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EXHIBIT 99.1
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated and effective December 21, 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 COMM
2006-C8 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 Moody's Investors Service, Inc., and
Fitch, 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 December 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 EZ Storage
Portfolio
Loan (the "Master Servicer"), LNR Partners, Inc., as special
servicer with
respect to all of the Mortgage Loans other than the EZ Storage
Portfolio Loan
(in such capacity, the "Special Servicer"), and LaSalle Bank
National
Association, as trustee (the "Trustee") and paying agent.
The Purchaser intends to sell certain of the Certificates to
Deutsche Bank Securities Inc. ("DBS"), Banc of America Securities
LLC ("BAS"),
Barclays Capital Inc. ("BCI") and Morgan Stanley & Co.
Incorporated ("Morgan
Stanley" and collectively with DBS, BAS and BCI, in such capacity
the
"Underwriters") pursuant to an underwriting agreement dated
December 13, 2006
(the "Underwriting Agreement"). The Purchaser intends to sell
certain other
Certificates (the "Non Registered Certificates") pursuant to a
certificate
purchase agreement dated 13, 2006 (the "Certificate Purchase
Agreement") to
Deutsche Bank Securities Inc. and Banc of America Securities LLC
(together, in
such capacity the "Initial Purchasers"). Capitalized terms not
otherwise defined
herein have the meanings assigned to them in the Pooling and
Servicing Agreement
(as of the Closing Date) or in the GACC Indemnification Agreement
which was
entered into by the Seller, the Purchaser and the Underwriters on
December 13,
2006 (the "GACC Indemnification Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
Subject to the terms and conditions set forth in this
Agreement,
the Seller agrees to sell, assign, transfer and otherwise convey to
the
Purchaser upon receipt of the Mortgage Loan 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
December 21, 2006 or
such other date as shall be mutually acceptable to the parties
hereto (the
"Closing Date"). As of the close of business on December 1, 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 the Cut-off Date, whether or not
received, of
$1,796,482,777, 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 Section 9 hereof) (the
"Mortgage Loan
Purchase Price") shall be equal to the amount set forth on the
cross receipt
between the Seller and the Purchaser dated the date hereof.
SECTION 2. Conveyance of Mortgage Loans.
(a) On the Closing Date, subject only to receipt by the Seller
of the Mortgage Loan Purchase Price, 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 (i)
that certain
Servicing Rights Purchase Agreement dated as of December 21, 2006
between the
Master Servicer and the Seller, (ii) the rights of the holders of
the Ryan's
Portfolio Pari Passu Loans under the Ryan's Portfolio Intercreditor
Agreement
and (iii) the rights of the holders of the Mall of America Pari
Passu Loans
under the Mall of America Intercreditor Agreement. 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, as
contemplated by the next sentence. 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)(B) or (xiii) of Exhibit B 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) of the prior sentence and 60 days following the receipt
of the
applicable documents in the case of clauses 1(b) and 2 of the prior
sentence)
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 Seller
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 or
otherwise with evidence of recording indicated thereon.
(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 documents and/or instruments referred to in clauses (i),
(ii), (vii),
(xi) and (xvii) of Exhibit B for each Mortgage Loan so assigned
(with originals
with respect to clauses (i) and (xvii) and copies with respect to
clauses (ii),
(vii) and (xi)) and, within 30 days following the Closing Date, the
remaining
applicable documents in Exhibit B for each such Mortgage Loan with
copies to the
Master Servicer.
(c) 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.
(d) 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), (iv)(A), (v)(A),
(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
public
recording 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 (i)
notification from the Seller that the purchase price referred to in
Section 1
has been received by the Seller and (ii) 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 reasonably 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.
(e) 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.
(f) 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 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 Borrowers 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.
(g) 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. Following the transfer of the Mortgage Loans
to the
Purchaser, the Seller will not take any action inconsistent with
the ownership
of the Mortgage Loans by the Purchaser or its assignees.
(h) Furthermore, it is the express intent of the parties hereto
that the conveyance of the Mortgage Loans by Seller to Purchaser as
provided in
this Agreement be, and be construed as, a sale of the Mortgage
Loans by Seller
to Purchaser and not a pledge of the Mortgage Loans by Seller to
Purchaser 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 Purchaser 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 Purchaser 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), Purchaser or
its
assignee for the purpose of perfecting such security interest
under
applicable law.
The Seller at the direction of the Purchaser or its assignee,
shall, to the extent consistent with this Agreement, take such
actions as may be
reasonably 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, Purchaser 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 reasonably necessary
or appropriate
to accomplish the foregoing.
(i) 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
Purchaser's rights and remedies under Section 9 below 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-in-interest of the
Purchaser
and the Trustee, each of the representations and warranties set
forth in Exhibit
C subject to the exceptions set forth in Schedule C-1 to 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, (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 Purchasers, 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) 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 description of
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 Time of
Sale Information (as defined in the GACC
Indemnification Agreement), the Memorandum (as defined in the
GACC
Indemnification Agreement) (insofar as the Prospectus Supplement is
an
exhibit thereto) and in the Prospectus Supplement under the
headings
"Summary of the Prospectus Supplement--Relevant Parties and
Dates--Sponsors," "--Mortgage Loan Sellers," "--Originators,"
"--The
Mortgage Pool," "Risk Factors--Risks Related to the Mortgage
Loans,"
"Transaction Parties--The Sponsors" 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 (or, in the case of the Time of
Sale
Information, did not as of the Time of Sale (as defined in the
GACC
Indemnification Agreement) 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.
(ix) 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 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 Purchasers 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, 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
clauses (i), (ii),
(vii), (xi) and (xvii) of the definition of "Mortgage File" 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 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 closing date certification stated
the Trustee
was not in possession of such document on the Closing Date pursuant
to the first
sentence of the second paragraph of Section 2.02 of the Pooling and
Servicing
Agreement, the related Mortgage Loan Seller shall have 30 days to
cure such
Material Defect; provided, further, 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) as of 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 Seller shall have 30 days to cure the
Material Defect
relating to the missing document; 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.
Notwithstanding
the foregoing, if (x) there exists a Breach of
any representation or warranty on the part of the Seller as set
forth in, or
made pursuant to, clause 38 of Exhibit C to this Agreement relating
to fees and
expenses payable by the Borrower associated with the exercise of a
defeasance
option, a waiver of a "due-on-sale" provision or a
"due-on-encumbrance"
provision or the release of any Mortgaged Property, and (y) the
related Mortgage
Loan documents specifically prohibit the Master Servicer or Special
Servicer
from requiring the related Borrower to pay such fees and expenses,
then, upon
notice by the Master Servicer or Special Servicer, the Seller shall
transfer to
the Collection Account, within 90 days of the Seller's receipt of
such notice,
the amount of any such fees and expenses borne by the Trust Fund
that are the
basis of such Breach. Upon its making such deposit, the Seller
shall be deemed
to have cured such Breach in all respects. Provided such payment is
made, this
paragraph describes the sole remedy available to the Purchaser and
its assignees
regarding any such Breach, regardless of whether it constitutes a
Material
Breach, and the Seller shall not be obligated to repurchase or
otherwise cure
such Breach.
(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, and the
Seller shall
be entitled to receive therefrom, 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
or on behalf
of the Trustee, the Master Servicer or the Special Servicer, 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 Exhibit
B hereto.
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 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
Purchaser 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, 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 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 Mortgage Loan Purchase
Price, 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
D-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 Purchasers
and each Underwriter may rely, attaching thereto as an exhibit the
By-Laws 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 Purchasers 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 Purchasers
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 Reassignments 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 up front 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; (iv) the fees charged by the Rating
Agencies to rate
the Certificates so rated; (v) the fees and expenses of counsel to
the
Underwriters; (vi) the fees and expenses of counsel to the
Purchaser; (vii) the
fees and expenses of counsel to the Master Servicer; (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, facsimile no. (212)
909-5870, 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, 60 Wall Street, New York, New
York 10005,
Attention: Lainie Kaye, facsimile no. (212) 797-4487 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,
specifically relating
to the Seller, 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),
insofar as such
disclosure is required under Items 1117 and 1119 of Regulation AB
and Item 1.03
to Form 8-K. The Seller shall use reasonable efforts to deliver
proposed
disclosure language relating to any event, specifically relating to
the Seller,
described under Items 1117 and 1119 of Regulation AB and Item 1.03
to Form 8-K
to the Trustee and the Purchaser as soon as reasonably practicable
after the
Seller becomes aware of such event and in no event more than two
business days
following the occurrence of such event if such event is reportable
under Item
1.03 to Form 8-K. The obligation of the Seller to provide the above
referenced
disclosure materials will terminate upon notice or other written
confirmation
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 or the reporting
requirements
with respect to the Trust under the Securities Exchange Act of 1934
have
otherwise automatically suspended. 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
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.
<PAGE>
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/ Mary C.
Brundage
----------------------------------
Name: Mary C.
Brundage
Title:
Authorized
Signatory
By: /s/ Helaine M.
Kaplan
----------------------------------
Name: Helaine M.
Kaplan
Title: Vice
President
DEUTSCHE MORTGAGE & ASSET RECEIVING
CORPORATION
By: /s/ Jeremy A.
Beard
----------------------------------
Name: Jeremy A.
Beard
Title: Vice
President
By: /s/ Mary
Brundage
----------------------------------
Name: Mary
Brundage
Title: Vice
President
<PAGE>
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) the Servicing Fee Rate;
(x) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(xi) whether such Mortgage Loan has an Anticipated Repayment
Date;
(xii) the Revised Rate of such Mortgage Loan, if any;
(xiii) 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;
(xiv) identifying any Mortgage Loans with which any such
Mortgage
Loans are cross-collateralized; and
(xv) 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 such descriptions are incorporated by reference into
the Mortgage
Loan Schedule attached hereto.
Exhibit A
<TABLE>
<CAPTION>
Mortgage
Loan
ID
Property Name
Seller City
State Zip Code
-------
---------------------------------------- -------- ------------------
-------
--------
<S>
<C>
<C>
<C>
<C>
<C>
1
Mall of America
GACC
Bloomington
MN
55425
2
Four Allen
Center
GACC
Houston
TX
77002
Manhattan Office Portfolio
GACC New
York
NY
Various
5
369 Lexington
Avenue
GACC New
York
NY
10017
6
2 West 46th
Street
GACC New
York
NY
10036
9
Sierra Vista
Mall
GACC
Clovis
CA
93612
11
Scottsdale 101
GACC
Phoenix
AZ
85054
13
Broward
Multifamily Portfolio
GACC
Various
FL
Various
13.1
Water's Edge
GACC
Sunrise
FL
33351
13.2
Southern Pointe
GACC
Plantation
FL
33322
14
Fortress/Ryan's
Portfolio
GACC
Various
Various
Various
14.1
Ryans
GACC
Picayune
MS
39466
14.2
Ryans
GACC
Crestview
FL
32536
14.3
Fire Mountain
GACC
Fayetteville
NC
28303
14.4
Ryans
GACC
Bowling Green
KY
42104
14.5
Fire Mountain
GACC
Pensacola
FL
32534
14.6
Ryans
GACC
Macon
GA
31206
14.7
Ryans
GACC
Conroe
TX
77304
14.8
Ryans
GACC
Columbus
GA
31904
14.9
Ryans
GACC
Beckley
WV
25801
14.10 Ryans
GACC
Aiken
SC
29803
14.11 Ryans
GACC
Pearl
MS
39208
14.12 Ryans
GACC
Asheville
NC
28806
14.13 Ryans
GACC
Beaumont
TX
77706
14.14 Ryans
GACC
Albany
GA
31707
14.15 Old Country Buffet
GACC Coon
Rapids
MN
55448
14.16 Ryans
GACC
Surfside Beach SC
29575
14.17 Ryans
GACC
Montgomery
AL
36117
14.18 Ryans
GACC
North Charleston
SC
29406
14.19 Fire Mountain
GACC
Flowood
MS
39232
14.20 Ryans
GACC
Hanover
PA
17331
14.21 Ryans
GACC
Princeton
WV
24740
14.22 Ryans
GACC
Hermitage
TN
37076
14.23 Ryans
GACC
Martinez
GA
30907
14.24 Fire Mountain
GACC
Columbia
SC
29212
14.25 Ryans
GACC
Columbia
SC
29223
14.26 Fire Mountain
GACC
Decatur
AL
35603
14.27 Ryans
GACC
Greer
SC
29650
14.28 Fire Mountain
GACC
Athens
GA
30606
14.29 Ryans
GACC
Charleston
SC
29407
14.30 Fire Mountain
GACC
Burleson
TX
76028
14.31 Ryans
GACC
Martinsburg
WV
25401
14.32 Ryans
GACC
Commerce
GA
30529
14.33 Fire Mountain
GACC Horn
Lake
MS
38637
14.34 Ryans
GACC
Fredericksburg VA
22401
14.35 Fire Mountain
GACC
North Augusta
SC
29841
14.36 Ryans
GACC
Anderson
SC
29621
14.37 Fire Mountain
GACC
Mobile
AL
36619
14.38 Ryans
GACC
Alcoa
TN
37701
14.39 Ryans
GACC
Texas City
TX
77591
14.40 Ryans
GACC
Hixson
TN
37343
14.41 Ryans
GACC
Denham Springs LA
70726
14.42 Fire Mountain
GACC
Dawsonville
GA
30534
14.43 Ryans
GACC
Murfreesboro
TN
37129
14.44 Ryans
GACC
Jasper
AL
35501
14.45 Ryans
GACC
Florence
AL
35630
14.46 Ryans
GACC
North Myrtle Beach SC
29582
14.47 Fire Mountain
GACC
Bossier City
LA
71111
14.48 Ryans
GACC
Canton
GA
30114
14.49 Ryans
GACC
Owensboro
KY
42301
14.50 Ryans
GACC
Rome
GA
30165
14.51 Fire Mountain
GACC Lake
Charles
LA
70605
14.52 Fire Mountain
GACC
Hickory
NC
28602
14.53 Ryans
GACC
Cartersville
GA
30120
14.54 Ryans
GACC
Crossville
TN
38555
14.55 Ryans
GACC
Carrollton
GA
30116
14.56 Ryans
GACC Pace
FL
32571
14.57 Ryans
GACC
Christiansburg VA
24073
14.58 Ryans
GACC
Prattville
AL
36066
14.59 Ryans
GACC
Paducah
KY
42001
14.60 Ryans
GACC
Lake
Jackson
TX
77566
14.61 Fire Mountain
GACC
Lexington
KY
40509
14.62 Fire Mountain
GACC
Spanish Fort
AL
36527
14.63 Ryans
GACC
Hiram
GA
30141
14.64 Ryans
GACC
Greenville
SC
29611
14.65 Fire Mountain
GACC
Auburn
IN
46706
14.66 Ryans
GACC
Seymour
IN
47274
14.67 Ryans
GACC
Springfield
MO
65803
14.68 Fire Mountain
GACC
Cullman
AL
35055
14.69 Fire Mountain
GACC
Spartanburg
SC
29301
14.70 Ryans
GACC West
Columbia
SC
29169
14.71 Ryans
GACC
Dothan
AL
36301
14.72 Ryans
GACC
Easley
SC
29640
14.73 Fire Mountain
GACC
Gardendale
AL
35071
14.74 Ryans
GACC
Joplin
MO
64801
14.75 Ryans
GACC
Greenwood
SC
29649
14.76 Ryans
GACC
Conway
SC
29526
14.77 Ryans
GACC
Chambersburg
PA
17201
14.78 Ryans
GACC
Lumberton
NC
28358
14.79 Fire Mountain
GACC
Griffin
GA
30223
14.80 Ryans
GACC
Springfield
MO
65807
14.81 Fire Mountain
GACC
Calhoun
GA
30701
14.82 Fire Mountain
GACC
North Little Rock
AR
72117
14.83 Ryans
GACC Oak
Ridge
TN
37830
14.84 Fire Mountain
GACC
Foley
AL
36535
14.85 Ryans
GACC Hot
Springs
AR
71913
14.86 Ryans
GACC
Johnstown
PA
15904
14.87 Ryans
GACC
Seneca
SC
29678
14.88 Ryans
GACC
Greenville
SC
29607
14.89 Ryans
GACC
Marietta
OH
45750
14.90 Ryans
GACC
Orangeburg
SC
29118
14.91 Ryans
GACC
Lafayette
LA
70506
14.92 Fire Mountain
GACC
Fort
Smith
AR
72903
14.93 Ryans
GACC
Cincinnati
OH
45245
14.94 Ryans
GACC
Akron
OH
44312
14.95 Ryans
GACC
Gastonia
NC
28056
14.96 Fire Mountain
GACC
Concord
NC
28027
14.97 Ryans
GACC
Elizabethtown
KY
42701
14.98 Fire Mountain
GACC
Clarksville
TN
37040
14.99 Ryans
GACC
Corydon
IN
47112
14.100 Ryans
GACC
Jonesboro
AR
72401
14.101 Ryans
GACC
Morristown
TN
37814
14.102 Ryans
GACC
Simpsonville
SC
29680
14.103 Ryans
GACC
Sevierville
TN
37876
14.104 Ryans
GACC
Cookeville TN
38501
14.105 Fire Mountain
GACC
Mansfield
OH
44906
14.106 Fire Mountain
GACC
Columbia
SC
29209
14.107 Ryans
GACC
Tyler
TX
75703
14.108 Ryans
GACC
Millington
TN
38053
14.109 Fire Mountain
GACC
Winston-Salem
NC
27105
14.110 Ryans
GACC
Tupelo
MS
38804
14.111 Ryans
GACC
Cleveland
TN
37312
14.112 Ryans
GACC
Indianapolis
IN
46227
14.113 Ryans
GA
