EXHIBIT 4.2
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and effective [___], between [___], as seller (the "Seller"), and Deutsche
Mortgage & Asset Receiving Corporation, as purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the commercial, multifamily and manufactured housing
mortgage loans (collectively, the "Mortgage Loans") identified on the schedule
annexed hereto as Exhibit A (the "Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together
with other commercial, multifamily and manufactured housing mortgage loans (such
mortgage loans, the "Other Mortgage Loans") to [_____________] Mortgage Trust, a
trust fund (the "Trust Fund") to be formed by the Purchaser, the beneficial
ownership of which will be evidenced by a series of mortgage pass-through
certificates (the "Certificates"). Certain classes of the Certificates will be
rated by [Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc. ] [and ] [Xxxxx'x Investors Service, Inc.] [Fitch, Inc.]
[specify other rating agency] (together, the "Rating Agencies"). Certain classes
of the Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust Fund will
be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of [___] (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, [___] as the Master Servicer with
respect to the Mortgage Loans sold to the Purchaser by [____] (the "Master
Servicer"), [___], as special servicer (in such capacity, the "Special
Servicer") and [___], as trustee (the "Trustee").
The Purchaser intends to sell certain of the Certificates to [___]
(together, the "Underwriters") pursuant to an underwriting agreement dated [___]
(the "Underwriting Agreement"). The Purchaser intends to sell certain other
Certificates (the "Non-Registered Certificates") pursuant to a certificate
purchase agreement dated [___] (the "Certificate Purchase Agreement") to
Deutsche Bank Securities Inc. (the "Initial Purchaser"). Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Pooling and
Servicing Agreement or in the [___] Indemnification Agreement which was entered
into by the Seller, the Purchaser and the Underwriters on [___].
At or prior to the time when sales to investors of the Registered
Certificates were first made (the "Time of Sale"), the Purchaser had prepared
the following information: (i) a Free Writing Prospectus dated [___] (the
"Preliminary Prospectus"), (ii) a Term Sheet dated as of [___] (the "Term
Sheet") and (iii) written materials prepared by the Underwriters and provided to
the Purchaser for filing with the Securities and Exchange Commission (the "SEC")
prior to the Time of Sale (the "Purchaser Filed Information" and, together with
the Preliminary Prospectus and the Term Sheet, the "Time of Sale Information").
A list of the Purchaser Filed Information is included in Schedule A hereto. If
subsequent to the date of the Underwriting Agreement, the Purchaser and the
Underwriters have determined that such information included an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statement therein, in the light of the circumstances in which they were
made, not misleading and have terminated their old purchase contract and entered
into new purchase contracts with
purchasers of the Registered Certificates, then "Time of Sale Information" will
refer to the information provided by the Purchaser or the Underwriters to
purchasers at the time of entry into the first such new purchase contract,
including any information that corrects such material misstatements or
omissions.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to
the Purchaser upon receipt of the purchase price referred to in this Section 1,
and the Purchaser agrees to purchase, the Mortgage Loans. The purchase and sale
of the Mortgage Loans shall take place on [___] or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). As of the close
of business on [___], or the origination date with respect to each Mortgage Loan
originated after [___] (the "Cut-off Date"), the Mortgage Loans will have an
aggregate principal balance (the "Aggregate Cut-off Date Balance"), after
application of all payments of principal due thereon on or before such date,
whether or not received, of $[___], subject to a variance of plus or minus 5%.
The purchase price of the Mortgage Loans (inclusive of accrued interest, the
Interest Deposit Amount applicable to the Mortgage Loans and exclusive of the
Seller's pro rata share of the costs set forth in clause (c) of Section 9
hereof) (the "Mortgage Loan Purchase Price") shall be $[___].
SECTION 2. Conveyance of Mortgage Loans.
(a) On the Closing Date, subject only to receipt by the Seller of
the purchase price referred to in Section 1 hereof, the satisfaction of the
other closing conditions required to be satisfied on the part of Purchaser
pursuant to Section 7 and the issuance of the Certificates, the Seller agrees to
(i) sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse, all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule, including all rights to
payment in respect thereof, which includes all interest and principal received
or receivable by the Seller on or with respect to the Mortgage Loans after the
Cut-off Date (subject to the proviso in the next sentence), together with all of
the Seller's right, title and interest in and to the proceeds of any related
title, hazard, or other insurance policies and any escrow, reserve or other
comparable accounts related to the Mortgage Loans subject to that certain
Servicing Rights Purchase Agreement dated as of [_____] between the Master
Servicer and the Seller, and (ii) pay to the Purchaser the Interest Deposit
Amount applicable to the Mortgage Loans; provided, however, to the extent the
originator of a Mortgage Loan has the right, pursuant to the related Mortgage
Loan documents, to establish or designate the successor borrower with respect to
a defeasance and to purchase or cause to be purchased the related defeasance
collateral, such right is retained by the Seller and not transferred to the
Purchaser herein. The Purchaser shall be entitled to (and, to the extent
received by or on behalf of the Seller, the Seller shall deliver or cause to be
delivered to or at the direction of the Purchaser) all scheduled payments of
principal and interest due on the Mortgage Loans after the Cut-off Date, and all
other recoveries of principal and interest collected thereon after the Cut-off
Date; provided, however, that all scheduled payments of principal and interest
accrued but not paid thereon, due on or before the Cut-off Date and collected
after the Cut-off Date shall belong
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to the Seller, and the Purchaser or its successors or assigns shall promptly
remit any such payments to the Seller.
On or prior to the Closing Date, the Seller shall retain a third
party vendor reasonably satisfactory to the Controlling Class Representative to
complete the assignment and recordation of the related Loan Documents. On or
promptly following the Closing Date, the Seller shall cause such third party
vendor, to the extent possession of recorded copies of each Mortgage and the
documents described in clauses (iii), (iv), (v), (viii), (xiii) and (xiv) of
Exhibit B have been delivered to it, at the expense of the Seller, (1) to
prepare and record (a) each Assignment of Mortgage referred to in clause (iii)
of Exhibit B which has not yet been submitted for recording and (b) each
Reassignment of Assignment of Leases, Rents and Profits referred to in clause
(viii)(B) of Exhibit B (if not otherwise included in the related Assignment of
Mortgage) which has not yet been submitted for recordation; and (2) to prepare
and file each UCC assignment of financing statement referred to in clause (v) or
(xiii) which has not yet been submitted for filing or recording. The Seller
shall direct the related third party vendor to promptly prepare and submit (and
in no event later than 30 Business Days following the receipt of the related
documents in the case of clause 1(a) above and 60 days following the receipt of
the applicable documents in the case of clauses 1(b) and 2 above) for recording
or filing, as the case may be, in the appropriate public recording or filing
office, each such document. In the event that any such document is lost or
returned unrecorded because of a defect therein, the Seller, at its expense,
shall promptly prepare a substitute document for signature by the Purchaser or
itself, as applicable, and thereafter the Seller shall cause each such document
to be duly recorded or filed. The Seller shall, promptly upon receipt of the
original recorded or filed copy (and in no event later than five Business Days
following such receipt) deliver such original to the Custodian (in the case of
each UCC financing statement or UCC assignment of financing statement, with
evidence of filing or recording thereon). Notwithstanding anything to the
contrary contained in this Section 2, in those instances where the public
recording office retains the original Mortgage, Assignment of Mortgage or
Reassignment of Assignment of Leases, Rents and Profits, if applicable, after
any has been recorded, the obligations hereunder of the Purchaser shall be
deemed to have been satisfied upon delivery to the Custodian of a copy of such
Mortgage, Assignment of Mortgage or Reassignment of Assignment of Leases, Rents
and Profits, if applicable, certified by the public recording office to be a
true and complete copy of the recorded original thereof.
(b) In connection with the Seller's assignment pursuant to
subsection (a) above, the Seller shall deliver to and deposit with, or cause to
be delivered to and deposited with, the Custodian, on or before the Closing
Date, the Note for each Mortgage Loan so assigned and, within 30 days following
the Closing Date, the remaining applicable documents in Exhibit B for each such
Mortgage Loan, in each case with copies to the Master Servicer.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original Note, the Seller shall deliver a copy or duplicate
original of such Note, together with an affidavit certifying that the original
thereof has been lost or destroyed and an indemnification in connection
therewith in favor of the Trustee.
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If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of any of the documents and/or instruments
referred to in clauses (ii), (v), (viii)(A), (xiv) and (xvi) of Exhibit B and
the UCC financing statements and UCC assignments of financing statements
referred to in clause (xiii) of Exhibit B, with evidence of recording or filing
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, or because such original recorded or filed document has been lost or
returned from the recording or filing office and subsequently lost, as the case
may be, the delivery requirements of this Section 2(b) shall be deemed to have
been satisfied as to such missing item, and such missing item shall be deemed to
have been included in the related Mortgage File, provided that a copy of such
document or instrument (without evidence of recording or filing thereon, but
certified (which certificate may relate to multiple documents and/or
instruments) by the applicable public recording or filing office, the applicable
title insurance company or by the Seller to be a true and complete copy of the
original thereof submitted for recording or filing, as the case may be) has been
delivered to the Trustee within [45] days after the Closing Date, and either the
original of such missing document or instrument, or a copy thereof, with
evidence of recording or filing, as the case may be, thereon, is delivered to or
at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee) within [180] days after
the Closing Date (or within such longer period after the Closing Date as the
Purchaser (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Seller has provided the Purchaser (or such
subsequent owner) with evidence of such recording or filing, as the case may be,
or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or filing, as the case may be, and is, as certified
to the Purchaser (or such subsequent owner) no less often than quarterly, in
good faith attempting to obtain from the appropriate county recorder's or filing
office such original or copy).
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (vii) of Exhibit B solely because such policy has
not yet been issued, the delivery requirements of this Section 2(b) shall be
deemed to be satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that the
Seller has delivered to the Trustee a binder marked as binding and countersigned
by the title insurer or its authorized agent (which may be a pro forma or
specimen title insurance policy which has been accepted or approved in writing
as binding by the related title insurance company) or an acknowledged closing
instruction or escrow letter, and the Seller shall deliver to or at the
direction of the Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee), promptly following the receipt
thereof, the original related lender's title insurance policy (or a copy
thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan. On the Closing Date, upon
notification from the Seller that the purchase price referred to in Section 1
has been received by the Seller and the issuance of the Certificates, the
Purchaser shall be authorized to release to the Trustee or its designee all of
the Mortgage Files in the Purchaser's possession relating to the Mortgage Loans.
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Notwithstanding anything herein to the contrary, with respect to the
documents referred to in clause (xvii) and clause (xviii) on Exhibit B, the
Master Servicer shall hold the original of each such document in trust on behalf
of the Trustee in order to draw on such letter of credit on behalf of the Trust
and the Seller shall be deemed to have satisfied the delivery requirements of
this Agreement by delivering the original of each such document to the Master
Servicer. The Seller shall pay any costs of assignment or amendment of such
letter of credit required (which assignment or amendment shall change the
beneficiary of the letter of credit to the Trust in care of the Master Servicer)
in order for the Master Servicer to draw on such letter of credit on behalf of
the Trust. In the event that the documents specified in clause (xviii) on
Exhibit B are missing because the related assignment or amendment documents have
not been completed, the Seller shall take all necessary steps to enable the
Master Servicer to draw on the related letter of credit on behalf of the Trust
including, if necessary, drawing on the letter of credit in its own name
pursuant to written instructions from the Master Servicer and immediately
remitting such funds (or causing such funds to be remitted) to the Master
Servicer.
Contemporaneously with the execution of this Agreement by the
Purchaser and the Seller, the Seller shall deliver a power of attorney to each
of the Master Servicer and the Special Servicer at the direction of the
Controlling Class Representative or its assignees, to take such other action as
is necessary to effect the delivery, assignment and/or recordation of any
documents and/or instruments relating to any Mortgage Loan which have not been
delivered, assigned or recorded at the time required for enforcement by the
Trust Fund. The Seller will be required to effect at its expense the assignment
and recordation of its Loan Documents until the assignment and recordation of
all such Loan Documents has been completed.
(c) As to each Mortgage Loan, the Seller shall be responsible for
all costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (viii)(B) of Exhibit B and each
UCC-2 and UCC-3 assignment of financing statement, if any, referred to in clause
(v)(B) of Exhibit B. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause the preparation of a substitute therefor
or cure or cause the curing of such defect, as the case may be, and shall
thereafter deliver the substitute or corrected document to or at the direction
of the Purchaser (or any subsequent owner of the affected Mortgage Loan,
including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) Except as provided below, all documents and records in the
Seller's possession (or under its control) relating to the Mortgage Loans that
are not required to be a part of a Mortgage File in accordance with Exhibit B
but that are reasonably required to service the Mortgage Loans (all such other
documents and records, including Environmental Reports, as to any Mortgage Loan,
the "Servicing File"), together with copies of the documents contained in the
related Mortgage File and all escrow payments, reserve funds and other
comparable funds in the possession of the Seller (or under its control) with
respect to the Mortgage Loans, shall (unless they are held by a sub-servicer
that shall, as of the Closing Date, begin acting on behalf of the Master
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date; provided, however, the Seller shall not be required to deliver,
and the Servicing File shall not be deemed to include drafts of Loan Documents,
attorney-client or internal communications of the Seller or its
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affiliates or Seller's credit underwriting or due diligence analyses or related
data (as distinguished from Environmental Reports, financial statements, credit
reports, title reports, structural and engineering reports, appraisals and other
reports, analyses or data provided by the Borrower or third parties other than
the Seller's attorneys). If a sub-servicer shall, as of the Closing Date, begin
acting on behalf of the Master Servicer with respect to any Mortgage Loan
pursuant to a written agreement between such parties, the Seller or its agent
shall deliver a copy of the related Servicing File to the Master Servicer.
(e) Each of the Seller's and the Purchaser's records will reflect
the transfer of the Mortgage Loans to the Purchaser as a sale, including for
accounting purposes.
(f) Furthermore, it is the express intent of the parties hereto that
the conveyance of the Mortgage Loans by Seller to Depositor as provided in this
Agreement be, and be construed as, a sale of the Mortgage Loans by Seller to
Depositor. It is, further, not the intention of the parties that such conveyance
be deemed a pledge of the Mortgage Loans by Seller to Depositor to secure a debt
or other obligation of Seller. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of Seller or
if for any reason this Agreement is held or deemed to create a security interest
in the Mortgage Loans:
(i) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect
in the applicable state;
(ii) the conveyance provided for in this Agreement shall hereby
grant from Seller to Depositor a security interest in and to all of
Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property consisting of, arising
from or relating to any of the property described in the Mortgage
Loans, including the related Notes, Mortgages and title, hazard and
other insurance policies, identified on the Mortgage Loan Schedule,
and all distributions with respect thereto payable after the Cut-off
Date;
(B) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit
and investment property arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable
with respect to, or claims against other persons with respect to,
all or any part of the collateral described in clause (A) above
(including any accrued discount realized on liquidation of any
investment purchased at a discount), in each case, payable after the
Cut-off Date; and
(C) all cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above payable after the Cut-off Date;
(iii) the possession by Depositor or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments,
money, documents, chattel paper or
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certificated securities shall be deemed to be possession by the secured
party or possession by a purchaser or a person designated by him or her,
for purposes of perfecting the security interest pursuant to the Uniform
Commercial Code (including, without limitation, Sections 9-306, 9-313 and
9-314 thereof) as in force in the relevant jurisdiction; and
(iv) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, securities intermediaries, bailees or
agents of, or persons holding for (as applicable), Depositor or its
assignee for the purpose of perfecting such security interest under
applicable law.
The Seller at the direction of the Depositor or its assignee, shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans and the proceeds thereof, such security interest
would be a perfected security interest of first priority under applicable law
and will be maintained as such throughout the term of this Agreement. In
connection herewith, Depositor and its assignee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction and may execute and file such UCC Financing
Statements as may be necessary or appropriate to accomplish the foregoing.
(g) It is further acknowledged and agreed by the Seller that the
Purchaser intends to convey all right, title and interest of the Purchaser in
and to the Mortgage Loans and all rights and remedies under this Agreement
(excluding the Seller's representations, warranties and covenants set forth in
paragraphs (viii) and (ix) of Section 4(b), the Purchaser's rights and remedies
under Section 9 and the [___] Indemnification Agreement) to the Trustee on
behalf of the Certificateholders, including, without limitation, all rights and
remedies as may be available under Section 6 to the Purchaser in the event of a
Material Breach or a Material Defect; provided, that the Trustee on behalf of
the Certificateholders shall be a third-party beneficiary of this Agreement and
shall be entitled to enforce any obligations of the Seller hereunder in
connection with a Material Breach or a Material Defect as if the Trustee on
behalf of the Certificateholders had been an original party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law under Section 6 for a breach of the Seller's representations,
warranties and covenants set forth in or contemplated by Section 4.
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SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the date hereof (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, the Trustee on behalf of the
Certificateholders and the respective successors of the Purchaser and the
Trustee, each of the representations and warranties set forth in Exhibit C
subject to the exceptions set forth in Exhibit D and any annex referenced in
Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing
and in good standing under the laws of the State of [___], and is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of, and compliance with, the terms of this Agreement by
the Seller, do not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, in each case which materially and
adversely affects the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and the rights of creditors of
national banks, or any other laws that may be applicable in the context of
the insolvency of a national banking association, (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification or contribution for
securities laws liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement do not constitute a violation of, any law, any
judgment, order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Seller's good faith and
reasonable judgment,
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is likely to affect materially and adversely either the ability of the
Seller to perform its obligations under this Agreement or the financial
condition of the Seller.
(vi) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Seller to perform its obligations
under this Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the
Initial Purchaser, and their respective affiliates, that may be entitled
to any commission or compensation in connection with the sale of the
Mortgage Loans or the consummation of any of the other transactions
contemplated hereby.
(viii) Except with respect to Deutsche Bank Securities Inc., an
affiliate of the Seller, acting as Underwriter and Initial Purchaser,
neither the Seller nor anyone acting on its behalf has (A) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in
any manner, (B) solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any manner,
(C) otherwise approached or negotiated with respect to any Certificate,
any interest in any Certificate or any other similar security with any
person in any manner, (D) made any general solicitation by means of
general advertising or in any other manner with respect to any
Certificate, any interest in any Certificate or any similar security, or
(E) taken any other action that (in the case of any of the acts described
in clauses (A) through (D) above) would constitute or result in a
violation of the Securities Act or any state securities law relating to or
in connection with the issuance of the Certificates or require
registration or qualification pursuant to the Securities Act or any state
securities law of any Certificate not otherwise intended to be a
Registered Certificate. In addition, the Seller will not act, nor has it
authorized or will it authorize any person (other than an Underwriter
and/or the Initial Purchaser) to act, in any manner set forth in the
foregoing sentence with respect to any of the Certificates or interests
therein. For purposes of this paragraph 4(b)(viii), the term "similar
security" shall be deemed to include, without limitation, any security
evidencing or, upon issuance, that would have evidenced an interest in the
Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information
set forth in Annex [A-1, Annex X-0, Xxxxx X-0, Xxxxx X-0 and Annex A-6] to
the Prospectus Supplement (as defined in the [___] Indemnification
Agreement) (the "Loan Detail") and, to the extent consistent therewith,
the information set forth on the diskette attached to the Prospectus
Supplement and the accompanying prospectus (the "Diskette"), is true and
correct in all material respects. Insofar as it relates to the Mortgage
Loans and/or the Seller and does not represent a restatement or
aggregation of the information on the Loan Detail, the information set
forth in the Memorandum (as defined in the [___] Indemnification
Agreement) and in the Prospectus Supplement under the headings "Summary of
the Prospectus Supplement--Relevant Parties and Dates--Mortgage Loan
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Sellers," "--The Mortgage Pool," "Risk Factors" and "Description of the
Mortgage Pool", does not contain any untrue statement of a material fact
or (in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors)
omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any bulk
sale laws), for the Seller's execution, delivery and performance of, or
compliance by, the Seller with this Agreement, or the consummation by the
Seller of any transaction contemplated hereby, other than (1) the filing
or recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (2) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as have
been obtained, made or given and (3) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the Seller
under this Agreement.
(c) Upon discovery by any of the Seller or the parties to the
Pooling and Servicing Agreement of a breach of any of the representations and
warranties made pursuant to and set forth in subsection (b) above which
materially and adversely affects the interests of the Purchaser or a breach of
any of the representations and warranties made pursuant to subsection (a) above
and set forth in Exhibit C which materially and adversely affects the value of
any Mortgage Loan, the value of the related Mortgaged Property or the interests
therein of the Purchaser, the Trustee on behalf of the Certificateholders or any
Certificateholder, the party discovering such breach shall give prompt written
notice to the Seller and/or the other parties, as applicable.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of State of [___].
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance of, and compliance with, the terms of this Agreement
by the Purchaser, do not violate the Purchaser's organizational documents
or constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a party or which
is applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the
10
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement will not constitute a violation of, any law,
any judgment, order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale of
the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the Purchaser's execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as have
been obtained, made or given and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any
of the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
11
SECTION 6. Repurchases; Substitutions.
(a) If any of the parties to this Agreement discovers that any
document constituting a part of a Mortgage File has not been delivered within
the time periods provided for herein and in the Pooling and Servicing Agreement,
has not been properly executed, is missing, does not appear to be regular on its
face or contains information that does not conform in any material respect with
the corresponding information set forth in the Mortgage Loan Schedule (each, a
"Defect"), or discovers or receives notice of a breach of any representation or
warranty of the Seller made pursuant to Section 4(a) of this Agreement with
respect to any Mortgage Loan (a "Breach"), such party shall give prompt written
notice thereof to each of the Rating Agencies, the Seller, the parties to the
Pooling and Servicing Agreement and the Controlling Class Representative. If any
such Defect or Breach materially and adversely affects the value of any Mortgage
Loan, the value of the related Mortgaged Property or the interests therein of
the Purchaser, the Trustee or any Certificateholders, then such Defect shall
constitute a "Material Defect" or such Breach shall constitute a "Material
Breach," as the case may be; provided, however, that if any of the documents
specified in the first paragraph of Section [2.01(b)] of the Pooling and
Servicing Agreement is not delivered, and is certified as missing, pursuant to
the first paragraph of Section [2.01(b)] of the Pooling and Servicing Agreement,
it shall be deemed a Material Defect. Promptly upon receiving written notice of
any such Material Defect or Material Breach with respect to a Mortgage Loan
(including through a written notice given by any party hereto, as provided
above), the Seller shall, not later than [90] days from the Seller's receipt of
notice from the Master Servicer, the Special Servicer, the Trustee or the
Custodian of such Material Defect or Material Breach, as the case may be (or, in
the case of a Material Defect or Material Breach relating to a Mortgage Loan not
being a "qualified mortgage" within the meaning of the REMIC Provisions, not
later than [90] days after the Seller or any party to the Pooling and Servicing
Agreement discovering such Material Defect or Material Breach) (any such 90-day
period, the "Initial Resolution Period"), (i) cure the same in all material
respects, (ii) repurchase the affected Mortgage Loan at the applicable
Repurchase Price or (iii) substitute a Qualifying Substitute Mortgage Loan for
such affected Mortgage Loan (provided that in no event shall such substitution
occur later than the second anniversary of the Closing Date) and pay to the
Master Servicer for deposit into the Collection Account (or, with respect to any
Loan Combination, the Loan Combination Collection Account) any Substitution
Shortfall Amount in connection therewith; provided, however, that with respect
to any Material Defect arising from a missing document as to which the Trustee
inadvertently certified its possession of such document (x) on the Closing Date,
in the form of Exhibit [S-1] to the Pooling and Servicing Agreement or (y) no
later than [45] days following the Closing Date, in the form of Exhibit [S-2] to
the Pooling and Servicing Agreement, the related Mortgage Loan Seller shall have
(A) [15] days to cure the Material Defect relating to the missing document in
the certification of clause (x) and (B) [30] days to cure the Material Defect
relating to the missing document in the certification of clause (y); provided,
further, that if (i) such Material Defect or Material Breach (other than one
relating to the immediately preceding proviso) is capable of being cured but not
within the Initial Resolution Period, (ii) such Material Defect or Material
Breach is not related to any Mortgage Loan's not being a "qualified mortgage"
within the meaning of the REMIC Provisions and (iii) the Seller has commenced
and is diligently proceeding with the cure of such Material Defect or Material
Breach within the Initial Resolution Period, then the Seller shall have an
additional period equal to the applicable Resolution Extension Period to
complete such cure or, failing such cure, to repurchase the Mortgage Loan or
substitute a Qualifying Substitute
12
Mortgage Loan. The Seller shall have an additional [90] days (without
duplication of the additional [90]-day period set forth in the last sentence of
the definition of Resolution Extension Period) to cure such Material Defect or
Material Beach, provided that, the Seller has commenced and is diligently
proceeding with the cure of such Material Defect or Material Breach and such
failure to cure is solely the result of a delay in the return of documents from
the local filing or recording authorities. Notwithstanding the foregoing, if a
Mortgage Loan is not secured by a hotel, restaurant (operated by a Borrower),
healthcare facility, nursing home, assisted living facility, self-storage
facility, theatre, manufactured housing or fitness center (operated by a
Borrower) property, then the failure to deliver to the Trustee copies of the UCC
financing statements with respect to such Mortgage Loan shall not be a Material
Defect.
If the Seller is notified of a Defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such Defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes. The failure of the Master Servicer, the Special Servicer or the
Trustee to notify the Seller of a Material Defect or Material Breach shall not
constitute a waiver of any cure or repurchase obligation, provided that the
Seller must receive written notice thereof as described in this Section 6(a)
before commencement of the Initial Resolution Period.
(b) In connection with any repurchase of, or substitution for, a
Mortgage Loan contemplated by this Section 6, (A) the Trustee, the Master
Servicer (with respect to any such Mortgage Loan other than a Specially Serviced
Loan) and the Special Servicer (with respect to any such Mortgage Loan that is a
Specially Serviced Loan) shall each tender to the Seller, upon delivery (i) to
each of the Master Servicer or the Special Servicer, as applicable, of a trust
receipt and (ii) to the Trustee by the Master Servicer or the Special Servicer,
as applicable, of a Request for Release and an acknowledgement by the Master
Servicer or applicable Special Servicer, as applicable, of its receipt of the
Repurchase Price or the Substitution Shortfall Amount from the Seller, (1) all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it and (2) each document that constitutes a part of the
Mortgage File that was endorsed or assigned to the Trustee shall be endorsed or
assigned without recourse in the form of endorsement or assignment provided to
the Trustee by the Seller, as the case may be, to the Seller as shall be
necessary to vest in the Seller the legal and beneficial ownership of each
Removed Mortgage Loan to the extent such ownership was transferred to the
Trustee, and (B) the Trustee shall release, or cause the release of, any escrow
payments and reserve funds held by the Trustee, or on the Trustee's behalf, in
respect of such Removed Mortgage Loan(s) to the Seller.
(c) This Section 6 provides the sole remedies available to the
Purchaser, and its successors and permitted assigns (i.e., the Trustee and the
holders of the Certificates) in respect of any Defect in a Mortgage File or any
Breach. If the Seller defaults on its obligations to cure, to repurchase, or to
substitute for, any Mortgage Loan in accordance with this Section 6, or disputes
its obligation to cure, to repurchase, or to substitute for, any Mortgage Loan
in accordance with Section 6, the Purchaser or the Trustee, as applicable, may
take such action as is appropriate to enforce such payment or performance,
including, without limitation, the institution and prosecution of appropriate
proceedings. To the extent the Purchaser or the Trustee, as applicable, prevails
in such proceeding, the Seller shall reimburse the Purchaser or the Trustee,
13
as applicable, for all necessary and reasonable costs and expenses incurred in
connection with the enforcement of such obligation of the Seller to cure, to
repurchase, or to substitute for, any Mortgage Loan in accordance with this
Section 6.
(d) If one or more (but not all) of the Mortgage Loans constituting
a cross-collateralized group of Mortgage Loans are to be repurchased or
substituted by the Seller as contemplated by this Section 6, then, prior to the
subject repurchase or substitution, the Seller or its designee shall use its
reasonable efforts, subject to the terms of the related Mortgage Loan(s), to
prepare and, to the extent necessary and appropriate, have executed by the
related Borrower and record, such documentation as may be necessary to terminate
the cross-collateralization between the Mortgage Loan(s) in such
cross-collateralized group of Mortgage Loans that are to be repurchased or
substituted, on the one hand, and the remaining Mortgage Loan(s) therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that, no such termination shall be effected
unless and until the Controlling Class Representative, if one is then acting,
has consented in its sole discretion and the Trustee has received from the
Seller (i) an Opinion of Counsel to the effect that such termination would not
cause an Adverse REMIC Event to occur and (ii) written confirmation from each
Rating Agency that the then current rating assigned to any of the Certificates
that are currently being rated by such Rating Agency will not be qualified,
downgraded or withdrawn by reason of such termination; provided, further, that
the Seller, in the case of the related Mortgage Loans, may, at its option and
within the [90]-day cure period described above (and any applicable extension
thereof), purchase or substitute for the entire subject cross-collateralized
group of Mortgage Loans in lieu of effecting a termination of the
cross-collateralization. All costs and expenses incurred by the Trustee or any
Person acting on its behalf pursuant to this paragraph shall be included in the
calculation of the Repurchase Price for the Mortgage Loan(s) to be repurchased
or substituted. If the cross-collateralization of any cross-collateralized group
of Mortgage Loans cannot be terminated as contemplated by this paragraph, then
the Seller shall repurchase or substitute the entire subject
cross-collateralized group of Mortgage Loans.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties with respect to
a Mortgage Loan or cross-collateralized group of Mortgage Loans, the Seller will
not be obligated to repurchase the Mortgage Loan or cross-collateralized group
of Mortgage Loans if (i) the affected Mortgaged Property may be released
pursuant to the terms of any partial release provisions in the related Loan
Documents (and such Mortgaged Property is, in fact, released), (ii) the
remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in
the Loan Documents and the Seller provides an Opinion of Counsel to the effect
that such release would not cause an Adverse REMIC Event to occur and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, withdrawn or downgraded.
As to any Qualifying Substitute Mortgage Loan, at the direction of
the Trustee, the Seller shall deliver to the Custodian for such Qualifying
Substitute Mortgage Loan (with a copy to the Master Servicer), the related
Mortgage File with the related Note endorsed as required by Section [2.01(a)(i)]
of the Pooling and Servicing Agreement. Pursuant to the Pooling and Servicing
Agreement, Monthly Payments due with respect to Qualifying Substitute
14
Mortgage Loans in or prior to the month of substitution shall not be part of the
Trust Fund and will be retained by the Master Servicer and remitted by the
Master Servicer to the related Seller on the next succeeding Distribution Date.
For the month of repurchase or substitution, distributions to Certificateholders
pursuant to the Pooling and Servicing Agreement will include the Monthly
Payment(s) due on the related Removed Mortgage Loan and received by the Master
Servicer or the Special Servicer on behalf of the Trust on or prior to the
related date of repurchase or substitution, as applicable, and the Seller shall
be entitled to retain all amounts received thereafter in respect of such Removed
Mortgage Loan.
In any month in which the Seller substitutes one or more Qualifying
Substitute Mortgage Loans for one or more Removed Mortgage Loans, pursuant to
the Pooling and Servicing Agreement, the Master Servicer will determine the
applicable Substitution Shortfall Amount. At the direction of the Trustee, the
Seller shall deposit cash equal to such amount into the Collection Account
and/or the Loan Combination Collection Account, as applicable, concurrently with
the delivery of the Mortgage Files for such Qualifying Substitute Mortgage
Loans, without any reimbursement thereof. At the direction of the Trustee, the
Seller shall give written notice to the Depositor and the Master Servicer of
such deposit.
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP,
Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York
City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller and the
Purchaser specified herein shall be true and correct as of the Closing
Date, and the Aggregate Cut-off Date Balance shall be within the range
permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and acceptable to the Purchaser and, in
the case of the Pooling and Servicing Agreement (insofar as such Agreement
affects the obligations of the Seller hereunder) and other documents to be
delivered by or on behalf of the Purchaser, to the Seller, shall be duly
executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee,
the Purchaser or the Purchaser's designee, as the case may be, all
documents and funds required to be so delivered on or before the Closing
Date pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall
15
have the ability to comply with all terms and conditions and perform all
duties and obligations required to be complied with or performed after the
Closing Date;
(vi) The Seller shall have received the consideration for the
Mortgage Loans as specified in Section 1, and the Seller shall have paid
or agreed to pay all fees, costs and expenses payable by it to the
Purchaser pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement and a xxxx of sale duly executed and delivered by
the Purchaser and the Seller;
(b) An Officer's Certificate substantially in the form of Exhibit E
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser, the Initial Purchaser and
each Underwriter may rely, attaching thereto as exhibits the organizational
documents of the Seller;
(c) A certificate of good standing regarding the Seller from the
Secretary of State for the State of New York, dated not earlier than 30 days
prior to the Closing Date;
(d) Written opinions of counsel (which may include opinions of
in-house counsel, outside counsel or a combination thereof) for the Seller in
form reasonably acceptable to counsel for the Purchaser and subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller and acceptable to counsel for the Purchaser, dated the Closing Date and
addressed to the Purchaser, the Initial Purchaser and each Underwriter;
(e) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates, each of which shall include the Purchaser, the Initial Purchaser
and each Underwriter as an addressee;
(f) A certificate of the Seller, dated the Closing Date, and upon
which the Purchaser and the Underwriters may rely, to the effect that
representatives of the Seller have carefully examined the Time of Sale
Information and the Prospectus Supplement and the accompanying prospectus and
nothing has come to the attention of the Seller that would lead the Seller to
believe that the Time of Sale Information, as of the Time of Sale or as of the
Closing Date, or the Prospectus Supplement and the accompanying prospectus, as
of the Closing Date, included or includes any untrue statement of a material
fact relating to the Mortgage Loans or omitted or omits to state therein a
material fact necessary in order to make the statements therein
16
relating to the Mortgage Loans, in light of the circumstances under which they
were made, not misleading; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Costs.
The Seller shall pay (or shall reimburse the Purchaser to the extent
that the Purchaser has paid) (a) the fees and expenses of counsel to the Seller,
(b) the expenses of filing or recording UCC assignments of financing statements,
assignments of Mortgage and assignments of Assignments of Leases, Rents and
Profits with respect to the Mortgage Loans as contemplated by Article [2] of the
Pooling and Servicing Agreement and (c) on the Closing Date, the Seller's pro
rata portion of the aggregate of the following amounts (the Seller's pro rata
portion to be determined according to the percentage that the aggregate
principal balance of the Mortgage Loans as of the Cut-off Date represents of the
aggregate principal balance of the Mortgage Loans and the Other Mortgage Loans
as of the Cut-off Date): (i) the costs and expenses of printing (or otherwise
reproducing) and delivering a preliminary and final Prospectus relating to the
Certificates; (ii) the fees, costs, and expenses of the Trustee (including
reasonable attorneys' fees) incurred in connection with the Trustee entering
into and performing certain of its obligations under the Pooling and Servicing
Agreement; (iii) the filing fee charged by the SEC for registration of the
Certificates so registered and reasonable attorney's fees and legal expenses in
connection therewith; (iv) the fees charged by the Rating Agencies to rate the
Certificates so rated and reasonable attorney's fees and legal expenses in
connection therewith; (v) the fees and expenses of counsel to the Underwriter;
(vi) the fees and expenses of counsel to the Depositor; (vii) the fees and
expenses of counsel to the Servicers; (viii) the cost of obtaining a "comfort
letter" from a firm of certified public accountants selected by the Purchaser
and the Seller with respect to numerical information in respect of the Mortgage
Loans and the Other Mortgage Loans included in the Prospectus; and (ix) other
miscellaneous costs and expenses agreed upon by the parties hereto. All other
costs and expenses in connection with the transactions contemplated hereunder
shall be borne by the party incurring such expense.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by overnight mail or courier service and received by the
addressee or (d) transmitted by facsimile (or any other type of electronic
transmission agreed upon by the parties) and confirmed by a writing delivered by
any of the means described in (a), (b) or (c), if (i) to the Purchaser,
addressed to Deutsche Mortgage & Asset Receiving Corporation, 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx, facsimile no. (000) 000-0000,
with a copy to Xxxx Xxxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile no. (000) 000-0000, or
such other address or facsimile number as may hereafter be furnished to the
Seller in writing by the Purchaser; and if (ii) to the Seller, addressed to
[___], Attention: [___], facsimile no. [___], or to such other address or
facsimile number as the Seller may designate in writing to the Purchaser.
17
SECTION 11. [Reserved].
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 13. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 15. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 16. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person
18
into which the Seller may be merged or consolidated, or any corporation or other
entity resulting from any merger, conversion or consolidation to which the
Seller is a party, or any person succeeding to all or substantially all of the
business of the Seller, shall be the successor to the Seller hereunder. The
Purchaser has the right to assign its interest under this Agreement, in whole or
in part (excluding the Seller's representations, warranties and covenants set
forth in paragraphs (viii) and (ix) of Section 4(b), the Purchaser's rights and
remedies under Section 9 and the [___] Indemnification Agreement), to the
Trustee, for the benefit of the Certificateholders, as may be required to effect
the purposes of the Pooling and Servicing Agreement and, upon such assignment,
the Trustee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser, provided that the Trustee shall have no
right to further assign such rights to any other Person. Subject to the
foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser, and their permitted successors and
permitted assigns.
SECTION 18. Amendments.
No term or provision of this Agreement may be amended, waived,
modified or in any way altered, unless such amendment, waiver, modification or
alteration is in writing and signed by a duly authorized officer of the party
against whom such amendment, waiver, modification or alteration is sought to be
enforced.
19
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.
[___]
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
DEUTSCHE MORTGAGE & ASSET
RECEIVING CORPORATION
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i)______the loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date;
(iv) the original principal balance;
(v) the Stated Principal Balance as of the Cut-off Date;
(vi) the Maturity Date or anticipated repayment date for each
Mortgage Loan;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) in the case of the Credit Lease Loan, the identity of the
Tenant and the Guarantor under any applicable Guaranty, and the publicly
available corporate credit ratings of such Tenant and Guarantor as of the
Closing Date;
(x) the Servicing Fee Rate;
(xi) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(xii) whether such Mortgage Loan has an anticipated repayment date;
A-1
(xiii) the Revised Rate of such Mortgage Loan, if any;
(xiv) whether such Mortgage Loan has a hard lock-box, a springing
hard lock-box, a soft-at-closing, springing hard lock-box or no lock-box at all;
(xv) identifying any Mortgage Loans with which any such Mortgage
Loans are cross-collateralized;
(xvi) the applicable Loan Group to which such Mortgage Loan belongs;
and
(xvii) the number of units, pads, rooms or square feet with respect
to each Mortgaged Property.
Such list may be in the form of more than one list, collectively setting forth
all of the information required. Certain of the above-referenced items are
described on the Mortgage Loan Schedule attached hereto. Certain of the
above-referenced items are described on Exhibit [B-1] to the Pooling and
Servicing Agreement and are incorporated by reference into the Mortgage Loan
Schedule attached hereto.
A-2
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to
Section 2(b), collectively consist of the following documents:
(i) the original Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the Originator, without recourse, either in
blank or to the order of the Trustee in the following form: "Pay to the order of
[___], as Trustee for the registered holders of [________________], Commercial
Mortgage Pass-Through Certificates, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the Originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the Originator, either in blank or in favor of the Trustee (in such
capacity);
(iv) (A) an original or copy of any related security agreement (if
such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the Originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any; and (B) an original
assignment of any related security agreement (if such item is a document
separate from the related Mortgage) executed by the most recent assignee of
record thereof prior to the Trustee or, if none, by the Originator, either in
blank or in favor of the Trustee (in such capacity), which assignment may be
included as part of the corresponding assignment of Mortgage referred to in
clause (iii) above;
(v)(A) stamped or certified copies of any UCC financing statements
and continuation statements which were filed in order to perfect (and maintain
the perfection of) any security interest held by the Originator of the Mortgage
Loan (and each assignee of record prior to the Trustee) in and to the personalty
of the Borrower at the Mortgaged Property (in each case with evidence of filing
or recording thereon) and which were in the possession of the Seller (or its
agent) at the time the Mortgage Files were delivered to the Custodian, together
with original UCC-2 or UCC-3 assignments of financing statements showing a
complete chain of assignment from the secured party named in such UCC-1
financing statement to the most recent assignee of record thereof prior to the
Trustee, if any, and (B) if any such security interest is perfected and the
earlier UCC financing statements and continuation statements were in the
possession of the Seller, an assignment of UCC financing statement by the most
recent assignee of record prior to the Trustee or, if none, by the Originator,
evidencing the transfer of such security interest, either in blank or in favor
of the Trustee;
B-1
(vi) the original or a copy of the Loan Agreement thereof relating
to such Mortgage Loan, if any;
(vii) the original or a copy of the lender's title insurance policy
issued in connection with the origination of the Mortgage Loan, together with
all endorsements or riders (or copies thereof) that were issued with or
subsequent to the issuance of such policy, insuring the priority of the Mortgage
as a first lien on the Mortgaged Property or a "marked-up" commitment to insure
marked as binding and countersigned by the related insurer or its authorized
agent (which may be a pro forma or specimen title insurance policy which has
been accepted or approved as binding in writing by the related title insurance
company), or an agreement to provide the same pursuant to binding escrow
instructions executed by an authorized representative of the title company;
(viii) (A) the original or a copy of the related Assignment of
Leases, Rents and Profits (if such item is a document separate from the
Mortgage) and, if applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment from the Originator
of the Mortgage Loan to the most recent assignee of record thereof prior to the
Trustee, if any, in each case with evidence of recording thereon; and (B) an
original assignment of any related Assignment of Leases, Rents and Profits (if
such item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the Originator, either in blank or in favor of the Trustee (in such
capacity), which assignment may be included as part of the corresponding
assignment of Mortgage referred to in clause (iii) above;
(ix) copies of the original environmental indemnity agreements and
environmental insurance policies pertaining to the Mortgaged Properties required
in connection with origination of the Mortgage Loans, if any;
(x) [Reserved];
(xi) if the Borrower has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of contracts and the
assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral Account
Agreement is separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts,
if any, a copy of the UCC-1 financing statements, if any, submitted for filing
with respect to the Seller's security interest in the Reserve Accounts, Cash
Collateral Accounts and Lock-Box Accounts and all funds contained therein (and
UCC-3 assignments of financing statements assigning such UCC-1 financing
statements to the Trustee on behalf of the Certificateholders;
B-2
(xiv) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon if
appropriate, in those instances where the terms or provisions of the Mortgage,
Note or any related security document have been modified or the Mortgage Loan
has been assumed;
(xv) the original or a copy of any guaranty of the obligations of
the Borrower under the Mortgage Loan together with, as applicable, (A) the
original or copies of any intervening assignments of such guaranty showing a
complete chain of assignment from the Originator of the Mortgage Loan to the
most recent assignee thereof prior to the Trustee and (B) an original assignment
of such guaranty executed by the most recent assignee thereof prior to the
Trustee or, if none, by the Originator;
(xvi) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the related Borrower if the
Mortgage, Note or other document or instrument referred to above was signed on
behalf of the Borrower pursuant to such power of attorney;
(xvii) the original (or copy, if the original is held by the Master
Servicer pursuant to Section 2(b)) of any letter of credit for the benefit of
the lender securing such Mortgage Loan;
(xviii) the appropriate assignment or amendment documentation
related to the assignment to the Trust of any letter of credit securing such
Mortgage Loan (or copy thereof, if the original is held by the Master Servicer
pursuant to Section 2(b)) which entitles the Master Servicer on behalf of the
Trust to draw thereon;
(xix) with respect hospitality properties, a copy of the franchise
agreement, if any, an original or copy of the comfort letter, if any, and any
transfer documents with respect to any such comfort letter; and
(xx) with respect to each Loan Combination, a copy of the related
Co-Lender Agreement.
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received. The original assignments referred to in clauses
(iii), (iv)(B), (viii)(B) and (xv)(B), may be in the form of one or more
instruments in recordable form in any applicable filing or recording offices.
B-3
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases "to the
knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan Seller's
knowledge" shall mean, except where otherwise expressly set forth below, the
actual state of knowledge of the Mortgage Loan Seller or any servicer acting on
its behalf regarding the matters referred to (i) after having conducted such
inquiry and due diligence into such matters as would be customarily performed by
prudent institutional commercial or multifamily mortgage lenders, as applicable,
at the time of the origination or acquisition of the particular Mortgage Loan
and (ii) subsequent to such origination, utilizing the servicing and monitoring
practices customarily utilized by prudent commercial mortgage loan servicers
with respect to securitizable commercial or multifamily, as applicable, mortgage
loans, and the Mortgage Loan Seller shall have made prudent inquiries of such
servicers, and the phrases "to the actual knowledge of the Mortgage Loan Seller"
or "to the Mortgage Loan Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the
Mortgage Loan Seller without any express or implied obligation to make inquiry.
All information contained in documents which are part of or required to be part
of a Mortgage File shall be deemed to be within the knowledge and the actual
knowledge of the Mortgage Loan Seller. Wherever there is a reference to receipt
by, or possession of, the Mortgage Loan Seller of any information or documents,
or to any action taken by the Mortgage Loan Seller or not taken by the Mortgage
Loan Seller or its agents or employees, such reference shall include the receipt
or possession of such information or documents by, or the taking of such action
or not taking such action by the Mortgage Loan Seller or any servicer acting on
its behalf.
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date, except as set forth on Exhibit D hereto and the Annexes
hereto referred to below:
(i) 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.
(ii) 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.
(iii) Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good and marketable title to, and was the
sole owner of, each Mortgage Loan, and the Seller is transferring
such Mortgage Loan free and clear of any and all liens, pledges,
charges or security interests of any nature encumbering such
Mortgage Loan. Upon consummation of the transactions contemplated by
the Mortgage Loan Purchase Agreement, the Seller will have
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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.
(iv) The proceeds of such Mortgage Loan have been fully disbursed
(except if such Mortgage Loan is a Mortgage Loan as to which a
portion of the funds disbursed are being held in escrow or reserve
accounts) and there is no requirement for future advances thereunder
by the related mortgagee.
(v) Each related Note, Mortgage, Assignment of Leases, Rents and
Profits (if any) and other agreement executed by the Borrower in
connection with such Mortgage Loan is a legal, valid and binding
obligation of the related Borrower (subject to any non-recourse
provisions therein and any state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its
terms, except (a) that certain provisions contained in such Mortgage
Loan documents are or may be unenforceable in whole or in part under
applicable state or federal laws, but neither the application of any
such laws to any such provision nor the inclusion of any such
provisions renders any of the Mortgage Loan documents invalid as a
whole and such Mortgage Loan documents taken as a whole are
enforceable to the extent necessary and customary for the practical
realization of the rights and benefits afforded thereby and (b) as
such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditors' rights generally,
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). The
related 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.
(vi) 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 Notes, Mortgage(s) or other agreements
executed in connection therewith, and, as of the Cut-off Date, there
is no valid offset, defense, counterclaim or right to rescission
with respect to such 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.
(vii) Each related assignment of Mortgage and assignment of
Assignment of Leases, Rents and Profits 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, Rents and Profits is freely
assignable.
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(viii) Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property subject only to the exceptions set
forth in representation (v) above and the following title exceptions
(each such title exception, a "Title Exception", and collectively,
the "Title Exceptions"): (a) the lien of current real property
taxes, ground rents, water charges, sewer rents and assessments not
yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the
Borrower's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value
of the Mortgaged Property, (c) the exceptions (general and specific)
and exclusions set forth in the applicable policy described in
representation (xii) below or appearing of record, none of which,
individually or in the aggregate, materially interferes with the
current use of the Mortgaged Property or the security intended to be
provided by such Mortgage or with the Borrower's ability to pay its
obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged
Property, (d) other matters to which like properties are commonly
subject, none of which, individually or in the aggregate, materially
and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or
with the Borrower's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (e) the right of
tenants (whether under ground leases, space leases or operating
leases) at the Mortgaged Property to remain following a foreclosure
or similar proceeding (provided that such tenants are performing
under such leases) and (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan, none of which, individually
or in the aggregate, materially and adversely interferes with the
current use of the Mortgaged Property or the security intended to be
provided by such Mortgage or with the Borrower's ability to pay its
obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged
Property. Except with respect to cross-collateralized and
cross-defaulted Mortgage Loans and Mortgage Loans that are part of a
Loan Combination, there are no mortgage loans that are senior or
pari passu with respect to the related Mortgaged Property or such
Mortgage Loan.
(ix) UCC Financing Statements have been filed and/or recorded (or,
if not filed and/or recorded, have been submitted in proper form for
filing and recording) in all public places necessary at the time of
the origination of each Mortgage Loan to perfect a valid security
interest in all items of personal property reasonably necessary to
operate the Mortgaged Property owned by a Borrower and located on
the related Mortgaged Property (other than any personal property
subject to a purchase money security interest or a sale and
leaseback financing arrangement permitted under the terms of such
Mortgage Loan or any other personal property leases applicable to
such personal property), to the extent
C-3
perfection may be effected pursuant to applicable law by recording
or filing, and the Mortgages, security agreements, chattel Mortgages
or equivalent documents related to and delivered in connection with
the related Mortgage Loan establish and create a valid and
enforceable lien and priority security interest on such items of
personalty except as such enforcement may be limited by bankruptcy,
insolvency, receivership, reorganization, moratorium, redemption,
liquidation or other laws affecting the enforcement of creditor's
rights generally, or by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or
at law). Notwithstanding any of the foregoing, no representation is
made as to the perfection of any security interest in rents or other
personal property to the extent that possession or control of such
items or actions other than the filing of UCC Financing Statements
are required in order to effect such perfection.
(x) All real estate taxes and governmental assessments, or
installments thereof, which would be a lien on the Mortgaged
Property and that prior to the Cut-off Date have become delinquent
in respect of each related Mortgaged Property have been paid, or an
escrow of funds in an amount sufficient to cover such payments has
been established. For purposes of this representation and warranty,
real estate taxes and governmental assessments and installments
thereof shall not be considered delinquent until the earlier of (a)
the date on which interest and/or penalties would first be payable
thereon and (b) the date on which enforcement action is entitled to
be taken by the related taxing authority.
(xi) 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.
(xii) 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) included in 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 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
C-4
made under such policy and the Seller has not done anything, by act
or omission, and the Seller has no actual knowledge of any matter,
which would impair or diminish the coverage of such policy. The
insurer issuing such policy is either (x) a nationally recognized
title insurance company or (y) qualified to do business in the
jurisdiction in which the related Mortgaged Property is located to
the extent required; such policy contains no material exclusions
for, or affirmatively insures (except for any Mortgaged Property
located in a jurisdiction where such insurance is not available) (a)
access to a public road or (b) against any loss due to encroachments
of any material portion of the improvements thereon.
(xiii) 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) included in 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 mobile home park, such Mortgaged Property is also
covered by business interruption or rental loss insurance, in an
amount at least equal to 12 months of operations of the related
Mortgaged Property (or in the case of a Mortgaged Property without
any elevator, 6 months); and as of the Cut-off Date, to the actual
knowledge of the Seller, all insurance coverage required under each
Mortgage, which insurance covers such risks and is in such amounts
as are customarily acceptable to prudent commercial and multifamily
mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property in the jurisdiction in
which such Mortgaged Property is located, is in full force and
effect with respect to each related Mortgaged Property; and all
premiums due and payable through the Closing Date have been paid;
and no notice of termination or cancellation with respect to any
such insurance policy has been received by the Seller. Except for
certain amounts not greater than amounts which would be considered
prudent by a commercial and multifamily mortgage lending institution
with respect to a similar mortgage loan and which are set forth in
the related Mortgage, any insurance proceeds in respect of a
casualty loss are required to be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property or (ii)
to the reduction of the outstanding principal balance of the
Mortgage Loan, subject in either case to requirements with respect
to leases at the related Mortgaged Property and to other exceptions
customarily provided for by prudent commercial and multifamily
mortgage lending institutions for similar loans. The Mortgaged
Property is also covered by comprehensive general liability
insurance against claims for personal and bodily injury, death or
property damage occurring
C-5
on, in or about the related Mortgaged Property, in an amount
customarily required by prudent commercial and multifamily mortgage
lending institutions.
(xiv) The insurance policies contain a standard mortgagee clause
naming the holder of the related Mortgage, its successors and
assigns as loss payee, in the case of a property insurance policy,
and additional insured in the case of a liability insurance policy,
and provide that they are not terminable without 30 days prior
written notice to the related mortgagee (or, with respect to
non-payment, 10 days prior written notice to the related mortgagee)
or such lesser period as prescribed by applicable law. Each Mortgage
requires that the Borrower maintain insurance as described above or
permits the related mortgagee to require insurance as described
above, and permits the related mortgagee to purchase such insurance
at the Borrower's expense if Borrower fails to do so.
(xv) Other than payments due but not yet 30 days or more delinquent,
to the Seller's actual knowledge, based upon due diligence
customarily performed with the servicing of comparable mortgage
loans by prudent commercial and multifamily mortgage lending
institutions, there is no material default, breach, violation or
event of acceleration existing under the related Mortgage or the
related Note, and to the Seller's actual knowledge no event (other
than payments due but not yet delinquent) which, with the passage of
time or with notice and the expiration of any grace or cure period,
would constitute a material default, breach, violation or event of
acceleration; provided, however, that this representation and
warranty does not address or otherwise cover any default, breach,
violation or event of acceleration that specifically pertains to any
matter otherwise covered by any other representation and warranty
made by the Seller in any paragraph of this Exhibit C and the Seller
has not waived any material default, breach, violation or event of
acceleration under such Mortgage or 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 Note and other documents in the related Mortgage File no
Person or party other than the holder of such Note may declare any
event of default or accelerate the related indebtedness under either
of such Mortgage or Note.
(xvi) As of the Closing Date, each Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months), has not been,
30 days or more past due in respect of any Scheduled Payment.
(xvii) Each related Mortgage does not provide for or permit, without
the prior written consent of the holder of the Note, each related
Mortgaged Property to secure any other promissory note or obligation
except as expressly described in such Mortgage or other Mortgage
Loan document.
(xviii) Each Mortgage Loan is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and
either (a) substantially all of the proceeds of such Mortgage Loan
were used to acquire,
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improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property
(within the meaning of Treasury Regulations Sections 1.856-3(c) and
1.856-3(d)) and such interest in real property was the only security
for such Mortgage Loan as of the Testing Date (as defined below), or
(b) the fair market value of the interest in real property which
secures such Mortgage Loan was at least equal to 80% of the
principal amount of such Mortgage Loan (i) as of the Testing Date,
or (ii) as of the Closing Date. For purposes of the previous
sentence, (A) the fair market value of the referenced interest in
real property shall first be reduced by (1) the amount of any lien
on such interest in real property that is senior to such Mortgage
Loan, and (2) a proportionate amount of any lien on such interest in
real property that is on a parity with the Mortgage Loan, and (B)
the "Testing Date" shall be the date on which the referenced
Mortgage Loan was originated unless (1) such Mortgage Loan was
modified after the date of its origination in a manner that would
cause a "significant modification" of such Mortgage Loan within the
meaning of Treasury Regulations Section 1.1001-3(b), and (2) such
"significant modification" did not occur at a time when such
Mortgage Loan was in default or when default with respect to such
Mortgage Loan was reasonably foreseeable. However, if the referenced
Mortgage Loan has been subjected to a "significant modification"
after the date of its origination and at a time when such Mortgage
Loan was not in default or when default with respect to such
Mortgage Loan was not reasonably foreseeable, the Testing Date shall
be the date upon which the latest such "significant modification"
occurred.
(xix) One or more environmental site assessments, updates or
transaction screens thereof were performed by an environmental
consulting firm independent of the Seller and the Seller's
affiliates with respect to each related Mortgaged Property during
the 18 months preceding the origination of the related Mortgage
Loan, and the Seller, having made no independent inquiry other than
to review the report(s) prepared in connection with the
assessment(s), updates or transaction screens referenced herein, has
no actual knowledge and has received no notice of any material and
adverse environmental condition or circumstance affecting such
Mortgaged Property that was not disclosed in such report(s). If any
such environmental report identified any Recognized Environmental
Condition (REC), as that term is defined in the Standard Practice
for Environmental Site Assessments: Phase I Environmental Site
Assessment Process Designation: E 1527-00, as recommended by the
American Society for Testing and Materials (ASTM), with respect to
the related Mortgaged Property and the same have not been
subsequently addressed in all material respects, then either (i) an
escrow greater than 100% of the amount identified as necessary by
the environmental consulting firm to address the REC is held by the
Seller for purposes of effecting same (and the related Borrower has
covenanted in the Mortgage Loan documents to perform such work),
(ii) the related Borrower or other responsible party having
financial resources reasonably estimated to be adequate to address
the REC is required to take such actions or is liable for the
failure to take such actions, if any, with respect to such
circumstances or conditions as have been required by the applicable
governmental regulatory authority or any environmental law or
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regulation, (iii) the related Borrower has provided a secured
creditor environmental insurance policy (in which case such Mortgage
Loan is identified on Annex A to this Exhibit C), (iv) an operations
and maintenance plan has been or will be implemented or (v) such
conditions or circumstances were investigated further and based upon
such additional investigation, a qualified environmental consultant
recommended no further investigation or remediation. All
environmental assessments or updates that were in the possession of
the Seller and that relate to a Mortgaged Property insured by an
environmental insurance policy have been delivered to or disclosed
to the environmental insurance carrier issuing such policy prior to
the issuance of such policy.
(xx) Each related Mortgage and Assignment of Leases, Rents and
Profits, together with applicable state law, contains customary and
enforceable provisions for comparable mortgaged properties similarly
situated such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the Mortgaged
Property of the benefits of the security, including realization by
judicial or, if applicable, non-judicial foreclosure, subject to the
effects of bankruptcy, insolvency, reorganization, receivership,
moratorium, redemption, liquidation or similar laws affecting the
rights of creditors and the application of principles of equity.
(xxi) At the time of origination and, to the actual knowledge of
Seller as of the Cut-off Date, no Borrower is a debtor in, and no
Mortgaged Property is the subject of, any state or federal
bankruptcy or insolvency proceeding.
(xxii) Each Mortgage Loan is a whole loan (which may be included in
a Loan Combination) 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 provide for
negative amortization. The Seller holds no preferred equity interest
in the related Borrower.
(xxiii) Subject to certain exceptions, which are customarily
acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the
related Mortgaged Property, each related Mortgage or loan agreement
contains provisions for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without complying
with the requirements of the Mortgage or loan agreement, (a) the
related Mortgaged Property, or any controlling interest in the
related Borrower, is directly transferred or sold (other than by
reason of family and estate planning transfers, transfers by devise,
descent or operation of law upon the death or incapacity of a
member, general partner or shareholder of the related Borrower,
transfers of less than a controlling interest in a Borrower,
issuance of non-controlling new equity interests, transfers among
existing members, partners or shareholders in the Borrower or an
affiliate thereof, transfers among affiliated Borrowers with respect
to cross-collateralized and cross-defaulted Mortgage Loans or
multi-property Mortgage Loans or transfers of a similar nature to
the
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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 (xxv)
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.
(xxiv) Except as set forth in the related Mortgage File, the terms
of the related 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.
(xxv) 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.
(xxvi) Since origination, no material portion of the related
Mortgaged Property has been released from the lien of the related
Mortgage in any manner which materially and adversely affects the
value of the Mortgage Loan or materially interferes with the
security intended to be provided by such Mortgage, and, except with
respect to Mortgage Loans (a) which permit defeasance by means of
substituting for the Mortgaged Property (or, in the case of a
Mortgage Loan secured by multiple Mortgaged Properties, one or more
of such Mortgaged Properties) "government securities" within the
meaning of Treasury Regulation Section 1.860G-2(a)(8)(i) sufficient
to pay the Mortgage Loans (or portions thereof) in accordance with
their terms, (b) where a release of the portion of the Mortgaged
Property was contemplated at origination and such portion was not
considered material for purposes of underwriting the Mortgage Loan,
(c) where release is conditional upon the satisfaction of certain
underwriting and legal requirements and the payment of a release
price that represents adequate consideration for such Mortgaged
Property or the portion thereof that is being released, (d) which
permit the related Borrower to substitute a replacement property in
compliance with REMIC Provisions or (e) which permit the release(s)
of unimproved out-parcels or other portions of the Mortgaged
Property that will not have a material adverse affect on the
underwritten value of the security for the Mortgage Loan or that
were not allocated any value in the underwriting during the
origination of the Mortgage Loan, the terms of the related Mortgage
do not provide for release of any portion of the Mortgaged Property
from the lien of the Mortgage except in consideration of payment in
full therefor.
(xxvii) 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,
C-9
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.
(xxviii) To the Seller's actual knowledge based on surveys and/or
the title policy referred to herein obtained in connection with the
origination of each Mortgage Loan, none of the material improvements
which were included for the purposes of determining the appraised
value of the related Mortgaged Property at the time of the
origination of the Mortgage Loan lies outside of the boundaries and
building restriction lines of such property (except Mortgaged
Properties which are legal non-conforming uses), to an extent which
would have a material adverse affect on the value of the Mortgaged
Property or related Borrower's use and operation of such Mortgaged
Property (unless affirmatively covered by title insurance) and no
improvements on adjoining properties encroached upon such Mortgaged
Property to any material and adverse extent (unless affirmatively
covered by title insurance).
(xxix) With respect to at least 95% of the Seller's Mortgage Loans
(by principal balance) having a Cut-off Date Balance in excess of 1%
of the Initial Pool Balance, the related Borrower has covenanted in
its organizational documents and/or the Mortgage Loan documents to
own no significant asset other than the related Mortgaged Property
or Mortgaged Properties, as applicable, and assets incidental to its
ownership and operation of such Mortgaged Property, and to hold
itself out as being a legal entity, separate and apart from any
other Person.
(xxx) No advance of funds has been made other than pursuant to the
loan documents, directly or indirectly, by the Seller to the
Borrower and, to the Seller's actual knowledge, no funds have been
received from any Person other than the Borrower, for or on account
of payments due on the Note or the Mortgage.
(xxxi) As of the date of origination and, to the Seller's actual
knowledge, as of the Cut-off Date, there was no pending action, suit
or proceeding, or governmental investigation of which it has
received notice, against the Borrower or the related Mortgaged
Property the adverse outcome of which could reasonably be expected
to materially and adversely affect such Borrower's ability to pay
principal, interest or any other amounts due under such Mortgage
Loan or the security intended to be provided by the Mortgage Loan
documents or the current use of the Mortgaged Property.
(xxxii) 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.
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(xxxiii) Except with respect to any Mortgage Loan that is included
in a Loan Combination, the related 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.
(xxxiv) The improvements located on the Mortgaged Property are
either not located in a federally designated special flood hazard
area or the Borrower is required to maintain or the mortgagee
maintains, flood insurance with respect to such improvements and
such insurance policy is in full force and effect.
(xxxv) 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.
(xxxvi) To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage
loans by prudent commercial and multifamily mortgage lending
institutions with respect to the related geographic area and
properties comparable to the related Mortgaged Property, as of the
date of origination of the Mortgage Loan, the related Borrower was
in possession of all material licenses, permits and authorizations
then required for use of the related Mortgaged Property, and, as of
the Cut-off Date, the Seller has no actual knowledge that the
related Borrower was not in possession of such licenses, permits and
authorizations.
(xxxvii) 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.
(xxxviii) Except for any Mortgage Loan secured by a Borrower's
leasehold interest in the related Mortgaged Property, the related
Borrower (or its affiliate) has title in the fee simple interest in
each related Mortgaged Property.
(xxxix) The Mortgage Loan documents for each Mortgage Loan provide
that each Mortgage Loan is non-recourse to the related Borrower
except that the related Borrower accepts responsibility for fraud
and/or other intentional material misrepresentation. The Mortgage
Loan documents for each Mortgage Loan provide that the related
Borrower shall be liable to the lender for losses incurred due to
the misapplication or misappropriation of rents collected in advance
or received by the related Borrower after the occurrence of an event
of default and not paid to the related mortgagee or applied to the
Mortgaged Property in the
C-11
ordinary course of business, misapplication or conversion by the
Borrower of insurance proceeds or condemnation awards or breach of
the environmental covenants in the related Mortgage Loan documents.
(xl) Subject to the exceptions set forth in representation (v), the
Assignment of Leases, Rents and Profits set forth in the Mortgage or
separate from the related Mortgage and related to and delivered in
connection with each Mortgage Loan establishes and creates a valid,
subsisting and enforceable lien and security interest in the related
Borrower's interest in all leases, subleases, licenses or other
agreements pursuant to which any Person is entitled to occupy, use
or possess all or any portion of the real property.
(xli) 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).
(xlii) If such Mortgage Loan contains a provision for any defeasance
of mortgage collateral, such Mortgage Loan permits defeasance (a) no
earlier than two years after the Closing Date, and (b) only with
substitute collateral constituting "government securities" within
the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an
amount sufficient to make all scheduled payments under the Note. In
addition, if such Mortgage contains such a defeasance provision, it
provides (or otherwise contains provisions pursuant to which the
holder can require) that an opinion be provided to the effect that
such holder has a first priority perfected security interest in the
defeasance collateral. The related Mortgage Loan documents permit
the lender to charge all of its expenses associated with a
defeasance to the Borrower (including rating agencies' fees,
accounting fees and attorneys' fees), and provide that the related
Borrower must deliver (or otherwise, the Mortgage Loan documents
contain certain provisions pursuant to which the lender can require)
(i) an accountant's certification as to the adequacy of the
defeasance collateral to make payments under the related Mortgage
Loan for the remainder of its term, (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.
(xliii) 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.
C-12
(xliv) Neither the Seller nor any affiliate thereof has any
obligation to make any capital contributions to the Borrower under
the Mortgage Loan.
(xlv) 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 after the Cut-off
Date of the related Mortgage Loan).
(xlvi) With respect to each Mortgage Loan secured by a leasehold
interest (a "Ground Lease") (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:
(A) Such Ground Lease or a memorandum thereof has been or will
be duly recorded no later than 30 days after the Closing Date
and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if
consent of the lessor thereunder is required, it has been
obtained prior to the Closing Date;
(B) Upon the foreclosure of the Mortgage Loan (or acceptance
of a deed in lieu thereof), the Borrower's interest in such
ground lease is assignable to the mortgagee under the
leasehold estate and its assigns without the consent of the
lessor thereunder (or, if any such consent is required, it has
been obtained prior to the Closing Date);
(C) 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;
(D) To the actual knowledge of the Seller, at the Closing
Date, such Ground Lease is in full force and effect and other
than payments due but not yet 30 days or more delinquent, (a)
there is no material default, and (b) there is no event which,
with the passage of time or with notice and the expiration of
any grace or cure period, would constitute a material default
under such Ground Lease;
C-13
(E) 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;
(F) 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;
(G) 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;
(H) Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set
forth therein all of which can be exercised by the mortgagee
if the mortgagee acquires the lessee's rights under the Ground
Lease) that extends not less than 20 years beyond the stated
maturity;
(I) Under the terms of such Ground Lease, any estoppel or
consent letter received by the mortgagee from the lessor, and
the related Mortgage, taken together, any related insurance
proceeds or condemnation award (other than in respect of a
total or substantially total loss or taking) will be applied
either to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee or a trustee
appointed or approved by it having the right to hold and
disburse such proceeds as repair or restoration progresses, or
to the payment or defeasance of the outstanding principal
balance of the Mortgage Loan, together with any accrued
interest (except in cases where a different allocation would
not be viewed as commercially unreasonable by any commercial
mortgage lender, taking into account the relative duration of
the ground lease and the related Mortgage and the ratio of the
market value of the related Mortgaged Property to the
outstanding principal balance of such Mortgage Loan);
(J) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable
by a prudent commercial and multifamily mortgage lending
institution; and
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(K) 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.
C-15
ANNEX A TO EXHIBIT C
Mortgage Loans With Environmental Insurance Coverage
C-16
EXHIBIT D
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Representation numbers referred to below relate to the corresponding
Mortgage Loan representations and warranties set forth in Exhibit C to the
Mortgage Loan Purchase Agreement. Underlined titles are provided for reference
only.
D-1
EXHIBIT E
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of [___]
I, ______________________, a ______________________ of [___] (the
"Seller"), hereby certify as follows:
The Seller is a corporation duly organized and validly existing
under the laws of the State of [____].
Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times in
full force and effect.
To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been duly elected and qualified
officer or authorized signatory of the Seller and his or her genuine signature
is set forth opposite his or her name:
Name Office Signature
-------------------------- --------------------- -----------------------------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated [___] (the "Purchase
Agreement"), between the Seller and Deutsche Mortgage & Asset Receiving
Corporation providing for the purchase by Deutsche Mortgage & Asset Receiving
Corporation from the Seller of the Mortgage Loans, was, at the respective times
of such signing and delivery, duly authorized or appointed to execute such
documents in such capacity, and the signatures of such persons or facsimiles
thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
E-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of __________ __, 200[_].
By: ____________________________________
Name:
Title:
I, [name], [title], hereby certify that __________ is a duly elected
or appointed, as the case may be, qualified and acting __________ of the Seller
and that the signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of __________ __, 200[_].
By: ____________________________________
Name:
Title:
E-1
SCHEDULE A
Purchaser Filed Information
Sch A-1
