EXHIBIT 99.3
GECMC 2006-C1
GACC 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 German American Capital Corporation, a
Maryland corporation (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."
With respect to the Mortgage Loan identified on Exhibit A as Xxxxx
Center (the "Xxxxx Center A-2 Note"), the Mortgage Loan Seller acquired the
Xxxxx Center A-2 Note from CWCapital LLC ("CWCapital"), CWCapital Mortgage
Securities I LLC ("CWCMS I") and CWCapital Mortgage Securities II LLC ("CWCMS
II," and together with CWCapital and CWCMS I, the "XX Xxxxxxx") pursuant to a
mortgage loan purchase agreement dated and effective as of December 13, 2005
between the Mortgage Loan Seller and the XX Xxxxxxx, which agreement was
superseded by a mortgage loan purchase agreement dated and effective as of
December 22, 2005 (the "Original CW/GACC MLPA"), as supplemented by a
supplemental agreement dated as of February 28, 2006 between the Mortgage Loan
Seller and the CWCapital Sellers (the "Supplemental Agreement," and together
with the Original CW/GACC MLPA, the "CW/GACC MLPA").
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 (but none of its obligations) in, to and
under (i) 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) and (ii) the CW/GACC MLPA (as it
relates to the Xxxxx Center A-2 Note), other than the right to receive purchase
price adjustments as set forth in Section 1.2 of the Original CW/GACC MLPA;
provided, however, to the extent the originator of a Mortgage Loan has the
right, pursuant to the related Mortgage Loan documents, to establish or
designate the successor borrower with respect to a defeasance and to purchase or
cause to be purchased the related defeasance collateral, such right is retained
by the Mortgage Loan Seller and not transferred to the Company 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
Maryland, 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-6 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-6 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-6, 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;
(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;
(x) The Mortgage Loan Seller (A) has full, right, power and
authority under the CW/GACC MLPA and otherwise to transfer and
assign all of its right, title and interest in, to and under the
CW/GACC MLPA to the Company pursuant to the terms hereof, (B) has
complied with all material terms and conditions of the CW/GACC MLPA
and is not in default thereunder or in breach of any material terms
or provisions thereof, and (C) has disbursed all funds required to
be disbursed by it under the GW/GACC MLPA; and
(xi) The CW/GACC MLPA (A) has not been amended, supplemented or
otherwise modified except as otherwise described herein, (B) is in
full force and effect and (C) is the legal, valid and binding
obligation of the XX Xxxxxxx and enforceable by the Company and its
assigns against the XX Xxxxxxx in accordance with its terms, except
only as such enforcement may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally.
(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 (other than the Xxxxx Center A-2 Note) 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;
provided, that, with respect to Xxxxx Center A-2 Note, the Mortgage Loan Seller
shall have no such obligation to repurchase or substitute to the extent that the
Xxxxx Center A-2 Note is the subject of a Breach or Document Defect.
(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 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 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 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx, fax number (000) 000-0000.
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
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[begins on the following page]
GE COMMERCIAL MORTGAGE CORPORATION, SERIES 2006-C1
Mortgage Loan Schedule
----------------------
ID Property Name Sponsor Address
-----------------------------------------------------------------------------------------------------------------------------------
Rollup Beyman Multifamily Portfolio III Xxxx Xxxxxx, Xxxxxx Xxxxx Various
3 Empirian at Waterford Place Xxxx Xxxxxx, Xxxxx Xxxxxxxxxxx, Xxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxxx
4 Xxxxxxxxxx Place Xxxx Xxxxxx, Xxxxxx Xxxxx 0000 Xxxxxxxxxx Xxxx Xxxxx
5 Xxxxxxx Apartments Xxxx Xxxxxx, Xxxxxx Xxxxx 0000 Xxxxxxxx Xxxx
7 Xxxxx Center Xxxxxx Xxxxxx 901, 1021 & 0000 Xxxx Xxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
8 Xxxxx 0 Xxxxxxxxxxxxxx Xxxxx 0 Communications, Inc. 0000 Xxxxxxxx Xxxxxxxxx
18 Marriott Saratoga Xxxx Xxxx Xxxx & Xxxxxx X. Led Xxxx 11 Excelsior Avenue
22 Mission Bellevue Ridge Mission Residential, LLC; Finlay Partners LLC 000 Xxxxx Xxxxxx Xxxxx
27 Courthouse Crossing Xxxxxx Xxxxxxxxx, Yeshiya Schon, Xxxxxx Xxxxx 00 Xxxxx Xxxxxx Xxxxxx
29 American Heritage Plaza Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx Lincoln Avenue and US Highway 491
-----------------------------------------------------------------------------------------------------------------------------------
31 000-000 Xxxx Xxxxxxx Xxxx Xxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxx Xxxx Xxxxxxx 000-000 Xxxx Xxxxxxx Xxxx
35 Sedgewood Warwick Company 0000 Xxxxxxxxxxxxx Xxxxxxx
36 00-00 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx 00-00 Xxxxxxxx Xxxxxx
42 Overbrook Plaza Xxxxxx Xxxxxxxx 0000 Xxxxxxxxx Xxxxxx
58 The Xxxxxxxx J. Xxxxxxx Xxxxx; Xxxxx Xxxxx 0000 Xxxxxxx Xxxxx
-----------------------------------------------------------------------------------------------------------------------------------
59 0000 Xxxxxx Xxxxxx Xxxxx Xxxx 0000 Xxxxxx Xxxxxx
60 Syracuse Portfolio Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxxxx Various
60.1 Chestnut Crossing 923, 000-000 Xxxxx Xxxxxx
60.2 The Xxxxx 000 Xxxxx Xxxxxx
64 Xxxxxx MHP Portfolio Xxxxxxx Xxxxxx Various
-----------------------------------------------------------------------------------------------------------------------------------
64.1 Little Flowers Estates 0000 Xxxxxx Xxxxx
64.2 Whispering Pines 5296, 125, & 000 Xxxxxx Xxxxx
68 Sahara Xxxx Xxxxxxx Xxxx 0000 Xxxx Xxxxxx Xxxxxx
69 Emerald Plantation G. Xxxxxx Xxxx 0000 Xxxxxxx Xxxxx
88 Holiday Inn - Long Beach Xxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
ID City State Zip Code
----------------------------------------------------
Rollup Xxxxxxx Xxxxxxx Xxxxxxx
0 Xxxxxxx XX 00000
4 Xxxxxxxxx XX 00000
5 Xxxxxxx XX 00000
7 Xxxxxxxx XX 00000
----------------------------------------------------
8 Xxxxxxxxxx XX 00000
18 Xxxxxxxx Xxxxxxx XX 00000
22 Xxxxxxxxx XX 00000
27 Xxxxxx XX 00000
29 Xxxxxx XX 00000
----------------------------------------------------
31 Xxxxx XX 00000
35 Xxxxxxx XX 00000
36 Xxx Xxxx XX 00000
42 Xxxxxxxxxxx XX 00000
58 Xxxxxx XX 00000
----------------------------------------------------
59 Xxxxxx XX 00000
60 Xxxxxxxx XX 00000
60.1 Xxxxxxxx XX 00000
60.2 Xxxxxxxx XX 00000
64 Vineland NJ Various
----------------------------------------------------
64.1 Xxxxxxxx XX 00000
64.2 Xxxxxxxx XX 00000
68 Xxx Xxxxx XX 00000
00 Xxxxxxx Xxxx XX 00000
88 Xxxx Xxxxx XX 00000
Net Cut-off Original Stated Remaining Maturity Original
Interest Interest Original Date Term to Maturity Term to Maturity Date Amortization
ID Rate Rate Balance Balance or APD (mos.) or APD (mos.) or APD Term (mos.)
-----------------------------------------------------------------------------------------------------------------------------------
Rollup 5.792% 5.761% 82,850,000 82,850,000 120 120 3/1/2016 360
3 5.790% 5.759% 30,320,000 30,320,000 120 120 3/1/2016 360
4 5.796% 5.765% 28,290,000 28,290,000 120 120 3/1/2016 360
5 5.790% 5.759% 24,240,000 24,240,000 120 120 3/1/2016 360
7 5.220% 5.189% 50,000,000 50,000,000 120 118 1/1/2016 0
-----------------------------------------------------------------------------------------------------------------------------------
8 5.420% 5.389% 45,000,000 45,000,000 60 55 10/1/2010 360
18 5.675% 5.644% 18,500,000 18,500,000 120 120 3/1/2016 360
22 5.648% 5.617% 15,000,000 15,000,000 120 119 2/1/2016 360
27 5.741% 5.710% 12,700,000 12,700,000 120 120 3/1/2016 360
29 5.727% 5.696% 12,200,000 12,200,000 120 120 3/1/2016 360
-----------------------------------------------------------------------------------------------------------------------------------
31 5.680% 5.649% 12,000,000 12,000,000 120 120 3/1/2016 360
35 5.485% 5.454% 10,900,000 10,900,000 120 119 2/1/2016 360
36 5.548% 5.517% 10,250,000 10,250,000 120 119 2/1/2016 360
42 5.700% 5.669% 9,000,000 9,000,000 120 120 3/1/2016 360
58 5.759% 5.728% 7,400,000 7,400,000 60 58 1/1/2011 0
-----------------------------------------------------------------------------------------------------------------------------------
59 6.088% 6.057% 7,300,000 7,290,385 60 59 2/1/2011 360
60 5.880% 5.849% 7,280,000 7,280,000 120 119 2/1/2016 324
60.1 5,600,000 5,600,000
60.2 1,680,000 1,680,000
64 5.687% 5.656% 7,100,000 7,100,000 120 120 3/1/2016 360
-----------------------------------------------------------------------------------------------------------------------------------
64.1 5,660,000 5,660,000
64.2 1,440,000 1,440,000
68 5.710% 5.679% 6,750,000 6,750,000 120 120 3/1/2016 360
69 5.934% 5.903% 6,550,000 6,550,000 120 120 3/1/2016 360
88 5.900% 5.869% 5,000,000 5,000,000 60 60 3/1/2011 360
-----------------------------------------------------------------------------------------------------------------------------------
Remaining Monthly Interest
Amortization Debt Administrative Servicing Accrual
ID Term (mos.) Service Cost Rate Fee Rate Method
-----------------------------------------------------------------------------
Rollup 360 485,705 0.0314% 0.0300% Actual/360
3 360 177,710 0.0314% 0.0300% Actual/360
4 360 165,920 0.0314% 0.0300% Actual/360
5 360 142,075 0.0314% 0.0300% Actual/360
7 0 220,521 0.0314% 0.0300% Actual/360
------------------------------------------------------------------------------
8 360 241,449 0.0314% 0.0300% Actual/360
18 360 107,081 0.0314% 0.0300% Actual/360
22 360 86,566 0.0314% 0.0300% Actual/360
27 360 74,041 0.0314% 0.0300% Actual/360
29 360 71,018 0.0314% 0.0300% Actual/360
------------------------------------------------------------------------------
31 360 69,496 0.0314% 0.0300% Actual/360
35 360 61,786 0.0314% 0.0300% Actual/360
36 360 58,507 0.0314% 0.0300% Actual/360
42 360 52,236 0.0314% 0.0300% Actual/360
58 0 36,007 0.0314% 0.0300% Actual/360
------------------------------------------------------------------------------
59 359 44,181 0.0314% 0.0300% Actual/360
60 324 44,882 0.0314% 0.0300% Actual/360
60.1
60.2
64 360 41,150 0.0314% 0.0300% Actual/360
------------------------------------------------------------------------------
64.1
64.2
68 360 39,220 0.0314% 0.0300% Actual/360
69 360 38,993 0.0314% 0.0300% Actual/360
88 360 29,657 0.0314% 0.0300% Actual/360
------------------------------------------------------------------------------
Revised
APD Interest
ID (Yes/No) Rate
-----------------------------------------------------------------------------------------------------------------------------------
Rollup No
3 No
4 No
5 No
7 Yes The greater of (i) the sum of the yeild of the 10-year Treasury and 3.0% and (ii) 8.220%
-----------------------------------------------------------------------------------------------------------------------------------
8 Yes The greater of (i) the sum of the yield of the "on-the-run" 5-year Treasury rate and 3.0% and (ii) 8.420%
18 Xx
00 Xx
00 Xx
00 Xx
-----------------------------------------------------------------------------------------------------------------------------------
31 Xx
00 Xx
00 Xx
00 Xx
00 Xx
-----------------------------------------------------------------------------------------------------------------------------------
59 No
60 No
60.1
60.2
64 No
-----------------------------------------------------------------------------------------------------------------------------------
64.1
64.2
68 No
69 No
88 No
-----------------------------------------------------------------------------------------------------------------------------------
Crossed Mortgage Letter
Fee / With Loan of
ID Leasehold Other Loans Seller Credit
-----------------------------------------------------------------------------------------------------------------------------------
Rollup Fee Simple Yes (GE 06-1 A) GACC
3 Fee Simple Yes (GE 00-0 X) XXXX
0 Xxx Xxxxxx Xxx (XX 00-0 X) GACC
5 Fee Simple Yes (GE 06-1 A) GACC
7 Fee Simple No GACC Yes ($250,000 Master Lease; $1,193,831 Free Rent)
-----------------------------------------------------------------------------------------------------------------------------------
8 Fee Simple No GACC
18 Fee Simple No GACC Yes ($1,500,000 Earnout)
22 Fee Simple No GACC
27 Leasehold No GACC
29 Leasehold No GACC
-----------------------------------------------------------------------------------------------------------------------------------
31 Fee Simple No GACC
35 Fee Simple No GACC
36 Fee Simple No GACC
42 Fee Simple No GACC
58 Fee Simple No GACC
-----------------------------------------------------------------------------------------------------------------------------------
59 Leasehold No GACC
60 Fee Simple No GACC
60.1 Fee Simple GACC
60.2 Fee Simple GACC
64 Fee Simple No GACC
-----------------------------------------------------------------------------------------------------------------------------------
64.1 Fee Simple GACC
64.2 Fee Simple GACC
68 Fee Simple No GACC
69 Fee Simple No GACC
88 Fee Simple No GACC
-----------------------------------------------------------------------------------------------------------------------------------
Loan Group
ID Hotel Property (Yes/No) (One or Two)
-----------------------------------------------------
Rollup Xx 0
0 Xx 0
0 Xx 0
0 Xx 2
7 No 1
-----------------------------------------------------
8 No 1
18 Yes 1
22 Xx 0
00 Xx 0
00 Xx 1
-----------------------------------------------------
31 Xx 0
00 Xx 0
00 Xx 0
00 Xx 1
58 No 2
-----------------------------------------------------
59 No 1
60 No 2
60.1 No 2
60.2 No 2
64 No 1
-----------------------------------------------------
64.1 Xx 0
00.0 Xx 0
00 Xx 0
00 Xx 1
88 Yes 1
-----------------------------------------------------
EXHIBIT B
FORM OF OFFICER'S CERTIFICATE
I, ____________________, _____________ of [Seller]"(the "Seller"),
hereby certify as follows:
The Seller is a [corporation]"duly organized and validly existing
under the laws of the State of [Maryland].
Attached hereto as Exhibit I are true and correct copies of the
[Certificate of Incorporation]"and [By-Laws]"of the Seller, which [Certificate
of Incorporation]"and [By-Laws]"are on the date hereof, and have been at all
relevant times in full force and effect.
Attached hereto as Exhibit II is a true and correct copy of a good
standing certificate dated __________ and issued by the Secretary of State of
[Maryland].
To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and
qualified officer or authorized signatory of the Seller and a true and correct
copy of his signature is set forth opposite his name:
I, ____________________, _____________ of [Seller]"(the "Seller"),
hereby certify as follows:
The Seller is a [corporation]"duly organized and validly existing
under the laws of the State of [Maryland].
Attached hereto as Exhibit I are true and correct copies of the
[Certificate of Incorporation]"and [By-Laws]"of the Seller, which [Certificate
of Incorporation]"and [By-Laws]"are on the date hereof, and have been at all
relevant times in full force and effect.
Attached hereto as Exhibit II is a true and correct copy of a good
standing certificate dated __________ and issued by the Secretary of State of
[Maryland].
To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and
qualified officer or authorized signatory of the Seller and a true and correct
copy of his signature is set forth opposite his name:
Name Office Signature
---- ------ ---------
-------------------------- ------------------------- -------------------------
-------------------------- ------------------------- -------------------------
-------------------------- ------------------------- -------------------------
IN WITNESS WHEREOF, I have hereunto signed my name as of this __ day
of ____ 2006.
By:_____________________________________
Name:
Title:
I, __________________________, Assistant Secretary of [Seller],
hereby certify that ______________________ is the duly elected, qualified and
acting __________ of the Seller and that the signature appearing above is their
genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate
as of ____________, 2006.
By:_________________________________________________
Name:
Title:
EXHIBIT C
FORM OF LEGAL OPINION
1. The Mortgage Loan Seller is duly incorporated and is validly existing
as a [corporation]"in good standing under the laws of the State of
[Maryland]"and has the requisite power and authority, corporate or other, to own
its properties and conduct its business, as presently conducted by it, and to
enter into and perform its obligations under the Mortgage Loan Purchase and Sale
Agreement.
2. The Mortgage Loan Purchase and Sale Agreement has been duly and validly
authorized, executed and delivered by the Mortgage Loan Seller.
3. Neither the consummation of any of the transactions contemplated by,
nor the fulfillment by the Mortgage Loan Seller of any other of the terms of,
the Mortgage Loan Purchase and Sale Agreement, will result in a material breach
of any term or provision of the charter or bylaws of the Mortgage Loan Seller
or, to our actual knowledge without independent investigation, conflict with,
result in a material breach, violation or acceleration of or constitute a
material default under the terms of any indenture or other material agreement or
instrument to which the Mortgage Loan Seller is a party or by which it is bound
or any order of any state or federal court which order names the Mortgage Loan
Seller and is specially directed to it or its property.
4. The Mortgage Loan Purchase and Sale Agreement constitutes a legal,
valid and binding agreement of the Mortgage Loan Seller, enforceable against the
Mortgage Loan Seller in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium,
receivership or other laws relating to or affecting creditors' rights generally,
and to general principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity), and except that the enforcement of rights
with respect to indemnification and contribution obligations and provisions (a)
purporting to waive or limit rights to trial by jury, oral amendments to written
agreements or rights of set off or (b) relating to submission to jurisdiction,
venue or service of process, may be limited by applicable law or considerations
of public policy.
5. The execution and delivery by the Mortgage Loan Seller of the Mortgage
Loan Purchase and Sale Agreement, and the performance by the Mortgage Loan
Seller of its obligations thereunder do not require any consent, approval,
license, authorization or validation of, or filing, recording or registration
with, any executive, legislative, judicial, administrative or regulatory bodies
of the State of New York or the United States of America pursuant to those laws,
rules and regulations of the State of New York and of the United States of
America which, in our experience, are normally applicable to transactions of
this type, to be obtained on the part of the Mortgage Loan Seller, except those
that have been obtained and, to our knowledge, are in effect.
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 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). 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). 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
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Representation numbers referred to below relate to the corresponding
Mortgage Loan representations and warranties set forth in Exhibit D to the
Mortgage Loan Purchase Agreement for GACC.
SCHEDULE I
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Annex A-1
ID # Mortgage Loan Exception
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Exceptions to Representation (vi): Assignment of Leases and Rents.
7 Xxxxx Center With respect to the Mortgage Loan, the
Mortgage and other security documents
have been transferred to Xxxxx Fargo
Bank, N.A., as Trustee for the registered
holders of GMAC Commercial Mortgage
Securities, Inc. Series 2006-C1 Mortgage
Pass-Through Certificates.
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Exceptions to Representation (viii): Assignments of Mortgage and Assignment of
Leases.
7 Xxxxx Center With respect to the Mortgage Loan, the
Mortgage and other security documents
have been transferred to Xxxxx Fargo
Bank, N.A., as Trustee for the registered
holders of GMAC Commercial Mortgage
Securities, Inc. Series 2006-C1 Mortgage
Pass-Through Certificates.
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Exceptions to Representation (ix): Mortgage Lien; Title Exceptions.
7 Xxxxx Center The Mortgaged Property is security
for the Mortgage Loan and a pari passu
loan.
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Exceptions to Representation (x): UCC Financing Statements.
7 Xxxxx Center With respect to the Mortgage Loan, the
Mortgage and other security documents
have been transferred to Xxxxx Fargo
Bank, N.A., as Trustee for the registered
holders of GMAC Commercial Mortgage
Securities, Inc. Series 2006-C1 Mortgage
Pass-Through Certificates.
--------------------------------------------------------------------------------
Exceptions to Representation (xiv): Insurance.
Various Various Certain of the loan documents may limit
terrorism insurance coverage to the
extent such coverage is available for
similarly situated properties and/or on
commercially reasonable terms.
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Exception to Representation (xvii): Additional Collateral.
7 Xxxxx Center The Mortgaged Property is security
for the Mortgage Loan and a pari passu
loan.
8 Level 3 The Mortgaged Property is security for
the Mortgaged Loan and a subordinate loan.
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Exception to Representation (xxi): Bankruptcy.
All All The Seller makes no representation
regarding the bankruptcy or insolvency of
any tenant at the Mortgaged Property.
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Exception to Representation (xxii): Whole Loan.
7 Xxxxx Center The Mortgaged Property is security
for the Mortgage Loan and a pari passu
loan.
8 Level 3 The Mortgaged Property is security for
the Mortgaged Loan and a subordinate loan.
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Exception to Representation (xxiii): Transfers and Subordinate Debt.
27 Courthouse Crossing The loan documents permit mezzanine debt
following loan closing subject to the
conditions including, but not limited to a
combined DSCR of not less than 1.10x and a
combined LTV ratio of not more than 90%.
18 Marriott Saratoga The loan documents permit mezzanine debt in
connection with the first of the Mortgaged
Property, subject to conditions including,
but not limited to, a combined DSCR of not
less than 1.40x and a combined LTV ratio of
not more than 80%.
7 Xxxxx Center The loan documents permit the transfer of a
controlling interest in the borrower to
certain specified parties identified in the
loan documents.
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Exception to Representation (xxvi): Releases.
64 Little Flowers Estates The loan documents permit the release of
and Whispering Pines mobile homes located on the Mortgaged
Property (where mobile homes were included
as collateral in connection with the
underwriting of the Mortgage Loan, but
which mobile homes were not included in the
appraisal of the property) subject to
conditions including, but not limited to:
(i) no continuing event of default (ii)
greater than 60 days notice requesting the
release (iii) a DSCR of not less than
1.20x.
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Exception to Representation (xxvii): Defeasance.
Various Various Certain Mortgage Loans permit the
defeasance collateral to pay the loan in
full on the first date the Mortgage Loan is
freely payable instead of on the Maturity
Date.
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Exception to Representation (xxxv): Other Collateral; Cross-Collateralization.
7 Xxxxx Center The Mortgaged Property is security for the
Mortgage Loan and a pari passu loan.
8 Level 3 The Mortgaged Property is security for the
Mortgaged Loan and a subordinate loan.
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Exception to Representation (xli): Separate Tax Lots.
68 Sahara Xxxx The Mortgaged Property together with an
adjacent property (not owned by the
borrower) constitutes a tax parcel. The
borrower has requested the Mortgaged
Property to be a separate tax parcel.
Until a separate tax parcel number is
assigned to the Mortgaged Property, the
borrower is required to pay real estate
taxes on the adjacent property.
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Exception to Representation (xlii): Ground Leases.
59 0000 Xxxxxx Xxxxxx The ground lease does not expressly provide
that no notice of termination given under
the ground lease is effective against the
holder of the Mortgage Loan unless such
notice is given to the holder of the
Mortgage Loan.
59 0000 Xxxxxx Xxxxxx The ground lease does not expressly
provide that the ground lessor is
required to enter into a new lease with
the holder of the Mortgage Loan if the
ground lease is terminated for any
reason, including rejection of such
ground lease in a bankruptcy proceeding.
59 0000 Xxxxxx Xxxxxx The ground lease may not be amended,
modified or terminated without the consent
of the lender; however, the ground lease is
silent as to whether such action without
consent would be binding on the lender.
EXHIBIT F
Mortgage Loans Secured by Ground Leases
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Loan ID No. on Property Name
Annex A-1
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27 Courthouse Crossing
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29 American Heritage Plaza
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59 0000 Xxxxxx Xxxxxx
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