MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated
as
of March 14, 2007, between GERMAN AMERICAN CAPITAL CORPORATION, as
seller (the
"Seller"), and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
("CCMSI"), as
purchaser (the "Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily, commercial and/or manufactured housing
community mortgage
loans (the "Mortgage Loans") identified on the schedule (the
"Mortgage Loan
Schedule") annexed hereto as "Annex A". Eleven of the Mortgage
Loans (the "ACS
Loans") were purchased by the Seller pursuant to a mortgage loan
purchase
agreement, dated and effective as of March 14, 2007 (the "ACS
Purchase
Agreement"), between American Capital Strategies, Ltd., as seller
("ACS") and
the Seller, as purchaser. The Purchaser intends to deposit the
Mortgage Loans,
along with certain other mortgage loans (the "Other Mortgage
Loans"), into a
trust fund (the "Trust Fund"), the beneficial ownership of which
will be
evidenced by multiple classes (each, a "Class") of mortgage
pass-through
certificates (the "Certificates"). One or more "real estate
mortgage investment
conduit" ("REMIC") elections will be made with respect to most of
the Trust
Fund. The Trust Fund will be created and the Certificates will be
issued
pursuant to a pooling and servicing agreement (the "Pooling and
Servicing
Agreement"), to be dated as of March 1, 2007, among CCMSI, as
depositor, Midland
Loan Services, Inc., Wachovia Bank, National Association and
Capmark Finance
Inc., as master servicers (each, a "Master Servicer" and, together,
the "Master
Servicers"), LNR Partners, Inc., as special servicer (the "Special
Servicer"),
Wells Fargo Bank, National Association, as trustee (the "Trustee")
and LaSalle
Bank National Association, as certificate administrator (the
"Certificate
Administrator"). Capitalized terms used herein (including the
schedules attached
hereto) but not defined herein (or in such schedules) have the
respective
meanings set forth in the Pooling and Servicing Agreement.
CCMSI intends to sell certain Classes of the Certificates (the
"Publicly Offered Certificates") to Citigroup Global Markets Inc.
("CGMI"),
Deutsche Bank Securities Inc. ("DBS"), LaSalle Financial Services,
Inc., RBC
Capital Markets Corporation and PNC Capital Markets LLC
(collectively, the
"Dealers"), pursuant to an underwriting agreement dated as of the
date hereof
(the "Underwriting Agreement"), between CCMSI and the Dealers. The
Publicly
Offered Certificates are more particularly described in a
prospectus supplement
dated March 14, 2007 (the "Prospectus Supplement") and the
accompanying base
prospectus dated March 5, 2007 (the "Base Prospectus" and, together
with the
Prospectus Supplement, the "Prospectus").
CCMSI further intends to sell the remaining Classes of the
Certificates (the "Privately Offered Certificates") to CGMI and
DBS, pursuant to
a certificate purchase agreement dated as of the date hereof (the
"Certificate
Purchase Agreement"), between CCMSI, CGMI and DBS. The Privately
Offered
Certificates are more particularly described in an offering
memorandum dated
March 14, 2007 (the "Memorandum").
Certain Classes of the Certificates will be assigned ratings by
Fitch, Inc., Moody's Investors Service, Inc. and/or Standard &
Poor's Rating
Services, a division of The McGraw-Hill Companies, Inc. (together,
the "Rating
Agencies").
In connection with its sale of the Mortgage Loans, the Seller shall
enter into an indemnification agreement dated as of the date hereof
(the
"Indemnification Agreement"), between the Seller, CCMSI and the
Dealers.
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, and the Purchaser agrees to purchase,
the
Mortgage Loans identified on the Mortgage Loan Schedule. The
Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans
delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are
expected to have
an aggregate principal balance as of the close of business on the
Cut-off Date
(the "Seller Mortgage Loan Balance") of $2,115,270,058 (subject to
a variance of
plus or minus 5.0%), after giving effect to any payments due on or
before such
date, whether or not such payments are received. The Seller
Mortgage Loan
Balance, together with the aggregate principal balance of the Other
Mortgage
Loans as of the Cut-off Date (after giving effect to any payments
due on or
before such date whether or not such payments are received), is
expected to
equal an aggregate principal balance (the "Cut-off Date Pool
Balance") of
$6,599,815,279 (subject to a variance of plus or minus 5.0%). The
purchase and
sale of the Mortgage Loans shall take place on March 29, 2007 or
such other date
as shall be mutually acceptable to the parties to this Agreement
(the "Closing
Date"). The consideration (the "Aggregate Purchase Price") for the
Mortgage
Loans shall consist of a cash amount, payable in immediately
available funds, as
reflected on the settlement statement agreed to by the Seller and
the Purchaser,
which amount shall include interest accrued on the Seller Mortgage
Loan Balance
for the period from and including the Cut-off Date up to but not
including the
Closing Date. The Aggregate Purchase Price shall be reduced, with
respect to the
Late Payment Date Loans, by an amount equal to one month of
interest payable by
the related borrower, which amount shall be used to make an
interest-only
payment in respect of such Mortgage Loan to the Certificateholders
in April
2007. "Late Payment Date Loans" mean those ACS Loans known as (and
identified on
the Mortgage Loan Schedule as) JQH Hotel Portfolio B-Note, 24 Hour
Fitness and
Big Kmart-Clemmons. The Aggregate Purchase Price shall be reduced,
with respect
to the Initial Date Deposit Loans, by their respective Initial Date
Deposits.
For purposes of the foregoing, the Initial Date Deposit Loans are
those Mortgage
Loans known as (and identified on the Mortgage Loan Schedule as)
Sudley North
Business Center, Fort Hill Centre, Sudley North Business Center
Building and
Griffin Building.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the
Closing Date.
SECTION 2.
Conveyance of Mortgage Loans.
(a)
Effective as of the Closing Date, subject only to receipt by
the Seller of the Aggregate Purchase Price and satisfaction or
waiver of the
other conditions to closing that are for the benefit of the Seller,
the Seller
does hereby sell, transfer, assign, set over and otherwise convey
to the
Purchaser, without recourse (except as set forth in this
Agreement), all the
right, title and interest of the Seller in and to the Mortgage
Loans identified
on the Mortgage Loan Schedule as of such date, on a
servicing-released basis,
together with all of the Seller's right, title and interest in and
to the
proceeds of any related title, hazard, primary mortgage or other
insurance and
any escrow, reserve or comparable accounts related to the Mortgage
Loans,
subject, in the case of any Mortgage Loan that is part of a Loan
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Combination, to the rights of the holder(s) of any other mortgage
loan(s) in the
related Loan Combination in such proceeds and reserve or comparable
accounts,
and further subject to the understanding that the Seller will sell
certain
servicing rights to the applicable Master Servicer pursuant to that
certain
Servicing Rights Purchase Agreement, dated as of the Closing Date,
between such
Master Servicer and the Seller, and may require that a particular
primary
servicer remain in place with respect to any or all of the Mortgage
Loans. In
addition, with respect to the ACS Loans, the Seller assigns to the
Purchaser all
rights of the Seller under the ACS Purchase Agreement, including
the right to
enforce directly against ACS all repurchase and other obligations
described in
Section 3 of the ACS Purchase Agreement, including the requirement
that in the
event an Early Defeasance (as defined in the ACS Purchase
Agreement) is
exercised by a borrower, ACS is obligated to repurchase the related
Early
Defeasance Loan (as defined in the ACS Purchase Agreement) at the
Purchase
Price, together with a yield maintenance payment.
(b)
The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off
Date, and all
other recoveries of principal and interest collected after the
Cut-off Date
(other than in respect of principal and interest on the Mortgage
Loans due on or
before the Cut-off Date). All scheduled payments of principal and
interest due
on or before the Cut-off Date but collected after the Cut-off Date,
and
recoveries of principal and interest collected on or before the
Cut-off Date
(only in respect of principal and interest on the Mortgage Loans
due on or
before the Cut-off Date and principal prepayments thereon), shall
belong to, and
shall be promptly remitted to, the Seller.
(c)
No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver or cause to be delivered to the Trustee
(with a copy
(except in the case of an Outside Serviced Trust Mortgage Loan or
any letter of
credit referred to in clause (xi)(D) below) to the applicable
Master Servicer
and the Special Servicer within ten (10) Business Days after the
Closing Date)
the documents and instruments specified below under clauses (i),
(ii), (vii),
(ix)(A) and (xi)(D) and shall, not later than the date that is 30
days after the
Closing Date, deliver or cause to be delivered to the Trustee (with
a copy to
the applicable Master Servicer) the remaining documents and
instruments
specified below, in each case with respect to each Mortgage Loan
that is a
Serviced Trust Mortgage Loan (the documents and instruments
specified below,
collectively, the "Mortgage File"). The Mortgage File for each
Serviced Trust
Mortgage Loan shall contain the following documents:
(i)
either (A) in the case of any Serviced Trust Mortgage
Loan, the original executed Mortgage Note including any power of
attorney
related to the execution thereof, together with any and all
intervening
endorsements thereon, endorsed on its face or by allonge attached
thereto
(without recourse, representation or warranty, express or implied)
to the
order of "Wells Fargo Bank, National Association, as trustee for
the
registered holders of CD 2007-CD4 Commercial Mortgage Trust,
Commercial
Mortgage Pass-Through Certificates, Series CD 2007-CD4", or in
blank (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto) or (B) in the case of any Serviced Non-Trust
Mortgage
Loan, a copy of the executed Mortgage Note;
(ii)
an original or a copy of the Mortgage, together with
any and all intervening assignments thereof, in each case (unless
not yet
returned by the applicable recording office) with evidence of
recording
indicated thereon or certified by the applicable recording office;
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(iii)
an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage),
together
with any and all intervening assignments thereof, in each case
(unless not
yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable
recording
office;
(iv)
an original executed assignment, in recordable form
(except for any missing recording information and, if delivered in
blank,
the name of the assignee), of (A) the Mortgage, (B) any related
Assignment
of Leases (if such item is a document separate from the Mortgage)
and (C)
any other recorded document relating to the subject Mortgage Loan
otherwise included in the Mortgage File, in favor of "Wells Fargo
Bank,
National Association, as trustee for the registered holders of CD
2007-CD4
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates,
Series CD 2007-CD4" (and, in the case of a Serviced Loan
Combination, also
on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)),
or in blank;
(v)
an original assignment of all unrecorded documents
relating to the Trust Mortgage Loan (to the extent not already
assigned
pursuant to clause (iii) above), in favor of "Wells Fargo Bank,
National
Association, as trustee for the registered holders of CD 2007-CD4
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates,
Series CD 2007-CD4" (and, in the case of a Serviced Loan
Combination, also
on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)),
or in blank;
(vi)
originals or copies of any consolidation,
assumption, substitution and modification agreements in those
instances
where the terms or provisions of the Mortgage or Mortgage Note have
been
consolidated or modified or the subject Mortgage Loan has been
assumed or
consolidated;
(vii)
the original or a copy of the policy or certificate
of lender's title insurance or, if such policy has not been issued
or
located, an original or copy of an irrevocable, binding commitment
(which
may be a pro forma policy or specimen version of, or a marked
commitment
for, the policy that has been executed by an authorized
representative of
the title company or an agreement to provide the same pursuant to
binding
escrow instructions executed by an authorized representative of the
title
company) to issue such title insurance policy;
(viii)
any filed copies (bearing evidence of filing) or
other evidence of filing reasonably satisfactory to the Purchaser
of any
prior UCC Financing Statements in favor of the originator of the
subject
Mortgage Loan or in favor of any assignee prior to the Trustee (but
only
to the extent the Seller had possession of such UCC Financing
Statements
when it was to deliver the subject Mortgage File on or prior to the
Closing Date), unless not yet returned by the applicable filing
office;
and, if there is an effective UCC Financing Statement in favor of
the
Seller on record with the applicable public office for UCC
Financing
Statements, an original UCC Financing Statement assignment, in form
suitable for filing in favor of "Wells Fargo Bank, National
Association,
as trustee for the registered holders of CD 2007-CD4 Commercial
Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series CD
2007-CD4"
(and, in the case of any A/B Loan Combination, also on behalf of
the
related Serviced Non-Trust Mortgage Loan Noteholder(s)), as
assignee, or
in blank;
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(ix)
an original or a copy of any (A) Ground Lease and
ground lessor estoppel, (B) loan guaranty or indemnity, (C)
lender's
environmental insurance policy or (D) lease enhancement policy;
(x)
any intercreditor, co-lender or similar agreement
relating to permitted debt of the Mortgagor and any intercreditor
agreement relating to mezzanine debt related to the Mortgagor; and
(xi)
copies of any (A) loan agreement, (B) escrow
agreement, (C) security agreement or (D) letter of credit relating
to a
Trust Mortgage Loan (with the original of any such letter of credit
to be
delivered to the applicable Master Servicer).
No later than the Closing Date, the Seller shall, on behalf of the
Purchaser, deliver or cause to be delivered to the Trustee (with a
copy to the
Master Servicer and the Special Servicer within ten (10) Business
Days after the
Closing Date) the documents and instruments specified below with
respect to each
of the Outside Serviced Trust Mortgage Loans (with respect to each
Outside
Serviced Trust Mortgage Loan, the documents and instruments
specified below,
collectively, the "Mortgage File"). The Mortgage File for each
Outside Serviced
Trust Mortgage Loan shall contain the following documents:
(x)
the original executed Mortgage Note for such Outside
Serviced Trust Mortgage Loan including any power of attorney
related to
the execution thereof, together with any and all intervening
endorsements
thereon, endorsed on its face or by allonge attached thereto
(without
recourse, representation or warranty, express or implied) to the
order of
"Wells Fargo Bank, National Association, as trustee for the
registered
holders of CD 2007-CD4 Commercial Mortgage Trust, Commercial
Mortgage
Pass-Through Certificates, Series 2007-CD4" or in blank, (or a lost
note
affidavit and indemnity with a copy of such Mortgage Note attached
thereto);
(y)
an executed copy of the related Co-Lender Agreement;
and
(z)
an executed copy of the related Outside Servicing
Agreement (or, if not delivered on the Closing Date, within five
(5)
Business Days of such Outside Servicing Agreement being duly
delivered and
becoming effective).
The Seller hereby further represents and warrants that with respect
to the Outside Serviced Trust Mortgage Loans, it has delivered to
the Outside
Trustee the documents constituting the "mortgage file" within the
meaning of the
related Outside Servicing Agreement in connection with its sale of
one or more
of the related Non-Trust Mortgage Loans to the depositor for the
commercial
mortgage securitization transaction to which such Outside Servicing
Agreement
relates.
The foregoing document delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
With respect to the Crossed Loans constituting a Crossed Group, the
existence of any document required to be in the Mortgage File of
any Crossed
Loan in such Crossed Group shall be sufficient to satisfy the
requirements of
this Agreement for delivery of such document as a part of the
Mortgage File of
the other Crossed Loan(s) in such Crossed Group, to the extent that
such same
5
document is also required to be part of the Mortgage File for such
other Crossed
Loan(s) in such Crossed Group.
References in this Agreement to "Document Defect" mean that any
document constituting part of the Mortgage File for any Mortgage
Loan has not
been properly executed, is missing (beyond the time period required
for its
delivery hereunder), contains information that does not conform in
any material
respect with the corresponding information set forth in the
Mortgage Loan
Schedule or does not appear regular on its face.
(d)
The Seller, at its own cost and expense, shall retain an
independent third party (the "Recording/Filing Agent") that shall,
as to each
Mortgage Loan (other than Outside Serviced Trust Mortgage Loans),
promptly (and
in any event, as to any such Mortgage Loan, within 90 days
following the later
of (i) the Closing Date and (ii) the delivery of the related
Mortgage(s),
Assignment(s) of Leases, recordable documents, and UCC Financing
Statements to
the Trustee) complete (if and to the extent necessary) and cause to
be submitted
for recording or filing, as the case may be, in favor of the
Trustee in the
appropriate public office for real property records or UCC
Financing Statements,
as appropriate, each assignment of Mortgage, assignment of
Assignment of Leases
and assignment of any other recordable documents relating to each
such Mortgage
Loan, referred to in Sections 2(c)(iv)(A), (B) and (C) and each
assignment of a
UCC Financing Statement in favor of the Trustee and so delivered to
the Trustee
and referred to in Section 2(c)(viii). The Seller shall cause the
recorded
original of each such assignment of recordable documents to be
delivered to the
Trustee or its designee following recording, and shall cause the
file copy of
each such UCC Financing Statement to be delivered to the Trustee or
its designee
following filing; provided that in those instances where the public
recording
office retains the original assignment of Mortgage or assignment of
Assignment
of Leases, the Seller or the Recording/Filing Agent shall obtain
therefrom a
certified copy of the recorded original, which shall be delivered
to the Trustee
or its designee. 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 to be prepared a substitute
therefor or
cure such defect, as the case may be, and thereafter cause the same
to be duly
recorded or filed, as appropriate. The Seller shall be responsible
for the
out-of-pocket costs and expenses of the Recording/Filing Agent in
connection
with its performance of the recording, filing and delivery
obligations
contemplated above.
(e)
The Seller shall deliver or cause to be delivered to the
applicable Master Servicer or such Master Servicer's designee: (i)
within ten
(10) days after the Closing Date, all documents and records in the
Seller's
possession (except draft documents, attorney-client privileged
communications
and internal correspondence, credit underwriting or due diligence
analyses,
credit committee briefs or memoranda or other internal approval
documents or
data or internal worksheets, memoranda, communications or
evaluations and other
underwriting analysis of the Seller) relating to, and necessary for
the
servicing and administration of, each Mortgage Loan (other than an
Outside
Serviced Trust Mortgage Loan) and that are not required to be part
of the
Mortgage File in accordance with the definition thereof (including,
without
limitation, any original letters of credit relating to any Mortgage
Loan); and
(ii) within two (2) Business Days after the Closing Date, any and
all escrow
amounts and reserve amounts in the Seller's possession or under its
control that
relate to the Mortgage Loans (other than an Outside Serviced Trust
Mortgage
Loan).
(f)
The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any
letters of
credit in the name of the Seller which
6
secure any Mortgage Loan (other than an Outside Serviced Trust
Mortgage Loan).
Without limiting the generality of the foregoing, if a draw upon a
letter of
credit is required before its transfer to the Trust Fund can be
completed, the
Seller shall draw upon such letter of credit for the benefit of the
Trust
pursuant to written instructions from the applicable Master
Servicer.
(g)
After the Seller's transfer of the Mortgage Loans to or at the
direction of the Purchaser, the Seller shall not take any action to
suggest that
the Purchaser is not the legal owner of the Mortgage Loans.
SECTION 3.
Representations, Warranties and Covenants of Seller.
(a)
The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i)
The Seller is a corporation organized and validly
existing and in good standing under the laws of the State of
Maryland and
possesses all requisite authority, power, licenses, permits and
franchises
to carry on its business as currently conducted by it and to
execute,
deliver and comply with its obligations under the terms of this
Agreement;
(ii)
This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due
authorization,
execution and delivery hereof by the Purchaser, constitutes a
legal, valid
and binding obligation of the Seller, enforceable against the
Seller in
accordance with its terms, except as such enforcement may be
limited by
bankruptcy, insolvency, reorganization, receivership, moratorium
and other
laws affecting the enforcement of creditors' rights in general and
by
general equity principles (regardless of whether such enforcement
is
considered in a proceeding in equity or at law), and by public
policy
considerations underlying the securities laws, to the extent that
such
public policy considerations limit the enforceability of the
provisions of
this Agreement which purport to provide indemnification from
liabilities
under applicable securities laws;
(iii)
The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms
of this
Agreement will not (A) violate the Seller's organizational
documents, (B)
violate any law or regulation or any administrative decree or order
to
which it is subject or (C) constitute a material default (or an
event
which, with notice or lapse of time, or both, would constitute a
material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by
which
the Seller is bound, which violation, default or breach, in the
case of
either clause (iii)(B) or (iii)(C) might have consequences that
would, in
the Seller's reasonable and good faith judgment, materially and
adversely
affect the financial condition or the operations of the Seller or
its
properties (taken as a whole) or have consequences that would
materially
and adversely affect its performance hereunder;
(iv)
The Seller is not in default with respect to any
order or decree of any court or any order, regulation or demand of
any
federal, state, municipal or other governmental agency or body,
which
default might have consequences that would, in the Seller's
reasonable and
good faith judgment, materially and adversely affect the financial
condition or the operations of the Seller or its properties (taken
as a
whole) or have consequences that would materially and adversely
affect its
performance hereunder;
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(v)
The Seller is not a party to or bound by any
agreement or instrument or subject to any other corporate
restriction or
any judgment, order, writ, injunction, decree, law or regulation
that
would, in the Seller's reasonable and good faith judgment,
materially and
adversely affect the ability of the Seller to perform its
obligations
under this Agreement or that requires the consent of any third
person to
the execution of this Agreement or the performance by the Seller of
its
obligations under this Agreement (except to the extent such consent
has
been obtained);
(vi)
No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Seller of, or compliance by the
Seller
with, this Agreement or the consummation of the transactions
involving the
Seller contemplated by this Agreement except as have previously
been
obtained, and no bulk sale law applies to such transactions;
(vii)
No litigation is pending or, to the Seller's
knowledge, threatened against the Seller that would, in the
Seller's good
faith and reasonable judgment, prohibit its entering into this
Agreement
or materially and adversely affect the performance by the Seller of
its
obligations under this Agreement; and
(viii)
For purposes of accounting under generally
accepted accounting principles ("GAAP"), and for federal income tax
purposes, the Seller will report the transfer of the Mortgage Loans
to the
Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for
consideration contemplated by this Agreement. The consideration
received
by the Seller upon the sale of the Mortgage Loans to the Purchaser
will
constitute at least reasonably equivalent value and fair
consideration for
the Mortgage Loans. The Seller will be solvent at all relevant
times prior
to, and will not be rendered insolvent by, the sale of the Mortgage
Loans
to the Purchaser. The Seller is not transferring the Mortgage Loans
to the
Purchaser with any intent to hinder, delay or defraud any of the
creditors
of the Seller or on account of an antecedent debt.
(b)
The Seller hereby makes, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I
and Schedule II
hereto with respect to each Mortgage Loan other than the ACS Loans,
for the
benefit of the Purchaser, which representations and warranties are
subject to
the exceptions set forth on Schedules III and IV. References in
this Agreement
to "Breach" mean a breach of any such representations and
warranties made
pursuant to this Section 3(b) with respect to any Mortgage Loan. A
copy of the
ACS Mortgage Loan Purchase Agreement is attached hereto as Annex B.
(c)
If the Seller receives, pursuant to Section 2.03(a) of the
Pooling and Servicing Agreement, written notice of a Document
Defect or a Breach
relating to a Mortgage Loan, and if such Document Defect or Breach
shall
materially and adversely affect the value of the applicable
Mortgage Loan or the
interests of the Certificateholders therein, then the Seller shall,
not later
than ninety (90) days from receipt of such notice (or, in the case
of a Document
Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage"
within the meaning of the REMIC Provisions (a "Qualified
Mortgage"), not later
than ninety (90) days from any party to the Pooling and Servicing
Agreement
discovering such Document Defect or Breach, provided the Seller
receives such
notice in a timely manner), cure such Document Defect or Breach, as
the case may
be, in all material respects, or, if such Document Defect or Breach
(other than
omissions solely due to a document not having been returned by
8
the related recording office) cannot be cured within such 90-day
period, (i)
repurchase the affected Mortgage Loan at the applicable Purchase
Price not later
than the end of such 90-day period, or (ii) substitute a Qualified
Substitute
Mortgage Loan for such affected Mortgage Loan (other than the One
World
Financial Center Mortgage Loan, for which no substitution is
permitted) not
later than the end of such 90-day period (and in no event later
than the second
anniversary of the Closing Date) and pay the applicable Master
Servicer for
deposit into its Collection Account, any Substitution Shortfall
Amount in
connection therewith; provided that, if a Document Defect or Breach
is capable
of being cured but not within such 90-day period and the Seller has
commenced
and is diligently proceeding with the cure of such Document Defect
or Breach
within such 90-day period, then unless such Document Defect or
Breach would
cause the Mortgage Loan not to be a Qualified Mortgage, such Seller
shall have
an additional 90 days to complete such cure (or, failing such cure,
to
repurchase or substitute for the related Mortgage Loan); and
provided, further,
that with respect to such additional 90-day period the Seller shall
have
delivered an officer's certificate to the Trustee setting forth
what actions the
Seller is pursuing in connection with the cure thereof and stating
that the
Seller anticipates that such Document Defect or Breach will be
cured within the
additional 90-day period; and provided, further, that if the cure
of any
Document Defect or Breach would require an expenditure on the part
of the Seller
in excess of $10,000, then the Seller may, at its option, within
the time period
provided above, elect to purchase or replace the affected Mortgage
Loan in
accordance with this Section 3 without attempting to cure such
Document Defect
or Breach, as the case may be. For a period of two years from the
Closing Date,
so long as there remains any Mortgage File relating to a Mortgage
Loan as to
which there is an uncured Document Defect that, to the Seller's
knowledge,
existed as of the Closing Date, and that materially and adversely
affects the
value of the applicable Mortgage Loan or the interests of the
Certificateholders
therein, the Seller shall provide the officer's certificate to the
Trustee
described above as to the reasons such Document Defect remains
uncured and as to
the actions being taken to pursue cure.
No substitution of a Qualified Substitute Mortgage Loan or
Qualified
Substitute Mortgage Loans may be made in any calendar month after
the
Determination Date in such month. Periodic Payments due with
respect to any
Qualified Substitute Mortgage Loan after the related due date in
the month of
substitution shall be part of the Trust Fund, and Periodic Payments
received
with respect to the replaced Mortgage Loan or a repurchased
Mortgage Loan after
the related date of substitution or repurchase, as the case may be,
shall belong
to the Seller. Periodic Payments due with respect to any Qualified
Substitute
Mortgage Loan on or prior to the related due date in the month of
substitution
shall not be part of the Trust Fund and shall be remitted to the
Seller promptly
following receipt, and Periodic Payments received with respect to
the replaced
Mortgage Loan or a repurchased Mortgage Loan up to and including
the related
date of substitution or repurchase, as the case may be, shall
belong to the
Trust Fund.
(d)
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage
Loan is a
Crossed Loan, and (iii) the applicable Document Defect or Breach
does not
constitute a Document Defect or Breach, as the case may be, as to
any other
Crossed Loan in such Crossed Group (without regard to this
paragraph), then the
applicable Document Defect or Breach, as the case may be, will be
deemed to
constitute a Document Defect or Breach, as the case may be, as to
each other
Crossed Loan in the Crossed Group for purposes of this paragraph,
and the Seller
will be required to repurchase or substitute for the remaining
Crossed Loan(s)
in the related Crossed Group as provided in the immediately
preceding paragraph
unless: (x) such other Crossed Loans in such Crossed Group satisfy
the Crossed
Loan Repurchase Criteria; (y) the Seller (at its expense) shall
have furnished
the Trustee with an Opinion of Counsel to the effect that the
repurchase of
9
or substitution for the affected Crossed Loan only, including,
without
limitation, any modification required with respect to such
repurchase or
substitution, shall not cause an Adverse REMIC Event; and (z) the
repurchase of
or substitution for the affected Crossed Loan only shall satisfy
all other
criteria for repurchase or substitution, as applicable, of Mortgage
Loans set
forth herein or in the Pooling and Servicing Agreement. If the
conditions set
forth in clauses (x), (y) and (z) of the prior sentence are
satisfied, the
Seller may elect either to repurchase or substitute for only the
affected
Crossed Loan as to which the related Document Defect or Breach
exists or to
repurchase or substitute for all of the Crossed Loans in the
related Crossed
Group. The Seller shall be responsible for the cost of any
Appraisal required to
be obtained by the applicable Master Servicer to determine if the
Crossed Loan
Repurchase Criteria have been satisfied, so long as the scope and
cost of such
Appraisal has been approved by the Seller (such approval not to be
unreasonably
withheld). To the extent that the Seller is required to purchase or
substitute
for a Crossed Loan hereunder in the manner prescribed above while
the Purchaser
continues to hold any other Crossed Loans in such Crossed Group,
neither the
Seller nor the Purchaser shall enforce any remedies against the
other's Primary
Collateral, but each is permitted to exercise remedies against the
Primary
Collateral securing its respective Crossed Loans, including, with
respect to the
Purchaser, the Primary Collateral securing the Crossed Loans still
held by the
Purchaser, so long as such exercise does not materially impair the
ability of
the other party to exercise its remedies against its Primary
Collateral.
If the exercise of remedies by one party would materially impair
the
ability of the other party to exercise its remedies with respect to
the Primary
Collateral securing the Crossed Loans held by such party, then the
Seller and
the Purchaser shall forbear from exercising such remedies until the
Mortgage
Loan documents evidencing and securing the relevant Crossed Loans
can be
modified in a manner that complies with this Agreement to remove
the threat of
material impairment as a result of the exercise of remedies or some
other
accommodation can be reached. Any reserve or other cash collateral
or letters of
credit securing the Crossed Loans shall be allocated between such
Crossed Loans
in accordance with the Mortgage Loan documents or, if not specified
in the
related Mortgage Loan documents, on a pro rata basis based upon
their
outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a
Crossed Loan included in the Trust Fund is modified to terminate
the related
cross-collateralization and/or cross-default provisions, as a
condition to such
modification, the Seller shall furnish to the Trustee an Opinion of
Counsel that
such modification shall not cause an Adverse REMIC Event. Any
expenses incurred
by the Purchaser in connection with such modification or
accommodation
(including but not limited to recoverable attorney fees) shall be
paid by the
Seller.
Notwithstanding any of the foregoing provisions of this Section
3(d), if there is a Document Defect or Breach (which Document
Defect or Breach
shall materially and adversely affect the value of the related
Mortgage Loan or
the interests of the Certificateholders therein) with respect to
one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller
shall not be
obligated to repurchase or replace the Mortgage Loan if (i) the
affected
Mortgaged Property(ies) may be released pursuant to the terms of
any partial
release provisions in the related Mortgage Loan documents (and such
Mortgaged
Property(ies) are, in fact, released) and, to the extent not
covered by the
applicable release price (if any) required under the related
Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional
amounts
necessary to cover all reasonable out-of-pocket expenses reasonably
incurred by
the applicable Master Servicer, the Special Servicer, the Trustee,
the
Certificate Administrator or the Trust Fund in connection with such
release,
(ii) the remaining Mortgaged Property(ies) satisfy the
requirements, if any, set
forth in the related Mortgage Loan documents and the Seller
provides an opinion
of counsel to the effect that such release would not cause any
REMIC created
10
under the Pooling and Servicing Agreement to fail to qualify as a
REMIC under
the Code or result in the imposition of any tax on "prohibited
transactions" or
"contributions" after the Startup Day under the REMIC Provisions
and (iii) the
Seller obtains from each Rating Agency then rating the Certificates
and delivers
to the Trustee and the applicable Master Servicer written
confirmation that such
release would not cause the then-current ratings of the
Certificates rated by it
to be qualified, downgraded or withdrawn.
(e)
In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a
certificate
from a Servicing Officer certifying as to the receipt of the
Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Collection
Account
maintained by the applicable Master Servicer, and the delivery of
the Mortgage
File(s) and the Servicing File(s) for the related Qualified
Substitute Mortgage
Loan(s) to the Trustee and the applicable Master Servicer,
respectively, if
applicable, (i) the Trustee shall execute and deliver such
endorsements and
assignments as are provided to it by the applicable Master Servicer
or the
Seller, in each case without recourse, representation or warranty,
as shall be
necessary to vest in the Seller, the legal and beneficial ownership
of each
repurchased Mortgage Loan or replaced Mortgage Loan, as applicable,
(ii) the
Trustee, the applicable Master Servicer and the Special Servicer
shall each
tender to the Seller, upon delivery to each of them of a receipt
executed by the
Seller, all portions of the Mortgage File and other documents
pertaining to such
Mortgage Loan possessed by it, and (iii) the applicable Master
Servicer and the
Special Servicer shall release to the Seller any Escrow Payments
and Reserve
Funds held by it in respect of such repurchased or replaced
Mortgage Loans.
(f)
This Section 3 provides the sole remedy available to the
Certificateholders or the Trustee on behalf of the
Certificateholders,
respecting any Document Defect or Breach and the Purchaser
acknowledges and
agrees that the representations and warranties made herein by the
Seller
pursuant to Section 3(b) are solely for risk allocation purposes.
SECTION 4.
Representations and Warranties of the Purchaser. In
order to induce the Seller to enter into this Agreement, the
Purchaser hereby
represents and warrants for the benefit of the Seller as of the
date hereof
that:
(a)
The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The
Purchaser has the full corporate power and authority and legal
right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to the
Trustee.
(b)
This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the
Purchaser's
directors and officers has been taken in connection therewith, and
(assuming the
due authorization, execution and delivery hereof by the Seller)
this Agreement
constitutes the valid, legal and binding agreement of the
Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such
enforcement
may be limited by (i) laws relating to bankruptcy, insolvency,
reorganization,
receivership or moratorium, (ii) other laws relating to or
affecting the rights
of creditors generally, or (iii) general equity principles
(regardless of
whether such enforcement is considered in a proceeding in equity or
at law).
(c)
The Purchaser is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any
judgment, order,
writ, injunction, decree, law or regulation that would, in the
Purchaser's
reasonable and good faith judgment, materially and adversely
11
affect the ability of the Purchaser to perform its obligations
under this
Agreement or that requires the consent of any third person to the
execution of
this Agreement or the performance by the Purchaser of its
obligations under this
Agreement (except to the extent such consent has been obtained).
(d)
No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by such Purchaser of, or compliance by such Purchaser
with, this
Agreement or the consummation of the transactions of such
contemplated by this
Agreement, except for any consent, approval, authorization or order
which has
been obtained prior to the actual performance by such Purchaser of
its
obligations under this Agreement, or which, if not obtained would
not have a
materially adverse effect on the ability of such Purchaser to
perform its
obligations hereunder.
(e)
None of the acquisition of the Mortgage Loans by the
Purchaser, the transfer of the Mortgage Loans to the Trustee, and
the execution,
delivery or performance of this Agreement by the Purchaser, results
or will
result in the creation or imposition of any lien on any of the
Purchaser's
assets or property, or conflicts or will conflict with, results or
will result
in a breach of, or constitutes or will constitute a default under
(i) any term
or provision of the Purchaser's certificate of incorporation or
bylaws, (ii) any
term or provision of any material agreement, contract, instrument
or indenture,
to which the Purchaser is a party or by which the Purchaser is
bound, or (iii)
any law, rule, regulation, order, judgment, writ, injunction or
decree of any
court or governmental authority having jurisdiction over the
Purchaser or its
assets, which default might have consequences that would, in the
Purchaser's
reasonable and good faith judgment, materially and adversely affect
the
condition (financial or other) or operations of the Purchaser or
its properties
or have consequences that would materially and adversely affect its
performance
hereunder.
(f)
Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for the
consideration
contemplated by this Agreement.
(g)
There is no action, suit, proceeding or investigation pending
or to the knowledge of the Purchaser, threatened against the
Purchaser in any
court or by or before any other governmental agency or
instrumentality which
would, in the Purchaser's reasonable and good faith judgment,
materially and
adversely affect the validity of this Agreement or any action taken
in
connection with the obligations of the Purchaser contemplated
herein, or which
would be likely to impair materially the ability of the Purchaser
to enter into
and/or perform under the terms of this Agreement.
(h)
The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal, state,
municipal or governmental agency, which default might have
consequences that
would materially and adversely affect the condition (financial or
other) or
operations of the Purchaser or its properties or might have
consequences that
would materially and adversely affect its performance hereunder.
12
SECTION 5.
Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Thacher Proffitt
& Wood LLP, New
York, New York on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a)
All of the representations and warranties of the Seller set
forth in or made pursuant to Section 3(a) and Section 3(b) of this
Agreement and
all of the representations and warranties of the Purchaser set
forth in Section
4 of this Agreement shall be true and correct in all material
respects as of the
Closing Date;
(b)
The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and all documents
specified in Section
6 of this Agreement (the "Closing Documents"), in such forms as are
agreed upon
and acceptable to CCMSI, the Seller, the Dealers and their
respective counsel in
their reasonable discretion, shall be duly executed and delivered
by all
signatories as required pursuant to the respective terms thereof;
(c)
The Seller or its designee shall have delivered and released
to the Trustee (or a Custodian on its behalf) and the applicable
Master
Servicer, respectively, all documents represented to have been or
required to be
delivered to the Trustee and such Master Servicer on or before the
Closing Date
pursuant to Section 2 of this Agreement;
(d)
All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been
complied with in
all material respects and the Seller and the Purchaser shall each
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;
(e)
The Seller shall have paid all fees and expenses payable by it
to CCMSI or otherwise pursuant to this Agreement as of the Closing
Date; and
(f)
The Underwriters and Initial Purchasers shall have received
letters from an independent accounting firm reasonably acceptable
to CCMSI and
the Seller in form satisfactory to CCMSI, relating to certain
information
regarding the Mortgage Loans and Certificates as set forth in the
Prospectus,
the Prospectus Supplement and other disclosure documents.
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 6.
Closing Documents. The Closing Documents shall consist
of the following:
(a)
This Agreement, the Pooling and Servicing Agreement and the
Indemnification Agreement, in each case duly executed by all
parties thereto;
(b)
A certificate of the Seller, executed by the Seller and dated
the Closing Date, and upon which CCMSI and the Dealers may rely, to
the effect
that: (i) the representations and warranties of the Seller in this
Agreement and
the Indemnification Agreement (other than with respect to the ACS
Loans) are
true and correct in all material respects at and as of the Closing
Date with the
same effect as
13
if made on such date, subject, in the case of the representations
and warranties
made by the Seller pursuant to Section 3(b) of this Agreement, to
the exceptions
to such representations and warranties set forth in Schedules III
and IV to this
Agreement; and (ii) the Seller has, in all material respects,
complied with all
the agreements and satisfied all the conditions on its part that
are required
under this Agreement to be performed or satisfied at or prior to
the Closing
Date;
(c)
An officer's certificate from the Seller, dated the Closing
Date, and upon which CCMSI and the Dealers may rely, to the effect
that each
individual who, as an officer or representative of the Seller,
signed this
Agreement or any other document or certificate delivered on or
before the
Closing Date in connection with the transactions contemplated
herein, was at the
respective times of such signing and delivery, and is as of the
Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on
such documents
and certificates are their genuine signatures;
(d)
True and complete copies of the certificate of incorporation
and by-laws of the Seller (as certified to by the Secretary or an
assistant
secretary of the Seller), and a certificate of good standing of the
Seller
issued by the State of Maryland not earlier than thirty (30) days
prior to the
Closing Date;
(e)
A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination
thereof), relating to
certain corporate and enforceability matters and reasonably
satisfactory to the
Purchaser, its counsel and the Rating Agencies, dated the Closing
Date and
addressed to CCMSI, the Trustee, the Certificate Administrator, the
Dealers and
the Rating Agencies, together with such other written opinions as
may be
required by the Rating Agencies;
(f)
Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the sale of the Mortgage
Loans by the
Seller to the Purchaser; and
(g)
A written opinion of counsel for the Purchaser (which opinion
may be from in-house counsel, outside counsel, or a combination
thereof, and may
include a reliance letter addressed to the Seller with respect to
opinions given
to other parties) relating to certain corporate and enforceability
matters and
reasonably satisfactory to the Seller and its counsel, dated the
Closing Date
and addressed to the Seller.
SECTION 7.
Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) 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 Seller
Mortgage Loan
Balance represents of the Cut-off Date Pool Balance, the exact
amount of which
shall be as set forth in or determined pursuant to the memorandum
of
understanding to which the Seller and the Purchaser (or affiliates
thereof) are
parties, with respect to the transactions contemplated by this
Agreement): (i)
the costs and expenses of delivering the Pooling and Servicing
Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise
reproducing)
and delivering a final Prospectus and Memorandum and other
customary offering
materials relating to the Certificates; (iii) the initial fees,
costs, and
expenses of the Trustee and the Certificate Administrator
(including reasonable
attorneys' fees) incurred in connection with the securitization of
the Mortgage
Loans and the Other Mortgage Loans; (iv) the filing fee charged by
the
Securities and Exchange Commission for registration of the
Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the
Certificates
so rated; (vi) the fees and disbursements of a firm of certified
public
accountants selected by the Purchaser
14
and the Seller with respect to numerical information in respect of
the Mortgage
Loans, the Other Mortgage Loans and the Certificates included in
the Prospectus,
the Memorandum and other customary offering materials, including
the cost of
obtaining any "comfort letters" with respect to such items; (vii)
the reasonable
out-of-pocket costs and expenses in connection with the
qualification or
exemption of the Certificates under state securities or "Blue Sky"
laws,
including filing fees and reasonable fees and disbursements of
counsel in
connection therewith, in connection with the preparation of any
"Blue Sky"
survey and in connection with any determination of the eligibility
of the
Certificates for investment by institutional investors and the
preparation of
any legal investment survey; (viii) the expenses of printing any
such "Blue Sky"
survey and legal investment survey; and (ix) the reasonable fees
and
disbursements of counsel to the Dealers. All other costs and
expenses in
connection with the transactions contemplated hereunder shall be
borne by the
party incurring such expense.
SECTION 8.
Grant of a Security Interest. It is the express intent
of the parties hereto that the conveyance of the Mortgage Loans by
the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed
as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a
pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or
other
obligation of the Seller. However, if, notwithstanding the
aforementioned intent
of the parties, the Mortgage Loans are held to be property of the
Seller, then,
(a) it is the express intent of the parties that such conveyance be
deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall
also be deemed
to be a security agreement within the meaning of Article 9 of the
Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance
provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to
the Purchaser
of a security interest in all of the Seller's right, title and
interest in and
to the Mortgage Loans, and all amounts payable to the holder of the
Mortgage
Loans in accordance with the terms thereof, and all proceeds of the
conversion,
voluntary or involuntary, of the foregoing into cash, instruments,
securities or
other property, including, without limitation, all amounts, other
than
investment earnings, from time to time held or invested in the
Collection
Accounts, the Distribution Account or, if established, the REO
Accounts (each as
defined in the Pooling and Servicing Agreement) whether in the form
of cash,
instruments, securities or other property; (iii) the assignment to
the Trustee
of the interest of the Purchaser in and to the Mortgage Loans
pursuant to the
Pooling and Servicing Agreement, as contemplated by Section 1
hereof shall be
deemed to be an assignment of any security interest created
hereunder; (iv) the
possession by the Trustee or any of its agents, including, without
limitation,
the Custodian, of the Mortgage Notes, and such other items of
property as
constitute instruments, money, negotiable documents or chattel
paper shall be
deemed to be possession by the secured party for purposes of
perfecting the
security interest pursuant to Section 9-313 of the Uniform
Commercial Code of
the applicable jurisdiction; and (v) notifications to persons
(other than the
Trustee) holding such property, and acknowledgments, receipts or
confirmations
from persons (other than the Trustee) holding such property, shall
be deemed
notifications to, or acknowledgments, receipts or confirmations
from, securities
intermediaries, bailees or agents (as applicable) of the secured
party for the
purpose of perfecting such security interest under applicable law.
The Seller
and the Purchaser 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, 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 and the
Pooling and
Servicing Agreement, and in connection therewith the Seller
authorizes the
Purchaser to file any and all appropriate Uniform Commercial Code
financing
statements.
15
SECTION 9.
Notices. All notices, copies, requests, consents,
demands and other communications in connection herewith shall be in
writing and
telecopied or delivered to the intended recipient at the "Address
for Notices"
specified for such party on Exhibit A hereto or, as to either
party, at such
other address as shall be designated by such party in a notice
hereunder to the
other party. Except as otherwise provided in this Agreement, all
such
communications shall be deemed to have been duly given when
transmitted by
telecopier or personally delivered or, in the case of a mailed
notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 10. 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 (and by the Purchaser to the Trustee).
SECTION 11. 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 12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but
which together
shall constitute one and the same agreement.
SECTION 13. 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 NEW YORK. THE
PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or
proceeding
is commenced between the Seller and the Purchaser regarding their
respective
rights and obligations under this Agreement, the prevailing party
shall be
entitled to recover, in addition to damages or other relief, costs
and expenses,
attorneys' fees and court costs (including, without limitation,
expert witness
fees). As used herein, the term "prevailing party" shall mean the
party which
obtains the principal relief it has sought, whether by compromise
settlement or
judgment. If the party which commenced or instituted the action,
suit or
proceeding shall dismiss or discontinue it without the concurrence
of the other
party, such other party shall be deemed the prevailing party.
SECTION 15. 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.
16
SECTION 16. 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 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, as
may be
required to effect the purposes of the Pooling and Servicing
Agreement, and the
assignee shall, to the extent of such assignment, succeed to the
rights and
obligations hereunder of the Purchaser. Subject to the foregoing,
this Agreement
shall bind and inure to the benefit of and be enforceable by the
Seller, the
Purchaser and their permitted successors and assigns. No holder or
beneficial
owner of a Certificate shall be deemed a permitted successor or
assign to the
Purchaser solely by reason of its interest in such Certificate.
SECTION 17. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in
writing and
signed by a duly authorized officer of the party against whom such
waiver or
modification is sought to be enforced. No amendment to the Pooling
and Servicing
Agreement which relates to defined terms contained therein, Section
2.01(d)
thereof or the repurchase obligations or any other obligations of
the Seller
shall be effective against the Seller (in such capacity) unless the
Seller shall
have agreed to such amendment in writing.
SECTION 18. Accountants' Letters. The parties hereto shall
cooperate
with accountants designated by CCMSI and reasonably acceptable to
the Seller in
making available all information and taking all steps reasonably
necessary to
permit such accountants to deliver the letters required by the
Underwriting
Agreement and/or the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or
other statement in this Agreement is made with respect to a
Person's
"knowledge", such statement refers to such Person's employees or
agents who were
or are responsible for or involved with the indicated matter and
have actual
knowledge of the matter in question.
SECTION 20. Disclosure Materials. The Purchaser shall provide the
Seller with a copy of the Memorandum and the Prospectus Supplement
promptly
following their becoming available.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
17
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.
SELLER
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Helaine M. Kaplan
-----------------------------------
Name: Helaine M. Kaplan
Title: Vice President
By: /s/ Boris Zhuravel
-----------------------------------
Name: Boris Zhuravel
Title: Vice President
PURCHASER
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ Angela Vleck
----------------------------------
Name:
Angela Vleck
Title: Vice President
GACC MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
ADDRESS FOR NOTICES
Seller:
Address for Notices:
German American Capital Corporation
60 Wall Street
New York, New York 10005
Attn: Lainie Kaye
Facsimile Number: (212) 797-4487
Purchaser:
Address for Notices:
Citigroup Commercial Mortgage Securities Inc.
388 Greenwich Street
New York, New York 10013
Attn: Angela Vleck
Facsimile Number: (212) 816-8307
A-1
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1.
The information pertaining to each Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material
respects
as of the Cut-off Date.
2.
As of the date of its origination, such Mortgage Loan and
the interest (exclusive of any default interest, late charges or
prepayment premiums) contracted for thereunder, complied in all
material
respects with, or was exempt from, all requirements of federal,
state or
local law relating to the origination of such Mortgage Loan,
including
those pertaining to usury.
3.
Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good title to, and was the sole owner of,
each
Mortgage Loan and the Seller is transferring such Mortgage Loan
free and
clear of any and all liens, pledges, charges or security interests
of any
nature encumbering such Mortgage Loan, but subject to certain
agreements
regarding servicing as provided in the Pooling and Servicing
Agreement,
subservicing agreements permitted thereunder and that certain
Servicing
Rights Purchase Agreement dated as of the Closing Date between the
applicable Master Servicer and the Seller. Upon consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement,
the
Seller will have validly and effectively conveyed to the Purchaser
all
legal and beneficial interest in and to such Mortgage Loan free and
clear
of any pledge, lien or security interest.
4.
The proceeds of such Mortgage Loan have been fully disbursed
(except to the extent that a portion of such proceeds is being held
in
escrow or reserve accounts) and there is no requirement for future
advances thereunder by the Mortgagee.
5.
Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed by the Mortgagor in connection
with such
Mortgage Loan is a legal, valid and binding obligation of the
related
Mortgagor (subject to any non-recourse provisions therein and any
state
anti-deficiency or market value limit deficiency legislation),
enforceable
in accordance with its terms, except (a) that certain provisions
contained
in such Mortgage Loan documents are or may be unenforceable in
whole or in
part under applicable state or federal laws, but neither the
application
of any such laws to any such provision nor the inclusion of any
such
provisions renders any of the Mortgage Loan documents invalid as a
whole
and such Mortgage Loan documents taken as a whole are enforceable
to the
extent necessary and customary for the practical realization of the
principal rights and benefits afforded thereby and (b) as such
enforcement
may be limited by bankruptcy, insolvency, receivership,
reorganization,
moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general
principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). The related Mortgage Note and
Mortgage
contain no provision limiting the right or ability of the Seller to
assign, transfer and convey the related Mortgage Loan to any other
Person.
6.
As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with
respect to
any of the related Mortgage Notes, Mortgage(s) or other agreements
executed in connection therewith, and, as of the Cut-off Date,
there is no
I-1
valid offset, defense, counterclaim or right to rescission with
respect to
such Mortgage Note, Mortgage(s) or other agreements, except in each
case,
with respect to the enforceability of any provisions requiring the
payment
of default interest, late fees, Additional Interest, prepayment
premiums
or yield maintenance charges.
7.
Each related assignment of Mortgage and assignment of
Assignment of Leases from the Seller to the Trustee constitutes the
legal,
valid and binding assignment from the Seller, except as such
enforcement
may be limited by bankruptcy, insolvency, redemption,
reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally or by general principles of
equity
(regardless of whether such enforcement is considered in a
proceeding in
equity or at law). Each Mortgage and Assignment of Leases is freely
assignable.
8.
Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property subject only to the exceptions and
limitations set forth in representation (5) above and the following
title
exceptions (each such title exception, a "Title Exception", and
collectively, the "Title Exceptions"): (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and
assessments
not yet delinquent or accruing interest or penalties, (b)
covenants,
conditions and restrictions, rights of way, easements and other
matters of
public record, none of which, individually or in the aggregate,
materially
and adversely interferes with the current use of the Mortgaged
Property or
the security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations under the Mortgage Loan
when
they become due or materially and adversely affects the value of
the
Mortgaged Property, (c) the exceptions (general and specific) and
exclusions set forth in the applicable policy described in
representation
(12) below or appearing of record, none of which, individually or
in the
aggregate, materially interferes with the current use of the
Mortgaged
Property or the security intended to be provided by such Mortgage
or with
the Mortgagor's ability to pay its obligations under the Mortgage
Loan
when they become due or materially and adversely affects the value
of the
Mortgaged Property, (d) other matters to which like properties are
commonly subject, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the
Mortgaged
Property or the security intended to be provided by such Mortgage
or with
the Mortgagor's ability to pay its obligations under the Mortgage
Loan
when they become due or materially and adversely affects the value
of the
Mortgaged Property, (e) the right of tenants (whether under ground
leases,
space leases or operating leases) at the Mortgaged Property to
remain
following a foreclosure or similar proceeding (provided that such
tenants
are performing under such leases), (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan, and (g) if such Mortgage
Loan is
part of a Loan Combination, the lien of the Mortgage for the
related
Non-Trust Loan(s). Except with respect to cross-collateralized and
cross-defaulted Mortgage Loans and Mortgage Loans that are part of
a Loan
Combination, there are no mortgage loans that are senior or pari
passu in
right of payment with the subject Mortgage Loan that are secured by
the
related Mortgaged Property.
9.
UCC Financing Statements have been filed and/or recorded (or,
if not filed and/or recorded, have been submitted in proper form
for
filing and recording) in all public places necessary at the time of
the
origination of each Mortgage Loan to perfect a valid security
interest in
all items of personal property reasonably necessary to operate the
Mortgaged Property owned
I-2
by a Mortgagor and located on the related Mortgaged Property (other
than
any personal property subject to a purchase money security interest
or a
sale and leaseback financing arrangement permitted under the terms
of such
Mortgage Loan or any other personal property leases applicable to
such
personal property), to the extent perfection may be effected
pursuant to
applicable law by recording or filing of UCC Financing Statements,
and the
Mortgages, security agreements, chattel mortgages or equivalent
documents
related to and delivered in connection with the related Mortgage
Loan
establish and create a valid and enforceable lien and security
interest on
such items of personalty except as such enforcement may be limited
by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a
proceeding in
equity or at law). Notwithstanding any of the foregoing, no
representation
is made as to the perfection of any security interest in rents or
other
personal property to the extent that possession or control of such
items
or actions other than the filing of UCC Financing Statements are
required
in order to effect such perfection.
10.
All real estate taxes and governmental assessments, or
installments thereof, which would be a lien on the Mortgaged
Property and
that prior to the Cut-off Date have become delinquent in respect of
each
related Mortgaged Property, have been paid, or an escrow of funds
in an
amount sufficient (together with, in the case of taxes and
governmental
assessments not presently due and payable, future escrow payments
required
to be made pursuant to the related Mortgage Loan documents) to
cover such
payments has been established. For purposes of this representation
and
warranty, real estate taxes and governmental assessments and
installments
thereof shall not be considered delinquent until the earlier of (a)
the
date on which interest and/or penalties would first be payable
thereon and
(b) the date on which enforcement action is entitled to be taken by
the
related taxing authority.
11.
To the Seller's actual knowledge as of the Cut-off Date, and
to the Seller's actual knowledge based solely upon due diligence
customarily performed with the origination of comparable mortgage
loans by
the Seller, each related Mortgaged Property was free and clear of
any
material damage (other than deferred maintenance for which escrows
were
established at origination) that would materially and adversely
affect the
value of such Mortgaged Property as security for the Mortgage Loan,
and to
the Seller's actual knowledge as of the Cut-off Date there was no
proceeding pending for the total or partial condemnation of such
Mortgaged
Property.
12.
The lien of each related Mortgage as a first priority lien in
the original principal amount of such Mortgage Loan (and, in the
case of a
Mortgage Loan that is part of a Loan Combination, in the original
(aggregate, if applicable) principal amount of the other mortgage
loan(s)
constituting the related Loan Combination) after all advances of
principal
(as set forth on the Mortgage Loan Schedule) is insured by an ALTA
lender's title insurance policy (or a binding commitment therefor),
or its
equivalent as adopted in the applicable jurisdiction, insuring the
Seller,
its successors and assigns, subject only to the Title Exceptions;
the
Seller or its successors or assigns is the named insured of such
policy;
such policy is assignable in connection with the assignment of the
related
Mortgage Note without consent of the insurer and will inure to the
benefit
of the Trustee as mortgagee of record; such policy is in full force
and
effect upon the consummation of the transactions contemplated by
this
Agreement; all premiums thereon have been paid; no material claims
have
been made under such policy and the Seller has not done
I-3
anything, by act or omission, and the Seller has no actual
knowledge of
any matter, which would impair or diminish the coverage of such
policy.
The insurer issuing such policy is either (x) a nationally
recognized
title insurance company or (y) qualified to do business in the
jurisdiction in which the related Mortgaged Property is located to
the
extent required; and such policy contains no material exclusions
for, or
affirmatively insures (except for any Mortgaged Property located in
a
jurisdiction where such insurance is not available) (a) access to a
public
road and (b) against any loss due to encroachments of any material
portion
of the improvements thereon.
13.
As of the date of its origination, all insurance coverage
required under each related Mortgage was in full force and effect
with
respect to each related Mortgaged Property, which insurance covered
such
risks as were customarily acceptable to prudent commercial and
multifamily
mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property in the jurisdiction in
which
such Mortgaged Property is located, and with respect to a fire and
extended perils insurance policy, was in an amount (subject to a
customary
deductible) at least equal to the lesser of (i) the replacement
cost of
improvements located on such Mortgaged Property, or (ii) the
original
principal balance of the Mortgage Loan (and, in the case of a
Mortgage
Loan that is part of a Loan Combination, in the original
(aggregate, if
applicable) principal amount of the other mortgage loan(s)
constituting
the related Loan Combination), and in any event, in an amount
necessary to
prevent operation of any co-insurance provisions, and, except if
such
Mortgaged Property is operated as a manufactured housing community,
such
Mortgaged Property is also covered by business interruption or
rental loss
insurance, in an amount at least equal to twelve (12) months of
operations
of the related Mortgaged Property (or in the case of a Mortgaged
Property
without any elevator, six (6) months); and as of the Cut-off Date,
to the
actual knowledge of the Seller, all insurance coverage required
under each
Mortgage, which insurance covers such risks and is in such amounts
as are
customarily acceptable to prudent commercial and multifamily
mortgage
lending institutions lending on the security of property comparable
to the
related Mortgaged Property in the jurisdiction in which such
Mortgaged
Property is located, is in full force and effect with respect to
each
related Mortgaged Property; and all premiums due and payable
through the
Closing Date have been paid; and no notice of termination or
cancellation
with respect to any such insurance policy has been received by the
Seller.
Except for certain amounts not greater than amounts which would be
considered prudent by a commercial and multifamily mortgage lending
institution with respect to a similar mortgage loan and which are
set
forth in the related Mortgage, any insurance proceeds in respect of
a
casualty loss are required to be applied either (i) to the repair
or
restoration of all or part of the related Mortgaged Property or
(ii) to
the reduction of the outstanding principal balance of the Mortgage
Loan,
subject in either case to requirements with respect to leases at
the
related Mortgaged Property and to other exceptions customarily
provided
for by prudent commercial and multifamily mortgage lending
institutions
for similar loans. The Mortgaged Property is also covered by
comprehensive
general liability insurance against claims for personal and bodily
injury,
death or property damage occurring on, in or about the related
Mortgaged
Property, in an amount customarily required by prudent commercial
and
multifamily mortgage lending institutions.
The insurance policies contain a standard mortgagee clause naming
the holder of the related Mortgage, its successors and assigns as
loss
payee, in the case of a property insurance policy, and additional
insured
in the case of a liability insurance policy, and provide that they
are not
terminable without thirty (30) days prior written notice to the
Mortgagee
(or, with respect to
I-4
non-payment, ten (10) days prior written notice to the Mortgagee)
or such
lesser period as prescribed by applicable law. Each Mortgage
requires that
the Mortgagor maintain insurance as described above or permits the
Mortgagee to require insurance as described above, and permits the
Mortgagee to purchase such insurance at the Mortgagor's expense if
Mortgagor fails to do so.
14.
Other than payments due but not yet thirty (30) days or more
delinquent, to the Seller's actual knowledge, based upon due
diligence
customarily performed with the servicing of comparable mortgage
loans by
prudent commercial and multifamily mortgage lending institutions,
there is
no material default, breach, violation or event of acceleration
existing
under the related Mortgage or the related Mortgage Note, and to the
Seller's actual knowledge no event (other than payments due but not
yet
delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration; provided,
however,
that this representation and warranty does not address or otherwise
cover
any default, breach, violation or event of acceleration that
specifically
pertains to any matter otherwise covered by any other
representation and
warranty made by the Seller in any paragraph of this Schedule I or
in any
paragraph of Schedule II; and the Seller has not waived any
material
default, breach, violation or event of acceleration under such
Mortgage or
Mortgage Note, except for a written waiver contained in the related
Mortgage File being delivered to the Purchaser, and pursuant to the
terms
of the related Mortgage or the related Mortgage Note and other
documents
in the related Mortgage File, no Person or party other than the
holder of
such Mortgage Note may declare any event of default or accelerate
the
related indebtedness under either of such Mortgage or Mortgage
Note.
15.
As of the Closing Date, each Mortgage Loan is not, and in the
prior twelve (12 ) months (or since the date of origination if such
Mortgage Loan has been originated within the past twelve (12 )
months),
has not been, thirty (30) days or more past due in respect of any
Scheduled Payment.
16.
Except with respect to ARD Loans, which provide that the rate
at which interest accrues thereon increases after the Anticipated
Repayment Date, the Mortgage Rate (exclusive of any default
interest, late
charges or prepayment premiums) of such Mortgage Loan is a fixed
rate.
17.
No related Mortgage provides for or permits, without the prior
written consent of the holder of the Mortgage Note, any related
Mortgaged
Property to secure any other promissory note or obligation except
as
expressly described in such Mortgage or other Mortgage Loan
document.
18.
Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (without regard to
Treasury
regulations Sections 1.860-G(2)(a)(3) and 1.860G(2)(f)(2)), is
directly
secured by a Mortgage on a commercial property or a multifamily
residential property, and either (a) substantially all of the
proceeds of
such Mortgage Loan were used to acquire, improve or protect the
portion of
such commercial or multifamily residential property that consists
of an
interest in real property (within the meaning of Treasury
Regulations
Sections 1.856-3(c) and 1.856-3(d)) and such interest in real
property was
the only security for such Mortgage Loan as of the Testing Date (as
defined below), or (b) the fair market value of the interest in
real
property which secures such Mortgage Loan was at least equal to
I-5
80% of the principal amount of such Mortgage Loan (i) as of the
Testing
Date, or (ii) as of the Closing Date. For purposes of the previous
sentence, (A) the fair market value of the referenced interest in
real
property shall first be reduced by (1) the amount of any lien on
such
interest in real property that is senior to such Mortgage Loan, and
(2) a
proportionate amount of any lien on such interest in real property
that is
on a parity with the Mortgage Loan, and (B) the "Testing Date"
shall be
the date on which the referenced Mortgage Loan was originated
unless (1)
such Mortgage Loan was modified after the date of its origination
in a
manner that would cause a "significant modification" of such
Mortgage Loan
within the meaning of Treasury Regulations Section 1.1001-3(b), and
(2)
such "significant modification" did not occur at a time when such
Mortgage
Loan was in default or when default with respect to such Mortgage
Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan
has been
subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in
default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the
latest such
"significant modification" occurred.
19.
One or more environmental site assessments, updates or
transaction screens thereof were performed by an environmental
consulting
firm independent of the Seller and the Seller's affiliates with
respect to
each related Mortgaged Property during the 18-months preceding the
origination of the related Mortgage Loan, except for those Mortgage
Loans
identified on Annex A to this Schedule I for which a lender's
environmental insurance policy was obtained in lieu of such
environmental
site assessments, updates and transaction screens, and the Seller,
having
made no independent inquiry other than to review the report(s)
prepared in
connection with the assessment(s), updates or transaction screens
referenced herein, has no actual knowledge and has received no
notice of
any material and adverse environmental condition or circumstance
affecting
such Mortgaged Property that was not disclosed in such report(s).
If any
such environmental report identified any Recognized Environmental
Condition (REC), as that term is defined in the Standard Practice
for
Environmental Site Assessments: Phase I Environmental Site
Assessment
Process Designation: E 1527-00, as recommended by the American
Society for
Testing and Materials (ASTM), with respect to the related Mortgaged
Property and the same have not been subsequently addressed in all
material
respects, then one or more of the following is true: (i) an escrow
greater
than 100% of the amount identified as necessary by the
environmental
consulting firm to address the REC is held by the Seller for
purposes of
effecting same (and the related Mortgagor has covenanted in the
Mortgage
Loan documents to perform such work); (ii) the related Mortgagor or
other
responsible party having financial resources reasonably estimated
to be
adequate to address the REC is required to take such actions or is
liable
for the failure to take such actions, if any, with respect to such
circumstances or conditions as have been required by the applicable
governmental regulatory authority or any environmental law or
regulation;
(iii) the related Mortgagor has provided a lender's environmental
insurance policy (in which case such Mortgage Loan is identified on
Annex
A to this Schedule I); (iv) an operations and maintenance plan has
been or
will be implemented; (v) such conditions or circumstances were
investigated further and based upon such additional investigation,
a
qualified environmental consultant recommended no further
investigation or
remediation; or (vi) the Mortgagor or other responsible party has
obtained
a no further action letter or other evidence that governmental
authorities
have no intention of taking any action or requiring any action in
respect
of the REC. All environmental assessments or updates that were in
the
possession of the Seller and that relate to a Mortgaged Property
insured
I-6
by an environmental insurance policy have been delivered to or
disclosed
to the environmental insurance carrier issuing such policy prior to
the
issuance of such policy.
20.
Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions
for
comparable mortgaged properties similarly situated such as to
render the
rights and remedies of the holder thereof adequate for the
practical
realization against the Mortgaged Property of the principal
benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy,
insolvency, reorganization, receivership, moratorium, redemption,
liquidation or similar laws affecting the rights of creditors and
the
application of principles of equity.
21.
At the time of origination and, to the actual knowledge of
Seller as of the Cut-off Date, no Mortgagor is a debtor in any
state or
federal bankruptcy or insolvency proceeding.
22.
Except with respect to any Mortgage Loan that is part of a
Loan Combination, each Mortgage Loan is a whole loan and contains
no
equity participation by the Seller or shared appreciation feature
and does
not provide for any contingent or additional interest in the form
of
participation in the cash flow of the related Mortgaged Property
or, other
than the ARD Loans, provide for negative amortization. The Seller
holds no
preferred equity interest in the related Mortgagor.
23.
Subject to certain exceptions, which are customarily
acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the
related
Mortgaged Property, each related Mortgage or loan agreement
contains
provisions for the acceleration of the payment of the unpaid
principal
balance of such Mortgage Loan if, without complying with the
requirements
of the Mortgage or loan agreement, (a) the related Mortgaged
Property, or
any controlling interest in the related Mortgagor, is directly
transferred
or sold (other than by reason of family and estate planning
transfers,
transfers by devise, descent or operation of law upon the death or
incapacity of a member, general partner or shareholder of the
related
Mortgagor, transfers of less than a controlling interest in a
mortgagor,
issuance of non-controlling new equity interests, transfers among
existing
members, partners or shareholders in the Mortgagor or an affiliate
thereof, transfers among affiliated Mortgagors with respect to
cross-collateralized and cross-defaulted Mortgage Loans or
multi-property
Mortgage Loans or transfers of a similar nature to the foregoing
meeting
the requirements of the Mortgage Loan, such as pledges of ownership
interest that do not result in a change of control) or a
substitution or
release of collateral is effected other than in the circumstances
specified in representation (26) below, or (b) the related
Mortgaged
Property is encumbered in connection with subordinate financing by
a lien
or security interest against the related Mortgaged Property, other
than
any existing permitted additional debt.
24.
Except as set forth in the related Mortgage File, the terms of
the related Mortgage Note and Mortgage(s) have not been waived,
modified,
altered, satisfied, impaired, canceled, subordinated or rescinded
in any
manner which materially interferes with the security intended to be
provided by such Mortgage.
25.
Each related Mortgaged Property was inspected by or on behalf
of the related originator or an affiliate during the 12-month
period prior
to the related origination date.
I-7
26.
Since origination, no material portion of the related
Mortgaged Property has been released from the lien of the related
Mortgage
in any manner which materially and adversely affects the value of
the
Mortgage Loan or materially interferes with the security intended
to be
provided by such Mortgage, and, except with respect to Mortgage
Loans (a)
which permit defeasance by means of substituting for the Mortgaged
Property (or, in the case of a Mortgage Loan secured by multiple
Mortgaged
Properties, one or more of such Mortgaged Properties) "government
securities" within the meaning of Treasury Regulation Section
1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loans (or portions
thereof) in accordance with their terms, (b) where a release of the
portion of the Mortgaged Property was contemplated at origination
and such
portion was not considered material for purposes of underwriting
the
Mortgage Loan, (c) where release is conditional upon the
satisfaction of
certain underwriting and legal requirements and the payment of a
release
price that represents adequate consideration for such Mortgaged
Property
or the portion thereof that is being released, (d) which permit the
related Mortgagor to substitute a replacement property in
compliance with
REMIC Provisions or (e) which permit the release(s) of unimproved
out-parcels or other portions of the Mortgaged Property that will
not have
a material adverse affect on the underwritten value of the security
for
the Mortgage Loan or that were not allocated any value in the
underwriting
during the origination of the Mortgage Loan, the terms of the
related
Mortgage do not provide for release of any portion of the Mortgaged
Property from the lien of the Mortgage except in consideration of
payment
in full therefor.
27.
To the Seller's actual knowledge, based upon a letter from
governmental authorities, a legal opinion, an endorsement to the
related
title policy, an architect's letter or zoning consultant's report
or based
upon other due diligence considered reasonable by prudent
commercial and
multifamily mortgage lending institutions in the area where the
applicable
Mortgaged Property is located, as of the date of origination of
such
Mortgage Loan and as of the Cut-off Date, there are no material
violations
of any applicable zoning ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy
thereof
which (a) are not insured by an ALTA lender's title insurance
policy (or a
binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, or a law and ordinance insurance policy or
(b)
would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
28.
To the Seller's actual knowledge based on surveys and/or the
title policy referred to herein obtained in connection with the
origination of each Mortgage Loan, none of the material
improvements which
were included for the purposes of determining the appraised value
of the
related Mortgaged Property at the time of the origination of the
Mortgage
Loan lies outside of the boundaries and building restriction lines
of such
property (except Mortgaged Properties which are legal
non-conforming
uses), to an extent which would have a material adverse affect on
the
value of the Mortgaged Property or related Mortgagor's use and
operation
of such Mortgaged Property (unless affirmatively covered by title
insurance) and no improvements on adjoining properties encroached
upon
such Mortgaged Property to an extent which would have a material
adverse
affect on the value of the Mortgaged Property or related
Mortgagor's use
and operation of such Mortgaged Property (unless affirmatively
covered by
title insurance).
I-8
29.
With respect to at least 95% of the Mortgage Loans (by
principal balance) having a Cut-off Date Balance in excess of 1% of
the
Initial Pool Balance, the related Mortgagor has covenanted in its
organizational documents and/or the Mortgage Loan documents to own
no
significant asset other than the related Mortgaged Property or
Mortgaged
Properties, as applicable, and assets incidental to its ownership
and
operation of such Mortgaged Property, and to hold itself out as
being a
legal entity, separate and apart from any other Person.
30.
No advance of funds has been made other than pursuant to the
loan documents, directly or indirectly, by the Seller to the
Mortgagor
and, to the Seller's actual knowledge, no funds have been received
from
any Person other than the Mortgagor, for or on account of payments
due on
the Mortgage Note or the Mortgage.
31.
As of the date of origination and, to the Seller's actual
knowledge, as of the Cut-off Date, there was no pending action,
suit or
proceeding, or governmental investigation of which it has received
notice,
against the Mortgagor or the related Mortgaged Property the adverse
outcome of which could reasonably be expected to materially and
adversely
affect such Mortgagor's ability to pay principal, interest or any
other
amounts due under such Mortgage Loan or the security intended to be
provided by the Mortgage Loan documents or the current use of the
Mortgaged Property.
32.
As of the date of origination, and, to the Seller's actual
knowledge, as of the Cut-off Date, if the related Mortgage is a
deed of
trust, a trustee, duly qualified under applicable law to serve as
such,
has either been properly designated and serving under such Mortgage
or may
be substituted in accordance with the Mortgage and applicable law.
33.
Except with respect to any Mortgage Loan that is part of a
Loan Combination, the related Mortgage Note is not secured by any
collateral that secures a mortgage loan that is not in the Trust
Fund and
each Mortgage Loan that is cross-collateralized is
cross-collateralized
only with other Mortgage Loans sold pursuant to this Agreement.
34.
The improvements located on the Mortgaged Property are either
not located in a federally designated special flood hazard area or
the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such insurance
policy is
in full force and effect and in an amount (subject to a deductible
not to
exceed $25,000) at least equal to the least of (a) the replacement
cost of
improvements located on such mortgaged real property, (b) the
outstanding
principal balance of the subject mortgage loan and (c) the maximum
amount
under the applicable federal flood insurance program.
35.
All escrow deposits and payments required pursuant to the
Mortgage Loan as of the Closing Date required to be deposited with
the
Seller in accordance with the Mortgage Loan documents have been so
deposited, and to the extent not disbursed or otherwise released in
accordance with the related Mortgage Loan documents, are in the
possession, or under the control, of the Seller or its agent and
there are
no deficiencies in connection therewith.
36.
To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage
loans by
prudent commercial and multifamily mortgage lending institutions
with
respect to the related geographic area and properties comparable to
the
related Mortgaged Property, as of the date of origination of the
I-9
Mortgage Loan, the related Mortgagor was in possession of all
material
licenses, permits and authorizations then required for use of the
related
Mortgaged Property, and, as of the Cut-off Date, the Seller has no
actual
knowledge that the related Mortgagor was not in possession of such
licenses, permits and authorizations.
37.
The origination (or acquisition, as the case may be) practices
used by the Seller or its affiliates with respect to the Mortgage
Loan
have been in all material respects legal and the servicing and
collection
practices used by the Seller or its affiliates with respect to the
Mortgage Loan have met customary industry standards for servicing
of
commercial mortgage loans for conduit loan programs.
38.
Except for any Mortgage Loan secured by a Mortgagor's
leasehold interest in the related Mortgaged Property, the related
Mortgagor (or its affiliate) has title in the fee simple interest
in each
related Mortgaged Property.
39.
The Mortgage Loan documents for each Mortgage Loan provide
that each Mortgage Loan is non-recourse to the related Mortgagor
except
that the related Mortgagor accepts responsibility for fraud and/or
other
intentional material misrepresentation. The Mortgage Loan documents
for
each Mortgage Loan provide that the related Mortgagor shall be
liable to
the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the
related
Mortgagor after the occurrence of an event of default and not paid
to the
Mortgagee or applied to the Mortgaged Property in the ordinary
course of
business, misapplication or conversion by the Mortgagor of
insurance
proceeds or condemnation awards or breach of the environmental
covenants
in the related Mortgage Loan documents.
40.
Subject to the exceptions set forth in representation (5), the
Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with
each
Mortgage Loan establishes and creates a valid, subsisting and
enforceable
lien and security interest in the related Mortgagor's interest in
all
leases, subleases, licenses or other agreements pursuant to which
any
Person is entitled to occupy, use or possess all or any portion of
the
real property.
41.
With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
42.
If such Mortgage Loan contains a provision for any defeasance
of mortgage collateral, such Mortgage Loan permits defeasance (a)
no
earlier than two (2) years after the Closing Date, and (b) only
with
substitute collateral constituting "government securities" within
the
meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an
amount
sufficient to make all scheduled payments under the Mortgage Note
(or, in
the case of a partial defeasance, in an amount sufficient to make
all
scheduled payments with respect to the defeased portion of such
Mortgage
Loan). In addition, if such Mortgage contains such a defeasance
provision,
it provides (or otherwise contains provisions pursuant to which the
holder
can require) that an opinion be provided to the effect that such
holder
has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender
to
charge all of its expenses associated with a defeasance to the
Mortgagor
(including rating agencies' fees,
I-10
accounting fees and attorneys' fees), and provide that the related
Mortgagor must deliver (or otherwise, the Mortgage Loan documents
contain
certain provisions pursuant to which the lender can require) (i) an
accountant's certification as to the adequacy of the defeasance
collateral
to make payments under the related Mortgage Loan for the remainder
of its
term, (ii) an Opinion of Counsel that the defeasance complies with
all
applicable REMIC Provisions, and (iii) assurances from the Rating
Agencies
that the defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates.
Notwithstanding
the foregoing, some of the Mortgage Loan documents may not
affirmatively
contain all such requirements, but such requirements are
effectively
present in such documents due to the general obligation to comply
with the
REMIC Provisions and/or deliver a REMIC Opinion of Counsel.
43.
To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability
of the
Mortgage Loan, the originator of such Mortgage Loan was authorized
to do
business in the jurisdiction in which the related Mortgaged
Property is
located at all times when it originated and held the Mortgage Loan.
44.
Neither the Seller nor any affiliate thereof has any
obligation to make any capital contributions to the Mortgagor under
the
Mortgage Loan.
45.
Except with respect to any Mortgage Loan that is part of a
Loan Combination, none of the Mortgaged Properties are encumbered,
and
none of the Mortgage Loan documents permit the related Mortgaged
Property
to be encumbered subsequent to the Closing Date without the prior
written
consent of the holder thereof, by any lien securing the payment of
money
junior to or of equal priority with, or superior to, the lien of
the
related Mortgage (other than Title Exceptions, taxes, assessments
and
contested mechanics and materialmen's liens that become payable
after the
Cut-off Date of the related Mortgage Loan).
I-11
ANNEX A (TO SCHEDULE I)
MORTGAGE LOANS AS TO WHICH THE RELATED MORTGAGOR OBTAINED
A LENDER'S ENVIRONMENTAL INSURANCE POLICY
None.
I-12
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee
interest in the
related Mortgaged Property), the Seller represents and warrants the
following
with respect to the related Ground Lease:
1.
Such Ground Lease or a memorandum thereof has been or will be
duly recorded no later than thirty (30) days after the Closing Date
and
such Ground Lease permits the interest of the lessee thereunder to
be
encumbered by the related Mortgage or, if consent of the lessor
thereunder
is required, it has been obtained prior to the Closing Date.
2.
Upon the foreclosure of the Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such ground
lease is
assignable to the mortgagee under the leasehold estate and its
assigns
without the consent of the lessor thereunder (or, if any such
consent is
required, it has been obtained prior to the Closing Date).
3.
Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and
any such
action without such consent is not binding on the mortgagee, its
successors or assigns, except termination or cancellation if (a) an
event
of default occurs under the Ground Lease, (b) notice thereof is
provided
to the mortgagee and (c) such default is curable by the mortgagee
as
provided in the Ground Lease but remains uncured beyond the
applicable
cure period.
4.
To the actual knowledge of the Seller, at the Closing Date,
such Ground Lease is in full force and effect and other than
payments due
but not yet thirty (30) days or more delinquent, (a) there is no
material
default, and (b) there is no event which, with the passage of time
or with
notice and the expiration of any grace or cure period, would
constitute a
material default under such Ground Lease.
5.
The Ground Lease or ancillary agreement between the lessor and
the lessee requires the lessor to give notice of any default by the
lessee
to the mortgagee. The ground lease or ancillary agreement further
provides
that no notice of default given is effective against the mortgagee
unless
a copy has been given to the mortgagee in a manner described in the
ground
lease or ancillary agreement.
6.
The ground lease (a) is not subject to any liens or
encumbrances superior to, or of equal priority with, the Mortgage,
subject, however, to only the Title Exceptions or (b) is subject to
a
subordination, non-disturbance and attornment agreement to which
the
mortgagee on the lessor's fee interest in the Mortgaged Property is
subject.
7.
A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest
of the
lessee under the ground lease) to cure any curable default under
such
Ground Lease before the lessor thereunder may terminate such Ground
Lease.
II-1
8.
Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth
therein
all of which can be exercised by the mortgagee if the mortgagee
acquires
the lessee's rights under the Ground Lease) that extends not less
than
twenty (20) years beyond the Stated Maturity Date.
9.
Under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee from the lessor, and the related
Mortgage, taken together, any related insurance proceeds or
condemnation
award (other than in respect of a total or substantially total loss
or
taking) will be applied either to the repair or restoration of all
or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed or approved by it having the right to hold and disburse
such
proceeds as repair or restoration progresses (except in cases where
a
provision entitling another party to hold and disburse such
proceeds would
not be viewed as commercially unreasonable by a prudent commercial
and
multifamily mortgage lending institution), or to the payment or
defeasance
of the outstanding principal balance of the Mortgage Loan, together
with
any accrued interest (except in cases where a different allocation
would
not be viewed as commercially unreasonable by a prudent commercial
and
multifamily mortgage lending institution, taking into account the
relative
duration of the ground lease and the related Mortgage and the ratio
of the
market value of the related Mortgaged Property to the outstanding
principal balance of such Mortgage Loan).
10.
The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a
prudent
commercial and multifamily mortgage lending institution.
11.
The ground lessor under such Ground Lease is required to enter
into a new lease upon termination of the Ground Lease for any
reason,
including the rejection of the Ground Lease in bankruptcy.
II-2
SCHEDULE III
EXCEPTIONS TO GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
Representation numbers referred to below relate to the
corresponding
Mortgage Loan representations and warranties set forth in Exhibit C
to the
Mortgage Loan Purchase Agreement for GACC.
Note: The Mortgage Loans known as Cresmont Loft Apartments,
identified on Annex A-1 by ID # 177, has an Indemnity Deed of Trust
structure.
The borrower under such Mortgage Loan executed and delivered the
related note to
the lender and is obligated to make payments thereunder. The
property owner for
such Mortgage Loan has guaranteed all amounts payable by the
borrower under the
related note, which guaranty is secured by an indemnity deed of
trust in favor
of the lender. With respect to the above referenced Mortgage Loan,
certain of
the representations regarding the borrower refer to the property
owner of the
related Mortgaged Property as well.
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID#
MORTGAGE LOAN
EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 13:
-------------------------------------------------------------------------------------------------------------------------------
Various
Various
The Mortgage Loan documents generally require property insurance
against
loss customarily included under an "all risk" property insurance
policy but
certain "all risk" policies do not specifically cover lightning,
windstorm,
hail, explosion, riot, riot attending a strike, civil commotion,
aircraft,
vehicles and smoke and/or may specifically exclude windstorm or
other such
coverage.
Certain of the Mortgage Loan documents may limit terrorism
insurance coverage
to the extent such coverage is commercially available for similarly
situated
properties and/or on commercially reasonable terms. Certain of the
Mortgage
Loan documents provide limits on the insurance premium amount the
related
borrower is required to spend for terrorism insurance. Certain of
the loan
documents do not specifically require terrorism insurance be
maintained.
-------------------------------------------------------------------------------------------------------------------------------
7
Four Seasons Resort Maui
The existing windstorm/named storm/hurricane insurance (under a
blanket
policy) is capped at $100,000,000. The total insurable value
(buildings,
contents and 12 months of business interruption insurance) is
approximately
$200,000,000. Under the Mortgage Loan documents, the borrower is
required
to maintain (i) if under a blanket policy, windstorm coverage in an
amount
equal to at least $100,000,000, and (ii) if under a stand alone
policy,
windstorm in an amount equal to the greater of (1) 50,000,000 and
(2) ten
times the product of (A) the probably maximum loss (as determined
pursuant
to a windstorm study forecasting the expected damage from
windstorms over a
forecast period), and (B) 100% of the replacement cost of the
-------------------------------------------------------------------------------------------------------------------------------
III-1
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID#
MORTGAGE LOAN
EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
improvements and building equipment (but in no event more than
$75,000,000 of
coverage).
-------------------------------------------------------------------------------------------------------------------------------
21
One East Delaware
The Mortgage Loan documents permit terrorism insurance to be
excluded from
the general liability insurance provided. The guarantor has
guaranteed
against any loss resulting from terrorism insurance being excluded.
-------------------------------------------------------------------------------------------------------------------------------
10
DB Americold Portfolio
The deductible for windstorm and flood insurance is capped at 5% of
the
property replacement cost or at prevailing market deductibles.
-------------------------------------------------------------------------------------------------------------------------------
24
Victoria Place Apartments
The Mortgage Loan documents provide the borrower with 60 days after
loan
closing to obtain windstorm coverage in the amount of $20MM (of
which up to
$10MM may be under blanket coverage). The borrower escrowed
$200,000 at
closing, to be released to the borrower once coverage is put in
place.. The
Mortgage Loan documents provide that if windstorm insurance becomes
available at commercially reasonable rates, the borrower is
required to
obtain full coverage. The guaranty provides that the loan sponsor
is
responsible for all losses due to windstorm insurance not covered
by such
insurance.
The Mortgage Loan documents provide that notwithstanding any
conflicting
requirements in such documents, Citizens Property Insurance Company
shall be
an acceptable insurance provider.
-------------------------------------------------------------------------------------------------------------------------------
31
Westbury at Lake Brandon
At Mortgage Loan closing, the Mortgaged Property was fully insured
against
Apartments
non-named storms but with regard to named storms, the Mortgaged
Property is
covered under a $5 million blanket policy maintained by the sponsor
that
covers the Mortgaged Property and three other properties (including
Victoria
Place Apartments). The blanket policy has a $500,000 deductible.
The borrower
is obligated to obtain full windstorm coverage (with a maximum
deductible of
up to 5% of the property replacement cost) within 60 days of
Mortgage Loan
closing. In addition, at Mortgage Loan closing, the borrower
escrowed
$200,000 with the lender, which amount may be (i) released to the
borrower
once the required insurance is maintained or (ii) used by the
lender to
purchase the required insurance on borrower's behalf. The Mortgage
Loan
documents provide that notwithstanding any conflicting requirements
in such
documents, Citizens Property Insurance Company shall be an
acceptable
insurance provider.
-------------------------------------------------------------------------------------------------------------------------------
35
Locust on the Park
The borrower has $350,000 of FEMA flood coverage and $5,000,000 of
excess
coverage. The loan sponsor provided a guaranty to the lender
covering any
loss related to the failure of the borrower to maintain the full
excess
coverage.
-------------------------------------------------------------------------------------------------------------------------------
III-2
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID#
MORTGAGE LOAN
EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
149
Griffin Building
The Mortgaged Property is located in a flood zone requiring
insurance;
however, the elevation certificate provided at closing showed that
the
building may be constructed at an elevation that would permit the
owner to
obtain a letter of map amendment ("LOMA") to change designation for
the
building to a zone not requiring flood insurance. Because the LOMA
process
takes time, at closing borrower had obtained the maximum flood
insurance
available under the national flood insurance program ($500,000) and
$1,000,000 in excess coverage under a blanket policy. Within 120
days of
the closing of the Mortgage Loan, the borrower is required to
provide
lender with evid
