EXHIBIT 99.1
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective March 14, 2006, between German American Capital Corporation, as seller
(the "Seller"), and Deutsche Mortgage & Asset Receiving Corporation, as
purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the commercial, multifamily and manufactured housing
mortgage loans (collectively, the "Mortgage Loans") identified on the schedule
annexed hereto as Exhibit A (the "Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together with
other commercial, multifamily and manufactured housing mortgage loans (such
mortgage loans, the "Other Mortgage Loans") to CD 2006-CD2 Mortgage Trust, a
trust fund (the "Trust Fund") to be formed by the Purchaser, the beneficial
ownership of which will be evidenced by a series of mortgage pass-through
certificates (the "Certificates"). Certain classes of the Certificates will be
rated by Standard & Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. and ▇▇▇▇▇'▇ Investors Service, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of March 1, 2006
(the "Pooling and Servicing Agreement"), among the Purchaser as depositor,
Midland Loan Services, Inc., as the master servicer with respect to all of the
Mortgage Loans other than the Mortgage Loans sold by Citigroup Global Markets
Realty Corp. (the "Master Servicer"), Wachovia Bank, National Association, as
master servicer with respect to all of the Mortgage Loans sold to the Purchaser
by Citigroup Global Markets Realty Corp. (the "Other Servicer"), LNR Partners,
Inc., as special servicer (in such capacity, the "Special Servicer") and ▇▇▇▇▇
Fargo Bank, N.A., as trustee (the "Trustee").
The Purchaser intends to sell certain of the Certificates to Deutsche Bank
Securities Inc. ("DBS"), Citigroup Global Markets Inc. ("CGM"), PNC Capital
Markets LLC ("PNCCM"), Nomura Securities International, Inc. ("Nomura"), ▇.▇.
▇▇▇▇▇▇ Securities Inc. ("JPMorgan") and Wachovia Capital Markets, LLC ("Wachovia
Securities" and collectively with DBS, CGM, PNCCM, Nomura and JPMorgan, the
"Underwriters") pursuant to an underwriting agreement dated February 27, 2006
(the "Underwriting Agreement"). The Purchaser intends to sell certain other
Certificates (the "Non-Registered Certificates") pursuant to a certificate
purchase agreement dated February 27, 2006 (the "Certificate Purchase
Agreement") to Deutsche Bank Securities Inc. and Citigroup Global Markets Inc.
(together, in such capacity the "Initial Purchaser"). Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Pooling and
Servicing Agreement or in the GACC Indemnification Agreement which was entered
into by the Seller, the Purchaser and the Underwriters on February 27, 2006.
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser upon receipt of the purchase price referred to in this Section 1, and
the Purchaser agrees to purchase, the Mortgage Loans; provided, that the Seller
shall retain the rights of the lender to receive any amount payable by the
related borrower (other than amounts attributable to work-out fees, which are
being sold hereby) under Section 14.4 of the loan agreement relating to the
Villas Parkmerced Mortgage Loan. The purchase and sale of the Mortgage Loans
shall take place on March 14, 2006 or such other date as shall be mutually
acceptable to the parties hereto (the "Closing Date"). As of the close of
business on the related due date for each Mortgage Loan occurring in March 2006
(the "Cut-off Date"), the Mortgage Loans will have an aggregate principal
balance (the "Aggregate Cut-off Date Balance"), after application of all
payments of principal due thereon on or before such date, whether or not
received, of $1,340,202,555, subject to a variance of plus or minus 5%. The
purchase price of the Mortgage Loans (inclusive of accrued interest and
exclusive of the Seller's pro rata share of the costs set forth in clause (c) of
Section 9 hereof) (the "Mortgage Loan Purchase Price") shall be $ .
SECTION 2. Conveyance of Mortgage Loans.
(a) On the Closing Date, subject only to receipt by the Seller of the
purchase price referred to in Section 1 hereof, the satisfaction of the other
closing conditions required to be satisfied on the part of Purchaser pursuant to
Section 7 and the issuance of the Certificates, the Seller agrees to (i) sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the Mortgage
Loans identified on the Mortgage Loan Schedule, including all rights to payment
in respect thereof, which includes all interest and principal received or
receivable by the Seller on or with respect to the Mortgage Loans after the
Cut-off Date (subject to the proviso in the next sentence), together with all of
the Seller's right, title and interest in and to the proceeds of any related
title, hazard, or other insurance policies and any escrow, reserve or other
comparable accounts related to the Mortgage Loans subject to that certain
Servicing Rights Purchase Agreement dated as of March 14, 2006 between the
Master Servicer and the Seller; provided, however, to the extent the originator
of a Mortgage Loan has the right, pursuant to the related Mortgage Loan
documents, to establish or designate the successor borrower with respect to a
defeasance and to purchase or cause to be purchased the related defeasance
collateral, such right is retained by the Seller and not transferred to the
Purchaser herein; provided, further, that the Seller shall retain the rights of
the lender to receive any amount payable by the related borrower (other than
amounts attributable to work-out fees, which are being sold hereby) under
Section 14.4 of the loan agreement relating to the Villas Parkmerced Mortgage
Loan. The Purchaser shall be entitled to (and, to the extent received by or on
behalf of the Seller, the Seller shall deliver or cause to be delivered to or at
the direction of the Purchaser) all scheduled payments of principal and interest
due on the Mortgage Loans after the Cut-off Date, and all other recoveries of
principal and interest collected thereon after the Cut-off Date; provided,
however, that all scheduled payments of principal and interest accrued but not
paid thereon, due on or before the Cut-off Date and collected after the Cut-off
Date shall belong to the Seller, and the Purchaser or its successors or assigns
shall promptly remit any such payments to the Seller.
On or prior to the Closing Date, the Seller shall retain a third party
vendor reasonably satisfactory to the Controlling Class Representative to
complete the assignment and recordation of the related Loan Documents. On or
promptly following the Closing Date, the Seller shall cause such third party
vendor, to the extent possession of recorded copies of each Mortgage and the
documents described in clauses (iii), (iv), (v), (viii), (xiii) and (xiv) of
Exhibit B have been delivered to it, at the expense of the Seller, (1) to
prepare and record (a) each Assignment of Mortgage referred to in clause (iii)
of Exhibit B which has not yet been submitted for recording and (b) each
Reassignment of Assignment of Leases, Rents and Profits referred to in clause
(viii)(B) of Exhibit B (if not otherwise included in the related Assignment of
Mortgage) which has not yet been submitted for recordation; and (2) to prepare
and file each UCC assignment of financing statement referred to in clause (v) or
(xiii) which has not yet been submitted for filing or recording. The Seller
shall direct the related third party vendor to promptly prepare and submit (and
in no event later than 30 Business Days following the receipt of the related
documents in the case of clause 1(a) above and 60 days following the receipt of
the applicable documents in the case of clauses 1(b) and 2 above) for recording
or filing, as the case may be, in the appropriate public recording or filing
office, each such document. In the event that any such document is lost or
returned unrecorded because of a defect therein, the Seller, at its expense,
shall promptly prepare a substitute document for signature by the Purchaser or
itself, as applicable, and thereafter the Seller shall cause each such document
to be duly recorded or filed. The Seller shall, promptly upon receipt of the
original recorded or filed copy (and in no event later than five Business Days
following such receipt) deliver such original to the Custodian (in the case of
each UCC financing statement or UCC assignment of financing statement, with
evidence of filing or recording thereon). Notwithstanding anything to the
contrary contained in this Section 2, in those instances where the public
recording office retains the original Mortgage, Assignment of Mortgage or
Reassignment of Assignment of Leases, Rents and Profits, if applicable, after
any has been recorded, the obligations hereunder of the Purchaser shall be
deemed to have been satisfied upon delivery to the Custodian of a copy of such
Mortgage, Assignment of Mortgage or Reassignment of Assignment of Leases, Rents
and Profits, if applicable, certified by the public recording office to be a
true and complete copy of the recorded original thereof.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller shall deliver to and deposit with, or cause to be delivered to
and deposited with, the Custodian, on or before the Closing Date, the Note for
each Mortgage Loan so assigned or Serviced Companion Loan and, within 30 days
following the Closing Date, the remaining applicable documents in Exhibit B for
each such Mortgage Loan or Serviced Companion Loan, in each case with copies to
the Master Servicer.
If the Seller cannot deliver, or cause to be delivered, as to any Mortgage
Loan, the original Note, the Seller shall deliver a copy or duplicate original
of such Note, together with an affidavit certifying that the original thereof
has been lost or destroyed and an indemnification in connection therewith in
favor of the Trustee.
If the Seller cannot deliver, or cause to be delivered, as to any Mortgage
Loan, the original or a copy of any of the documents and/or instruments referred
to in clauses (ii), (v), (viii)(A), (xiv) and (xvi) of Exhibit B and the UCC
financing statements and UCC assignments of financing statements referred to in
clause (xiii) of Exhibit B, with evidence of recording or filing thereon, solely
because of a delay caused by the public recording or filing office where such
document or instrument has been delivered for recordation or filing, or because
such original recorded or filed document has been lost or returned from the
recording or filing office and subsequently lost, as the case may be, the
delivery requirements of this Section 2(b) shall be deemed to have been
satisfied as to such missing item, and such missing item shall be deemed to have
been included in the related Mortgage File, provided that a copy of such
document or instrument (without evidence of recording or filing thereon, but
certified (which certificate may relate to multiple documents and/or
instruments) by the applicable public recording or filing office, the applicable
title insurance company or by the Seller to be a true and complete copy of the
original thereof submitted for recording or filing, as the case may be) has been
delivered to the Trustee within 45 days after the Closing Date, and either the
original of such missing document or instrument, or a copy thereof, with
evidence of recording or filing, as the case may be, thereon, is delivered to or
at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee) within 180 days after
the Closing Date (or within such longer period after the Closing Date as the
Purchaser (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Seller has provided the Purchaser (or such
subsequent owner) with evidence of such recording or filing, as the case may be,
or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or filing, as the case may be, and is, as certified
to the Purchaser (or such subsequent owner) no less often than quarterly, in
good faith attempting to obtain from the appropriate county recorder's or filing
office such original or copy).
If the Seller cannot deliver, or cause to be delivered, as to any Mortgage
Loan, the original or a copy of the related lender's title insurance policy
referred to in clause (vii) of Exhibit B solely because such policy has not yet
been issued, the delivery requirements of this Section 2(b) shall be deemed to
be satisfied as to such missing item, and such missing item shall be deemed to
have been included in the related Mortgage File, provided that the Seller has
delivered to the Trustee a binder marked as binding and countersigned by the
title insurer or its authorized agent (which may be a pro forma or specimen
title insurance policy which has been accepted or approved in writing as binding
by the related title insurance company) or an acknowledged closing instruction
or escrow letter, and the Seller shall deliver to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee), promptly following the receipt thereof, the
original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage Loans
only one original of any document referred to in Exhibit B covering all the
Mortgage Loans in such group, then the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such group shall
be deemed an inclusion of such original in the Mortgage File for each such
Mortgage Loan. On the Closing Date, upon notification from the Seller that the
purchase price referred to in Section 1 has been received by the Seller and the
issuance of the Certificates, the Purchaser shall be authorized to release to
the Trustee or its designee all of the Mortgage Files in the Purchaser's
possession relating to the Mortgage Loans.
Notwithstanding anything herein to the contrary, with respect to the
documents referred to in clause (xvii) and clause (xviii) on Exhibit B, the
Master Servicer shall hold the original of each such document in trust on behalf
of the Trustee in order to draw on such letter of credit on behalf of the Trust
and the Seller shall be deemed to have satisfied the delivery requirements of
this Agreement by delivering the original of each such document to the Master
Servicer. The Seller shall pay any costs of assignment or amendment of such
letter of credit required (which assignment or amendment shall change the
beneficiary of the letter of credit to the Trust in care of the Master Servicer)
in order for the Master Servicer to draw on such letter of credit on behalf of
the Trust. In the event that the documents specified in clause (xviii) on
Exhibit B are missing because the related assignment or amendment documents have
not been completed, the Seller shall take all necessary steps to enable the
Master Servicer to draw on the related letter of credit on behalf of the Trust
including, if necessary, drawing on the letter of credit in its own name
pursuant to written instructions from the Master Servicer and immediately
remitting such funds (or causing such funds to be remitted) to the Master
Servicer.
Contemporaneously with the execution of this Agreement by the Purchaser
and the Seller, the Seller shall deliver a power of attorney to each of the
Master Servicer and the Special Servicer at the direction of the Controlling
Class Representative or its assignees, to take such other action as is necessary
to effect the delivery, assignment and/or recordation of any documents and/or
instruments relating to any Mortgage Loan which have not been delivered,
assigned or recorded at the time required for enforcement by the Trust Fund. The
Seller will be required to effect at its expense the assignment and recordation
of its Loan Documents until the assignment and recordation of all such Loan
Documents has been completed.
(c) As to each Mortgage Loan, the Seller shall be responsible for all
costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (viii)(B) of Exhibit B and each
UCC-2 and UCC-3 assignment of financing statement, if any, referred to in clause
(v)(B) of Exhibit B. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause the preparation of a substitute therefor
or cure or cause the curing of such defect, as the case may be, and shall
thereafter deliver the substitute or corrected document to or at the direction
of the Purchaser (or any subsequent owner of the affected Mortgage Loan,
including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) Except as provided below, all documents and records in the Seller's
possession (or under its control) relating to the Mortgage Loans that are not
required to be a part of a Mortgage File in accordance with Exhibit B but that
are reasonably required to service the Mortgage Loans (all such other documents
and records, including Environmental Reports, as to any Mortgage Loan, the
"Servicing File"), together with copies of the documents contained in the
related Mortgage File and all escrow payments, reserve funds and other
comparable funds in the possession of the Seller (or under its control) with
respect to the Mortgage Loans, shall (unless they are held by a sub-servicer
that shall, as of the Closing Date, begin acting on behalf of the Master
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date; provided, however, the Seller shall not be required to deliver,
and the Servicing File shall not be deemed to include drafts of Loan Documents,
attorney-client or internal communications of the Seller or its affiliates or
Seller's credit underwriting or due diligence analyses or related data (as
distinguished from Environmental Reports, financial statements, credit reports,
title reports, structural and engineering reports, appraisals and other reports,
analyses or data provided by the Borrower or third parties other than the
Seller's attorneys). If a sub-servicer shall, as of the Closing Date, begin
acting on behalf of the Master Servicer with respect to any Mortgage Loan
pursuant to a written agreement between such parties, the Seller or its agent
shall deliver a copy of the related Servicing File to the Master Servicer.
(e) Each of the Seller's and the Purchaser's records will reflect the
transfer of the Mortgage Loans to the Purchaser as a sale, including for
accounting purposes.
(f) Furthermore, it is the express intent of the parties hereto that the
conveyance of the Mortgage Loans by Seller to Depositor as provided in this
Agreement be, and be construed as, a sale of the Mortgage Loans by Seller to
Depositor. It is, further, not the intention of the parties that such conveyance
be deemed a pledge of the Mortgage Loans by Seller to Depositor to secure a debt
or other obligation of Seller. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of Seller or
if for any reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans:
(i) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect
in the applicable state;
(ii) the conveyance provided for in this Agreement shall hereby
grant from Seller to Depositor a security interest in and to all of
Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property consisting of, arising
from or relating to any of the property described in the Mortgage
Loans, including the related Notes, Mortgages and title, hazard and
other insurance policies, identified on the Mortgage Loan Schedule,
and all distributions with respect thereto payable after the Cut-off
Date;
(B) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit
and investment property arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable
with respect to, or claims against other persons with respect to,
all or any part of the collateral described in clause (A) above
(including any accrued discount realized on liquidation of any
investment purchased at a discount), in each case, payable after the
Cut-off Date; and
(C) all cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above payable after the Cut-off Date;
(iii) the possession by Depositor or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments,
money, documents, chattel paper or certificated securities shall be deemed
to be possession by the secured party or possession by a purchaser or a
person designated by him or her, for purposes of perfecting the security
interest pursuant to the Uniform Commercial Code (including, without
limitation, Sections 9-306, 9-313 and 9-314 thereof) as in force in the
relevant jurisdiction; and
(iv) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, securities intermediaries, bailees or
agents of, or persons holding for (as applicable), Depositor or its
assignee for the purpose of perfecting such security interest under
applicable law.
The Seller at the direction of the Depositor or its assignee, shall, to
the extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the Mortgage Loans and the proceeds thereof, such security interest would be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. In connection
herewith, Depositor and its assignee shall have all of the rights and remedies
of a secured party and creditor under the Uniform Commercial Code as in force in
the relevant jurisdiction and may execute and file such UCC Financing Statements
as may be necessary or appropriate to accomplish the foregoing.
(g) It is further acknowledged and agreed by the Seller that the Purchaser
intends to convey all right, title and interest of the Purchaser in and to the
Mortgage Loans and all rights and remedies under this Agreement (excluding the
Seller's representations, warranties and covenants set forth in paragraphs
(viii) and (ix) of Section 4(b), the Purchaser's rights and remedies under
Section 9 and the GACC Indemnification Agreement) to the Trustee on behalf of
the Certificateholders, including, without limitation, all rights and remedies
as may be available under Section 6 to the Purchaser in the event of a Material
Breach or a Material Defect; provided, that the Trustee on behalf of the
Certificateholders shall be a third-party beneficiary of this Agreement and
shall be entitled to enforce any obligations of the Seller hereunder in
connection with a Material Breach or a Material Defect as if the Trustee on
behalf of the Certificateholders had been an original party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the Mortgage
Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law under Section 6 for a breach of the Seller's representations,
warranties and covenants set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the date hereof (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, the Trustee on behalf of the
Certificateholders and the respective successors of the Purchaser and the
Trustee, each of the representations and warranties set forth in Exhibit C
subject to the exceptions set forth in Exhibit D and any schedule referenced in
Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Maryland, and is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of, and compliance with, the terms of this Agreement by
the Seller, do not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, in each case which materially and
adversely affects the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and the rights of creditors of
national banks, or any other laws that may be applicable in the context of
the insolvency of a national banking association, (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification or contribution for
securities laws liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement do not constitute a violation of, any law, any
judgment, order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(vi) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Seller to perform its obligations
under this Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the
Initial Purchaser, and their respective affiliates, that may be entitled
to any commission or compensation in connection with the sale of the
Mortgage Loans or the consummation of any of the other transactions
contemplated hereby.
(viii) Except with respect to Deutsche Bank Securities Inc., an
affiliate of the Seller, acting as Underwriter and Initial Purchaser,
neither the Seller nor anyone acting on its behalf has (A) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in
any manner, (B) solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner,
(C) otherwise approached or negotiated with respect to any Certificate,
any interest in any Certificate or any other similar security with any
person in any manner, (D) made any general solicitation by means of
general advertising or in any other manner with respect to any
Certificate, any interest in any Certificate or any similar security, or
(E) taken any other action that (in the case of any of the acts described
in clauses (A) through (D) above) would constitute or result in a
violation of the Securities Act or any state securities law relating to or
in connection with the issuance of the Certificates or require
registration or qualification pursuant to the Securities Act or any state
securities law of any Certificate not otherwise intended to be a
Registered Certificate. In addition, the Seller will not act, nor has it
authorized or will it authorize any person (other than an Underwriter
and/or the Initial Purchaser) to act, in any manner set forth in the
foregoing sentence with respect to any of the Certificates or interests
therein. For purposes of this paragraph 4(b)(viii), the term "similar
security" shall be deemed to include, without limitation, any security
evidencing or, upon issuance, that would have evidenced an interest in the
Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information
set forth in Annex A-1 and Annex A-2 to the Prospectus Supplement (as
defined in the GACC Indemnification Agreement) (the "Loan Detail") and, to
the extent consistent therewith, the information set forth on the diskette
attached to the Prospectus Supplement and the accompanying prospectus (the
"Diskette"), is true and correct in all material respects. Insofar as it
relates to the Mortgage Loans and/or the Seller and does not represent a
restatement or aggregation of the information on the Loan Detail, the
information set forth in the Memorandum (as defined in the GACC
Indemnification Agreement) and in the Prospectus Supplement under the
headings "Summary of the Prospectus Supplement--Relevant Parties and
Dates--Sponsors" "--The Mortgage Pool," "Risk Factors, "The Sponsors,
Mortgage Loan Sellers and Originators" and "Description of the Mortgage
Pool" and the information set forth on Annex A-1 and Annex A-2 and Annex B
to the Prospectus Supplement, and to the extent it contains information
consistent with that on such Annex A-1 and Annex A-2 set forth on the
Diskette, does not contain any untrue statement of a material fact or (in
the case of the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to
state any material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(x) The information set forth in any Disclosure Information (as
defined in the GACC Indemnification Agreement), as last forwarded to each
prospective investor at or prior to the date on which a contract for sale
was entered into with such prospective investor, (i) does not contain any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and (ii) complies with the
requirements of and contains all of the applicable information required by
Regulation AB (as defined in the GACC Indemnification Agreement); but only
to the extent that (i) such information regards the Mortgage Loans and is
contained in the Loan Detail or, to the extent consistent therewith, the
Diskette or (ii) such information regarding the Seller or the Mortgage
Loans was contained in the Memorandum or the Prospectus Supplement under
the headings "Summary of the Prospectus Supplement--Relevant Parties and
Dates --Sponsors," "--Mortgage Loan Sellers," --Originators," "--The
Mortgage Pool," "Risk Factors," "Transaction Parties--The Sponsors"
"Description of the Mortgage Pool" and Annex B and such information does
not represent an incorrect restatement or an incorrect aggregation of
correct information regarding the Mortgage Loans contained in the Loan
Detail.
(xi) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any bulk
sale laws), for the Seller's execution, delivery and performance of, or
compliance by, the Seller with this Agreement, or the consummation by the
Seller of any transaction contemplated hereby, other than (1) the filing
or recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (2) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as have
been obtained, made or given and (3) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the Seller
under this Agreement.
(c) Upon discovery by any of the Seller or the parties to the
Pooling and Servicing Agreement of a breach of any of the representations
and warranties made pursuant to and set forth in subsection (b) above
which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to
subsection (a) above and set forth in Exhibit C which materially and
adversely affects the value of any Mortgage Loan, the value of the related
Mortgaged Property or the interests therein of the Purchaser, the Trustee
on behalf of the Certificateholders or any Certificateholder, the party
discovering such breach shall give prompt written notice to the Seller
and/or the other parties, as applicable.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance of, and compliance with, the terms of this Agreement
by the Purchaser, do not violate the Purchaser's organizational documents
or constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a party or which
is applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement will not constitute a violation of, any law,
any judgment, order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale of
the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the Purchaser's execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as have
been obtained, made or given and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. Repurchases; Substitutions.
(a) If any of the parties to this Agreement discovers that any document
constituting a part of a Mortgage File has not been delivered within the time
periods provided for herein and in the Pooling and Servicing Agreement, has not
been properly executed, is missing, does not appear to be regular on its face or
contains information that does not conform in any material respect with the
corresponding information set forth in the Mortgage Loan Schedule (each, a
"Defect"), or discovers or receives notice of a breach of any representation or
warranty of the Seller made pursuant to Section 4(a) of this Agreement with
respect to any Mortgage Loan (a "Breach"), such party shall give prompt written
notice thereof to each of the Rating Agencies, the Seller, the parties to the
Pooling and Servicing Agreement and the Controlling Class Representative. If any
such Defect or Breach materially and adversely affects the value of any Mortgage
Loan, the value of the related Mortgaged Property or the interests therein of
the Purchaser, the Trustee or any Certificateholders, then such Defect shall
constitute a "Material Defect" or such Breach shall constitute a "Material
Breach," as the case may be; provided, however, that if any of the documents
specified in the first paragraph of Section 2.01(b) of the Pooling and Servicing
Agreement is not delivered, and is certified as missing, pursuant to the first
paragraph of Section 2.01(b) of the Pooling and Servicing Agreement, it shall be
deemed a Material Defect. Promptly upon receiving written notice of any such
Material Defect or Material Breach with respect to a Mortgage Loan (including
through a written notice given by any party hereto, as provided above), the
Seller shall, not later than 90 days from the Seller's receipt of notice from
the Master Servicer, the Special Servicer, the Trustee or the Custodian of such
Material Defect or Material Breach, as the case may be (or, in the case of a
Material 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 after the Seller or any party to the Pooling and Servicing Agreement
discovering such Material Defect or Material Breach) (any such 90-day period,
the "Initial Resolution Period"), (i) cure the same in all material respects,
(ii) repurchase the affected Mortgage Loan at the applicable Repurchase Price or
(iii) substitute a Qualifying Substitute Mortgage Loan for such affected
Mortgage Loan (provided that in no event shall such substitution occur later
than the second anniversary of the Closing Date) and pay to the Master Servicer
for deposit into the Collection Account (or, with respect to any Serviced Whole
Loan, the applicable Serviced Whole Loan Collection Account) any Substitution
Shortfall Amount in connection therewith; provided, however, that with respect
to any Material Defect arising from a missing document as to which the Trustee
inadvertently certified its possession of such document (x) on the Closing Date,
in the form of Exhibit S-1 to the Pooling and Servicing Agreement or (y) no
later than 45 days following the Closing Date, in the form of Exhibit S-2 to the
Pooling and Servicing Agreement, the related Mortgage Loan Seller shall have (A)
15 days to cure the Material Defect relating to the missing document in the
certification of clause (x) and (B) 30 days to cure the Material Defect relating
to the missing document in the certification of clause (y); provided, further,
that if (i) such Material Defect or Material Breach (other than one relating to
the immediately preceding proviso) is capable of being cured but not within the
Initial Resolution Period, (ii) such Material 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 Defect or Material Breach
within the Initial Resolution Period, then the Seller shall have an additional
period equal to the applicable Resolution Extension Period to complete such cure
or, failing such cure, to repurchase the Mortgage Loan or substitute a
Qualifying Substitute Mortgage Loan. The Seller shall have an additional 90 days
(without duplication of the additional 90-day period set forth in the last
sentence of the definition of Resolution Extension Period) to cure such Material
Defect or Material Beach, provided that, the Seller has commenced and is
diligently proceeding with the cure of such Material Defect or Material Breach
and such failure to cure is solely the result of a delay in the return of
documents from the local filing or recording authorities. Notwithstanding the
foregoing, if a Mortgage Loan is not secured by a hotel, restaurant (operated by
a Borrower), healthcare facility, nursing home, assisted living facility,
self-storage facility, theatre, manufactured housing or fitness center (operated
by a Borrower) property, then the failure to deliver to the Trustee copies of
the UCC financing statements with respect to such Mortgage Loan shall not be a
Material Defect.
If the Seller is notified of a Defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such Defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes. The failure of the Master Servicer, the Special Servicer or the
Trustee to notify the Seller of a Material Defect or Material Breach shall not
constitute a waiver of any cure or repurchase obligation, provided that the
Seller must receive written notice thereof as described in this Section 6(a)
before commencement of the Initial Resolution Period.
(b) In connection with any repurchase of, or substitution for, a Mortgage
Loan contemplated by this Section 6, (A) the Trustee, the Master Servicer (with
respect to any such Mortgage Loan other than a Specially Serviced Loan) and the
Special Servicer (with respect to any such Mortgage Loan that is a Specially
Serviced Loan) shall each tender to the Seller, upon delivery (i) to each of the
Master Servicer or the Special Servicer, as applicable, of a trust receipt and
(ii) to the Trustee by the Master Servicer or the Special Servicer, as
applicable, of a Request for Release and an acknowledgement by the Master
Servicer or applicable Special Servicer, as applicable, of its receipt of the
Repurchase Price or the Substitution Shortfall Amount from the Seller, (1) all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it and (2) each document that constitutes a part of the
Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or
assigned without recourse in the form of endorsement or assignment provided to
the Trustee by the Seller, as the case may be, to the Seller as shall be
necessary to vest in the Seller the legal and beneficial ownership of each
Removed Mortgage Loan to the extent such ownership was transferred to the
Trustee, and (B) the Trustee shall release, or cause the release of, any escrow
payments and reserve funds held by the Trustee, or on the Trustee's behalf, in
respect of such Removed Mortgage Loan(s) to the Seller.
(c) This Section 6 provides the sole remedies available to the Purchaser, and
its successors and permitted assigns (i.e., the Trustee and the holders of the
Certificates) in respect of any Defect in a Mortgage File or any Breach. If the
Seller defaults on its obligations to cure, to repurchase, or to substitute for,
any Mortgage Loan in accordance with this Section 6, or disputes its obligation
to cure, to repurchase, or to substitute for, any Mortgage Loan in accordance
with Section 6, the Purchaser or the Trustee, as applicable, may take such
action as is appropriate to enforce such payment or performance, including,
without limitation, the institution and prosecution of appropriate proceedings.
To the extent the Purchaser or the Trustee, as applicable, prevails in such
proceeding, the Seller shall reimburse the Purchaser or the Trustee, as
applicable, for all necessary and reasonable costs and expenses incurred in
connection with the enforcement of such obligation of the Seller to cure, to
repurchase, or to substitute for, any Mortgage Loan in accordance with this
Section 6.
(d) If one or more (but not all) of the Mortgage Loans constituting a
cross-collateralized group of Mortgage Loans are to be repurchased or
substituted by the Seller as contemplated by this Section 6, then, prior to the
subject repurchase or substitution, the Seller or its designee shall use its
reasonable efforts, subject to the terms of the related Mortgage Loan(s), to
prepare and, to the extent necessary and appropriate, have executed by the
related Borrower and record, such documentation as may be necessary to terminate
the cross-collateralization between the Mortgage Loan(s) in such
cross-collateralized group of Mortgage Loans that are to be repurchased or
substituted, on the one hand, and the remaining Mortgage Loan(s) therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that, no such termination shall be effected
unless and until the Controlling Class Representative, if one is then acting,
has consented in its sole discretion and the Trustee has received from the
Seller (i) an Opinion of Counsel to the effect that such termination would not
cause an Adverse REMIC Event to occur and (ii) written confirmation from each
Rating Agency that the then current rating assigned to any of the Certificates
that are currently being rated by such Rating Agency will not be qualified,
downgraded or withdrawn by reason of such termination; provided, further, that
the Seller, in the case of the related Mortgage Loans, may, at its option and
within the 90-day cure period described above (and any applicable extension
thereof), purchase or substitute for the entire subject cross-collateralized
group of Mortgage Loans in lieu of effecting a termination of the
cross-collateralization. All costs and expenses incurred by the Trustee or any
Person acting on its behalf pursuant to this paragraph shall be included in the
calculation of the Repurchase Price for the Mortgage Loan(s) to be repurchased
or substituted. If the cross-collateralization of any cross-collateralized group
of Mortgage Loans cannot be terminated as contemplated by this paragraph, then
the Seller shall repurchase or substitute the entire subject
cross-collateralized group of Mortgage Loans.
Notwithstanding the foregoing, if there is a Material Breach or Material
Defect with respect to one or more Mortgaged Properties with respect to a
Mortgage Loan or cross-collateralized group of Mortgage Loans, the Seller will
not be obligated to repurchase the Mortgage Loan or cross-collateralized group
of Mortgage Loans if (i) the affected Mortgaged Property may be released
pursuant to the terms of any partial release provisions in the related Loan
Documents (and such Mortgaged Property is, in fact, released), (ii) the
remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in
the Loan Documents and the Seller provides an Opinion of Counsel to the effect
that such release would not cause an Adverse REMIC Event to occur and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, withdrawn or downgraded.
As to any Qualifying Substitute Mortgage Loan, at the direction of the
Trustee, the Seller shall deliver to the Custodian for such Qualifying
Substitute Mortgage Loan (with a copy to the Master Servicer), the related
Mortgage File with the related Note endorsed as required by Section 2.01(a)(i)
of the Pooling and Servicing Agreement. Pursuant to the Pooling and Servicing
Agreement, Monthly Payments due with respect to Qualifying Substitute Mortgage
Loans in or prior to the month of substitution shall not be part of the Trust
Fund and will be retained by the Master Servicer and remitted by the Master
Servicer to the related Seller on the next succeeding Distribution Date. For the
month of repurchase or substitution, distributions to Certificateholders
pursuant to the Pooling and Servicing Agreement will include the Monthly
Payment(s) due on the related Removed Mortgage Loan and received by the Master
Servicer or the Special Servicer on behalf of the Trust on or prior to the
related date of repurchase or substitution, as applicable, and the Seller shall
be entitled to retain all amounts received thereafter in respect of such Removed
Mortgage Loan.
In any month in which the Seller substitutes one or more Qualifying
Substitute Mortgage Loans for one or more Removed Mortgage Loans, pursuant to
the Pooling and Servicing Agreement, the Master Servicer will determine the
applicable Substitution Shortfall Amount. At the direction of the Trustee, the
Seller shall deposit cash equal to such amount into the Collection Account
and/or the applicable Serviced Whole Loan Collection Account, as applicable,
concurrently with the delivery of the Mortgage Files for such Qualifying
Substitute Mortgage Loans, without any reimbursement thereof. At the direction
of the Trustee, the Seller shall give written notice to the Depositor and the
Master Servicer of such deposit.
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time, on
the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller and the
Purchaser specified herein shall be true and correct as of the Closing
Date, and the Aggregate Cut-off Date Balance shall be within the range
permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and acceptable to the Purchaser and, in
the case of the Pooling and Servicing Agreement (insofar as such Agreement
affects the obligations of the Seller hereunder) and other documents to be
delivered by or on behalf of the Purchaser, to the Seller, shall be duly
executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee,
the Purchaser or the Purchaser's designee, as the case may be, all
documents and funds required to be so delivered on or before the Closing
Date pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller shall have received the consideration for the
Mortgage Loans as specified in Section 1, and the Seller shall have paid
or agreed to pay all fees, costs and expenses payable by it to the
Purchaser pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following: (
a) This Agreement and a ▇▇▇▇ of sale duly executed and delivered by the
Purchaser and the Seller;
(b) An Officer's Certificate substantially in the form of Exhibit E-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser, the Initial Purchaser and
each Underwriter may rely, attaching thereto as exhibits the organizational
documents of the Seller;
(c) A certificate of good standing regarding the Seller from the Secretary
of State for the State of Maryland, dated not earlier than 30 days prior to the
Closing Date;
(d) Written opinions of counsel (which may include opinions of in-house
counsel, outside counsel or a combination thereof) for the Seller, in form
reasonably acceptable to counsel for the Purchaser and subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller and acceptable to counsel for the Purchaser, dated the Closing Date and
addressed to the Purchaser, the Initial Purchaser and each Underwriter;
(e) Any other opinions of counsel for the Seller reasonably requested by
the Rating Agencies in connection with the issuance of the Certificates, each of
which shall include the Purchaser, the Initial Purchaser and each Underwriter as
an addressee; and
(f) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
SECTION 9. Costs.
The Seller shall pay (or shall reimburse the Purchaser to the extent that
the Purchaser has paid) (a) the fees and expenses of counsel to the Seller, (b)
the expenses of filing or recording UCC assignments of financing statements,
assignments of Mortgage and assignments of Assignments of Leases, Rents and
Profits with respect to the Mortgage Loans as contemplated by Article 2 of the
Pooling and Servicing Agreement and (c) on the Closing Date, the Seller's pro
rata portion of the aggregate of the following amounts (the Seller's pro rata
portion to be determined according to the percentage that the aggregate
principal balance of the Mortgage Loans as of the Cut-off Date represents of the
aggregate principal balance of the Mortgage Loans and the Other Mortgage Loans
as of the Cut-off Date): (i) the costs and expenses of printing (or otherwise
reproducing) and delivering a preliminary and final Prospectus relating to the
Certificates; (ii) the fees, costs, and expenses of the Trustee (including
reasonable attorneys' fees) incurred in connection with the Trustee entering
into and performing certain of its obligations under the Pooling and Servicing
Agreement; (iii) the filing fee charged by the Securities and Exchange
Commission for registration of the Certificates so registered and reasonable
attorney's fees and legal expenses in connection therewith; (iv) the fees
charged by the Rating Agencies to rate the Certificates so rated and reasonable
attorney's fees and legal expenses in connection therewith; (v) the fees and
expenses of counsel to the Underwriter; (vi) the fees and expenses of counsel to
the Depositor; (vii) the fees and expenses of counsel to the Servicers; (viii)
the cost of obtaining a "comfort letter" from 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 Other Mortgage Loans
included in the Prospectus; and (ix) other miscellaneous costs and expenses
agreed upon by the parties hereto. All other costs and expenses in connection
with the transactions contemplated hereunder shall be borne by the party
incurring such expense.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if (a) personally delivered, (b) mailed
by registered or certified mail, postage prepaid and received by the addressee,
(c) sent by overnight mail or courier service and received by the addressee or
(d) transmitted by facsimile (or any other type of electronic transmission
agreed upon by the parties) and confirmed by a writing delivered by any of the
means described in (a), (b) or (c), if (i) to the Purchaser, addressed to
Deutsche Mortgage & Asset Receiving Corporation, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to
▇▇▇▇ ▇▇▇▇▇, Esq., Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, or such other address or
facsimile number as may hereafter be furnished to the Seller in writing by the
Purchaser; and if (ii) to the Seller, addressed to German American Capital
Corporation, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇,
facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇ or to such other address or facsimile number as the
Seller may designate in writing to the Purchaser.
SECTION 11. Notice of Exchange Act Reportable Events.
The Seller hereby agrees to deliver to the Purchaser and the Trustee any
disclosure information relating to any event reasonably determined in good faith
by the Purchaser as required to be reported on Form 8-K, Form 10-D or Form 10-K
by the Trust Fund (in formatting reasonably appropriate for inclusion in such
form), including, without limitation, the disclosure required under Items 1117
and 1119 of Regulation AB and Item 1.03 to From 8-K. The Seller shall use its
best efforts to deliver proposed disclosure language relating to any event
described under Items 1117 and 1119 of Regulation AB and Item 1.03 to From 8-K
to the Trustee and the Purchaser within one Business Day and in any event no
later than two Business Days of the Seller becoming aware of such event and
shall provide disclosure relating to any other event reasonably determined by
the Purchaser as required to be disclosed on Form 8-K, Form 10-D or Form 10-K
within two Business Days following the Purchaser's request for such disclosure
language. The obligation of the Seller to provide the above referenced
disclosure materials will terminate upon notice from the Purchaser or the
Trustee that the Trustee has filed a Form 15 with respect to the Trust Fund as
to that fiscal year in accordance with Section 10.10(a) of the Pooling and
Servicing Agreement. The Seller hereby acknowledges that the information to be
provided by it pursuant to this Section will be used in the preparation of
reports meeting the reporting requirements of the Trust under Section 13(a)
and/or Section 15(d) of the Securities Exchange Act of 1934, as amended.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 13. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 15. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 16. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part (excluding the Seller's representations,
warranties and covenants set forth in paragraphs (viii) and (ix) of Section
4(b), the Purchaser's rights and remedies under Section 9 and the GACC
Indemnification Agreement), to the Trustee, for the benefit of the
Certificateholders, as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall, to the extent
of such assignment, succeed to the rights and obligations hereunder of the
Purchaser, provided that the Trustee shall have no right to further assign such
rights to any other Person. Subject to the foregoing, this Agreement shall bind
and inure to the benefit of and be enforceable by the Seller and the Purchaser,
and their permitted successors and permitted assigns.
SECTION 18. Amendments.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names
to be signed hereto by their respective duly authorized officers as of the date
first above written.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
DEUTSCHE MORTGAGE & ASSET
RECEIVING CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date;
(iv) the original principal balance;
(v) the Stated Principal Balance as of the Cut-off Date;
(vi) the Maturity Date or Anticipated Repayment Date for each Mortgage
Loan;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) in the case of the Credit Lease Loan, the identity of the Tenant and
the Guarantor under any applicable Guaranty, and the publicly available
corporate credit ratings of such Tenant and Guarantor as of the Closing Date;
(x) the Servicing Fee Rate;
(xi) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(xii) whether such Mortgage Loan has an Anticipated Repayment Date;
(xiii) the Revised Rate of such Mortgage Loan, if any;
(xiv) whether such Mortgage Loan has a hard lock-box, a springing hard
lock-box, a soft-at-closing, springing hard lock-box or no lock-box at all;
(xv) identifying any Mortgage Loans with which any such Mortgage Loans are
cross-collateralized;
(xvi) the applicable Loan Group to which such Mortgage Loan belongs; and
(xvii) the number of units, pads, rooms or square feet with respect to
each Mortgaged Property.
Such list may be in the form of more than one list, collectively setting forth
all of the information required. Certain of the above-referenced items are
described on the Mortgage Loan Schedule attached hereto. Certain of the
above-referenced items are described on Exhibit B-1 to the Pooling and Servicing
Agreement and are incorporated by reference into the Mortgage Loan Schedule
attached hereto.
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section
2(b), collectively consist of the following documents:
(i) (A) the original Note, endorsed by the most recent endorsee prior to
the Trustee or, if none, by the Originator, without recourse, either in blank or
to the order of the Trustee in the following form: "Pay to the order of ▇▇▇▇▇
Fargo Bank, N.A., as Trustee for the registered holders of CD 2006-CD2,
Commercial Mortgage Pass-Through Certificates, without recourse"; and (B) in the
case of each related Serviced Companion Loan, a copy of the executed Note for
such Serviced Companion Loan;
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the Originator of the Mortgage Loan or Serviced Whole
Loan to the most recent assignee of record thereof prior to the Trustee, if any,
in each case with evidence of recording indicated thereon; (
iii) an original assignment of the Mortgage, in recordable form, executed
by the most recent assignee of record thereof prior to the Trustee or, if none,
by the Originator, either in blank or in favor of the Trustee (in such
capacity);
(iv) (A) an original or copy of any related security agreement (if such
item is a document separate from the Mortgage) and, if applicable, the originals
or copies of any intervening assignments thereof showing a complete chain of
assignment from the Originator of the Mortgage Loan or Serviced Whole Loan to
the most recent assignee of record thereof prior to the Trustee, if any; and (B)
an original assignment of any related security agreement (if such item is a
document separate from the related Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the Originator,
either in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage referred to
in clause (iii) above;
(v) (A) stamped or certified copies of any UCC financing statements and
continuation statements which were filed in order to perfect (and maintain the
perfection of) any security interest held by the Originator of the Mortgage Loan
(and each assignee of record prior to the Trustee) in and to the personalty of
the Borrower at the Mortgaged Property (in each case with evidence of filing or
recording thereon) and which were in the possession of the Seller (or its agent)
at the time the Mortgage Files were delivered to the Custodian, together with
original UCC-2 or UCC-3 assignments of financing statements showing a complete
chain of assignment from the secured party named in such UCC-1 financing
statement to the most recent assignee of record thereof prior to the Trustee, if
any, and (B) if any such security interest is perfected and the earlier UCC
financing statements and continuation statements were in the possession of the
Seller, an assignment of UCC financing statement by the most recent assignee of
record prior to the Trustee or, if none, by the Originator, evidencing the
transfer of such security interest, either in blank or in favor of the Trustee;
(vi) the original or a copy of the Loan Agreement thereof relating to such
Mortgage Loan, if any;
(vii) the original or a copy of the lender's title insurance policy issued
in connection with the origination of the Mortgage Loan, together with all
endorsements or riders (or copies thereof) that were issued with or subsequent
to the issuance of such policy, insuring the priority of the Mortgage as a first
lien on the Mortgaged Property or a "marked-up" commitment to insure marked as
binding and countersigned by the related insurer or its authorized agent (which
may be a pro forma or specimen title insurance policy which has been accepted or
approved as binding in writing by the related title insurance company), or an
agreement to provide the same pursuant to binding escrow instructions executed
by an authorized representative of the title company;
(viii) (A) the original or a copy of the related Assignment of Leases,
Rents and Profits (if such item is a document separate from the Mortgage) and,
if applicable, the originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the Originator of the Mortgage Loan
to the most recent assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording thereon; and (B) an original assignment of
any related Assignment of Leases, Rents and Profits (if such item is a document
separate from the Mortgage), in recordable form, executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the Originator,
either in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage referred to
in clause (iii) above;
(ix) copies of the original environmental indemnity agreements and
environmental insurance policies pertaining to the Mortgaged Properties required
in connection with origination of the Mortgage Loans, if any;
(x) [Reserved];
(xi) if the Borrower has a leasehold interest in the related Mortgaged
Property, the original ground lease or a copy thereof;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of contracts and the
assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral Account
Agreement is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts,
if any, a copy of the UCC-1 financing statements, if any, submitted for filing
with respect to the Seller's security interest in the Reserve Accounts, Cash
Collateral Accounts and Lock-Box Accounts and all funds contained therein (and
UCC-3 assignments of financing statements assigning such UCC-1 financing
statements to the Trustee on behalf of the Certificateholders and with respect
to any Serviced Whole Loan on behalf of Certificateholders and the related
Serviced Companion Loan Noteholders);
(xiv) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon if
appropriate, in those instances where the terms or provisions of the Mortgage,
Note or any related security document have been modified or the Mortgage Loan or
Serviced Whole Loan has been assumed;
(xv) the original or a copy of any guaranty of the obligations of the
Borrower under the Mortgage Loan or Serviced Whole Loan together with, as
applicable, (A) the original or copies of any intervening assignments of such
guaranty showing a complete chain of assignment from the Originator of the
Mortgage Loan to the most recent assignee thereof prior to the Trustee and (B)
an original assignment of such guaranty executed by the most recent assignee
thereof prior to the Trustee or, if none, by the Originator;
(xvi) the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the related Borrower if the
Mortgage, Note or other document or instrument referred to above was signed on
behalf of the Borrower pursuant to such power of attorney;
(xvii) the original (or copy, if the original is held by the Master
Servicer pursuant to Section 2(b)) of any letter of credit for the benefit of
the lender securing such Mortgage Loan;
(xviii) the appropriate assignment or amendment documentation related to
the assignment to the Trust of any letter of credit securing such Mortgage Loan
(or copy thereof, if the original is held by the Master Servicer pursuant to
Section 2(b)) which entitles the Master Servicer on behalf of the Trust to draw
thereon;
(xix) with respect hospitality properties, a copy of the franchise
agreement, if any, an original or copy of the comfort letter, if any, and any
transfer documents with respect to any such comfort letter; and
(xx) with respect to each Whole Loan, a copy of the related Co-Lender
Agreement and a copy of the related Other Pooling and Servicing Agreement.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received. The original assignments referred to in clauses
(iii), (iv)(B), (viii)(B) and (xv)(B), may be in the form of one or more
instruments in recordable form in any applicable filing or recording offices.
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date, except as set forth on Exhibit D hereto and the Annex
hereto referred to below:
1. The information pertaining to each Mortgage Loan set forth in the
Mortgage Loan Schedule was true and correct in all material respects as of the
Cut-off Date.
2. As of the date of its origination, such Mortgage Loan and, the interest
(exclusive of any default interest, late charges or prepayment premiums)
contracted for thereunder, 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, including those pertaining to usury.
3. 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. 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.
4. The proceeds of such Mortgage Loan have been fully disbursed (except if
such Mortgage Loan is a Mortgage Loan as to which a portion of the funds
disbursed are being held in escrow or reserve accounts) and there is no
requirement for future advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any) and
other agreement executed by the Borrower in connection with such Mortgage Loan
is a legal, valid and binding obligation of the related Borrower (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
(a) 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 (b) 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 related
Mortgage Note and 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. As of the date of its origination, there was no valid offset, 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, and, as of the Cut-off Date, there is no valid offset, defense,
counterclaim or right to rescission with respect to such Mortgage Note,
Mortgage(s) or other agreements, except in each case, with respect to the
enforceability of any provisions requiring the payment of default interest, late
fees, additional interest, prepayment premiums or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee constitutes the legal, valid and binding
assignment from the Seller, except as such enforcement may be limited by
bankruptcy, insolvency, redemption, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights generally or
by general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). Each Mortgage and Assignment of
Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on the
related Mortgaged Property subject only to the exceptions set forth in
representation (5) above 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, none
of which, individually or in the aggregate, materially and adversely interferes
with the current use of the Mortgaged Property or the security intended to be
provided by such Mortgage or with the Borrower's ability to pay its obligations
under the Mortgage Loan when they become due or materially and adversely affects
the value of the Mortgaged Property, (c) the exceptions (general and specific)
and exclusions set forth in the applicable policy described in representation
(12) below or appearing of record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the Borrower's
ability to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (d) other
matters to which like properties are commonly subject, none of which,
individually or in the aggregate, materially and adversely interferes with the
current use of the Mortgaged Property or the security intended to be provided by
such Mortgage or with the Borrower's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely affects the value
of the Mortgaged Property, (e) the right of tenants (whether under ground
leases, space leases or operating leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such tenants are
performing under such leases) and (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage for
such other Mortgage Loan, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with the
Borrower's ability to pay its obligations under the Mortgage Loan when they
become due or materially and adversely affects the value of the Mortgaged
Property. Except with respect to cross-collateralized and cross-defaulted
Mortgage Loans and Mortgage Loans that are part of a Serviced Whole Loan, there
are no mortgage loans that are senior or pari passu with respect to the related
Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not
filed and/or recorded, have been submitted in proper form for filing and
recording) in all public places necessary at the time of the origination of each
Mortgage Loan to perfect a valid security interest in all items of personal
property reasonably necessary to operate the Mortgaged Property owned by a
Borrower 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 permitted under the terms of such Mortgage Loan or any
other personal property leases applicable to such personal property), to the
extent perfection may be effected pursuant to applicable law by recording or
filing, and the Mortgages, security agreements, chattel Mortgages or equivalent
documents related to and delivered in connection with the related Mortgage Loan
establish and create a valid and enforceable lien and priority security interest
on such items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium, redemption,
liquidation or other laws affecting the enforcement of creditor's rights
generally, or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). Notwithstanding
any of the foregoing, no representation is made as to the perfection of any
security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing of UCC
Financing Statements are required in order to effect such perfection.
10. All real estate taxes and governmental assessments, or installments
thereof, which would be a lien on the 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. To the Seller's actual knowledge as of the Cut-off Date, and to the
Seller's actual knowledge based solely upon due diligence customarily performed
with the origination of comparable mortgage loans by the Seller, 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 materially and adversely affect the value of such Mortgaged Property as
security for the Mortgage Loan and to the Seller's actual knowledge as of the
Cut-off Date there was no proceeding pending for the total or partial
condemnation of such Mortgaged Property.
12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan (and, in the case of a Mortgage
Loan that is part of a Serviced Whole Loan, in the original (aggregate, if
applicable) principal amount of the other mortgage loan(s) constituting the
related Serviced Whole Loan) after all advances of principal (as set forth on
the Mortgage Loan Schedule) is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller, its successors and assigns,
subject only to the Title Exceptions; the Seller or its successors or assigns is
the named insured of such policy; such policy is assignable without consent of
the insurer and will inure to the benefit of the Trustee as mortgagee of record;
such policy is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; all premiums thereon have been
paid; no material 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; such policy contains no
material exclusions for, or affirmatively insures (except for any Mortgaged
Property located in a jurisdiction where such insurance is not available) (a)
access to a public road or (b) against any loss due to encroachments of any
material portion of the improvements thereon.
13. As of the date of its origination, all insurance coverage required
under each related Mortgage was in full force and effect with respect to each
related Mortgaged Property, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the related
Mortgaged Property in the jurisdiction in which such Mortgaged Property is
located, and with respect to a fire and extended perils insurance policy, was 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 original principal balance of the Mortgage Loan (and, in the case of a
Mortgage Loan that is part of a Serviced Whole Loan, in the original (aggregate,
if applicable) principal amount of the other mortgage loan(s) constituting the
related Serviced Whole Loan), and in any event, in an amount necessary to
prevent operation of any co-insurance provisions, and, except if such Mortgaged
Property is operated as a mobile home park, such Mortgaged Property is also
covered by 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); and as of the
Cut-off Date, to the actual knowledge of the Seller, all insurance coverage
required under each Mortgage, which insurance covers such risks and is in such
amounts as are 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, is in full force and effect with respect to each related
Mortgaged Property; and 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 a
commercial and multifamily mortgage lending institution with respect to a
similar mortgage loan and which are set forth in the related Mortgage, any
insurance proceeds in respect of a casualty loss are required to be applied
either (i) to the repair or restoration of all or part of the related Mortgaged
Property or (ii) to 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 commercial and multifamily mortgage lending institutions for similar
loans. The Mortgaged Property is also covered by 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 commercial and multifamily mortgage lending
institutions.
14. The insurance policies contain a standard mortgagee clause naming the
holder of the related Mortgage, its successors and assigns as loss payee, in the
case of a property insurance policy, and additional insured in the case of a
liability insurance policy, and provide 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. Each Mortgage requires that the Borrower maintain insurance
as described above or permits the Mortgagee to require insurance as described
above, and permits the Mortgagee to purchase such insurance at the Borrower's
expense if Borrower fails to do so.
15. Other than payments due but not yet 30 days or more delinquent, to the
Seller's actual knowledge, based upon due diligence customarily performed with
the servicing of comparable mortgage loans by prudent commercial and multifamily
mortgage lending institutions, there is no material default, breach, violation
or event of acceleration existing under the related Mortgage or the related
Mortgage Note, and to the Seller's actual knowledge 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 that specifically pertains
to any matter otherwise covered by any other representation and warranty made by
the Seller in any paragraph of this Exhibit C and the Seller has not waived any
material default, breach, violation or event of acceleration under such Mortgage
or Mortgage Note, except for a written waiver contained in the related Mortgage
File being delivered to the Purchaser, and pursuant to the terms of the related
Mortgage or the related Mortgage Note and other documents in the related
Mortgage File no Person or party other than the holder of such Mortgage Note may
declare any event of default or accelerate the related indebtedness under either
of such Mortgage or Mortgage Note.
16. 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.
17. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment Date, the
Mortgage Rate (exclusive of any default interest, late charges or prepayment
premiums) of such Mortgage Loan is a fixed rate.
18. Each related Mortgage does not provide for or permit, without the
prior written consent of the holder of the Mortgage Note, each related Mortgaged
Property to secure any other promissory note or obligation except as expressly
described in such Mortgage or other Mortgage Loan document.
19. Each Mortgage Loan is directly secured by a Mortgage on a commercial
property or a multifamily residential property, and either (a) 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 (b) 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 such Mortgage
Loan (i) as of the Testing Date, or (ii) as of the Closing Date. For purposes of
the previous sentence, (A) the fair market value of the referenced interest in
real property shall first be reduced by (1) the amount of any lien on such
interest in real property that is senior to such Mortgage Loan, and (2) a
proportionate amount of any lien on such interest in real property that is on a
parity with the Mortgage Loan, and (B) the "Testing Date" shall be the date on
which the referenced Mortgage Loan was originated unless (1) 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 (2) 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.
20. One or more environmental site assessments, updates or transaction
screens thereof were performed by an environmental consulting firm independent
of the Seller and 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), updates or
transaction screens 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 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 related Borrower has covenanted in the Mortgage Loan
documents to perform such work), (ii) the related Borrower or other responsible
party 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 related Borrower has provided a
secured creditor environmental insurance policy (in which case such Mortgage
Loan is identified on Annex A to this Exhibit C), (iv) an operations and
maintenance plan has been or will be implemented or (v) such conditions or
circumstances were investigated further and based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation. All environmental assessments or updates that were
in the possession of the Seller and that relate to a Mortgaged Property insured
by an environmental insurance policy have been delivered to or disclosed to the
environmental insurance carrier issuing such policy prior to the issuance of
such policy.
21. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and 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, including
realization by judicial or, if applicable, non-judicial foreclosure, subject to
the effects of bankruptcy, insolvency, reorganization, receivership, moratorium,
redemption, liquidation or similar laws affecting the rights of creditors and
the application of principles of equity.
22. At the time of origination and, to the actual knowledge of Seller as
of the Cut-off Date, no Borrower is a debtor in, and no Mortgaged Property is
the subject of, any state or federal bankruptcy or insolvency proceeding.
23. Except with respect to any Mortgage Loan that is part of a Serviced
Whole Loan, each Mortgage Loan is a whole loan and contains no equity
participation by the Seller or shared appreciation feature and does not provide
for any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property or, other than the ARD Loans,
provide for negative amortization. The Seller holds no preferred equity interest
in the related Borrower.
24. 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 related
Mortgage or loan agreement contains provisions for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if, without
complying with the requirements of the Mortgage or loan agreement, (a) the
related Mortgaged Property, or any controlling interest in the related Borrower,
is directly transferred or sold (other than by reason of family and estate
planning transfers, transfers by devise, descent or operation of law upon the
death or incapacity of a member, general partner or shareholder of the related
Borrower, transfers of less than a controlling interest in a Borrower, issuance
of non-controlling new equity interests, transfers among existing members,
partners or shareholders in the Borrower or an affiliate thereof, transfers
among affiliated Borrowers with respect to cross-collateralized and
cross-defaulted Mortgage Loans or multi-property Mortgage Loans or transfers of
a similar nature to the foregoing meeting the requirements of the Mortgage Loan,
such as pledges of ownership interest that do not result in a change of control)
or a substitution or release of collateral is effected other than in the
circumstances specified in representation (27) below, or (b) the related
Mortgaged Property is encumbered in connection with subordinate financing by a
lien or security interest against the related Mortgaged Property, other than any
existing permitted additional debt.
25. Except as set forth in the related Mortgage File, the terms of the
related Mortgage Note and Mortgage(s) have not been waived, modified, altered,
satisfied, impaired, canceled, subordinated or rescinded in any manner which
materially interferes with the security intended to be provided by such
Mortgage.
26. Each related Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12-month period prior to the
related origination date.
27. 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, except with respect to Mortgage Loans (a) which permit defeasance
by means of substituting for the Mortgaged Property (or, in the case of a
Mortgage Loan secured by multiple Mortgaged Properties, one or more of such
Mortgaged Properties) "government securities" within the meaning of Treasury
Regulation Section 1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loans (or
portions thereof) in accordance with their terms, (b) where a release of the
portion of the Mortgaged Property was contemplated at origination and such
portion was not considered material for purposes of underwriting the Mortgage
Loan, (c) where release is conditional upon the satisfaction of certain
underwriting and legal requirements and the payment of a release price that
represents adequate consideration for such Mortgaged Property or the portion
thereof that is being released, (d) which permit the related Borrower to
substitute a replacement property in compliance with REMIC Provisions or (e)
which permit the release(s) of unimproved out-parcels or other portions of the
Mortgaged Property that will not have a material adverse affect on the
underwritten value of the security for the Mortgage Loan or that were not
allocated any value in the underwriting during the origination of the Mortgage
Loan, the terms of the related Mortgage do not provide for release of any
portion of the Mortgaged Property from the lien of the Mortgage except in
consideration of payment in full therefor.
28. To the Seller's actual knowledge, based upon a letter from
governmental authorities, a legal opinion, an endorsement to the related title
policy, an architect's letter or zoning consultant's report or based upon other
due diligence considered reasonable by prudent commercial and multifamily
mortgage lending institutions in the area where the applicable Mortgaged
Property is located, 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 (a) are not insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, or a law and ordinance insurance policy
or (b) would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
29. To the Seller's actual knowledge based on surveys and/or the title
policy referred to herein obtained in connection with the origination of each
Mortgage Loan, none of the 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 Borrower's use
and operation of such Mortgaged Property (unless affirmatively covered by title
insurance) and no improvements on adjoining properties encroached upon such
Mortgaged Property to any material and adverse extent (unless affirmatively
covered by title insurance).
30. With respect to at least 95% of the Seller's Mortgage Loans (by
principal balance) having a Cut-off Date Balance in excess of 1% of the Initial
Pool Balance, the related Borrower has covenanted in its organizational
documents and/or the Mortgage Loan documents to own no significant asset other
than the related Mortgaged Property or Mortgaged Properties, as applicable, 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.
31. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Borrower and, to the
Seller's actual knowledge, no funds have been received from any Person other
than the Borrower, for or on account of payments due on the Mortgage Note or the
Mortgage.
32. 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 Borrower
or the related Mortgaged Property the adverse outcome of which could reasonably
be expected to materially and adversely affect such Borrower's ability to pay
principal, interest or any other amounts due under such Mortgage Loan or the
security intended to be provided by the Mortgage Loan documents or the current
use of the Mortgaged Property.
33. 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.
34. Except with respect to any Mortgage Loan that is part of a Serviced
Whole Loan, the related Mortgage Note is not secured by any collateral that
secures a mortgage loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other Mortgage
Loans sold pursuant to this Agreement.
35. The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or the Borrower is
required to maintain or the mortgagee maintains, flood insurance with respect to
such improvements and such insurance policy is in full force and effect.
36. All escrow deposits and payments required pursuant to the Mortgage
Loan as of the Closing Date required to be deposited with the Seller in
accordance with the Mortgage Loan documents have been so deposited, and to the
extent not disbursed or otherwise released in accordance with the related
Mortgage Loan documents, are in the possession, or under the control, of the
Seller or its agent and there are no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to the
related geographic area and properties comparable to the related Mortgaged
Property, as of the date of origination of the Mortgage Loan, the related
Borrower was in possession of all material licenses, permits and authorizations
then required for use of the related Mortgaged Property, and, as of the Cut-off
Date, the Seller has no actual knowledge that the related Borrower was not in
possession of such licenses, permits and authorizations.
38. The origination (or acquisition, as the case may be) practices used by
the Seller or its affiliates with respect to the Mortgage Loan have been in all
material respects legal and the servicing and collection practices used by the
Seller or its affiliates with respect to the Mortgage Loan have met customary
industry standards for servicing of commercial mortgage loans for conduit loan
programs.
39. Except for any Mortgage Loan secured by a Borrower's leasehold
interest in the related Mortgaged Property, the related Borrower (or its
affiliate) has title in the fee simple interest in each related Mortgaged
Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that each
Mortgage Loan is non-recourse to the related Borrower except that the related
Borrower accepts responsibility for fraud and/or other intentional material
misrepresentation. The Mortgage Loan documents for each Mortgage Loan provide
that the related Borrower shall be liable to the lender for losses incurred due
to the misapplication or misappropriation of rents collected in advance or
received by the related Borrower 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, misapplication or conversion by the Borrower of insurance
proceeds or condemnation awards or breach of the environmental covenants in the
related Mortgage Loan documents.
41. Subject to the exceptions set forth in representation (5), the
Assignment of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and enforceable lien and security
interest in the related Borrower's interest in 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 real property.
42. With respect to such Mortgage Loan, any prepayment premium constitutes
a "customary prepayment penalty" within the meaning of Treasury Regulations
Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Mortgage Loan permits defeasance (a) no earlier than
two years after the Closing Date, and (b) 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. In addition, if such Mortgage contains such a
defeasance provision, it provides (or otherwise contains provisions pursuant to
which the holder can require) that an opinion be provided to the effect that
such holder has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender to charge all
of its expenses associated with a defeasance to the Borrower (including rating
agencies' fees, accounting fees and attorneys' fees), and provide that the
related Borrower must deliver (or otherwise, the Mortgage Loan documents contain
certain provisions pursuant to which the lender can require) (i) an accountant's
certification as to the adequacy of the defeasance collateral to make payments
under the related Mortgage Loan for the remainder of its term or through the
date on which the Mortgage Loan is freely prepayable (or the Anticipated
Repayment Date, if applicable), (ii) an Opinion of Counsel that the defeasance
complies with all applicable REMIC Provisions, and (iii) assurances from the
Rating Agencies that the defeasance will not result in the withdrawal, downgrade
or qualification of the ratings assigned to the Certificates. Notwithstanding
the foregoing, some of the Mortgage Loan documents may not affirmatively contain
all such requirements, but such requirements are effectively present in such
documents due to the general obligation to comply with the REMIC Provisions
and/or deliver a REMIC Opinion of Counsel.
44. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability of the
Mortgage Loan, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is located
at all times when it originated and held the Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to
make any capital contributions to the Borrower under the Mortgage Loan.
46. Except with respect to any Mortgage Loan that is part of a Serviced
Whole Loan, none of the Mortgaged Properties are encumbered, and none of the
Mortgage Loan documents permit the related Mortgaged Property to be encumbered
subsequent to the Closing Date without the prior written consent of the holder
thereof, by any lien securing the payment of money junior to or of equal
priority with, or superior to, the lien of the related Mortgage (other than
Title Exceptions, taxes, assessments and contested mechanics and materialmen's
liens that become payable after the after the Cut-off Date of the related
Mortgage Loan).
47. With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
(ii) Such Ground Lease or a memorandum thereof has been or will be
duly recorded no later than 30 days after the Closing Date and such Ground
Lease permits the interest of the lessee thereunder to be encumbered by
the related Mortgage or, if consent of the lessor thereunder is required,
it has been obtained prior to the Closing Date;
(iii) Upon the foreclosure of the Mortgage Loan (or acceptance of a
deed in lieu thereof), the Borrower's interest in such ground lease is
assignable to the mortgagee under the leasehold estate 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);
(iv) 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 termination or cancellation if (a) an event
of default occurs under the Ground Lease, (b) notice thereof is provided
to the mortgagee and (c) such default is curable by the mortgagee as
provided in the Ground Lease but remains uncured beyond the applicable
cure period;
(v) To the actual knowledge of the Seller, at the Closing Date, such
Ground Lease is in full force and effect and other than payments due but
not yet 30 days or more delinquent, (a) there is no material default, and
(b) 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;
(vi) The ground lease or ancillary agreement between the lessor and
the lessee requires the lessor to give notice of any default by the lessee
to the mortgagee. The ground lease or ancillary agreement further provides
that no notice of default given is effective against the mortgagee unless
a copy has been given to the mortgagee in a manner described in the ground
lease or ancillary agreement;
(vii) The ground lease (a) is not subject to any liens or
encumbrances superior to, or of equal priority with, the Mortgage,
subject, however, to only the Title Exceptions or (b) 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;
(viii) A 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 before the lessor thereunder may terminate such Ground Lease;
(ix) 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;
(x) Under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee from the lessor, and the related
Mortgage, taken together, any related insurance proceeds or condemnation
award (other than 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 or approved 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);
(xi) The ground lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by a prudent commercial
and multifamily mortgage lending institution; and
(xii) 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.
Annex A to Exhibit C
--------------------
Mortgage Loans With Environmental Insurance Coverage
----------------------------------------------------
[None]
EXHIBIT D
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Representation numbers referred to below relate to the corresponding
Mortgage Loan representations and warranties set forth in Exhibit C to the
Mortgage Loan Purchase Agreement. Underlined titles are provided for reference
only.
SCHEDULE I
---------------------------------------------------------------------------------------------------------------------
Annex A-1
ID # Mortgage Loan Exception
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Exceptions to Representation 5:
1 Villas Parkmerced The Seller may not transfer, sell or assign the Mortgage Loan
to any "Restricted Entity," defined as Whitehall Real Estate
Funds, Northstar Realty Finance, American Real Estate Partners,
or LNR Property Corporation, or any Affiliate (as such term is
defined in the related loan documents) of any of the foregoing
entities or any person in which any of the foregoing persons
holds a direct ownership interest; provided that LNR Property
Corporation or its Affiliates shall not be precluded from
acting as a special servicer of the Loan from and after a
Securitization by reason of its inclusion in this definition.
---------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 13:
Various Various Certain of the loan documents may limit terrorism insurance
coverage to the extent such coverage is available for similarly
situated properties and/or on commercially reasonable terms.
Certain of the loan documents do not require terrorism
insurance be maintained.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ The borrower is permitted to self insure for up to $750,000 per
occurrence.
---------------------------------------------------------------------------------------------------------------------
Exception to Representation 21:
All All The Seller makes no representation regarding the bankruptcy or
insolvency of any tenant at the Mortgaged Property.
---------------------------------------------------------------------------------------------------------------------
Exception to Representation 23:
8, 9, 10 Beyman Multifamily Portfolio The loan documents permit the transfer a controlling interest
in the borrower in connection with a preferred equity
participation interest in the borrower.
---------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 24:
1 The Villas Parkmerced The sole member of the borrower incurred mezzanine debt from
GACC in an amount up to $52,000,000. Only $28,000,000 of that
amount has been funded and the remaining $24,000,000 is
required to be advanced, subject to satisfaction of certain
conditions set forth in the loan documents. The holder of the
mezzanine debt has entered into an intercreditor agreement with
lender.
---------------------------------------------------------------------------------------------------------------------
4 Westin Philadelphia Hotel The sole member of the borrower incurred mezzanine debt from
HEI Hospitality Fund (an affiliate of the borrower), in an
amount up to $15,000,000. Only $5,500,000 has been funded. The
holder of the mezzanine debt has entered into an intercreditor
agreement with lender.
---------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ One of the sponsors is permitted to pledge its indirect
ownership interest in the borrower to an institutional lender
as security for a corporate line of credit under which line of
credit the institutional lender has no right to foreclose.
---------------------------------------------------------------------------------------------------------------------
15 Shorenstein Brisbane The loan documents permit mezzanine debt subject to
conditions including, but not limited to, a combined debt
service coverage ratio of not less than 1.25x and a combined
loan to value ratio of not more than 74%.
---------------------------------------------------------------------------------------------------------------------
20, 21, ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Portfolio The loan documents permit GID Glexspace II LLC and Windsor
23, 24 Capital Corporation to engage in traditional corporate
financings with institutional lenders and pledge its interest
in the borrower in connection with the financing.
---------------------------------------------------------------------------------------------------------------------
41 Indian Lakes Apartments The sole member of the borrower is permitted to incur mezzanine
debt provided, among other things, the security granted
consists only of a pledge the ownership interests or preferred
interest in the borrower, the combined DSCR is not less than
1.15x, the combined LTV is not more than 85%, the lender is an
acceptable institutional lender, the lender delivers an
acceptable intercreditor agreement, and the mezzanine debt is
not cross-defaulted or cross-collateralized with any other
properties or loans. In addition, the sponsors are permitted to
pledge its interest in the borrower to a "Qualified
Institution" (as defined in the loan documents), to secure a
loan in the ordinary course of business that is secured by all
of the assets of such sponsor.
---------------------------------------------------------------------------------------------------------------------
62 IBM Call Center The sponsors of the borrower incurred mezzanine debt from an
affiliate of GACC in the amount of $4,000,000. The holder of
the mezzanine debt has entered into an intercreditor agreement
with the lender.
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ The loan documents permit mezzanine debt in connection with a
sale of the Mortgaged Property, subject to conditions
including, but not limited to, a combined debt service coverage
ratio of not less than 1.45x and a combined loan to value ratio
of not greater than 75%. The loan documents also require that
if the debt service coverage ratio for any month falls below
1.0x, the borrower will be required to deposit additional funds
into the seasonality reserve.
---------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 27:
2 Valley View Center The loan documents permit the release of the "Release Parcel"
(as defined in the loan documents) after the expiration of the
defeasance lockout period, provided, among other things, (i)
such release will not result in a loss of more than 25,000
rentable square feet of retail space, (ii) the debt service
coverage ratio ("DSCR") for the loan, after taking into account
any improvement which is proposed to be built on the Release
Parcel and its effect on income and expenses at the Property,
will not be less than the greater of 1.45x or 90% of the DSCR
for the loan as of the date immediately preceding such release
(calculated by multiplying the DSCR immediately prior to the
release by 0.90), (iii) the fair market value of the Release
Parcel (as determined by a new appraisal) does not exceed
$15,000,000 and (iv) the borrower provide defeasance collateral
in an amount sufficient to partially defease the fair market
value of the release parcel (as determined by the new
appraisal). In addition, the loan documents permit the purchase
of the parcel currently owned by ▇▇▇▇▇'▇ and, subject to
certain requirements in the loan documents, extend the lien of
the mortgage to include this parcel. Thereafter, subject to
conditions in the loan documents, the borrower has the right to
sell and obtain a release from the lien of all or a portion of
the ▇▇▇▇▇ parcel.
20, 21, 22, Century Center Parkway Portfolio The loan documents permit the release of a Mortgaged Property
23, 24 at a time when one or more related crossed Mortgage Loans are
outstanding (and a release of the related cross
collateralization arrangement), subject to subject to the
satisfaction of certain release conditions specified in the
loan documents (including the satisfaction of debt service
coverage and loan to value tests and payment of a Premium (as
defined in the related loan documents) plus the payment of an
additional 15% of the original principal balance of the
Mortgage Loan to be released from the cross, which amount will
be held by lender as additional security for the remaining
crossed loans.
---------------------------------------------------------------------------------------------------------------------
58 Hawthorne Exchange The loan documents permit the partial sale and release of the
CountryWide Parcel, the Westcom Parcel (together, the "Wide
West Parcel") and the Starbuck's Parcel (each, an "Individual
Property") not sooner than 9 months after the loan closing date
and only if all funds on deposit in the Holdback Reserve (as
such term is defined in the related deed of trust) have been
released, subject to conditions including, but not limited to,
(i) payment of an application fee, assumption fee and an amount
equal to 1% of the portion of the Note attributable to the Sale
Property, (ii) the loan to value ratio for each of the property
remaining after the sale (the "Remaining Property") and the
Individual Property to be sold (the "Sale Property") is not
more than 80% and the debt service coverage ratio for each of
the Remaining Property and the Sale Property is at least 1.20x,
(iii) the properties that constitute the Wide West Parcel may
not be sold individually and (iv) the buyer of the Sale
Property assumes the portion of the Mortgage Loan and the
allocable amount for such Sale Property.
The loan documents also permit the partial defeasance and
release of the Wide West Parcel at least 2 years after the
"startup date," after the release of all funds in the Holdback
Reserve and after the Starbuck's parcel has been sold (pursuant
to the conditions described above), subject to conditions
including, but not limited to, (i) the Mortgaged Property
remaining after giving effect to the release (the "Leftover
Property") constitutes a separate legal lot and tax parcel,
(ii) with respect to the Leftover Property the loan to value
ratio is not more than 80% and the debt service coverage ratio
at least 1.20x, (iii) delivery of defeasance collateral in an
amount equal to 115% of the allocable amount for such
Individual Property.
---------------------------------------------------------------------------------------------------------------------
Exception to Representation 30:
1 Villas Parkmerced In addition to its interest in the Mortgaged Property, the
borrower owns 100% of the equity interests in Parkmerced
Investors Properties Manager, LLC, an entity that holds certain
income-producing off-site management contracts.
---------------------------------------------------------------------------------------------------------------------
20, 21, ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Portfolio The loan documents permit the borrower to pay operating
23, 24 expenses for the related Mortgaged Property from a centralized
collection account shared by the borrower and certain of its
affiliates (including affiliates that are not owners of the
crossed properties).
---------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 34:
20, 21, 22, Century Center Parkway Portfolio Subject to certain conditions in the loan documents, the
23, 24 borrower is permitted to convey fee title to The Industrial
Development Board of the City of Memphis and County of Shelby,
Tennessee ("IBD") and simultaneously enter into a lease
agreement (the "PILOT lease") with the IDB pursuant to which
the IBD leases the Mortgaged Property to the borrower and the
borrower, in lieu of taxes, makes rent payments to IBD.
1620, 1640 and 1680 The borrower conveyed fee title to Mortgaged Properties to
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ The Industrial Development Board of the City of Memphis and
and County of Shelby, Tennessee ("IBD") and simultaneously
22 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ entered into a lease agreement (the "PILOT lease") with the IDB
pursuant to which the IBD leases theses Mortgaged Properties to
the borrower and the borrower, in lieu of taxes, makes rent
payments to IBD. The IBD signed the related Mortgages.
24 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Subject to certain conditions in the loan documents, the
23 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ borrower is permitted to convey fee title to IBD and
21 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ simultaneously enter into a PILOT lease with the IDB pursuant
to which the IBD leases the related Mortgaged Property to the
borrower and the borrower, in lieu of taxes, makes rent
payments to IBD.
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Exceptions to Representation 36:
71 Chrysler Retail A temporary certificate of occupancy ("CO") currently exists
with respect to a portion of the Mortgaged Property. The
borrower covenanted it will pay (or cause to be paid) any and
all amounts and perform with reasonable diligence (or cause to
be performed) any and all work as may be required to satisfy
(or cause to be satisfied) the remaining conditions on the
temporary CO in a timely manner such that a permanent CO will
be issued.
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148 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ The borrower is in receipt of a temporary CO but is not in
receipt of a permanent CO. The borrower reserved $50,000 with
lender to be held as additional collateral until the borrower
delivers a final CO to lender.
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EXHIBIT E-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of German American Capital Corporation
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I, ______________________, a ______________________ of German American
Capital Corporation (the "Seller"), hereby certify as follows:
The Seller is a corporation duly organized and validly existing under the
laws of the State of Maryland.
Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times in
full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been duly elected and qualified
officer or authorized signatory of the Seller and his or her genuine signature
is set forth opposite his or her name:
Name Office Signature
-------------------------- --------------------- ---------------------
-------------------------- --------------------- ---------------------
-------------------------- --------------------- ---------------------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated March 14, 2006 (the
"Purchase Agreement"), between the Seller and Deutsche Mortgage & Asset
Receiving Corporation providing for the purchase by Deutsche Mortgage & Asset
Receiving Corporation from the Seller of the Mortgage Loans, was, at the
respective times of such signing and delivery, duly authorized or appointed to
execute such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate
as of __________ __, 2006.
By:
------------------------------------
Name:
Title:
I, [name], [title], hereby certify that __________ is a duly elected
or appointed, as the case may be, qualified and acting __________ of the Seller
and that the signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of __________ __, 2006.
By:
------------------------------------
Name:
Title: