EXHIBIT 10.2
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GS MORTGAGE SECURITIES CORPORATION II,
PURCHASER,
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of October 1, 2006
Series 2006-GG8
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This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of October 1, 2006, is between GS Mortgage Securities Corporation II, a Delaware
corporation, as purchaser (the "Purchaser"), and Greenwich Capital Financial
Products, Inc., a Delaware corporation, as seller (the "Seller").
Capitalized terms used in this Agreement not defined herein shall
have the meanings ascribed to them in the Pooling and Servicing Agreement, dated
as of October 1, 2006 (the "Pooling and Servicing Agreement"), among the
Purchaser, as seller, Wachovia Bank, National Association, as master servicer
(the "Master Servicer"), CWCapital Asset Management LLC, as special servicer
(the "Special Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the
"Trustee"), pursuant to which the Purchaser will sell the Mortgage Loans (as
defined herein) to a trust fund and certificates representing ownership
interests in the Mortgage Loans will be issued by the trust fund (the "Trust
Fund"). For purposes of this Agreement, "Mortgage Loans" refers to the mortgage
loans listed on Exhibit A and "Mortgaged Properties" refers to the properties
securing such Mortgage Loans.
The Purchaser and the Seller wish to prescribe the manner of sale of
the Mortgage Loans from the Seller to the Purchaser and in consideration of the
premises and the mutual agreements hereinafter set forth, agree as follows:
SECTION 1 Sale and Conveyance of Mortgages; Possession of Mortgage
File. The Seller does hereby sell, transfer, assign, set over and convey to the
Purchaser subject to the rights of the other holders of interests in a Companion
Loan all of its right, title and interest in and to the Mortgage Loans
identified on Exhibit A (the "Mortgage Loan Schedule") including all interest
and principal received on or with respect to the Mortgage Loans after the
Cut-off Date (other than payments of principal and interest first due on the
Mortgage Loans on or before the Cut-off Date). Upon the sale of the Mortgage
Loans, the ownership of each related Note, subject to the rights of the other
holders of interest in a Companion Loan, the Seller's interest in the related
Mortgage and the other contents of the related Mortgage File, will be vested in
the Purchaser and immediately thereafter the Trustee, and the ownership of
records and documents with respect to the related Mortgage Loan (other than a
Non-Serviced Companion Loan) prepared by or which come into the possession of
the Seller shall immediately vest in the Purchaser and immediately thereafter
the Trustee. On the Closing Date, the Seller shall also arrange for the delivery
to the Depositor an amount equal to $62,395.21 to be deposited by the Master
Servicer in the Collection Account on behalf of the Seller and for the benefit
of the Trust Fund, which amount represents the aggregate amount of interest that
would have accrued at the related Mortgage Rates on the applicable Mortgage
Loans commencing October 1, 2006 for those Mortgage Loans that do not require a
payment of a full month's interest on the Due Date in November 2006 or do not
have a Due Date until December 2006. The Purchaser will sell the Class A-1,
Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E and Class F Certificates (the "Offered
Certificates") to the underwriters (the "Underwriters") specified in the
Underwriting Agreement, dated October 17, 2006 (the "Underwriting Agreement"),
between the Purchaser and the Underwriters, and the Purchaser will sell the
Class X, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class Q, Class S, Class R and Class LR Certificates (the "Private
Certificates") to the initial purchasers (the "Initial Purchasers" and,
collectively with the Underwriters, the "Dealers") specified in the Certificate
Purchase Agreement, dated October 17, 2006 (the "Certificate Purchase
Agreement"), between the Purchaser and Initial Purchasers.
The sale and conveyance of the Mortgage Loans is being conducted on
an arms-length basis and upon commercially reasonable terms. As the purchase
price for the Mortgage Loans, the Purchaser shall pay to the Seller or at the
Seller's direction $2,916,951,602 (excluding accrued interest and certain
post-settlement adjustment for expenses incurred by the Underwriters on behalf
of the Depositor). The purchase and sale of the Mortgage Loans shall take place
on the Closing Date.
SECTION 2 Books and Records; Certain Funds Received After the
Cut-off Date. From and after the sale of the Mortgage Loans to the Purchaser,
record title to each Mortgage and the related Note shall be transferred to the
Trustee in accordance with this Agreement. Any funds due after the Cut-off Date
in connection with a Mortgage Loan received by the Seller shall be held in trust
for the benefit of the Trustee as the owner of such Mortgage Loan and shall be
transferred promptly to the Trustee. All scheduled payments of principal and
interest due on or before the Cut-off Date but collected after the Cut-off Date,
and recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
The transfer of each Mortgage Loan shall be reflected on the
Seller's balance sheets and other financial statements as a sale of the Mortgage
Loans by the Seller to the Purchaser. The Seller intends to treat the transfer
of each Mortgage Loan to the Purchaser as a sale for tax purposes.
The transfer of each Mortgage Loan shall be reflected on the
Purchaser's balance sheets and other financial statements as the purchase of the
Mortgage Loans by the Purchaser from the Seller. The Purchaser intends to treat
the transfer of each Mortgage Loan from the Seller as a purchase for tax
purposes. The Purchaser shall be responsible for maintaining, and shall
maintain, a set of records for each Mortgage Loan which shall be clearly marked
to reflect the transfer of ownership of each Mortgage Loan by the Seller to the
Purchaser pursuant to this Agreement.
SECTION 3 Delivery of Mortgage Loan Documents; Additional Costs and
Expenses. (a) The Purchaser hereby directs the Seller, and the Seller hereby
agrees, upon the transfer of the Mortgage Loans contemplated herein, to deliver
or cause to be delivered to the Trustee or a Custodian appointed thereby on the
dates set forth in Section 2.01 of the Pooling and Servicing Agreement, all
documents, instruments and agreements required to be delivered by the Purchaser
to the Trustee with respect to the Mortgage Loans under Section 2.01 of the
Pooling and Servicing Agreement, and meeting all the requirements of such
Section 2.01, provided that the Seller shall not be required to deliver any
draft documents, privileged communications, credit underwriting, due diligence
analyses or data or internal worksheets, memoranda, communications or
evaluations.
(b) The Seller shall deliver to the Master Servicer within 10
business days after the Closing Date, documents and records that (i) relate to
the servicing and administration of the Mortgage Loans, (ii) are reasonably
necessary for the ongoing administration and/or servicing of the Mortgage Loans
(including any asset summaries related to the Mortgage Loans that were delivered
to the Rating Agencies in connection with the rating of the Certificates) and
(iii) are in possession or control of the Seller, together with (x) all
unapplied Escrow Payments in the possession or under control of the Seller that
relate to the Mortgage Loans and (y) a statement indicating which Escrow
Payments are allocable to such Mortgage Loans); provided that the Seller shall
not be required to deliver any draft documents, privileged or other
communications, credit underwriting, due diligence analyses or data or internal
worksheets, memoranda, communications or evaluations.
SECTION 4 Treatment as a Security Agreement. Pursuant to Section 1
hereof, the Seller has conveyed to the Purchaser all of its right, title and
interest in and to the Mortgage Loans. The parties intend that such conveyance
of the Seller's right, title and interest in and to the Mortgage Loans pursuant
to this Agreement shall constitute a purchase and sale and not a loan. If such
conveyance is deemed to be a pledge and not a sale, then the parties also intend
and agree that the Seller shall be deemed to have granted, and in such event
does hereby grant, to the Purchaser, a first priority security interest in all
of its right, title and interest in, to and under the Mortgage Loans, all
payments of principal or interest on such Mortgage Loans due after the Cut-off
Date, all other payments made in respect of such Mortgage Loans after the
Cut-off Date (other than scheduled payments of principal and interest due on or
before the Cut-off Date) and all proceeds thereof, and that this Agreement shall
constitute a security agreement under applicable law. If such conveyance is
deemed to be a pledge and not a sale, the Seller consents to the Purchaser
hypothecating and transferring such security interest in favor of the Trustee
and transferring the obligation secured thereby to the Trustee.
SECTION 5 Covenants of the Seller. The Seller covenants with the
Purchaser as follows:
(a) except with respect to a Non-Serviced Mortgage Loan, it shall
record or cause a third party to record in the appropriate public recording
office for real property the assignments of the Mortgage Loans, assignments of
assignment of leases, rents and profits and the assignments of Mortgage and each
related UCC-2 and UCC-3 financing statement referred to in the definition of
Mortgage File from the Seller to the Trustee in connection with the Pooling and
Servicing Agreement. All out of pocket costs and expenses relating to the
recordation or filing of such assignments, assignments of Mortgage and financing
statements shall be paid by the Seller. If any such document or instrument is
lost or returned unrecorded or unfilled, as the case may be, because of a defect
therein, then the Seller shall prepare a substitute therefore or cure such
defect of cause such to be done, as the case may be, and the Seller shall
deliver such substitute or corrected document or instrument to the Trustee (or,
if the Mortgage Loan is then no longer subject to the Pooling and Servicing
Agreement, the then holder of such Mortgage Loan).
(b) it shall take any action reasonably required by the Purchaser,
the Trustee or the Servicer in order to assist and facilitate the transfer of
the servicing of the Mortgage Loans to the Servicer, including effectuating the
transfer of any letters of credit with respect to any Mortgage Loan to the
Servicer on behalf of the Trustee for the benefit of Certificateholders. Prior
to the date that a letter of credit with respect to any Mortgage Loan is
transferred to the Servicer, the Seller will cooperate with the reasonable
requests of the Servicer or Special Servicer, as applicable, in connection with
effectuating a draw under such letter of credit as required under the terms of
the related Loan Documents. Notwithstanding the foregoing, this Section 5(b)
shall not apply with respect to a Non-Serviced Mortgage Loan;
(c) The Seller shall provide the Master Servicer the initial data
with respect to each Mortgage Loan for the CMSA Financial File and the CMSA Loan
Periodic Update File that are required to be prepared by the Master Servicer
pursuant to the Pooling and Servicing Agreement and the Supplemental Servicer
Schedule;
(d) if during the period of time that the Underwriters are required,
under applicable law, to deliver a prospectus related to the Offered
Certificates in connection with sales of the Offered Certificates by an
Underwriter or a dealer and the Seller has obtained actual knowledge of
undisclosed or corrected information related to an event that occurred prior to
the Closing Date, which event causes the Seller Information previously provided
to be incorrect or untrue, and which directly results in a material misstatement
or omission in the Prospectus Supplement, including Annex A, Annex B or Annex C
thereto and the CD-ROM and the Diskette included therewith (collectively, the
"Public Offering Documents"), and as a result the Underwriters' legal counsel
has determined that it is necessary to amend or supplement the Public Offering
Documents in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or to make the Public Offering Documents in compliance with applicable law, the
Seller shall (to the extent that such amendment or supplement solely relates to
the Seller Information at the expense of the Seller, do all things reasonably
necessary to assist the Depositor to prepare and furnish to the Underwriters,
such amendments or supplements to the Public Offering Documents as may be
necessary so that the statements in the Public Offering Documents, as so amended
or supplemented, will not, in the light of the circumstances when the Prospectus
is delivered to a purchaser, be misleading and will comply with applicable law.
(All terms under this clause (c) and not otherwise defined in this Agreement
shall have the meanings set forth in the Indemnification Agreement, dated
October 17, 2006, among Seller, the Purchaser and the Dealers (the
"Indemnification Agreement" and, together with this Agreement, the "Operative
Documents")); and
(e) for so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any Serviced Companion Loan that is deposited into another
securitization, the depositor of such securitization) and the Paying Agent with
any Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure set
forth next the Seller's name on Exhibit U and Exhibit V of the Pooling and
Servicing Agreement within the time periods set forth in the Pooling and
Servicing Agreement.
SECTION 6 Representations and Warranties.
(a) The Seller represents and warrants to the Purchaser as of the
date hereof and as of the Closing Date that:
(i) The Seller is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware with full
power and authority to own its assets and conduct its business, is duly
qualified as a foreign organization in good standing in all jurisdictions
to the extent such qualification is necessary to hold and sell the
Mortgage Loans or otherwise comply with its obligations under this
Agreement except where the failure to be so qualified would not have a
material adverse effect on its ability to perform its obligations
hereunder, and the Seller has taken all necessary action to authorize the
execution, delivery and performance under the Operative Documents and has
duly executed and delivered this Agreement and the Indemnification
Agreement, and has the power and authority to execute, deliver and perform
under this Agreement and each other Operative Document and all the
transactions contemplated hereby and thereby, including, but not limited
to, the power and authority to sell, assign, transfer, set over and convey
the Mortgage Loans in accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of each
Operative Document by each party thereto other than the Seller, each
Operative Document will constitute a legal, valid and binding obligation
of the Seller, enforceable against the Seller in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) The execution and delivery of each Operative Document by the
Seller and the performance of its obligations hereunder and thereunder
will not conflict with any provision of any law or regulation to which the
Seller is subject, or conflict with, result in a breach of, or constitute
a default under, any of the terms, conditions or provisions of any of the
Seller's organizational documents or any agreement or instrument to which
the Seller is a party or by which it is bound, or any order or decree
applicable to the Seller, or result in the creation or imposition of any
lien on any of the Seller's assets or property, in each case which would
materially and adversely affect the ability of the Seller to carry out the
transactions contemplated by the Operative Documents;
(iv) There is no action, suit, proceeding or investigation pending
or, to the Seller's knowledge, threatened against the Seller in any court
or by or before any other governmental agency or instrumentality which
would materially and adversely affect the validity of the Mortgage Loans
or the ability of the Seller to carry out the transactions contemplated by
each Operative Document;
(v) The Seller is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences
that, in Seller's good faith and reasonable judgment, is likely to
materially and adversely affect the condition (financial or other) or
operations of the Seller or its properties or might have consequences
that, in Seller's good faith and reasonable judgment, is likely to
materially and adversely affect its performance under any Operative
Document;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, each
Operative Document or the consummation of the transactions contemplated
hereby or thereby, other than those which have been obtained by the
Seller;
(vii) The transfer, assignment and conveyance of the Mortgage Loans
by the Seller to the Purchaser is not subject to bulk transfer laws or any
similar statutory provisions in effect in any applicable jurisdiction; and
(viii) The Mortgage Loans were originated by a mortgagee approved by
the Secretary of Housing and Urban Development pursuant to Sections 203
and 211 of the Act, a savings and loan association, a savings bank, a
commercial bank, credit union, insurance company or other similar
institution which is supervised and examined by a federal or state
authority.
(b) The Purchaser represents and warrants to the Seller as of the
Closing Date that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business,
is duly qualified as a foreign corporation in good standing in all
jurisdictions in which the ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
ability of the Purchaser to perform its obligations hereunder, and the
Purchaser has taken all necessary action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all the
transactions contemplated hereby;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by the Seller, this Agreement will constitute a legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement by the Purchaser
and the performance of its obligations hereunder will not conflict with
any provision of any law or regulation to which the Purchaser is subject,
or conflict with, result in a breach of, or constitute a default under,
any of the terms, conditions or provisions of any of the Purchaser's
organizational documents or any agreement or instrument to which the
Purchaser is a party or by which it is bound, or any order or decree
applicable to the Purchaser, or result in the creation or imposition of
any lien on any of the Purchaser's assets or property, in each case which
would materially and adversely affect the ability of the Purchaser to
carry out the transactions contemplated by this Agreement;
(iv) There is no action, suit, proceeding or investigation pending
or, to the Purchaser's knowledge, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of this Agreement
or any action taken in connection with the obligations of the Purchaser
contemplated herein, or which would be likely to impair materially the
ability of the Purchaser to perform under the terms of this Agreement;
(v) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Purchaser or its properties or
might have consequences that would materially and adversely affect its
performance under any Operative Document;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Purchaser of or compliance by the Purchaser with this
Agreement or the consummation of the transactions contemplated by this
Agreement other than those that have been obtained by the Purchaser.
(c) The Seller further makes the representations and warranties as
to the Mortgage Loans set forth in Exhibit B as of the Closing Date or other
date set forth in Exhibit B, which representations and warranties are subject to
the exceptions thereto set forth in Exhibit C.
(d) Pursuant to the Pooling and Servicing Agreement, if any party
thereto discovers that any document constituting a part of a Mortgage File has
not been properly executed, is missing, contains information that does not
conform in any material respect with the corresponding information set forth in
the Mortgage Loan Schedule, or does not appear to be regular on its face (each,
a "Document Defect"), or discovers or receives notice of a breach of any
representation or warranty of the Seller made pursuant to Section 6(c) of this
Agreement with respect to any Mortgage Loan (a "Breach"), such party is required
to give prompt written notice thereof to the Seller.
(e) If any such Document Defect or Breach with respect to any
Mortgage Loan materially and adversely affects the value of the Mortgage Loan or
the related Mortgaged Property or the interests of the Certificateholders
therein, then such Document Defect shall constitute a "Material Document Defect"
or such Breach shall constitute a "Material Breach," as the case may be.
Promptly upon becoming aware of any such Material Document Defect or Material
Breach (including through a written notice given by any party hereto, as
provided above), the Seller, not later than 90 days from the earlier of the
Seller's discovery or receipt of notice of such Material Document Defect or
Material Breach, as the case may be (or, in the case of a Material Document
Defect or Material Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions, not later than 90 days of
any party discovering such Material Document Defect or Material Breach provided
the Seller receives notice thereof in a timely manner), cure the same in all
material respects (which cure shall include payment of any Additional Trust Fund
Expenses associated therewith) or, if such Material Document Defect or Material
Breach, as the case may be, cannot be cured within such 90 day period,
repurchase the affected Mortgage Loan or any related REO Property at the
applicable Purchase Price by wire transfer of immediately available funds to the
Collection Account (or, in the case of a Non-Serviced Mortgage Loan or an REO
Property that relates to a Non-Serviced Mortgage Loan, to the related REO
Account); provided, however, that if (i) such Material Document Defect or
Material Breach is capable of being cured but not within such 90 day period,
(ii) such Material Document Defect or Material Breach is not related to any
Mortgage Loan's not being a "qualified mortgage" within the meaning of the REMIC
Provisions and (iii) the Seller has commenced and is diligently proceeding with
the cure of such Material Document Defect or Material Breach within such 90 day
period, then the Seller shall have an additional 90 days to complete such cure
or, in the event of a failure to so cure, to complete such repurchase (it being
understood and agreed that, in connection with the Seller's receiving such
additional 90 day period, the Seller shall deliver an Officer's Certificate to
the Trustee setting forth the reasons such Material Document Defect or Material
Breach is not capable of being cured within the initial 90 day period and what
actions the Seller is pursuing in connection with the cure thereof and stating
that the Seller anticipates that such Material Document Defect or Material
Breach will be cured within such additional 90 day period); and provided,
further, that, if any such Material Document Defect is still not cured after the
initial 90 day period and any such additional 90 day period solely due to the
failure of the Seller to have received the recorded document, then the Seller
shall be entitled to continue to defer its cure and repurchase obligations in
respect of such Document Defect so long as the Seller certifies to the Trustee
every 30 days thereafter that the Document Defect is still in effect solely
because of its failure to have received the recorded document and that the
Seller is diligently pursuing the cure of such defect (specifying the actions
being taken), except that no such deferral of cure or repurchase may continue
beyond the second anniversary of the Closing Date. Any such repurchase of a
Mortgage Loan shall be on a servicing released basis. The Seller shall have no
obligation to monitor the Mortgage Loans regarding the existence of a breach or
a document defect, but if the Seller discovers a Material Breach or Material
Document Defect with respect to a Mortgage Loan, it will notify the Purchaser.
(f) In connection with any repurchase of a Mortgage Loan pursuant to
this Section 6, the Pooling and Servicing Agreement shall provide that, subject
to Section 3.26 of the Pooling and Servicing Agreement, the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each tender to the
repurchasing entity, upon delivery to each of them of a receipt executed by the
repurchasing entity, all portions of the Mortgage File and other documents
pertaining to such Mortgage Loan possessed by it, and each document that
constitutes a part of the Mortgage File shall be endorsed or assigned to the
extent necessary or appropriate to the repurchasing entity or its designee in
the same manner, but only if the respective documents have been previously
assigned or endorsed to the Trustee, and pursuant to appropriate forms of
assignment, substantially similar to the manner and forms pursuant to which such
documents were previously assigned to the Trustee; provided that such tender by
the Trustee shall be conditioned upon its receipt from the Master Servicer of a
Request for Release and an Officer's Certificate to the effect that the
requirements for repurchase have been satisfied.
(g) The representations and warranties of the parties hereto shall
survive the execution and delivery and any termination of this Agreement and
shall inure to the benefit of the respective parties, notwithstanding any
restrictive or qualified endorsement on the Notes or Assignment of Mortgage or
the examination of the Mortgage Files.
(h) Each party hereby agrees to promptly notify the other party of
any breach of a representation or warranty contained in Section 6(c). The
Seller's obligation to cure any breach or repurchase or substitute any affected
Mortgage Loan pursuant to this Section 6 shall constitute the sole remedy
available to the Purchaser in connection with a breach of any of the Seller's
representations or warranties contained in this Section 6(c); provided, however,
that no limitation of remedy is implied with respect to the Seller's breach of
its obligation to cure, repurchase or substitute in accordance with the terms
and conditions of this Agreement.
SECTION 7 Review of Mortgage File. The Purchaser shall require the
Trustee or the Custodian pursuant to the Pooling and Servicing Agreement to
review the Mortgage Files pursuant to Section 2.02 of the Pooling and Servicing
Agreement and if it finds any document or documents not to have been properly
executed, or to be missing or to be defective on its face in any material
respect, to notify the Purchaser, which shall promptly notify the Seller.
SECTION 8 Conditions to Closing. The obligation of the Seller to
sell the Mortgage Loans shall be subject to the Seller having received the
purchase price for the Mortgage Loans as contemplated by Section 1. The
obligations of the Purchaser to purchase the Mortgage Loans shall be subject to
the satisfaction, on or prior to the Closing Date, of the following conditions:
(a) Each of the obligations of the Seller required to be performed
by it at or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with and all of the representations
and warranties of the Seller under this Agreement shall be true and correct in
all material respects as of the Closing Date, and no event shall have occurred
as of the Closing Date which would constitute a default under this Agreement,
and the Purchaser shall have received a certificate to the foregoing effect
signed by an authorized officer of the Seller substantially in the form of
Exhibit D.
The Pooling and Servicing Agreement (to the extent it affects the
obligations of the Seller hereunder), in such form as is agreed upon and
acceptable to the Purchaser, the Seller, the Underwriters and their respective
counsel in their reasonable discretion, shall be duly executed and delivered by
all signatories as required pursuant to the terms thereof.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of the Seller's Articles of Association, charter, by-laws
or other organizational documents and all amendments, revisions,
restatements and supplements thereof, certified as of a recent date by the
Secretary of the Seller;
(ii) a certificate as of a recent date of the Secretary of State of
the State of Delaware to the effect that the Seller is duly organized,
existing and in good standing in the State of Delaware;
(iii) an opinion of counsel of the Seller, subject to customary
exceptions and carve-outs, in form substantially similar to the opinions
set forth in Exhibit E, acceptable to the Underwriters and each Rating
Agency; and
(iv) a letter from counsel of the Seller to the effect that nothing
has come to such counsel's attention that would lead such counsel to
believe that the Prospectus Supplement as of the date thereof or as of the
Closing Date contains, with respect to the Seller or the Mortgage Loans,
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein relating to the Seller
or the Mortgage Loans, in the light of the circumstances under which they
were made, not misleading.
(c) The Offered Certificates shall have been concurrently issued and
sold pursuant to the terms of the Underwriting Agreement. The Private
Certificates shall have been concurrently issued and sold pursuant to the terms
of the Certificate Purchase Agreement.
(d) The Seller shall have executed and delivered concurrently
herewith the Indemnification Agreement.
(e) The Seller shall furnish the Purchaser with such other
certificates of its officers or others and such other documents and opinions to
evidence fulfillment of the conditions set forth in this Agreement as the
Purchaser and its counsel may reasonably request.
SECTION 9 Closing. The closing for the purchase and sale of the
Mortgage Loans shall take place at the office of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, New York, New York, at 10:00 a.m., on the Closing Date or such other place
and time as the parties shall agree. The parties hereto agree that time is of
the essence with respect to this Agreement.
SECTION 10 Expenses. The Seller will pay its pro rata share (the
Seller's pro rata portion to be determined according to the percentage that the
aggregate principal balance as of the Cut-off Date of all the Mortgage Loans
represents as to the aggregate principal balance as of the Cut-off Date of all
the mortgage loans to be included in the Trust Fund) of all costs and expenses
of the Purchaser in connection with the transactions contemplated herein,
including, but not limited to: (i) the costs and expenses of the Purchaser in
connection with the purchase of the Mortgage Loans; (ii) the costs and expenses
of reproducing and delivering the Pooling and Servicing Agreement and this
Agreement and printing (or otherwise reproducing,) and delivering the
Certificates; (iii) the reasonable and documented fees, costs and expenses of
the Trustee and its counsel; (iv) the fees and disbursements of a firm of
certified public accountants selected by the Purchaser and the Seller with
respect to numerical information in respect of the Mortgage Loans and the
Certificates included in the Prospectus, the Offering Circular (as defined in
the Indemnification Agreement) and any related 8-K Information (as defined in
the Underwriting Agreement), including the cost of obtaining any "comfort
letters" with respect to such items; (v) the costs and expenses in connection
with the qualification or exemption of the Certificates under state securities
or blue sky laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith; (vi) the costs and expenses in connection with
any determination of the eligibility of the Certificates for investment by
institutional investors in any jurisdiction and the preparation of any legal
investment survey, including reasonable fees and disbursements of counsel in
connection therewith; (vii) the costs and expenses in connection with printing
(or otherwise reproducing) and delivering the Registration Statement and
Prospectus and the reproducing and delivery of this Agreement and the furnishing
to the Underwriters of such copies of the Registration Statement, Prospectus and
this Agreement as the Underwriters may reasonably request; (viii) the fees of
the rating agency or agencies requested to rate the Certificates; and (ix) the
reasonable fees and expenses of Cadwalader, Xxxxxxxxxx & Xxxx LLP, counsel to
the Purchaser and the Underwriters.
SECTION 11 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement. Furthermore, the
parties shall in good faith endeavor to replace any provision held to be invalid
or unenforceable with a valid and enforceable provision which most closely
resembles, and which has the same economic effect as, the provision held to be
invalid or unenforceable.
SECTION 12 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to conflicts of
law principles and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
SECTION 13 No Third-Party Beneficiaries. The parties do not intend
the benefits of this Agreement to inure to any third party except as expressly
set forth in Section 14.
SECTION 14 Assignment. The Seller hereby acknowledges that the
Purchaser has, concurrently with the execution hereof, executed and delivered
the Pooling and Servicing Agreement and that, in connection therewith, it has
assigned its rights hereunder to the Trustee for the benefit of the
Certificateholders. The Seller hereby acknowledges its obligations pursuant to
Sections 2.01, 2.02 and 2.03 of the Pooling and Servicing Agreement. This
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser and their permitted successors and assigns. The warranties
and representations and the agreements made by the Seller herein shall survive
delivery of the Mortgage Loans to the Trustee until the termination of the
Pooling and Servicing Agreement.
SECTION 15 Notices. All communications hereunder shall be in writing
and effective only upon receipt and (i) if sent to the Purchaser, will be
mailed, hand delivered, couriered or sent by facsimile transmission to it at 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to the attention of Xxxxx Xxxxxx, fax
number (000) 000-0000, with a copy to Xxxxx Xxxxxxxxxx, fax number (212)
000-0000, (ii) if sent to the Seller, will be mailed, hand delivered, couriered
or sent by facsimile transmission and confirmed to it at Greenwich Capital
Financial Products, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, to
the attention of Xxxxxx Xxxx, fax number (000) 000-0000, with a copy to Xxxx
Xxxxxxxxx, Esq., fax number (000) 000-0000 and (iii) in the case of any of the
preceding parties, such other address as may hereafter be furnished to the other
party in writing by such parties.
SECTION 16 Amendment. This Agreement may be amended only by a
written instrument which specifically refers to this Agreement and is executed
by the Purchaser and the Seller. This Agreement shall not be deemed to be
amended orally or by virtue of any continuing custom or practice. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein or any obligations or rights of the Seller whatsoever shall be effective
against the Seller unless the Seller shall have agreed to such amendment in
writing.
SECTION 17 Counterparts. This Agreement may be executed in any
number of counterparts, and by the parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument.
SECTION 18 Exercise of Rights. No failure or delay on the part of
any party to exercise any right, power or privilege under this Agreement and no
course of dealing between the Seller and the Purchaser shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein expressly provided are cumulative and not exclusive of any rights or
remedies which any party would otherwise have pursuant to law or equity. No
notice to or demand on any party in any case shall entitle such party to any
other or further notice or demand in similar or other circumstances, or
constitute a waiver of the right of either party to any other or further action
in any circumstances without notice or demand.
SECTION 19 No Partnership. Nothing herein contained shall be deemed
or construed to create a partnership or joint venture between the parties
hereto. Nothing herein contained shall be deemed or construed as creating an
agency relationship between the Purchaser and the Seller and neither party shall
take any action which could reasonably lead a third party to assume that it has
the authority to bind the other party or make commitments on such party's
behalf.
SECTION 20 Miscellaneous. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the waiver, discharge or termination is sought.
SECTION 21 Further Assurances. The Seller and Purchaser each agree
to execute and deliver such instruments and take such further actions as any
party hereto may, from time to time, reasonably request in order to effectuate
the purposes and carry out the terms of this Agreement.
* * * * * *
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
GS MORTGAGE SECURITIES CORPORATION II
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx
Title: CFO
GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC.
By: /s/ Xxxxxx Xxxx
----------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
2006-GG8 Greenwich Mortgage Loan Schedule
Control Loan Loan
Number Footnotes Number Group Property Name Address
------- --------- ------- ------- --------------------------------------- --------------------------------------------
2 2 06-0316 Group 1 000 Xxxxx Xxxxxxxxx Xxxxx 222 S Riverside and 444 W Xxxxxxx
3 06-0574 Group 1 Pointe South Mountain Resort 0000 Xxxxx Xxxxxx Xxxxxxx
4 06-0690 Group 1 0000 Xxxxxxxx 0000 Xxxxxxxx
6 06-0345 Group 1 CA Headquarters One Computer Associates Plaza
8 06-0689 Group 1 0000 Xxxxxxxx 0000 Xxxxxxxx
9 06-0568 Group 1 CityWest 0000 XxxxXxxx Xxxxxxxxx
11 06-0842 Group 1 ECM Theater Portfolio
11.01 06-0842 Group 1 AMC Theater - Xxxxxxx, XX 00000 Civic Center Drive
11.02 06-0842 Group 1 AMC Entertainment, Inc. - Morrow, GA 0000 Xx. Xxxx Xxxxxx
11.03 06-0842 Group 1 Regal Cinemas, Inc. - Live Oak, TX 7901 Xxx Xxxxxx Road
11.04 06-0842 Group 1 Regal Cinemas, Inc. - Austell, GA 0000 Xxxx-Xxxx Xxxxxxxxx Xxxx
11.05 06-0842 Group 1 Consolidated Theaters - Roanoke, VA 0000 Xxxxxx Xxxx Xxxxxxxxx Xxxxxxxxx
11.06 06-0842 Group 1 Regal Cinemas, Inc. - Beavercreek, OH 2651 Fairfield Commons
11.07 06-0842 Group 1 Regal Cinemas, Inc. - Chula Vista, CA 1025 Tierra Deal Ray
11.08 06-0842 Group 0 Xxxxx Xxxxxxx, Xxx. - Xxxxxxxxx, XX 000 Xxxxxxxxxxx Xxxxx
11.09 06-0842 Group 1 Cinemark USA, Inc. - Lubbock, TX 2535 00xx Xxxxxx
12 06-0383 Group 1 Columbia Business Center
12.01 06-0383 Group 1 Columbia Business Center Fee 0000 XX Xxxxxxxx Xxx
12.02 06-0383 Group 1 Columbia Business Center Leasehold 0000 XX Xxxxxxxx Xxx
13 06-0623 Group 1 Ariel Preferred Retail Portfolio
13.01 06-0623 Group 1 Tulare Outlet Center 0000 Xxxxxxxxxx Xxxxxx
13.02 06-0623 Group 0 Xxxxxxxx Xxxxxx Xxxxxx 0000 Xxxxx Xxxxxx Drive
13.03 06-0623 Group 1 Medford Outlet Center 0000 Xxxx Xxxxxxxx Xxxx
13.04 06-0623 Group 0 Xxxxxxxxx Xxxxxx Xxxxxx 0000 Xxxxxxxxx Outlet Center
13.05 06-0623 Group 1 Darien Outlet Center One Magnolia Bluff Way
13.06 06-0623 Group 1 Traverse City Outlet Center 0000 Xxxxxxxxxxx Xxxxxx
14 06-0759 Group 1 Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx 000 Xxxxx Xxxxxxxxxxxx Mall West
15 06-0552 Group 1 Pinnacle II 0000 Xxxx Xxxxx Xxxxxx
16 06-0635 Group 1 Gallery at Cocowalk 0000 Xxxxx Xxxxxx
18 06-0719 Group 0 Xxxxxxx Xxxxx 000 Xxxx Xxxxxx Xxxx
19 06-0169 Group 1 The Plaza in Xxxxxxx 190 Carondelet Plaza
20 06-0476 Group 1 Rubloff Retail Portfolio
20.01 06-0476 Group 1 Xxxxxxxxxx Mall 0000 Xxxx 00xx Xxxxxx
20.02 06-0476 Group 0 Xxxxxxxx Xxxx 0000 Xxxxx Xxx Xxxxxxxxx
20.03 06-0476 Group 0 Xxxxxxxx Xxxx XXX xx 00xx Xxxxxx and Xxxxxx Road
20.04 06-0476 Group 0 Xxxxxxxxxxx Xxxx Xxxxxxxxx Quadrant of 12th Ave West
& US Highway 53
21 06-0866 Group 1 Legacy Tech Center 0000-0000 Xxxx Xxxxxx
22 06-0732 Group 0 Xxxxx Xxxxx 000 0000 Xxxxxxxxx Xxxx Xxxxxxxxx
23 06-0803 Group 0 Xxxxxxx Xxxxxx XX 0000 Xxxxxxx Xxxxxx Xxxxx
24 05-0602 Group 1 Media Studios North 0000 Xxxx Xxxxxx Xxxxxx
26 06-0617 Group 0 Xxxxxxxx Xxxxxxxx 0000 Xxxxx Xxxxxxxx Xxxxxx
27 06-0467 Group 1 Penn Station Shopping Center 0000 Xxxxxx Xxxx Xxxx
28 06-0429 Group 1 Hitachi Plaza 0000 Xxxxxx Xxxxx Xxxxxxx
29 06-0525 Group 0 Xxxxxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxxxxxx
30 06-0783 Group 1 One Bowdoin Square One Bowdoin Square
32 06-0477 Group 0 Xxxxxxxxx Xxxxxx XXX xx Xxxxx Xxxxxxx Xxxx and Xxxxxxx Drive
33 06-0697 Group 1 00 Xxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
34 06-0469 Group 0 Xxxxxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxxx 000
00 06-0543 Group 0 Xxxxxxxx Xxxxxxxxxx 0000 Xxxx Xxxxxxxx Xxxx
42 06-0508 Group 1 Holiday Inn - Albany 000 Xxxx Xxxx
43 06-0478 Group 0 Xxxxxxx Xxxx Xxxxx Xxxxxx Xxxx & Xxxx Xxxx Xxxx
00 00-0000 Group 0 Xxxxxxx Xxxxx 0000-0000 Xxxxx Xxxxxxx Xxxx
45 06-0785 Group 1 Xxxxxxx Works 0000 Xxxxxxx Xxxxx
50 06-0548 Group 0 Xxxxxxxxxxxx Xxxxxx 0000-0000 Xxxxxxxxxxxx Xxxxxxxxx
52 06-0296 Group 1 The Xxxxx Building 000 Xxxxxxx Xxxxxx
53 06-0735 Group 0 Xxxxxx Xxxx'x 000 Xxxxxx Xxxx
56 06-0627 Group 1 0000 Xxxxxxx Xxxxx 0000 Xxxxxxx Xxxxx
58 06-0575 Group 0 Xxxxxxxxxx Xxxxx - Xxxx 000 Xxxx 0xx Xxxxxx
59 06-0594 Group 1 Royal Appliance 0000 Xxxxxxx Xxxx
60 06-0736 Group 1 Amadeus Center 0000 XX 00xx Xxxxxx
61 06-0393 Group 1 Carolina First 0000 Xxxx Xxxxxx
62 06-0488 Group 0 Xxxxxxxx Xxxxxxx 0000 & 0000-0000 Xxxxxxxx Xxxxxxxxx
63 06-0571 Group 0 Xxxxxxxx Xxxxx I and II 2600 & 0000 XxXxxxxxx Xxxxx
64 06-0806 Group 1 Xxxxx at Brokenland & Rivers Center III 9700 Patuxent Xxxxx Drive & 10270,
10280 & 00000 Xxx Xxxxxxxx Xxxx
65 06-0479 Group 0 Xxxxxxxx Xxxxxxxx XXX xx Xxxx Xxxxx Xxxxxx and Mill Road
67 06-0761 Group 2 Glens at Rolling Ridge 3998 Xxxxxx Xxx Xxxx
68 06-0475 Group 1 Rubloff Center 4949 and 0000 Xxxxxxxx Xxxxxx
69 06-0298 Group 1 Xxxx'x Xxxxx Commons US Highway 401 and Ten-Ten Road
71 06-0380 Group 1 Oviedo Town Center 000 X. Xxxxxxxx Xxxxxxx Xxxx
73 05-0209 Group 0 Xxxxx Xxxxxx Xxx 000 Xxxx Xxxxx Xxxxxx
74 06-0628 Group 0 Xxxxx Xxxxxxxx & Xxxxx 0000 XX Xxxx 410 and 0000 Xxxxxx Xxxxxx Xxxx
79 06-0557 Group 0 Xxxx Xxxxxxxxxxx Xxxxx 0000 Xxxxx Xxxx Xxxxxx
82 06-0428 Group 1 SoCal Self Storage - Pasadena 0000 X. Xxxxxxxx Xxxxxxxxx
83 06-0447 Group 1 000 Xxxx Xxx Xxxxx 000 Xxxx Xxxxxx Xxxxx
85 06-0396 Group 0 Xxx Xxxxx Xxxxx 000-000 Xxx Xxxxx Xxxxx
00-x 3 06-0802 Group 1 00000 Xxxxxxxxxx Xxxxxx 00000 Xxxxxxxxxx Xxxxxx
86-b 3 06-0802 Group 1 00000 Xxxxxxxxxx Xxxxxx
89 06-0814 Group 0 Xxxxx Xxxxxx Xxxxxxxxxx 0-0, 00-00, and 00 Xxxx Xxxxx Xxxxxx
93 06-0582 Group 1 Comfort Suites at World Golf Village 000 Xxxxxxxx Xxxx Xxxxx
94 06-0442 Group 1 SoHo 25 Retail Condominium 00 Xxxxxxx Xxxxxx
97 06-0626 Group 1 Extra Space Storage 0000 X. Xxxxxxxx Xxxxxx
98 06-0717 Group 1 Quail Lakes Executive Office Park 0000 Xxxx Xxxxx Xxxx
101 06-0592 Group 1 Carolina Corporate Center 0000 Xxxxxxxx Xxxxxx
103 06-0471 Group 1 Xxxx Xxxx Business Center 0000 Xxxx Xxxx Xxxxx
105 05-0456 Group 1 SoCal Self Storage - RSM 30231 Xxxxx Road
107 06-0808 Group 1 Xxxxxxx Xxxxxxxx Furniture II 000 Xxxxxxx Xxxx
112 06-0756 Group 0 Xxxxxxxxxx Xxxx Xxxxxxxxxx 0000 Xxxx Xxxxxx
118 06-0355 Group 1 Vacaville Ford 000 Xxxxxxx Xxxx
119 06-0539 Group 1 StorQuest Playa Vista 00000 Xxxx Xxxxxxxxx Xxxxxxxxx
121 06-0591 Group 1 00 Xxxxx Xxxx Xxxxxx 50 Santa Xxxx Avenue
125 06-0195 Group 1 AIM Self Storage 0000 Xxxxx Xxxx Xxxxxx
127 06-0670 Group 1 6630 McCarran Building C 0000 Xxxxx XxXxxxxx Xxxxxxxxx, Xxxxxxxx X
000 00-0000 Group 1 0000 Xx Xxxx Xxxxxxxxx 0000 X Xx Xxxx Xxxxxxxxx
130 06-0419 Group 2 Xxxxxxx Student Housing 00 Xxxxx Xxxxxx & 00 Xxxxxxxx Xxxxx
134 06-0613 Group 1 0000 Xxxxxxxx Xxxxxx 0000 X. Xxxxxxxx Xxxxxx
137 06-0734 Group 0 Xxxxx Xxxxx Xxxxxxxxxxxx Xxxxxxxx 00000 Xxxx Xxxxx Xxxxx
139 05-1380 Group 1 00 Xxxxxxxxx Xxxxx 12 Havemeyer Place
140 06-0451 Group 1 Holiday Inn Express Kannapolis 0000 Xxxxxx Xxxxx
141 06-0491 Group 0 Xxxxxx Xxxxx 0000-0000 Xxxx Xxxxxx Xxxx
142 06-0249 Group 0 Xxxxxxx Xxxxx 00000 Xxxxxxxxxx Xxxxxxx
148 06-0741 Group 2 Pineridge Apartments 0000 Xxxxxxxxx Xxxxx XX
000 00-0000 Group 0 Xxxxx Xxxxx Xxxxx 0000 XX 36 Street
153 06-0666 Group 1 Lexington Quail 1301, 1311 and 0000 X. XxXxxxxx Xxxxxxxxx
154 06-0148 Group 0 Xxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxx
155 06-0805 Group 1 Xxxxxxx Xxxxxxxx Furniture 685 Route 17
158 06-0739 Group 2 Limewood Apartments 000 Xxxxxxxx Xxxxx
160 06-0588 Group 1 Turnberry Industrial 27215 West Turnberry Lane, Building 28
Monthly Gross Remaining
Control Cut-Off Date Debt Interest Term To
Number City State Zip Code Balance ($) Service ($) Rate (%) Maturity (Mos.)
------- ---------------------- -------------- -------- ------------ ------------ -------- ---------------
2 Xxxxxxx Xxxxxxxx 00000 202,000,000 1,236,007.87 6.19100% 116
3 Xxxxxxx Xxxxxxx 00000 190,000,000 1,223,508.59 6.68000% 000
0 Xxx Xxxx Xxx Xxxx 00000 183,000,000 910,854.97 5.89100% 000
0 Xxxxxxxx Xxx Xxxx 00000 165,643,200 974,074.04 6.96000% 000
0 Xxx Xxxx Xxx Xxxx 00000 125,000,000 656,598.67 6.21700% 000
0 Xxxxxxx Xxxxx 00000 121,000,000 737,557.81 6.15500% 117
11 112,050,000 616,219.23 6.50900% 60
11.01 Xxxxxxx Xxxxxxxxxx 00000
11.02 Xxxxxx Xxxxxxx 00000
11.03 Live Xxx Xxxxx 00000
11.04 Xxxxxxx Xxxxxxx 00000
11.05 Xxxxxxx Xxxxxxxx 00000
11.06 Xxxxxxxxxxx Xxxx 00000
11.07 Xxxxx Xxxxx Xxxxxxxxxx 00000
11.08 Xxxxxxxxx Xxx Xxxx 00000
11.09 Xxxxxxx Xxxxx 00000
12 106,000,000 621,905.93 6.94400% 58
12.01 Xxxxxxxxx Xxxxxxxxxx 00000
12.02 Xxxxxxxxx Xxxxxxxxxx 00000
13 94,000,000 639,079.37 7.21600% 58
13.01 Xxxxxx Xxxxxxxxxx 00000
13.02 Xxxxxxxx Xxxxxx 00000
13.03 Xxxxxxx Xxxxxxxxx 00000
13.04 Xxxxxxxxx Xxxxxxxx 00000
13.05 Xxxxxx Xxxxxxx 00000
13.06 Xxxxxxxx Xxxx Xxxxxxxx 00000
14 Xxxxxxxxxxxx Xxxxxxxxxxxx 00000 92,000,000 481,546.53 6.19500% 59
15 Xxxxxxx Xxxxxxxxxx 00000 85,600,000 530,566.30 6.31300% 119
16 Xxxxxxx Xxxxx Xxxxxxx 00000 79,425,000 494,158.82 6.34900% 000
00 Xxxxxxxx Xxxxxx 00000 65,000,000 402,162.85 6.29600% 119
19 Xxxxxxx Xxxxxxxx 00000 62,200,000 310,011.57 5.89900% 120
20 57,458,000 339,885.77 5.87500% 120
20.01 Xxxxxxxxxx Xxxxxx 00000
20.02 Xxxxxxxx Xxxxx Xxxxxx 00000
20.03 Xxxxxxxx Xxxxxxxx 00000
20.04 Xxxxxxxx Xxxxxxxxx 00000
00 Xxx Xxxx Xxxxxxxxxx 00000 52,875,000 263,579.43 5.90000% 84
22 Xxxxxxx Xxxxxxx 00000 50,500,000 271,666.04 6.36700% 60
23 Xxxxxxxx Xxxxx Xxxxxxxx 00000 50,000,000 302,674.50 6.09000% 120
24 Xxxxxxx Xxxxxxxxxx 00000 47,000,000 263,333.00 5.38000% 120
26 Xxxxxxx Xxxxxxxx 00000 39,500,000 235,987.80 6.40200% 000
00 Xxxxxxxx Xxxxxxx Xxxxxxxx 00000 39,296,000 209,368.54 6.30600% 59
28 Xxxxxxxx Xxxxxxxxxx 00000 38,000,000 234,887.74 6.28700% 000
00 Xxxxxxxx Xxxx 00000 33,600,000 171,752.78 6.05000% 117
30 Xxxxxx Xxxxxxxxxxxxx 00000 31,815,000 167,977.68 6.24900% 120
32 Xxxxxxxxx Xxxxxxxx 00000 28,600,000 141,965.57 5.87500% 120
33 Xxxxxx Xxxxxxxxxxxxx 00000 28,400,000 150,810.90 6.28500% 000
00 Xxxxxx Xxxxx 00000 26,850,000 147,775.07 6.51400% 00
00 Xxx Xxxxx Xxxxxx 00000 22,000,000 119,018.73 6.40300% 000
00 Xxxxxx Xxx Xxxx 00000 21,500,000 156,263.16 7.90000% 59
43 Xxxxxxxxx Xxxx Xxxxxxxx 00000 20,750,000 102,999.49 5.87500% 120
44 Xxxxxxxxxx Xxxxxxxxxxxx 00000 19,750,000 121,077.99 6.20900% 119
45 Xxx Xxxxxxx Xxxxxxxxxxx 00000 19,550,000 101,188.90 6.12600% 120
50 Xxxxxx Xxxxxxx 00000 18,200,000 112,771.71 6.31000% 120
52 Xxxxxxxxxx Xxxxxxxxxxxx 00000 18,000,000 101,698.12 6.68700% 00
00 Xxxxxxx Xxx Xxxx 00000 17,500,000 86,645.25 5.86000% 000
00 Xxxxxxx Xxxxx 00000 17,060,000 106,577.30 6.38800% 000
00 Xxxx Xxxxxx 00000 17,000,000 107,563.39 6.51000% 117
59 Xxxxxxxxxx Xxxxxxx Xxxx 00000 17,000,000 103,348.77 6.13000% 119
60 Xxxxx Xxxxxxx 00000 16,500,000 90,755.73 6.51000% 000
00 Xxxxxxxx Xxxxx Xxxxxxxx 00000 16,400,000 99,595.11 6.12000% 117
62 Xxxxxxx Xxxxx Xxxxxxxxxx 00000 15,500,000 80,658.66 6.15900% 117
63 Xxxxxxxxxx Xxxxxxx 00000 15,200,000 93,490.18 6.24000% 117
64 Xxxxxxxx Xxxxxxxx 00000 14,650,353 98,394.82 6.19000% 104
65 Xxxxxxxx Xxxxxxxx 00000 14,300,000 70,982.78 5.87500% 120
67 Xxxxxx Xxxxxxxx 00000 13,500,000 83,315.08 6.27200% 120
68 Xxxxxxxx Xxxxxxxx 00000 13,392,000 79,218.74 5.87500% 000
00 Xxxxxx Xxxxxx Xxxxx Xxxxxxxx 00000 13,300,000 83,105.22 6.39000% 120
71 Xxxxxx Xxxxxxx 00000 12,565,000 77,855.85 6.31000% 119
73 Xxxxxxxx Xxxxxxx 00000 12,473,280 84,220.10 7.14700% 57
74 Xxx Xxxxxxx Xxxxx 00000 12,200,000 74,634.15 6.18900% 118
00 Xxxx Xxxxxxxxxxx Xxxxxxxxxxxxx 00000 11,000,000 67,435.84 6.20900% 119
82 Xxxxxxxx Xxxxxxxxxx 00000 10,500,000 67,295.15 6.63400% 000
00 Xxx Xxxx Xxx Xxxx 00000 10,500,000 54,471.18 6.14000% 118
85 Xxxxxx Xxxxxxxxxx 00000 9,650,000 58,419.92 6.09060% 116
86-a Xxxxxx Xxxxxxx 00000 6,495,429 52,613.57 7.50000% 33
86-b 2,941,090 25,795.65 8.58000% 33
89 Xxxxxxxx Xxxxxxxx 00000 9,200,000 56,347.15 6.20000% 000
00 Xx. Xxxxxxxxx Xxxxxxx 00000 8,592,488 55,357.07 6.67600% 000
00 Xxx Xxxx Xxx Xxxx 00000 8,500,000 54,623.29 6.66000% 118
97 Xxx Xxxxxxx Xxxxxxxxxx 00000 8,160,000 53,469.15 6.85000% 119
98 Xxxxxxxx Xxxxxxxxxx 00000 8,125,000 42,459.24 6.18500% 118
101 Xxxxxxx Xxxxx Xxxxxxxx 00000 7,620,000 46,260.51 6.11700% 000
000 Xxxx Xxxx Xxxxxxx 00000 7,533,665 49,472.07 6.85000% 57
000 Xxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxxx 00000 7,250,000 46,465.70 6.63400% 000
000 Xxxxxxx Xxx Xxxx 00000 7,126,668 61,964.00 7.94000% 37
000 Xxx Xxxxxx Xxxxx 00000 6,600,000 40,132.18 6.13200% 120
118 Xxxxxxxxx Xxxxxxxxxx 00000 6,500,000 44,033.26 7.18000% 000
000 Xxx Xxxxxxx Xxxxxxxxxx 00000 6,000,000 37,091.45 6.28800% 000
000 Xxxxx Xxxx Xxxxxxxxxx 00000 6,000,000 34,659.79 6.83700% 000
000 Xxxxx Xxxxxxxxxx 00000 5,600,000 35,322.18 6.48000% 000
000 Xxxx Xxxxxx 00000 5,400,000 32,375.73 6.00000% 000
000 Xxx Xxxx Xxxxxxxxxx 00000 5,400,000 27,238.12 5.97000% 000
000 Xxxxxxx Xxx Xxxx 00000 5,400,000 33,583.09 6.34500% 000
000 Xxxxxxx Xxxxxxxx 00000 5,000,000 31,475.27 6.46100% 117
000 Xxxxxx Xxxx Xxxxxxxx 00000 4,774,000 28,930.19 6.10000% 119
139 Xxxxxxxxx Xxxxxxxxxxx 00000 4,500,000 27,883.12 6.31000% 50
000 Xxxxxxxxxx Xxxxx Xxxxxxxx 00000 4,489,044 30,779.16 6.64000% 000
000 Xxx Xxxxx Xxxxxx 00000 4,400,000 27,863.10 6.51800% 118
142 Xxxxxxxxxx Xxxxxxxx 00000 4,392,798 27,770.49 6.48600% 000
000 Xxxxxx Xxxxxxxx 00000 3,900,000 22,863.50 5.79200% 120
149 Xxxxx Xxxxxxx 00000 3,720,000 22,817.65 6.21400% 000
000 Xxxxxx Xxxxxx 00000 2,525,000 15,138.65 6.00000% 000
000 Xxxxx Xxxxxxxx 00000 2,441,807 21,108.48 6.32600% 119
155 Xxxxxxx Xxx Xxxxxx 00000 2,400,036 21,045.00 8.09000% 38
158 Xxxxxx Xxxxx Xxxxxxxx 00000 2,000,000 11,724.87 5.79200% 000
000 Xxxxxxxx Xxxxxxxxxx 00000 1,000,000 5,289.97 6.26100% 119
Remaining Interest
Control Amortization Term Accrual Subservicing Servicing Administrative Ground Mortgage
Number Maturity Date (Mos.) Method Fee Rate (%) Fee Rate (%) Fee Rate (%) Lease Y/N Loan Seller
------- ------------- ----------------- ---------- ------------ ------------ -------------- --------- -----------
2 6/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
3 8/6/2016 360 Actual/360 0.02000% 0.02049% Yes GCFP
4 9/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
6 8/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
8 9/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
9 7/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
11 10/6/2011 0 Actual/360 0.02000% 0.02049% GCFP
11.01 No
11.02 No
11.03 No
11.04 No
11.05 No
11.06 No
11.07 No
11.08 No
11.09 No
12 8/6/2011 0 Actual/360 0.01000% 0.02000% 0.03049% GCFP
12.01 No
12.02 Yes
13 8/6/2011 360 Actual/360 0.02000% 0.02049% GCFP
13.01 No
13.02 No
13.03 No
13.04 No
13.05 Yes
13.06 No
14 9/6/2011 0 Actual/360 0.02000% 0.02049% No GCFP
15 9/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
16 9/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
18 9/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
19 10/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
20 10/6/2016 360 Actual/360 0.02000% 0.02049% GCFP
20.01 No
20.02 No
20.03 No
20.04 No
21 10/6/2013 0 Actual/360 0.02000% 0.02049% No GCFP
22 10/6/2011 0 Actual/360 0.02000% 0.02049% No GCFP
23 10/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
24 10/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
26 10/6/2016 420 Actual/360 0.02000% 0.02049% No GCFP
27 9/6/2011 0 Actual/360 0.02000% 0.02049% No GCFP
28 7/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
29 7/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
30 11/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
32 10/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
33 10/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
34 7/6/2011 0 Actual/360 0.02000% 0.02049% No GCFP
41 8/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
42 9/6/2011 360 Actual/360 0.02000% 0.02049% No GCFP
43 10/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
44 9/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
45 10/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
50 10/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
52 8/6/2011 0 Actual/360 0.02000% 0.02049% No GCFP
53 9/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
56 9/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
58 7/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
59 9/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
60 9/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
61 7/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
62 7/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
63 7/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
64 6/1/2015 284 30/360 0.02000% 0.02049% No GCFP
65 10/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
67 10/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
68 10/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
69 10/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
71 9/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
73 7/6/2011 360 Actual/360 0.02000% 0.02049% Yes GCFP
74 8/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
79 9/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
82 7/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
83 8/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
85 6/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
86-a 7/1/2009 237 30/360 0.02000% 0.02049% No GCFP
86-b 7/1/2009 230 30/360 0.02000% 0.02049% No GCFP
89 10/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
93 9/6/2016 359 Actual/360 0.05000% 0.02000% 0.07049% No GCFP
94 8/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
97 9/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
98 8/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
101 8/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
103 7/6/2011 357 Actual/360 0.02000% 0.02049% No GCFP
105 7/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
107 11/1/2009 217 30/360 0.02000% 0.02049% No GCFP
112 10/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
118 10/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
119 8/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
121 8/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
125 6/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
127 9/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
128 10/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
130 7/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
134 7/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
137 9/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
139 12/6/2010 360 Actual/360 0.02000% 0.02049% No GCFP
140 8/6/2016 298 Actual/360 0.02000% 0.02049% No GCFP
141 8/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
142 8/6/2016 358 Actual/360 0.02000% 0.02049% No GCFP
148 10/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
149 8/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
153 9/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
154 9/6/2016 179 Actual/360 0.02000% 0.02049% Yes GCFP
155 12/1/2009 218 30/360 0.02000% 0.02049% No GCFP
158 10/6/2016 360 Actual/360 0.02000% 0.02049% No GCFP
160 9/6/2016 0 Actual/360 0.02000% 0.02049% No GCFP
Crossed With Companion Loan
Control Other Loans Companion Loan Companion Loan Monthly Companion Loan
Number Prepayment Provision (1) (Crossed Group) Flag Cut-off Balance Payment Interest Rate
------- ------------------------------- --------------- -------------- --------------- -------------- --------------
2 Lockout/28_Defeasance/88_0%/4
3 Lockout/26_Defeasance/90_0%/4
4 Lockout/25_Defeasance/92_0%/3
6 Lockout/26_Defeasance/90_0%/4
8 Lockout/25_Defeasance/92_0%/3
9 Lockout/27_Defeasance/89_0%/4
11 Lockout/24_Defeasance/33_0%/3
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
12 Lockout/26_> YM or 1%/31_0%/3
12.01
12.02
13 Lockout/26_Defeasance/30_0%/4
13.01
13.02
13.03
13.04
13.05
13.06
14 Lockout/25_Defeasance/31_0%/4
15 Lockout/25_Defeasance/91_0%/4
16 Lockout/25_Defeasance/91_0%/4
18 Lockout/25_Defeasance/91_0%/4
19 Lockout/24_Defeasance/93_0%/3
20 Lockout/24_Defeasance/92_0%/4
20.01
20.02
20.03
20.04
21 Lockout/24_Defeasance/56_0%/4
22 Lockout/24_Defeasance/32_0%/4
23 Lockout/24_Defeasance/92_0%/4
24 Lockout/24_Defeasance/93_0%/3
26 Lockout/24_Defeasance/92_0%/4
27 Lockout/25_Defeasance/32_0%/3
28 Lockout/27_Defeasance/89_0%/4
29 Lockout/27_Defeasance/89_0%/4
30 Lockout/23_Defeasance/94_0%/3
32 Lockout/24_Defeasance/92_0%/4
33 Lockout/24_Defeasance/93_0%/3
34 Lockout/27_Defeasance/29_0%/4
41 Lockout/26_Defeasance/90_0%/4
42 Lockout/25_Defeasance/31_0%/4
43 Lockout/24_Defeasance/92_0%/4
44 Lockout/25_Defeasance/91_0%/4
45 Lockout/24_Defeasance/92_0%/4
50 Lockout/24_Defeasance/93_0%/3
52 Lockout/26_Defeasance/30_0%/4
53 Lockout/24_> YM or 1%/92_0%/4
56 Lockout/25_Defeasance/91_0%/4
58 Lockout/27_Defeasance/90_0%/3
59 Lockout/25_Defeasance/91_0%/4
60 Lockout/25_Defeasance/91_0%/4
61 Lockout/27_Defeasance/89_0%/4
62 Lockout/39_Defeasance/78_0%/3
63 Lockout/27_Defeasance/89_0%/4
64 Lockout/36_> YM or 1%/80_0%/4
65 Lockout/24_Defeasance/92_0%/4
67 Lockout/24_Defeasance/92_0%/4
68 Lockout/24_Defeasance/92_0%/4
69 Lockout/24_Defeasance/92_0%/4
71 Lockout/25_Defeasance/91_0%/4
73 Lockout/24_Defeasance/26_0%/7
74 Lockout/26_Defeasance/91_0%/3
79 Lockout/25_Defeasance/91_0%/4
82 Lockout/27_Defeasance/90_0%/3
83 Lockout/26_Defeasance/90_0%/4
85 Lockout/28_Defeasance/89_0%/3
86-a Lockout/60_> YM or 1%/59_0%/1
86-b Lockout/42_> YM or 1%/59_0%/1
89 Lockout/24_Defeasance/92_0%/4
93 Lockout/25_Defeasance/91_0%/4
94 Lockout/26_Defeasance/90_0%/4
97 Lockout/25_Defeasance/92_0%/3
98 Lockout/26_Defeasance/90_0%/4
101 Lockout/26_Defeasance/91_0%/3
103 Lockout/27_Defeasance/29_0%/4
105 Lockout/27_Defeasance/90_0%/3
107 Lockout/60_> YM or 1%/56_0%/4
112 Lockout/24_Defeasance/92_0%/4
118 Lockout/24_Defeasance/92_0%/4
119 Lockout/26_Defeasance/89_0%/5
121 Lockout/26_Defeasance/91_0%/3
125 Lockout/28_Defeasance/88_0%/4
127 Lockout/59_> YM or 1%/57_0%/4
128 Lockout/24_Defeasance/92_0%/4
130 Lockout/27_Defeasance/89_0%/4
134 Lockout/0_> YM or 8%/12_> YM or
6%/12_> YM or 4%/24_> YM or
2%/24_> YM or 1%/45_0%/3
137 Lockout/25_Defeasance/91_0%/4
139 Lockout/34_Defeasance/22_0%/4
140 Lockout/26_Defeasance/90_0%/4
141 Lockout/26_Defeasance/91_0%/3
142 Lockout/26_Defeasance/90_0%/4
148 Lockout/24_Defeasance/92_0%/4
149 Lockout/26_Defeasance/91_0%/3
153 Lockout/60_> YM or 1%/56_0%/4
154 Lockout/25_Defeasance/91_0%/4
155 Lockout/60_> YM or 1%/56_0%/4
158 Lockout/24_Defeasance/92_0%/4
160 Lockout/37_Defeasance/80_0%/3
Companion Loan Companion Loan
Remaining Remaining Companion Loan Subordinate Subordinate Subordinate Subordinate
Control Term To Amortization Term Servicing Companion Loan Companion Loan Companion Loan Companion Loan
Number Maturity (Mos.) (Mos.) Fees Flag Cut-off Balance Monthly Payment Interest Rate
------- --------------- ----------------- -------------- -------------- --------------- --------------- --------------
2
3
4
6 Yes 13,156,800.00 77,369.29 6.96000%
8
9
11 Yes 12,450,000.00 68,468.80 6.50900%
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
12
12.01
12.02
13
13.01
13.02
13.03
13.04
13.05
13.06
14
15 Yes 49,714,125.81 308,138.32 6.31300%
16
18
19
20
20.01
20.02
20.03
20.04
21
22
23
24
26
27
28
29 Yes 1,400,000.00 16,027.89 13.55000%
30
32
33
34
41
42
43
44
45
50
52
53
56
58
59
60
61
62
63
64
65
67
68
69
71
73
74
79
82
83
85
86-a
86-b
89
93
94
97
98
101
103
105
107
112
118
119
121
125
127
128
130
134
137
139
140
141
142
148
149
153
154
155
158
160
Subordinate Subordinate Companion Subordinate
Companion Loan Loan Remaining Companion Loan
Control Remaining Term To Amortization Term Servicing
Number Maturity (Mos.) (Mos.) Fees
------- ----------------- --------------------- --------------
2
3
4
6 118 0 0.0100%
8
9
11 60 0 0.0100%
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
12
12.01
12.02
13
13.01
13.02
13.03
13.04
13.05
13.06
14
15 119 360 0.0100%
16
18
19
20
20.01
20.02
20.03
20.04
21
22
23
24
26
27
28
29 117 0 0.0100%
30
32
33
34
41
42
43
44
45
50
52
53
56
58
59
60
61
62
63
64
65
67
68
69
71
73
74
79
82
83
85
86-a
86-b
89
93
94
97
98
101
103
105
107
112
118
119
121
125
127
128
130
134
137
139
140
141
142
148
149
153
154
155
158
160
1 The Open Period is inclusive of the Maturity Date.
2 Interest rate equals 5.750% through June 5, 2008 and 6.191% thereafter.
3 The 00000 Xxxxxxxxxx Xxxxxx loan is evidenced by two separate pari
passu notes, each having the economic terms set forth in this Annex.
4 Upon securitization of the subordinate companion loan, the servicing
fee shall be 5bps.
EXHIBIT B
---------
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
(1) Mortgage Loan Schedule. The information pertaining to each Mortgage Loan
set forth in the Mortgage Loan Schedule is true and accurate in all
material respects as of the Cut-off Date and contains all information
required by the Pooling and Servicing Agreement to be contained therein.
(2) Legal Compliance - Origination. The origination practices of the Seller
have been, in all material respects, legal and as of the date of its
origination, 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; provided that such
representation and warranty does not address or otherwise cover any
matters with respect to federal, state or local law otherwise covered in
this Exhibit B.
(3) Good Title; Conveyance. Immediately prior to the sale, transfer and
assignment to the Purchaser, the Seller had good and marketable title to,
and was the sole owner of, each Mortgage Loan, and the Seller is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges or security interests of any nature encumbering such
Mortgage Loan, other than the rights of the holder of a related Companion
Loan pursuant to a Co-Lender Agreement or a pooling and servicing
agreement. Upon consummation of the transactions contemplated by the
Mortgage Loan Purchase Agreement, the Seller will have validly and
effectively conveyed to the Purchaser all legal and beneficial interest in
and to such Mortgage Loan free and clear of any pledge, lien or security
interest, other than the rights of a holder of a Companion Loan pursuant
to a Co-Lender Agreement or pooling and servicing agreement.
(4) Future Advances. The proceeds of such Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or
reserve accounts pending the satisfaction of certain conditions relating
to leasing, repairs or other matters with respect to the Mortgaged
Property), and there is no requirement for future advances thereunder by
the mortgagee.
(5) Legal, Valid and Binding Obligation; Assignment of Leases. Each related
Mortgage Note, Mortgage, Assignment of Leases (if contained in a document
separate from the Mortgage) and other agreement that evidences or secures
such Mortgage Loan and was executed in connection with such Mortgage Loan
by or on behalf of the related Mortgagor is the legal, valid and binding
obligation of the related Mortgagor (subject to any non-recourse
provisions therein and any state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except
(i) that certain provisions contained in such Mortgage Loan documents are
or may be unenforceable in whole or in part under applicable state or
federal laws, but neither the application of any such laws to any such
provision nor the inclusion of any such provisions renders any of the
Mortgage Loan documents invalid as a whole and such Mortgage Loan
documents taken as a whole are enforceable to the extent necessary and
customary for the practical realization of the rights and benefits
afforded thereby and (ii) as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). The Assignment of Leases (as set forth in the Mortgage
or in a document separate from the related Mortgage and related to and
delivered in connection with each Mortgage Loan) establishes and creates a
valid and enforceable first priority assignment of, or a valid first
priority security interest in, the related Mortgagor's right to receive
payments due under all leases, subleases, licenses or other agreements
pursuant to which any Person is entitled to occupy, use or possess all or
any portion of the Mortgaged Property, subject to any license granted to
the related Mortgagor to exercise certain rights and to perform certain
obligations of the lessor under such leases, and subject to the
limitations set forth above. The related Mortgage Note, Mortgage and
Assignment of Leases (if contained in a document separate from the
Mortgage) contain no provision limiting the right or ability of the Seller
to assign, transfer and convey the related Mortgage Loan to any other
Person.
(6) No Offset or Defense. Subject to the limitations set forth in paragraph
(5), as of the date of its origination there was, and as of the Cut-off
Date there is, no valid right of offset and no valid defense,
counterclaim, abatement or right to rescission with respect to any of the
related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, except in each case, with respect to the
enforceability of any provisions requiring the payment of default
interest, late fees, additional interest, prepayment premiums or yield
maintenance charges.
(7) Assignment of Mortgage and Assignment of Assignment of Leases. Subject to
the limitations set forth in paragraph (5), each assignment of Mortgage
and assignment of Assignment of Leases from the Seller to the Trustee (or
in the case of a Non-Serviced Trust Loan, the assignment in favor of the
current holder of the mortgage) constitutes the legal, valid and binding
assignment from the Seller. Any assignment of a Mortgage and assignment of
Assignment of Leases are recorded (or have been submitted for recording)
in the applicable jurisdiction.
(8) Mortgage Lien. Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property (and/or Ground Lease, if applicable),
subject to the limitations set forth in paragraph (5) and the following
title exceptions (each such title exception, a "Title Exception", and
collectively, the "Title Exceptions"): (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments
not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, (c) the
exceptions (general and specific) and exclusions set forth in the
applicable Title Policy (described in paragraph (12) below) or appearing
of record, (d) other matters to which like properties are commonly
subject, (e) the right of tenants (whether under ground leases, space
leases or operating leases) pertaining to the related Mortgaged Property
and condominium declarations, (f) if such Mortgage Loan is
cross-collateralized and cross-defaulted with any other Mortgage Loan, the
lien of the Mortgage for such other Mortgage Loan and (g) if such Mortgage
Loan is part of a Whole Loan, the rights of the holder of the related
Companion Loan pursuant to a Co-Lender Agreement or pooling and servicing
agreement, none of which exceptions described in clauses (a) - (g) above,
individually or in the aggregate, materially and adversely interferes with
(1) the current use of the Mortgaged Property, (2) the security intended
to be provided by such Mortgage, (3) the Mortgagor's ability to pay its
obligations under the Mortgage Loan when they become due or (4) the value
of the Mortgaged Property. The Mortgaged Property is free and clear of any
mechanics' or other similar liens or claims which are prior to or equal
with the lien of the related Mortgage, except those which are insured
against by a lender's title insurance policy. To the Seller's actual
knowledge no rights are outstanding that under applicable law could give
rise to any such lien that would be prior or equal to the lien of the
related Mortgage, unless such lien is bonded over, escrowed for or covered
by insurance.
(9) UCC Filings. If the related Mortgaged Property is operated as a
hospitality property, the Seller has filed or caused to be filed and/or
recorded (or, if not filed and/or recorded, have been submitted in proper
form for filing and recording), UCC Financing Statements in the
appropriate public filing and/or recording offices necessary at the time
of the origination of the Mortgage Loan to perfect a valid security
interest in all items of personal property reasonably necessary to operate
such Mortgaged Property owned by such Mortgagor and located on the related
Mortgaged Property (other than any personal property subject to a purchase
money security interest or a sale and leaseback financing arrangement as
permitted under the terms of the related Mortgage Loan documents or any
other personal property leases applicable to such personal property), to
the extent perfection may be effected pursuant to applicable law by
recording or filing, as the case may be. Subject to the limitations set
forth in paragraph (5), each related Mortgage (or equivalent document)
creates a valid and enforceable lien and security interest on the items of
personalty described above. No representation is made as to the perfection
of any security interest in rents or other personal property to the extent
that possession or control of such items or actions other than the filing
of UCC Financing Statements are required in order to effect such
perfection.
(10) Taxes and Assessments. All real estate taxes and governmental assessments,
or installments thereof, which could be a lien on the related Mortgaged
Property and that prior to the Cut-off Date have become delinquent in
respect of each related Mortgaged Property have been paid, or an escrow of
funds in an amount sufficient to cover such payments has been established.
For purposes of this representation and warranty, real estate taxes and
governmental assessments and installments thereof shall not be considered
delinquent until the earlier of (a) the date on which interest and/or
penalties would first be payable thereon and (b) the date on which
enforcement action is entitled to be taken by the related taxing
authority.
(11) Condition of Mortgaged Property; No Condemnation. To the Seller's actual
knowledge, based solely upon due diligence customarily performed in
connection with the origination of comparable mortgage loans, as of the
Cut-off Date, (a) each related Mortgaged Property was free and clear of
any material damage (other than deferred maintenance for which escrows
were established at origination) that would affect materially and
adversely the value of such Mortgaged Property as security for the
Mortgage Loan and (b) there was no proceeding pending for the total or
partial condemnation of such Mortgaged Property.
(12) Title Insurance. The lien of each related Mortgage as a first priority
lien in the original principal amount of such Mortgage Loan (or in the
case of a Mortgage Loan secured by multiple Mortgaged Properties an
allocable portion thereof) is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in
the applicable jurisdiction (the "Title Policy"), insuring the originator
of the Mortgage Loan, its successors and assigns, subject only to the
Title Exceptions; such originator or its successors or assigns is the
named insured of such policy; such policy is assignable without consent of
the insurer and will inure to the benefit of the Trustee as mortgagee of
record (or, with respect to a Non-Serviced Trust Loan, the holder of the
Mortgage); such policy, if issued, is in full force and effect and all
premiums thereon have been paid; no claims have been made under such
policy and the Seller has not done anything, by act or omission, and the
Seller has no actual knowledge of any matter, which would impair or
diminish the coverage of such policy. The insurer issuing such policy is
either (x) a nationally-recognized title insurance company or (y)
qualified to do business in the jurisdiction in which the related
Mortgaged Property is located to the extent required. The Title Policy
contains no material exclusion for, or alternatively it insures (unless
such coverage is unavailable in the relevant jurisdiction) (a) access to a
public road or (b) against any loss due to encroachment of any material
portion of the improvements thereon.
(13) Insurance. As of the Mortgage Loan origination date, and to the actual
knowledge of the Seller, as of the Cut-off Date, all insurance coverage
required under the related Mortgage Loan documents was in full force and
effect. Each Mortgage Loan requires insurance in such amounts and covering
such risks as were customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the jurisdiction
in which such Mortgaged Property is located, including requirements for
(a) a fire and extended perils insurance policy, in an amount (subject to
a customary deductible) at least equal to the lesser of (i) the
replacement cost of improvements located on such Mortgaged Property, or
(ii) the initial principal balance of the Mortgage Loan (or in the case of
a Whole Loan, the outstanding principal balance of the Whole Loan), and in
any event, the amount necessary to prevent operation of any co-insurance
provisions, (b) except if such Mortgaged Property is operated as a mobile
home park, business interruption or rental loss insurance, in an amount at
least equal to 12 months of operations of the related Mortgaged Property
(or in the case of a Mortgaged Property without any elevator, 6 months),
(c) comprehensive general liability insurance against claims for personal
and bodily injury, death or property damage occurring on, in or about the
related Mortgaged Property, in an amount customarily required by prudent
institutional lenders and (d) if such Mortgage Loan is secured by a
Mortgaged Property (other than a manufactured housing property) located in
"seismic zones" 3 or 4 in California, Nevada, Idaho, Oregon, Washington or
Arkansas, a seismic assessment by an independent third party provider was
conducted and if the seismic assessment (based on a 450-year lookback with
a 10% probability of exceedance in a 50-year period) revealed a probable
maximum loss equal to 20% or higher, earthquake insurance. To the actual
knowledge of the Seller, as of the Cut-off Date, all premiums due and
payable through the Closing Date have been paid and no notice of
termination or cancellation with respect to any such insurance policy has
been received by the Seller. Except for certain amounts not greater than
amounts which would be considered prudent by an institutional commercial
mortgage lender with respect to a similar Mortgage Loan and which are set
forth in the related Mortgage, the related Mortgage Loan documents require
that any insurance proceeds in respect of a casualty loss, will be applied
either (i) to the repair or restoration of all or part of the related
Mortgaged Property or (ii) the reduction of the outstanding principal
balance of the Mortgage Loan, subject in either case to requirements with
respect to leases at the related Mortgaged Property and to other
exceptions customarily provided for by prudent institutional lenders for
similar loans. The insurance policies each contain a standard mortgagee
clause naming the Seller and its successors and assigns as loss payee or
additional insured, as applicable, and each insurance policy provides that
they are not terminable without 30 days prior written notice to the
mortgagee (or, with respect to non-payment, 10 days prior written notice
to the mortgagee) or such lesser period as prescribed by applicable law.
The loan documents for each Mortgage Loan (a) require that the Mortgagor
maintain insurance as described above or permit the mortgagee to require
that the Mortgagor maintain insurance as described above, and (b) permit
the mortgagee to purchase such insurance at the Mortgagor's expense if the
Mortgagor fails to do so. The insurer with respect to each policy is
qualified to write insurance in the relevant jurisdiction to the extent
required.
(14) No Material Default. Other than payments due but not yet 30 days or more
delinquent, (i) there is no material default, breach, violation or event
of acceleration existing under the related Mortgage or the related
Mortgage Note, and (ii) to the Seller's actual knowledge, there is no
event (other than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace or cure
period, would constitute a material default, breach, violation or event of
acceleration, provided, however, that this representation and warranty
does not address or otherwise cover any default, breach, violation or
event of acceleration (A) that specifically pertains to any matter
otherwise covered in this Exhibit B (including any schedule or exhibit
hereto), or (B) with respect to which: (1) the Seller has no actual
knowledge and (2) written notice of the discovery thereof is not delivered
to the Seller by the Trustee or the Master Servicer on or prior to the
date occurring twelve (12) months after the Closing Date. The Seller has
not waived any material default, breach, violation or event of
acceleration under such Mortgage or Mortgage Note, unless a written waiver
to that effect is contained in the related Mortgage File being delivered
pursuant to the Pooling and Servicing Agreement, and pursuant to the terms
of the related Mortgage or the related Mortgage Note and other documents
in the related Mortgage File, no Person or party other than the holder of
such Mortgage Note (or with respect to a Non-Serviced Trust Loan, the
applicable servicer as permitted by the applicable Lead PSA) may declare
any event of default or accelerate the related indebtedness under either
of such Mortgage or Mortgage Note.
(15) Payment Record. As of the Closing Date, each Mortgage Loan is not, and in
the prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months), has not been, 30 days
or more past due in respect of any Scheduled Payment.
(16) Servicing. The servicing and collection practices used by the Seller with
respect to the Mortgage Loan have been, in all respects, legal and have
met customary industry standards for servicing of commercial loans for
conduit loan programs.
(17) Reserved.
(18) Qualified Mortgage. Each Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (but without regard
to Treasury Regulations Sections 1.860G-2(f)(2) or 1.860G 2(a)(3) that
treats a defective obligation as a qualified mortgage, or any
substantially similar successor provision). 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 a
"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. Each yield maintenance payment and prepayment
premium payable under the Mortgage Loans is a "customary prepayment
penalty" within the meaning of Treasury Regulations Section
1.860G-1(b)(2). As of the Closing Date, the related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) of the Code.
(19) Environmental Conditions and Compliance. One or more environmental site
assessments or updates thereof were performed by an environmental
consulting firm independent of the Seller or the Seller's affiliates with
respect to each related Mortgaged Property during the 18-months preceding
the origination of the related Mortgage Loan, and the Seller, having made
no independent inquiry other than to review the report(s) prepared in
connection with the assessment(s) referenced herein, has no actual
knowledge and has received no notice of any material and adverse
environmental condition or circumstance affecting such Mortgaged Property
that was not disclosed in such report(s). If any such environmental report
identified any Recognized Environmental Condition (REC), as that term is
defined in the Standard Practice for Environmental Site Assessments: Phase
I Environmental Site Assessment Process Designation: E 1527-00, as
recommended by the American Society for Testing and Materials (ASTM), with
respect to the related Mortgaged Property and the same have not been
subsequently addressed in all material respects, then either (i) an escrow
greater than or equal to 100% of the amount identified as necessary by the
environmental consulting firm to address the REC is held by the Seller for
purposes of effecting same (and the Mortgagor has covenanted in the
Mortgage Loan documents to perform such work), (ii) a responsible party,
other than the Mortgagor, having financial resources reasonably estimated
to be adequate to address the REC is required to take such actions or is
liable for the failure to take such actions, if any, with respect to such
circumstances or conditions as have been required by the applicable
governmental regulatory authority or any environmental law or regulation,
(iii) the Mortgagor has provided an environmental insurance policy, (iv)
an operations and maintenance plan has been or will be implemented or (v)
such conditions or circumstances were investigated further and a qualified
environmental consulting firm recommended no further investigation or
remediation.
(20) Customary Mortgage Provisions. Each related Mortgage Note, Mortgage and
Assignment of Leases (if contained in a document separate from the
Mortgage) contain customary and, subject to the limitations and exceptions
set forth in paragraph (5) and applicable state law, enforceable
provisions for comparable mortgaged properties similarly situated such as
to render the rights and remedies of the holder thereof adequate for the
practical realization against the Mortgaged Property of the benefits of
the security intended to be provided thereby, including realization by
judicial or, if applicable, non-judicial foreclosure.
(21) Bankruptcy. No Mortgagor is a debtor in, and no Mortgaged Property is the
subject of, any state or federal bankruptcy or insolvency proceeding;
provided, however, that this representation and warranty does not cover
any such bankruptcy, reorganization, insolvency or comparable proceeding
with respect to which: (1) the Seller has no actual knowledge and (2)
written notice of the discovery thereof is not delivered to the Seller by
the Trustee or the Master Servicer on or prior to the date occurring
twelve months after the Closing Date.
(22) Whole Loan; No Equity Participation, Contingent Interest or Negative
Amortization. Except with respect to a Mortgage Loan that is part of a
Whole Loan, each Mortgage Loan is a whole loan. None of the Mortgage Loans
contain any equity participation, preferred equity component or shared
appreciation feature by the mortgagee nor does any Mortgage Loan provide
the mortgagee with any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property.
(23) Transfers and Subordinate Debt. Subject to certain exceptions which are
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property, each Mortgage Loan contains a "due on sale" or
other such provision for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without the consent of the
holder of the Mortgage and complying with the requirements of the related
Mortgage Loan documents, (a) the related Mortgaged Property, or any
controlling or majority equity interest in the related Mortgagor, is
directly or indirectly pledged, transferred or sold, other than as related
to (i) family and estate planning transfers, (ii) transfers to certain
affiliates as defined in the related Mortgage Loan documents (iii)
transfers of less than a controlling interest in a Mortgagor, or (iv) a
substitution or release of collateral within the parameters of paragraph
(26) below, or, (v) as set forth on Exhibit B-23-1 by reason of any
mezzanine debt that existed at the origination of the related Mortgage
Loan, or (b) the related Mortgaged Property is encumbered with a
subordinate lien or security interest against the related Mortgaged
Property, other than (i) any Companion Loan of any Mortgage Loan or any
subordinate debt that existed at origination and is permitted under the
related Mortgage Loan documents, (ii) debt in the ordinary course of
business or (iii) any Mortgage Loan that is cross-collateralized and
cross-defaulted with another Mortgage Loan, as set forth in Exhibit
B-23-2. Except as related to (a)(i), (ii), (iii), (iv) or (v), above or
b(i), (ii) or (iii) above, no Mortgage Loan may be assigned to another
entity without the mortgagee's consent. The Mortgage or other Mortgage
Loan document provides that to the extent any Rating Agency Fees are
incurred in connection with the review and consent to any transfer or
encumbrance the Mortgagor is responsible for such payment.
(24) Waivers and Modification. Except as set forth in the related Mortgage
File, the terms of the related Mortgage Note and Mortgage have not been
waived, modified, altered, satisfied, impaired, canceled, subordinated or
rescinded in any manner which materially interferes with the security
intended to be provided by such Mortgage. Exhibit B-24 identifies each
Mortgage Loan as to which, since the latest date on which the final due
diligence materials were delivered for such Mortgage Loan to CWCapital
Asset Management LLC, there has been, given, made or consented to an
alteration, modification or assumption of the terms of the related
Mortgage Note, Mortgage(s) or any related loan agreement and/or lock-box
agreement and/or as to which, since such date, there has been a waiver
other than as related to routine operational matters or minor covenants.
(25) Inspection. Each related Mortgaged Property was inspected by or on behalf
of the related originator or an affiliate of the originator during the 12
month period prior to the related origination date.
(26) Releases of Mortgaged Property. (A) Since origination, no material portion
of the related Mortgaged Property has been released from the lien of the
related Mortgage in any manner which materially and adversely affects the
value of the Mortgage Loan or materially interferes with the security
intended to be provided by such Mortgage; and (B) the terms of the related
Mortgage Loan documents do not permit the release of any portion of the
Mortgaged Property from the lien of the Mortgage except (i) in
consideration of payment in full (or in certain cases, the allocated loan
amount) therefor, (ii) in connection with the substitution of all or a
portion of the Mortgaged Property in exchange for delivery of "government
securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as amended, (iii) where such portion to be released
was not considered material for purposes of underwriting the Mortgage Loan
and such release was contemplated at origination, (iv) conditioned on the
satisfaction of certain underwriting and other requirements, including
payment of a release price representing adequate consideration for such
Mortgaged Property or the portion thereof to be released, or (v) as set
forth on Exhibit B-26, in connection with the substitution of a
replacement property in compliance with REMIC Provisions.
(27) Local Law Compliance. To the Seller's actual knowledge, based upon a
letter from governmental authorities, a legal opinion, an endorsement to
the related title policy, or other due diligence considered reasonable by
prudent commercial mortgage lenders taking into account the location of
the Mortgaged Property, as of the date of origination of such Mortgage
Loan and as of the Cut-off Date, there are no material violations of any
applicable zoning ordinances, building codes and land laws applicable to
the Mortgaged Property or the use and occupancy thereof which (i) are not
insured by the Title Policy or a law and ordinance insurance policy or
(ii) would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
(28) Improvements. To the Seller's actual knowledge based on the Title Policy
or surveys obtained in connection with the origination of each Mortgage
Loan, none of the material improvements which were included for the
purposes of determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan lies outside
of the boundaries and building restriction lines of such property (except
Mortgaged Properties which are legal non-conforming uses), to an extent
which would have a material adverse affect on the value of the Mortgaged
Property or related Mortgagor's use and operation of such Mortgaged
Property (unless affirmatively covered by the related Title Policy) and no
improvements on adjoining properties encroached upon such Mortgaged
Property to any material and adverse extent (unless affirmatively covered
by the related Title Policy).
(29) Single Purpose Entity. With respect to each Mortgage Loan with a Cut-off
Date Balance (A) in excess of $5,000,000 the related Mortgagor has
covenanted in its organizational documents and/or the Mortgage Loan
documents to own no significant asset other than the related Mortgaged
Property and assets incidental to its ownership and operation of such
Mortgaged Property, and to hold itself out as being a legal entity,
separate and apart from any other Person; and (B) in excess of
$20,000,000, the representation and warranty in (A) above is true and the
related Mortgagor (or if the Mortgagor is a limited partnership or a
multi-member limited liability company, the special purpose general
partner or special purpose managing member, as applicable, of the related
Mortgagor), has at least one independent director, and the related
Mortgagor has delivered a non-consolidation opinion of counsel. For each
Mortgage Loan for which the related Mortgagor has covenanted in its
organizational documents and/or the Mortgage Loan documents to own no
significant asset other than the related Mortgaged Property and assets
incidental to its ownership and operation of such Mortgaged Property, at
the time of origination of the Mortgage Loan, to the Seller's actual
knowledge, the Mortgagor was in compliance with such requirements.
(30) Advance of Funds. (A) After origination, the Seller has not, directly or
indirectly, advanced any funds to the Mortgagor, other than pursuant to
the related Mortgage Loan documents; and (B) to the Seller's actual
knowledge, no funds have been received from any Person other than the
Mortgagor, for or on account of payments due on the Mortgage Note.
(31) Litigation or Other Proceedings. As of the date of origination and, to the
Seller's actual knowledge, as of the Cut-off Date, there was no pending
action, suit or proceeding, or governmental investigation of which it has
received notice, against the Mortgagor or the related Mortgaged Property
the adverse outcome of which could reasonably be expected to materially
and adversely affect (i) such Mortgagor's ability to pay its obligations
under the Mortgage Loan, (ii) the security intended to be provided by the
Mortgage Loan documents or (iii) the current use of the Mortgaged
Property.
(32) Trustee Under Deed of Trust. As of the date of origination, and, to the
Seller's actual knowledge, as of the Cut-off Date, if the related Mortgage
is a deed of trust, a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and serving under such
Mortgage or may be substituted in accordance with the Mortgage and
applicable law.
(33) Usury. The Mortgage Loan and the interest contracted for (exclusive of any
default interest, late charges, Yield Maintenance Charge or prepayment
premiums) is a fixed rate, and complied as of the date of origination
with, or is exempt from, applicable state or federal laws, regulations and
other requirements pertaining to usury.
(34) Other Collateral. Except with respect to the Companion Loan of any Whole
Loan or any Mortgage Loan that is cross-collateralized and cross-defaulted
with another Mortgage Loan, to the Seller's knowledge, the related
Mortgage Note is not secured by any collateral that secures a loan that is
not a Mortgage Loan.
(35) Flood Insurance. If the improvements on the Mortgaged Property are located
in a federally designated special flood hazard area, the Mortgagor is
required to maintain or the mortgagee maintains, flood insurance with
respect to such improvements and such policy is in full force and effect.
(36) Escrow Deposits. All escrow deposits and payments required to be deposited
with the Seller or its agent in accordance with the Mortgage Loan
documents have been (or by the Closing Date will be) so deposited, are in
the possession of or under the control of the Seller or its agent (or,
with respect to a Non-Serviced Trust Loan, in the possession of or under
the control of the Lead Trustee or its agent under the applicable Lead
PSA), and there are no deficiencies in connection therewith.
(37) Licenses and Permits. To the Seller's actual knowledge, based on the due
diligence customarily performed in the origination of comparable mortgage
loans by prudent commercial lending institutions considering the related
geographic area and properties comparable to the related Mortgaged
Property, (i) as of the date of origination of the Mortgage Loan, the
related Mortgagor, the related lessee, franchisor or operator was in
possession of all material licenses, permits and authorizations then
required for use of the related Mortgaged Property, and, (ii) as of the
Cut-off Date, the Seller has no actual knowledge that the related
Mortgagor, the related lessee, franchisor or operator was not in
possession of such licenses, permits and authorizations.
(38) Organization of Mortgagors; Affiliation with other Mortgagors. With
respect to each Mortgage Loan, in reliance on certified copies of the
organizational documents of the Mortgagor delivered by the Mortgagor in
connection with the origination of such Mortgage Loan, the Mortgagor is an
entity organized under the laws of a state of the United States of
America, the District of Columbia or the Commonwealth of Puerto Rico.
Except with respect to any Mortgage Loan that is cross-collateralized and
cross defaulted with another Mortgage Loan, no Mortgage Loan has a
Mortgagor that is an affiliate of another Mortgagor.
(39) Fee Simple Interest. Except with respect to the Mortgage Loans listed on
Exhibit B-39, the Mortgage Loan is secured in whole or in material part by
the fee simple interest in the related Mortgaged Property.
(40) Recourse. Each Mortgage Loan is non-recourse to the related Mortgagor
except that the Mortgagor and a natural person (or an entity with assets
other than an interest in the Mortgagor) as guarantor have agreed to be
liable with respect to losses incurred due to (i) fraud and/or other
intentional material misrepresentation, (ii) misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default and not paid to the
mortgagee or applied to the Mortgaged Property in the ordinary course of
business, (iii) misapplication or conversion by the Mortgagor of insurance
proceeds or condemnation awards or (iv) breach of the environmental
covenants in the related Mortgage Loan documents.
(41) Access; Tax Parcels. Each Mortgaged Property (a) is located on or adjacent
to a dedicated road, or has access to an irrevocable easement permitting
ingress and egress, (b) is served by public utilities, water and sewer (or
septic facilities) and (c) constitutes one or more separate tax parcels.
(42) Financial Statements. Each Mortgage requires the Mortgagor to provide the
mortgagee with operating statements and rent rolls on an annual (or more
frequent) basis or upon written request.
(43) Defeasance. If the Mortgage Loan is a Defeasance Loan, the Mortgage Loan
documents (A) permit defeasance (1) no earlier than two years after the
Closing Date, and (2) only with substitute collateral constituting
"government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments
under the Mortgage Note through the related maturity date (or first day of
the open period) and the balloon payment that would be due on such date,
(B) require the delivery of (or otherwise contain provisions pursuant to
which the mortgagee can require delivery of) (i) an opinion to the effect
that such mortgagee has a first priority perfected security interest in
the defeasance collateral, (ii) an accountant's certification as to the
adequacy of the defeasance collateral to make all payments required under
the related Mortgage Loan through the related maturity date (or first day
of the open period) and the balloon payment that would be due on such
date, (iii) an Opinion of Counsel that the defeasance complies with all
applicable REMIC Provisions, and (iv) assurances from the Rating Agencies
that the defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates and (C) contain
provisions pursuant to which the mortgagee can require the Mortgagor to
pay expenses associated with a defeasance (including rating agencies'
fees, accountant's fees and attorneys' fees). Such Mortgage Loan was not
originated with the intent to collateralize a REMIC offering with
obligations that are not real estate mortgages.
(44) Authorization in Jurisdiction. To the extent required under applicable law
and necessary for the enforcement of the Mortgage Loan, as of the date of
origination and at all times it held the Mortgage Loan, the originator of
such Mortgage Loan was authorized to do business in the jurisdiction in
which the related Mortgaged Property is located.
(45) Capital Contributions. Neither the Seller nor any affiliate thereof has
any obligation to make any capital contributions to the Mortgagor under
the Mortgage Loan documents.
(46) Subordinate Debt. Except with respect to the Companion Loan of any Whole
Loan or any Mortgage Loan that is cross-collateralized and cross-defaulted
with another Mortgage Loan, none of the Mortgaged Properties are
encumbered by any lien securing the payment of money junior to, of equal
priority with, or superior to, the lien of the related Mortgage (other
than Title Exceptions, taxes, assessments and contested mechanics and
materialmens liens that become payable after the Cut-off Date).
(47) Ground Lease Representations and Warranties. With respect to each Mortgage
Loan secured by a leasehold interest (except with respect to any Mortgage
Loan also secured by the corresponding fee interest in the related
Mortgaged Property), the Seller represents and warrants the following with
respect to the related Ground Lease:
(1) Such Ground Lease or a memorandum thereof has been or will be
duly recorded and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if consent of the
lessor thereunder is required, it has been obtained prior to the Closing
Date.
(2) Upon the foreclosure of the Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to the mortgagee and its assigns without the consent of the
lessor thereunder (or, if any such consent is required, it has been
obtained prior to the Closing Date).
(3) Subject to the limitations on enforceability set forth in
Paragraph 5, such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any such
action without such consent is not binding on the mortgagee, its
successors or assigns, except that termination or cancellation without
such consent may be binding on the mortgagee if (i) an event of default
occurs under the Ground Lease, (ii) notice is provided to the mortgagee
and (iii) such default is curable by the mortgagee as provided in the
Ground Lease but remains uncured beyond the applicable cure period.
(4) Such Ground Lease is in full force and effect and other than
payments due but not yet 30 days or more delinquent, (i) there is no
material default, and (ii) to the actual knowledge of the Seller, there is
no event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a material default under
such Ground Lease; provided, however, that this representation and
warranty does not address or otherwise cover any default, breach,
violation or event of acceleration that specifically pertains to any
matter otherwise covered by any other representation and warranty made by
the Seller elsewhere in this Exhibit B or in any of the exceptions to the
representations and warranties in Schedule A hereto.
(5) The Ground Lease or ancillary agreement between the lessor and
the lessee (i) requires the lessor to give notice of any default by the
lessee to the mortgagee and (ii) provides that no notice given is
effective against the mortgagee unless a copy has been delivered to the
mortgagee in the manner described in the ground lease or ancillary
agreement.
(6) The Ground Lease (i) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, other than the
ground lessor's fee interest and Title Exceptions or (ii) is subject to a
subordination, non-disturbance and attornment agreement to which the
mortgagee on the lessor's fee interest in the Mortgaged Property is
subject.
(7) The mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease) to cure any curable default under such
Ground Lease after receipt of notice of such default before the lessor
thereunder may terminate such Ground Lease.
(8) Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth therein
all of which can be exercised by the mortgagee if the mortgagee acquires
the lessee's rights under the Ground Lease) that extends not less than 20
years beyond the Stated Maturity Date or if such Mortgage Loan is fully
amortizing, extends not less than 10 years after the amortization term for
the Mortgage Loan.
(9) Under the terms of the Ground Lease and the related Mortgage
Loan documents (including, without limitation, any estoppel or consent
letter received by the mortgagee from the lessor), taken together, any
related insurance proceeds or condemnation award (other than de minimis
amounts for minor casualties or in respect of a total or substantially
total loss or taking) will be applied either to the repair or restoration
of all or part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse such
proceeds as repair or restoration progresses, or to the payment or
defeasance of the outstanding principal balance of the Mortgage Loan,
together with any accrued interest (except in cases where a different
allocation would not be viewed as commercially unreasonable by any
commercial mortgage lender, taking into account the relative duration of
the ground lease and the related Mortgage and the ratio of the market
value of the related Mortgaged Property to the outstanding principal
balance of such Mortgage Loan).
(10) The Ground Lease does not restrict the use of the related
Mortgaged Property by the lessee or its successors or assigns in a manner
that would materially adversely affect the security provided by the
related mortgage.
(11) The Ground Lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by a prudent commercial
mortgage lender.
(12) The ground lessor under such Ground Lease is required to enter
into a new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy.
Exhibit B-23-1
--------------
LIST OF MORTGAGE LOANS WITH CURRENT MEZZANINE DEBT
--------------------------------------------------
LOAN # MORTGAGE LOAN
------ -------------
6 CA Headquarters
19 The Plaza in Xxxxxxx
71 Oviedo Town Center
00 Xxxxx Xxxxxxxx & Xxxxx
00 0000 Xxxxxxx Drive
Exhibit B-23-2
--------------
List of Cross-Collateralized and Cross-Defaulted Mortgage Loans
---------------------------------------------------------------
None
Exhibit B-24
------------
LIST OF MORTGAGE LOANS WITH POST-DUE DILIGENCE DELIVERY MODIFICATIONS
---------------------------------------------------------------------
LOAN # NAME OF LOAN DESCRIPTION OF MODIFICATION
00 Xxxxx Xxxxxx Inn Amendment to loan documents increasing
the interest rate of the Mortgage Loan
due to non-delivery of requested
amendments to ground lease
documentation.
97 Extra Space Storage Modification to sever the McDonald's
pad parcel from lien of the Mortgage.
11 ECM Theater Portfolio Creation of a subordinate B note
secured by the mortgaged property.
15 Pinnacle II Creation of a subordinate B note
secured by the mortgaged property.
29 Meridian Apartments Creation of a subordinate B note
secured by the mortgaged property.
52 The Xxxxx Building Modification to loan documents
relating to delivery of security
deposits under the leases.
3 Pointe South Mountain Resort Amendment to loan documents granting
borrower the right to replace the
thirty-five million dollar letter of
credit securing the borrower's
obligation to make certain renovations
to the hotel on the mortgaged property
with certain types of securities, with
maturities of 90 days or less, in
which the lender has been granted a
first priority security interest.
Amendment to loan documents granting
borrower the right to provide an
additional guarantor for recourse
obligations who will be jointly and
severally liable with the original
guarantor, and to allow for the
original guarantor's minimum required
net worth and liquid assets tests to
be measured against both guarantors
(the original guarantor and the new
guarantor) on a combined basis.
2 000 Xxxxx Xxxxxxxxx Plaza Modification to loan documents
removing the requirement for a rating
agency "no downgrade" confirmation in
connection with a permitted future
mezzanine debt.
13 Ariel Preferred Retail Amendment to loan agreement to add
Portfolio metes and bounds description to
schedule of outparcels.
Exhibit B-26
------------
LIST OF MORTGAGE LOANS WITH PERMITTED RELEASE IN
CONNECTION WITH THE SUBSTITUTION OF A REPLACEMENT MORTGAGED PROPERTY
--------------------------------------------------------------------
None
Exhibit B-38
LIST OF MORTGAGE LOANS WITH AFFILIATED BORROWERS
------------------------------------------------
LOAN # MORTGAGE LOAN
------ -------------
4, 8 0000 Xxxxxxxx, 0000 Xxxxxxxx
20, 32, Rubloff Retail Portfolio, Xxxxxxxxx Xxxxxx, Xxxxxxx Xxxx,
00, 65, 68 Rockford Crossing, Rubloff Center
44, 00 Xxxxxxx Xxxxx, Xxxx Xxxxxxxxxxx Plaza
149 Doral Xxxxx Xxxxx,
00, 00 Xxxxxxxx Xxxxx I and II, Breckinridge Center
82, 105 SoCal Self Storage - Pasadena, SoCal Self Storage - RSM
112, 000, Xxxxxxxxxx Xxxx Xxxxxxxxxx, Xxxxxxxxx Apartments,
158 Limewood Apartments
127, 153 6630 McCarran Building C, Lexington Quail
107, 155 Xxxxxxx Xxxxxxxx Furniture II, Xxxxxxx Xxxxxxxx Furniture
33, 30 00 Xxxxxx Xxxxxx, One Bowdoin Square
11, 22 ECM Theater Portfolio, Tower Place 200
Exhibit B-39
------------
MORTGAGE LOANS SECURED BY A LEASEHOLD INTEREST IN ALL
OR A MATERIAL PORTION OF THE RELATED MORTGAGED PROPERTY
-------------------------------------------------------
LOAN # MORTGAGE LOAN/ MORTGAGED PROPERTY
------ ---------------------------------
12 Columbia Business Center Leasehold
154 Storage Station
00 Xxxxx Xxxxxx Inn
3 Pointe South Mountain Resort
EXHIBIT C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Numerical references are to the corresponding Mortgage Loan representations and
warranties set forth in Exhibit B to the Mortgage Loan Purchase Agreement.
Underlined titles correspond to the titles in the related Mortgage Loan
representations and warranties and the loan numbers correspond to the control
numbers listed in Annex A to the Prospectus Supplement.
The Mortgage Loan known as Xxxxx at Brokenland & Rivers Center III, identified
as Loan No. 64, is structured with the related promissory notes each secured by
a guaranty agreement (rather than a deed of trust), which guaranty agreement
from the related property owner, in favor of the lender covers all of the
obligations under the related promissory note. All of the obligations under the
related guaranty agreement are secured by an indemnity deed of trust ("IDOT").
With respect to certain of the representations and warranties, with respect to
such Mortgage Loan, statements regarding the borrower relate to the guarantor,
as the owner of the Mortgaged Property.
12. TITLE INSURANCE.
107 Xxxxxxx Xxxxxxxx Furniture II: The title policy does not
provide insurance for (a) access to a public road or (b)
against any loss due to encroachment of any material
portion of the improvements on the mortgaged property.
86-a/86-b 00000 Xxxxxxxxxx Xxxxxx: The title policy does not
provide insurance for access to a public road.
13. INSURANCE.
29 Meridian Apartments: Pursuant to the Lowe's Lease (as
defined in the related mortgage), Lowe's (as defined in
the related mortgage), as tenant, is responsible for
carrying all insurance for the mortgaged property and
all insurance proceeds must be used to restore and
repair the mortgaged property. Lowe's agreed in its SNDA
with Lender to permit an Insurance Trustee, meeting the
standard eligibility requirements (such requirements are
set forth in the related mortgage), to hold all
insurance proceeds and to disburse them for restoration.
Lender has consent rights over all plans and
specifications and the Insurance Trustee cannot permit
disbursements of insurance proceeds to Lowe's unless
Lowe's provides evidence of payment to all persons
providing labor or materials (together with lien
waivers) with respect to the restoration.
19. ENVIRONMENTAL CONDITIONS AND COMPLIANCE.
00 Xxxx Xxxxxxx Xxxxxxxx Xxxxxx: The Phase I environmental
site assessment (the "Phase I") identified two RECs
arising from spills of solvents from the operation of
two dry cleaning facilities at the Property. A Phase II
environmental site assessment (the "Phase II") was
performed to determine the extent of the spills. The
Phase II found that the level of solvents in soil
samples slightly exceeded the levels set by the Maryland
Department of the Environment ("MDE") with respect to
the protection of ground water but were below the levels
set by the MDE with respect to non-residential clean-up
requirements. The Phase II further stated that if the
property is not located within a half mile of a potable
water well or if the groundwater at the site does not
exceed the MDE standards, then no further action is
required. The consultants performing the Phase II were
not permitted access to any groundwater sampling.
Although the Phase II concluded that the level of
solvents in the soil samples were not significant enough
to require reporting to the MDE, the loan documents
require the Mortgagor to enter into the MDE Voluntary
Cleanup Program and to promptly comply with all of the
recommendations and requirements thereunder. Although no
amount was identified in either the Phase I or the Phase
II as necessary to address the RECs, the Seller required
that the Mortgagor escrow $175,000 which amount may only
be disbursed to the Mortgagor upon the Mortgagor
obtaining a "Certificate of Completion" or a "No Further
Requirements Determination" from MDE under its Voluntary
Cleanup Program.
107 Xxxxxxx Xxxxxxxx Furniture II: An environmental site
assessment performed on December 4, 1989 by Xxxx
Geoscience Corporation uncovered six (6) underground
fuel tanks. Based on the results of testing on the tanks
in 1989, two (2) of the tanks and associated
contaminated soil were removed from the property.
Following the removal of the tanks, further soil testing
was done under the direction of a New York State
Department of Environmental Conservation engineer. Based
on the results of these soil tests, a single groundwater
monitoring well was installed at the mortgaged property
and reportedly has been and will be sampled quarterly to
determine if groundwater at the mortgaged property has
been impacted by fuel oil. No update of the 1989
environmental site assessment was performed in
connection with Seller's acquisition of the mortgage
loan.
00 Xxx Xxxxx Xxxxx: Chlorinated solvents were released to
the soil and groundwater at the related mortgaged
property from a prior dry cleaning business. Prior to
borrower's acquisition of the mortgaged property,
cleanup and monitoring activities have been ongoing. The
environmental report prepared in connection with the
origination of the mortgage loan noted that such
investigation, cleanup and monitoring activities have
been effective and estimated that certain additional
remedial action and monitoring could be required. The
borrower deposited a reserve in the sum of $34,656 in
connection with an environmental contract with SCS
Engineers as reviewed and approved by Lender and agreed
to perform all remedial and monitoring activities
necessary until a "No Further Action Determination" from
all governmental authorities having jurisdiction over
the mortgaged property is obtained.
23. TRANSFERS AND SUBORDINATE DEBT.
34 Seramont Apartments: The loan documents permit future
mezzanine debt secured by a pledge of equity interests
in the borrower, subject to the satisfaction of certain
conditions, including but not limited to a combined LTV
not to exceed 80%.
00 Xxxxxxxx Xxxxx I & II: The loan documents permit, from
and after the payment date occurring in August 2008,
future mezzanine debt, subject to the satisfaction of
certain conditions, including but not limited to (i)
rating agency "no downgrade" confirmation and (ii) a
combined LTV not to exceed 84%.
50 Breckinridge Center: The loan documents permit, from and
after the payment date occurring in October 2008, future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to a combined LTV
not to exceed 85%.
94 SoHo 25 Retail Condominium: The loan documents permit
future mezzanine debt, subject to the satisfaction of
certain conditions, including but not limited to (i)
rating agency "no downgrade" confirmation and (ii) a
combined LTV not to exceed 80%.
2 000 Xxxxx Xxxxxxxxx Xxxxx: The loan documents permit
future mezzanine debt, subject to the satisfaction of
certain conditions, including but not limited to (i)
rating agency "no downgrade" confirmation and (ii) a
combined LTV not to exceed 80%.
11 ECM Theater Portfolio: The loan documents permit future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to a combined LTV
not to exceed 90%.
32 Algonquin Center: The loan documents permit future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to a combined LTV
not to exceed 80%.
00 Xxxxxxx Xxxx: The loan documents permit future mezzanine
debt, subject to the satisfaction of certain conditions,
including but not limited to a combined LTV not to
exceed 80%.
65 Rockford Crossing: The loan documents permit future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to a combined LTV
not to exceed 80%.
68 Rubloff Center: The loan documents permit future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to a combined LTV
not to exceed 80%.
9 CityWest: The loan documents permit future mezzanine
debt, subject to the satisfaction of certain conditions,
including but not limited to (i) rating agency "no
downgrade" confirmation and (ii) a combined LTV not to
exceed 78%.
12 Columbia Business Center: The loan documents permit
future mezzanine debt, subject to the satisfaction of
certain conditions, including but not limited to (i)
rating agency "no downgrade" confirmation and (ii) a
combined LTV not to exceed 90%.
13 Ariel Preferred Retail Portfolio: The loan documents
permit future mezzanine debt, subject to the
satisfaction of certain conditions, including but not
limited to (i) rating agency "no downgrade" confirmation
and (ii) a combined LTV not to exceed 80%.
15 Pinnacle II: The loan documents permit future mezzanine
debt, subject to the satisfaction of certain conditions,
including but not limited to (i) rating agency "no
downgrade" confirmation and (ii) a combined LTV not to
exceed 80%.
24 Media Studios North: The loan documents permit future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to (i) rating
agency "no downgrade" confirmation and (ii) a combined
LTV not to exceed 80%.
00 Xxxxxxx Xxxxx: The loan documents permit future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to (i) rating
agency "no downgrade" confirmation, (ii) a combined LTV
not to exceed 80% and (iii) a combined DSCR of no less
than 1.15x.
60 Amadeus Center: The loan documents permit future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to (i) rating
agency "no downgrade" confirmation, (ii) a combined LTV
not to exceed 80% and (iii) a combined DSCR of no less
than 1.15x.
0 Xxxxxx Xxxxx Xxxxxxxx Xxxxxx: The loan documents permit
future mezzanine debt, subject to the satisfaction of
certain conditions, including but not limited to (i) a
combined LTV not to exceed 85% and (ii) a combined DSCR
of no less than 1.10x.
6 CA Headquarters: The loan documents permit mezzanine
financing to refinance existing debt.
19 The Plaza in Xxxxxxx: The loan documents permit future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to a combined DSCR
of no less than 1.00x.
21 Legacy Tech Center: The loan documents permit future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to (i) a combined
LTV not to exceed 75% and (ii) a combined DSCR of no
less than 1.05x.
56 0000 Xxxxxxx Xxxxx: The loan documents permit mezzanine
financing to refinance existing debt.
00 Xxxxx Xxxxxxxx & Xxxxx: The loan documents permit
mezzanine financing to refinance existing debt.
85 San Marin Plaza: The loan documents permit future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to a combined LTV
not to exceed 85%.
93 Comfort Suites at World Golf Village: The loan documents
permit future mezzanine debt, subject to the
satisfaction of certain conditions, including but not
limited to a combined LTV not to exceed 85%.
121 00 Xxxxx Xxxx Xxxxxx: The loan documents permit future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to (i) a combined
LTV not to exceed 77% and (ii) a combined DSCR of no
less than 1.25x.
119 StorQuest Playa Vista: The loan documents permit future
mezzanine debt, subject to the satisfaction of certain
conditions, including but not limited to (i) a combined
LTV not to exceed 50% and (ii) a combined DSCR of no
less than 1.75x.
16 Gallery at CocoWalk: The loan documents permit future
mezzanine debt secured by a pledge of equity interests
in the borrower, subject to the satisfaction of certain
conditions, including, but not limited to: (1) the debt
service coverage ratio shall be no less than 1.05 to
1.0; (2) the loan-to-value ratio shall be no greater
than ninety percent (90%); (3) the proposed mezzanine
lender shall enter into an intercreditor agreement in
form and content acceptable to Lender and the Rating
Agencies; and (4) rating agency "no downgrade"
confirmation.
112 University Club Apartments: The loan documents permit
future mezzanine debt secured by a pledge of equity
interests in the borrower, subject to the satisfaction
of certain conditions, including, but not limited to:
(1) the actual debt service coverage ratio shall be no
less than 1:20:1.0, (2) the loan to value ratio shall be
no greater than 80%, (3) the proposed mezzanine lender
shall enter into an intercreditor agreement in form and
content acceptable to Lender and the Rating Agencies,
and (4) rating agency "no downgrade" confirmation.
59 Royal Appliance: The loan documents permit future
mezzanine debt to pay for the hard and soft tenant
improvement costs incurred by the borrower in connection
with the expansion of the space demised under the Royal
Appliance lease and the extension of the lease for a
term of not less than 15 years. Such future mezzanine
debt is subject to the satisfaction of certain
conditions, including but not limited to (i) rating
agency "no downgrade" confirmation and (ii) the maximum
amount of the mezzanine loan may not exceed 80% of the
lesser of (x) such hard and soft costs actually incurred
and (y) the amount equal to fifty dollars ($50) per
square foot of the applicable expansion space.
With respect to the Royal Appliance loan, the mortgage
loan documents permit the related borrower's parent (or
any entity holding any direct or indirect interests in
the borrower's parent) to pledge their direct or
indirect ownership interest in the related borrower to
any institutional lender providing a corporate line of
credit or other financing, provided that the value of
the Mortgaged Property which is indirectly pledged as
collateral under such financing constitutes no more than
10% of the total value of all assets directly or
indirectly securing such financing, no more than 10% of
the total value of all assets directly or indirectly
security such financing.
00 Xxxxx Xxxxx 200: The loan documents permit transfers of
direct or indirect ownership interests in the borrower
without lender's consent provided that: (i) Aslan Realty
Partners III, L.L.C. ("Guarantor") remains the sole
member of the borrower, owning not less than 100 % of
the limited liability company interests in borrower,
(ii) Aslan GP III, L.L.C. ("Aslan GP") remains the sole
manager of Guarantor or shall be replaced by an
alternate manager reasonably acceptable to lender within
ten (10) days after Aslan GP ceases to be the sole
manager of Guarantor, (iii) either (a) Xxxxxx X. Xxxxxx
or Xxxxxxx X. Xxxxxx is a managing principal of Aslan
GP, or (b) a substitute managing principal or principals
approved by Lender (such approval not to be unreasonably
withheld) is named within one hundred eighty (180) days
after both Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx cease
being managing principals of Guarantor and Aslan GP, and
(iv) no person or group of affiliated persons not as of
the date of the loan agreement owning, directly or
indirectly, more than 49% of the beneficial ownership
interests in borrower acquires more than 49% of the
beneficial direct or indirect ownership interests in
borrower, unless such person or group of affiliated
persons are and remain under common control with, and
have the same managing principals as, Guarantor and
Aslan GP.
The loan documents permit Guarantor to pledge its right
to receive equity distributions in the borrower provided
that: Guarantor may pledge its right to receive equity
distributions on account of its equity ownership
interest in the borrower to Qualified Institutional
Investors (as defined in the loan agreement) as part of
the security for debt facilities which may be obtained
by Guarantor from such Qualified Institutional Investors
(collectively, "Aslan Line Debt"), subject to the
following conditions: (i) no Event of Default shall
exist; (ii) in no event shall borrower have any
liability for the Aslan Line Debt or any liabilities or
obligations under the loan documents evidencing and/or
securing the Aslan Line Debt; (iii) equity distributions
by the borrower shall be made only if no event of
default shall exist and shall be made solely from excess
property cash flow distributed by borrower to its
ownership after payment of all debt service and reserve
payments under the Loan and Operating Expenses (as
defined in the loan agreement) for the property; and
(iv) Guarantor shall own sufficient other assets such
that the direct or indirect ownership interest of
Guarantor in borrower comprises no more than 20% of the
assets of Guarantor, and the Aslan Line Debt shall be
secured (to the extent permitted under applicable loan
documents or other contracts) by pledges of
distributions from or on account of substantially all of
the equity ownership interests of Guarantor in real
properties or interests therein from time to time held
by Guarantor.
The loan documents permit future mezzanine debt secured
by a pledge of equity interests in the borrower, subject
to the satisfaction of certain conditions, including but
not limited to (i) rating agency "no downgrade"
confirmation and (ii) a combined LTV not to exceed 90%.
26. RELEASES OF MORTGAGED PROPERTY.
26 Clybourn Galleria: The Loan consists of four (4)
cross-collateralized and cross-defaulted notes that
collectively represent all of the condominium interests
in a single Mortgaged Property. The four borrowers under
the four (4) separate loan agreements own in the
aggregate 100% of the ownership interests in the
condominium. Each borrower is a unit owner in such
condominium (the borrower related to the office portion
of the Mortgaged Property owns two units). Each borrower
may, under a separate mortgage loan, obtain the release
of a unit (or in the case of the borrower related to the
office portion of the Mortgaged Property, two units)
from the cross-collateralization and cross-default
provisions of the mortgage loan in connection with a
bona fide, arm's-length sale of the unit to an
unaffiliated third party upon satisfaction of certain
conditions including (i) after giving effect to the
transfer and assumption, the debt service coverage ratio
of the transferred property will be equal to or greater
than 1.20x and the loan-to-value ratio of the
transferred property will be 75% or less, (ii) after
giving effect to the transfer and assumption as to the
other three cross-collateralized notes, the debt service
coverage ratio for such related notes determined on a
combined basis by lender is equal to or greater than
1.20x and the loan-to-value ratio with respect to the
other three cross-collateralized notes determined on a
combined basis by lender is 75% or less and (iii) so
long as no more than two cross-collateralized notes and
related condominium units will be released from the
group of four cross-collateralized notes and related
condominium units.
Each borrower under one of the four (4) separate loan
agreements has the right, in connection with the
exercise of a defeasance option or a transfer and
assumption of any of the notes, to partially defease its
note so that after giving effect to the defeasance
option or transfer and assumption, (i) the
debt-service-coverage ratio for the remaining
cross-collateralized notes is not less than 1.20x and
(ii) the loan-to-value ratio for the remaining
cross-collateralized notes is not greater than (x) 75%
if either (a) a note was subject to a transfer and
assumption or (b) if a note was defeased and the
aggregate principal amount of the other
cross-collateralized notes is less than $33,575,000 or
(y) 80% if a note was defeased and the aggregate
principal amount of the other cross-collateralized notes
is greater than or equal to $33,575,000.
29. SINGLE PURPOSE ENTITY.
34 Seramont Apartments: The mortgagor does not have an
independent director and the mortgagor has not delivered
a non-consolidation opinion of counsel.
41 Cimarron Apartments: The mortgagor does not have an
independent director and the mortgagor has not delivered
a non-consolidation opinion of counsel.
00 Xxxxxxxx Xxxxxxxx: The mortgagor does not have an
independent director.
107 Xxxxxxx Xxxxxxxx Furniture II: The borrower is not
required to be a special purpose entity.
86-a/86-b 00000 Xxxxxxxxxx Xxxxxx: The borrower is not required to
be a special purpose entity.
39. FEE SIMPLE INTEREST.
Various See Exhibit B-39 below.
40. RECOURSE.
9 CityWest: The Mortgage Loan is non-recourse to the
related Mortgagor and does not have a recourse guarantor
for any loss under the Mortgage Loan.
41. ACCESS TAX PARCELS.
154 Storage Station: The Mortgaged Property is not currently
regarded as separate tax parcels. The borrower agreed to
escrow an amount sufficient to pay the taxes associated
with the entirety of the parcels and then seek
reimbursement from the appropriate third party. Borrower
also covenants to have the property regarded as one or
more separate tax parcels for 2007 and beyond.
42. FINANCIAL STATEMENTS.
86-a/86-b 00000 Xxxxxxxxxx Xxxxxx: The Mortgagor is not required
to provide the mortgagee with operating statements and
rent rolls.
47(C). GROUND LEASE C.
12 Columbia Business Center: The ground leases cannot be
modified or amended without the lender's prior written
consent. The ground lease does not expressly prohibit
termination without the lender's prior written consent.
47(H). GROUND LEASE H.
154 Storage Station: The ground lease is scheduled to expire
in 2020. Borrower has the option to extend the ground
lease for successive 5-year terms, provided the ground
lessor may terminate the right to additional option
terms after the first two terms (i.e. after 2030), which
is more than ten years but less than 20 years after the
stated maturity date of the mortgage loan.
12 Columbia Business Center: The ground lease is scheduled
to expire December 31, 2030 (the maturity date of the
loan is August 6, 2011).
GROUND LEASE L.
12 Columbia Business Center: The ground lease does not
require the ground lessor to enter into a new lease upon
termination for any reason, including rejection of the
ground lease in bankruptcy.
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
Greenwich Capital Financial Products, Inc. ("Seller") hereby
certifies as follows:
1. All of the representations and warranties (except as set forth
on Schedule C) of the Seller under the Mortgage Loan Purchase
Agreement, dated as of October 1, 2006 (the "Agreement"),
between GS Mortgage Securities Corporation II and Seller, are
true and correct in all material respects on and as of the
date hereof with the same force and effect as if made on and
as of the date hereof.
2. The Seller has complied in all material respects with all the
covenants and satisfied all the conditions on its part to be
performed or satisfied under the Agreement on or prior to the
date hereof and no event has occurred which would constitute a
default under the Agreement.
3. Neither the Prospectus, dated October 6, 2005, as supplemented
by the Prospectus Supplement, dated October 17, 2006
(collectively, the "Prospectus"), relating to the offering of
the Class A-1, Class X-0, Xxxxx X-0, Class A-AB, Class A-4,
Class A-1A, Class A-M, Class A-J, Class B, Class C Class D,
Class E and Class F Certificates nor the Offering Circular,
dated October 17, 2006 (the "Offering Circular"), relating to
the offering of the Class X, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class Q, Class
S, Class R and Class LR Certificates, in the case of the
Prospectus and the Prospectus Supplement, as of the date of
the Prospectus Supplement or as of the date hereof, or the
Offering Circular, as of the date of thereof or as of the date
hereof, included or includes any untrue statement of a
material fact relating to the Mortgage 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.
Capitalized terms used herein without definition have the meanings
given them in the Agreement.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
Certified this 17th day of October, 2006.
GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC.
By: __________________________________
Name:
Title:
EXHIBIT E
FORM OF LEGAL OPINION
(a) The Seller is a [__], duly organized, validly existing and in
good standing under the laws of the State of [__] with full power and authority
to own its assets and conduct its business, is duly qualified as a foreign
organization in good standing in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on its ability to perform its obligations thereunder,
and the Seller has taken all necessary action to authorize the execution,
delivery and performance of the Mortgage Loan Purchase Agreement and the
Indemnification Agreement (collectively, the "Operative Documents"), and has
duly executed and delivered the Operative Documents, and has the power and
authority to execute, deliver and perform under the Operative Documents and all
the transactions contemplated thereby, including, but not limited to, the power
and authority to sell, assign, transfer, set over and convey the Mortgage Loans
in accordance with the Mortgage Loan Purchase Agreement;
(b) Assuming the due authorization, execution and delivery of each
Operative Document by each party thereto other than the Seller, each Operative
Document will constitute a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights generally,
and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
(c) The execution and delivery of each Operative Document by the
Seller and the performance of its obligations thereunder will not conflict with
any provision of any law or regulation to which the Seller is subject, or
conflict with, result in a breach of, or constitute a default under, any of the
terms, conditions or provisions of any of the Seller's organizational documents
or any agreement or instrument to which the Seller is a party or by which it is
bound, or any order or decree applicable to the Seller, or result in the
creation or imposition of any lien on any of the Seller's assets or property, in
each case which would materially and adversely affect the ability of the Seller
to carry out the transactions contemplated by the Operative Documents;
(d) There is no action, suit, proceeding or investigation pending
or, to the Seller's knowledge, threatened against the Seller in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Seller to carry out the transactions contemplated by each
Operative Document;
(e) The Seller is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or governmental agency, which default might have consequences that would
materially and adversely affect the condition (financial or other) or operations
of the Seller or its properties or might have consequences that would materially
and adversely affect its performance under any Operative Document;
(f) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, each Operative
Document or the consummation of the transactions contemplated thereby, other
than those which have been obtained by the Seller;
(g) To our knowledge, considered in light of our understanding of
applicable law and the experience we have gained through our practice, nothing
has come to our attention in the course of our review of the Prospectus and
Prospectus Supplement in relation to the sale of the Mortgage Loans, which
causes us to believe that (i) the Prospectus, at the date thereof or at the date
hereof, contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, which untrue statement or omission arises out of, or is
based upon, information concerning the Mortgage Loans set forth in the
Prospectus, or (ii) the Prospectus Supplement, at the date thereof or at the
date hereof, contains an untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, which untrue statement or omission arises out
of, or is based upon, information concerning the Mortgage Loans set forth in the
Prospectus Supplement, it being understood that we express no view as to any
information incorporated by reference in the Prospectus or Prospectus Supplement
or as to the adequacy or accuracy of the financial, numerical, statistical or
quantitative information included in the Prospectus or Prospectus Supplement.
(h) We hereby advise you that, in the course of the representation
referred to above and our examination of the time of sale information,
considered in light of our understanding of applicable law and the experience we
have gained through our practice, no facts came to our attention that cause us
to believe that as of the time of sale, the time of sale information (taken as a
whole) 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 under which they were made, not misleading; it being
understood that we express no view as to (1) any blanks or bracketed items in
the time of sale information for pricing terms, (2) any information incorporated
by reference in the time of sale information or (3) the adequacy or accuracy of
(i) any financial, numerical, statistical or computational information included
in or omitted from the time of sale information or (ii) any information
contained in or omitted from any computer disk, CD-ROM or other electronic media
accompanying the time of sale information.
(i) Insofar as it related to the Seller and the Mortgage Loans
(including without limitations the related borrowers and mortgaged properties)
being sold by the Seller, the Prospectus Supplement, as of its date (with the
exception of any information incorporated by reference therein and any
numerical, financial, statistical and computational information included
therein, as to which we express no view), appeared on its face to be
appropriately responsive in all material respects to the applicable requirements
of Regulation AB under the Securities Act of 1933, as amended.
