Exhibit 99.1
GACC Mortgage Loan Purchase Agreement
See attached
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated
and effective October 30, 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-CD3 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
McGraw-Hill
Companies, Inc. and Moody's 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
October 1, 2006
(the "Pooling and Servicing Agreement"), among the Purchaser as
depositor,
Capmark Finance Inc., as a master servicer with respect to all of
the Mortgage
Loans other than the Mortgage Loans known as the Ala Moana
Portfolio loan and
the Fair Lakes Office Portfolio loan (the "Capmark Master
Servicer"), and
Wachovia Bank, National Association with respect to the Mortgage
Loans known as
the Ala Moana Portfolio loan and the Fair Lakes Office Portfolio
loan (the
"Wachovia Master Servicer" and, collectively with the Capmark
Master Servicer,
the "Master Servicers"), J.E. Robert Company, Inc., as special
servicer (in such
capacity, the "Special Servicer") and LaSalle Bank National
Association, as
trustee (the "Trustee").
The Purchaser intends to sell certain of the Certificates to
Deutsche Bank Securities Inc. ("DBS"), Citigroup Global Markets
Inc. ("CGM"),
Capmark Securities Inc. ("CSI"), Barclays Capital Inc. ("BCI"),
Banc of America
Securities LLC ("B of A") and Wachovia Capital Markets, LLC
("Wachovia" and
collectively with DBS, CGM, CSI, BCI and B of A, the
"Underwriters") pursuant to
an underwriting agreement dated October 23, 2006 (the "Underwriting
Agreement").
The Purchaser intends to sell certain other Certificates (the
"Non-Registered
Certificates") pursuant to a certificate purchase agreement dated
October 23,
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 October 23, 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. The
purchase and sale
of the Mortgage Loans shall take place on October 30, 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 October 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 $1,310,759,610, 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
$1,369,096,550.35.
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 October 30, 2006
between the
Capmark Master Servicer and the Seller and that certain Servicing
Rights
Purchase Agreement dated as of October 30, 2006 between the
Wachovia 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. 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, 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 each
of the Master
Servicers, as applicable.
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, each of
the Master Servicers, as applicable, 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 each of the Master Servicers, as applicable. 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 each of the Master Servicers, as
applicable) in
order for each of the Master Servicers, as applicable, 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 each of the Master Servicers 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
related Master
Servicers, as applicable, and immediately remitting such funds (or
causing such
funds to be remitted) to each of the Master Servicers, as
applicable.
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 Servicers, as applicable, 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 a
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 either of the Master Servicers, 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
related Master
Servicers.
(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
each of the Master Servicers, as applicable, 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 each of the Master Servicers as applicable 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 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 either of the Master Servicers, 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, each
of the
Master Servicers, as applicable (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 Servicers or the
Special
Servicer, as applicable, of a trust receipt and (ii) to the Trustee
by each of
the Master Servicers or the Special Servicer, as applicable, of a
Request for
Release and an acknowledgement by each of the Master Servicers or
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 related Master
Servicers), 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 each of the related Master
Servicers, and
remitted by each of the Master Servicers, as applicable, 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 each of the Master Servicers,
as
applicable, 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, each of the Master Servicers,
as
applicable, 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 each of the Master Servicers, as applicable, 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, Wickersham
& Taft LLP,
One World Financial Center, New York, New York 10281 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
of the 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 bill 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,
60 Wall Street,
New York, New York 10005, Attention: Lainie Kaye, facsimile no.
(212) 797-4487,
with a copy to Anna Glick, Esq., Cadwalader, Wickersham & Taft
LLP, One World
Financial Center, New York, New York 10281,
