Exhibit 99.2
GECMC 0000-X0
Xxxx xx Xxxxxxx MLPA
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of March 1,
2006 (the "Agreement"), is between GE Commercial Mortgage Corporation, a
Delaware corporation (the "Company"), and Bank of America, National Association,
a national banking association (the "Mortgage Loan Seller"). The Mortgage Loan
Seller agrees to sell, and the Company agrees to purchase the mortgage loans
(the "Mortgage Loans") described and set forth in the Mortgage Loan Schedule
attached as Exhibit A to this Agreement (the "Mortgage Loan Schedule"). The
Company intends to deposit the Mortgage Loans and other assets into a trust (the
"Trust") and cause the creation of a series of certificates to be known as GE
Commercial Mortgage Corporation, Commercial Mortgage Pass-Through Certificates,
Series 2006-C1 (the "Certificates"), evidencing beneficial ownership interests
in the Mortgage Loans and other assets (including, without limitation, other
mortgage loans (the "Other Mortgage Loans")), under a Pooling and Servicing
Agreement, to be dated as of March 1, 2006 (the "Pooling and Servicing
Agreement"), among the Company, as depositor, Wachovia Bank, National
Association ("Wachovia"), a national banking association, as the servicer with
respect to the Mortgage Loans and the Other Mortgage Loans (other than the
Non-Serviced Mortgage Loans), LNR Partners, Inc., a Florida corporation ("LNR"),
as special servicer with respect to the Mortgage Loans and the Other Mortgage
Loans (other than the Non-Serviced Mortgage Loans), and LaSalle Bank, N.A., a
national banking association, as trustee (the "Trustee").
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 and Class C (the "Offered Certificates")
will be sold by the Depositor to Banc of America Securities LLC ("Banc of
America"), Deutsche Bank Securities Inc. ("DBSI"), Credit Suisse Securities
(USA) LLC ("Credit Suisse"), X.X. Xxxxxx Securities Inc. ("X.X. Xxxxxx") and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx" and,
together with DBSI, Banc of America, Credit Suisse and X.X. Xxxxxx, the
"Underwriters") pursuant to the Underwriting Agreement among the Depositor and
the Underwriters, dated March 13, 2006 (the "Underwriting Agreement"), and the
Class X-W, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O and Class P Certificates (the "Non-Offered
Certificates", and, together with the Offered Certificates, the "Certificates")
will be sold pursuant to the Certificate Purchase Agreement among the Depositor,
Banc of America Securities and DBSI (Banc of America Securities and DBSI in such
capacity, the "Initial Purchasers"), dated March 13, 2006 (the "Certificate
Purchase Agreement"). The Underwriters will offer the Offered Certificates for
sale pursuant to the Time of Sale Information (as defined below) and the Initial
Purchasers will offer the Non-Offered Certificates in transactions exempt from
the registration requirements of the Securities Act of 1933 (the "1933 Act")
pursuant to one or more Private Placement Memoranda dated the date hereof
(including the compact disc or diskette delivered therewith (the "Diskette") and
as supplemented or amended, the "Private Placement Memoranda").
At or prior to the time when sales to investors of the Offered
Certificates were first made (the "Time of Sale"), the Company had prepared and
filed with the Securities and Exchange Commission (the "SEC") the following
information: (i) a Free Writing Prospectus dated March 3, 2006 (including the
Diskette and as supplemented or amended, the "Preliminary Prospectus FWP"), (ii)
a Free Writing Prospectus dated as of March 3, 2006 (the "Term Sheet FWP") (iii)
a Free Writing Prospectus dated as of March 9, 2006 (the "March 9th FWP") and
(iv) a Free Writing Prospectus dated as of March 13, 2006 (the "March 13th FWP"
and, together with the Preliminary Prospectus FWP, the Term Sheet FWP, the March
9th FWP and the March 13th FWP, the "Time of Sale Information"). If subsequent
to the Time of Sale, the Company and the Underwriters have determined that such
information included an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances in which they were made, not misleading and have terminated
their old purchase contracts and entered into new purchase contracts with one or
more purchasers of the Offered Certificates, then "Time of Sale Information"
will refer to the information provided by the Company or the Underwriters to
purchasers at the time of entry into the first such new purchase contract,
including, without limitation, any information that corrects such material
misstatements or omissions ("Corrective Information") and "Time of Sale" will
refer to the time of entry into the first such new purchase contract.
After the Time of Sale, the Underwriters will deliver to investors a
Prospectus dated March 3, 2006 (the "Prospectus"), as supplemented by a final
Prospectus Supplement dated March 13, 2006 (including the Diskette, the "Final
Prospectus Supplement", and together with the Prospectus, and as supplemented or
amended, the "Final Prospectus").
Wachovia, in its capacity as servicer of the Mortgage Loans (other
than the Non-Serviced Mortgage Loans), and the servicers of the Mortgage Loans
that are Non-Serviced Mortgage Loans, and their respective successors and
assigns in such capacities, are referred to herein as the "Servicers." LNR, in
its capacity as special servicer of the Mortgage Loans, and the special
servicers of the Mortgage Loans that are Non-Serviced Mortgage Loans, and their
respective successors and assigns in such capacities, are referred to herein as
the "Special Servicers."
Capitalized terms used but not otherwise defined herein shall have
the respective meanings given to them in the Pooling and Servicing Agreement.
1. Purchase Price; Purchase and Sale. In consideration of the sale
of the Mortgage Loans from the Mortgage Loan Seller to the Company on March 23,
2006 (the "Closing Date"), the Company agrees to pay to the Mortgage Loan Seller
on the Closing Date by transfer of immediately available funds, an amount agreed
upon by the parties in a separate writing. The closing for the purchase and sale
of the Mortgage Loans shall take place at the offices of Cadwalader, Xxxxxxxxxx
& Xxxx LLP, New York, New York, at 10:00 a.m. (New York time), on the Closing
Date.
On the Closing Date, the Mortgage Loan Seller shall sell, transfer,
assign, set over and convey to the Company, and the Company shall purchase, all
the right, title and interest of the Mortgage Loan Seller in and to the Mortgage
Loans, including all payments of interest and principal due on each Mortgage
Loan after the related Cut-off Date, together with all of the Mortgage Loan
Seller's right, title and interest in and to the proceeds of any related title,
hazard, primary mortgage or other insurance policies but subject to the sale of
the servicing rights pursuant to the Appointment Agreement (as defined herein).
The Company hereby directs the Mortgage Loan Seller, and the Mortgage Loan
Seller hereby agrees, to (1) promptly after the Closing Date, but in all events
within three Business Days after the Closing Date, transfer all funds on deposit
in escrow accounts maintained with respect to the Mortgage Loans in the name of
the Mortgage Loan Seller or any other name to the applicable Servicer (or a
Sub-Servicer) for deposit into Servicing Accounts and (2) deliver to the Trustee
on or prior to the Closing Date or, within 45 days following the Closing Date,
as specified in the Pooling and Servicing Agreement, the documents, instruments
and agreements required to be delivered by the Company to the Trustee under
Section 2.01 of the Pooling and Servicing Agreement, and meeting all the
requirements of such Section 2.01, and such other documents, instruments and
agreements as the Company or the Trustee shall reasonably request.
2. Representations and Warranties. (a) The Mortgage Loan Seller
hereby represents and warrants to the Company as of the date hereof and as of
Closing Date that:
(i) The Mortgage Loan Seller 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 Mortgage Loan Seller to perform
its obligations hereunder, and the Mortgage Loan Seller 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,
including, but not limited to, the power and authority to
sell, assign, transfer, set over and convey the Mortgage Loans
in accordance with this Agreement;
(ii) This Agreement has been duly authorized, executed and
delivered by the Mortgage Loan Seller and assuming its due
authorization, execution and delivery by the Company, will
constitute a legal, valid and binding obligation of the
Mortgage Loan Seller, enforceable against the Mortgage Loan
Seller in accordance with the terms of this Agreement, 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), and except that the enforcement of rights with respect
to indemnification and contribution obligations may be limited
by applicable law;
(iii) The execution and delivery of this Agreement by the
Mortgage Loan Seller and the performance of its obligations
hereunder will not conflict with any provision of any law or
regulation to which the Mortgage Loan 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
Mortgage Loan Seller's organizational documents or any
agreement or instrument to which the Mortgage Loan Seller is a
party or by which it is bound, or any order or decree
applicable to the Mortgage Loan Seller, or result in the
creation or imposition of any lien on any of the Mortgage Loan
Seller's assets or property, in each case which would
materially and adversely affect the ability of the Mortgage
Loan Seller to carry out the transactions contemplated by this
Agreement;
(iv) There is no action, suit, proceeding or investigation
pending or, to the knowledge of the Mortgage Loan Seller,
threatened against the Mortgage Loan 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 Loans or the ability of the Mortgage Loan Seller
to carry out the transactions contemplated by this Agreement;
(v) The Mortgage Loan 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 Mortgage Loan Seller or its
properties or might have consequences that would materially
and adversely affect its performance hereunder;
(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 Mortgage Loan Seller of or
compliance by the Mortgage Loan Seller with this Agreement or
the consummation by the Mortgage Loan Seller of the
transactions contemplated by this Agreement, other than those
which have been obtained by the Mortgage Loan Seller;
(vii) The transfer, assignment and conveyance of the Mortgage
Loans by the Mortgage Loan Seller to the Company is not
subject to bulk transfer laws or any similar statutory
provisions in effect in any applicable jurisdiction;
(viii) Insofar as it relates to the Mortgage Loans, the
information set forth in Annexes X-0, X-0, X-0 or A-5 to the
Preliminary Prospectus FWP and the Final Prospectus (the "Loan
Detail") and, to the extent consistent therewith, the
information set forth on the Diskette, is true and correct in
all material respects. The information set forth in (a) the
Preliminary Prospectus FWP (as supplemented by the other Time
of Sale Information), as of the Time of Sale and as of the
date hereof, and (b) the Final Prospectus as of the date
hereof, under the headings "Summary of the Prospectus
Supplement--Relevant Parties and Dates--Sponsors," "--The
Mortgage Pool," "Risk Factors," "The Sponsors, Mortgage Loan
Sellers and Originators" and "Description of the Mortgage
Pool" and the information set forth on Annexes X-0, X-0, X-0
or A-5 and Annex B to the Preliminary Prospectus FWP and the
Final Prospectus, and to the extent it contains information
consistent with that on such Annexes X-0, X-0, X-0 or A-5, set
forth on the Diskette, does not contain any untrue statement
of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading,
insofar as such information relates to the Mortgage Loans, the
Mortgaged Properties or Mortgagors related to the Mortgage
Loan, and/or the Seller, and does not represent a restatement
or aggregation of the information on the Loan Detail; and
(ix) The information set forth in the Preliminary Prospectus
FWP and the Final Prospectus complies with the requirements of
and contains all of the applicable information required by
Regulation AB insofar as such information (i) relates to the
Mortgage Loans and is contained in the Loan Detail or (ii)
relates to the Seller, the Mortgage Loans or the Mortgaged
Properties or Mortgagors related to the Mortgage Loans, and
was contained in the Prospectus Supplement under the headings
"Summary of the Prospectus Supplement--Relevant Parties and
Dates--Sponsors," "--Mortgage Loan Sellers," "--Originators,"
"--The Mortgage Pool," "Risk Factors," "Transaction
Parties--The Sponsors," "Description of the Mortgage Pool" or
Annex B, and does not represent an incorrect restatement or an
incorrect aggregation of correct information regarding the
Mortgage Loans contained in the Loan Detail.
(b) The Mortgage Loan Seller hereby makes each of the
representations and warranties set forth on Exhibit D hereto with respect to
each Mortgage Loan, as of the date specified therein or, if no such date is
specified, as of the Closing Date, except as set forth on the Exhibit E hereto.
3. Notice of Breach; Cure and Repurchase or Substitution; Other
Mortgage Loan Costs.
(a) The Mortgage Loan Seller and the Company shall be given prompt
written notice of any Breach or Document Defect, to the extent required by
Section 2.03(b) of the Pooling and Servicing Agreement.
(b) With respect to each Mortgage Loan as to which the Mortgage Loan
Seller has received notice referred in subsection (a) above, the Mortgage Loan
Seller agrees to cure any Breach or Document Defect, as the case may be, in all
material respects, repurchase the affected Mortgage Loan or substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan in accordance
with the terms of Section 2.03(b) of the Pooling and Servicing Agreement.
(c) Upon any repurchase or substitution of a Mortgage Loan
contemplated by Section 3(b) above, the Trustee, the applicable Servicer and the
applicable Special Servicer shall each tender to the Mortgage Loan Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and each document that constitutes a part of the Mortgage
File that was endorsed or assigned to the Trustee shall be endorsed or assigned,
as the case may be, to the Mortgage Loan Seller.
(d) Without limiting the remedies of the Company, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to Section 2 of this Agreement.
(e) The Mortgage Loan Seller hereby acknowledges the assignment by
the Company to the Trustee, as trustee under the Pooling and Servicing
Agreement, for the benefit of the Certificateholders, of the representations and
warranties contained herein and of the obligation of the Mortgage Loan Seller to
repurchase a Mortgage Loan or substitute a Qualified Substitute Mortgage Loan
pursuant to this Section. The Trustee or its designee may enforce such
obligations as provided in Section 9 hereof.
(f) With respect to any action taken concerning "due-on-sale" or a
"due-on-encumbrance" clause as set forth in Section 3.08(e) of the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related thereto
including any fee charged by a Rating Agency that is rendering a written
confirmation, to the extent that the related Mortgage Loan documents do not
permit the lender to require payment of such fees and expenses from the
Mortgagor, shall be paid by the Mortgage Loan Seller.
(g) Upon any repurchase or substitution of a Mortgage Loan
contemplated by Section 3(b) above, the Mortgage Loan Seller shall either (i)
retain the applicable Servicer for the repurchased or substituted Mortgage Loan
according to substantially the same terms set forth in the Pooling and Servicing
Agreement or (ii) repurchase the servicing rights for the repurchased or
substituted Mortgage Loan from the applicable Servicer at a purchase price based
on the formula set forth in Section 4 of the Agreement to Appointment of
Servicer by and between the Mortgage Loan Seller and Wachovia dated as of March
1, 2006 (the "Appointment Agreement") to the extent the related Mortgage Loan is
subject to Appointment Agreement.
4. Representations, Warranties and Agreements of Company.
(a) The Company hereby represents and warrants to the Mortgage Loan
Seller, as of the date hereof (or such other date as is specified in the related
representation or warranty), as follows:
(i) The Company 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 in compliance with
the laws of each jurisdiction 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
Company to perform its obligations hereunder, and the Company
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) This Agreement has been duly authorized, executed and
delivered by the Company and assuming due authorization,
execution and delivery by the Mortgage Loan Seller, will
constitute a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with
its terms, except as such enforcement may be limited by
bankruptcy, reorganization, insolvency, moratorium and other
similar laws affecting the enforcement of creditors' rights
generally and to 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
Company and the performance of its obligations hereunder will
not conflict with any provision of any law or regulation to
which the Company 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 Company's
organizational documents or any agreement or instrument to
which the Company is a party or by which it is bound, or any
order or decree applicable to the Company, or result in the
creation or imposition of any lien on any of the Company's
assets or property, in each case which would materially and
adversely affect the ability of the Company to carry out the
transactions contemplated by this Agreement;
(iv) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Company, threatened against
the Company 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 Company
contemplated herein, or which would be likely to impair
materially the ability of the Company to perform under the
terms of this Agreement;
(v) The Company 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 Company or its properties or might have
consequences that would materially and adversely affect its
performance hereunder; and
(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 Company of or compliance by
the Company with this Agreement or the consummation of the
transactions contemplated by this Agreement other than those
that have been obtained by the Company.
5. Company's Conditions to Closing.
The obligations of the Company under this Agreement shall be subject
to the satisfaction, on the Closing Date, or such other date specified herein,
of the following conditions:
(a) The obligations of the Mortgage Loan 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 Mortgage Loan Seller under this Agreement
shall be true and correct as of the date specified in such representation and
warranty or, if no such date is specified, as of the Closing Date, and no event
shall have occurred which, with notice or the passage of time, or both, would
constitute a default under this Agreement, and the Company shall have received a
certificate to that effect signed by an authorized officer of the Mortgage Loan
Seller, upon which the Company and the Underwriters may rely.
(b) The Company or its designee shall have received all of the
following closing documents, in such forms as are agreed upon and acceptable to
the Company and in form and substance satisfactory to the Company, the
Underwriters and their respective counsel, duly executed by all signatories
other than the Company as required pursuant to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage
Note, which Mortgage Note shall be delivered to and held by
the Trustee on behalf of the Company;
(ii) the final Mortgage Loan Schedule;
(iii) an officer's certificate from the Mortgage Loan Seller
dated as of the Closing Date, in the form attached hereto as
Exhibit B, upon which the Underwriters may rely;
(iv) a certificate of the Mortgage Loan Seller, dated the
Closing Date, and upon which the Company and the Underwriters
may rely, to the effect that representatives of the Mortgage
Loan Seller have carefully examined the Time of Sale
Information and the Final Prospectus and nothing has come to
the attention of the Mortgage Loan Seller that would lead the
Mortgage Loan Seller to believe that the Time of Sale
Information, as of the Time of Sale or as of the Closing Date,
or the Final Prospectus, as of the Closing Date, included or
includes any untrue statement of a material fact relating to
the Mortgage Loans or omitted or omits to state therein a
material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading;
(v) an opinion of Mortgage Loan Seller's counsel, subject to
customary exceptions and carve-outs, which states in substance
the opinions set forth on Exhibit C hereto;
(vi) such other documents, certificates and opinions relating
to the Mortgage Loans or the Mortgage Loan Seller as may be
necessary to secure for the Certificates the following ratings
by Standard & Poor's Rating Services ("S&P") and Fitch, Inc.
("Fitch") and together with S&P, the "Rating Agencies") for
the Class A-1 Certificates, a "AAA" by S&P and a "AAA" by
Fitch; for the Class A-2 Certificates, a "AAA" by S&P and a
"AAA" by Fitch; for the Class A-3 Certificates, a "AAA" by S&P
and a "AAA" by Fitch; for the Class A-AB Certificates, a "AAA"
by S&P and a "AAA" by Fitch; for the Class A-4 Certificates, a
"AAA" by S&P and a "AAA" by Fitch; for the Class A-1A
Certificates, a "AAA" by S&P and a "AAA" by Fitch; for the
Class A-M Certificates, a "AAA" by S&P and a "AAA" by Fitch;
for the Class A-J Certificates, a "AAA" by S&P and a "AAA" by
Fitch; for the Class B Certificates, a "AA" by S&P and a "AA"
by Fitch; for the Class C Certificates, a "AA-" by S&P and a
"AA-" by Fitch; for the Class X-W Certificates, a "AAA" by S&P
and a "AAA" by Fitch; for the Class D Certificates, a "A" by
S&P, and a "A" by Fitch; for the Class E Certificates, a "A-"
by S&P and a "A-" by Fitch; for the Class F Certificates, a
"BBB+" by S&P and a "BBB+" by Fitch; for the Class G
Certificates, a "BBB" by S&P and a "BBB" by Fitch; for the
Class H Certificates, a "BBB-" by S&P and a "BBB-" by Fitch;
for the Class J Certificates, a "BB+" by S&P and a "BB+" by
Fitch; for the Class K Certificates, a "BB" by S&P and a "BB"
by Fitch; for the Class L Certificates, a "BB-" by S&P and a
"BB-" by Fitch; for the Class M Certificates, a "B+" by S&P
and a "B+" by Fitch; for the Class N Certificates, a "B" by
S&P and a "B" by Fitch; for the Class O Certificates, a "B-"
by S&P and a "B-" by Fitch; and the Class P Certificates will
not be rated by any rating agency;
(vii) a letter from the independent accounting firm of
Deloitte & Touche LLP in form satisfactory to the Company,
relating to certain information regarding the Mortgage Loans
as set forth in the Prospectus; and
(viii) the Indemnification Agreement dated March 13, 2006, by
and among the Mortgage Loan Seller, the Company, the
Underwriters and the Initial Purchasers.
(c) The Mortgage Loan Seller hereby agrees to furnish such other
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans or itself as may be reasonably requested by the Company in order
for the Company to perform any of its obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to the Underwriting
Agreement, the Pooling and Servicing Agreement or this Agreement.
6. Accountants' Letters.
The parties hereto shall cooperate with Deloitte & Touche LLP in
making available all information and taking all steps reasonably necessary to
permit such accountants to deliver the letters required by the Underwriting
Agreement.
7. Notice of Exchange Act Reporting Events. The Seller hereby agrees
to deliver to the Purchaser and the Trustee any disclosure information relating
to any event reasonably determined in good faith by the Purchaser as required to
be reported on Form 8-K, Form 10-D or Form 10-K by the Trust (in a format
reasonably appropriate for inclusion in such form), including, without
limitation, the disclosure required under Items 1117 and 1119 of Regulation AB
and Item 1.03 to Form 8-K. The Seller shall use its best efforts to deliver
proposed disclosure language relating to any event described under Items 1117
and 1119 of Regulation AB and Item 1.03 to Form 8-K to the Trustee and the
Purchaser within one Business Day and in any event no later than two Business
Days of the Seller becoming aware of such event and shall provide disclosure
relating to any other event reasonably determined by the Purchaser as required
to be disclosed on Form 8-K, Form 10-D or Form 10-K within two Business Days
following the Purchaser's request for such disclosure language. The obligation
of the Seller to provide the above referenced disclosure materials will
terminate upon notice from the Purchaser or the Trustee that the Trustee has
filed a Form 15 with respect to the Trust Fund as to that fiscal year in
accordance with Section 10.10(a) of the Pooling and Servicing Agreement. The
Seller hereby acknowledges that the information to be provided by it pursuant to
this Section will be used in the preparation of reports meeting the reporting
requirements of the Trust under Section 13(a) and/or Section 15(d) of the
Securities Exchange Act of 1934, as amended.
8. Notices. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Company, will be mailed, hand
delivered, couriered or sent by facsimile transmission to it at c/o General
Electric Capital Corporation, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Capital Markets / Xxxxxx Xxxxxx, fax number (000) 000-0000,
with a copy to Xxxxxxxx X. XxXxxx, Esq., General Electric Capital Corporation,
000 Xxxx Xxxxx Xx., Xxxxxxxx, Xxxxxxxxxxx, 00000, fax number (000) 000-0000, or,
if sent to the Mortgage Loan Seller, will be mailed, hand delivered, couriered
or sent by facsimile transmission and confirmed to it at 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx, fax
number (000) 000-0000, with a copy to Xxxx X. Xxxxxxx, Esq., at Bank of America
Corporate Center, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000 and with a copy to Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx
LLP, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000.
9. Third Party Beneficiaries.
(a) The representations, warranties and agreements made by the
Mortgage Loan Seller in this Agreement are made for the benefit of, and, to the
extent they are assigned by the Company to the Trustee under the Pooling and
Servicing Agreement, may be enforced by or on behalf of, the Trustee, each
Servicer (as to the Mortgage Loans serviced by such Servicer) or each Special
Servicer (as to the Mortgage Loans serviced by such Special Servicer), as
provided in the Pooling and Servicing Agreement, to the same extent that the
Company has rights against the Mortgage Loan Seller under this Agreement in
respect of representations, warranties and agreements made by the Mortgage Loan
Seller herein.
(b) Each of the Underwriters is an intended third party beneficiary
of the representations, warranties and covenants of the Mortgage Loan Seller set
forth in Sections 2(b), and 6 (and, to the extent relevant to the foregoing, in
Sections 10, 11, 12, 13 and 14) of this Agreement. It is acknowledged and agreed
that such representations, warranties and covenants may be enforced by or on
behalf of any Underwriter against the Mortgage Loan Seller to the same extent as
if it were a party hereto.
10. Miscellaneous. This Agreement will be governed by and construed
in accordance with the substantive laws of the State of New York, without regard
to conflicts of laws principles. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may not be changed or waived in any manner which would
have a material adverse effect on Certificateholders without the prior written
consent of the Trustee. This Agreement also may not be changed in any manner
which would have a material adverse effect on any other third party beneficiary
hereof without the prior written consent of that person. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, and no
other person will have any right or obligation hereunder, other than as provided
herein. This Agreement is enforceable by the Underwriters and the other third
party beneficiaries hereto in all respects to the same extent as if they had
been signatories hereof.
11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement, or
in certificates of officers of the Mortgage Loan Seller and the Company
submitted pursuant hereto, shall remain operative and in full force and effect
and shall survive transfer and sale of the Mortgage Loans to the Company and by
the Company to the Trustee notwithstanding any language to the contrary
contained in any endorsement of any Mortgage Loan.
12. Severability. If any provision of this Agreement shall be
prohibited or invalid under applicable law, this Agreement shall be ineffective
only to such extent, without invalidating the remainder of this Agreement.
13. Further Assurances. The Mortgage Loan Seller and the Company
agree to execute and deliver such instruments and take such actions as the other
party may, from time to time, reasonably request in order to effectuate the
purpose and to carry out the terms of this Agreement.
14. JURISDICTION. THE MORTGAGE LOAN SELLER HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE
NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM
ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR
CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY
REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR
FORM OF MAIL), POSTAGE PREPAID, TO THE MORTGAGE LOAN SELLER AT
ITS ADDRESS SET FORTH HEREIN FOR NOTICES OR AT SUCH OTHER
ADDRESS OF WHICH THE COMPANY SHALL HAVE BEEN NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION.
15. Costs. The Mortgage Loan Seller shall pay (or shall reimburse
the Company to the extent that the Company has paid) the Mortgage Loan Seller's
pro rata portion of the aggregate of the following amounts (the Mortgage Loan
Seller's pro rata portion to be determined according to the percentage that the
principal balance of the Mortgage Loans represents of the principal balance of
the Mortgage Loans and the Other Mortgage Loans): (i) the costs and expenses of
printing (or otherwise reproducing) and delivering a preliminary and final
Prospectus relating to the Certificates; (ii) the initial fees, costs, and
expenses of the Trustee (including reasonable attorneys' fees); (iii) the filing
fee charged by the Securities and Exchange Commission for registration of the
Certificates so registered and reasonable attorney's fees and legal expenses in
connection therewith; (iv) the fees charged by the Rating Agencies to rate the
Certificates so rated and reasonable attorney's fees and legal expenses in
connection therewith; (v) the fees and expenses of counsel to the Underwriter;
(vi) the fees and expenses of counsel to the Depositor; (vii) the fees and
expenses of counsel to the Servicers; (vii) the fees and expenses of counsel to
the Mortgage Loan Seller and the sellers of the Other Mortgage Loans; (ix) the
costs and expenses of the "Bloomberg roadshow"; (x) the expense of recording any
assignment of Mortgage or assignment of Assignment of Leases as contemplated by
Article 2 of the Pooling and Servicing Agreement; (xi) the cost of obtaining a
"comfort letter" from a firm of certified public accountants selected by the
Company and the Mortgage Loan Seller with respect to numerical information in
respect of the Mortgage Loans included in the Prospectus; and (xii) other
miscellaneous costs and expenses agreed upon by the parties hereto. All other
costs and expenses in connection with the transactions contemplated hereunder
shall be borne by the party incurring such expense.
16. Characterization of Sale. It is the express intent of the
parties hereto that the conveyance of the Mortgage Loans by the Mortgage Loan
Seller to the Company as provided in Section 1 hereof be, and be construed as, a
sale of the Mortgage Loans by the Mortgage Loan Seller to the Company and not as
a pledge of the Mortgage Loans by the Mortgage Loan Seller to the Company to
secure a debt or other obligation of the Mortgage Loan Seller.
[Signature page follows]
IN WITNESS WHEREOF, the Company and the Mortgage Loan Seller have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
GE COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
BANK OF AMERICA, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Principal
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[begins on the following page]
GE COMMERCIAL MORTGAGE CORPORATION, SERIES 2006-C1
Mortgage Loan Schedule
ID Property Name Sponsor
---- ---------------------------------------------------- --------------------------------------------------------
1 000 Xxxx Xxxxxx Xxxxxx of Xxxxxxx Xxxxx
2 KinderCare Portfolio GMH Communities Trust, Xxxx X. Xxxxxxxx, Vornado
Realty Trust, College Park Investments, LLC
00 Xxxxxxxx Xxxxx Xxxxxxx GMH Communities Trust, Xxxx X. Xxxxxxxx, Vornado
Realty Trust, College Park Investments, LLC
17 Xxxxxxx & Palermo Apartments Xxxxx, Xxxxx X.
17.1 Messina Apartments and Two Retail Buildings
17.2 Palermo Apartments
20 Storage Express Portfolio Hilton Hotels, Inc., Duke Street Partnership, The Xxxxxx
Xxxx Company
20.1 Storage Express - Lauderhill
20.2 Storage Express - Pompano Beach
21 Raley's Stockton Xxxxx, Xxxxxxx
28 Self Storage I - Honolulu, HI Xxxxxx & Xxxxxx USA, LLC, U.S. Advisor, LLC
00 Xxxxxxxxxx Xxxxxxx-Xxxxxx Xxxxxxx Xxxx Investments LLC
34 000 X. Xxxxxxxx Xxxxxx Xxx, Xxxxxxx Y.C.
38 AAA Quality Self Storage Xxxxxxxxx, Xxxxx X.
00 Xxx Xxxx Xxxxxxx XXX Operating Limited Partnership
00 Xxxxxxxxx Xxxxxxx Xxxxxxxxx Xxxxx, Xxxx X.
45 Abby Self Storage Xxxxxxx, Xxxxxx; XXXX, XX
00 Xxxx Xxxxx Xxxxx Xxxxxxxx Xxxxxx CNA Enterprises, Inc.
95 Bay Area Self Storage U.S. Advisor, LLC, Xxxxxx & Xxxxxx Management, Inc.
103 College Park Storage Center XX Xxxxxx Income & Growth Fund, New Plan Excel
Realty Trust Inc.
000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxx Xxxx Investments LLC
108 808 & 000 Xxxx Xxxx Xxxxxx Xxxxx, Xxxx X.
109 Weston Ranch - Xxxxxxxx Xxxxx, Xxxxxxx X.
121 Walgreens - Pueblo, CO Xxxxx Xxxxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx X. Xxxxxxxx,
T. Xxxxx Xxxxxxxx, Xxxx Xxxxxxxx, Xxxxxxxx X. Xxxx
123 Walgreens - Otsego Xxxx, Xxxxxx
127 Walgreens - San Xxxxxx Xxxx, Xxxxxx
131 Walgreens - Key Largo Xxxxxxxx, Xxxx X.
138 Shops at Weston Ranch - Xxxxxxxx Xxxxx, Xxxxxxx X.
000 Xxxxxx Xxxx Storage Xxxxxxx, Xxxxxxx
ID Address City State Zip Code
----- --------------------------------------------- ------------------ ------- ---------
1 000 Xxxx Xxxxxx Xxx Xxxx XX 00000
2 Various Various Various Various
14 0000 Xxxxxxxx Xxxx Xxxxxxx XX 00000
17 Various Xxxxxxxx XX 00000
17.1 7300, 7310, 0000 Xxxxxxxxxx Xxxxxxxxx; Xxxxxxxx XX 00000
0000 Xxxxxxxxxx Xxxx; 0000 Xxxxxxxxxx Xxxxxxx
17.2 00 Xxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000
20 Various Various FL Various
20.1 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
20.2 000 Xxxxx Xxxx Xxxxxxx Xxxxx XX 00000
21 2309, 2323, 2339, 0000 Xxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
28 000 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
32 0000 Xxx Xxxx Xxxxxx Xxxxxx XX 00000
34 000 X. Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
38 0000 Xxxx Xxxxx Xxxxxxxxx Xxxx Xxxxx XX 00000
40 000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000
44 00000 Xxxxxxxxxxx Xxxxx Xx. Xxxxx XX 00000
45 00000 XX 00 Xxxxxx Xxxxx XX 00000
65 7503-7577 Xxxx 00xx Xxxxxx Xxxxxx XX 00000
95 000 Xxxxx Xxxx Xxxxxxxx XX 00000
103 0000 Xxxxx Xxxxxx Xxxxxxx Xxxxx Xxxxxxx XX 00000
105 000-000 Xxxxxx Xxxxx Xxxxxxxxxx XX 00000
108 808 & 000 Xxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
109 3538 & 0000 Xxxxxxx Xxxx Xxxxxxxx XX 00000
121 0000 Xxxx 0xx Xxxxxx Xxxxxx XX 00000
123 0000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
127 00 Xxxxx Xxx Xxxxxx Xxx Xxxxxx XX 00000
131 00000 Xxxxxxxx Xxxxxxx Xxx Xxxxx XX 00000
138 0000 Xxxxxxx Xxxx Xxxxxxxx XX 00000
139 000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
Net Cut-off Original Stated Remaining Maturity
Interest Interest Original Date Term to Maturity Term to Maturity Date
ID Rate Rate Balance Balance or APD (mos.) or APD (mos.) or APD
----- -------- -------- ----------- ----------- ---------------- ---------------- ----------
1 4.495% 4.473% 190,000,000 190,000,000 120 115 10/1/2015
2 5.236% 5.174% 150,000,000 149,625,000 120 117 12/1/2015
14 5.579% 5.558% 24,500,000 24,500,000 120 119 2/1/2016
17 5.284% 5.263% 20,000,000 19,951,392 120 118 1/1/2016
17.1 11,144,771 11,117,685
17.2 8,855,229 8,833,707
20 5.444% 5.423% 17,685,000 17,685,000 120 119 2/1/2016
20.1 12,585,000 12,585,000
20.2 5,100,000 5,100,000
21 5.565% 5.544% 16,250,000 16,227,406 120 119 2/1/2016
28 5.690% 5.669% 12,573,400 12,573,400 120 120 3/1/2016
32 5.363% 5.342% 11,728,950 11,728,950 120 120 3/1/2016
34 5.450% 5.429% 11,000,000 10,984,516 120 119 2/1/2016
38 5.425% 5.404% 10,000,000 10,000,000 120 119 2/1/2016
40 5.317% 5.295% 9,680,000 9,680,000 120 117 12/1/2015
44 5.592% 5.571% 8,800,000 8,800,000 120 119 2/1/2016
45 5.865% 5.844% 8,780,000 8,780,000 84 83 2/1/2013
65 5.805% 5.784% 7,000,000 7,000,000 120 120 3/1/2016
95 5.728% 5.707% 4,762,500 4,762,500 120 118 1/1/2016
103 5.628% 5.607% 4,250,000 4,244,130 120 119 2/1/2016
105 5.380% 5.359% 4,141,237 4,141,237 120 119 2/1/2016
108 5.515% 5.444% 4,000,000 4,000,000 120 120 3/1/2016
109 5.667% 5.556% 4,000,000 4,000,000 120 118 1/1/2016
121 5.083% 5.062% 3,412,500 3,412,500 120 117 12/1/2015
123 5.400% 5.379% 3,204,500 3,204,500 120 116 11/1/2015
127 5.106% 5.085% 3,100,000 3,100,000 120 116 11/1/2015
131 5.769% 5.748% 3,000,000 2,990,600 180 177 12/1/2020
138 5.667% 5.556% 2,200,000 2,200,000 120 118 1/1/2016
139 5.725% 5.704% 2,200,000 2,200,000 120 120 3/1/2016
Original Remaining Monthly Interest Revised
Amortization Amortization Debt Administrative Servicing Accrual APD Interest
ID Term (mos.) Term (mos.) Service Cost Rate Fee Rate Method (Yes/No) Rate
----- ---------------------- ---------------------- --------- -------------- --------- ------------ -------- ---------
1 0 0 721,567 0.0214% 0.0200% Actual/360 Yes 9.49500%
2 Scheduled Amortization Scheduled Amortization 785,499 0.0614% 0.0600% Actual/360 No
14 360 360 140,325 0.0214% 0.0200% Actual/360 No
17 360 358 110,862 0.0214% 0.0200% Actual/360 No
17.1
17.2
20 360 360 99,793 0.0214% 0.0200% Actual/360 No
20.1
20.2
21 360 359 92,930 0.0214% 0.0200% Actual/360 No
28 360 360 72,896 0.0214% 0.0200% Actual/360 No
32 0 0 53,147 0.0214% 0.0200% Actual/360 No
34 360 359 62,112 0.0214% 0.0200% Actual/360 No
38 360 360 56,309 0.0214% 0.0200% Actual/360 No
40 360 360 53,853 0.0214% 0.0200% Actual/360 No
44 360 360 50,475 0.0214% 0.0200% Actual/360 No
45 360 360 51,881 0.0214% 0.0200% Actual/360 No
65 360 360 41,095 0.0214% 0.0200% Actual/360 No
95 360 360 27,726 0.0214% 0.0200% Actual/360 No
103 360 359 24,473 0.0214% 0.0200% Actual/360 No
105 0 0 18,824 0.0214% 0.0200% Actual/360 No
108 360 360 22,749 0.0714% 0.0700% Actual/360 No
109 360 360 23,132 0.1114% 0.1100% Actual/360 No
121 0 0 14,656 0.0214% 0.0200% Actual/360 No
123 0 0 14,621 0.0214% 0.0200% Actual/360 No
127 0 0 13,374 0.0214% 0.0200% Actual/360 No
131 360 357 17,543 0.0214% 0.0200% Actual/360 No
138 360 360 12,723 0.1114% 0.1100% Actual/360 No
139 360 360 12,804 0.0214% 0.0200% Actual/360 No
Crossed Mortgage Letter
Fee / With Loan of Loan Group
ID Leasehold Other Loans Seller Credit Hotel Property (Yes/No) (One or Two)
----- ------------ ----------- ---------- ----------------------------- ----------------------- ------------
1 Fee Simple No BofA No 1
2 Fee Simple No BofA Yes ($5,542,841 Tax; $930,000 No 1
Replacement Reserves)
14 Fee Simple No BofA No 1
17 Fee Simple No BofA No 1
17.1 Fee Simple BofA No 1
17.2 Fee Simple BofA No 1
20 Fee Simple No BofA No 1
20.1 Fee Simple BofA No 1
20.2 Fee Simple BofA No 1
21 Fee Simple No BofA No 1
28 Fee Simple No BofA No 1
32 Fee Simple No BofA No 2
34 Fee Simple No BofA No 1
38 Fee Simple No BofA No 1
40 Fee Simple No BofA No 1
44 Fee Simple No BofA No 2
45 Fee Simple No BofA No 1
65 Fee Simple No BofA No 1
95 Fee Simple No BofA No 1
103 Fee Simple No BofA No 1
105 Fee Simple No BofA No 2
108 Fee Simple No BofA No 1
109 Fee Simple No BofA No 1
121 Fee Simple No BofA No 1
123 Fee Simple No BofA No 1
127 Fee Simple No BofA No 1
131 Fee Simple No BofA No 1
138 Fee Simple No BofA No 1
139 Fee Simple No BofA No 1
EXHIBIT B
FORM OF OFFICER'S CERTIFICATE
I, ________________, hereby certify that I am a duly elected and
acting ____________________ of [Seller]" (the "Company"), in connection with the
sale of certain mortgage loans to GE Commercial Mortgage Corporation (the
"Depositor") pursuant to that certain Mortgage Loan Purchase and Sale Agreement,
dated as of March 1, 2006 (the "Mortgage Loan Purchase and Sale Agreement"),
between the Company and the Depositor, and hereby certify further as follows:
1. The Company is a [corporation]" duly incorporated and existing
under the laws of the State of [Delaware].
2. Attached hereto as Attachment A is a true and correct copy of
the [certificate of incorporation]" of the Company, certified
as of ___________, 2006 by the Secretary of State of
[Delaware]" (the "Certificate of [Incorporation]").
3. Since __________, 2006, the Company has not filed with the
Secretary of State of [Delaware]" any amendment or other
document relating to or affecting, the Certificate of
Incorporation.
4. Attached hereto as Attachment B is a true and correct copy of
the [By-Laws]" of the Company, as in effect at all times on
and after ________, [2006]" through the date hereof.
5. The resolutions attached hereto as Attachment C (the
"Resolutions") were adopted by the unanimous written consent
of the board of [directors]" of the Company as of
____________, [2006].
6. The Resolutions (a) represent the only resolutions of the
board of [directors]" or [shareholders]" of the Company
relating to the sale of the mortgage loans referred to in
the Mortgage Loan Purchase and Sale Agreement; (b) have not
been amended, modified, rescinded or repealed by any
subsequent action of the Company's board of [directors]" or
[shareholders]; and (c) were in full force and effect at
all times on __________, 2006 and thereafter through the
date hereof.
7. Attached hereto as Attachment D is the certificate of the
Secretary of State of [Delaware]" dated ___________, 2006,
with respect to the good standing of the Company in
[Delaware].
8. Since _________, 2006, the Company has not received any
notification from the Secretary of State of [Delaware], or any
other source affecting the good standing of the Company in
[Delaware].
9. The representations and warranties of the Company in the
Mortgage Loan Purchase and Sale Agreement are true and correct
in all material respects on and as of the date hereof.
10. On or prior to the date hereof, the Company has complied with
all agreements and performed or satisfied all conditions on
its part to be performed or satisfied at or prior to the date
hereof.
11. Each person who, as an officer or representative of the
Company, signed the Mortgage Loan Purchase and Sale
Agreement or any other document or certificate delivered on
or before the date hereof in connection with the
transactions contemplated by the Mortgage Loan Purchase and
Sale Agreement was, at the respective times of such signing
and delivery, and is now, duly elected or appointed,
qualified and acting as such officer or representative, and
the signature of such persons appearing on such documents
are their genuine signatures.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, I have hereunto signed my name as of this __ day
of ____ 2006.
By:____________________________________
Name:
Title:
EXHIBIT C
FORM OF LEGAL OPINION
1. The Mortgage Loan Seller is a [corporation] duly
[incorporated][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, and the Mortgage Loan Seller has taken all
necessary action to authorize the execution, delivery and performance of the
Mortgage Loan Purchase and Sale Agreement by it, and has the power and authority
to execute, deliver and perform the Mortgage Loan Purchase and Sale Agreement
and all the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with the Mortgage Loan Purchase and Sale Agreement.
2. The Mortgage Loan Purchase and Sale Agreement has been duly
authorized, executed and delivered by the Mortgage Loan Seller and constitutes
the legal, valid and binding obligations of the Mortgage Loan Seller,
enforceable against the Mortgage Loan Seller in accordance with the terms of the
Mortgage Loan Purchase and Sale Agreement, 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), and except to the extent rights to indemnity
and contribution may be limited by applicable law.
3. The execution and delivery of the Mortgage Loan Purchase and Sale
Agreement by the Mortgage Loan Seller and the performance of its obligations
under the Mortgage Loan Purchase and Sale Agreement will not conflict with any
provision of any law or regulation to which the Mortgage Loan 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 Mortgage Loan Seller's
organizational documents or, to our knowledge, any agreement or instrument to
which the Mortgage Loan Seller is a party or by which it is bound, or any order
or decree applicable to the Mortgage Loan Seller, or result in the creation or
imposition of any lien on any of the Mortgage Loan Seller's assets or property,
in each case which would materially and adversely affect the ability of the
Mortgage Loan Seller to carry out the transactions contemplated by the Mortgage
Loan Purchase and Sale Agreement.
4. To our knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Mortgage Loan 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 Loans
or the ability of the Mortgage Loan Seller to carry out the transactions
contemplated by this Agreement.
5. To our knowledge, the Mortgage Loan 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 Mortgage Loan Seller or its properties
or might have consequences that would materially and adversely affect its
performance under the Mortgage Loan Purchase and Sale Agreement.
6. No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Mortgage Loan Seller of or compliance by the Mortgage Loan
Seller with the Mortgage Loan Purchase and Sale Agreement or the consummation of
the transactions contemplated by the Mortgage Loan Purchase and Sale Agreement,
other than those which have been obtained by the Mortgage Loan Seller.
In addition, counsel shall state (which statement shall be in form
and substance reasonably acceptable to the Company and counsel to the
Underwriters) their view as to the accuracy of the information regarding the
Mortgage Loans and the Mortgage Loan Seller in the Preliminary Prospectus FWP
(together with the other Time of Sale Information) as of the Time of Sale and
the Final Prospectus Supplement.
EXHIBIT D
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
The Mortgage Loan Seller represents and warrants with respect to each
Mortgage Loan that, as of the date specified below or, if no such date is
specified, as of the Closing Date, except as set forth on Exhibit E hereto:
(i) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the Mortgage Loan Schedule was true and
correct in all material respects as of the Cut-off Date.
(ii) Legal Compliance. As of the date of its origination, such
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 such Mortgage Loan.
(iii) Good Title; Conveyance. Immediately prior to the sale,
transfer and assignment to the Company, the Mortgage Loan Seller had
good title to, and was the sole owner of, each Mortgage Loan, and
the Mortgage Loan Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests
of any nature encumbering such Mortgage Loan (other than the rights
to servicing and related compensation as reflected in the Agreement
to Appointment of Servicer). The Mortgage Loan Seller has validly
and effectively conveyed to the Company all legal and beneficial
interest in and to such Mortgage Loan.
(iv) Future Advances. The proceeds of such Mortgage Loan have
been fully disbursed and there is no requirement for future advances
thereunder; and with respect to any mortgagee requirements for
construction or maintenance of on or off site improvements for which
an escrow has been established, any disbursement of such escrowed
funds have satisfied the requirements of the related Mortgage Loan
documents.
(v) Legal, Valid and Binding Obligations. Each related
Mortgage Note, Mortgage, Assignment of Leases (if any) and other
agreement executed in connection with such Mortgage Loan are legal,
valid and binding obligations of the related mortgagor (subject to
any non-recourse provisions therein and any state anti-deficiency
legislation or market value limit deficiency legislation),
enforceable in accordance with their terms, except with respect to
provisions relating to default interest, late fees, additional
interest, yield maintenance charges or prepayment premiums and
except 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).
(vi) Assignment of Leases and Rents. There exists as part of
the related Mortgage File an Assignment of Leases either as a
separate document or as part of the Mortgage. Each related
Assignment of Leases creates a valid, collateral or first priority
assignment of, or a valid perfected first priority security interest
in, certain rights including, without limitation, the right to
receive all payments due under the related lease, and no other
person owns any interest therein superior to or of equal priority
with the interest created under such assignment, subject only to a
license granted to the related Mortgagor to exercise certain rights
and to perform certain obligations of the lessor under such leases,
including the right to operate the related Mortgaged Property, and
subject to limits on enforceability described in Paragraph (v).
(vii) Offsets or Defenses. As of the date of its origination,
there was no valid offset, defense, counterclaim or right to
rescission with respect to any of the related Mortgage Note,
Mortgage(s) or other agreements executed in connection therewith,
and, as of the Cut-off Date, there is no valid offset, defense,
counterclaim or right to rescission with respect to such Mortgage
Note, Mortgage(s) or other agreements, except in each case, with
respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, yield
maintenance charges or prepayment premiums.
(viii) Assignments of Mortgage and Assignment of Leases. Each
related assignment of Mortgage and assignment of Assignment of
Leases from the Mortgage Loan Seller to the Trustee constitutes the
legal, valid and binding assignment from the Mortgage Loan Seller,
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, redemption, reorganization, moratorium, redemption,
liquidation or other laws relating to or affecting creditors' rights
generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law);
provided, if the related assignment of Mortgage and/or assignment of
Assignment of Leases has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no
assignment of Mortgage and/or assignment of Assignment of Leases in
favor of the Trustee will be required to be prepared or delivered
and instead, the Mortgage Loan Seller shall take all actions as are
necessary to cause the Trust to be shown as the owner of the related
Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained
by MERS. Each related Mortgage, Mortgage Note and Assignment of
Leases is freely assignable upon notice to the Mortgagor and such
notice has been provided.
(ix) Mortgage Lien; Title Exceptions. Each related Mortgage is
a legal, valid and enforceable first lien on the related Mortgaged
Property or Ground Lease, as applicable, including all buildings and
improvements thereon, subject only to the exceptions set forth in
Paragraph (v) and the following title exceptions (each such
exception, a "Title Exception", and collectively, the "Title
Exceptions"): (a) the lien of current real property taxes, ground
rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which,
individually or in the aggregate, materially and adversely
interferes with the current use or operation of the Mortgaged
Property or the security intended to be provided by such Mortgage or
with the Mortgagor's ability to pay its obligations when they become
due or materially and adversely affects the value of the Mortgaged
Property and (c) the exceptions (general and specific) and
exclusions set forth in the mortgage policy of title insurance
issued with respect to the Mortgage Loan or appearing of record,
none of which, individually or in the aggregate, materially
interferes with the current use or operation of the Mortgaged
Property or the security intended to be provided by such Mortgage or
with the Mortgagor's ability to pay its obligations when they become
due or materially and adversely affects the value of the Mortgaged
Property, (d) other matters to which like properties are commonly
subject, none of which, individually or in the aggregate, materially
and adversely interferes with the current use or operation of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations
under the Mortgage Loan when they become due or materially and
adversely affects the value of the Mortgaged Property, (e) the right
of tenants (whether under ground leases, space leases or operating
leases) at the Mortgaged Property to remain following a foreclosure
or similar proceeding (provided that such tenants are performing
under such leases) and (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan, none of which, individually
or in the aggregate, materially and adversely interferes with the
current use or operation of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations under the Mortgage Loan when they
become due or materially and adversely affects the value of the
Mortgaged Property. Except with respect to cross-collateralized and
cross-defaulted Mortgage Loans, there are no mortgage loans that are
senior or pari passu with respect to the related Mortgaged Property
or such Mortgage Loan.
(x) UCC Financing Statements. UCC Financing Statements have
been filed and/or recorded (or, if not filed and/or recorded, have
been submitted in proper form for filing and recording), in all
public places necessary to perfect a valid security interest in all
items of personal property described therein owned by a Mortgagor
and located on each Mortgaged Property (other than any personal
property subject to a purchase money security interest or a sale and
leaseback financing arrangement permitted under the terms of such
Mortgage Loan or any other personal property leases applicable to
such personal property), to the extent perfection may be effected
pursuant to applicable law by recording or filing, and the
Mortgages, security agreements, chattel Mortgages or equivalent
documents related to and delivered in connection with the related
Mortgage Loans establish and create a valid and enforceable lien and
security interest on such items of personalty except as
enforceability may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditor's rights generally,
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law;
provided, if the related UCC Financing Statement has been recorded
in the name of MERS or its designee, no assignment of UCC Financing
Statement in favor of the Trustee will be required to be prepared or
delivered and instead, the Mortgage Loan Seller shall take all
actions as are necessary to cause the Trust to be shown as the owner
of the related Mortgage Loan on the records of MERS for purposes of
the system of recording transfers of beneficial ownership of
mortgages maintained by MERS). In the case of a Mortgaged Property
operated as a hotel, (a) such personal property includes all
personal property that a prudent institutional lender making a
similar mortgage loan on the like properties would deem reasonably
necessary to operate the related Mortgaged Property as it is
currently being operated, (b) the related perfected security
interest is prior to any other security interest that can be
perfected by such UCC filing, except for permitted purchase money
security interests and leases; provided that any such lease has been
pledged or assigned to the lender and its assigns, and (c) the
related loan documents contain such provisions as are necessary and
UCC Financing Statements have been filed or submitted for filing as
necessary, in each case, to perfect a valid first priority security
interest in the related revenues with respect to such Mortgaged
Property. Notwithstanding any of the foregoing, no representation is
made as to the perfection of any security interest in rents or other
personal property to the extent that possession or control of such
items or actions other than the filing of UCC Financing Statements
are required in order to effect such perfection.
(xi) Taxes and Assessments. All real estate taxes and
governmental assessments, fees, environmental charges or water or
sewer bills that prior to the Cut-off Date have become delinquent in
respect of each related Mortgaged Property have been paid as of the
Cut-off Date, or if in dispute, an escrow of funds in an amount
sufficient to cover such payments has been established. Such taxes
and assessments shall not be considered delinquent or unpaid until
the date on which interest or penalties may first be payable
thereon.
(xii) Property Condition; Condemnation Proceedings. To the
Mortgage Loan Seller's knowledge, after conducting due diligence
consistent with the practice of institutional lenders generally for
properties of the same type as the related Mortgaged Property, each
related Mortgaged Property as of origination, and to Mortgage Loan
Seller's actual knowledge as of the Cut-Off Date, 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, use or operation of such
Mortgaged Property as security for the Mortgage Loan; and to the
Mortgage Loan Seller's knowledge, there was no proceeding pending
for the total or partial condemnation of such Mortgaged Property.
(xiii) Title Insurance. The Mortgage Loan Seller has received
an ALTA lender's title insurance policy or a comparable form of
lender's title insurance policy (or a commitment "marked up" at the
closing of the related Mortgage Loan) as adopted in the applicable
jurisdiction (the "Title Insurance Policy"), insuring the portion of
each Mortgaged Property comprised of real estate and insuring that
the related Mortgage is a valid first lien in the original principal
amount of the related Mortgage Loan on the Mortgagor's fee simple
interest (or, if applicable, leasehold interest) in such Mortgaged
Property comprised of real estate, subject only to Title Exceptions.
No claims have been made under such Title Insurance Policy. Such
Title Insurance Policy is in full force and effect, provides that
the insured includes the owner of the Mortgage Loan and all premiums
thereon have been paid. The Mortgage Loan Seller has not done, by
act or omission, anything that would impair the coverage under such
Title Insurance Policy. The insurer issuing such policy is either
(x) a nationally-recognized title insurance company or (y) qualified
to do business in the jurisdiction in which the related Mortgaged
Property is located to the extent required; such policy contains no
material exclusions for, or affirmatively insures (except for any
Mortgaged Property located in a jurisdiction where such insurance is
not available) (a) access to public roads or (b) against any loss
due to encroachments of any material portion of the improvements
thereon.
(xiv) Insurance. As of the date of the origination of each
Mortgage Loan, the related Mortgaged Property was insured by all
insurance coverage required under each related Mortgage, which
insurance covered 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; each Mortgaged Property was covered by a fire
and extended perils insurance policy in an amount (subject to a
customary deductible) at least equal to the lesser of (i)
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 avoid the operation of any
co-insurance provisions; except as set forth on Exhibit E, each
Mortgaged Property was covered by business interruption or rental
loss insurance in an amount at least equal to 12 months of
operations of the related Mortgaged Property; each Mortgaged
Property and all improvements thereon are also covered by
comprehensive general liability insurance in such amounts as are
generally required by reasonably prudent lenders for similar
properties; such insurance was in full force and effect with respect
to each related Mortgaged Property at origination; and, as of the
Cut-off Date, to the actual knowledge of the Mortgage Loan Seller,
all insurance coverage required under each Mortgage, was in full
force and effect with respect to each related Mortgaged Property;
and no notice of termination or cancellation with respect to any
such insurance policy has been received by the Mortgage Loan Seller;
and 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, any insurance proceeds in respect of a
casualty loss will be applied either to (1) the repair or
restoration of the related Mortgaged Property, or (2) 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 insurer with
respect to each policy is qualified to write insurance in the
relevant jurisdiction to the extent required. The insurance policies
contain a standard mortgagee clause naming mortgagee, its successors
and assigns as loss payees in the case of property insurance
policies and additional insureds in the case of liability insurance
policies and provide that they are not terminable and may not be
reduced below replacement cost, if applicable, without 30 days prior
written notice to the mortgagee (or, with respect to non-payment, 10
days prior written notice to the mortgagee) or such lesser period as
prescribed by applicable law. Each Mortgage requires that the
Mortgagor maintain insurance as described above.
(xv) Material Defaults. Other than payments due but not yet 30
days or more delinquent there is (A) no material default, breach,
violation or event of acceleration existing under the related
Mortgage Note or each related Mortgage, and (B) since the date of
origination of such Mortgage Loan, there has been no declaration by
the Mortgage Loan Seller of an event of acceleration under the
related Mortgage or Mortgage Note, and (C) Mortgage Loan Seller has
not received notice of any event 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 under any of such documents; the Mortgage Loan Seller
has not waived any other material default, breach, violation or
event of acceleration under any of such documents; and under the
terms of each Mortgage Loan, each related Mortgage Note, each
related Mortgage and the other loan documents in the related
Mortgage File, no person or party other than the holder of such
Mortgage Note may declare an event of default or accelerate the
related indebtedness under such Mortgage Loan, Mortgage Note or
Mortgage; 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 representation and warranty made by the
Mortgage Loan Seller elsewhere in the Mortgage Loan Purchase and
Sale Agreement.
(xvi) Payment Record. As of the Cut-Off Date, each Mortgage
Loan is not, and in the prior 12 months (or since the date of
origination if such Mortgage Loan has been originated within the
past 12 months) has not been, 30 days or more past due in respect of
any Monthly Payment.
(xvii) Additional Collateral. Each related Mortgage does not
provide for or permit, without the prior written consent of the
holder of the Mortgage Note, each related Mortgaged Property to
secure any other promissory note or obligation, other than any other
Mortgage Loan and the Mortgage Note is not secured by any collateral
that is not included in the Trust Fund.
(xviii) Qualified Mortgage. Each Mortgage Loan constitutes a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (but without regard to the rule in Treasury Regulations
1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage, or any substantially similar successor provision).
Accordingly, the Mortgage Loan Seller represents and warrants that
each 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 such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or
multifamily residential property that consists of an interest in
real property (within the meaning of Treasury Regulations Sections
1.856-3(c) and 1.856-3(d)) and such interest in real property was
the only security for such Mortgage Loan as of the Testing Date (as
defined below), or (2) the fair market value of the interest in real
property which secures such Mortgage Loan was at least equal to 80%
of the principal amount of 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 referenced
Mortgage Loan was originated unless (a) such Mortgage Loan was
modified after the date of its origination in a manner that would
cause "significant modification" of such 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 such
Mortgage Loan was in default or when default with respect to such
Mortgage Loan was reasonably foreseeable. However, if the referenced
Mortgage Loan has been subjected to a "significant modification"
after the date of its origination and at a time when such Mortgage
Loan was not in default or when default with respect to such
Mortgage Loan was not reasonably foreseeable, the Testing Date shall
be the date upon which the latest such "significant modification"
occurred. Any prepayment premiums and yield maintenance charges
applicable to the Mortgage Loan constitute "customary prepayment
penalties" within the meaning of Treasury Regulations Section
1.860G-1(b)(2).
(xix) Environmental. One or more Phase I environmental site
assessments or updates thereof (each a "Phase I") meeting ASTM
requirements were performed by an environmental consulting firm
experienced in environmental matters and properly licensed, if
applicable, and independent of the Mortgage Loan Seller and the
Mortgage Loan Seller's affiliates with respect to each related
Mortgaged Property within the 18 months prior to the Closing Date
and the Mortgage Loan Seller, having made no independent inquiry
other than to review the Phase I prepared in connection with the
assessment(s) referenced herein, has no 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). With respect to any material and
adverse environmental matters disclosed in such Phase I, then either
(i) the same have been remediated in all material respects, (ii)
sufficient funds have been escrowed for purposes of effecting such
remediation, (iii) the related mortgagor or other responsible party
is currently taking or required to take such actions, if any, with
respect to such matters as have been recommended by the Phase I or
required by the applicable governmental authority, (iv) an
operations and maintenance plan has been or will be implemented, (v)
environmental insurance has been obtained with respect to such
matters, subject to customary limitations, or (vi) such conditions
or circumstances were investigated further and, based upon such
additional investigation, a qualified environmental consultant
recommended no further investigation or remediation. Each Mortgage
Loan requires the related mortgagor to comply, and cause the related
Mortgaged Property to be in compliance, with all applicable federal,
state and local environmental laws and regulations.
(xx) Customary Mortgage Provisions. Each related Mortgage
contains customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the benefits of the
security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of
principles of equity.
(xxi) Bankruptcy. As of origination, and as of the Cut-off
Date, no Mortgagor is a debtor in any state or federal bankruptcy or
insolvency proceeding.
(xxii) Whole Loan. Each Mortgage Loan is a whole loan,
contains no equity participation by the lender or shared
appreciation feature and does not provide for any contingent or
additional interest in the form of participation in the cash flow of
the related Mortgaged Property or provide for negative amortization.
The Mortgage Loan Seller holds no equity interest in any Mortgagor.
(xxiii) Transfers and Subordinate Debt. Subject to certain
exceptions, which are customarily acceptable to commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property, each related
Mortgage or loan agreement contains provisions for the acceleration
of the payment of the unpaid principal balance of such Mortgage Loan
if, without complying with the requirements of the Mortgage or loan
agreement, the related Mortgaged Property, or any controlling
interest in the related Mortgagor, is directly transferred or sold
(other than by reason of family and estate planning transfers and
transfers of less than a controlling interest in a mortgagor, or a
substitution or release of collateral within the parameters of
Paragraph (xxvi) below), or encumbered in connection with
subordinate financing by a lien or security interest against the
related Mortgaged Property, other than any existing permitted
additional debt.
(xxiv) Waivers and Modifications. The terms of the related
Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in
any manner which materially interferes with the security intended to
be provided by such Mortgage.
(xxv) Inspection. Each related Mortgaged Property was
inspected by or on behalf of the related originator or an affiliate
within the 18 months prior to the Closing Date.
(xxvi) Releases. Except as set forth below, 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, use or operation of the
Mortgage Loan or materially interferes with the security intended to
be provided by such Mortgage. The terms of the related Mortgage do
not provide for release of any material portion of the Mortgaged
Property from the lien of the Mortgage except (a) in consideration
of payment therefor equal to not less than the related allocated
loan amount of such Mortgaged Property, (b) upon payment in full of
such Mortgage Loan, (c) for Mortgage Loans which permit defeasance
by means of substituting for the Mortgaged Property (or, in the case
of a Mortgage Loan secured by multiple Mortgaged Properties, one or
more of such Mortgaged Properties) U.S. Treasury obligations (or
other defeasance collateral permitted under the REMIC Provisions)
sufficient to pay the Mortgage Loans in accordance with their terms,
(d) for Mortgage Loans which permit the related Mortgagor to
substitute a replacement property, (e) for releases not considered
material for purposes of underwriting the Mortgage Loan, or (f) for
releases that are conditional upon the satisfaction of certain
underwriting and legal requirements and require payment of a release
price that represents adequate consideration for such Mortgaged
Property. The terms of the Mortgage Loan do not provide for the
release of any portion of the Mortgaged Property that would
constitute a "significant modification" under Section 1001 of the
Code unless the Mortgagor is required to provide a REMIC Opinion of
Counsel.
(xxvii) Defeasance. Each Mortgage Loan containing provisions
for defeasance of all or a portion of the Mortgaged Property either
(i) requires the prior written consent of, and compliance with, the
conditions set by, the holder of the Mortgage Loan, (ii) requires
confirmation from the rating agencies rating the certificates of any
securitization transaction in which such Mortgage Loan is included
that such defeasance will not cause the downgrade, withdrawal or
qualification of the then current ratings of such certificates, or
(iii) requires that (A) defeasance must occur in accordance with the
requirements of, and within the time permitted by, applicable REMIC
rules and regulations, (B) the replacement collateral consists of
defeasance collateral permitted under the REMIC Provisions in an
amount sufficient to make all scheduled payments under such Mortgage
Loan when due, (C) independent certified public accountants certify
that such U.S. government securities are sufficient to make such
payments, (D) the Mortgage Loan may only be assumed by a
single-purpose entity designated or approved by the holder of the
Mortgage Loan and (E) counsel provide an opinion that the Trustee
has a perfected security interest in such U.S. government securities
prior to any other claim or interest. Notwithstanding the foregoing,
some of the Mortgage Loan documents may not affirmatively contain
all such requirements, but such requirements are effectively present
in such documents due to the general obligation to comply with the
REMIC Provisions and/or deliver a REMIC Opinion of Counsel. A
Mortgage Loan that permits defeasance provides that the related
borrower is responsible for all reasonable costs incurred in
connection with the defeasance of the Mortgage Loan.
(xxviii) Zoning. To the Mortgage Loan Seller's knowledge, as
of the date of origination of such Mortgage Loan, based on due
diligence considered reasonable by prudent commercial conduit
mortgage lenders in the lending area where the applicable Mortgaged
Property is located, and, to the Mortgage Loan Seller's actual
knowledge, as of the Cut-off Date, there are no 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 an ALTA lender's title
insurance policy (or a binding commitment therefor), or its
equivalent as adopted in the applicable jurisdiction, or a law and
ordinance insurance policy, or (ii) would have a material adverse
effect on the value, use, operation or net operating income of the
Mortgaged Property.
(xxix) Encroachments. To the Mortgage Loan Seller's knowledge
based on surveys and/or the title policy referred to herein obtained
in connection with the origination of each Mortgage Loan, none of
the 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 for which the use or improvements are legally
non-conforming) to an extent which would have a material adverse
affect on the related Mortgagor's value, use and operation of such
Mortgaged Property (unless affirmatively covered by the title
insurance) and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent (unless
affirmatively covered by title insurance).
(xxx) Single Purpose Entity. Each Mortgagor with respect to a
Mortgage Loan with a principal balance as of the Cut-off Date in
excess of 5% of the aggregate principal balance of all of the
mortgage loans included in the Trust Fund is an entity whose
organizational documents provide that it is, and at least so long as
the Mortgage Loan is outstanding will continue to be, a single
purpose entity. (For this purpose, "single-purpose entity" shall
mean a person, other than an individual, which does not engage in
any business unrelated to the related Mortgaged Property and its
financing, does not have any significant assets other than those
related to its interest in such Mortgaged Property or its financing,
or any indebtedness other than as permitted by the related Mortgage
or the other documents in the Mortgage Loan File, has its own books
and records separate and apart from any other person, and holds
itself out as being a legal entity, separate and apart from any
other person).
(xxxi) Advances After Origination. No advance of funds has
been made after origination, directly or indirectly, by the Mortgage
Loan Seller to the Mortgagor and, to the Mortgage Loan Seller's
knowledge, no funds have been received from any person other than
the Mortgagor, for or on account of payments due on the Mortgage
Note or the Mortgage, other than earnout advances made in accordance
with the Mortgage loan documents and reflected in the loan balance
on the Mortgage Loan Schedule.
(xxxii) Litigation Or Other Proceedings. As of the date of
origination and, to the Mortgage Loan Seller's knowledge, as of the
Cut-off Date, there was no pending action, suit or proceeding
against the Mortgagor or the related Mortgaged Property that could
reasonably be expected to materially and adversely affect either
such Mortgagor's performance under the related Mortgage Loan
documents or the holders of the Certificates.
(xxxiii) Usury. The Mortgage Rate (exclusive of any default
interest, late charges or prepayment premiums) of such Mortgage Loan
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.
(xxxiv) Trustee Under Deed Of Trust. As of the date of
origination, and, 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, is properly designated and serving under such
Mortgage or may be substituted in accordance with the Mortgage and
applicable law, and no fees or expenses are or will become payable
to the trustee under the deed of trust except in connection with the
sale or release of the Mortgaged Property following a default in
payment of the Mortgage Loan.
(xxxv) Other Collateral; Cross-Collateralization. The related
Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other
Mortgage Loans sold pursuant to this Agreement.
(xxxvi) Flood Insurance. The improvements located on the
Mortgaged Property are either not located in a federally designated
special flood hazard area, or if so located, then either (i) flood
insurance is not required by the Federal Emergency Management Agency
or (ii) the Mortgagor is required to maintain, and as of origination
did maintain, or the Mortgagee maintains, flood insurance with
respect to such improvements.
(xxxvii) Escrow Deposits. All escrow deposits and payments
required pursuant to the Mortgage Loan to be deposited with the
Mortgage Loan Seller or its agent have been so deposited, are in the
possession, or under the control, of the Mortgage Loan Seller or its
agent and there are no deficiencies in connection therewith.
(xxxviii) Licenses and Permits. To the Mortgage Loan Seller's
knowledge, based on due diligence customarily performed in the
origination of comparable mortgage loans by prudent commercial and
multifamily mortgage lending institutions with respect to the
related geographic area and properties comparable to the related
Mortgaged Property, (a) as of the date of origination of the
Mortgage Loan, the related Mortgagor, the related lessee, franchisee
or operator was in possession of all material licenses, permits and
authorizations then required for use of the related Mortgaged
Property, and in the case of a Mortgaged Property operated as a
hotel, the franchise agreement, if any, is in full force and effect,
and no default, or event that, with the passage of time or the
giving of notice or both, would constitute a default, had occurred
under such franchise agreement, and, (b) as of the Cut-Off Date, the
Mortgage Loan Seller has no knowledge that the related Mortgagor,
the related lessee, franchisee or operator was not in possession of
such licenses, permits and authorizations.
(xxxix) Origination, Servicing and Collection Practices. The
origination (or acquisition, as the case may be), collection, and to
the Mortgage Loan Seller's knowledge, the servicing practices used
by the Mortgage Loan Seller with respect to the Mortgage Loan have
been in all respects legal and have met customary industry
standards.
(xl) Non-Recourse Exceptions. The Mortgage Loan documents for
each Mortgage Loan provide that the Mortgage Loan is non-recourse to
the related Mortgagor except that the related Mortgagor shall be
liable to the lender for losses incurred due to (i) fraud and/or
other intentional misrepresentation, (ii) the misapplication or
misappropriation of rents collected in advance or received by the
related Mortgagor after the occurrence of an event of default,
insurance proceeds or condemnation awards or (iii) any breach of the
environmental covenants in the related Mortgage Loan documents.
(xli) Separate Tax Lots. Each Mortgaged Property constitutes
one or more separate tax lots (or will constitute separate tax lots
when the next tax maps are issued) or is subject to an endorsement
under the related title insurance policy insuring for losses arising
from any claim that the Mortgaged Property is not one or more
separate tax lots.
(xlii) Ground Leases. Each Mortgage Loan is secured by the fee
interest in the related Mortgaged Property, except that with respect
to the Mortgage Loans listed on Exhibit F attached hereto, which
Mortgage Loans are secured by the interest of the related Mortgagor
as a lessee under a ground lease of a Mortgaged Property (a "Ground
Lease") (the term Ground Lease shall mean such ground lease, all
written amendments and modifications, and any related estoppels or
agreements from the ground lessor and, in the event the borrower's
interest is a ground subleasehold, shall also include not only such
ground sublease but also the related ground lease), but not by the
related fee interest in such Mortgaged Property (the "Fee Interest")
and:
(A) Such Ground Lease or a memorandum thereof has been or will
be duly recorded or submitted for recording as of the Closing
Date and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if
consent of the lessor thereunder is required, it has been
obtained prior to the Closing Date;
(B) Such Ground Lease (i) is not subject to any liens or
encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related 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;
(C) 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 successors
and assigns upon notice to, but without the consent of, the
lessor thereunder (or, if such consent is required, it has
been obtained prior to the Closing Date);
(D) Such Ground Lease is in full force and effect, and the
Mortgage Loan Seller has not received as of the Closing Date
notice (nor is the Mortgage Loan Seller otherwise aware) that
any default has occurred under such Ground Lease;
(E) Such Ground Lease requires that if the mortgagee under
such Mortgage Loan has provided the lessor with notice of its
lien, then such lessor must give notice of any default by the
lessee to the mortgagee, and such Ground Lease, or an estoppel
letter received by the mortgagee from the lessor, further
provides that no notice of termination given under such Ground
Lease is effective against such mortgagee unless a copy has
been delivered to such mortgagee in the manner described in
such Ground Lease;
(F) The mortgagee under such Mortgage Loan is permitted a
reasonable opportunity to cure any default under such Ground
Lease that is curable after the receipt of written notice of
any such default, before the lessor thereunder may terminate
such Ground Lease;
(G) 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 of the related Mortgage Loan (or, with respect
to any Mortgage Loan with an Anticipated Prepayment Date, 10
years);
(H) Such Ground Lease requires the lessor to enter into a new
lease with the mortgagee under such Mortgage Loan upon
termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(I) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award that is awarded with respect to the
leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property,
with the mortgagee under such Mortgage Loan or a trustee
appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in
such cases where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii)
to the payment or defeasance of the outstanding principal
balance of such Mortgage Loan together with any accrued
interest thereon (except in cases where a different allocation
would not be viewed as commercially unreasonable by any
institutional investor, taking into account the relative
duration of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgaged Property to
the outstanding principal balance of such Mortgage Loan);
(J) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable
by a prudent commercial mortgage lender;
(K) Such Ground Lease may not be amended or modified without
the prior consent of the mortgagee under such Mortgage Loan
and that any such action without such consent is not binding
on such mortgagee, its successors or assigns, except
termination or cancellation if an event of default occurs
under the Ground Lease and notice is provided to the mortgagee
and such default is curable by the mortgagee as provided in
the Ground Lease, but remains uncured beyond the applicable
cure period.
(xliii) Originator Authorization. To the extent required under
applicable law as of the date of origination, and necessary for the
enforceability or collectability of the Mortgage Loan, the originator of
such Mortgage Loan was authorized to do business in the jurisdiction in
which the related Mortgaged Property is located at all times when it
originated and held the Mortgage Loan.
(xliv) Capital Contributions. Neither the Mortgage Loan Seller nor
any affiliate thereof has any obligation to make any capital contributions
to the Mortgagor under the Mortgage Loan.
(xlv) No Mechanics' Liens. The related Mortgaged Property is free
and clear of any mechanics' and materialmen's liens which are prior to or
equal with the lien of the related Mortgage, except those which are
insured against by a Title Insurance Policy.
(xlvi) Appointment of Receiver. If the Mortgaged Property is subject
to any leases, the borrower is the owner and holder of the landlord's
interest under any leases and the related Mortgage and assignment of rents
provides for the appointment of a receiver for rents or allows the
mortgagee to enter into possession to collect rent or provides for rents
to be paid directly to the mortgagee in the event of default.
EXHIBIT E
to
Mortgage Loan Purchase Agreement
Exceptions to Representations and Warranties
GECMC 2006-C1
EXHIBIT E TO MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
BETWEEN GE COMMERCIAL MORTGAGE CORPORATION
AND BANK OF AMERICA, N.A.
REPRESENTATION (v)
Legal, Valid and Binding Obligations.
--------------------------------------------------------------------------------
Raley's Stockton Plaza (59604) The related opinion letter effectively
assumes that the related borrower principal
has duly authorized, executed and delivered
the related loan documents and that such
loan documents are its legal, valid and
binding obligations.
--------------------------------------------------------------------------------
REPRESENTATION (vi)
Assignment of Leases and Rents.
--------------------------------------------------------------------------------
To the extent that the related Mortgage Loan borrower leases all or part of the
related Mortgaged Property to a master lessee, which master lessee enters into
leases with tenants of such related Mortgaged Property, such master lessee owns
an interest in any payments due under such related leases. The following
Mortgage Loans have a master lease:
KinderCare Portfolio Note A-3 (59414)
Michelin North America (59661)
--------------------------------------------------------------------------------
REPRESENTATION (xiv)
Insurance.
--------------------------------------------------------------------------------
Michelin North America (59661) The related loan documents provide that
the loss of rents or income, as
Lake Arbor Plaza (59650) applicable, will be insured until
completion of restoration or the
Storage Express (59645) expiration of twelve (12) months,
whichever first occurs.
Abby Mini Storage (59644)
Self Storage I - Honolulu, HI (59637)
College Park Storage Center (59635)
AAA Quality Self Storage (59627)
Raley's Stockton (59604)
Victorian Village Townhomes (59589)
000 X. Xxxx Xxxxxx (59575)
000 X Xxxxxxxx Xxx (59517)
Xxxxxxx & Palermo Apartments (59506)
Shops at Weston Ranch - Sterling (59469)
Weston Ranch - Sterling (59468)
Kindercare Portfolio Note A-3 (59414)
000 Xxxx Xxxxxx (59147)
--------------------------------------------------------------------------------
University Commons - Xxxxxx (59670) The related loan documents provide that
the loss of rents is insured until
Brookstone Village Apartments (59669) completion of restoration and such
insurance policy will contain an
extended period of indemnity
endorsement which provides that
continued loss of income will be
insured until such income either
returns to the same level it was at
prior to the loss, or the expiration of
ninety (90) days from the date that the
related Mortgaged Property is repaired
or replaced and operations are resumed,
whichever first occurs.
--------------------------------------------------------------------------------
Bay Area Self Storage (59631) The related loan documents provide that
the loss of rents is insured until
Almond Tree Self Storage (59657) rents return to the same level as prior
to the loss or the expiration of twelve
(12) months, whichever first occurs.
--------------------------------------------------------------------------------
Walgreens - Key Largo (59540) The related loan documents allow the
related borrower to self-insure.
Walgreens - Otsego (59455)
Walgreens - San Xxxxxx (59412)
Walgreens - Pueblo, CO (59410)
--------------------------------------------------------------------------------
REPRESENTATION (xv)
Material Defaults.
--------------------------------------------------------------------------------
000 Xxxx Xxxxxx (59147) The related borrower has a post-closing
obligation to provide an amended
certificate of occupancy in connection
with tenant improvement work..
--------------------------------------------------------------------------------
REPRESENTATION (xxvi)
Releases.
--------------------------------------------------------------------------------
KinderCare Portfolio Note A-3 Provided that no event of default has
(59414) occurred and is continuing, Section 2.7
of the related loan agreement permits
the related borrower to obtain the
release of an individual property from
the lien of the mortgage and related
obligations upon satisfying the
following conditions including, without
limitation, receipt by the mortgagee of
a certified copy of an amendment to the
"Master Lease" reflecting the deletion
of the individual property to be
released, which amendment shall reduce
the rental obligations of KinderCare
Learning Corporation thereunder by an
amount equal to the rental obligation
associated with the individual property
that is to be released. The release
price for each individual property
shall be 115% of the allocated loan
amount to a third party purchaser or
the greater of 115% of the allocated
loan amount and the then appraised
value of such individual property to an
affiliate of the related borrower.
--------------------------------------------------------------------------------
Raley's Stockton Plaza (59604) The release of the portion of the
related Mortgaged Property ground
leased to McDonald's in exchange for a
partial paydown of the loan equal to
$1,090,000 is permitted if the parcel
is sold to a third party. The related
borrower is required to pay yield
maintenance in connection with the
payment of such release price.
--------------------------------------------------------------------------------
REPRESENTATION (xxvii)
Defeasance.
--------------------------------------------------------------------------------
Certain Mortgage Loan files require that the substitute collateral constituting
"government securities" be in an amount sufficient to make all payments through
the end of the prepayment lockout period (and including the related balloon
payment) rather than through the maturity date of the related Mortgage Loan
including:
Raley's Stockton Plaza (59604)
--------------------------------------------------------------------------------
EXHIBIT F
Mortgage Loans Secured by Ground Leases
None.
