EXHIBIT 10.3
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GS MORTGAGE SECURITIES CORPORATION II,
PURCHASER,
WACHOVIA BANK, NATIONAL ASSOCIATION,
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of July 1, 2007
Series 2007-GG10
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This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of July 1, 2007, is between GS Mortgage Securities Corporation II, a Delaware
corporation, as purchaser (the "Purchaser"), and Wachovia Bank, National
Association, a national banking association, as seller (the "Seller").
Capitalized terms used in this Agreement not defined herein shall
have the meanings ascribed to them in the Pooling and Servicing Agreement, dated
as of July 1, 2007 (the "Pooling and Servicing Agreement"), among the Purchaser,
as depositor, Wachovia Bank, National Association, as master servicer (the
"Master Servicer"), CWCapital Asset Management LLC, as special servicer (the
"Special Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"),
pursuant to which the Purchaser will transfer the mortgage loan identified on
Exhibit A (the "Mortgage Loan Schedule") as 000 Xxxx 00xx Xxxxxx (the "Joint
Loan") and certain other commercial mortgage loans to a trust fund (the "Trust
Fund") and the Trust Fund will issue certificates representing ownership
interests in such mortgage loans. The Purchaser will sell the Class A-1, Class
A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J, Class
B, Class C, Class D, Class E and Class F Certificates (the "Offered
Certificates") to the underwriters (the "Underwriters") specified in the
Underwriting Agreement, dated as of June 21, 2007 (the "Underwriting
Agreement"), between the Purchaser and the Underwriters, and the Purchaser will
sell the Class X, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q, Class S, Class R and Class LR Certificates (the
"Private Certificates") to the initial purchasers (the "Initial Purchasers")
specified in the Certificate Purchase Agreement, dated as of June 21, 2007 (the
"Certificate Purchase Agreement"), between the Purchaser and Initial Purchasers.
The Seller desires to sell a 50% pari passu interest in the Joint
Loan to the Purchaser under this Agreement. The Seller's 50% interest in the
Joint Loan is evidenced by a separate promissory note (the "Seller Note") in the
principal balance as of the Cut-Off Date of $80,000,000. Greenwich Capital
Financial Products, Inc. (the "Other Seller") will sell a 50% pari passu
interest in the Joint Loan to the Purchaser pursuant to a Mortgage Loan Purchase
Agreement, dated as of the date hereof (the "Other Mortgage Loan Purchase
Agreement"). For purposes of this Agreement, the Seller's 50% pari passu
interest in the Joint Loan that is being sold to the Purchaser under this
Agreement is referred to herein as the "Mortgage Loan"; provided that for
purposes of Exhibit B to this Agreement, the term "Mortgage Loan" shall refer to
the Joint Loan. The Other Seller's 50% pari passu interest in the Joint Loan
that is being sold to the Purchaser under the Other Mortgage Loan Purchase
Agreement is referred to herein as the "Other Seller Interest."
The Purchaser and the Seller wish to prescribe the manner of sale of
the Mortgage Loan from the Seller to the Purchaser and in consideration of the
premises and the mutual agreements hereinafter set forth, agree as follows:
SECTION 1 Sale and Conveyance of Mortgages; Possession of Mortgage
File. The Seller does hereby sell, transfer, assign, set over and convey to the
Purchaser the Mortgage Loan including all interest and principal received on or
with respect to the Mortgage Loan after the Cut-off Date (other than payments of
principal and interest first due on the Mortgage Loan on or before the Cut-off
Date). Upon the sale of the Mortgage Loan, the ownership of the related Note,
the Seller's interest in the related Mortgage and the other contents of the
related Mortgage File, will be vested in the Purchaser and immediately
thereafter the Trustee, and the ownership of records and documents with respect
to the Mortgage Loan prepared by or which come into the possession of the Seller
shall immediately vest in the Purchaser and immediately thereafter the Trustee.
between the Purchaser and Initial Purchasers.
The sale and conveyance of the Mortgage Loan is being conducted on
an arms-length basis and upon commercially reasonable terms. As the purchase
price for the Mortgage Loan, the Purchaser shall pay to the Seller or at the
Seller's direction $79,426,925.91 (excluding accrued interest and certain
post-settlement adjustment for expenses incurred by the Underwriters on behalf
of the Depositor). The purchase and sale of the Mortgage Loan shall take place
on the Closing Date.
SECTION 2 Books and Records; Certain Funds Received After the
Cut-off Date. From and after the sale of the Mortgage Loan to the Purchaser,
record title to the related Mortgage and the related Note shall be transferred
to the Trustee in accordance with this Agreement. Any funds due after the
Cut-off Date in connection with the Mortgage Loan received by the Seller shall
be held in trust for the benefit of the Trustee as the owner of the Mortgage
Loan and shall be transferred promptly to the Trustee. All scheduled payments of
principal and interest due on or before the Cut-off Date but collected after the
Cut-off Date, and recoveries of principal and interest collected on or before
the Cut-off Date (only in respect of principal and interest on the Mortgage Loan
due on or before the Cut-off Date and principal prepayments thereon), shall
belong to, and shall be promptly remitted to, the Seller.
The transfer of the Mortgage Loan shall be reflected on the Seller's
balance sheets and other financial statements as a sale of the Mortgage Loan by
the Seller to the Purchaser. The Seller intends to treat the transfer of the
Mortgage Loan to the Purchaser as a sale for tax purposes.
The transfer of the Mortgage Loan shall be reflected on the
Purchaser's balance sheets and other financial statements as the purchase of the
Mortgage Loan by the Purchaser from the Seller. The Purchaser intends to treat
the transfer of the Mortgage Loan from the Seller as a purchase for tax
purposes. The Purchaser shall be responsible for maintaining, and shall
maintain, a set of records for the Mortgage Loan which shall be clearly marked
to reflect the transfer of ownership of the Mortgage Loan by the Seller to the
Purchaser pursuant to this Agreement.
SECTION 3 Delivery of Mortgage Loan Documents; Additional Costs and
Expenses. (a) The Purchaser hereby directs the Seller, and the Seller hereby
agrees, upon the transfer of the Mortgage Loan contemplated herein, to deliver
or cause to be delivered to the Trustee or a Custodian appointed thereby on the
dates set forth in Section 2.01 of the Pooling and Servicing Agreement, all
documents, instruments and agreements required to be delivered by the Purchaser
to the Trustee with respect to the Mortgage Loan under Section 2.01 of the
Pooling and Servicing Agreement, and meeting all the requirements of such
Section 2.01, provided that the Seller shall not be required to deliver any
draft documents, privileged communications, credit underwriting, due diligence
analyses or data or internal worksheets, memoranda, communications or
evaluations.
(b) The Seller shall deliver to the Master Servicer within 10
business days after the Closing Date, documents and records that (i) relate to
the servicing and administration of the Mortgage Loan, (ii) are reasonably
necessary for the ongoing administration and/or servicing of the Mortgage Loan
(including any asset summaries related to the Mortgage Loan that were delivered
to the Rating Agencies in connection with the rating of the Certificates) and
(iii) are in possession or control of the Seller, together with (x) all
unapplied Escrow Payments in the possession or under control of the Seller that
relate to the Mortgage Loan and (y) a statement indicating which Escrow Payments
are allocable to the Mortgage Loan); provided that the Seller shall not be
required to deliver any draft documents, privileged or other communications,
credit underwriting, due diligence analyses or data or internal worksheets,
memoranda, communications or evaluations.
(c) Notwithstanding anything to the contrary in this Agreement, with
respect to the Joint Loan, the delivery of the required documents by the Seller
or the related Other Seller shall satisfy the delivery requirements of the
Seller under this Section 3 except with respect to the Seller Note.
SECTION 4 Treatment as a Security Agreement. Pursuant to Section 1
hereof, the Seller has conveyed to the Purchaser all of its right, title and
interest in and to the Mortgage Loan. The parties intend that such conveyance of
the Seller's right, title and interest in and to the Mortgage Loan pursuant to
this Agreement shall constitute a purchase and sale and not a loan. If such
conveyance is deemed to be a pledge and not a sale, then the parties also intend
and agree that the Seller shall be deemed to have granted, and in such event
does hereby grant, to the Purchaser, a first priority security interest in all
of its right, title and interest in, to and under the Mortgage Loan, all
payments of principal or interest on the Mortgage Loan due after the Cut-off
Date, all other payments made in respect of the Mortgage Loan after the Cut-off
Date (other than scheduled payments of principal and interest due on or before
the Cut-off Date) and all proceeds thereof, and that this Agreement shall
constitute a security agreement under applicable law. If such conveyance is
deemed to be a pledge and not a sale, the Seller consents to the Purchaser
hypothecating and transferring such security interest in favor of the Trustee
and transferring the obligation secured thereby to the Trustee.
SECTION 5 Covenants of the Seller. The Seller covenants with the
Purchaser as follows:
(a) It shall record or cause a third party to record in the
appropriate public recording office for real property the assignments of the
Mortgage Loan, assignments of assignment of leases, rents and profits and the
assignments of Mortgage and each related UCC-2 and UCC-3 financing statement
referred to in the definition of Mortgage File from the Seller to the Trustee in
connection with the Pooling and Servicing Agreement. The Seller shall pay all
out of pocket costs and expenses relating to the recordation or filing of such
assignments, assignments of Mortgage and financing statements with respect to
the Mortgage Loan (which shall be its pro rata share of all out of pocket costs
and expenses relating to the recordation or filing of such assignments,
assignments of Mortgage and financing statements with respect to the Joint
Loan). If any such document or instrument is lost or returned unrecorded or
unfilled, as the case may be, because of a defect therein, then the Seller shall
prepare a substitute therefor or cure such defect of cause such to be done, as
the case may be, and the Seller shall deliver such substitute or corrected
document or instrument to the Trustee (or, if the Mortgage Loan is then no
longer subject to the Pooling and Servicing Agreement, the then holder of the
Mortgage Loan)(it being understood that the delivery of such substitute or
corrected documents by the Seller or the Other Seller shall satisfy the delivery
requirements of the Seller hereunder except with respect to the Seller Note).
(b) It shall take any action reasonably required by the Purchaser,
the Trustee or the Servicer in order to assist and facilitate the transfer of
the servicing of the Mortgage Loan to the Servicer, including effectuating the
transfer of any letters of credit with respect to the Mortgage Loan to the
Servicer on behalf of the Trustee for the benefit of Certificateholders. Prior
to the date that a letter of credit with respect to the Mortgage Loan is
transferred to the Servicer, the Seller will cooperate with the reasonable
requests of the Master Servicer or Special Servicer, as applicable, in
connection with effectuating a draw under such letter of credit as required
under the terms of the related Loan Documents.
(c) The Seller shall provide the Master Servicer the initial data
with respect to the Mortgage Loan for the CMSA Financial File and the CMSA Loan
Periodic Update File that are required to be prepared by the Master Servicer
pursuant to the Pooling and Servicing Agreement and the Supplemental Servicer
Schedule (it being understood that the delivery of such data by the Seller or
the Other Seller shall satisfy the delivery requirements of the Seller
hereunder).
(d) If during the period of time that the Underwriters are required,
under applicable law, to deliver a prospectus related to the Offered
Certificates in connection with sales of the Offered Certificates by an
Underwriter or a dealer and the Seller has obtained actual knowledge of
undisclosed or corrected information related to an event that occurred prior to
the Closing Date, which event causes the Seller Information previously provided
to be incorrect or untrue, and which directly results in a material misstatement
or omission in the Prospectus Supplement, including Annex A, Annex B, Annex C-1,
Annex C-2 or Annex D thereto and the CD-ROM and the Diskette included therewith
(collectively, the "Public Offering Documents"), and as a result the
Underwriters' legal counsel has determined that it is necessary to amend or
supplement the Public Offering Documents in order to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or to make the Public Offering Documents in
compliance with applicable law, the Seller shall (to the extent that such
amendment or supplement solely relates to the Seller Information at the expense
of the Seller, do all things reasonably necessary to assist the Depositor to
prepare and furnish to the Underwriters, such amendments or supplements to the
Public Offering Documents as may be necessary so that the statements in the
Public Offering Documents, as so amended or supplemented, will not, in the light
of the circumstances when the Prospectus is delivered to a purchaser, be
misleading and will comply with applicable law. (All terms under this clause (d)
and not otherwise defined in this Agreement shall have the meanings set forth in
the Indemnification Agreement, dated June 21, 2007, between the Seller and the
Purchaser (the "Indemnification Agreement" and, together with this Agreement,
the "Operative Documents")).
(e) For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser and the
Paying Agent with any Additional Form 10-D Disclosure and any Additional Form
10-K Disclosure set forth next the Seller's name on Exhibit U and Exhibit V of
the Pooling and Servicing Agreement within the time periods set forth in the
Pooling and Servicing Agreement.
SECTION 6 Representations and Warranties.
(a) The Seller represents and warrants to the Purchaser as of the
date hereof and as of the Closing Date that:
(i) The Seller is a national banking association, duly organized,
validly existing and in good standing under the laws of the United States
with full power and authority to own its assets and conduct its business,
is duly qualified as a foreign organization in good standing in all
jurisdictions to the extent such qualification is necessary to hold and
sell the Mortgage Loan or otherwise comply with its obligations under this
Agreement except where the failure to be so qualified would not have a
material adverse effect on its ability to perform its obligations
hereunder, and the Seller has taken all necessary action to authorize the
execution, delivery and performance under the Operative Documents and has
duly executed and delivered this Agreement and the Indemnification
Agreement, and has the power and authority to execute, deliver and perform
under this Agreement and each other Operative Document and all the
transactions contemplated hereby and thereby, including, but not limited
to, the power and authority to sell, assign, transfer, set over and convey
the Mortgage Loan in accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of each
Operative Document by each party thereto other than the Seller, each
Operative Document will constitute a legal, valid and binding obligation
of the Seller, enforceable against the Seller in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) The execution and delivery of each Operative Document by the
Seller and the performance of its obligations hereunder and thereunder
will not conflict with any provision of any law or regulation to which the
Seller is subject, or conflict with, result in a breach of, or constitute
a default under, any of the terms, conditions or provisions of any of the
Seller's organizational documents or any agreement or instrument to which
the Seller is a party or by which it is bound, or any order or decree
applicable to the Seller, or result in the creation or imposition of any
lien on any of the Seller's assets or property, in each case which would
materially and adversely affect the ability of the Seller to carry out the
transactions contemplated by the Operative Documents;
(iv) There is no action, suit, proceeding or investigation pending
or, to the Seller's knowledge, threatened against the Seller in any court
or by or before any other governmental agency or instrumentality which
would materially and adversely affect the validity of the Mortgage Loan or
the ability of the Seller to carry out the transactions contemplated by
each Operative Document;
(v) The Seller is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences
that, in Seller's good faith and reasonable judgment, is likely to
materially and adversely affect the condition (financial or other) or
operations of the Seller or its properties or might have consequences
that, in Seller's good faith and reasonable judgment, is likely to
materially and adversely affect its performance under any Operative
Document;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, each
Operative Document or the consummation of the transactions contemplated
hereby or thereby, other than those which have been obtained by the
Seller;
(vii) The transfer, assignment and conveyance of the Mortgage Loan
by the Seller to the Purchaser is not subject to bulk transfer laws or any
similar statutory provisions in effect in any applicable jurisdiction; and
(viii) The Mortgage Loan was originated by a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 203
and 211 of the Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or other similar
institution which is supervised and examined by a federal or state
authority.
(b) The Purchaser represents and warrants to the Seller as of the
Closing Date that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business,
is duly qualified as a foreign corporation in good standing in all
jurisdictions in which the ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
ability of the Purchaser to perform its obligations hereunder, and the
Purchaser has taken all necessary action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all the
transactions contemplated hereby;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by the Seller, this Agreement will constitute a legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement by the Purchaser
and the performance of its obligations hereunder will not conflict with
any provision of any law or regulation to which the Purchaser is subject,
or conflict with, result in a breach of, or constitute a default under,
any of the terms, conditions or provisions of any of the Purchaser's
organizational documents or any agreement or instrument to which the
Purchaser is a party or by which it is bound, or any order or decree
applicable to the Purchaser, or result in the creation or imposition of
any lien on any of the Purchaser's assets or property, in each case which
would materially and adversely affect the ability of the Purchaser to
carry out the transactions contemplated by this Agreement;
(iv) There is no action, suit, proceeding or investigation pending
or, to the Purchaser's knowledge, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of this Agreement
or any action taken in connection with the obligations of the Purchaser
contemplated herein, or which would be likely to impair materially the
ability of the Purchaser to perform under the terms of this Agreement;
(v) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Purchaser or its properties or
might have consequences that would materially and adversely affect its
performance under any Operative Document;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Purchaser of or compliance by the Purchaser with this
Agreement or the consummation of the transactions contemplated by this
Agreement other than those that have been obtained by the Purchaser.
(c) The Seller further makes the representations and warranties as
to the Joint Loan set forth in Exhibit B as of the Closing Date or other date
set forth in Exhibit B, which representations and warranties are subject to the
exceptions thereto set forth in Exhibit C.
(d) Pursuant to the Pooling and Servicing Agreement, if any party
thereto discovers that any document constituting a part of a Mortgage File has
not been properly executed, is missing, contains information that does not
conform in any material respect with the corresponding information set forth in
the Mortgage Loan Schedule, or does not appear to be regular on its face (each,
a "Document Defect"), or discovers or receives notice of a breach of any
representation or warranty of the Seller made pursuant to Section 6(c) of this
Agreement with respect to the Mortgage Loan (a "Breach"), such party is required
to give prompt written notice thereof to the Seller.
(e) If any such Document Defect or Breach with respect to the
Mortgage Loan materially and adversely affects the value of the Mortgage Loan or
the related Mortgaged Property or the interests of the Certificateholders
therein, then such Document Defect shall constitute a "Material Document Defect"
or such Breach shall constitute a "Material Breach," as the case may be.
Promptly upon becoming aware of any such Material Document Defect or Material
Breach (including through a written notice given by any party hereto, as
provided above), the Seller, not later than 90 days from the earlier of the
Seller's discovery or receipt of notice of such Material Document Defect or
Material Breach, as the case may be (or, in the case of a Material Document
Defect or Material Breach relating to the Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions, not later than 90 days of
any party discovering such Material Document Defect or Material Breach provided
the Seller receives notice thereof in a timely manner), cure the same in all
material respects (which cure shall include payment of any Additional Trust Fund
Expenses associated therewith) or, if such Material Document Defect or Material
Breach, as the case may be, cannot be cured within such 90 day period,
repurchase the Mortgage Loan or any related REO Property at the applicable
Purchase Price by wire transfer of immediately available funds to the Collection
Account; provided, however, that if (i) such Material Document Defect or
Material Breach is capable of being cured but not within such 90 day period,
(ii) such Material Document Defect or Material Breach is not related to the
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 Document Defect or Material Breach within such 90 day
period, then the Seller shall have an additional 90 days to complete such cure
or, in the event of a failure to so cure, to complete such repurchase (it being
understood and agreed that, in connection with the Seller's receiving such
additional 90 day period, the Seller shall deliver an Officer's Certificate to
the Trustee setting forth the reasons such Material Document Defect or Material
Breach is not capable of being cured within the initial 90 day period and what
actions the Seller is pursuing in connection with the cure thereof and stating
that the Seller anticipates that such Material Document Defect or Material
Breach will be cured within such additional 90 day period); and provided,
further, that, if any such Material Document Defect is still not cured after the
initial 90 day period and any such additional 90 day period solely due to the
failure of the Seller to have received the recorded document, then the Seller
shall be entitled to continue to defer its cure and repurchase obligations in
respect of such Document Defect so long as the Seller certifies to the Trustee
every 30 days thereafter that the Document Defect is still in effect solely
because of its failure to have received the recorded document and that the
Seller is diligently pursuing the cure of such defect (specifying the actions
being taken), except that no such deferral of cure or repurchase may continue
beyond the second anniversary of the Closing Date. Subject to Section 3.32 of
the Pooling and Servicing Agreement, such repurchase of the Mortgage Loan shall
be on a servicing released basis. The Seller shall have no obligation to monitor
the Mortgage Loan regarding the existence of a breach or a document defect, but
if the Seller discovers a Material Breach or Material Document Defect with
respect to the Mortgage Loan, it will notify the Purchaser.
(f) In connection with any repurchase of the Mortgage Loan pursuant
to this Section 6, the Pooling and Servicing Agreement shall provide that,
subject to Section 3.26 of the Pooling and Servicing Agreement, the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each tender to the
repurchasing entity, upon delivery to each of them of a receipt executed by the
repurchasing entity, all portions of the Mortgage File and other documents
pertaining to the Mortgage Loan possessed by it, and each document that
constitutes a part of the Mortgage File shall be endorsed or assigned to the
extent necessary or appropriate to the repurchasing entity or its designee in
the same manner, but only if the respective documents have been previously
assigned or endorsed to the Trustee, and pursuant to appropriate forms of
assignment, substantially similar to the manner and forms pursuant to which such
documents were previously assigned to the Trustee; provided that such tender by
the Trustee shall be conditioned upon its receipt from the Master Servicer of a
Request for Release and an Officer's Certificate to the effect that the
requirements for repurchase have been satisfied; provided further that in the
event that the Mortgage Loan is repurchased by the Seller pursuant to this
Section 6 but the Other Seller Interest is not repurchased by the Other Seller
pursuant to the Other Mortgage Loan Purchase Agreement, the Seller and the
Purchaser hereby agree that the provisions in Section 3.32 of the Pooling and
Servicing Agreement shall govern the servicing and administration of the Joint
Loan and the rights and obligations of the Seller and the Purchaser with respect
to the Joint Loan.
(g) The representations and warranties of the parties hereto shall
survive the execution and delivery and any termination of this Agreement and
shall inure to the benefit of the respective parties, notwithstanding any
restrictive or qualified endorsement on the related Note or Assignment of
Mortgage or the examination of the Mortgage File.
(h) Each party hereby agrees to promptly notify the other party of
any breach of a representation or warranty contained in Section 6(c). The
Seller's obligation to cure any breach or repurchase or substitute the Mortgage
Loan pursuant to this Section 6 shall constitute the sole remedy available to
the Purchaser in connection with a breach of any of the Seller's representations
or warranties contained in this Section 6(c); provided, however, that no
limitation of remedy is implied with respect to the Seller's breach of its
obligation to cure, repurchase or substitute in accordance with the terms and
conditions of this Agreement.
SECTION 7 Review of Mortgage File. The Purchaser shall require the
Trustee or the Custodian pursuant to the Pooling and Servicing Agreement to
review the Mortgage File pursuant to Section 2.02 of the Pooling and Servicing
Agreement and if it finds any document or documents not to have been properly
executed, or to be missing or to be defective on its face in any material
respect, to notify the Purchaser, which shall promptly notify the Seller.
SECTION 8 Conditions to Closing. The obligation of the Seller to
sell the Mortgage Loan shall be subject to the Seller having received the
purchase price for the Mortgage Loan as contemplated by Section 1. The
obligations of the Purchaser to purchase the Mortgage Loan shall be subject to
the satisfaction, on or prior to the Closing Date, of the following conditions:
(a) Each of the obligations of the Seller required to be performed
by it at or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with and all of the representations
and warranties of the Seller under this Agreement shall be true and correct in
all material respects as of the Closing Date, and no event shall have occurred
as of the Closing Date which would constitute a default under this Agreement,
and the Purchaser shall have received a certificate to the foregoing effect
signed by an authorized officer of the Seller substantially in the form of
Exhibit D.
The Pooling and Servicing Agreement (to the extent it affects the
obligations of the Seller hereunder), in such form as is agreed upon and
acceptable to the Purchaser, the Seller, the Underwriters and their respective
counsel in their reasonable discretion, shall be duly executed and delivered by
all signatories as required pursuant to the terms thereof.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of the Seller's Articles of Association, charter, by-laws
or other organizational documents and all amendments, revisions,
restatements and supplements thereof, certified as of a recent date by the
Secretary of the Seller;
(ii) a certificate as of a recent date of the Comptroller of the
Currency to the effect that the Seller is duly organized, existing and in
good standing under the laws of the United States; and
(iii) an opinion of counsel of the Seller, subject to customary
exceptions and carve-outs, in form substantially similar to the opinions
set forth in Exhibit E, acceptable to the Underwriters and each Rating
Agency.
(c) The Offered Certificates shall have been concurrently issued and
sold pursuant to the terms of the Underwriting Agreement. The Private
Certificates shall have been concurrently issued and sold pursuant to the terms
of the Certificate Purchase Agreement.
(d) The Seller shall have executed and delivered concurrently
herewith the Indemnification Agreement.
(e) The Seller shall furnish the Purchaser with such other
certificates of its officers or others and such other documents and opinions to
evidence fulfillment of the conditions set forth in this Agreement as the
Purchaser and its counsel may reasonably request.
SECTION 9 Closing. The closing for the purchase and sale of the
Mortgage Loan shall take place at the office of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, New York, New York, at 10:00 a.m., on the Closing Date or such other place
and time as the parties shall agree. The parties hereto agree that time is of
the essence with respect to this Agreement.
SECTION 10 Expenses. The Seller will pay its pro rata share (the
Seller's pro rata portion to be determined according to the percentage that the
aggregate principal balance as of the Cut-off Date of the Mortgage Loan
represents as to the aggregate principal balance as of the Cut-off Date of all
the mortgage loans to be included in the Trust Fund) of all costs and expenses
of the Purchaser in connection with the transactions contemplated herein,
including, but not limited to: (i) the costs and expenses of the Purchaser in
connection with the purchase of the Mortgage Loan; (ii) the costs and expenses
of reproducing and delivering the Pooling and Servicing Agreement and this
Agreement and printing (or otherwise reproducing,) and delivering the
Certificates; (iii) the reasonable and documented fees, costs and expenses of
the Trustee and its counsel; (iv) the fees and disbursements of a firm of
certified public accountants selected by the Purchaser and the Seller with
respect to numerical information in respect of the Mortgage Loan and the
Certificates included in the Prospectus, the Offering Circular (as defined in
the Indemnification Agreement) and any related 8-K Information (as defined in
the Underwriting Agreement), including the cost of obtaining any "comfort
letters" with respect to such items; (v) the costs and expenses in connection
with the qualification or exemption of the Certificates under state securities
or blue sky laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith; (vi) the costs and expenses in connection with
any determination of the eligibility of the Certificates for investment by
institutional investors in any jurisdiction and the preparation of any legal
investment survey, including reasonable fees and disbursements of counsel in
connection therewith; (vii) the costs and expenses in connection with printing
(or otherwise reproducing) and delivering the Registration Statement and
Prospectus and the reproducing and delivery of this Agreement and the furnishing
to the Underwriters of such copies of the Registration Statement, Prospectus and
this Agreement as the Underwriters may reasonably request; (viii) the fees of
the rating agency or agencies requested to rate the Certificates; and (ix) the
reasonable fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to
the Purchaser and the Underwriters.
SECTION 11 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement. Furthermore, the
parties shall in good faith endeavor to replace any provision held to be invalid
or unenforceable with a valid and enforceable provision which most closely
resembles, and which has the same economic effect as, the provision held to be
invalid or unenforceable.
SECTION 12 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to conflicts of
law principles and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
SECTION 13 No Third-Party Beneficiaries. The parties do not intend
the benefits of this Agreement to inure to any third party except as expressly
set forth in Section 14.
SECTION 14 Assignment. The Seller hereby acknowledges that the
Purchaser has, concurrently with the execution hereof, executed and delivered
the Pooling and Servicing Agreement and that, in connection therewith, it has
assigned its rights hereunder to the Trustee for the benefit of the
Certificateholders. The Seller hereby acknowledges its obligations pursuant to
Sections 2.01, 2.02, 2.03 and 3.32 of the Pooling and Servicing Agreement. This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser and their permitted successors and assigns. The warranties
and representations and the agreements made by the Seller herein shall survive
delivery of the Mortgage Loan to the Trustee until the termination of the
Pooling and Servicing Agreement.
SECTION 15 Notices. All communications hereunder shall be in writing
and effective only upon receipt and (i) if sent to the Purchaser, will be
mailed, hand delivered, couriered or sent by facsimile transmission to it at 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to the attention of Xxxxx Xxxxxx
Xxxxxxxx, fax number: (000) 000-0000, with a copy to Xxxx Xxx, fax number: (212)
000-0000, (ii) if sent to the Seller, will be mailed, hand delivered, couriered
or sent by facsimile transmission and confirmed to it at Wachovia Bank, National
Association, 000 X. Xxxxxxx Xxxxxx XX0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, to
the attention of CREF Head of CMBS Securitization, fax number: (000) 000-0000,
with a copy to: Xxxxx Xxxxxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, XX 00000, Attention: W. Xxxx Xxxxxxxxxx, Esq., fax number: (704)
000-0000 and (iii) in the case of any of the preceding parties, such other
address as may hereafter be furnished to the other party in writing by such
parties.
SECTION 16 Amendment. This Agreement may be amended only by a
written instrument which specifically refers to this Agreement and is executed
by the Purchaser and the Seller. This Agreement shall not be deemed to be
amended orally or by virtue of any continuing custom or practice. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein or any obligations or rights of the Seller whatsoever shall be effective
against the Seller unless the Seller shall have agreed to such amendment in
writing.
SECTION 17 Counterparts. This Agreement may be executed in any
number of counterparts, and by the parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument.
SECTION 18 Exercise of Rights. No failure or delay on the part of
any party to exercise any right, power or privilege under this Agreement and no
course of dealing between the Seller and the Purchaser shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein expressly provided are cumulative and not exclusive of any rights or
remedies which any party would otherwise have pursuant to law or equity. No
notice to or demand on any party in any case shall entitle such party to any
other or further notice or demand in similar or other circumstances, or
constitute a waiver of the right of either party to any other or further action
in any circumstances without notice or demand.
SECTION 19 No Partnership. Nothing herein contained shall be deemed
or construed to create a partnership or joint venture between the parties
hereto. Nothing herein contained shall be deemed or construed as creating an
agency relationship between the Purchaser and the Seller and neither party shall
take any action which could reasonably lead a third party to assume that it has
the authority to bind the other party or make commitments on such party's
behalf.
SECTION 20 Miscellaneous. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the waiver, discharge or termination is sought.
SECTION 21 Further Assurances. The Seller and Purchaser each agree
to execute and deliver such instruments and take such further actions as any
party hereto may, from time to time, reasonably request in order to effectuate
the purposes and carry out the terms of this Agreement.
* * * * * *
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
GS MORTGAGE SECURITIES CORPORATION II
By: /s/ Xxx Xxxxx
--------------------------------------
Name: Xxx Xxxxx
Title: CFO
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ X. Xxxxx Xxxx Jr.
--------------------------------------
Name: X. Xxxxx Xxxx Jr.
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
2007-GG10 Wachovia Mortgage Loan Schedule
Control Loan Loan
Number Footnotes Number Group Property Name Address City State
------- --------- ------- ------- -------------------- -------------------- -------- --------
11 6 07-0056 Group 1 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx
Monthly Gross Remaining Remaining
Control Cut-Off Date Debt Interest Term To Amortization Term
Number Zip Code Balance ($) Service ($) Rate (%) Maturity (Mos.) Maturity Date (Mos.)
------- -------- ------------ ----------- -------- --------------- ------------- -----------------
11 10018 160,000,000 837,191.11 6.17600% 117 4/6/2017 0
Interest
Control Accrual Subservicing Servicing Administrative Ground Mortgage
Number Method Fee Rate (%) Fee Rate (%) Fee Rate (%) Lease Y/N Loan Seller
------- ---------- ------------ ------------ -------------- --------- --------------
11 Actual/360 0.2000% 0.02025% No GCFP/ Wachovia
Crossed With Companion Loan
Control Other Loans Companion Loan Companion Loan Monthly
Number Prepayment Provision (1) (Crossed Group) Flag Cut-off Balance Payment
------- ----------------------------- --------------- -------------- --------------- --------------
11 Lockout/27_Defeasance/90_0%/3
Companion Loan Companion Loan
Remaining Remaining Companion Loan Subordinate Subordinate
Control Companion Loan Term To Amortization Term Servicing Companion Loan Companion Loan
Number Interest Rate Maturity (Mos.) (Mos.) Fees Flag Cut-off Balance
------- -------------- --------------- ----------------- -------------- -------------- ---------------
11
Subordinate Subordinate Companion Subordinate
Subordinate Subordinate Companion Loan Loan Remaining Companion Loan
Control Companion Loan Companion Loan Remaining Term To Amortization Term Servicing
Number Monthly Payment Interest Rate Maturity (Mos.) (Mos.) Fees
------- --------------- -------------- ----------------- --------------------- --------------
11
1 The Open Period is inclusive of the Maturity Date.
6 The Cut-Off Date LTV was calculated using the March 2009 expected
"as-stabilized" value of $202,000,000. The Cut-Off Date LTV based on the
"as-is" value of $175 million and $30.543 million of reserves is 74.0%.
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
(1) Mortgage Loan Schedule. The information pertaining to the Mortgage Loan
set forth in the Mortgage Loan Schedule is true and accurate in all
material respects as of the Cut-off Date and contains all information
required by the Pooling and Servicing Agreement to be contained therein.
(2) Legal Compliance - Origination. The origination practices of the Seller
have been, in all material respects, legal and as of the date of its
origination, the Mortgage Loan complied in all material respects with, or
was exempt from, all requirements of federal, state or local law relating
to the origination of the Mortgage Loan; provided that such representation
and warranty does not address or otherwise cover any matters with respect
to federal, state or local law otherwise covered in this Exhibit B.
(3) Good Title; Conveyance. 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, the Mortgage Loan, and the Seller is
transferring the Mortgage Loan free and clear of any and all liens,
pledges, charges or security interests of any nature encumbering the
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 portion of the Mortgage Loan free and clear of any pledge,
lien or security interest.
(4) Future Advances. The proceeds of the Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or
reserve accounts pending the satisfaction of certain conditions relating
to leasing, repairs or other matters with respect to the Mortgaged
Property), and there is no requirement for future advances thereunder by
the mortgagee.
(5) Legal, Valid and Binding Obligation; Assignment of Leases. The related
Mortgage Note, Mortgage, Assignment of Leases (if contained in a document
separate from the Mortgage) and other agreement that evidences or secures
the Mortgage Loan and was executed in connection with the Mortgage Loan by
or on behalf of the related Mortgagor is the legal, valid and binding
obligation of the related Mortgagor (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
(i) that certain provisions contained in the 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 the 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
(ii) 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 Assignment of Leases
(as set forth in the Mortgage or in a document separate from the related
Mortgage and related to and delivered in connection with the Mortgage
Loan) establishes and creates a valid and enforceable first priority
assignment of, or a valid first priority security interest in, the related
Mortgagor's right to receive payments due under 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 Mortgaged Property,
subject to any license granted to the related Mortgagor to exercise
certain rights and to perform certain obligations of the lessor under such
leases, and subject to the limitations set forth above. The related
Mortgage Note, Mortgage and Assignment of Leases (if contained in a
document separate from the Mortgage) contain no provision limiting the
right or ability of the Seller to assign, transfer and convey the Mortgage
Loan to any other Person.
(6) No Offset or Defense. Subject to the limitations set forth in paragraph
(5), as of the date of its origination there was, and as of the Cut-off
Date there is, no valid right of offset and no valid 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, 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) Assignment of Mortgage and Assignment of Assignment of Leases. Subject to
the limitations set forth in paragraph (5), each 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. Any
assignment of a Mortgage and assignment of Assignment of Leases are
recorded (or have been submitted for recording) in the applicable
jurisdiction.
(8) Mortgage Lien. The related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property (and/or Ground Lease, if applicable),
subject to the limitations set forth in paragraph (5) 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, (c) the
exceptions (general and specific) and exclusions set forth in the
applicable Title Policy (described in paragraph (12) below) or appearing
of record, (d) other matters to which like properties are commonly subject
and (e) the right of tenants (whether under ground leases, space leases or
operating leases) pertaining to the related Mortgaged Property and
condominium declarations, none of which exceptions described in clauses
(a) - (e) above, individually or in the aggregate, materially and
adversely interferes with (1) the current use of the Mortgaged Property,
(2) the security intended to be provided by such Mortgage, (3) the
Mortgagor's ability to pay its obligations under the Mortgage Loan when
they become due or (4) the value of the Mortgaged Property. The Mortgaged
Property is free and clear of any mechanics' or other similar liens or
claims which are prior to or equal with the lien of the related Mortgage,
except those which are insured against by a lender's title insurance
policy. To the Seller's actual knowledge no rights are outstanding that
under applicable law could give rise to any such lien that would be prior
or equal to the lien of the related Mortgage, unless such lien is bonded
over, escrowed for or covered by insurance.
(9) UCC Filings. If the related Mortgaged Property is operated as a
hospitality property, the Seller has filed or caused to be filed and/or
recorded (or, if not filed and/or recorded, have been submitted in proper
form for filing and recording), UCC Financing Statements in the
appropriate public filing and/or recording offices necessary at the time
of the origination of the Mortgage Loan to perfect a valid security
interest in all items of personal property reasonably necessary to operate
such Mortgaged Property owned by such Mortgagor 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 as
permitted under the terms of the Mortgage Loan documents 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, as the case may be. Subject to the limitations set forth in
paragraph (5), each related Mortgage (or equivalent document) creates a
valid and enforceable lien and security interest on the items of
personalty described above. 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) Taxes and Assessments. All real estate taxes and governmental assessments,
or installments thereof, which could be a lien on the related Mortgaged
Property and that prior to the Cut-off Date have become delinquent in
respect of the 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) Condition of Mortgaged Property; No Condemnation. To the Seller's actual
knowledge, based solely upon due diligence customarily performed in
connection with the origination of comparable mortgage loans, as of the
Cut-off Date, (a) the related Mortgaged Property was free and clear of any
material damage (other than deferred maintenance for which escrows were
established at origination) that would affect materially and adversely the
value of such Mortgaged Property as security for the Mortgage Loan and (b)
there was no proceeding pending for the total or partial condemnation of
such Mortgaged Property.
(12) Title Insurance. The lien of the related Mortgage as a first priority lien
in the original principal amount of the Mortgage Loan is insured by an
ALTA lender's title insurance policy (or a binding commitment therefor),
or its equivalent as adopted in the applicable jurisdiction (the "Title
Policy"), insuring the originator of the Mortgage Loan, its successors and
assigns, subject only to the Title Exceptions; such originator 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, if issued, is in full
force and effect and all premiums thereon have been paid; no 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. The Title Policy
contains no material exclusion for, or alternatively it insures (unless
such coverage is unavailable in the relevant jurisdiction) (a) access to a
public road or (b) against any loss due to encroachment of any material
portion of the improvements thereon.
(13) Insurance. As of the Mortgage Loan origination date, and to the actual
knowledge of the Seller, as of the Cut-off Date, all insurance coverage
required under the Mortgage Loan documents was in full force and effect.
The Mortgage Loan requires insurance in such amounts and covering such
risks as were customarily acceptable to prudent commercial and multifamily
mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property in the jurisdiction in which
such Mortgaged Property is located, including requirements for (a) a fire
and extended perils insurance policy, in an amount (subject to a customary
deductible) at least equal to the lesser of (i) the replacement cost of
improvements located on such Mortgaged Property, or (ii) the initial
principal balance of the Mortgage Loan, and in any event, the amount
necessary to prevent operation of any co-insurance provisions, (b) except
if such Mortgaged Property is operated as a mobile home park, business
interruption or rental loss insurance, in an amount at least equal to 12
months of operations of the related Mortgaged Property (or in the case of
a Mortgaged Property without any elevator, 6 months), (c) comprehensive
general liability insurance against claims for personal and bodily injury,
death or property damage occurring on, in or about the related Mortgaged
Property, in an amount customarily required by prudent institutional
lenders and (d) if the Mortgage Loan is secured by a Mortgaged Property
(other than a manufactured housing property) located in "seismic zones" 3
or 4 in California, Nevada, Idaho, Oregon, Washington or Arkansas, a
seismic assessment by an independent third party provider was conducted
and if the seismic assessment (based on a 450-year lookback with a 10%
probability of exceedance in a 50-year period) revealed a probable maximum
loss equal to 20% or higher, earthquake insurance. To the actual knowledge
of the Seller, as of the Cut-off Date, all premiums due and payable
through the Closing Date have been paid and no notice of termination or
cancellation with respect to any such insurance policy has been received
by the Seller. Except for certain amounts not greater than amounts which
would be considered prudent by an institutional commercial mortgage lender
with respect to a similar mortgage loan and which are set forth in the
related Mortgage, the Mortgage Loan documents require that any insurance
proceeds in respect of a casualty loss, will be applied either (i) to the
repair or restoration of all or part of the related Mortgaged Property or
(ii) the reduction of the outstanding principal balance of the Mortgage
Loan, subject in either case to requirements with respect to leases at the
related Mortgaged Property and to other exceptions customarily provided
for by prudent institutional lenders for similar loans. The insurance
policies each contain a standard mortgagee clause naming the Seller and
its successors and assigns as loss payee or additional insured, as
applicable, and each insurance policy provides 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. The loan documents for
the Mortgage Loan (a) require that the Mortgagor maintain insurance as
described above or permit the mortgagee to require that the Mortgagor
maintain insurance as described above, and (b) permit the mortgagee to
purchase such insurance at the Mortgagor's expense if the Mortgagor fails
to do so. The insurer with respect to each policy is qualified to write
insurance in the relevant jurisdiction to the extent required.
(14) No Material Default. Other than payments due but not yet 30 days or more
delinquent, (i) there is no material default, breach, violation or event
of acceleration existing under the related Mortgage or the related
Mortgage Note, and (ii) to the Seller's actual knowledge, there is 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 (A) that specifically pertains to any matter
otherwise covered in this Exhibit B (including any schedule or exhibit
hereto), or (B) with respect to which: (1) the Seller has no actual
knowledge and (2) written notice of the discovery thereof is not delivered
to the Seller by the Trustee or the Master Servicer on or prior to the
date occurring twelve (12) months after the Closing Date. The Seller has
not waived any material default, breach, violation or event of
acceleration under such Mortgage or Mortgage Note, unless a written waiver
to that effect is contained in the related Mortgage File being delivered
pursuant to the Pooling and Servicing Agreement, 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.
(15) Payment Record. As of the Closing Date, the Mortgage Loan is not, and in
the prior 12 months (or since the date of origination if the 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.
(16) Servicing. The servicing and collection practices used by the Seller with
respect to the Mortgage Loan have been, in all respects, legal and have
met customary industry standards for servicing of commercial loans for
conduit loan programs.
(17) Reserved.
(18) Qualified Mortgage. The Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (but without regard
to Treasury Regulations Sections 1.860G-2(f)(2) or 1.860G 2(a)(3) that
treats a defective obligation as a qualified mortgage, or any
substantially similar successor provision). The Mortgage Loan is directly
secured by a Mortgage on a commercial property or a multifamily
residential property, and either (1) substantially all of the proceeds of
the 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 the Mortgage Loan as of the Testing Date (as defined
below), or (2) the fair market value of the interest in real property
which secures the Mortgage Loan was at least equal to 80% of the principal
amount of the Mortgage Loan (a) as of the Testing Date, or (b) as of the
Closing Date. For purposes of the previous sentence, (1) the fair market
value of the referenced interest in real property shall first be reduced
by (a) the amount of any lien on such interest in real property that is
senior to the Mortgage Loan, and (b) a proportionate amount of any lien on
such interest in real property that is on a parity with the Mortgage Loan,
and (2) the "Testing Date" shall be the date on which the Mortgage Loan
was originated unless (a) the Mortgage Loan was modified after the date of
its origination in a manner that would cause a "significant modification"
of the Mortgage Loan within the meaning of Treasury Regulations Section
1.1001-3(b), and (b) such "significant modification" did not occur at a
time when the Mortgage Loan was in default or when default with respect to
the 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 the Mortgage Loan was not in
default or when default with respect to the Mortgage Loan was not
reasonably foreseeable, the Testing Date shall be the date upon which the
latest such "significant modification" occurred. Each yield maintenance
payment and prepayment premium payable under the Mortgage Loan is a
"customary prepayment penalty" within the meaning of Treasury Regulations
Section 1.860G-1(b)(2). As of the Closing Date, the related Mortgaged
Property, if acquired in connection with the default or imminent default
of the Mortgage Loan, would constitute "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code.
(19) Environmental Conditions and Compliance. One or more environmental site
assessments or updates thereof were performed by an environmental
consulting firm independent of the Seller or the Seller's affiliates with
respect to each related Mortgaged Property during the 18-months preceding
the origination of the Mortgage Loan, and the Seller, having made no
independent inquiry other than to review the report(s) prepared in
connection with the assessment(s) 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 or equal to 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 Mortgagor has covenanted in the
Mortgage Loan documents to perform such work), (ii) a responsible party,
other than the Mortgagor, 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 Mortgagor has provided an environmental insurance policy, (iv)
an operations and maintenance plan has been or will be implemented or (v)
such conditions or circumstances were investigated further and a qualified
environmental consulting firm recommended no further investigation or
remediation.
(20) Customary Mortgage Provisions. Each related Mortgage Note, Mortgage and
Assignment of Leases (if contained in a document separate from the
Mortgage) contain customary and, subject to the limitations and exceptions
set forth in paragraph (5) and applicable state law, 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 intended to be provided thereby, including realization by
judicial or, if applicable, non-judicial foreclosure.
(21) Bankruptcy. The Mortgagor is not a debtor in, and the Mortgaged Property
is not the subject of, any state or federal bankruptcy or insolvency
proceeding; provided, however, that this representation and warranty does
not cover any such bankruptcy, reorganization, insolvency or comparable
proceeding with respect to which: (1) the Seller has no actual knowledge
and (2) written notice of the discovery thereof is not delivered to the
Seller by the Trustee or the Master Servicer on or prior to the date
occurring twelve months after the Closing Date.
(22) Whole Loan; No Equity Participation, Contingent Interest or Negative
Amortization. The Mortgage Loan is a whole loan. The Mortgage Loan does
not contain any equity participation, preferred equity component or shared
appreciation feature by the mortgagee nor does the Mortgage Loan provide
the mortgagee with any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property.
(23) Transfers and Subordinate Debt. 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, the Mortgage Loan contains a "due on sale" or
other such provision for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without the consent of the
holder of the Mortgage and complying with the requirements of the Mortgage
Loan documents, (a) the related Mortgaged Property, or any controlling or
majority equity interest in the related Mortgagor, is directly or
indirectly pledged, transferred or sold, other than as related to (i)
family and estate planning transfers, (ii) transfers to certain affiliates
as defined in the Mortgage Loan documents (iii) transfers of less than a
controlling interest in a Mortgagor, or (iv) a substitution or release of
collateral within the parameters of paragraph (26) below, or (v) the
mezzanine loan in the amount of $22,250,000 that existed at the
origination of the Mortgage Loan, or (b) the related Mortgaged Property is
encumbered with a subordinate lien or security interest against the
related Mortgaged Property, other than (i) debt in the ordinary course of
business. Except as related to (a)(i), (ii), (iii), (iv) or (v), above or
(b)(i) above, no Mortgage Loan may be assigned to another entity without
the mortgagee's consent. The Mortgage or other Mortgage Loan document
provides that to the extent any Rating Agency Fees are incurred in
connection with the review and consent to any transfer or encumbrance the
Mortgagor is responsible for such payment.
(24) Waivers and Modification. Except as set forth in the related Mortgage
File, the terms of the related Mortgage Note and Mortgage 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. Since the latest date on which
the final due diligence materials were delivered for the Mortgage Loan to
CWCapital Asset Management LLC, there has not been, given, made or
consented to an alteration, modification or assumption of the terms of the
related Mortgage Note, Mortgage(s) or any related loan agreement and/or
lock-box agreement and/or since such date, there has not been a waiver
other than as related to routine operational matters or minor covenants.
(25) Inspection. The related Mortgaged Property was inspected by or on behalf
of the related originator or an affiliate of the originator during the 12
month period prior to the related origination date.
(26) Releases of Mortgaged Property. (A) 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 (B) the terms of the
Mortgage Loan documents do not permit the release of any portion of the
Mortgaged Property from the lien of the Mortgage except (i) in
consideration of payment in full (or in certain cases, the allocated loan
amount) therefor, (ii) in connection with the substitution of all or a
portion of the Mortgaged Property in exchange for delivery of "government
securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as amended, (iii) where such portion to be released
was not considered material for purposes of underwriting the Mortgage Loan
and such release was contemplated at origination or (iv) conditioned on
the satisfaction of certain underwriting and other requirements, including
payment of a release price representing adequate consideration for such
Mortgaged Property or the portion thereof to be released.
(27) Local Law Compliance. To the Seller's actual knowledge, based upon a
letter from governmental authorities, a legal opinion, an endorsement to
the related title policy, or other due diligence considered reasonable by
prudent commercial mortgage lenders taking into account the location of
the Mortgaged Property, as of the date of origination of the 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 (i) are not
insured by the Title Policy or a law and ordinance insurance policy or
(ii) would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
(28) Improvements. To the Seller's actual knowledge based on the Title Policy
or surveys obtained in connection with the origination of the 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 Mortgagor's use and operation of such Mortgaged
Property (unless affirmatively covered by the related Title Policy) and no
improvements on adjoining properties encroached upon such Mortgaged
Property to any material and adverse extent (unless affirmatively covered
by the related Title Policy).
(29) Single Purpose Entity. (A) The related Mortgagor has covenanted in its
organizational documents and/or the Mortgage Loan documents to own no
significant asset other than the related Mortgaged Property 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; (B) the related Mortgagor (or if the Mortgagor is a limited
partnership or a multi-member limited liability company, the special
purpose general partner or special purpose managing member, as applicable,
of the related Mortgagor), has at least one independent director, and the
related Mortgagor has delivered a non-consolidation opinion of counsel;
and (C) at the time of origination of the Mortgage Loan, to the Seller's
actual knowledge, the Mortgagor was in compliance with its covenant to own
no significant asset other than the related Mortgaged Property and assets
incidental to its ownership and operation of such Mortgaged Property.
(30) Advance of Funds. (A) After origination, the Seller has not, directly or
indirectly, advanced any funds to the Mortgagor, other than pursuant to
the Mortgage Loan documents; and (B) to the Seller's actual knowledge, no
funds have been received from any Person other than the Mortgagor, for or
on account of payments due on the Mortgage Note.
(31) Litigation or Other Proceedings. 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 Mortgagor or the related Mortgaged Property
the adverse outcome of which could reasonably be expected to materially
and adversely affect (i) such Mortgagor's ability to pay its obligations
under the Mortgage Loan, (ii) the security intended to be provided by the
Mortgage Loan documents or (iii) the current use of the Mortgaged
Property.
(32) Trustee Under Deed of Trust. 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.
(33) Usury. The Mortgage Loan and the interest contracted for (exclusive of any
default interest, late charges, Yield Maintenance Charge or prepayment
premiums) is a fixed rate, and complied as of the date of origination
with, or is exempt from, applicable state or federal laws, regulations and
other requirements pertaining to usury.
(34) Other Collateral. To the Seller's knowledge, the related Mortgage Note is
not secured by any collateral that secures a loan that is not a Mortgage
Loan.
(35) Flood Insurance. If the improvements on the Mortgaged Property are located
in a federally designated special flood hazard area, the Mortgagor is
required to maintain or the mortgagee maintains, flood insurance with
respect to such improvements and such policy is in full force and effect.
(36) Escrow Deposits. All escrow deposits and payments required to be deposited
with the Seller or its agent in accordance with the Mortgage Loan
documents have been (or by the Closing Date will be) so deposited, are in
the possession of or under the control of the Seller or its agent, and
there are no deficiencies in connection therewith.
(37) Licenses and Permits. To the Seller's actual knowledge, based on the due
diligence customarily performed in the origination of comparable mortgage
loans by prudent commercial lending institutions considering the related
geographic area and properties comparable to the related Mortgaged
Property, (i) as of the date of origination of the Mortgage Loan, the
related Mortgagor, the related lessee, franchisor or operator was in
possession of all material licenses, permits and authorizations then
required for use of the related Mortgaged Property, and, (ii) as of the
Cut-off Date, the Seller has no actual knowledge that the related
Mortgagor, the related lessee, franchisor or operator was not in
possession of such licenses, permits and authorizations.
(38) Organization of Mortgagors; Affiliation with other Mortgagors. With
respect to the Mortgage Loan, in reliance on certified copies of the
organizational documents of the Mortgagor delivered by the Mortgagor in
connection with the origination of the Mortgage Loan, the Mortgagor is an
entity organized under the laws of a state of the United States of
America, the District of Columbia or the Commonwealth of Puerto Rico. The
Mortgage Loan does not have a Mortgagor that is an affiliate of another
Mortgagor.
(39) Fee Simple Interest. The Mortgage Loan is secured in whole or in material
part by the fee simple interest in the related Mortgaged Property.
(40) Recourse. The Mortgage Loan is non-recourse to the related Mortgagor
except that the Mortgagor and a natural person (or an entity with assets
other than an interest in the Mortgagor) as guarantor have agreed to be
liable with respect to losses incurred due to (i) fraud and/or other
intentional material misrepresentation, (ii) misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor 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, (iii) misapplication or conversion by the Mortgagor of insurance
proceeds or condemnation awards or (iv) breach of the environmental
covenants in the related Mortgage Loan documents.
(41) Access; Tax Parcels. The related Mortgaged Property (a) is located on or
adjacent to a dedicated road, or has access to an irrevocable easement
permitting ingress and egress, (b) is served by public utilities, water
and sewer (or septic facilities) and (c) constitutes one or more separate
tax parcels.
(42) Financial Statements. The related Mortgage requires the Mortgagor to
provide the mortgagee with operating statements and rent rolls on an
annual (or more frequent) basis or upon written request.
(43) Defeasance. If the Mortgage Loan is a Defeasance Loan, the Mortgage Loan
documents (A) permit defeasance (1) no earlier than two years after the
Closing Date, and (2) 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 through the related maturity date (or first day of
the open period) and the balloon payment that would be due on such date,
(B) require the delivery of (or otherwise contain provisions pursuant to
which the mortgagee can require delivery of) (i) an opinion to the effect
that such mortgagee has a first priority perfected security interest in
the defeasance collateral, (ii) an accountant's certification as to the
adequacy of the defeasance collateral to make all payments required under
the Mortgage Loan through the related maturity date (or first day of the
open period) and the balloon payment that would be due on such date, (iii)
an Opinion of Counsel that the defeasance complies with all applicable
REMIC Provisions, and (iv) assurances from the Rating Agencies that the
defeasance will not result in the withdrawal, downgrade or qualification
of the ratings assigned to the Certificates and (C) contain provisions
pursuant to which the mortgagee can require the Mortgagor to pay expenses
associated with a defeasance (including rating agencies' fees,
accountant's fees and attorneys' fees). The Mortgage Loan was not
originated with the intent to collateralize a REMIC offering with
obligations that are not real estate mortgages.
(44) Authorization in Jurisdiction. To the extent required under applicable law
and necessary for the enforcement of the Mortgage Loan, as of the date of
origination and at all times it held the Mortgage Loan, the originator of
the Mortgage Loan was authorized to do business in the jurisdiction in
which the related Mortgaged Property is located.
(45) Capital Contributions. Neither the Seller nor any affiliate thereof has
any obligation to make any capital contributions to the Mortgagor under
the Mortgage Loan documents.
(46) Subordinate Debt. The Mortgaged Property is not encumbered by any lien
securing the payment of money junior to, of equal priority with, or
superior to, the lien of the related Mortgage (other than Title
Exceptions, taxes, assessments and contested mechanics and materialmens
liens that become payable after the Cut-off Date).
(47) Ground Lease Representations and Warranties. If the Mortgage Loan secured
by a leasehold interest (unless the Mortgage Loan is also secured by the
corresponding fee interest in the related Mortgaged Property), the Seller
represents and warrants the following with respect to the related Ground
Lease:
(1) Such Ground Lease or a memorandum thereof has been or will be
duly recorded 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.
(2) Upon the foreclosure of the Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to the mortgagee 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).
(3) Subject to the limitations on enforceability set forth in
Paragraph 5, 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 that termination or cancellation without
such consent may be binding on the mortgagee if (i) an event of default
occurs under the Ground Lease, (ii) notice is provided to the mortgagee
and (iii) such default is curable by the mortgagee as provided in the
Ground Lease but remains uncured beyond the applicable cure period.
(4) Such Ground Lease is in full force and effect and other than
payments due but not yet 30 days or more delinquent, (i) there is no
material default, and (ii) to the actual knowledge of the Seller, 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; 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 elsewhere in this Exhibit B or in any of the exceptions to the
representations and warranties in Schedule A hereto.
(5) The Ground Lease or ancillary agreement between the lessor and
the lessee (i) requires the lessor to give notice of any default by the
lessee to the mortgagee and (ii) provides that no notice given is
effective against the mortgagee unless a copy has been delivered to the
mortgagee in the manner described in the ground lease or ancillary
agreement.
(6) The Ground Lease (i) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, other than the
ground lessor's fee interest and Title Exceptions or (ii) 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.
(7) The 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 after receipt of notice of such default before the lessor
thereunder may terminate such Ground Lease.
(8) 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 or if the Mortgage Loan is fully
amortizing, extends not less than 10 years after the amortization term for
the Mortgage Loan.
(9) Under the terms of the Ground Lease and the Mortgage Loan
documents (including, without limitation, any estoppel or consent letter
received by the mortgagee from the lessor), taken together, any related
insurance proceeds or condemnation award (other than de minimis amounts
for minor casualties or 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 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 the Mortgage
Loan).
(10) The Ground Lease does not restrict the use of the related
Mortgaged Property by the lessee or its successors or assigns in a manner
that would materially adversely affect the security provided by the
related mortgage.
(11) The Ground Lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by a prudent commercial
mortgage lender.
(12) 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.
EXHIBIT C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
None
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
Wachovia Bank, National Association ("Seller") hereby certifies as
follows:
1. All of the representations and warranties (except as set forth
on Schedule C) of the Seller under the Mortgage Loan Purchase
Agreement, dated as of July 1, 2007 (the "Agreement"), between
GS Mortgage Securities Corporation II and Seller, are true and
correct in all material respects on and as of the date hereof
with the same force and effect as if made on and as of the
date hereof.
2. The Seller has complied in all material respects with all the
covenants and satisfied all the conditions on its part to be
performed or satisfied under the Agreement on or prior to the
date hereof and no event has occurred which would constitute a
default under the Agreement.
3. Neither the Prospectus, dated June 13, 2007, as supplemented
by the Prospectus Supplement, dated June 21, 2007
(collectively, the "Prospectus"), relating to the offering of
the Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4,
Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D,
Class E and Class F Certificates nor the Offering Circular,
dated June 21, 2007 (the "Offering Circular"), relating to the
offering of the Class X, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S,
Class R and Class LR Certificates, in the case of the
Prospectus and the Prospectus Supplement, as of the date of
the Prospectus Supplement or as of the date hereof, or the
Offering Circular, as of the date of thereof or as of the date
hereof, included or includes any untrue statement of a
material fact relating to the Mortgage Loan or the Seller or
omitted or omits to state therein a material fact necessary in
order to make the statements therein relating to the Mortgage
Loan or the Seller, in light of the circumstances under which
they were made, not misleading.
Capitalized terms used herein without definition have the meanings
given them in the Agreement.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
Certified this 10th day of July, 2007.
WACHOVIA BANK, NATIONAL ASSOCIATION
By:_________________________________
Name:
Title:
EXHIBIT E
FORM OF LEGAL OPINION
(a) The Seller is a [______], duly organized, validly existing and
in good standing under the laws of [______] with full power and authority to own
its assets and conduct its business, is duly qualified as a foreign organization
in good standing in all jurisdictions in which the ownership or lease of its
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse effect on
its ability to perform its obligations thereunder, and the Seller has taken all
necessary action to authorize the execution, delivery and performance of the
Mortgage Loan Purchase Agreement and the Indemnification Agreement
(collectively, the "Operative Documents"), and has duly executed and delivered
the Operative Documents, and has the power and authority to execute, deliver and
perform under the Operative Documents and all the transactions contemplated
thereby, including, but not limited to, the power and authority to sell, assign,
transfer, set over and convey the Mortgage Loan in accordance with the Mortgage
Loan Purchase Agreement;
(b) Assuming the due authorization, execution and delivery of each
Operative Document by each party thereto other than the Seller, each Operative
Document will constitute a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights generally,
and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(c) The execution and delivery of each Operative Document by the
Seller and the performance of its obligations thereunder will not conflict with
any provision of any law or regulation to which the Seller is subject, or
conflict with, result in a breach of, or constitute a default under, any of the
terms, conditions or provisions of any of the Seller's organizational documents
or any agreement or instrument to which the Seller is a party or by which it is
bound, or any order or decree applicable to the Seller, or result in the
creation or imposition of any lien on any of the Seller's assets or property, in
each case which would materially and adversely affect the ability of the Seller
to carry out the transactions contemplated by the Operative Documents;
(d) There is no action, suit, proceeding or investigation pending
or, to the Seller's knowledge, threatened against the Seller in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loan or the ability
of the Seller to carry out the transactions contemplated by each Operative
Document;
(e) The Seller is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or governmental agency, which default might have consequences that would
materially and adversely affect the condition (financial or other) or operations
of the Seller or its properties or might have consequences that would materially
and adversely affect its performance under any Operative Document; and
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, each Operative
Document or the consummation of the transactions contemplated thereby, other
than those which have been obtained by the Seller.
