EXHIBIT 10.1
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GS MORTGAGE SECURITIES CORPORATION II,
PURCHASER,
XXXXXXX XXXXX MORTGAGE COMPANY,
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 Xxxxxxx Sachs Mortgage Company,
a New York limited partnership, 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. 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 $1,447,967,139 (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 limited partnership, duly organized, validly
existing and in good standing under the laws of the State of New York 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 New York to the effect that the Seller is duly organized,
existing and in good standing in the State of New York;
(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 Xxxxxxx Sachs Mortgage
Company, 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, 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
XXXXXXX XXXXX MORTGAGE COMPANY
By: Xxxxxxx Sachs Real Estate
Funding Corp.,
its General Partner
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Title: V.P.
EXHIBIT A
MORTGAGE LOAN SCHEDULE
2006-GG8 Goldman Mortgage Loan Schedule
Control Loan Loan
Number Footnotes Number Group Property Name Address
------- --------- ------------ ------- ------------------------------------- --------------------------------------------
1 00-1001195 Group 1 Xxx Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxxx
5 00-1001194 Group 0 Xxxxxxx xx Xxxxxxx Xxxx 000 Xxx Xxxxxxx Xxxxxx
7 09-0002400 Group 1 The Alhambra 0000 Xxxxx Xxxxxxx Xxxxxx
10 00-1001193 Group 0 Xxxx Xxxxx Xxxxxx Xxxx 00000, 12500, 12600, 12700, 12701,
12730 & 00000
Xxxx Xxxxx Xxxxxx & 4300 &
0000 Xxxx Xxxxx Xxxxx
17 00-1001196 Group 1 Seattle Trade Center 2600 and 0000 Xxxxxxx Xxxxxx
25 09-0002398 Group 0 Xxxxxxxx Xxxxxxxx Xxxx 0000 Xxxxxxx Xxxxxx
31 09-0002203 Group 1 GVR I,II,III 2475, 2485 & 0000 Xxxxxxx Xxxx Xxxxx
35 09-0002381 Group 2 Copper Beech Townhomes - Missouri 0000 Xxx Xxxxxxx 00 Xxxxx
36 09-0002291 Group 0 Xxxxxx Xxxxx Xxxxxxxxx - Xxxxxxxx 00000 48th Avenue
37 09-0002236 Group 1 Xxxxxxx Crossing Shopping Center 0000 Xxxxxxxxxx Xxxx
38 09-0002373 Group 0 Xxxxxxxx Xxxxxxxxx 4480 Xxxxxxxx Xxxx
00 09-0002403 Group 1 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx
40 09-0002411 Group 0 Xx Xxxxxx Xxxxx Xxxx Center 2101, 2085 & 0000 Xxxx Xxxxxx
46 09-0002235 Group 1 Highridge Crossings 28102-28194 Xxxxxxx Xxxxx Xxxx
00 09-0002429 Group 1 Nameoki Commons Shopping Center 3401-3551 Nameoki Road
48 09-0002416 Group 1 Greenlawn Phase I 000 Xxxxx Xxxxx Xxxxxxxxx
49 09-0002147 Group 1 Xxxxxxx Crossing 000 Xxxxxxx Xxxxx, 000 Xxxxxxx Xxxxx &
000 Xxxx Xxxxxxx Xxxx
51 09-0002413 Group 1 0000 Xxxxxxxxxxx Xxxxxx, XX 0000 Xxxxxxxxxxx Xxxxxx
54 09-0002436 Group 1 Lincoln Corners 0000 Xxxx Xxxxxxx Xxxxxx
55 09-0002412 Group 0 Xxxxx Xxxxx Xxxxxxxxxxx 0000 Xxxxxxxx Xxxxxxx
57 09-0002399 Group 0 Xxxxxxxxxx Xxxxxxx II 0000 Xxxx Xxxxxxxx Xxxx Xxxx
66 09-0002440 Group 1 Decatur Crossing II 6420, 6450 and 0000 Xxxxxxx Xxxxxx
70 09-0002314 Group 1 Palomar Point 1910, 1920 and 0000 Xxxxxxx Xxxxx Xxx
72 09-0002396 Group 0 Xxxxxxxx Xxxxxxxx Xxxxxx 000, 000, 315, 363 & 000 Xxxxx Xxxxx
Xxxxxxxxxx Xxxx
75 09-0002410 Group 1 Pecos Legacy 0000 Xxxxxx Xxxxxxx
76 09-0002386 Group 1 Jetport 14231, 14241 & 00000 Xxxxxxx Xxxx
77 09-0002330 Group 1 Village Square Retail Center 0000-0000 Xxxx Xxxxxxxx Xxxxxx &
0000 Xxxxxxx Xxxxxx
78 09-0002392 Group 1 Xxxxxxx at Scottsdale Ranch 10105, 10135, 10155 East Xxx Xxxxx
& 00000 X. Xxxxxxxx Xxxx Xxxx
00 09-0002380 Group 2 Copper Beech Townhomes - Indiana 000 Xxxxx Xxxxxxxx Xxxxx
81 09-0002368 Group 1 Western Area Power Admin. HQ 00000 Xxxx Xxxxxxx Xxxxxxx
84 09-0002404 Group 1 0000 Xxxxxxxx Xxxx 1000 Xxxxxxxx Xxxx
00 09-0002395 Group 1 Smithsonian Warehouse 8308 Cinder Bed Road
88 09-0002432 Group 1 The Grande 16 0000 Xxxxxxxx Xxxxxx
90 09-0002258 Group 1 Ballantyne Corporate Park Shopping 14015, 14021 & 00000 Xxxxxx Xxxxxx
91 09-0002300 Group 1 Mission Valley Shopping Center 0000 Xxxxx Xxxxx Xxxx
92 09-0002365 Group 0 Xxxxx Xxxxx Xxxxxx 0 Xxx Xxxxxx
95 09-0002375 Group 1 Xxxxxxxxxx Xxxxxxx Xxxxx 0 Xxxxxxxxx Xxxxx
96 09-0002415 Group 1 Govalle 0000 Xxxx 0xx Xxxxxx
99 09-0002394 Group 1 XxXxx Portfolio
99.01 00-0000000-0 Group 0 XxXxx Xxxxxx Xxxxxxxxx 000, 920 & 000 Xxxx Xxxxxx Xxxx
99.02 00-0000000-0 Group 1 1 Media Place 0000 Xxxx Xxxxxxxxx Xxxx
100 09-0002430 Group 0 Xxxxxxxxx Xxxxx 8413 & 0000 Xxxxxxxxx Xxxxx
102 09-0002408 Group 0 Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 00-00 & 00-00 Xxxxx 00X
104 09-0002374 Group 0 XxXxxxxx Xxxxx Xxxxxx Xxxxx 00 Xxxxxxxx Xxxxxx
106 09-0002427 Group 1 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
108 09-0002437 Group 2 Ventana Palms Apartments 0000 Xxxx XxXxxxxx Xxxx
109 09-0002371 Group 0 Xxxxxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxxx
110 09-0002438 Group 0 Xxxxxxxxxxx Xxxxx 00000-00000 Xxxxx 00xx Xxxxxx
111 09-0002270 Group 0 Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxxxxxx Xxxx
000 09-0002421 Group 0 Xxxx Xxxxxxx Xxxxxxx Xxxx Building 000 Xxxxxxxxx Xxxxxxxxxx Xxxx
114 4 09-0002362 Group 1 Lichtins Office 3110 Xxxxxxx Mill Road
115 09-0002431 Group 1 XxXxxx 00 0000 Xxxxxxx Xxxx
116 09-0002422 Group 1 Dallas West Village II 0000 XxXxxxxx Xxxxxx
117 09-0002425 Group 1 Short Pump Village 11402-11446 West Broad Street
120 09-0002389 Group 1 Southshore Shops 00000 Xxxxxxxxxx Xxxxxx Xxxxx
122 09-0002414 Group 1 Xxxxxxxxx Xxxxxxx Xxxxx 0000-0000 Xxxxxxxx Xxxxxx
123 09-0002417 Group 1 Shady Hollow Village I 0000 Xxxxxx Xxxx
124 09-0002406 Group 0 Xxxxxxx Xxxxxxxx 000 Xxxxx Xxxxxx Xxxxxx
126 09-0002424 Group 1 Monument Marketplace 15910, 15932 & 00000 Xxxxxxx Xxxxx Xxxxxxx
129 09-0002378 Group 0 Xxxxxxx Xxxxx 12325-12399 Xxxx 00xx Xxxxxx
& 0000-0000 Xxxx Xxxx
131 09-0002418 Group 1 Battlefield Tech Center III 000 Xxxxxxxxxxxx Xxxxxxx
132 09-0002385 Group 1 Flowers Xxxxxxxxxx 00 Xxxxx Xxxxx Xxxxxxx
133 09-0002435 Group 1 Xxxxxx Grande Stadium 10 0000 Xxxx Xxxxxx Xxxxxx
135 09-0002397 Group 1 Southampton Shopping Center 000-000 Xxxx Xxxxxx
136 4 09-0002382 Group 1 Xxxxxxxx Xxxx Xxxxxx 0000 Xxxxxxxx Xxxx
138 09-0002183 Group 0 Xxxxx Xxxxxxxxx Xxxxxxx Xxxx Building 00 Xxxxx Xxxxxxxxx Xxxx
143 09-0002383 Group 1 CVS Pharmacy 0000 Xxxx Xxxxxxxx Xxxx
144 09-0002393 Group 0 Xxxx Xxxx Xxxxxx X 000 Xxxxxxx Xxxxx
145 09-0002441 Group 0 Xxxxxxx Xxxx Xxxxxx Xxxxxxxx 0000 Xxxxxx Xxx
146 09-0002348 Group 1 American Sale Building 000 Xxxxx Xxxxxx Xxxxxxxxx
147 09-0002388 Group 1 Cumberland Station 000 Xxxxx Xxxxxxxxx Xxxxxx
150 09-0002401 Group 0 Xxxxxxx xx Xxxxxxxxx Xxxxxx 000 Xxxxx Xxxxxxx 000
151 09-0002402 Group 1 Xxxx Xxxx Xxxxxx XX 000 Xxxxxxx Xxxxx
152 09-0002376 Group 0 Xxxxxxxxx Xxxxx 0000 Xxxxx Xxxx Xxxx
156 09-0002384 Group 1 Pyramid V 4494 North Xxxx Xxxxx Parkway &
0000 Xxxxxxx Xxxxxxxx Xxxxxxxxx
157 09-0002390 Group 1 Xxxxxxxx'x Landing 000 Xxxx Xxxxxxxx
159 09-0002428 Group 1 Stonecrest 0000 Xxxxxx Xxxx Xxxx
Xxxxxxx Xxxxx Remaining
Control Cut-Off Date Debt Interest Term To
Number City State Zip Code Balance ($) Service ($) Rate (%) Maturity (Mos.)
------- ----------------- -------------------- ----------- ------------ ------------ -------- ---------------
1 Xxxxxx Xxxxxxxxxxxxx 00000 210,000,000 1,082,503.82 6.10100% 58
5 Xxxxx Xxxxxx Xxxxxxx 00000 169,677,544 1,001,272.39 5.83500% 58
7 Xxxxxxxx Xxxxxxxxxx 00000 130,000,000 695,603.82 6.33300% 117
10 Xxxxxxx Xxxxxxxx 00000 116,550,000 1,360,691.27 6.21800% 118
17 Xxxxxxx Xxxxxxxxxx 00000 75,250,000 377,851.68 5.94300% 119
25 Xxxxxxxx Xxxxxxxxxx 00000 44,952,570 261,180.18 5.70000% 000
00 Xxxxxxxxx Xxxxxx 00000 31,807,658 178,808.10 5.30000% 000
00 Xxxxxxxx Xxxxxxxx 00000 24,515,827 150,470.15 6.22000% 120
36 Xxxxxxxxx Xxxxxxxx 00000 23,780,000 142,267.49 5.98000% 120
37 Xxxxx Xxxxxxx 00000 23,500,000 133,430.42 5.50000% 000
00 Xxx Xxxxx Xxxxxx 00000 23,500,000 135,056.78 5.61000% 112
39 Xxxxxxxx Xxx Xxxxxx 00000 23,000,000 137,453.31 5.97000% 119
40 Xx Xxxxxx Xxxxxxxxxx 00000 22,800,000 133,799.68 5.80000% 000
00 Xxxxx Xxxxxxx Xxxxxxxxxx 00000 19,150,000 113,218.30 5.87000% 119
47 Xxxxxxx Xxxx Xxxxxxxx 00000 19,070,000 100,057.91 6.21000% 000
00 Xxxxx Xxxx Xxxxx 00000 18,850,000 97,470.21 6.12000% 120
49 Xxxxxxxxxxxxx Xxxxxxxx 00000 18,237,060 102,848.02 5.42000% 118
00 Xxxxxxxxxx Xxxxxxxx xx Xxxxxxxx 00000 18,100,000 94,662.58 6.19000% 59
54 Xxxxxxxxx Xxxxx 00000 17,420,000 88,751.27 6.03000% 120
55 Xxxxxxxxxx Xxxxx 00000 17,200,000 102,349.89 5.93000% 119
57 Xxxxxxxxxx Xxxxxxx 00000 17,000,000 86,324.19 6.01000% 000
00 Xxx Xxxxx Xxxxxx 00000 14,000,000 82,949.55 5.89000% 120
70 Xxxxxxxx Xxxxxxxxxx 00000 13,100,000 75,535.10 5.64000% 000
00 Xxxx Xxxxxxxxxx 00000 12,500,000 74,462.31 5.94000% 000
00 Xxxxxxxxx Xxxxxx 00000 12,000,000 73,808.04 6.24000% 118
76 Xxxx Xxxxx Xxxxxxx 00000 11,800,000 71,507.39 6.10000% 118
77 Xxxx Xxxxxxx Xxxxxxxxxx 00000 11,400,000 67,471.74 5.88000% 120
78 Xxxxxxxxxx Xxxxxxx 00000 11,100,000 55,051.63 5.87000% 118
80 Xxxxxxxxxxx Xxxxxxx 00000 10,860,140 66,656.00 6.22000% 000
00 Xxxxxxxx Xxxxxxxx 00000 10,750,000 66,119.70 6.24000% 117
84 Xxxxxxxx Xxx Xxxxxx 00000 10,000,000 59,955.05 6.00000% 119
87 Xxxxxx Xxxxxxxx 00000 9,400,000 56,660.28 6.05000% 118
88 Xxxxxxxxx Xxxxxxxxx 00000 9,260,000 59,775.57 6.02000% 120
90 Xxxxxxxxx Xxxxx Xxxxxxxx 00000 9,100,000 56,712.66 6.36500% 117
91 Xxxxxxx Xxxxx Xxxxxxxx 00000 8,800,000 53,964.55 5.97000% 120
92 Xxxxxxxxxxxx Xxxxxxxxxxxx 00000 8,600,000 53,119.59 6.28000% 116
95 Xxxxxxxxxx Xxx Xxxxxx 00000 8,484,631 51,235.36 6.05000% 000
00 Xxxxxx Xxxxx 00000 8,200,000 42,054.42 6.07000% 120
99 7,900,000 50,610.46 5.94000% 120
99.01 Xxxxxxxxxxx Xxxxxxxxxxxx 00000
99.02 Xxxxx Xxxxxxxxxxxx 00000
000 Xxxxxxx Xxxxxxxxx 00000 7,855,000 47,854.88 6.15000% 120
000 Xxxxx Xxxxx Xxx Xxxx 00000 7,600,000 46,399.79 6.17000% 119
104 XxXxxxxx Xxxxxxxxx 00000 7,447,000 45,852.46 6.25000% 118
106 Middlesex Xxxxxxx Xxx Xxxxxx 00000 7,200,000 42,429.80 5.84000% 120
108 Xxxxxxx Xxxxxxx 00000 7,000,000 42,419.64 6.10000% 83
000 Xxxxxxxxxxxx Xxxxxxx 00000 6,973,364 53,017.59 6.70000% 118
110 Xxx Xxxx Xxxxxxx 00000 6,800,000 40,333.28 5.90000% 000
000 Xxxxxxxxxx Xxxxxxxx 00000 6,800,000 39,985.86 5.82000% 117
000 Xxxx Xxxxxxx Xxx Xxxxxx 00000 6,600,000 39,147.01 5.90000% 120
114 Xxxxxxx Xxxxx Xxxxxxxx 00000 6,600,000 40,465.79 6.21000% 117
115 Xxxxx Xxxxxxx 00000 6,580,000 42,475.51 6.02000% 000
000 Xxxxxx Xxxxx 00000 6,568,000 38,831.22 5.87000% 000
000 Xxxx Xxxxx Xxxxxxxx 00000 6,500,000 41,483.16 5.90000% 120
120 Xxxxxxxxxx Xxxxxxxx 00000 6,000,000 35,818.88 5.96000% 000
000 Xxxxxx Xxxx 00000 5,780,000 34,098.58 5.85000% 000
000 Xxxxxx Xxxxx 00000 5,750,000 29,537.96 6.08000% 120
124 Xxxxxxx Xxxxxxx 00000 5,634,710 34,946.84 6.31000% 000
000 Xxxxxxxx Xxxxxxxx 00000 5,450,000 33,167.66 6.14000% 000
000 Xxxxxx Xxxxxxxx 00000 5,400,000 33,459.74 6.31000% 000
000 Xxxxxxxxxx Xxxxxxxx 00000 5,200,000 31,511.73 6.10000% 120
132 Xxxxxxx Xxxxx Xxxxxxxx 00000 5,150,000 31,242.01 6.11000% 118
000 Xxxxxx Xxxxxx Xxxxxxxxxx 00000 5,100,000 32,921.75 6.02000% 120
135 Xxxxxxxxxxx Xxx Xxxx 00000 5,000,000 24,882.52 5.89000% 119
136 Xxxxxx Xxxx 00000 4,800,000 29,087.75 6.10000% 000
000 Xxxxxxx Xxx Xxxxxx 00000 4,540,000 27,747.20 6.18000% 118
143 Xxxxxxx Xxxxxxx 00000 4,390,000 27,087.12 6.27000% 000
000 Xxxxxxx Xxxxxxxxx 00000 4,250,000 25,837.19 6.13000% 000
000 Xxxxxxx Xxxxxxxxx 00000 4,070,000 24,454.07 6.02000% 120
146 Xxxxxxxxxx Xxxxxxxx 00000 4,044,147 26,069.46 5.99000% 119
147 Xxxxxxxxxx Xxxxxxxxx 00000 3,930,000 23,968.12 6.16000% 119
150 Xxxxxxxxx Xxxxxxxx 00000 3,700,000 22,135.82 5.98000% 000
000 Xxxxxxx Xxxxxxxxx 00000 3,196,820 19,206.20 6.01000% 119
152 Xxxxxx Xxxxxxx 00000 2,548,000 15,506.64 6.14000% 117
156 Xxxxxxx Xxxxxxx 00000 2,295,971 14,071.86 6.19000% 118
157 Xxxxxx Xxxxxxxxx 00000 2,100,000 12,821.00 6.17000% 118
159 Xxxxxxxx Xxxxxxx 00000 1,672,000 10,392.86 6.34000% 120
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
------- ------------- ----------------- ---------- ------------ ------------ -------------- --------- -----------
1 8/6/2011 0 Actual/360 0.02000% 0.02049% No GSMC
5 8/6/2011 358 Actual/360 0.02000% 0.02049% Yes GSMC
7 7/6/2016 0 Actual/360 0.01500% 0.02000% 0.03549% No GSMC
10 8/1/2016 0 Actual/360 0.02000% 0.02049% No GSMC
17 9/6/2016 0 Actual/360 0.02000% 0.02049% No GSMC
25 9/6/2016 359 Actual/360 0.02000% 0.02049% No GSMC
31 11/6/2015 349 Actual/360 0.02000% 0.02049% No GSMC
35 10/1/2016 360 Actual/360 0.02000% 0.02049% No GSMC
36 10/1/2016 360 Actual/360 0.02000% 0.02049% No GSMC
37 9/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
38 2/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
39 9/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
40 10/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
46 9/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
47 10/1/2016 0 Actual/360 0.02000% 0.02049% No GSMC
48 10/6/2016 0 Actual/360 0.04000% 0.02000% 0.06049% No GSMC
49 8/6/2016 358 Actual/360 0.02000% 0.02049% No GSMC
51 9/6/2011 0 Actual/360 0.02000% 0.02049% No GSMC
54 10/6/2016 0 Actual/360 0.02000% 0.02049% No GSMC
55 9/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
57 9/6/2016 0 Actual/360 0.02000% 0.02049% No GSMC
66 10/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
70 10/1/2016 360 Actual/360 0.05000% 0.01000% 0.06049% No GSMC
72 9/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
75 8/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
76 8/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
77 10/6/2016 360 Actual/360 0.02000% 0.02049% Yes GSMC
78 8/6/2016 0 Actual/360 0.05000% 0.02000% 0.07049% No GSMC
80 10/1/2016 360 Actual/360 0.02000% 0.02049% No GSMC
81 7/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
84 9/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
87 8/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
88 10/6/2016 300 Actual/360 0.02000% 0.02049% Yes GSMC
90 7/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
91 10/6/2016 336 Actual/360 0.02000% 0.02049% Yes GSMC
92 6/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
95 8/6/2016 358 Actual/360 0.02000% 0.02049% No GSMC
96 10/6/2016 0 Actual/360 0.04000% 0.02000% 0.06049% No GSMC
99 10/6/2016 300 Actual/360 0.02000% 0.02049% No GSMC
99.01 No
99.02 No
100 10/6/2016 360 Actual/360 0.05000% 0.02000% 0.07049% No GSMC
102 9/6/2016 360 Actual/360 0.05000% 0.02000% 0.07049% No GSMC
104 8/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
106 10/1/2016 360 Actual/360 0.05000% 0.01000% 0.06049% No GSMC
108 9/6/2013 360 Actual/360 0.02000% 0.02049% No GSMC
109 8/6/2016 238 Actual/360 0.02000% 0.02049% No GSMC
110 10/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
111 7/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
113 10/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
114 7/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
115 10/6/2016 300 Actual/360 0.02000% 0.02049% No GSMC
116 10/1/2016 360 Actual/360 0.02000% 0.02049% No GSMC
117 10/6/2016 300 Actual/360 0.02000% 0.02049% No GSMC
120 8/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
122 10/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
123 10/6/2016 0 Actual/360 0.04000% 0.02000% 0.06049% No GSMC
124 9/6/2016 359 Actual/360 0.02000% 0.02049% No GSMC
126 10/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
129 7/6/2016 360 Actual/360 0.05000% 0.02000% 0.07049% No GSMC
131 10/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
132 8/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
133 10/6/2016 300 Actual/360 0.02000% 0.02049% No GSMC
135 9/6/2016 0 Actual/360 0.02000% 0.02049% No GSMC
136 8/6/2016 360 Actual/360 0.05000% 0.02000% 0.07049% No GSMC
138 8/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
143 8/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
144 9/6/2016 360 Actual/360 0.02000% 0.02049% Yes GSMC
145 10/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
146 9/6/2016 299 Actual/360 0.02000% 0.02049% No GSMC
147 9/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
150 9/1/2016 360 Actual/360 0.08000% 0.01000% 0.09049% No GSMC
151 9/6/2016 359 Actual/360 0.02000% 0.02049% Yes GSMC
152 7/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
156 8/6/2016 358 Actual/360 0.02000% 0.02049% No GSMC
157 8/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
159 10/6/2016 360 Actual/360 0.02000% 0.02049% No GSMC
Crossed With Companion Loan
Control Other Loans Companion Loan Companion Loan Monthly
Number Prepayment Provision (1) (Crossed Group) Flag Cut-off Balance Payment
------- ---------------------------------------------- --------------- -------------- --------------- --------------
1 Lockout/23_YM/32_0%/4
5 Lockout/26_Defeasance/27_0%/7
7 Lockout/27_Defeasance/89_0%/4
10 Lockout/26_Defeasance/90_0%/4 Yes 259,000,000.00 612,311.07
17 Lockout/25_Defeasance/91_0%/4
25 Lockout/25_Defeasance/91_0%/4
31 Lockout/35_Defeasance/81_0%/4
35 Lockout/24_Defeasance/92_0%/4
36 Lockout/24_Defeasance/92_0%/4
37 Lockout/25_Defeasance/91_0%/4
38 Lockout/32_Defeasance/84_0%/4
39 Lockout/25_Defeasance/91_0%/4
40 Lockout/24_Defeasance or
Greater of YM or 1%/89_0%/7
46 Lockout/25_Defeasance/91_0%/4
47 Lockout/24_Defeasance/92_0%/4
48 Lockout/23_>YM or 1%/90_0%/7
49 Lockout/26_Defeasance/90_0%/4
51 Lockout/25_Defeasance/30_0%/5
54 Lockout/24_Defeasance/92_0%/4
55 Lockout/25_Defeasance/91_0%/4
57 Lockout/25_Defeasance/91_0%/4
66 Lockout/24_Defeasance/92_0%/4
70 Lockout/24_Defeasance/92_0%/4
72 Lockout/25_Defeasance/91_0%/4
75 Lockout/26_Defeasance or
Greater of YM or 1%/90_0%/4
76 Lockout/26_Defeasance/90_0%/4
77 Lockout/24_Defeasance/92_0%/4
78 Lockout/23_>YM or 1%/90_0%/7
80 Lockout/24_Defeasance/92_0%/4
81 Lockout/27_Defeasance/89_0%/4
84 Lockout/25_Defeasance/91_0%/4
87 Lockout/26_Defeasance/90_0%/4
88 Lockout/24_Defeasance/92_0%/4
90 Lockout/27_Defeasance/89_0%/4
91 Lockout/24_Defeasance/92_0%/4
92 Lockout/28_Defeasance/88_0%/4
95 Lockout/26_Defeasance/90_0%/4
96 Lockout/23_>YM or 1%/90_0%/7
99 Lockout/24_Defeasance/92_0%/4 1,054,570.95
99.01
99.02
100 Lockout/24_Defeasance/92_0%/4
102 Lockout/25_Defeasance or Greater of
YM or 1%/91_0%/4
104 Lockout/26_Defeasance/90_0%/4
106 Lockout/24_>YM or 1%/92_0%/4
108 Lockout/25_Defeasance/55_0%/4
109 Lockout/26_Defeasance/90_0%/4
110 Lockout/24_Defeasance/92_0%/4
111 Lockout/27_Defeasance/89_0%/4
113 Lockout/24_Defeasance/92_0%/4
114 Lockout/27_Defeasance/89_0%/4
115 Lockout/24_Defeasance/92_0%/4
116 Lockout/24_Defeasance/92_0%/4
117 Lockout/24_Defeasance/92_0%/4
120 Lockout/26_Defeasance/90_0%/4
122 Lockout/24_Defeasance/92_0%/4
123 Lockout/23_>YM or 1%/90_0%/7
124 Lockout/25_Defeasance/91_0%/4
126 Lockout/24_Defeasance or Greater
of YM or 1%/92_0%/4
129 Lockout/27_Defeasance or Greater
of YM or 1%/89_0%/4
131 Lockout/24_Defeasance/92_0%/4
132 Lockout/26_Defeasance/90_0%/4
133 Lockout/24_Defeasance/92_0%/4
135 Lockout/25_Defeasance/91_0%/4 81,885,336.29 517,020.46
136 Lockout/26_Defeasance/90_0%/4
138 Lockout/26_Defeasance/90_0%/4
143 Lockout/26_>YM or 1%/90_0%/4
144 Lockout/23_Greater of YM or 1%/2_Defeasance
or Greater of YM or 1%/91_0%/4
145 Lockout/24_Defeasance/92_0%/4
146 Lockout/25_Defeasance/91_0%/4
147 Lockout/25_Defeasance/91_0%/4
150 Lockout/23_>YM or 1%/93_0%/4
151 Lockout/23_Greater of YM or 1%/2_Defeasance or
Greater of YM or 1%/91_0%/4
152 Lockout/27_Defeasance/89_0%/4
156 Lockout/26_Defeasance/90_0%/4
157 Lockout/26_Defeasance/90_0%/4
159 Lockout/24_Defeasance/92_0%/4
Companion Loan Companion Loan
Remaining Remaining Companion Loan Subordinate Subordinate Subordinate
Control Companion Loan Term To Amortization Term Servicing Companion Loan Companion Loan Companion Loan
Number Interest Rate Maturity (Mos.) (Mos.) Fees Flag Cut-off Balance Monthly Payment
------- -------------- --------------- ----------------- -------------- -------------- --------------- ---------------
1
5 Yes 25,000,000.00 147,245.94
7
10 6.21800% 118 0
17
25
31
35
36
37
38
39
40
46
47
48
49
51
54
55
57
66
70
72
75
76
77
78
80
81
84
87
88
90
91
92
95
96
99 0.01000%
99.01
99.02
100
102
104
106
108
109
110
111
113
114 Yes 419,000.00 4,553.24
115
116
117
120
122
123
124
126
129
131
132
133
135 0.01000%
136 Yes 300,000.00 3,260.08
138
143
144
145
146
147
150
151
152
156
157
159
Subordinate Subordinate Companion Subordinate
Subordinate Companion Loan Loan Remaining Companion Loan
Control Companion Loan Remaining Term To Amortization Term Servicing
Number Interest Rate Maturity (Mos.) (Mos.) Fees
------- -------------- ----------------- --------------------- --------------------------------------
1
5 5.83500% 58 358 0.0100%
7
10
17
25
31
35
36
37
38
39
40
46
47
48
49
51
54
55
57
66
70
72
75
76
77
78
80
81
84
87
88
90
91
92
95
96
99
99.01
99.02
100
102
104
106
108
109
110
111
113
114 12.75000% 000 000 0xx upon Securitization of Subordinate
Companion Loan
115
116
117
120
122
123
124
126
129
131
132
133
135
136 12.75000% 000 000 0xx upon Securitization of Subordinate
Companion Loan
138
143
144
145
146
147
150
151
152
156
157
159
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 on 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
------ -------------
1 One Beacon Street
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
None
Exhibit B-26
List of Mortgage Loans with Permitted Release
in Connection with the Substitution of a Replacement Property
-------------------------------------------------------------
None
Exhibit B-39
Mortgage Loans Secured By A Leasehold Interest In
All Or A Material Portion Of The Related Mortgaged Property
-----------------------------------------------------------
Loan No. Mortgage Loan/ Mortgaged Property
-------- ---------------------------------
5 Village of Xxxxxxx Park
00 Xxxxxxx Xxxxxx Retail Center
88 The Grande 16
91 Mission Valley Shopping Center
000 Xxxx Xxxx Xxxxxx X
000 Xxxx Xxxx Xxxxxx II
EXHIBIT C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Representation Description of Exception
(8) Loan No. 104 (LaCrosse Three Rivers Plaza). The City
Mortgage Lien of LaCrosse has a lien on the Mortgaged Property to
secure Mortgagor's obligations to perform with
respect to a tax incentive agreement and in
accordance with the related Development Agreement.
Notwithstanding the subordination of the lien to the
Mortgage, the City has reserved any rights to
partially foreclose to the extent of its lien
interest securing obligations to perform in lieu of
tax payment.
(10) Loan Xx. 000 (XxXxxxxx Xxxxx Xxxxxx Xxxxx). Xxx Xxxx
Taxes and Assessments of LaCrosse has a lien on the Mortgaged Property to
secure Mortgagor's obligations to perform with
respect to a tax incentive agreement and in
accordance with the related Development Agreement.
Notwithstanding subordination of the lien to the
Mortgage, the City has reserved any rights to
partially foreclose to the extent of its lien
interest securing obligations to perform in lieu of
tax payment.
(13) Loan No. 5 (Village of Xxxxxxx Park). Business
Insurance interruption insurance is required in an amount to
cover from the date of the casualty to the date of
the Mortgaged Property is repaired, plus an extended
period of indemnity for 60 days after completion of
restoration.
Loan No. 146 (American Sale Building). The tenant,
American Sales Corp., is obligated to carry and pay
for insurance coverage and is entitled to collect on
insurance proceeds.
(23) Loan No. 1 (One Beacon Street). The Mortgagor must
Transfers and at all times be controlled and at least 50% owned by
Subordinate Debt one or more Permitted Transferees. "Permitted
Transferee" shall mean (i) BCSP IV U.S. Investments,
L.P. (a Delaware limited partnership) so long as it
is (directly or indirectly) controlled and at least
75% owned by the Fund, (ii) any bank, savings and
loan association, investment bank, insurance
company, trust company, commercial credit
corporation, pension plan, pension fund, pension
advisory firm, mutual fund, government entity or
plan, real estate company, investment fund or
institution substantially similar to any of the
foregoing, provided in each case that such
institution has total assets (in name or under
management) in excess of $1,500,000,000 and (except
with respect to a pension advisory firm or similar
fiduciary) capital/statutory surplus or
shareholder's equity in excess of $750,000,000, in
each case excluding the Property, and is regularly
engaged in the business of owning and operating
properties similar to the Property in major
metropolitan areas, and/or (iii) any entity with
respect to which Rating Agency Confirmation is
received.
In addition, the related loan agreement contains a
provision which allows the Mortgagor the right to
transfer all of the loan collateral to certain
single purpose entities which agree to assume the
loan obligations and which is controlled and at
least 50% owned by one or more Permitted
Transferees.
Loan No. 5 (Village of Xxxxxxx Park). The Mortgagor
must at all times be controlled and at least 40%
owned by Qualified Equityholders, provided that a
transfer of Mortgagor's equity interests to, a
pledge of direct or indirect interests in and rights
to distributions from, a Qualified Equityholders is
permitted without Mortgagee consent or rating agency
confirmation. "Qualified Equityholder" means: (i)
GGP-TRS L.L.C.; (ii) General Growth Properties,
Inc., GGP LP, the Xxxxx Company Operating
Partnership, LP, GGP/Homart Inc., GGP/Homart II,
LLC., GGP-TRS LLC., Price Development Company, LP,
GGP Ivanhoe III, Inc., the Xxxxx Company, LP, GGPLP
LLC and each of their affiliates (including
successors-in-interest) provided each maintains a
minimum undepreciated book value net worth of
$200,000,000; and (iii) an institutional entity who,
among other things, maintains a specified net worth.
In addition, the related loan agreement contains a
provision which allows the Mortgagor the right to
transfer all of the loan collateral to certain
single purpose entities which agree to assume the
loan obligations and which is controlled and at
least 50% owned by one or more Qualified
Equityholders.
Loan No. 5 (Village of Xxxxxxx Park). Future
mezzanine debt is permitted, subject to, among other
things, a maximum combined loan-to-value ratio of
75%, a minimum aggregate debt service coverage ratio
greater than 1.20, and a debt service coverage ratio
of 1.05x calculated with a constant of 9%.
Loan No. 7 (The Alhambra). The Mortgagor must at all
times be controlled and at least 50% owned by
Qualified Equityholders, provided that a transfer of
equity interests in the Mortgagor to a Qualified
Equityholder is permitted without Mortgagee consent
or rating agency confirmation. "Qualified
Equityholder" means: (i) RM Properties, LLC (or an
Affiliate thereof which is under common Control
therewith and that has substantially the same or
greater net worth as TRC has on the date hereof), to
the extent that it does not obtain a greater
percentage of the direct or indirect equity
interests in Mortgagor than RM Properties, LLC owns
at closing, (ii) AIG Global Real Estate Investment
Corp. ("AIGGRE") (or an investment fund sponsored by
AIGGRE, provided, that: (1) the general partner or
managing member of such fund shall be AIGGRE or a
wholly owned subsidiary of AIGGRE and such general
partner or managing member will exercise sole
Control over such fund, (2) such fund shall have a
net worth in excess of $100,000,000, inclusive of
the value of any unfunded commitments to such Fund
but exclusive of its interest in the Mortgaged
Property, (3) Mortgagor shall give Lender notice of
such transfer not less than ten days after the date
such fund acquires its interest, and (4) AIGGRE,
directly or indirectly, shall retain at least 10% of
the equity interest in and rights to distributions
from such fund), (iii) any other person with respect
to which Rating Confirmation is received, or (iv) an
institutional investor who, among other things,
maintains a specified net worth.
In addition, the related loan agreement contains a
provision which allows the Mortgagor the right to
transfer all of the loan collateral to certain
single purpose entities which agree to assume the
loan obligations and which is controlled and at
least 51% owned by one or more Qualified
Equityholders.
Loan No. 10 (Fair Lakes Office Park). The Mortgagor
must at all times be controlled and at least 50%
owned by an entity controlled by Shorenstein Realty
Investors Seven, LP, the sole member of the
Mortgagor, provided that a transfer (but not a
pledge or encumbrance) for a direct or indirect
beneficial interest in Mortgagor or the Mortgaged
Property to a "Permitted Transferee" will not
require Mortgagee's consent or rating agency
confirmation. "Permitted Transferee" means: (i) a
pension fund, pension trust, pension account; (ii) a
pension fund advisor who is acting on behalf of one
or more pension funds that, in the aggregate,
satisfies requirements of a corporation defined
below; (iii) a corporation organized under the
banking laws of the United States or any state or
territory of the United States (including the
District of Columbia) with a combined capital
surplus of at least $5,000,000; (iv) an insurance
company which is subject to supervision by the
insurance commissioner, or a similar official or
agency, of a state or territory of the United States
(including the District of Columbia), and (v) any
person. Further provided that, immediately prior to
a transfer, each Permitted Transferee will, (i) own
directly or indirectly (in name or under management)
total gross real estate assets of at least
$1,000,000,000 and (ii) own or operate at least five
(5) CBD or suburban office towers totaling no less
than 5,000,000 square feet (exclusive of the
Mortgaged Property). For a Permitted Transferee who
is an insurance company or a person, each will have
a net worth, determined as of a date no more than
six (6) months prior to the date of the transfer,
not lower than $500,000,000 and $400,000,000,
respectively.
Loan No. 10 (Fair Lakes Office Park). Future
mezzanine debt is permitted, subject to, among other
things, a maximum combined loan-to-value ratio of
70%, a minimum aggregate debt service coverage ratio
greater than 1.20, and a maximum weighted loan
constant of 8.5%.
Loan No. 17 (Seattle Trade Center). The Mortgagor
must at all times be at least 50% owned by a
Shorenstein controlled entity and such entity must
remain responsible for asset and property management
decisions.
In addition, transfers to Permitted Transferees are
permitted with notice to, but without consent of,
lender. "Permitted Transferee" means, any of the
following entities (unless the entity is a
disqualified transferee):(i) a pension fund, pension
trust or pension account that immediately prior to
such transfer (a) owns, directly or indirectly,
total gross real estate assets of at least
$500,000,000 and (b) owns or operates at least five
(5) CBD or suburban office properties totaling no
less than 2,500,000 square feet (exclusive of the
Mortgaged Property); (ii) a pension fund advisor who
(a) immediately prior to such transfer, controls,
directly or indirectly, at least $500,000,000 of
total gross real estate assets, (b) owns or operates
at least five (5) CBD or suburban office properties
totaling no less than 2,500,000 square feet
(exclusive of the Mortgaged Property) and (c) is
acting on behalf of one or more pension funds that,
in the aggregate, satisfy the requirements of clause
(i) of this definition; (iii) subject to lender
approval, which will not be unreasonably withheld,
delayed or conditioned, an insurance company which
is subject to supervision by the insurance
commissioner, or a similar official or agency, of a
state or territory of the United States (including
the District of Columbia) (a) with a net worth,
determined as of a date no more than six (6) months
prior to the date of the transfer of at least
$250,000,000 and (b) which, immediately prior to
such transfer, controls, directly or indirectly,
total gross real estate assets of at least
$500,000,000; (iv) subject to lender approval, which
will not be unreasonably withheld, delayed or
conditioned, a corporation organized under the
banking laws of the United States or any state or
territory of the United States (including the
District of Columbia) (a) with a combined capital
and surplus of at least $250,000,000 and (b) which,
immediately prior to such transfer, controls,
directly or indirectly, total gross real estate
assets of at least $500,000,000; (v) any person who
(a) owns or operates at least five (5) CBD or
suburban office properties totaling no less than
2,500,000 square feet (exclusive of the Mortgaged
Property), (b) has a net worth, determined as of a
date no more than six (6) months prior to the date
of such transfer, of at least $200,000,000 and (c)
immediately prior to such transfer, controls,
directly or indirectly, total gross real estate
assets of at least $500,000,000; or (vi) any person
in which more than fifty percent (50%) of the
ownership interests are owned directly or indirectly
by any of the entities listed in subsections (iii)
through (v) of this definition of "Permitted
Transferee", or any combination of more than one
such entity, and which is controlled directly or
indirectly by such entity or entities.
Loan No. 17 (Seattle Trade Center). Future mezzanine
debt is permitted, subject to, among other things, a
maximum combined loan-to-value ratio of 70% and a
minimum aggregate debt service coverage ratio
greater than 1.20.
Loan Xx. 00 (Xxxxxxxx Xxxxxxxxx). Future mezzanine
debt is permitted, subject to, among other things:
(i) a maximum mezzanine indebtedness on all
outstanding mezzanine debt not greater than
$1,468,750; (ii) the maximum combined loan-to-value
not greater than 85% on all outstanding
indebtedness; (iii) the actual minimum combined debt
service coverage ratio is greater than 1.16 and a
ratio greater than 1.10 on the outstanding principal
of the Mortgage Loan; and (iv) all mezzanine debt
proceeds are to be applied to tenant improvement or
leasing commission expenses for new or existing
leases.
Loan No. 40 (El Dorado Hills Town Center). Future
mezzanine debt is permitted, subject to, among other
things, a combined maximum loan-to-value ratio of
80% and a minimum aggregate debt service coverage
ratio of 1.15.
Loan No. 46 (Highridge Crossings). Future mezzanine
debt is permitted, subject to, among other things, a
combined maximum loan-to-value ratio of 80% and a
minimum aggregate debt service coverage ratio of
1.15.
Loan No. 48 (Greenlawn Phase I). Future mezzanine
debt is permitted, subject to, among other things, a
combined maximum loan-to-value ratio of 85% and a
minimum aggregate debt service coverage ratio of
1.10.
Loan No. 57 (Scottsdale Gateway II). Future
mezzanine debt is permitted with a limited purpose
to incur debt in connection to construction of a
parking garage, subject to, among other things, a
combined maximum loan-to-value ratio of 80% and a
minimum aggregate debt service coverage ratio of
1.10.
Loan No. 66 (Decatur Crossing II). Future mezzanine
debt is permitted, subject to, among other things, a
combined maximum loan-to-value ratio of 75% and a
minimum aggregate debt service coverage ratio of
1.20.
Loan No. 75 (Pecos Legacy). Future mezzanine debt is
permitted, subject to, among other things, a
combined maximum loan-to-value ratio of 80% and a
minimum aggregate debt service coverage ratio of
1.15.
Loan No. 78 (Xxxxxxx at Scottsdale Ranch). Future
mezzanine debt is permitted, subject to, among other
things, a combined maximum loan-to-value ratio of
85% and a minimum aggregate debt service coverage
ratio of 1.10.
Loan No. 87 (Smithsonian Warehouse). Future
mezzanine debt is permitted, subject to, among other
things, a combined maximum loan-to-value ratio of
80% and a minimum aggregate debt service coverage
ratio of 1.15.
Loan No. 96 (Govalle). Future mezzanine debt is
permitted, subject to, among other things, a
combined maximum loan-to-value ratio of 85% and a
minimum aggregate debt service coverage ratio of
1.10.
Loan Xx. 000 (Xxxxxxxxx Xxxxxxx Xxxxx). Future
mezzanine debt is permitted, subject to, among other
things, a combined maximum loan-to-value ratio of
80% and a minimum aggregate debt service coverage
ratio of 1.15.
Loan No. 000 (Xxxxx Xxxxxx Xxxxxxx I). Future
mezzanine debt is permitted, subject to, among other
things, a combined maximum loan-to-value ratio of
85% and a minimum aggregate debt service coverage
ratio of 1.10.
Loan No. 124 (Xxxxxxx Building). Future mezzanine
debt is permitted, subject to, among other things,
(i) a combined maximum loan-to-value ratio of 85%;
(ii) a minimum aggregate debt service coverage ratio
of 1.10; and provided the mezzanine lender is either
the Florida Choice Bank or other permitted
institutional lenders.
Loan No. 131 (Battlefield Tech Center III) Parent of
the borrower has pledged its equity interest in the
borrower to secure a loan from Property Holdings
LLC. According to the related Subordination and
Standstill Agreement, the original principal balance
of the mezzanine loan has been repaid in full, and
the borrower is required to pay additional interest
on the mezzanine loan in the amount of (i) 50% of
excess cash flow from the Mortgaged Property, if
any, due and payable within 30 days after the close
of each calendar quarter and (ii) 50% of excess
proceeds from the sale of the Mortgaged Property, if
any, when received by the borrower.
Loan No. 151 (Park West Office II). Future mezzanine
debt is permitted, subject to, among other things, a
combined maximum loan-to-value ratio of 85% and a
minimum aggregate debt service coverage ratio of
1.10.
(26) Loan No. 7 (The Alhambra). The Mortgagor has the
Releases of Mortgaged right to partially release (A) a portion of the
Property Mortgaged Property for redevelopment by The Alhambra
Residential Community, LLC, upon satisfaction of
certain conditions, including among others: (1) the
lien-free completion of a certain west parking
structure, east parking structure or other parking
facilities not in existence on the origination date,
(2) certain minimum parking requirements for the new
facilities and (3) the partial release would not
increase the loan-to-value ratio of the Mortgaged
Property or reduce the revenues or the
debt-service-coverage ratio of the Mortgaged
Property; (B) a certain southwest parcel, upon
satisfaction of certain conditions, including among
others: (1) the partial release would not reduce
available parking on the Mortgaged Property, (2) the
partial release would not reduce the revenues or the
debt-service-coverage ratio of the Mortgaged
Property and (3) a maximum loan-to-value ratio of
75%, after giving effect to the partial release; and
(C) a certain eastern parcel, upon satisfaction of
certain conditions, including among others: (1) the
partial release would not reduce available parking
on the Mortgaged Property, (2) the partial release
would not reduce the revenues or the
debt-service-coverage ratio of the Mortgaged
Property and (3) the partial release would not
increase the loan-to-value ratio of the Mortgaged
Property or reduce the revenues or the
debt-service-coverage ratio of the Mortgaged
Property.
Loan No. 10 (Fair Lakes Office Park). The Mortgagor
has the right to partially release the Mortgaged
Property to an Affiliate of Mortgagor for the
development of additional buildings, upon
satisfaction of certain conditions, including among
others: (1) the partial release would not be a
"significant modification" or cause the Mortgage
Loan to cease to being a "qualified mortgage;" (2)
the Assumed DSCR on the non-released parcel,
immediately preceding the date of a partial release,
does not fall below a minimum Assumed DSCR
underwritten on the closing date provided that if
the minimum Assumed DSCR is not met due to a
proposed tenant relocation in connection to a
partial release, then cash or cash equivalents may
be deposited into the Low DSCR Reserve to satisfy
the Assumed DSCR requirements; and (3) an Appraisal
report 90 days prior to a partial release confirms a
loan-to-value ratio on the non-released parcel that
is not greater than the maximum loan-to-value ratio
underwritten at closing.
Loan No. 17 (Seattle Trade Center). The Mortgagor
has the right to release a condominium or similar
interest comprised of all or a portion of the air
rights above the parking garage in connection with a
transfer to an affiliate of the Mortgagor for the
development of a residential development in a manner
that is compatible with the character, nature and
quality of the Mortgaged Property, subject to the
satisfaction of certain conditions including, among
others: (i) no improved portion of the Mortgaged
Property will be released, (ii) after giving effect
to the release, the debt-service-coverage ratio does
not decline and is not less than the
debt-service-coverage ratio for the Mortgaged
Property as of the date of origination and (iii)
after giving effect to the release, the
loan-to-value ratio is not greater than the
loan-to-value ratio of the Mortgaged Property as of
the date of origination.
Loan No. 51 (1301 Connecticut Avenue, NW). The
Mortgagor has the right to partially release the
Mortgaged Property upon the prepayment or defeasance
of an amount equal to $2,000,000 (or $1,750,000 if
certain leasing conditions are satisfied prior to 90
days of closing) and an additional yield maintenance
premium if prepaid during the lockout period or an
additional partial defeasance premium if prepaid
thereafter.
Loan No. 91 (Mission Valley Shopping Center). The
Mortgagor has to right to partially release a
certain portion of the Mortgaged Property presently
improved with a Blockbuster, through partial
defeasance, subject to the satisfaction of certain
conditions, including among others: (i) defeasance
of the principal amount of the greater of (a)
$1,100,000 or (b) an amount equal to 110% of the
appraised value of the released parcel, (ii) the
debt-service-coverage ratio for the remaining
portion of the Mortgaged Property shall be equal to
or greater than (a) 1.15x and (b) 0.90x utilizing a
mortgage constant equal to 9.25% and (iii) the
loan-to-value ratio for the remaining properties
shall be equal to or less than 80%.
(27) Loan No. 35 (Copper Beech Townhomes-Missouri) The
Local Law Compliance Mortgaged Property must designate nine (9)
additional parking spaces as complying with
Americans with Disabilities Act requirements no
later than 60 days post-loan closing.
(29) Loan Xx. 00 (Xxxxxxxx Xxxxxxxx Xxxx). The
Single Purpose Entity requirement for an independent director and delivery
of a non-consolidation opinion were waived unless
such opinion would be required by any Rating Agency
in connection with a securitization or a property
transfer.
Loan No. 35 (Copper Beech Townhomes-Missouri) and
Loan No. (Copper Beech Townhomes-Michigan). The
requirement for an independent director and delivery
of a non-consolidation opinion were waived, unless
required in connection with a securitization or a
transfer.
Loan Xx. 00 (Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx). The
requirement for an independent director was waived.
Loan Xx. 00 (Xxxxxxxx Xxxxxxxxx). The requirement
for an independent director and delivery of a
non-consolidation opinion were waived.
Loan No. 40 (El Dorado Hills Town Center). The
requirement for an independent director and the
delivery of a non-consolidation opinion were waived,
unless such opinion would be required by a Rating
Agency in connection with a securitization or a
property transfer.
(37) Loan No. 51 (1301 Connecticut Avenue). The Mortgaged
Licenses and Permits Property is operating under a partial certificate of
occupancy. Losses suffered from the absence of a
certificate of occupancy or any required permits is
a non-recourse carve out event with springing
recourse liability against the guarantor.
Loan No. 92 (Three Tower Bridge). Certificates of
occupancy were not available due to damaged records.
However, the Borough of Conshohocken, Pennsylvania
confirms that the building is legally occupied, and
the absence of certificates of occupancy is not
considered to be a violation and will not give rise
to any enforcement action. Law and Ordinance
coverage is in place and required for the term of
the loan.
Loan No. 135 (Southampton Shopping Center).
Certificates of occupancy could not be located for
the Mortgaged Property. Losses resulting from the
failure to obtain a certificate of occupancy
constitutes a non-recourse carve out event with
springing full recourse liability against the
Mortgagor.
Loan No. 138 (South Jefferson Medical Arts
Building). The Mortgaged Property is operating under
a partial certificate of occupancy. Losses suffered
from the absence of a certificate of occupancy or
any required permits is a non-recourse carve out
event with springing recourse liability against the
guarantor.
(38) Loan No. 10 (Fair Lakes Office Park) and Loan No. 17
Organization of (Seattle Trade Center). The Mortgagors of these
Mortgagors; Affiliation Mortgages have the same sponsor (Shorenstein Realty
with other Mortgagors Investors Seven, LP.).
Loan No. 35 (Copper Beech Townhomes-Missouri), Loan
No. 36 (Copper Beech Townhomes-Michigan) and Loan
No. 80 (Copper Beech Townhomes-Indiana). The
Mortgagors of these Mortgages have the same sponsor
(Xxxx X. XxXxxxxxx).
Loan No. 39 (600 Jefferson Avenue) and Loan No. 84
(100 Seacaucus Road). The Mortgagors of these
Mortgages have the same sponsor (Xxxxx Financial).
Loan Xx.00 (Xxxxxxxxx Xxxxx I), Loan No. 78 (Xxxxxxx
at Scottsdale Ranch), Loan Xx. 00 (Xxxxxxx), Xxxx
Xx. 000 (Xxxxx Xxxxxx Xxxxxxx I) and. The Mortgagors
of these Mortgages have the same sponsors (Xxxx
Xxxxxxx: all four Mortgages) (Xxxx Xxxxxxx:
Greenlawn Phase I, Govalle and Shady Hollow Village
I).
Loan Xx. 00 (Xxx Xxxxxx 00), Xxxx Xx. 000 (Xx Star
16) and Loan No. 133 (Xxxxxx Grande Stadium 10). The
Mortgagors of these Mortgages have the same sponsor
(EPT DownREIT, Inc.).
Loan No. 113 (East Windsor Medical Arts Building)
and Loan No. 138 (South Jefferson Medical Arts
Building). The Mortgagors of these Mortgages have
the same sponsor (Xxxxx Xxxxxx).
Loan No. 144 (Park West Office I) and Loan No. 151
(Park West Office II). The Mortgagors of these
Mortgages have the same sponsors (Xxxx Xxxxxxx and
Xxxxx Xxxxxxx).
(40) Loan No. 1 (One Beacon Street), Loan No. 5 (Village
Recourse of Xxxxxxx Park) and Loan No. 17 (Seattle Trade
Center). The loan is recourse only to the Borrower.
Loan No. 10 (Fair Lakes Office Park Office). The
Mortgagor (SRI Seven Fair Lakes LLC) is the
guarantor and has limited non-recourse carve out and
environmental liability.
Loan Xx. 00 (Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx). The
Mortgage Loan does not have a non-recourse carve out
guarantor.
Loan No. 120 (Southshore Shops). The Mortgage Loan
does not have a non-recourse carve out for
environmental liability.
(46) Loan No. 5 (Village of Xxxxxxx Park). The Mortgage
Subordinate Debt Loan is an A/B Loan and the related B Note is also
secured by the Mortgaged Property. The holder of the
A Note and the B Note have entered into an
intercreditor agreement that provides that the B
note is subordinate.
Loan Xx. 00 (Xxxxxxx Xxxxxx Xxxxxx Xxxxxx). The
Mortgage Loan is secured by a second lien Deed of
Trust on the Mortgaged Property. The holder of the
Mortgage and the holder of the second lien Deed of
Trust have entered into a subordination and
intercreditor agreement effective at the date of
origination, subject to a covenant to deliver within
sixty (60) days of origination. If the Mortgagor
does not deliver a fully executed agreement, then
the loan become full recourse to the Mortgagor.
Loan No. 114 (Lichtins Office). The Mortgage Loan is
an A/B Loan and the related B Note is also secured
by the Mortgaged Property. The holder of the A Note
and the B Note have entered into an intercreditor
agreement that provides that the B note is
subordinate.
Loan No. 136 (Xxxxxxxx Town Center) The Mortgage
Loan is an A/B Loan and the related B Note is also
secured by the Mortgaged Property. The holder of the
A Note and the B Note have entered into an
intercreditor agreement that provides that the B
note is subordinate.
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
Xxxxxxx Sachs Mortgage Company ("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, 2006, 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 ___ day of October, 2006.
XXXXXXX XXXXX MORTGAGE COMPANY
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.
