property or (ii) the improvements for the Mortgaged Property
are insured against earthquake damage.
14. The insurance policies contain a standard mortgagee clause
naming the holder of the related Mortgage, its successors and assigns as loss
payee, in the case of a property insurance policy, and additional insured in the
case of a liability insurance policy, and provide that they are not terminable
without 30 days prior written notice to the Mortgagee (or, with respect to
non-payment, 10 days prior written notice to the Mortgagee) or such lesser
period as prescribed by applicable law. Each Mortgage requires that the Borrower
maintain insurance as described above or permits the Mortgagee to require
insurance as described above, and permits the Mortgagee to purchase such
insurance at the Borrower's expense if Borrower fails to do so.
15. Other than payments due but not yet 30 days or more delinquent,
to the Seller's actual knowledge, based upon due diligence customarily performed
with the servicing of comparable mortgage loans by prudent commercial and
multifamily mortgage lending institutions, there is no material default, breach,
violation or event of acceleration existing under the related Mortgage or the
related Mortgage Note, and to the Seller's actual knowledge no event (other than
payments due but not yet delinquent) which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration; provided, however,
that this representation and warranty does not 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 paragraph of this Exhibit C and the Seller has not waived any
material default, breach, violation or event of acceleration under such Mortgage
or Mortgage Note, except for a written waiver contained in the related Mortgage
File being delivered to the Purchaser, and pursuant to the terms of the related
Mortgage or the related Mortgage Note and other documents in the related
Mortgage File no Person or party other than the holder of such Mortgage Note may
declare any event of default or accelerate the related indebtedness under either
of such Mortgage or Mortgage Note.
16. As of the Closing Date, each Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past due in
respect of any Scheduled Payment.
17. Except with respect to ARD Loans, which provide that the rate at
which interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or prepayment
premiums) of such Mortgage Loan is a fixed rate.
18. Each related Mortgage does not provide for or permit, without
the prior written consent of the holder of the Mortgage Note, each related
Mortgaged Property to secure any other promissory note or obligation except as
expressly described in such Mortgage or other Mortgage Loan document.
19. Each Mortgage Loan is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (a)
substantially all of the proceeds of such Mortgage Loan were used to acquire,
improve or protect the portion of such commercial or multifamily residential
property that consists of an interest in real property (within the meaning of
Treasury Regulations Sections 1.856-3(c) and 1.856-3(d)) and such interest in
real property was the only security for such Mortgage Loan as of the Testing
Date (as defined below), or (b) the fair market value of the interest in real
property which secures such Mortgage Loan was at least equal to 80% of the
principal amount of such Mortgage Loan (i) as of the Testing Date, or (ii) as of
the Closing Date. For purposes of the previous sentence, (A) the fair market
value of the referenced interest in real property shall first be reduced by (1)
the amount of any lien on such interest in real property that is senior to such
Mortgage Loan, and (2) a proportionate amount of any lien on such interest in
real property that is on a parity with the Mortgage Loan, and (B) the "Testing
Date" shall be the date on which the referenced Mortgage Loan was originated
unless (1) such Mortgage Loan was modified after the date of its origination in
a manner that would cause a "significant modification" of such Mortgage Loan
within the meaning of Treasury Regulations Section 1.1001-3(b), and (2) such
"significant modification" did not occur at a time when such Mortgage Loan was
in default or when default with respect to such Mortgage Loan was reasonably
foreseeable. However, if the referenced Mortgage Loan has been subjected to a
"significant modification" after the date of its origination and at a time when
such Mortgage Loan was not in default or when default with respect to such
Mortgage Loan was not reasonably foreseeable, the Testing Date shall be the date
upon which the latest such "significant modification" occurred.
20. One or more environmental site assessments, updates or
transaction screens thereof were performed by an environmental consulting firm
independent of the Seller and the Seller's affiliates with respect to each
related Mortgaged Property during the 18-months preceding the origination of the
related Mortgage Loan, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the assessment(s),
updates or transaction screens referenced herein, has no actual knowledge and
has received no notice of any material and adverse environmental condition or
circumstance affecting such Mortgaged Property that was not disclosed in such
report(s). If any such environmental report identified any Recognized
Environmental Condition (REC), as that term is defined in the Standard Practice
for Environmental Site Assessments: Phase I Environmental Site Assessment
Process Designation: E 1527-00, as recommended by the American Society for
Testing and Materials (ASTM), with respect to the related Mortgaged Property and
the same have not been subsequently addressed in all material respects, then
either (i) an escrow greater than 100% of the amount identified as necessary by
the environmental consulting firm to address the REC is held by the Seller for
purposes of effecting same (and the related Borrower has covenanted in the
Mortgage Loan documents to perform such work), (ii) the related Borrower or
other responsible party having financial resources reasonably estimated to be
adequate to address the REC is required to take such actions or is liable for
the failure to take such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental regulatory
authority or any environmental law or regulation, (iii) the related Borrower has
provided a secured creditor environmental insurance policy (in which case such
Mortgage Loan is identified on Annex A to this Exhibit C), (iv) an operations
and maintenance plan has been or will be implemented or (v) such conditions or
circumstances were investigated further and based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation. All environmental assessments or updates that were
in the possession of the Seller and that relate to a Mortgaged Property insured
by an environmental insurance policy have been delivered to or disclosed to the
environmental insurance carrier issuing such policy prior to the issuance of
such policy.
21. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties similarly situated such as to render the rights
and remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure, subject to
the effects of bankruptcy, insolvency, reorganization, receivership, moratorium,
redemption, liquidation or similar laws affecting the rights of creditors and
the application of principles of equity.
22. At the time of origination and, to the actual knowledge of
Seller as of the Cut-off Date, no Borrower is a debtor in, and no Mortgaged
Property is the subject of, any state or federal bankruptcy or insolvency
proceeding.
23. Except with respect to any Mortgage Loan that is part of a
Serviced Whole Loan, each Mortgage Loan is a whole loan and contains no equity
participation by the Seller or shared appreciation feature and does not provide
for any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property or, other than the ARD Loans,
provide for negative amortization. The Seller holds no preferred equity interest
in the related Borrower.
24. Subject to certain exceptions, which are customarily acceptable
to prudent commercial and multifamily mortgage lending institutions lending on
the security of property comparable to the related Mortgaged Property, each
related Mortgage or loan agreement contains provisions for the acceleration of
the payment of the unpaid principal balance of such Mortgage Loan if, without
complying with the requirements of the Mortgage or loan agreement, (a) the
related Mortgaged Property, or any controlling interest in the related Borrower,
is directly transferred or sold (other than by reason of family and estate
planning transfers, transfers by devise, descent or operation of law upon the
death or incapacity of a member, general partner or shareholder of the related
Borrower, transfers of less than a controlling interest in a Borrower, issuance
of non-controlling new equity interests, transfers among existing members,
partners or shareholders in the Borrower or an affiliate thereof, transfers
among affiliated Borrowers with respect to cross-collateralized and
cross-defaulted Mortgage Loans or multi-property Mortgage Loans or transfers of
a similar nature to the foregoing meeting the requirements of the Mortgage Loan,
such as pledges of ownership interest that do not result in a change of control)
or a substitution or release of collateral is effected other than in the
circumstances specified in representation (27) below, or (b) the related
Mortgaged Property is encumbered in connection with subordinate financing by a
lien or security interest against the related Mortgaged Property, other than any
existing permitted additional debt.
25. Except as set forth in the related Mortgage File, the terms of
the related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by such
Mortgage.
26. Each related Mortgaged Property was inspected by or on behalf of
the related originator or an affiliate during the 12-month period prior to the
related origination date.
27. Since origination, no material portion of the related Mortgaged
Property has been released from the lien of the related Mortgage in any manner
which materially and adversely affects the value of the Mortgage Loan or
materially interferes with the security intended to be provided by such
Mortgage, and, except with respect to Mortgage Loans (a) which permit defeasance
by means of substituting for the Mortgaged Property (or, in the case of a
Mortgage Loan secured by multiple Mortgaged Properties, one or more of such
Mortgaged Properties) "government securities" within the meaning of Treasury
Regulation Section 1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loans (or
portions thereof) in accordance with their terms, (b) where a release of the
portion of the Mortgaged Property was contemplated at origination and such
portion was not considered material for purposes of underwriting the Mortgage
Loan, (c) where release is conditional upon the satisfaction of certain
underwriting and legal requirements and the payment of a release price that
represents adequate consideration for such Mortgaged Property or the portion
thereof that is being released, (d) which permit the related Borrower to
substitute a replacement property in compliance with REMIC Provisions or (e)
which permit the release(s) of unimproved out-parcels or other portions of the
Mortgaged Property that will not have a material adverse affect on the
underwritten value of the security for the Mortgage Loan or that were not
allocated any value in the underwriting during the origination of the Mortgage
Loan, the terms of the related Mortgage do not provide for release of any
portion of the Mortgaged Property from the lien of the Mortgage except in
consideration of payment in full therefor.
28. To the Seller's actual knowledge, based upon a letter from
governmental authorities, a legal opinion, an endorsement to the related title
policy, an architect's letter or zoning consultant's report or based upon other
due diligence considered reasonable by prudent commercial and multifamily
mortgage lending institutions in the area where the applicable Mortgaged
Property is located, as of the date of origination of such Mortgage Loan and as
of the Cut-off Date, there are no material violations of any applicable zoning
ordinances, building codes and land laws applicable to the Mortgaged Property or
the use and occupancy thereof which (a) are not insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, or a law and ordinance insurance policy
or (b) would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
29. To the Seller's actual knowledge based on surveys and/or the
title policy referred to herein obtained in connection with the origination of
each Mortgage Loan, none of the material improvements which were included for
the purposes of determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan lies outside of the
boundaries and building restriction lines of such property (except Mortgaged
Properties which are legal non-conforming uses), to an extent which would have a
material adverse affect on the value of the Mortgaged Property or related
Borrower's use and operation of such Mortgaged Property (unless affirmatively
covered by title insurance) and no improvements on adjoining properties
encroached upon such Mortgaged Property to any material and adverse extent
(unless affirmatively covered by title insurance).
30. With respect to at least 95% of the Seller's Mortgage Loans (by
principal balance) having a Cut-off Date Balance in excess of 1% of the Initial
Pool Balance, the related Borrower has covenanted in its organizational
documents and/or the Mortgage Loan documents to own no significant asset other
than the related Mortgaged Property or Mortgaged Properties, as applicable, and
assets incidental to its ownership and operation of such Mortgaged Property, and
to hold itself out as being a legal entity, separate and apart from any other
Person.
31. No advance of funds has been made other than pursuant to the
loan documents, directly or indirectly, by the Seller to the Borrower and, to
the Seller's actual knowledge, no funds have been received from any Person other
than the Borrower, for or on account of payments due on the Mortgage Note or the
Mortgage.
32. As of the date of origination and, to the Seller's actual
knowledge, as of the Cut-off Date, there was no pending action, suit or
proceeding, or governmental investigation of which it has received notice,
against the Borrower or the related Mortgaged Property the adverse outcome of
which could reasonably be expected to materially and adversely affect such
Borrower's ability to pay principal, interest or any other amounts due under
such Mortgage Loan or the security intended to be provided by the Mortgage Loan
documents or the current use of the Mortgaged Property.
33. As of the date of origination, and, to the Seller's actual
knowledge, as of the Cut-off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has either been
properly designated and serving under such Mortgage or may be substituted in
accordance with the Mortgage and applicable law.
34. Except with respect to any Mortgage Loan that is part of a
Serviced Whole Loan, the related Mortgage Note is not secured by any collateral
that secures a mortgage loan that is not in the Trust Fund and each Mortgage
Loan that is cross-collateralized is cross-collateralized only with other
Mortgage Loans sold pursuant to this Agreement.
35. The improvements located on the Mortgaged Property are either
not located in a federally designated special flood hazard area or the Borrower
is required to maintain or the mortgagee maintains, flood insurance with respect
to such improvements and such insurance policy is in full force and effect.
36. All escrow deposits and payments required pursuant to the
Mortgage Loan as of the Closing Date required to be deposited with the Seller in
accordance with the Mortgage Loan documents have been so deposited, and to the
extent not disbursed or otherwise released in accordance with the related
Mortgage Loan documents, are in the possession, or under the control, of the
Seller or its agent and there are no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to the
related geographic area and properties comparable to the related Mortgaged
Property, as of the date of origination of the Mortgage Loan, the related
Borrower was in possession of all material licenses, permits and authorizations
then required for use of the related Mortgaged Property, and, as of the Cut-off
Date, the Seller has no actual knowledge that the related Borrower was not in
possession of such licenses, permits and authorizations.
38. The origination (or acquisition, as the case may be) practices
used by the Seller or its affiliates with respect to the Mortgage Loan have been
in all material respects legal and the servicing and collection practices used
by the Seller or its affiliates with respect to the Mortgage Loan have met
customary industry standards for servicing of commercial mortgage loans for
conduit loan programs.
39. Except for any Mortgage Loan secured by a Borrower's leasehold
interest in the related Mortgaged Property, the related Borrower (or its
affiliate) has title in the fee simple interest in each related Mortgaged
Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that
each Mortgage Loan is non-recourse to the related Borrower except that the
related Borrower accepts responsibility for fraud and/or other intentional
material misrepresentation. The Mortgage Loan documents for each Mortgage Loan
provide that the related Borrower shall be liable to the lender for losses
incurred due to the misapplication or misappropriation of rents collected in
advance or received by the related Borrower after the occurrence of an event of
default and not paid to the Mortgagee or applied to the Mortgaged Property in
the ordinary course of business, misapplication or conversion by the Borrower of
insurance proceeds or condemnation awards or breach of the environmental
covenants in the related Mortgage Loan documents.
41. Subject to the exceptions set forth in representation (5), the
Assignment of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and enforceable lien and security
interest in the related Borrower's interest in all leases, subleases, licenses
or other agreements pursuant to which any Person is entitled to occupy, use or
possess all or any portion of the real property.
42. With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of Treasury
Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Mortgage Loan permits defeasance (a) no earlier than
two years after the Closing Date, and (b) only with substitute collateral
constituting "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments
under the Mortgage Note. In addition, if such Mortgage contains such a
defeasance provision, it provides (or otherwise contains provisions pursuant to
which the holder can require) that an opinion be provided to the effect that
such holder has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender to charge all
of its expenses associated with a defeasance to the Borrower (including rating
agencies' fees, accounting fees and attorneys' fees), and provide that the
related Borrower must deliver (or otherwise, the Mortgage Loan documents contain
certain provisions pursuant to which the lender can require) (i) an accountant's
certification as to the adequacy of the defeasance collateral to make payments
under the related Mortgage Loan for the remainder of its term or through the
date on which the Mortgage Loan is freely prepayable (or the Anticipated
Repayment Date, if applicable), (ii) an Opinion of Counsel that the defeasance
complies with all applicable REMIC Provisions, and (iii) assurances from the
Rating Agencies that the defeasance will not result in the withdrawal, downgrade
or qualification of the ratings assigned to the Certificates. Notwithstanding
the foregoing, some of the Mortgage Loan documents may not affirmatively contain
all such requirements, but such requirements are effectively present in such
documents due to the general obligation to comply with the REMIC Provisions
and/or deliver a REMIC Opinion of Counsel.
44. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability of the
Mortgage Loan, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is located
at all times when it originated and held the Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation
to make any capital contributions to the Borrower under the Mortgage Loan.
46. Except with respect to any Mortgage Loan that is part of a
Serviced Whole Loan, none of the Mortgaged Properties are encumbered, and none
of the Mortgage Loan documents permit the related Mortgaged Property to be
encumbered subsequent to the Closing Date without the prior written consent of
the holder thereof, by any lien securing the payment of money junior to or of
equal priority with, or superior to, the lien of the related Mortgage (other
than Title Exceptions, taxes, assessments and contested mechanics and
materialmen's liens that become payable after the Cut-off Date of the related
Mortgage Loan).
47. With respect to each Mortgage Loan secured by a leasehold
interest (except with respect to any Mortgage Loan also secured by a fee
interest in the related Mortgaged Property), the Seller represents and warrants
the following with respect to the related Ground Lease:
(i) Such Ground Lease or a memorandum thereof has been or will
be duly recorded no later than 30 days after the Closing Date and
such Ground Lease permits the interest of the lessee thereunder to
be encumbered by the related Mortgage or, if consent of the lessor
thereunder is required, it has been obtained prior to the Closing
Date;
(ii) Upon the foreclosure of the Mortgage Loan (or acceptance
of a deed in lieu thereof), the Borrower's interest in such Ground
Lease is assignable to the mortgagee under the leasehold estate and
its assigns without the consent of the lessor thereunder (or, if any
such consent is required, it has been obtained prior to the Closing
Date);
(iii) Such Ground Lease may not be amended, modified, canceled
or terminated without the prior written consent of the mortgagee and
any such action without such consent is not binding on the
mortgagee, its successors or assigns, except termination or
cancellation if (a) an event of default occurs under the Ground
Lease, (b) notice thereof is provided to the mortgagee and (c) such
default is curable by the mortgagee as provided in the Ground Lease
but remains uncured beyond the applicable cure period;
(iv) To the actual knowledge of the Seller, at the Closing
Date, such Ground Lease is in full force and effect and other than
payments due but not yet 30 days or more delinquent, (a) there is no
material default, and (b) there is no event which, with the passage
of time or with notice and the expiration of any grace or cure
period, would constitute a material default under such Ground Lease;
(v) The Ground Lease or ancillary agreement between the lessor
and the lessee requires the lessor to give notice of any default by
the lessee to the mortgagee. The Ground Lease or ancillary agreement
further provides that no notice of default given is effective
against the mortgagee unless a copy has been given to the mortgagee
in a manner described in the Ground Lease or ancillary agreement;
(vi) The Ground Lease (a) is not subject to any liens or
encumbrances superior to, or of equal priority with, the Mortgage,
subject, however, to only the Title Exceptions or (b) is subject to
a subordination, non-disturbance and attornment agreement to which
the mortgagee on the lessor's fee interest in the Mortgaged Property
is subject;
(vii) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of
the interest of the lessee under the Ground Lease) to cure any
curable default under such Ground Lease before the lessor thereunder
may terminate such Ground Lease;
(viii) Such Ground Lease has an original term (together with
any extension options, whether or not currently exercised, set forth
therein all of which can be exercised by the mortgagee if the
mortgagee acquires the lessee's rights under the Ground Lease) that
extends not less than 20 years beyond the Stated Maturity Date;
(ix) Under the terms of such Ground Lease, any estoppel or
consent letter received by the mortgagee from the lessor, and the
related Mortgage, taken together, any related insurance proceeds or
condemnation award (other than in respect of a total or
substantially total loss or taking) will be applied either to the
repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed or approved by
it having the right to hold and disburse such proceeds as repair or
restoration progresses, or to the payment or defeasance of the
outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except in cases where a different allocation
would not be viewed as commercially unreasonable by any commercial
mortgage lender, taking into account the relative duration of the
Ground Lease and the related Mortgage and the ratio of the market
value of the related Mortgaged Property to the outstanding principal
balance of such Mortgage Loan);
(x) The Ground Lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a
prudent commercial and multifamily mortgage lending institution; and
(xi) The ground lessor under such Ground Lease is required to
enter into a new lease upon termination of the Ground Lease for any
reason, including the rejection of the Ground Lease in bankruptcy.
Annex A to Exhibit C
Mortgage Loans With Environmental Insurance Coverage
[None]
EXHIBIT D
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. Underlined titles are provided for reference
only.
Annex A
ID# Mortgage Loan Exception
Exception to Representation 5:
3 High Point Furniture Seller may not assign all or any portion
Mart of the rights and obligations under the
loan agreement to a Vornado Competitor (as
defined in the Loan Agreement); provided
such prohibition does not apply to any
person that purchases or holds any
securities pursuant to a securitization,
borrower's recourse being limited solely to
the transferring party. Seller may not
assign all or any portion of its rights or
obligations under the Loan Agreement such
that a legal title holder of the Mortgage
Loan is a "foreign person" within the
meaning of Section 1445(f)(3) of the Code,
unless such foreign person provides the
borrower with appropriate documentation
demonstrating that payments to such foreign
person under the loan agreement are not
subject to withholding or deduction for
special taxes of any kind.
Exceptions to Representation 11:
31 Home Depot, Jersey The improvements are currently under
City construction. A certificate of an
architect is required to be provided post
construction.
Exceptions to Representation 12:
31 Home Depot, Jersey The improvements are currently under
City construction. After completion of the
improvements, the borrower is required to
deliver to lender an updated ALTA/ACSM
survey evidencing completion of the
improvements and deliver a new title search
for the Mortgaged Property.
Exceptions to Representation 13:
Various Various The Mortgage Loan documents generally
require property insurance against loss
customarily included under an "all risk"
property insurance policy but certain
"all risk" policies do not specifically
cover lightning, windstorm, hail,
explosion, riot, riot attending a strike,
civil commotion, aircraft, vehicles and
smoke and/or may specifically exclude
windstorm or other such coverage. Based
upon GACC's underwriting criteria,
windstorm insurance was required for 2
properties: Shops at Xxxxxx and Xxxxxxx
Avenue Properties. See below for
exception for Shops at Xxxxxx.
Certain of the Mortgage Loan documents
may limit terrorism insurance coverage to
the extent such coverage is commercially
available for similarly situated
properties and/or on commercially
reasonable terms. Certain of the Mortgage
Loan documents provide limits on the
insurance premium amount the related
borrower is required to spend for
terrorism insurance. Certain of the loan
documents do not specifically require
terrorism insurance be maintained.
4 InterContinental The borrower is not required to maintain
Hotel - Boston insurance provided (i) the IHG lease is
in full force and effect, (ii) IHG tenant
maintains the insurance coverage required
under the IHG lease and (iii) the
condominium board maintains the insurance
coverage that it is required to maintain
under the condominium documents.
31 Home Depot, Jersey The borrower is not required to
City maintain the insurance required under the
loan documents (other than terrorism
insurance as described below) provided (i)
the lease with Home Depot U.S.A. is in full
force and effect and there is no payment
default under the lease, (ii) Home Depot
U.S.A. is in compliance with the insurance
requirements contained in the Home Depot
lease and (iii) Home Depot Inc. is rated
not less than A+ by S&P; provided that the
borrower is required to maintain terrorism
insurance during the last three years of
the Home Depot Lease term; provided
further, the lender has the right to
require the borrower to comply with the
insurance requirements under the loan
documents if the tenant's long term
unsecured debt rating or shadow rating
falls below A+.
64 Shops at Xxxxxx Windstorm insurance was required and
insurance coverage is provided through
ICAT, a state-backed program for
high-risk wind properties. The wind
deductible is $50,000 and the maximum
coverage ICAT will provide is $5,000,000,
which is the amount the Borrower
purchased.
Exception to Representation 15:
85 00 Xxxxx Xxxxx Xxxx Section 9.5 of the related Mortgage has
been revised to extend borrower's time
period for closing out certain permits
(upon closure of the permits, the
building code violations described in
exception to representation 28 below
should be removed).
Exceptions to Representation 22:
All All All The Seller makes no representation
regarding the bankruptcy or insolvency of
any tenant at the Mortgaged Property.
Exceptions to Representation 23:
5 Fair Lakes Office The Mortgage also secures a $116,550,000
Portfolio pari passu A-Note that is not an asset of
the trust fund. The Mortgage Loan is part
of a Serviced Loan Combination.
109 Spectrum Centre The Mortgage also secures a B-Note in the
amount of $435,000, which B-Note is not
an asset of the trust fund. The Mortgage
Loan is part of a Serviced Loan
Combination.
Exception to Representation 24:
Various Various With respect to certain of the Mortgage
Loans, the Mortgage Loan documents
permit, without lender consent, (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 (i)
of a controlling interest in the borrower
to certain pre-approved entities or to an
entity meeting the "qualified transferee"
(or similar) definition under the
Mortgage Loan documents or to any entity
satisfying certain other criteria (or
subject to conditions) specified in the
related Mortgage Loan documents, (ii)
among existing principals, even if there
is a change control, (iii) that
accommodate a 1031 exchange or reverse
1031 exchange, or (iv) with respect to
Mortgage Loans to tenant-in-common
borrowers, transfers among and to
additional tenant-in-common borrowers.
3 High Point Furniture Equity owners of the borrower incurred
Mart $25,000,000 of mezzanine debt secured by
its interest in the borrower. The holder
of the mezzanine debt has entered into an
intercreditor agreement with lender.
4 InterContinental The sole member of the borrower incurred
Hotel - Boston $45,000,000 of mezzanine debt secured by
its interest in the borrower. The holder
of the mezzanine debt has entered into an
intercreditor agreement with lender.
5 Fair Lakes Office The Mortgage Loan documents permit the
Portfolio transfer of the direct or indirect
ownership interest in the borrower or the
Mortgaged Property (A) to a "Permitted
Transferee (as defined in the Mortgage Loan
documents, provided, among other things,
(i) if the transfer is of more than 50% of
the ownership interest in the borrower, the
borrower is required to pay a transfer fee
to the lender; and (ii) following the
transfer, the Mortgaged Property is managed
by the manager of the Mortgaged Property on
the loan closing date or by a "Qualified
Manager" as defined in the Mortgage Loan
documents; (B) to any affiliate of
Shorenstein Realty Investors, provided,
among other things, (i) a Shorenstein
controlled entity at all times owns at
least a 50% interest in the borrower and
remain responsible for asset and property
management decisions and (ii) condition
(A)(ii) above is satisfied; (C) by
institutional and qualified investors
indirectly owning beneficial interests in
the borrower who have no fright to
participate in the management or operations
of the borrower and who, other than through
such indirect interests) are not affiliated
with the borrower to other institutional
and qualified investors not affiliated with
the borrower, provided condition (B)(i) and
(B) (ii) above, are satisfied.
The Mortgage Loan documents permit the
pledge of equity interests in the borrower
provided, among other things, (i) the
mezzanine debt lender enter into an
acceptable intercreditor agreement, (ii)
the borrower obtain rating agency
confirmation, (iii) if the mezzanine loan
is fixed rate, the weighted average debt
service constant for the Mortgage Loan and
the Mezzanine Loan is no greater than 8.5%,
(iv) the combined loan-to-value ("LTV")
ratio is not more than 70% and (v) the
assumed debt service coverage ratio
("DSCR") immediately following the closing
of the mezzanine debt will be not less than
1.20x.
8 White Plains Plaza In connection with a casualty or
condemnation pursuant to which the lender
has the right and elects to pay down the
Mortgage Loan, the borrower has the right
to permit an equity owner of the borrower
to obtain mezzanine debt secured by a
pledge of the membership interests in the
borrower or obtain secured debt, as
approved by the lender in its sole
discretion, provided an acceptable
intercreditor agreement is delivered.
22 Empirian Highland A "Qualified Transferee" (as such term is
defined in the Mortgage Loan documents)
29 Empirian Wildewood holds a preferred equity interest in the
related borrower. Pursuant to certain
conditions specified in the related
Mortgage Loan documents, the preferred
equity holder is permitted to pledge or
transfer its ownership interest in the
borrower to another "Qualified Transferee"
and may, under certain circumstances and
pursuant to the terms of the related
borrower's operating agreement, become the
controlling member of the related borrower.
26 Empirian Waterford The Mortgage Loan documents permit (i) a
Landing "Qualified Transferee" (as such term is
defined in the Mortgage Loan documents) to
hold preferred equity interest in the
related borrower, subject to certain
conditions specified in the Mortgage Loan
documents, (ii) a preferred equity investor
to pledge or transfer its ownership
interest in the borrower to another
"Qualified Transferee" and (iii) the holder
of the preferred equity interest to control
the borrower, pursuant to the terms of the
related borrower's operating agreement.
27 Tennyson Office Center The Mortgage Loan documents permit future
mezzanine debt, subject to the terms of
the Mortgage Loan documents, including
that an acceptable intercreditor
agreement be delivered and subject to
conditions, including that the combined
LTV ratio not exceed 90% and the DSCR
based on combined balances is at least
1.10x.
38 Diamond Bar Office The Mortgage Loan documents permit the
Portfolio borrower to sell to the portion of the
Mortgaged Property located at 0000
Xxxxxxxxx Xxxxxx, Xxxxxxx Xxx, XX to a
transferee (the "Buyer") (subject to sale
and assumption requirements) and divide the
Mortgage Loan into two Mortgage Loans (the
"Assumed Loan" and the "Remaining Loan");
provided, among other things, (i) the LTV
ratio of each of the Assumed Loan and the
Remaining Loan is not greater than 80%,
(ii) the DSCR of each of the Assumed Loan
and the Remaining Loan is at least 1.20x,
(iii) the Buyer and a related guarantor
must enter into new documents related to
the Assumed Loan. In addition, in
connection with such sale to and assumption
by the Buyer, the equity interests in the
Buyer may be pledged as security for a
mezzanine loan, subject to the terms in the
Mortgage Loan documents, including that an
intercreditor agreement be delivered, the
amount of the mezzanine loan and the
interest thereon, shall be such the
combined LTV is not more than 90% and the
combined DSCR is at least 1.10x.
56 Doylestown Office The Mortgage Loan documents permit
Building Xxxxxxx & Xxxxxx, Inc. (the non-recourse
carveout guarantor) to transfer its
00 Xxxxxx Xxxx interest in the borrower to any entity
wholly owned and controlled by Xxxxxxx &
Xxxxxx, Inc.
63 Presbyterian Xxxxx The Mortgage Loan documents permit future
MOB II mezzanine debt subject to the terms of
the Mortgage Loan documents including that
an acceptable intercreditor agreement be
delivered and subject to conditions
including that the combined LTV ratio not
exceed 90% and the DSCR based on combined
balances is at least 1.10x.
82 Cartersville The Mortgage Loan documents permit future
Physicians Center mezzanine debt, subject to the terms of
the Mortgage Loan documents, including that
an acceptable intercreditor agreement be
delivered and subject to conditions,
including that the combined LTV ratio not
exceed 90% and the DSCR based on combined
balances is at least 1.10x.
170 Parkview Apartments The Mortgage Loan documents permit
transfers of interest to and between Xxxx
Xxxxxx and the Xxxxx Xxxxxxxxxx (the
non-recourse carveout guarantor),
provided no material adverse change has
occurred in the creditworthiness or
financial standing of either entity and
Dufenhorst maintains at least 12%
ownership of the direct interest in
Wenatche Parkview Management, LLC (the
sole member of the borrower).
104 Century City Central The Mortgage Loan documents permit future
Plant mezzanine debt, subject to the terms in
the Mortgage Loan documents, including that
an acceptable intercreditor agreement be
delivered and subject to conditions,
including that the combined LTV ratio not
exceed 75% and the DSCR based on combined
balances is at least 1.35x.
Exception to Representation 27:
3 High Point Furniture After May 1, 2016, the borrower may
Mart obtain the release of the Xxxxxxxx Market
Property and/or the South Main Property
upon payment of the lesser of (i) 125% of
the allocated loan amount for such property
or (ii) the outstanding principal amount
together with accrued and unpaid interest
then due and payable.
5 Fair Lakes Office At any time, subject to certain
Portfolio conditions specified in the Mortgage Loan
documents, the borrower may obtain a free
release from the lien of the mortgage of
certain identified parcels in connection
with the future development of four new
office buildings on these parcels.
38 Diamond Bar Portfolio The Mortgage Loan documents provide that
a third party purchaser may purchase from
the borrower the Mortgaged Property known
as 1400 Montefino and assume that portion
of the Mortgage Loan related to that
Mortgaged Property. In such event, the
1400 Montefino property will be released
from the lien of the Mortgage securing
the Diamond Bar Portfolio Mortgage Loan
and will no longer be cross
collateralized with the Diamond Bar
Portfolio Loan. Rather, the 1400
Montefino property will be collateral for
a trust fund asset evidenced by a new
note .
Exception to Representation 28:
4 InterContinental The borrower is in receipt of a temporary
Hotel - Boston certificate of occupancy ("CO"), subject
to completion of certain "punch-list"
items, but is not in receipt of a permanent
CO. Intercontinental Hotel Group Resources,
Inc. certified to the lender that all
punch-list items would be completed by
September 30, 2006. If the punch-list items
are not completed by such date, the
borrower is required to reserve with lender
$35,512.40 per day until the punch list
items are completed. Such reserves will be
held as additional collateral for the
Mortgage Loan.
20 Holiday Inn Dulles The borrower does not have a valid liquor
license. However, the application has
been filed and because the current permit
is in the name of the property manager,
the borrower is permitted to continue to
operate the business.
31 Home Depot, Jersey The improvements are currently under
City construction. The Seller received a
zoning opinion that opines that the
improvements, as proposed and approved,
constitute a legal conforming use. After
completion of the improvements, the
borrower is required to deliver a final
zoning report or other evidence, reasonably
satisfactory to lender, that the Mortgaged
Property and the improvements, as
constructed, constitute a legal conforming
use or, if such Mortgaged Property and
improvements is non-conforming, evidence
that such improvements, following a
casualty, may be rebuilt in the same
density.
00 Xxxxxxx Xxxxxx The Mortgaged Property is not in
Portfolio compliance with the Americans With
Disabilities Act because buildings 405 and
435 do not have an elevator.
72 The Winston Lofts The borrower is not in receipt of the
final CO for the Mortgaged Property.
However, the non-recourse carve-out
guarantor has indemnified the lender for
any loss related to the lack of final CO
and the lender is holding a $113,000
reserve that may not be released to the
borrower until the CO is received.
85 80 Field Point The Mortgaged Property has building code
violations related to renovations.
147 Monsey Marketplace The Mortgaged Property has certain
building code violations including that
it has not received its certificate of
fire and safety compliance.
171 218 Xxxxxxxxxxxxx The borrower is not in receipt of the
final CO for the Mortgaged Property
consistent with the current use of the
Mortgaged Property. However, the
non-recourse carve-out guarantor has
indemnified the lender for any loss
related to the lack of CO.
176 Xxxxxxxxxx Garage The borrower is not in receipt of the CO
for the Mortgaged Property. However, the
non-recourse carve-out guarantor has
indemnified the lender for any loss
related to the lack of CO.
Exception to Representation 30:
3 High Point Furniture The borrower under the Mortgage Loan
Mart consists of five separate borrowers. The
Mortgage Loan documents permit the each
borrower to maintain shared financial
books, records and accounting and to
commingle its assets with the other
borrowers (all affiliates). Each borrower
is permitted to guaranty or otherwise
obligate itself with respect to the debts
of other borrowers.
Exception to Representation 32:
72 The Winston Lofts The borrower is a defendant in a
litigation regarding $75,000 in fees
allegedly due to an architect in
connection with the renovation and
conversion of the Mortgaged Property. The
sponsor has provided a payment guaranty
in the amount of $1,400,000, which
guaranty obligation may not be released
to the sponsor until such time that,
among other things, this litigation has
been resolved.
Exceptions to Representation 34:
5 Fair Lakes Office The Mortgage also secures a pari passu
Portfolio A-Note in the amount of $116,550,000,
which A-Note is not an asset of the trust
fund. The Mortgage Loan is part of a
Serviced Loan Combination.
109 Spectrum Centre The Mortgage also secures a B-Note in the
amount of $435,000, which B-Note is not
an asset of the trust fund. The Mortgage
Loan is part of a Serviced Loan
Combination.
Exception to Representation 35:
00 Xxxxxxx Xxxxxx The borrower maintains flood insurance in
Portfolio an amount equal to the maximum amount
available under the National Flood
Insurance Act of 1968, as amended
("NFIA").
64 Shops at Xxxxxx One of the buildings is located in the
flood plain. With respect to this
building, the borrower obtained the
maximum amount of flood insurance
available under the NFIA. A sponsor, Xxx
Xxxxx, indemnified lender and provided a
guaranty in lieu of excess coverage for
any losses suffered by the lender as a
result of flood damage, up to the
replacement value of the building located
in the flood plain, after deducting the
maximum coverage available under the
NFIA.
Exception to Representation 43:
Various Various Certain of the Mortgage Loans provide
for the purchase of defeasance collateral
assuming final payment of the Mortgage Loan
on the first day of the open period.
Exceptions to Representation 46:
5 Fair Lakes Office The Mortgage also secures a $116,550,000
Portfolio pari passu A-Note that is not an asset of
the trust fund. The Mortgage Loan is part
of a Serviced Loan Combination.
109 Spectrum Centre The Mortgage also secures a B-Note in the
amount of $435,000, which B-Note is not
an asset of the trust fund. The Mortgage
Loan is part of a Serviced Loan
Combination.
Exception to Representation 47 (ii):
188 Inland Center (ii) The ground lease is freely assignable at
foreclosure sale or an assignment in lieu
of foreclosure; however, the ground
lessor's consent is required for any
subsequent assignment.
188 Inland Center (v) The ground lessor is not required to
provide the lender with a copy of every
notice of default; however, the ground
lessor may not exercise remedies until
such time as the lender has been provided
with notice and an opportunity to cure.
EXHIBIT E-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of German American Capital Corporation
I, ______________________, a ______________________ of German
American 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 Maryland.
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 October 30, 2006 (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 __________ __, 2006.
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 __________ __, 2006.
By:
--------------------------------------
Name:
Title:
