EX-10 16 exh10gsmlpa.htm CO-LENDER AGREEMENT, DATED AS OF JULY 30, 2018

Exhibit 10 

 

EXECUTION VERSION

 

 

GS MORTGAGE SECURITIES CORPORATION II,

PURCHASER

 

and

 

GOLDMAN SACHS MORTGAGE COMPANY,

SELLER

 

MORTGAGE LOAN PURCHASE AGREEMENT

Dated as of July 1, 2018

 

Series 2018-GS10

 

 

 

 

 

This Mortgage Loan Purchase Agreement (“Agreement”), dated as of July 1, 2018, is between GS Mortgage Securities Corporation II, a Delaware corporation, as purchaser (the “Purchaser”), and Goldman Sachs Mortgage Company, a New York limited partnership, as seller (the “Seller”).

 

Capitalized terms used in this Agreement not defined herein shall have the meanings ascribed to them in the Pooling and Servicing Agreement, dated as of July 1, 2018 (the “Pooling and Servicing Agreement”), among the Purchaser, as depositor (in such capacity, the “Depositor”), Wells Fargo Bank, National Association, as master servicer (in such capacity, the “Master Servicer”), Rialto Capital Advisors, LLC, as general special servicer (a “Special Servicer”), Trimont Real Estate Advisors, LLC, as 1000 Wilshire special servicer (a “Special Servicer”), Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), Wilmington Trust, National Association, as trustee (the “Trustee”) and Park Bridge Lender Services LLC, as operating advisor (in such capacity, the “Operating Advisor”) and asset representations reviewer (in such capacity, the “Asset Representations Reviewer”), pursuant to which the Purchaser will transfer the Mortgage Loans (as defined herein) to a trust fund and certificates and the RR Interests representing ownership interests in the Mortgage Loans will be issued by a New York common law trust (the “Trust”). In exchange for the Mortgage Loans, the Trust will issue to or at the direction of the Depositor certificates to be known as GS Mortgage Securities Trust 2018-GS10, Commercial Mortgage Pass-Through Certificates, Series 2018-GS10 (collectively, the “Certificates”) and the RR Interests will be created pursuant to the Pooling and Servicing Agreement. For purposes of this Agreement, “Mortgage Loans” refers to the mortgage loans listed on Exhibit A (and for the avoidance of doubt, the term Mortgage Loan shall include a subordinate interest in one mortgage loan, the “Trust Subordinate Companion Loan”) and “Mortgaged Properties” refers to the properties securing such Mortgage Loans.

 

The Purchaser and the Seller wish to prescribe the manner of sale of the Mortgage Loans from the Seller to the Purchaser and in consideration of the premises and the mutual agreements hereinafter set forth, agree as follows:

 

SECTION 1     Sale and Conveyance of Mortgages; Possession of Mortgage File. The Seller does hereby sell, transfer, assign, set over and convey to the Purchaser, without recourse (except as otherwise specifically set forth herein), (subject to the rights of the holders of interests in the Companion Loans) all of its right, title and interest in and to the Mortgage Loans identified on Exhibit A to this Agreement (the “Mortgage Loan Schedule”) including all interest and principal received on or with respect to the Mortgage Loans after the Cut-off Date, (excluding payments of principal, interest and other amounts due and payable on the Mortgage Loans on or before the Cut-off Date). Upon the sale of the Mortgage Loans, the ownership of each related Mortgage Note, the Seller’s interest in the related Mortgage represented by the Mortgage Note and the other contents of the related Mortgage File (subject to the rights of the holders of interests in the Companion Loans) will be vested in the Purchaser and immediately thereafter the Trustee, and the ownership of records and documents with respect to each Mortgage Loan (other than those to be held by the holders of the Companion Loans) prepared by or which come into the possession of the Seller shall (subject to the rights of the holders of interests in the Companion Loans) immediately vest in the Purchaser and immediately thereafter the Trustee. In connection with the transfer of the Mortgage Loans related to the Whole Loans

 

 

 

pursuant to this Section 1, the Seller does hereby assign to the Purchaser all of its rights, title and interest (solely in its capacity as the holder of the Mortgage Loans related to Whole Loans) in, to and under the related Co-Lender Agreements (it being understood and agreed that the Seller does not assign any right, title or interest that it or any other party may have thereunder in its capacity as any Companion Holder). The Purchaser will sell (i) the Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-AB, Class X-A, Class X-B, Class A-S, Class B and Class C Certificates (the “Public Certificates”) to the underwriters specified in the underwriting agreement, dated as of July 18, 2018 (the “Underwriting Agreement”), among the Depositor, Goldman Sachs & Co. LLC (“GS&Co.”) and Academy Securities, Inc. (“Academy” and, together with GS&Co., the “Underwriters”); (ii) the Class D, Class X-D, Class E, Class F, Class G-RR, Class H-RR and Class R Certificates (the “Private Certificates”) to GS&Co. and Academy as the initial purchasers (each in such capacity, an “Initial Purchaser” and collectively, the “Initial Purchasers”) specified in the certificate purchase agreement, dated as of July 18, 2018 (the “Certificate Purchase Agreement”), among the Depositor and the Initial Purchasers and (iii) the Class WLS-A, Class WLS-B, Class WLS-C, Class WLS-D and Class WLS-E Certificates (the “Loan-Specific Certificates”) to GS&Co. (the “Loan-Specific Initial Purchaser”) specified in the loan-specific certificate purchase agreement, dated as of July 18, 2018 (the “Loan-Specific Certificate Purchase Agreement”) among the Depositor and the Loan-Specific Initial Purchaser.

 

The sale and conveyance of the Mortgage Loans is being conducted on an arms-length basis and upon commercially reasonable terms. As consideration for the Mortgage Loans, the Purchaser shall (i) transfer the RR Interests to the Seller or at the Seller’s direction and (ii) pay, by wire transfer of immediately available funds, to the Seller or at the Seller’s direction $ 845,712,242, plus accrued interest on the Mortgage Loans from and including July 1, 2018 to but excluding the Closing Date (but subject to certain post-settlement adjustment for expenses incurred by the Underwriters and the Initial Purchasers on behalf of the Depositor and for which the Seller is specifically responsible). The Seller hereby directs the Purchaser to transfer the RR Interests directly to Goldman Sachs Bank USA.

 

The purchase and sale of the Mortgage Loans shall take place on the Closing Date.

 

SECTION 2     Books and Records; Certain Funds Received After the Cut-off Date. From and after the sale of the Mortgage Loans to the Purchaser, record title to each Mortgage (other than with respect to any Mortgage Loan that is a Non-Serviced Mortgage Loan) and each Mortgage Note shall be transferred to the Trustee subject to and in accordance with this Agreement. Any funds due after the Cut-off Date in connection with a Mortgage Loan received by the Seller shall be held in trust on behalf of the Trustee (for the benefit of the Certificateholders and the RR Interest Owners) as the owner of such Mortgage Loan and shall be transferred promptly to the Certificate Administrator. All scheduled payments of principal and interest due on or before the Cut-off Date but collected after the Cut-off Date, and all recoveries and payments of principal and interest collected on or before the Cut-off Date (only in respect of principal and interest on the Mortgage Loans due on or before the Cut-off Date and principal prepayments thereon), shall belong to, and shall be promptly remitted to, the Seller.

 

The transfer of each Mortgage Loan shall be reflected on the Seller’s balance sheets and other financial statements as the sale of such Mortgage Loan by the Seller to the

 

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Purchaser. The Seller intends to treat the transfer of each Mortgage Loan to the Purchaser as a sale for tax purposes. Following the transfer of the Mortgage Loans by the Seller to the Purchaser, the Seller shall not take any actions inconsistent with the ownership of the Mortgage Loans by the Purchaser and its assignees.

 

The transfer of each Mortgage Loan shall be reflected on the Purchaser’s balance sheets and other financial statements as the purchase of such Mortgage Loan by the Purchaser from the Seller. The Purchaser intends to treat the transfer of each Mortgage Loan from the Seller as a purchase for tax purposes. The Purchaser shall be responsible for maintaining, and shall maintain, a set of records for each Mortgage Loan which shall be clearly marked to reflect the transfer of ownership of each Mortgage Loan by the Seller to the Purchaser pursuant to this Agreement.

 

It is expressly agreed and understood that, notwithstanding the assignment of the Mortgage Loan documents, it is expressly intended that the Seller will receive the benefit of any securitization indemnification provisions in the Mortgage Loan documents.

 

SECTION 3     Delivery of Mortgage Loan Documents; Additional Costs and Expenses. (a)  The Purchaser hereby directs the Seller, and the Seller hereby agrees, such agreement effective upon the transfer of the Mortgage Loans contemplated herein, to deliver to or deposit with (or cause to be delivered to or deposited with) the Custodian (on behalf of the Trustee), with copies to be delivered to the Master Servicer (other than with respect to any Non-Serviced Mortgage Loan) and the applicable Special Servicer, respectively, on the dates set forth in Section 2.01 of the Pooling and Servicing Agreement, all documents, instruments and agreements required to be delivered by the Purchaser, or contemplated to be delivered by the Seller (whether at the direction of the Purchaser or otherwise), to the Custodian, the Master Servicer and the applicable Special Servicer, as applicable, with respect to the Mortgage Loans under Section 2.01 of the Pooling and Servicing Agreement, and meeting all the requirements of such Section 2.01 of the Pooling and Servicing Agreement; provided that the Seller shall not be required to deliver any draft documents, privileged or other communications, credit underwriting, due diligence analyses or data or internal worksheets, memoranda, communications or evaluations.

 

With respect to letters of credit (exclusive of those relating to a Non-Serviced Mortgage Loan), the Seller shall deliver to the Master Servicer and the Master Servicer shall hold the original (or copy, if such original has been submitted by the Seller to the issuing bank to effect an assignment or amendment of such letter of credit (changing the beneficiary thereof to the Trustee (in care of the Master Servicer) for the benefit of the Certificateholders, the RR Interest Owners and, if applicable, the related Serviced Companion Noteholder, that may be required in order for the Master Servicer to draw on such letter of credit on behalf of the Trustee for the benefit of the Certificateholders, the RR Interest Owners and, if applicable, the related Serviced Companion Noteholder, in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents)) and the Seller shall be deemed to have satisfied any such delivery requirements by delivering with respect to any letter(s) of credit a copy thereof to the Custodian together with an Officer’s Certificate of the Seller certifying that such document has been delivered to the Master Servicer or an Officer’s Certificate from the Master Servicer certifying that it holds the letter(s) of credit pursuant to Section 2.01(b) of the Pooling and

 

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Servicing Agreement. If a letter of credit referred to in the previous sentence is not in a form that would allow the Master Servicer to draw on such letter of credit on behalf of the Trustee for the benefit of the Certificateholders, the RR Interest Owners and, if applicable the related Serviced Companion Noteholder, in accordance with the applicable terms thereof and/or of the related Mortgage Loan documents, the Seller shall deliver the appropriate assignment or amendment documents (or copies of such assignment or amendment documents if the Seller has submitted the originals to the related issuer of such letter of credit for processing) to the Master Servicer within 90 days of the Closing Date. The Seller shall pay any costs of assignment or amendment of such letter(s) of credit required in order for the Master Servicer to draw on such letter(s) of credit on behalf of the Trustee for the benefit of the Certificateholders, the RR Interest Owners and, if applicable the related Serviced Companion Noteholder, and shall cooperate with the reasonable requests of the Master Servicer or the applicable Special Servicer, as applicable, in connection with effectuating a draw under any such letter of credit prior to the date such letter of credit is assigned or amended in order that it may be drawn by the Master Servicer on behalf of the Trustee for the benefit of the Certificateholders, the RR Interest Owners and, if applicable, the related Serviced Companion Noteholder.

 

Contemporaneously with the execution of this Agreement by the Purchaser and the Seller, the Seller shall deliver one (1) PDF and ten (10) originals of a power of attorney substantially in the form of Exhibit F hereto to each of the Master Servicer and the applicable Special Servicer, that permits such parties 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, if applicable, recordation of its Mortgage Loan documents until the assignment and recordation of all such Mortgage Loan documents has been completed.

 

(b)         In connection with any Servicing Shift Whole Loan, (1) instruments of assignment to the Trustee may be in blank and need not be recorded pursuant to the Pooling and Servicing Agreement (other than the endorsements to the Note(s) evidencing the related Servicing Shift Mortgage Loan) until the earlier of (i) the related Servicing Shift Securitization Date, in which case such instruments shall be assigned and recorded in accordance with the related Non-Serviced Pooling Agreement, (ii) 180 days following the Closing Date, and (iii) such Servicing Shift Whole Loan becoming a Specially Serviced Mortgage Loan prior to such Servicing Shift Securitization Date, in which case assignments and recordations shall be effected in accordance with Section 2.01 of the Pooling and Servicing Agreement until the occurrence, if any, of such Servicing Shift Securitization Date, (2) no letter of credit need be amended (including, without limitation, to change the beneficiary thereon) until the earlier of (i) the related Servicing Shift Securitization Date, in which case such amendment shall be in accordance with the related Non-Serviced Pooling Agreement, (ii) 180 days following the Closing Date, and (iii) such Servicing Shift Whole Loan becoming a Specially Serviced Mortgage Loan prior to such Servicing Shift Securitization Date in which case such amendment shall be effected in accordance with the terms of Section 2.01 of the Pooling and Servicing Agreement, and (3) on and following such Servicing Shift Securitization Date, the Person selling the related Servicing Shift Lead Note to the related Non-Serviced Depositor, at its own expense, shall be (a) entitled to direct in writing, which may be conclusively relied upon by the Custodian, the Custodian to deliver the originals of all the Mortgage Loan documents relating to such Servicing Shift Whole

 

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Loan in its possession (other than the original Note(s) evidencing such Servicing Shift Mortgage Loan) to the related Non-Serviced Trustee or the related Non-Serviced Custodian, (b) if the right under clause (a) is exercised, required to cause the retention by or delivery to the Custodian of photocopies of Mortgage Loan documents related to such Servicing Shift Whole Loan so delivered to such Non-Serviced Trustee or such Non-Serviced Custodian, (c) entitled to cause the completion (or, in the event of a recordation as contemplated by clause (1)(ii) of this paragraph, the preparation, execution and delivery) and recordation of instruments of assignment in the name of the related Other Trustee or related Non-Serviced Custodian, (d) if the right under clause (c) is exercised, required to deliver to the Trustee or Custodian photocopies of any instruments of assignment so completed and recorded, and (e) entitled to require the Master Servicer to transfer, and to cooperate with all reasonable requests in connection with the transfer of, the Servicing File, and any Escrow Payments, reserve funds and items specified in clauses (9), (12), (14) and (18) of the definition of “Mortgage File” in the Pooling and Servicing Agreement for such Servicing Shift Whole Loan to the related Other Servicer.

 

(c)          Except with respect to any Mortgage Loan that is a Non-Serviced Mortgage Loan, the Seller shall deliver to and deposit (or cause to be delivered to and deposited) with the Master Servicer within five (5) Business Days after the Closing Date: (i) a copy of the Mortgage File; (ii) all documents and records not otherwise required to be contained in the Mortgage File that (A) relate to the origination and/or servicing and administration of the Mortgage Loans (other than the Non-Serviced Mortgage Loan) or the related Serviced Companion Loans, (B) are reasonably necessary for the ongoing administration and/or servicing of the Mortgage Loans (including any asset summaries related to the Mortgage Loans that were delivered to the Rating Agencies in connection with the rating of the Certificates) and the Serviced Companion Loans or for evidencing or enforcing any of the rights of the holder of the Mortgage Loans and the Serviced Companion Loans or holders of interests therein and (C) are in the possession or under the control of the Seller; and (iii) all unapplied Escrow Payments and reserve funds in the possession or under control of the Seller that relate to the Mortgage Loans or any related Serviced Companion Loans, together with a statement indicating which Escrow Payments and reserve funds are allocable to each Mortgage Loan or to the Serviced Companion Loans, provided that copies of any document in the Mortgage File and any other document, record or item referred to above in this sentence that constitutes a Designated Servicing Document shall be delivered to the Master Servicer on or before the Closing Date; provided that the Seller shall not be required to deliver any draft documents, privileged or other communications, credit underwriting, due diligence analyses or data or internal worksheets, memoranda, communications or evaluations.

 

(d)         With respect to any Mortgage Loan secured by a Mortgaged Property that is subject to a franchise agreement with a related comfort letter in favor of the Seller that requires notice to or request of the related franchisor to transfer or assign any related comfort letter to the Trustee for the benefit of the Certificateholders and the RR Interest Owners or have a new comfort letter (or any such new document or acknowledgement as may be contemplated under the existing comfort letter) issued in the name of the Trustee for the benefit of the Certificateholders and the RR Interest Owners, the Seller or its designee shall, within 45 days of the Closing Date (or any shorter period if required by the applicable comfort letter), provide any such required notice or make any such required request to the related franchisor for the transfer or assignment of such comfort letter or issuance of a new comfort letter (or any such new

 

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document or acknowledgement as may be contemplated under the existing comfort letter), with a copy of such notice or request to the Custodian (who shall include such document in the related Mortgage File), the Master Servicer and the applicable Special Servicer, and the Master Servicer shall use reasonable efforts in accordance with the Servicing Standard to acquire such replacement comfort letter, if necessary (or to acquire any such new document or acknowledgement as may be contemplated under the existing comfort letter), and the Master Servicer shall, as soon as reasonably practicable following receipt thereof, deliver the original of such replacement comfort letter, new document or acknowledgement, as applicable, to the Custodian for inclusion in the Mortgage File.

 

SECTION 4     Treatment as a Security Agreement. Pursuant to Section 1 hereof, the Seller has conveyed to the Purchaser all of its right, title and interest in and to the Mortgage Loans. The parties intend that such conveyance of the Seller’s right, title and interest in and to the Mortgage Loans pursuant to this Agreement shall constitute a purchase and sale and not a loan. If such conveyance is deemed to be a pledge and not a sale, then the parties also intend and agree that the Seller shall be deemed to have granted, and in such event does hereby grant, to the Purchaser, a first priority security interest in all of its right, title and interest in, to and under the Mortgage Loans, all payments of principal or interest on such Mortgage Loans due after the Cut-off Date, all other payments made in respect of such Mortgage Loans after the Cut-off Date (and, in any event, excluding scheduled payments of principal and interest due on or before the Cut-off Date) and all proceeds thereof, and that this Agreement shall constitute a security agreement under applicable law. If such conveyance is deemed to be a pledge and not a sale, the Seller consents to the Purchaser hypothecating and transferring such security interest in favor of the Trustee and transferring the obligation secured thereby to the Trustee.

 

SECTION 5     Covenants of the Seller. The Seller covenants with the Purchaser as follows:

 

(a)          except with respect to any Mortgage Loan that is a Non-Serviced Mortgage Loan it shall cause McCoy & Orta, P.C. (“M&O”) to record and file in the appropriate public recording office for real property records or UCC Financing Statements, as appropriate (or, with respect to any assignments that the Custodian has agreed to record or file pursuant to the Pooling and Servicing Agreement, deliver to the Custodian for such purpose and cause the Custodian to record and file), each related Assignment of Mortgage and assignment of assignment of leases, rents and profits and each related UCC-3 financing statement referred to in the definition of Mortgage File from the Seller to the Trustee as and to the extent contemplated under Section 2.01(c) of the Pooling and Servicing Agreement. All out of pocket costs and expenses relating to the recordation or filing of such assignments, assignments of Mortgage and financing statements shall be paid by the Seller. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, then the Seller shall promptly prepare or cause the preparation of a substitute therefor or cure such defect or cause such defect to be cured, as the case may be, and the Seller shall record or file, or cause M&O to record or file, such substitute or corrected document or instrument or, with respect to any assignments that the Custodian has agreed to record or file pursuant to the Pooling and Servicing Agreement, deliver such substitute or corrected document or instrument to the Custodian (or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing Agreement, the then holder of such Mortgage Loan);

 

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(b)         as to each Mortgage Loan, except with respect to any Mortgage Loan that is a Non-Serviced Mortgage Loan, if the Seller cannot deliver or cause to be delivered the documents and/or instruments referred to in clauses (2), (3), (6) (if recorded) and (15) of the definition of “Mortgage File” in the Pooling and Servicing Agreement 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, as applicable, it shall forward to the Custodian a copy of the original certified by the Seller to be a true and complete copy of the original thereof submitted for recording. The Seller shall cause each assignment referred to in Section (5)(a) above that is recorded and the file copy of each UCC-3 assignment referred to in Section (5)(a) above to reflect that it should be returned by the public recording or filing office to the Custodian or its agent following recording (or, alternatively, to the Seller or its designee, in which case the Seller shall deliver or cause the delivery of the recorded/filed original to the Custodian promptly following receipt); provided that, in those instances where the public recording office retains the original assignment of Mortgage or Assignment of Assignment of Leases, the Seller shall obtain therefrom and deliver to the Custodian a certified copy of the recorded original. On a monthly basis, at the expense of the Seller, the Custodian shall forward to the Master Servicer a copy of each of the aforementioned assignments following the Custodian’s receipt thereof;

 

(c)          it shall take any action reasonably required by the Purchaser, the Certificate Administrator, the Trustee or the Master Servicer in order to assist and facilitate the transfer of the servicing of the Mortgage Loans (other than any Mortgage Loan that is a Non-Serviced Mortgage Loan) to the Master Servicer, including effectuating the transfer of any letters of credit with respect to any Mortgage Loan to the Master Servicer on behalf of the Trustee for the benefit of Certificateholders, the RR Interest Owners and/or the Companion Holder. Prior to the date that a letter of credit with respect to any Mortgage Loan is transferred to the Master Servicer, the Seller will cooperate with the reasonable requests of the Master Servicer or the applicable Special Servicer, as applicable, in connection with effectuating a draw under such letter of credit as required under the terms of the related Mortgage Loan documents;

 

(d)         the Seller shall provide the Master Servicer the initial data with respect to each Mortgage Loan for the CREFC® Financial File and the CREFC® Loan Periodic Update File that are required to be prepared by the Master Servicer pursuant to the Pooling and Servicing Agreement and the Supplemental Servicer Schedule;

 

(e)          if (during the period of time that the Underwriters are required, under applicable law, to deliver a prospectus related to the Public Certificates in connection with sales of the Public Certificates by an Underwriter or a dealer) the Seller has obtained actual knowledge of undisclosed or corrected information related to an event that occurred prior to the Closing Date, which event causes there to be an untrue statement of a material fact with respect to the Seller Information in the Prospectus dated July 20, 2018 relating to the Public Certificates, the annexes and exhibits thereto and any electronic media delivered therewith, or the Offering Circular dated July 20, 2018 relating to the Private Certificates, the annexes and exhibits thereto and any electronic media delivered therewith, or the Loan-Specific Offering Circular dated July 20, 2018 relating to the Loan-Specific Certificates, the annexes and exhibits thereto and any electronic media delivered therewith (collectively, the “Offering Documents”), or causes there to be an omission to state therein a material fact with respect to the Seller Information required to be stated therein or necessary to make the statements therein with respect to the Seller

 

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Information, in the light of the circumstances under which they were made, not misleading, then the Seller shall promptly notify the Dealers and the Depositor. If as a result of any such event the Dealers’ legal counsel determines that it is necessary to amend or supplement the Offering Documents in order to correct the untrue statement, or to make the statements therein, in the light of the circumstances when the Offering Documents are delivered to a purchaser, not misleading, or to make the Offering Documents in compliance with applicable law, the Seller shall (to the extent that such amendment or supplement solely relates to the Seller Information) at the expense of the Seller, do all things reasonably necessary to assist the Depositor to prepare and furnish to the Dealers, such amendments or supplements to the Offering Documents as may be necessary so that the Seller Information in the Offering Documents, as so amended or supplemented, will not contain an untrue statement, will not, in the light of the circumstances when the Offering Documents are delivered to a purchaser, be misleading and will comply with applicable law. (All terms under this clause (e) and not otherwise defined in this Agreement shall have the meanings set forth in the Indemnification Agreement, dated as of July 18, 2018, among the Underwriters, the Initial Purchasers, the Loan-Specific Initial Purchaser, the Seller and the Purchaser (the “Indemnification Agreement” and, together with this Agreement, the “Operative Documents”));

 

(f)         for so long as the Trust (or with respect to the Companion Loans, if such Companion Loan is deposited into another securitization, the trust fund under such other securitization) is subject to the reporting requirements of the Exchange Act, the Seller shall provide the Depositor (or with respect to the Companion Loans, if such Companion Loan (or a portion thereof) is deposited into another securitization, the depositor of such securitization) and the Certificate Administrator with any Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure and any Form 8-K Disclosure Information indicated on Exhibit BB, Exhibit CC and Exhibit DD to the Pooling and Servicing Agreement, to the extent contemplated to be provided by the Seller, within the time periods set forth in the Pooling and Servicing Agreement; provided that, in connection with providing Additional Form 10-K Disclosure and the Seller’s reporting obligations under Item 1119 of Regulation AB, upon reasonable request by the Seller, the Purchaser shall provide the Seller with a list of all parties to the Pooling and Servicing Agreement and any other Servicing Function Participant;

 

(g)          within sixty (60) days after the Closing Date, the Seller shall deliver or cause to be delivered an electronic copy of the Diligence File for each Mortgage Loan (other than the Trust Subordinate Companion Loan) to the Depositor by uploading such Diligence File (including, if applicable, any additional documents that the Seller believes should be included to enable the Asset Representations Reviewer to perform an Asset Review on such Mortgage Loan (other than the Trust Subordinate Companion Loan); provided that such documents are clearly labeled and identified) to the Intralinks Site, each such Diligence File being organized and categorized in accordance with the electronic file structure reasonably requested by the Depositor;

 

(h)          promptly upon completion or such delivery of the Diligence Files, but in no event later than sixty (60) days after the Closing Date, the Seller shall provide each of the Depositor, the Master Servicer, the Special Servicers, the Certificate Administrator, the Trustee, the Custodian, the Directing Holder, the Asset Representations Reviewer and the Operating Advisor, to the addresses provided in the notice provision of the Pooling and Servicing

 

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Agreement, with a certification by an authorized officer of the Seller, substantially in the form of Exhibit E to this Agreement, that the electronic copy of the Diligence File for each Mortgage Loan (other than the Trust Subordinate Companion Loan) uploaded to the Intralinks Site constitutes all documents required under the definition of “Diligence File” and such Diligence Files are organized and categorized in accordance with the electronic file structure reasonably requested by the Depositor;

 

(i)          upon written request of the Asset Representations Reviewer (in the event that the Asset Representations Reviewer reasonably determines that any Review Materials made available or delivered to the Asset Representations Reviewer are missing any documents required to complete any Test for a Delinquent Mortgage Loan), the Seller shall provide to the Asset Representations Reviewer promptly, but in no event later than ten (10) Business Days after receipt of such written request (which time period may be extended upon the mutual agreement of the Seller and the Asset Representations Reviewer), such documents requested by the Asset Representations Reviewer relating to each Delinquent Mortgage Loan to enable the Asset Representations Reviewer to complete any Test for a Delinquent Mortgage Loan, but only to the extent such documents are in the possession of the Seller; provided that the Seller shall not be required to provide any documents that are proprietary to the related originator or the Seller or any draft documents, privileged or internal communications, credit underwriting or due diligence analysis;

 

(j)         upon the completion of an Asset Review with respect to each Delinquent Mortgage Loan and receipt by the Seller of a written invoice from the Asset Representations Reviewer, the Seller shall pay a fee of (i) $15,000 multiplied by the number of Delinquent Mortgage Loans subject to any Asset Review (for purposes of this Section 5(j), the “Subject Loans”), plus (ii) $1,500 per Mortgaged Property relating to the Subject Loans in excess of one Mortgaged Property per Subject Loan, plus (iii) $2,000 per Mortgaged Property relating to a Subject Loan subject to a ground lease, plus (iv) $1,000 per Mortgaged Property relating to a Subject Loan subject to a franchise agreement, hotel management agreement or hotel license agreement, subject, in the case of each of clauses (i) through (iv), to adjustments on the basis of the year-end “Consumer Price Index for All Urban Consumers” as published by the U.S. Department of Labor, or other similar index if the Consumer Price Index for All Urban Consumers is no longer calculated for the year of the Closing Date and for the year of the occurrence of the Asset Review, in each case within 60 days of such written invoice by the Asset Representations Reviewer;

 

(k)         if the preliminary Asset Review Report indicates that any of the representations and warranties fails or is deemed to fail any Test, the Seller shall have 90 days from receipt of the preliminary Asset Review Report to remedy or otherwise refute the Test failure indicated in the preliminary Asset Review Report. If the Seller elects to refute the Test failure indicated in the preliminary Asset Review Report, the Seller shall provide any documents or any explanations to support (i) a conclusion that a subject representation and warranty has not failed a Test or (ii) a claim that any missing documents in the Review Materials are not required to complete a Test, in any such case to the Asset Representations Reviewer;

 

(l)          the Seller acknowledges and agrees that in the event an Enforcing Party elects a dispute resolution method pursuant to Section 2.03 of the Pooling and Servicing

 

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Agreement, the Seller shall abide by the selected dispute resolution method and otherwise comply with the terms and provisions set forth in the Pooling and Servicing Agreement (including the exhibits thereto) related to the resolution method;

 

(m)          the Seller shall indemnify and hold harmless the Purchaser against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of or based upon (i) any failure of the Seller to pay the fees described under Section 5(j) above within 90 days of written invoice by the Asset Representations Reviewer or (ii) any failure by the Seller to provide all documents required to be delivered by it pursuant to this Agreement and under the definition of “Diligence File” in the Pooling and Servicing Agreement within 60 days of the Closing Date (or such later date specified herein or in the Pooling and Servicing Agreement);

 

(n)          with respect to any Mortgage Loan that is (or may become pursuant to the related Co-Lender Agreement) part of an Non-Serviced Whole Loan, (x) in the event that the Closing Date occurs prior to the closing date of the Non-Serviced Securitization, the Seller shall provide (or cause to be provided) to the Depositor and the Trustee (1) written notice in a timely manner of (but no later than three (3) Business Days prior to) the closing of such Non-Serviced Securitization, and (2) no later than the closing date of such Non-Serviced Securitization, a copy of the Non-Serviced Pooling Agreement in an EDGAR-compatible format, and (y) in the event that the Closing Date occurs after the closing of the Non-Serviced Securitization, the Seller shall provide, or cause the Other Depositor to provide, the Depositor (and counsel thereto) with a copy of the related Non-Serviced Pooling Agreement (together with any amendments thereto) in an EDGAR-compatible format by the later of (1) two (2) Business Days prior to the Closing Date and (2) the closing date of such Non-Serviced Securitization;

 

(o)         with respect to the Companion Loans, the Seller agrees that if disclosure related to the description of a party to the Pooling and Servicing Agreement is requested by the holder of a related Companion Loan for inclusion in the disclosure materials relating to the securitization of such Companion Loan, the reasonable costs of such party related to such disclosure and any opinion(s) of counsel, certifications and/or indemnification agreement(s) shall be paid or caused to be paid by the Seller;

 

(p)         in the event that the Seller determines that a Third Party Purchaser no longer complies with one or more of the requirements of §244.7(b)(1), §244.7(b)(3), §244.7(b)(4), §244.7(b)(5) or §244.7(b)(8) of the Risk Retention Rule, then the Seller shall promptly notify, or cause to be notified, the Certificate Administrator in writing of such noncompliance, and the Certificate Administrator will be required under the Pooling and Servicing Agreement to make any such notice available to Privileged Persons via the Certificate Administrator’s Website;

 

(q)         unless the Seller has already disclosed or caused to be disclosed such information on a Form 8-K, on or prior to the date that is 2 Business Days prior to the first Distribution Date, the Seller shall deliver, or cause to be delivered, to the Certificate Administrator the disclosure required pursuant to §244.4(c)(1)(ii) of the Risk Retention Rule, and the Certificate Administrator will be required under the Pooling and Servicing Agreement to

 

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make any such disclosure available to Privileged Persons via the Certificate Administrator’s Website; and

 

(r)        The Seller will (i) act as a “sponsor” (as defined in §244.2 of the Risk Retention Rule) and (ii) cause the HRR Certificates to be retained by a “third-party purchaser” (or any “majority-owned affiliate” thereof (as defined in the Risk Retention Rule)) in accordance with §244.7(b) of the Risk Retention Rule, and (iii) retain (or cause a “majority-owned affiliate” (as defined in the Risk Retention Rule) of the Seller or an “originator” (as defined in the Risk Retention Rule) to retain) the RR Interests in accordance with the Risk Retention Rule. The Seller agrees that it shall comply and shall cause any “majority-owned affiliate” (as defined in the Risk Retention Rule) of the Seller to comply with the Risk Retention Rule.

 

SECTION 6     Representations and Warranties.

 

(a)          The Seller represents and warrants to the Purchaser as of the date hereof and as of the Closing Date that:

 

(i)          The Seller is a limited partnership, duly organized, validly existing and in good standing under the laws of the State of New York with full power and authority to own its assets and conduct its business, is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under this Agreement except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations hereunder, and the Seller has taken all necessary action to authorize the execution and delivery of, and performance under, the Operative Documents and has duly executed and delivered each Operative Document, and has the power and authority to execute, deliver and perform under each Operative Document and all the transactions contemplated hereby and thereby, including, but not limited to, the power and authority to sell, assign, transfer, set over and convey the Mortgage Loans in accordance with this Agreement;

 

(ii)          Assuming the due authorization, execution and delivery of this Agreement by the Purchaser, this Agreement will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as such enforcement may be limited by (A) bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights generally, (B) general principles of equity (regardless of whether such enforceability 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 for securities laws liabilities;

 

(iii)        The execution and delivery of each Operative Document by the Seller and the performance of its obligations hereunder and thereunder will not conflict with any provision of any law or regulation to which the Seller is subject, or conflict with, result in a breach of, or constitute a default under, any of the terms, conditions or provisions of any of the Seller’s organizational documents or any agreement or instrument to which the

 

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Seller is a party or by which it is bound, or any order or decree applicable to the Seller, or result in the creation or imposition of any lien on any of the Seller’s assets or property, in each case, which would materially and adversely affect the ability of the Seller to carry out the transactions contemplated by the Operative Documents;

 

(iv)          There is no action, suit, proceeding or investigation pending or, to the Seller’s knowledge, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Seller to carry out the transactions contemplated by each Operative Document;

 

(v)           The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that, in the Seller’s good faith and reasonable judgment, is likely to materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that, in the Seller’s good faith and reasonable judgment, is likely to materially and adversely affect its performance under any Operative Document;

 

(vi)          No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, each Operative Document or the consummation of the transactions contemplated hereby or thereby, other than those which have been obtained by the Seller;

 

(vii)         The transfer, assignment and conveyance of the Mortgage Loans by the Seller to the Purchaser is not subject to bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction; and

 

(viii)       Except for the agreed-upon procedures report obtained from the accounting firm engaged to provide procedures involving a comparison of information in loan files for the Mortgage Loans to information on a data tape relating to the Mortgage Loans (the “Accountant’s Due Diligence Report”), the Seller has not obtained (and, through and including the Closing Date, will not obtain) any “third party due diligence report” (as defined in Rule 15Ga-2 under the Exchange Act) in connection with the transactions contemplated herein and in the Offering Documents and, except for the accountants with respect to the Accountants’ Due Diligence Report, the Seller has not employed (and, through and including the Closing Date, will not employ) any third party to engage in any activity that constitutes “due diligence services” within the meaning of Rule 17g-10 under the Exchange Act in connection with the transactions contemplated herein and in the Offering Documents.  The Seller further represents and warrants that no portion of the Accountant’s Due Diligence Report contains, with respect to the information contained therein with respect to the Mortgage Loans, any names, addresses, other personal identifiers or zip codes with respect to any individuals, or any other personally identifiable or other information that would be associated with an individual, including without limitation any “nonpublic personal information” within the meaning of Title V of the Gramm-Leach-Bliley Financial Services Modernization Act of 1999. The

 

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Underwriters, Initial Purchasers and the Loan-Specific Initial Purchaser are third-party beneficiaries of the provisions set forth in this Section 6(a)(viii).

 

(b)         The Purchaser represents and warrants to the Seller as of the Closing Date that:

 

(i)          The Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, with full corporate power and authority to own its assets and conduct its business, is duly qualified as a foreign corporation in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the ability of the Purchaser to perform its obligations hereunder, and the Purchaser has taken all necessary action to authorize the execution, delivery and performance of this Agreement by it, and has duly executed and delivered this Agreement, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby;

 

(ii)         Assuming the due authorization, execution and delivery of this Agreement by the Seller, this Agreement will constitute a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

 

(iii)        The execution and delivery of this Agreement by the Purchaser and the performance of its obligations hereunder will not conflict with any provision of any law or regulation to which the Purchaser is subject, or conflict with, result in a breach of, or constitute a default under, any of the terms, conditions or provisions of any of the Purchaser’s organizational documents or any agreement or instrument to which the Purchaser is a party or by which it is bound, or any order or decree applicable to the Purchaser, or result in the creation or imposition of any lien on any of the Purchaser’s assets or property, in each case which would materially and adversely affect the ability of the Purchaser to carry out the transactions contemplated by this Agreement;

 

(iv)         There is no action, suit, proceeding or investigation pending or, to the Purchaser’s knowledge, threatened against the Purchaser in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of this Agreement or any action taken in connection with the obligations of the Purchaser contemplated herein, or which would be likely to impair materially the ability of the Purchaser to perform under the terms of this Agreement;

 

(v)          The Purchaser is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Purchaser or its properties or

 

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might have consequences that would materially and adversely affect its performance under any Operative Document;

 

(vi)         No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Purchaser of or compliance by the Purchaser with this Agreement or the consummation of the transactions contemplated by this Agreement other than those that have been obtained by the Purchaser; and

 

(vii)        The Purchaser (A) prepared one or more reports on Form ABS-15G (each, a “Form 15G”) containing the findings and conclusions of the Accountant’s Due Diligence Report and meeting the requirements of that Form 15G, Rule 15Ga-2, any other rules and regulations of the Securities and Exchange Commission and the Exchange Act; (B) provided a copy of the final draft of each such Form 15G to the Underwriters, the Initial Purchasers and the Loan-Specific Initial Purchaser at least 5 Business Days before the first sale in the offering contemplated by the Offering Documents; and (C) furnished each such Form 15G to the Securities and Exchange Commission on EDGAR at least 5 Business Days before the first sale in the offering contemplated by the Offering Documents as required by Rule 15Ga-2.

 

(c)          The Seller further makes the representations and warranties as to the Mortgage Loans other than the Trust Subordinate Companion Loan set forth in Exhibit B to this Agreement as of the Cut-off Date or such other date set forth in Exhibit B to this Agreement with respect to each Mortgage Loan other than the Trust Subordinate Companion Loan, which representations and warranties are subject to the exceptions thereto set forth in Exhibit C to this Agreement, and with respect to the Trust Subordinate Companion Loan, the representations and warranties set forth in Exhibit G to this Agreement as of the Cut-off Date or such other date set forth in Exhibit G to this Agreement.

 

(d)         Pursuant to the Pooling and Servicing Agreement, if the Depositor, the Master Servicer, the applicable Special Servicer, the Trustee, the Certificate Administrator or the Operating Advisor (solely in its capacity as operating advisor) discovers (without implying any duty of such person to make, or to attempt to make, such a discovery) or receives notice alleging (A) that any document constituting a part of a Mortgage File has not been properly executed, is missing, contains information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule, or does not appear to be regular on its face (each, a “Document Defect”), or (B) a breach of any representation or warranty of the Seller made pursuant to Section 6(c) of this Agreement with respect to any Mortgage Loan (a “Breach”), then such party is required to give prompt written notice thereof to the Seller.

 

(e)          Pursuant to the Pooling and Servicing Agreement, the Master Servicer (with respect to Non-Specially Serviced Mortgage Loans) or the applicable Special Servicer (with respect to Specially Serviced Mortgage Loans) is required to determine whether any such Document Defect or Breach with respect to any Mortgage Loan materially and adversely affects, or such Document Defect is deemed in accordance with Section 2.03 of the Pooling and Servicing Agreement to materially and adversely affect, the value of the Mortgage Loan or any

 

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related REO Property or the interests of the Trustee or the Certificateholders and the RR Interest Owners therein or causes any Mortgage Loan to fail to be a Qualified Mortgage (any such Document Defect shall constitute a “Material Document Defect” and any such Breach shall constitute a “Material Breach”; and a Material Breach and/or a Material Document Defect, as the case may be, shall constitute a “Material Defect”). The Master Servicer or the applicable Special Servicer may (but will not be obligated to) consult with the Master Servicer or the applicable Special Servicer regarding any determination of a Material Defect for a Non-Specially Serviced Mortgage Loan. If such Document Defect or Breach has been determined to be a Material Defect, then the Master Servicer or the applicable Special Servicer that made such determination will be required to give prompt written notice thereof to the Seller, the other parties to the Pooling and Servicing Agreement and (for so long as no Consultation Termination Event is continuing) the Directing Holder. Promptly upon becoming aware of any such Material Defect (including through a written notice given by any party to the Pooling and Servicing Agreement, as provided above if the Document Defect or Breach identified therein is a Material Defect), the Seller shall, not later than 90 days from the earlier of (a) the earlier of the Seller’s discovery or receipt of notice of, and receipt of a demand to take action with respect to, such Material Defect or (b) in the case of a Material Defect relating to a Mortgage Loan not being a Qualified Mortgage, any party’s discovery of such Material Defect (such 90-day period, the “Initial Cure Period”), (i) cure such Material Defect in all material respects (which cure shall include payment of any losses and Additional Trust Expenses associated therewith, including the amount of any fees and reimbursable expenses of the Asset Representations Reviewer attributable to the Asset Review of such Mortgage Loan), (ii) repurchase the affected Mortgage Loan or REO Loan (or the Trust’s interest therein with respect to any Mortgage Loan that is part of a Whole Loan) at the applicable Purchase Price by wire transfer of immediately available funds to the Collection Account or (iii) substitute a Qualified Substitute Mortgage Loan (other than with respect to the related Whole Loans, for which no substitution shall be permitted) for such affected Mortgage Loan (provided that in no event shall any such substitution occur later than the second anniversary of the Closing Date) and pay the Master Servicer, for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith; provided, that the Seller may not repurchase the Trust Subordinate Companion Loan without repurchasing the related 1000 Wilshire Mortgage Loan; provided, however, that if (i) such Material Defect is capable of being cured but not within such Initial Cure Period, (ii) such Material Defect is not related to any Mortgage Loan’s not being a Qualified Mortgage and (iii) the Seller has commenced and is diligently proceeding with the cure of such Material Defect within such Initial Cure Period, then the Seller shall have an additional 90 days (such additional 90 day period, the “Extended Cure Period”) to complete such cure, or, in the event of a failure to so cure, to complete such repurchase of the related Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as described above (it being understood and agreed that, in connection with the Seller’s receiving such Extended Cure Period, the Seller shall deliver an Officer’s Certificate to the Trustee, the applicable Special Servicer, the Operating Advisor and the Certificate Administrator setting forth the reasons such Material Defect was not cured within the Initial Cure Period and what actions the Seller is pursuing in connection with the cure of such Material Defect and stating that the Seller anticipates that such Material Defect will be cured within such Extended Cure Period); and provided, further, that, if any such Material Defect is still not cured after the Initial Cure Period and any such Extended Cure Period solely due to the failure of the Seller to have received the recorded document, then the Seller shall be entitled to continue to defer its cure, repurchase or

 

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substitution obligations in respect of such Document Defect so long as the Seller certifies to the Trustee, the applicable Special Servicer, the Operating Advisor and the Certificate Administrator every 30 days thereafter that the Document Defect is still in effect solely because of its failure to have received the recorded document and that the Seller is diligently pursuing the cure of such defect (specifying the actions being taken), except that no such deferral of cure, repurchase or substitution may continue beyond the date that is 18 months following the Closing Date. Any such repurchase or substitution of a Mortgage Loan shall be on a whole loan, servicing released basis. The Seller shall have no obligation to monitor the Mortgage Loans regarding the existence of a Breach or a Document Defect, but if the Seller discovers a Material Defect with respect to a Mortgage Loan, it will notify the Purchaser. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) after the related Due Date in the month of substitution, and Periodic Payments due with respect to each Mortgage Loan being repurchased or replaced, and received by the Master Servicer or the applicable Special Servicer on behalf of the Trust, after the related Cut-off Date through, but not including, the related date of repurchase or substitution, shall be part of the Trust Fund. Periodic Payments due with respect to each Qualified Substitute Mortgage Loan (if any) on or prior to the related Due Date in the month of substitution, and Periodic Payments due with respect to each Mortgage Loan being repurchased or replaced and received by the Master Servicer or the applicable Special Servicer on behalf of the Trust after the related date of repurchase or substitution, shall not be part of the Trust Fund and are to be remitted by the Master Servicer to the Seller effecting the related repurchase or substitution within two Business Days following receipt of properly identified and available funds constituting such Periodic Payment. From and after the date of substitution, each Qualified Substitute Mortgage Loan, if any, that has been substituted shall be deemed to constitute a “Mortgage Loan” hereunder for all purposes.

 

No delay in either the discovery of a Material Defect on the part of any party to the Pooling and Servicing Agreement or in providing notice of such Material Defect shall relieve the Mortgage Loan Seller of its obligation to repurchase the related Mortgage Loan (if it is otherwise required to do so under this Agreement) unless (i) the Mortgage Loan Seller did not otherwise discover or have knowledge of such Material Defect, (ii) such delay is the result of the failure by a party to the Pooling and Servicing Agreement to provide prompt notice as required by the terms of the Pooling and Servicing Agreement after such party has actual knowledge of such Material Defect (knowledge shall not be deemed to exist by reason of the custodian’s exception report) and such delay precludes the Mortgage Loan Seller from curing such Material Defect and (iii) provided that the Mortgage Loan Seller is afforded a cure period of 90 days from the Mortgage Loan Seller’s receipt of notice thereof, such Material Defect did not relate to a Mortgage Loan not being a Qualified Mortgage as described in this section. Notwithstanding the foregoing, if a Mortgage Loan is not secured by a Mortgaged Property that is, in whole or in part, a hotel, restaurant (operated by a Mortgagor), healthcare facility, nursing home, assisted living facility, self-storage facility, theatre or fitness center (operated by a Mortgagor), then the failure to deliver to the Custodian copies of the UCC Financing Statements with respect to such Mortgage Loan shall not be a Material Defect.

 

If (i) any Mortgage Loan is required to be repurchased or substituted for in the manner described in the first paragraph of this Section 6(e), (ii) such Mortgage Loan is a Crossed Underlying Loan, and (iii) the applicable Material Defect does not constitute a Material Defect as to any other Crossed Underlying Loan in the related Crossed Mortgage Loan Group (without

 

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regard to this paragraph), then the applicable Material Defect shall be deemed to constitute a Material Defect as to each other Crossed Underlying Loan in the related Crossed Mortgage Loan Group for purposes of this paragraph, and the Seller will be required to repurchase or substitute for all of the remaining Crossed Underlying Loans in the related Crossed Mortgage Loan Group as provided in the first paragraph of this Section 6(e) unless such other Crossed Underlying Loans in such Crossed Mortgage Loan Group satisfy the Crossed Underlying Loan Repurchase Criteria. In the event that the remaining Crossed Underlying Loans satisfy the aforementioned criteria, the Seller may elect either to repurchase or substitute for only the affected Crossed Underlying Loan as to which the related Material Defect exists or to repurchase or substitute for all of the Crossed Underlying Loans in the related Crossed Mortgage Loan Group. The Seller shall be responsible for the cost of any Appraisal required to be obtained to determine if the Crossed Underlying Loan Repurchase Criteria have been satisfied, so long as the scope and cost of such Appraisal has been approved by the Seller (such approval not to be unreasonably withheld).

 

To the extent that the Seller is required to repurchase or substitute for a Crossed Underlying Loan hereunder in the manner prescribed above while the Trustee continues to hold any other Crossed Underlying Loans in the related Crossed Mortgage Loan Group, neither the Seller nor the Purchaser shall enforce any remedies against the other’s Primary Collateral, but each is permitted to exercise remedies against the Primary Collateral securing its respective related Mortgage Loans, including with respect to the Trustee, the Primary Collateral securing the Mortgage Loans still held by the Trustee.

 

If the exercise of remedies by one party would materially impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Crossed Underlying Loans held by such party, then the Seller and the Purchaser shall forbear from exercising such remedies until the Mortgage Loan documents evidencing and securing the relevant Mortgage Loans can be modified in a manner that complies with this Agreement to remove the threat of material impairment as a result of the exercise of remedies or some other accommodation can be reached. Any reserve or other cash collateral or letters of credit securing the Crossed Underlying Loans shall be allocated between such Crossed Underlying Loans in accordance with the related Mortgage Loan documents, or otherwise on a pro rata basis based upon their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a Crossed Underlying Loan included in the Trust Fund is modified to terminate the related cross-collateralization and/or cross-default provisions, as a condition to such modification, the Seller shall furnish to the Trustee and the Certificate Administrator an Opinion of Counsel that any modification shall not cause an Adverse REMIC Event. Any expenses incurred by the Purchaser in connection with such modification or accommodation (including but not limited to recoverable attorney fees) shall be paid by the Seller.

 

Subject to the Seller’s right to cure set forth above in this Section 6(e), and further subject to Sections 2.01(b) and 2.01(c) of the Pooling and Servicing Agreement, failure of the Seller to deliver the documents referred to in clauses (1), (2), (7), (8), (18) and (19) in the definition of “Mortgage File” in the Pooling and Servicing Agreement in accordance with this Agreement and the Pooling and Servicing Agreement for any Mortgage Loan shall be deemed a Material Document Defect; provided, however, that no Document Defect (except such deemed Material Document Defect described above) shall be considered to be a Material Document

 

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Defect unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the lender’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the Mortgage Loan or for any immediate significant servicing obligation.

 

Notwithstanding the foregoing provisions of this Section 6(e), in lieu of the Seller performing its repurchase or substitution obligations with respect to any Material Defect provided in this Section 6(e), to the extent that the Seller and the Purchaser (or, following the assignment of the Mortgage Loans to the Trust, the Enforcing Servicer, on behalf of the Trust, and, if no Control Termination Event has occurred and is continuing, with the consent of the Directing Holder) are able to agree upon the Loss of Value Payment for a Material Defect, the Seller may elect, in its sole discretion, to pay such Loss of Value Payment to the Purchaser (or its assignee); provided that a Material Defect as a result of a Mortgage Loan not constituting a Qualified Mortgage may not be cured by a Loss of Value Payment. Upon its making such payment, the Seller shall be deemed to have cured such Material Defect in all respects. Provided such payment is made, this paragraph describes the sole remedy available to the Purchaser and its assignees regarding any such Material Defect, and the Seller shall not be obligated to repurchase or replace the related Mortgage Loan or otherwise cure such Material Defect.

 

With respect to any Non-Serviced Mortgage Loan, the Seller agrees that if a “material document defect” (as such term or any analogous term is defined in the related Non-Serviced Pooling Agreement) exists under the related Non-Serviced Pooling Agreement with respect to the related Non-Serviced Companion Loan included in the related Non-Serviced Securitization, and such Non-Serviced Companion Loan is repurchased by or on behalf of such Seller (or other responsible repurchasing entity) from the related Non-Serviced Securitization as a result of such “material document defect” (as such term or any analogous term is defined in such Non-Serviced Pooling Agreement), then the Seller shall repurchase such Non-Serviced Mortgage Loan; provided, however, that such repurchase obligation does not apply to any “material document defect” (as such term or any analogous term is defined in the related Non-Serviced Pooling Agreement) related solely to the promissory note for such Non-Serviced Companion Loan.

 

(f)         In connection with any repurchase or substitution of one or more Mortgage Loans pursuant to this Section 6, the Pooling and Servicing Agreement shall provide that the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the applicable Special Servicer shall each tender to the repurchasing entity, upon delivery to each of them of a receipt executed by the repurchasing entity evidencing such repurchase or substitution, all portions of the Mortgage File (including, without limitation, the Servicing File) and other documents and all escrows and reserve funds pertaining to such Mortgage Loan possessed by it, and each document that constitutes a part of the Mortgage File shall be endorsed or assigned to the extent necessary or appropriate to the repurchasing entity or its designee in the same manner, but only if the respective documents have been previously assigned or endorsed to the Trustee, and pursuant to appropriate forms of assignment, substantially similar to the manner and forms pursuant to which such documents were previously assigned to the Trustee or as otherwise reasonably requested to effect the retransfer and reconveyance of the Mortgage Loan and the security therefor to the Seller or its designee; provided that such tender by the Trustee and the

 

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Custodian shall be conditioned upon its receipt from the Master Servicer of a Request for Release and an Officer’s Certificate to the effect that the requirements for repurchase or substitution have been satisfied. In the event a Qualified Substitute Mortgage Loan is substituted for a Mortgage Loan by the Seller as contemplated by this Section 6, the Seller shall deliver to the Custodian the related Mortgage File and to the Master Servicer all Escrow Payments and reserve funds pertaining to such Qualified Substitute Mortgage Loan possessed by it and a certification to the effect that such Qualified Substitute Mortgage Loan satisfies all of the requirements of the definition of “Qualified Substitute Mortgage Loan” in the Pooling and Servicing Agreement.

 

(g)         The representations and warranties of the parties hereto shall survive the execution and delivery and any termination of this Agreement and shall inure to the benefit of the respective parties, notwithstanding any restrictive or qualified endorsement on the Mortgage Notes or Assignment of Mortgage or the examination of the Mortgage Files.

 

(h)          Each party hereto agrees to promptly notify the other party of any breach of a representation or warranty contained in Section 6(c) of this Agreement. The Seller’s obligation to cure any Material Defect, repurchase, or substitute for, any affected Mortgage Loan or pay the Loss of Value Payment or other required payment pursuant to this Section 6 shall constitute the sole remedy available to the Purchaser in connection with a breach of any of the Seller’s representations or warranties contained in Section 6(c) of this Agreement or a Document Defect with respect to any Mortgage Loan.

 

(i)          The Seller shall promptly notify the Depositor if (i) the Seller receives a Repurchase Communication of a 15Ga-1 Repurchase Request (other than from the Depositor), (ii) the Seller repurchases or replaces a Mortgage Loan, (iii) the Seller receives a Repurchase Communication of a Repurchase Request Withdrawal (other than from the Depositor) or (iv) the Seller rejects or disputes any 15Ga-1 Repurchase Request. Each such notice shall be given no later than the tenth (10th) Business Day after (A) with respect to clauses (i) and (iii) of the preceding sentence, receipt of a Repurchase Communication of a 15Ga-1 Repurchase Request or a Repurchase Request Withdrawal, as applicable, and (B) with respect to clauses (ii) and (iv) of the preceding sentence, the occurrence of the event giving rise to the requirement for such notice, and shall include (1) the identity of the related Mortgage Loan, (2) the date (x) such Repurchase Communication of such 15Ga-1 Repurchase Request or Repurchase Request Withdrawal was received, (y) the related Mortgage Loan was repurchased or replaced or (z) the 15Ga-1 Repurchase Request was rejected or disputed, as applicable, and (3) if known, the basis for (x) the 15Ga-1 Repurchase Request (as asserted in the 15Ga-1 Repurchase Request) or (y) any rejection or dispute of a 15Ga-1 Repurchase Request, as applicable.

 

The Seller shall provide to the Depositor and the Certificate Administrator the Seller’s “Central Index Key” number assigned by the Securities and Exchange Commission and a true, correct and complete copy of the relevant portions of any Form ABS-15G that the Seller is required to file with the Securities and Exchange Commission pursuant to Rule 15Ga-1 under the Exchange Act with respect to the Mortgage Loans on or before the date that is five (5) Business Days before the date such Form ABS-15G is required to be filed with the Securities and Exchange Commission.

 

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In addition, the Seller shall provide the Depositor, upon request, such other information in its possession as would permit the Depositor to comply with its obligations under Rule 15Ga-1 under the Exchange Act to disclose fulfilled and unfulfilled repurchase requests. Any such information requested shall be provided as promptly as practicable after such request is made.

 

The Seller agrees that no 15Ga-1 Notice Provider will be required to provide information in a 15Ga-1 Notice that is protected by the attorney-client privilege or attorney work product doctrines. In addition, the Seller hereby acknowledges that (i) any 15Ga-1 Notice provided pursuant to Section 2.03(a) of the Pooling and Servicing Agreement is so provided only to assist the Seller, the Depositor and their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii)(A) no action taken by, or inaction of, a 15Ga-1 Notice Provider and (B) no information provided pursuant to Section 2.03(a) of the Pooling and Servicing Agreement by a 15Ga-1 Notice Provider in a 15Ga-1 Notice shall be deemed to constitute a waiver or defense to the exercise of any legal right the 15Ga-1 Notice Provider may have with respect to this Agreement, including with respect to any 15Ga-1 Repurchase Request that is the subject of a 15Ga-1 Notice.

 

Each party hereto agrees that the receipt of a 15Ga-1 Notice or the delivery of any notice required to be delivered pursuant to this Section 6(i) shall not, in and of itself, constitute delivery of notice of, receipt of notice of, or knowledge of the Seller of, any Material Defect.

 

Each party hereto agrees and acknowledges that, as of the date of this Agreement, the “Central Index Key” number of the Trust is 0001742373.

 

Repurchase Communication” means, for purposes of this Section 6(i) only, any communication, whether oral or written, which need not be in any specific form.

 

SECTION 7     Review of Mortgage File. The Purchaser shall require the Certificate Administrator pursuant to the Pooling and Servicing Agreement to review the Mortgage Files pursuant to Section 2.02 of the Pooling and Servicing Agreement and if it finds any document or documents not to have been properly executed, or to be missing or to be defective on its face in any material respect, to notify the Purchaser, which shall promptly notify the Seller.

 

SECTION 8     Conditions to Closing. The obligation of the Seller to sell the Mortgage Loans shall be subject to the Seller having received the consideration for the Mortgage Loans as contemplated by Section 1 of this Agreement. The obligations of the Purchaser to purchase the Mortgage Loans shall be subject to the satisfaction, on or prior to the Closing Date, of the following conditions:

 

(a)          Each of the obligations of the Seller required to be performed by it at or prior to the Closing Date pursuant to the terms of this Agreement shall have been duly performed and complied with and all of the representations and warranties of the Seller under this Agreement shall, subject to any applicable exceptions set forth on Exhibit C to this Agreement, be true and correct in all material respects as of the Closing Date or as of such other date as of

 

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which such representation is made under the terms of Exhibit B to this Agreement, and no event shall have occurred as of the Closing Date which would constitute a default on the part of the Seller under this Agreement, and the Purchaser shall have received a certificate to the foregoing effect signed by an authorized officer of the Seller substantially in the form of Exhibit D to this Agreement.

 

(b)         The Pooling and Servicing Agreement (to the extent it affects the obligations of the Seller hereunder), in such form as is agreed upon and acceptable to the Purchaser, the Seller, the Underwriters, the Initial Purchasers, the Loan-Specific Initial Purchaser and their respective counsel in their reasonable discretion, shall be duly executed and delivered by all signatories as required pursuant to the terms thereof.

 

(c)         The Purchaser shall have received the following additional closing documents:

 

(i)          copies of the Seller’s Articles of Association, charter, by-laws or other organizational documents and all amendments, revisions, restatements and supplements thereof, certified as of a recent date by the Secretary of the Seller;

 

(ii)         a certificate as of a recent date of the Secretary of State of the State of New York to the effect that the Seller is duly organized, existing and in good standing in the State of New York;

 

(iii)        an officer’s certificate of the Seller in form reasonably acceptable to the Underwriters, the Initial Purchasers, the Loan-Specific Initial Purchaser and each Rating Agency;

 

(iv)       an opinion of counsel of the Seller, subject to customary exceptions and carve-outs, in form reasonably acceptable to the Underwriters, the Initial Purchasers, the Loan-Specific Initial Purchaser and each Rating Agency; and

 

(v)        a letter from counsel of the Seller substantially to the effect that (a) nothing has come to such counsel’s attention that would lead such counsel to believe that the agreed upon sections of the Preliminary Prospectus, the Prospectus, the Preliminary Offering Circular, the Final Offering Circular, the Preliminary Loan-Specific Offering Circular or the Final Loan-Specific Offering Circular (each as defined in the Indemnification Agreement), as of the date thereof or as of the Closing Date (or, in the case of the Preliminary Prospectus, the Preliminary Offering Circular or the Preliminary Loan-Specific Offering Circular, solely as of the time of sale) contained or contain, as applicable, with respect to the Seller or the Mortgage Loans, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein relating to the Seller or the Mortgage Loans, in the light of the circumstances under which they were made, not misleading and (b) the Seller Information (as defined in the Indemnification Agreement) in the Prospectus appears to be appropriately responsive in all material respects to the applicable requirements of Regulation AB.

 

(d)        The Public Certificates shall have been concurrently issued and sold pursuant to the terms of the Underwriting Agreement. The Private Certificates shall have been

 

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concurrently issued and sold pursuant to the terms of the Certificate Purchase Agreement. The Loan-Specific Certificates shall have been concurrently issued and sold pursuant to the terms of the Loan-Specific Certificate Purchase Agreement.

 

(e)        The Seller shall have executed and delivered concurrently herewith the Indemnification Agreement.

 

(f)         The Seller shall furnish the Purchaser, the Underwriters, the Initial Purchasers and the Loan-Specific Initial Purchaser with such other certificates of its officers or others and such other documents and opinions to evidence fulfillment of the conditions set forth in this Agreement as the Purchaser and its counsel may reasonably request.

 

SECTION 9     Closing. The closing for the purchase and sale of the Mortgage Loans shall take place at the office of Cadwalader, Wickersham & Taft LLP, New York, New York, at 10:00 a.m., on the Closing Date or such other place and time as the parties shall agree.

 

SECTION 10     Expenses. The Seller will pay its pro rata share (the Seller’s pro rata portion to be determined according to the percentage that the aggregate principal balance as of the Cut-off Date of all the Mortgage Loans represents as to the aggregate principal balance as of the Cut-off Date of all the mortgage loans to be included in the Trust) of all costs and expenses of the Purchaser in connection with the transactions contemplated herein, including, but not limited to: (i) the costs and expenses of the Purchaser in connection with the purchase of the Mortgage Loans; (ii) the costs and expenses of reproducing and delivering the Pooling and Servicing Agreement and this Agreement and printing (or otherwise reproducing) and delivering the Certificates; (iii) the reasonable and documented fees, costs and expenses of the Trustee, the Certificate Administrator and their respective counsel; (iv) the fees and disbursements of 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 Certificates included in the Preliminary Prospectus, the Prospectus, the Preliminary Offering Circular, the Final Offering Circular, the Preliminary Loan-Specific Offering Circular, the Final Loan-Specific Offering Circular and any related disclosure for the initial Form 8-K, including the cost of obtaining any “comfort letters” with respect to such items; (v) the costs and expenses in connection with the qualification or exemption of the Certificates under state securities or blue sky laws, including filing fees and reasonable fees and disbursements of counsel in connection therewith; (vi) the costs and expenses in connection with any determination of the eligibility of the Certificates for investment by institutional investors in any jurisdiction and the preparation of any legal investment survey, including reasonable fees and disbursements of counsel in connection therewith; (vii) the costs and expenses in connection with printing (or otherwise reproducing) and delivering the Registration Statement, Preliminary Prospectus, Prospectus, Preliminary Offering Circular, Final Offering Circular, the Preliminary Loan-Specific Offering Circular and the Final Loan-Specific Offering Circular and the reproducing and delivery of this Agreement and the furnishing to the Underwriters of such copies of the Registration Statement, Preliminary Prospectus, Prospectus, Preliminary Offering Circular, Final Offering Circular, the Preliminary Loan-Specific Offering Circular, the Final Loan-Specific Offering Circular and this Agreement as the Underwriters may reasonably request; (viii) the fees of the rating agency or agencies requested to rate the Certificates; (ix) the reasonable fees and expenses of Cadwalader, Wickersham & Taft LLP, as

 

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counsel to the Purchaser; and (x) the reasonable fees and expenses of Sidley Austin LLP, as counsel to the Underwriters, the Initial Purchasers and the Loan-Specific Initial Purchaser.

 

If the Seller elects to exercise its rights under Section 11.15 of the Pooling and Servicing Agreement, then the Seller shall pay the reasonable costs and expenses (if any) of the Depositor, Master Servicer, Special Servicers and Trustee resulting from such parties’ obligations to cooperate with the Seller under Section 11.15 of the Pooling and Servicing Agreement.

 

SECTION 11     Severability of Provisions. If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement. Furthermore, the parties shall in good faith endeavor to replace any provision held to be invalid or unenforceable with a valid and enforceable provision which most closely resembles, and which has the same economic effect as, the provision held to be invalid or unenforceable.

 

SECTION 12     Governing Law. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.

 

SECTION 13     Waiver of Jury Trial. THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

SECTION 14     Submission to Jurisdiction. EACH OF THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER AND AGREES THAT

 

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NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY MANNER PERMITTED BY LAW.

 

SECTION 15     No Third-Party Beneficiaries. The parties do not intend the benefits of this Agreement to inure to any third party except as expressly set forth in Section 6 and Section 16.

 

SECTION 16     Assignment. (a)  The Seller hereby acknowledges that the Purchaser has, concurrently with the execution hereof, executed and delivered the Pooling and Servicing Agreement and that, in connection therewith, it has assigned its rights hereunder to the Trustee for the benefit of the Certificateholders and the RR Interest Owners. The Seller hereby acknowledges its obligations pursuant to Sections 2.01, 2.02 and 2.03 of the Pooling and Servicing Agreement. This Agreement shall bind and inure to the benefit of and be enforceable by the Seller, the Purchaser and their permitted successors and assigns. Any Person into which the Seller may be merged or consolidated, or any Person resulting from any merger, conversion or consolidation to which the Seller may become 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 without any further act. The warranties and representations and the agreements made by the Seller herein shall survive delivery of the Mortgage Loans to the Trustee until the termination of the Pooling and Servicing Agreement, but shall not be further assigned by the Trustee to any Person.

 

(b)         The Asset Representations Reviewer shall be an express third party beneficiary of Sections 5(g), 5(h), 5(i) and 5(j) of this Agreement.

 

SECTION 17     Notices. All communications hereunder shall be in writing and effective only upon receipt and (i) if sent to the Purchaser, will be mailed, hand delivered, couriered or sent by electronic transmission to it at 200 West Street, New York, New York 10282, to the attention of Leah Nivison, email: leah.nivison@gs.com and gs-refgsecuritization@gs.com, with a copy to: Joe Osborne, email: joe.osborne@gs.com and gs-refgsecuritization@gs.com, (ii) if sent to the Seller, will be mailed, hand delivered, couriered or sent by facsimile transmission or electronic mail and confirmed to it at Goldman Sachs Mortgage Company, 200 West Street, New York, New York 10282, to the attention of Leah Nivison, email: leah.nivison@gs.com and gs-refgsecuritization@gs.com, with a copy to: Joe Osborne, email: joe.osborne@gs.com and gs-refgsecuritization@gs.com, and (iii) in the case of any of the preceding parties, such other address as may hereafter be furnished to the other party in writing by such parties.

 

SECTION 18     Amendment. This Agreement may be amended only by a written instrument which specifically refers to this Agreement and is executed by the Purchaser and the Seller. This Agreement shall not be deemed to be amended orally or by virtue of any continuing custom or practice. No amendment to the Pooling and Servicing Agreement which relates to defined terms contained therein or to any obligations or rights of the Seller whatsoever shall be effective against the Seller unless the Seller shall have agreed to such amendment in writing.

 

SECTION 19     Counterparts. This Agreement may be executed in any number of counterparts, and by the parties hereto in separate counterparts, each of which when executed

 

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and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement in Portable Document Format (PDF) or by facsimile transmission shall be as effective as delivery of a manually executed original counterpart of this Agreement.

 

SECTION 20    Exercise of Rights. No failure or delay on the part of any party to exercise any right, power or privilege under this Agreement and no course of dealing between the Seller and the Purchaser shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as set forth in Section 6(h) of this Agreement, the rights and remedies herein expressly provided are cumulative and not exclusive of any rights or remedies which any party would otherwise have pursuant to law or equity. No notice to or demand on any party in any case shall entitle such party to any other or further notice or demand in similar or other circumstances, or constitute a waiver of the right of either party to any other or further action in any circumstances without notice or demand.

 

SECTION 21     No Partnership. Nothing herein contained shall be deemed or construed to create a partnership or joint venture between the parties hereto. Nothing herein contained shall be deemed or construed as creating an agency relationship between the Purchaser and the Seller and neither party shall take any action which could reasonably lead a third party to assume that it has the authority to bind the other party or make commitments on such party’s behalf.

 

SECTION 22     Miscellaneous. This Agreement supersedes all prior agreements and understandings relating to the subject matter hereof. Neither this Agreement nor any term hereof may be waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the waiver, discharge or termination is sought.

 

SECTION 23     Further Assurances. The Seller and Purchaser each agree to execute and deliver such instruments and take such further actions as any party hereto may, from time to time, reasonably request in order to effectuate the purposes and carry out the terms of this Agreement. 

 

* * * * * *

 

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IN WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the day and year first above written.

 

  GS MORTGAGE SECURITIES CORPORATION II, a Delaware corporation
     
  By: /s/ Leah Nivison
    Name:  Leah Nivison
    Title:    Chief Executive Officer

 

  GOLDMAN SACHS MORTGAGE COMPANY, a New York limited partnership
     
  By: /s/ Leah Nivison
    Authorized Representative

 

 

GSMS 2018-GS10:  GSMC MORTGAGE LOAN PURCHASE AGREEMENT

 

 

  

EXHIBIT A

MORTGAGE LOAN SCHEDULE

 

A-1

GS10

 

Control Number Footnotes Loan Number Property Name Borrower Name Address City State County Zip Code Mortgage Loan Rate (%) Net Mortgage Loan Rate (%) Original Balance ($) Cut-Off Date Balance ($)
1 3, 4 22905340 GSK North American HQ KIM Five Crescent Drive LLC 5 Crescent Drive and 4411 South Broad Street Philadelphia Pennsylvania Philadelphia 19112 4.1100% 4.0932% $75,150,000 $75,150,000
2 5 22352278 1000 Wilshire CRE 1000 Wilshire, LLC 1000 Wilshire Boulevard Los Angeles California Los Angeles 90017 3.37691570881226% 3.36010570881226% $65,250,000 $65,250,000
3   22912369 Aliso Creek Apartments Aliso Creek Apartment Partners, LLC 24152 Hollyoak Aliso Viejo California Orange 92656 3.51928174603175% 3.48497174603175% $63,000,000 $63,000,000
4   22985101 Commonwealth Centre Commonwealth Owner LLC 14370 & 14360 Newbrook Drive Chantilly Virginia Fairfax 20151 3.9860% 3.9692% $49,000,000 $49,000,000
5   23220079 MOA Hotel Leased Fee Portfolio North Pad Hotel, LLC and South Pad Hotel, LLC           5.1275% 5.0932% $43,336,000 $43,336,000
5.01   23220079 Radisson Blu at Mall of America - Ground Lease   2100 Killebrew Drive Bloomington Minnesota Hennepin 55425        
5.02   23220079 JW Marriott at Mall of America - Ground Lease   2141 Lindau Lane Bloomington Minnesota Hennepin 55425        
6 4, 6 23313835 FXI Portfolio NM FX, L.L.C. and NM FX Mexico, S. de R.L. de C.V.           4.9405% 4.9237% $43,000,000 $43,000,000
6.01   23313835 FXI Portland OR   3900 Northeast 158th Avenue Portland Oregon Multnomah 97230        
6.02   23313835 FXI Auburn IN   2211 Wayne Street Auburn Indiana DeKalb 46706        
6.03   23313835 FXI Santa Teresa NM   2500 Airport Road Santa Teresa New Mexico Dona Ana 88008        
6.04   23313835 FXI Verona MS   154 Lipford Road Verona Mississippi Lee 38879        
6.05   23313835 FXI Corry PA   466 South Shady Avenue Corry Pennsylvania Erie 16407        
6.06   23313835 FXI Fort Wayne IN   3005 Commercial Road Fort Wayne Indiana Allen 46809        
6.07   23313835 FXI Cuautitlan MX   Canal No. 4 Cuautitlan Izcalli Mexico NAP NAP        
7 4 22575939 U.S. Industrial Portfolio SC USIP Property Company, LLC           4.5240% 4.4972% $41,800,000 $41,800,000
7.01   22575939 DialogDirect   13700 Oakland Avenue and 350 Victor Street Highland Park Michigan Wayne 48203        
7.02   22575939 JIT Packaging   1717 Gifford Road Elgin Illinois Cook 60120        
7.03   22575939 Markel   435 School Lane Plymouth Meeting Pennsylvania Montgomery 19462        
7.04   22575939 Dedicated Logistics   8201 54th Avenue North New Hope Minnesota Hennepin 55428        
7.05   22575939 Wilbert   4221 Otter Lake Road White Bear Township Minnesota Ramsey 55110        
7.06   22575939 Matandy Steel   999 East Avenue and 1140 & 1200 Central Avenue Hamilton Ohio Butler 45011        
7.07   22575939 Landmark Plastics   1331 Kelly Avenue Akron Ohio Summit 44306        
7.08   22575939 Rohrer Corporation (OH)   717 Seville Road Wadsworth Ohio Medina 44281        
7.09   22575939 Rohrer Corporation (IL)   13701 George Bush Court Huntley Illinois McHenry 60142        
7.10   22575939 Rohrer Corporation (GA)   1800 Enterprise Buford Georgia Gwinnett 30518        
7.11   22575939 AAP Metals   811 Regal Row Dallas Texas Dallas 75247        
8 4, 6 23344631 Quality RV Resorts QRV Allstar, LLC, QRV Mont Belvieu, LLC, QRV Brazoria, LLC, QRV Fallbrook, LLC, QRV Greenlake, LLC, QRV Hwy 6, LLC, QRV Lakeview, LLC and QRV Southlake, LLC           4.8475% 4.8307% $35,000,000 $35,000,000
8.01   23344631 Quality RV Resorts Lakeview   11991 Main Street Houston Texas Harris 77035        
8.02   23344631 Quality RV Resorts Brazoria   109 Stephen F. Austin Trail Brazoria Texas Brazoria 77422        
8.03   23344631 Quality RV Resorts Highway Six   14350 Schiller Road Houston Texas Harris 77082        
8.04   23344631 Quality RV Resorts Mont Belvieu   6103 South FM 565 Road Baytown Texas Chambers 77523        
8.05   23344631 Quality RV Resorts Greenlake   10842 Green Lake Street San Antonio Texas Bexar 78223        
8.06   23344631 Quality RV Resorts Fallbrook   3102 Fallbrook Drive Houston Texas Harris 77038        
8.07   23344631 Quality RV Resorts Southlake   13701 Hycohen Road Houston Texas Harris 77047        
8.08   23344631 Quality RV Resorts Allstar   10650 Southwest Plaza Court Houston Texas Harris 77074        
9   22985103 Thorncreek Crossing GKT Thorncreek Plaza, L.L.C. 901-1301 East 120th Avenue Thornton Colorado Adams 80233 4.6235% 4.6067% $33,750,000 $33,750,000
10   23024774 SanTan Village Marketplace SanTan MP LP 2697-2817 South Market Street Gilbert Arizona Maricopa 85295 4.2820% 4.2652% $33,475,000 $33,475,000
11 4 21769944 Marina Heights State Farm Corporate Properties Tempe SPE, L.L.C. 300-600 East Rio Salado Parkway Tempe Arizona Maricopa 85281 3.5595% 3.5439% $27,500,000 $27,500,000
12   23006974 Dolwick Business Center Dolwick Business Center, LLC 1350-1360 Dolwick Drive Erlanger Kentucky Kenton 41018 4.7440% 4.7272% $26,000,000 $25,937,815
13   23176250 5500 Hellyer Avenue Willyo Properties LP 5500-5550 Hellyer Avenue San Jose California Santa Clara 95138 4.7110% 4.6942% $25,590,000 $25,557,573
14   23063792 Spring Hill Logistics Center Spring Hill Beechcroft Road I LLC and Spring Hill Beechcroft Road II LLC 701-715 Beechcroft Road Spring Hill Tennessee Maury 37174 4.6085% 4.5617% $25,000,000 $25,000,000
15 7 23043806 3300 East 1st Avenue GRE 3300 East 1st Avenue Owner, LLC 3300 East 1st Avenue Denver Colorado Denver 80206 4.9000% 4.8832% $24,400,000 $24,400,000
16 8 23314516 The Commons The Commons Reno, LLC 6625-6675, 6795 South Virginia Street Reno Nevada Washoe 89511 4.5550% 4.5082% $21,500,000 $21,500,000
17   23347272 Market at Crenshaw Crenshaw Entrepreneurs, LLC 4531-4589 East Sam Houston Parkway South Pasadena Texas Harris 77505 5.0790% 5.0622% $17,250,000 $17,250,000
18 4, 6 23351455 Davenport Commons THF Davenport North Development, L.L.C. 5511-5811 Elmore Avenue Davenport Iowa Scott 52807 5.0930% 5.0762% $15,000,000 $15,000,000
19 9 2321945 Athens Townhomes PG Athens Apartments II, LLC 1401-1837 Athens Drive and 1345-1376 Nicholas Drive Loveland Ohio Clermont 45140 4.8610% 4.8442% $14,700,000 $14,700,000
20   22985530 Naples Plaza Milan SoCal III, LLC and Pelican Investments Naples LLC 1058-1090 3rd Avenue Chula Vista California San Diego 91911 4.8840% 4.8272% $12,700,000 $12,700,000
21 10 23005456 Center at Pearland II Pearland Dunhill 2 LLC 2550 Pearland Parkway Pearland Texas Brazoria 77581 4.4695% 4.4527% $12,400,000 $12,400,000
22 11 22999703 Holiday Inn Express Toledo West Westgate Lodging LLC  3440 Secor Road Toledo Ohio Lucas 43606 5.2425% 5.2057% $11,620,000 $11,594,947
23   22778586 Arbor Plaza GKT Arbor Plaza, L.L.C. 4600-4637 South Mason Street Fort Collins Colorado Larimer 80525 4.9690% 4.9522% $10,850,000 $10,850,000
24 4 22558058 Two Democracy Second Rock Spring Park Limited Partnership 6707 Democracy Boulevard Bethesda Maryland Montgomery 20817 5.3915% 5.3747% $10,000,000 $9,958,034
25 12 23219508 Capital Complex Rainier Capital Complex Acquisitions, LLC 1024 and 1025 Capital Center Drive Frankfort Kentucky Franklin 40601 5.2970% 5.2402% $9,687,000 $9,687,000
26   23042533 Cabela’s Farmington SN Farmington LLC 391 North Cabela’s Drive Farmington Utah Davis 84025 4.7865% 4.7697% $9,200,000 $9,200,000
27 13 23063870 Courtyard Bentonville NWA Hotel Opportunity, LLC 1001 Mcclain Road Bentonville Arkansas Benton 72712 5.0540% 4.9972% $9,200,000 $9,200,000
28   23313687 20151 Nordhoff Street F&KAC, LLC 20151 Nordhoff Street Chatsworth California Los Angeles 91311 4.7065% 4.6897% $9,000,000 $9,000,000
29   23036062 Shallowford Exchange Shallowford LLC 2558-2566 Shallowford Road Northeast Atlanta Georgia DeKalb 30345 5.1150% 5.0982% $9,000,000 $8,989,414
30   23060255 Roundhouse Campus 125 Presumpscot SPE LLC and Presumpscot-Portland Investors LLC 125 Presumpscot Street Portland Maine Cumberland 04103 4.7485% 4.7317% $7,524,000 $7,524,000
31   23005457 Shops at Spring Village WSS Retail-Shops at Spring Village, LLC 2203 Spring Stuebner Road Spring Texas Harris 77389 5.0180% 5.0012% $7,150,000 $7,150,000
32   23219183 Moses Lake Town Center RI - Moses Lake, LLC and RI - Moses Lake II, LLC 911 & 933 Stratford Road Moses Lake Washington Grant 98837 4.6770% 4.6602% $6,700,000 $6,700,000
33   23217813 Dallas Commons Dallas Commons, LLC 457 Nathan Dean Parkway Dallas Georgia Paulding 30132 4.8455% 4.7612% $6,150,000 $6,150,000

 

 

 

GS10

 

Control Number Footnotes Loan Number Property Name Original Term To Maturity / ARD (Mos.) Remaining Term To Maturity / ARD (Mos.) Maturity Date / ARD Original Amortization Term (Mos.) Remaining Amortization Term (Mos.) Monthly Debt Service ($) (1) Servicing Fee Rate (%) Subservicing Fee Rate (%) Interest Accrual Method Ownership Interest
1 3, 4 22905340 GSK North American HQ 60 59 6/6/2023 0 0 $260,963.59 0.0050% 0.000000% Actual/360 Fee Simple
2 5 22352278 1000 Wilshire 84 80 3/6/2025 0 0 $186,170.07 0.0050% 0.000000% Actual/360 Fee Simple
3   22912369 Aliso Creek Apartments 120 117 4/6/2028 0 0 $187,328.43 0.0025% 0.020000% Actual/360 Fee Simple
4   22985101 Commonwealth Centre 120 118 5/6/2028 0 0 $165,022.25 0.0050% 0.000000% Actual/360 Fee Simple
5   23220079 MOA Hotel Leased Fee Portfolio 120 120 7/6/2028 0 0 $187,742.94 0.0025% 0.020000% Actual/360  
5.01   23220079 Radisson Blu at Mall of America - Ground Lease                   Fee Simple
5.02   23220079 JW Marriott at Mall of America - Ground Lease                   Subleased Air Rights
6 4, 6 23313835 FXI Portfolio 120 120 7/6/2028 360 360 $229,272.18 0.0050% 0.000000% Actual/360  
6.01   23313835 FXI Portland OR                   Fee Simple
6.02   23313835 FXI Auburn IN                   Fee Simple
6.03   23313835 FXI Santa Teresa NM                   Fee Simple
6.04   23313835 FXI Verona MS                   Fee Simple
6.05   23313835 FXI Corry PA                   Fee Simple
6.06   23313835 FXI Fort Wayne IN                   Fee Simple
6.07   23313835 FXI Cuautitlan MX                   Fee Simple
7 4 22575939 U.S. Industrial Portfolio 120 116 3/6/2028 0 0 $159,774.69 0.0025% 0.012500% Actual/360  
7.01   22575939 DialogDirect                   Fee Simple
7.02   22575939 JIT Packaging                   Fee Simple
7.03   22575939 Markel                   Fee Simple
7.04   22575939 Dedicated Logistics                   Fee Simple
7.05   22575939 Wilbert                   Fee Simple
7.06   22575939 Matandy Steel                   Fee Simple
7.07   22575939 Landmark Plastics                   Fee Simple
7.08   22575939 Rohrer Corporation (OH)                   Fee Simple
7.09   22575939 Rohrer Corporation (IL)                   Fee Simple
7.10   22575939 Rohrer Corporation (GA)                   Fee Simple
7.11   22575939 AAP Metals                   Fee Simple
8 4, 6 23344631 Quality RV Resorts 120 120 7/6/2028 360 360 $184,639.11 0.0050% 0.000000% Actual/360  
8.01   23344631 Quality RV Resorts Lakeview                   Fee Simple
8.02   23344631 Quality RV Resorts Brazoria                   Fee Simple
8.03   23344631 Quality RV Resorts Highway Six                   Fee Simple
8.04   23344631 Quality RV Resorts Mont Belvieu                   Fee Simple
8.05   23344631 Quality RV Resorts Greenlake                   Fee Simple
8.06   23344631 Quality RV Resorts Fallbrook                   Fee Simple
8.07   23344631 Quality RV Resorts Southlake                   Fee Simple
8.08   23344631 Quality RV Resorts Allstar                   Fee Simple
9   22985103 Thorncreek Crossing 120 118 5/6/2028 360 360 $173,491.79 0.0050% 0.000000% Actual/360 Fee Simple
10   23024774 SanTan Village Marketplace 120 119 6/6/2028 0 0 $121,108.99 0.0050% 0.000000% Actual/360 Fee Simple
11 4 21769944 Marina Heights State Farm 120 114 1/6/2028 0 0 $82,704.82 0.0025% 0.001250% Actual/360 Leasehold
12   23006974 Dolwick Business Center 120 118 5/6/2028 360 358 $135,534.29 0.0050% 0.000000% Actual/360 Fee Simple
13   23176250 5500 Hellyer Avenue 120 119 6/6/2028 360 359 $132,888.66 0.0050% 0.000000% Actual/360 Fee Simple
14   23063792 Spring Hill Logistics Center 120 119 6/6/2028 0 0 $97,343.89 0.0050% 0.030000% Actual/360 Fee Simple
15 7 23043806 3300 East 1st Avenue 120 119 6/6/2028 0 0 $101,017.13 0.0050% 0.000000% Actual/360 Fee Simple
16 8 23314516 The Commons 120 120 7/6/2028 360 360 $109,641.08 0.0050% 0.030000% Actual/360 Fee Simple
17   23347272 Market at Crenshaw 120 120 7/6/2028 360 360 $93,436.37 0.0050% 0.000000% Actual/360 Fee Simple
18 4, 6 23351455 Davenport Commons 120 120 7/6/2028 360 360 $81,377.96 0.0050% 0.000000% Actual/360 Fee Simple
19 9 2321945 Athens Townhomes 120 120 7/6/2028 360 360 $77,668.74 0.0050% 0.000000% Actual/360 Fee Simple
20   22985530 Naples Plaza 120 118 5/6/2028 0 0 $52,406.90 0.0050% 0.040000% Actual/360 Fee Simple
21 10 23005456 Center at Pearland II 120 118 5/6/2028 0 0 $46,826.29 0.0050% 0.000000% Actual/360 Fee Simple
22 11 22999703 Holiday Inn Express Toledo West 120 118 5/6/2028 360 358 $64,112.10 0.0050% 0.020000% Actual/360 Fee Simple
23   22778586 Arbor Plaza 120 117 4/6/2028 360 360 $58,039.76 0.0050% 0.000000% Actual/360 Fee Simple
24 4 22558058 Two Democracy 120 116 3/6/2028 360 356 $56,100.03 0.0025% 0.002500% Actual/360 Leasehold
25 12 23219508 Capital Complex 120 120 7/6/2028 360 360 $53,774.32 0.0050% 0.040000% Actual/360 Fee Simple
26   23042533 Cabela’s Farmington 120 119 6/6/2028 0 0 $37,206.17 0.0050% 0.000000% Actual/360 Fee Simple
27 13 23063870 Courtyard Bentonville 120 119 6/6/2028 360 360 $49,691.66 0.0050% 0.040000% Actual/360 Fee Simple
28   23313687 20151 Nordhoff Street 120 120 7/6/2028 360 360 $46,712.57 0.0050% 0.000000% Actual/360 Fee Simple
29   23036062 Shallowford Exchange 120 119 6/6/2028 360 359 $48,948.47 0.0050% 0.000000% Actual/360 Fee Simple
30   23060255 Roundhouse Campus 120 119 6/6/2028 360 360 $39,241.94 0.0050% 0.000000% Actual/360 Fee Simple
31   23005457 Shops at Spring Village 120 118 5/6/2028 360 360 $38,461.44 0.0050% 0.000000% Actual/360 Fee Simple
32   23219183 Moses Lake Town Center 120 120 7/6/2028 0 0 $26,475.93 0.0050% 0.000000% Actual/360 Fee Simple
33   23217813 Dallas Commons 120 120 7/6/2028 360 360 $32,436.27 0.0025% 0.070000% Actual/360 Fee Simple

 

 

 

GS10

 

Control Number Footnotes Loan Number Property Name Crossed Group Originator Mortgage Loan Seller Carve-out Guarantor Letter of Credit Upfront RE Tax Reserve ($) Ongoing RE Tax Reserve ($) Upfront Insurance Reserve ($) Ongoing Insurance Reserve ($) Upfront Replacement Reserve ($)
1 3, 4 22905340 GSK North American HQ NAP GSMC GSMC None No $0 $0 $0 $0 $0
2 5 22352278 1000 Wilshire NAP GSMC GSMC Cerberus Institutional Real Estate Partners IV, L.P. No $0 $0 $0 $0 $0
3   22912369 Aliso Creek Apartments NAP GSBI GSMC Geoffrey L. Stack, Geoffrey L. Stack, as Trustee of the Stack Revocable Trust Dated July 30, 2009 and Anthony Rossi, Sr. No $58,053 $58,053 $0 $0 $0
4   22985101 Commonwealth Centre NAP GSMC GSMC None No $0 $0 $0 $0 $0
5   23220079 MOA Hotel Leased Fee Portfolio NAP GSMC GSMC 7 Crowns Corporation No $0 $0 $3,315 $0 $0
5.01   23220079 Radisson Blu at Mall of America - Ground Lease                    
5.02   23220079 JW Marriott at Mall of America - Ground Lease                    
6 4, 6 23313835 FXI Portfolio NAP GSMC GSMC New Mountain Net Lease Corporation and New Mountain Net Lease Partners Corporation No $0 $0 $0 $0 $0
6.01   23313835 FXI Portland OR                    
6.02   23313835 FXI Auburn IN                    
6.03   23313835 FXI Santa Teresa NM                    
6.04   23313835 FXI Verona MS                    
6.05   23313835 FXI Corry PA                    
6.06   23313835 FXI Fort Wayne IN                    
6.07   23313835 FXI Cuautitlan MX                    
7 4 22575939 U.S. Industrial Portfolio NAP GSMC GSMC Michael W. Brennan, Robert G. Vanecko, Scott D. McKibben, Samuel A. Mandarino, Eduardo Paneque, Brad O’Halloran, Allen Crosswell, Troy MacMane and Greenwood Holding Company, LLC No $0 $0 $0 $0 $0
7.01   22575939 DialogDirect                    
7.02   22575939 JIT Packaging                    
7.03   22575939 Markel                    
7.04   22575939 Dedicated Logistics                    
7.05   22575939 Wilbert                    
7.06   22575939 Matandy Steel                    
7.07   22575939 Landmark Plastics                    
7.08   22575939 Rohrer Corporation (OH)                    
7.09   22575939 Rohrer Corporation (IL)                    
7.10   22575939 Rohrer Corporation (GA)                    
7.11   22575939 AAP Metals                    
8 4, 6 23344631 Quality RV Resorts NAP GSMC GSMC Stonetown 5, LLLP No $392,917 $56,131 $0 $0 $0
8.01   23344631 Quality RV Resorts Lakeview                    
8.02   23344631 Quality RV Resorts Brazoria                    
8.03   23344631 Quality RV Resorts Highway Six                    
8.04   23344631 Quality RV Resorts Mont Belvieu                    
8.05   23344631 Quality RV Resorts Greenlake                    
8.06   23344631 Quality RV Resorts Fallbrook                    
8.07   23344631 Quality RV Resorts Southlake                    
8.08   23344631 Quality RV Resorts Allstar                    
9   22985103 Thorncreek Crossing NAP GSMC GSMC E. Stanley Kroenke and James N. Gordon No $0 $0 $0 $0 $0
10   23024774 SanTan Village Marketplace NAP GSMC GSMC Richard A. Margolis and Phillip A. Duke No $144,505 $48,168 $0 $0 $0
11 4 21769944 Marina Heights State Farm NAP GSMC GSMC None No $0 $0 $0 $0 $0
12   23006974 Dolwick Business Center NAP GSMC GSMC Corporex Companies, LLC No $78,707 $13,118 $0 $0 $0
13   23176250 5500 Hellyer Avenue NAP GSMC GSMC Jason A. Hammerman No $130,775 $43,592 $4,942 $4,942 $0
14   23063792 Spring Hill Logistics Center NAP GSMC GSMC Legacy Properties Group, Inc. No $0 $0 $0 $0 $0
15 7 23043806 3300 East 1st Avenue NAP GSMC GSMC GEM Realty Evergreen Fund, L.P. No $0 $0 $0 $0 $0
16 8 23314516 The Commons NAP GSMC GSMC Kamyar Mateen and Tyler Mateen No $84,882 $16,976 $0 $0 $0
17   23347272 Market at Crenshaw NAP GSMC GSMC Nadyrshah “Nick” Dhanani No $228,578 $32,654 $14,807 $7,403 $0
18 4, 6 23351455 Davenport Commons NAP GSMC GSMC E. Stanley Kroenke No $0 $0 $0 $0 $0
19 9 2321945 Athens Townhomes NAP GSBI GSMC Paul Grammas No $20,195 $20,195 $5,526 $2,763 $0
20   22985530 Naples Plaza NAP GSMC GSMC Claus Dieckell and Chuck Le No $40,922 $20,461 $0 $0 $0
21 10 23005456 Center at Pearland II NAP GSMC GSMC William L. Hutchinson No $0 $0 $0 $0 $0
22 11 22999703 Holiday Inn Express Toledo West NAP GSMC GSMC Saad Roumaya, Jonathan Roumaya, Jabbar Yousif and Martin Yousif No $115,846 $19,887 $6,322 $1,104 $0
23   22778586 Arbor Plaza NAP GSMC GSMC E. Stanley Kroenke No $0 $0 $0 $0 $0
24 4 22558058 Two Democracy NAP GSMC GSMC Second Rock Spring Park, LLC Yes $383,084 $63,847 $0 $0 $0
25 12 23219508 Capital Complex NAP GSMC GSMC J. Kenneth Dunn No $43,146 $5,393 $0 $0 $0
26   23042533 Cabela’s Farmington NAP GSMC GSMC Security National Financial Corporation No $0 $0 $0 $0 $0
27 13 23063870 Courtyard Bentonville NAP GSMC GSMC J & S Hardin Holdings, LP, Delton Smith and William Harrison Smith No $68,231 $7,581 $0 $0 $0
28   23313687 20151 Nordhoff Street NAP GSMC GSMC Albert Moradi No $78,623 $0 $0 $0 $0
29   23036062 Shallowford Exchange NAP GSMC GSMC Altaf Lal No $84,083 $10,510 $0 $0 $0
30   23060255 Roundhouse Campus NAP GSMC GSMC William M. Bennett No $28,740 $7,185 $0 $0 $0
31   23005457 Shops at Spring Village NAP GSMC GSMC Anderson G. Smith No $28,994 $5,799 $14,532 $1,211 $0
32   23219183 Moses Lake Town Center NAP GSMC GSMC Read Seven, LLC No $27,029 $6,757 $0 $0 $0
33   23217813 Dallas Commons NAP GSMC GSMC Ernest W. Livingston, Jr. No $25,400 $3,175 $0 $0 $0

 

 

 

GS10

 

Control Number Footnotes Loan Number Property Name Ongoing Replacement Reserve ($) Replacement Reserve Caps ($) Upfront TI/LC Reserve ($) Ongoing TI/LC Reserve ($) TI/LC Caps ($) Upfront Debt Service Reserve ($) Ongoing Debt Service Reserve ($) Upfront Deferred Maintenance Reserve ($) Ongoing Deferred Maintenance Reserve ($) Upfront Environmental Reserve ($)
1 3, 4 22905340 GSK North American HQ $0 $0 $0 $0 $0 $0 $0 $0 $0 $0
2 5 22352278 1000 Wilshire $0 $0 $3,000,000 $0 $1,000,000 $0 $0 $0 $0 $0
3   22912369 Aliso Creek Apartments $11,623 $0 $0 $0 $0 $0 $0 $0 $0 $0
4   22985101 Commonwealth Centre $0 $0 $0 $0 $0 $0 $0 $0 $0 $0
5   23220079 MOA Hotel Leased Fee Portfolio $0 $0 $0 $0 $0 $0 $0 $0 $0 $0
5.01   23220079 Radisson Blu at Mall of America - Ground Lease                    
5.02   23220079 JW Marriott at Mall of America - Ground Lease                    
6 4, 6 23313835 FXI Portfolio $0 $635,502 $0 $0 $3,177,512 $0 $0 $413,203 $0 $0
6.01   23313835 FXI Portland OR                    
6.02   23313835 FXI Auburn IN                    
6.03   23313835 FXI Santa Teresa NM                    
6.04   23313835 FXI Verona MS                    
6.05   23313835 FXI Corry PA                    
6.06   23313835 FXI Fort Wayne IN                    
6.07   23313835 FXI Cuautitlan MX                    
7 4 22575939 U.S. Industrial Portfolio $0 $540,238 $0 $0 $2,025,894 $0 $0 $0 $0 $0
7.01   22575939 DialogDirect                    
7.02   22575939 JIT Packaging                    
7.03   22575939 Markel                    
7.04   22575939 Dedicated Logistics                    
7.05   22575939 Wilbert                    
7.06   22575939 Matandy Steel                    
7.07   22575939 Landmark Plastics                    
7.08   22575939 Rohrer Corporation (OH)                    
7.09   22575939 Rohrer Corporation (IL)                    
7.10   22575939 Rohrer Corporation (GA)                    
7.11   22575939 AAP Metals                    
8 4, 6 23344631 Quality RV Resorts $3,481 $125,325 $0 $0 $0 $0 $0 $550 $0 $0
8.01   23344631 Quality RV Resorts Lakeview                    
8.02   23344631 Quality RV Resorts Brazoria                    
8.03   23344631 Quality RV Resorts Highway Six                    
8.04   23344631 Quality RV Resorts Mont Belvieu                    
8.05   23344631 Quality RV Resorts Greenlake                    
8.06   23344631 Quality RV Resorts Fallbrook                    
8.07   23344631 Quality RV Resorts Southlake                    
8.08   23344631 Quality RV Resorts Allstar                    
9   22985103 Thorncreek Crossing $0 $0 $0 $0 $600,000 $0 $0 $0 $0 $0
10   23024774 SanTan Village Marketplace $4,522 $217,042 $0 $0 $428,000 $0 $0 $0 $0 $0
11 4 21769944 Marina Heights State Farm $0 $0 $0 $0 $0 $0 $0 $0 $0 $0
12   23006974 Dolwick Business Center $2,822 $200,000 $0 $18,815 $750,000 $0 $0 $0 $0 $0
13   23176250 5500 Hellyer Avenue $3,276 $78,614 $0 $0 $0 $0 $0 $0 $0 $0
14   23063792 Spring Hill Logistics Center $4,153 $200,000 $0 $20,833 $750,000 $0 $0 $0 $0 $0
15 7 23043806 3300 East 1st Avenue $0 $19,554 $500,000 $0 $97,770 $0 $0 $0 $0 $0
16 8 23314516 The Commons $2,471 $0 $500,000 $0 $500,000 $0 $0 $0 $0 $0
17   23347272 Market at Crenshaw $878 $0 $0 $8,333 $700,000 $0 $0 $0 $0 $0
18 4, 6 23351455 Davenport Commons $0 $0 $0 $0 $600,000 $0 $0 $0 $0 $0
19 9 2321945 Athens Townhomes $3,104 $0 $0 $0 $0 $0 $0 $0 $0 $0
20   22985530 Naples Plaza $1,061 $35,004 $0 $1,704 $61,344 $0 $0 $0 $0 $0
21 10 23005456 Center at Pearland II $0 $0 $120,000 $0 $120,000 $0 $0 $0 $0 $0
22 11 22999703 Holiday Inn Express Toledo West $6,033 $0 $0 $0 $0 $0 $0 $0 $0 $0
23   22778586 Arbor Plaza $0 $0 $0 $0 $350,000 $0 $0 $0 $0 $0
24 4 22558058 Two Democracy $5,732 $0 $0 $45,856 $0 $0 $0 $0 $0 $0
25 12 23219508 Capital Complex $2,946 $36,000 $715,000 $0 $300,000 $0 $0 $0 $0 $0
26   23042533 Cabela’s Farmington $0 $0 $0 $0 $0 $0 $0 $0 $0 $0
27 13 23063870 Courtyard Bentonville $10,247 $0 $0 $0 $0 $0 $0 $0 $0 $0
28   23313687 20151 Nordhoff Street $1,533 $0 $0 $6,133 $300,000 $0 $0 $0 $0 $0
29   23036062 Shallowford Exchange $579 $0 $0 $6,250 $225,000 $0 $0 $11,875 $0 $10,000
30   23060255 Roundhouse Campus $1,486 $0 $0 $5,505 $330,290 $0 $0 $0 $0 $0
31   23005457 Shops at Spring Village $349 $20,938 $150,000 $1,745 $200,000 $0 $0 $0 $0 $0
32   23219183 Moses Lake Town Center $0 $0 $0 $0 $87,113 $0 $0 $0 $0 $0
33   23217813 Dallas Commons $419 $15,095 $75,000 $2,500 $90,000 $0 $0 $0 $0 $0

 

 

 

GS10

 

Control Number Footnotes Loan Number Property Name Ongoing Environmental Reserve ($) Upfront Other Reserve ($) Ongoing Other Reserve ($) Other Reserve Description Grace Period- Default Grace Period- Late Fee Cash Management Lockbox General Property Type Prepayment Provision (2) Interest Accrual Method Units, Pads, Rooms, Sq Ft Unit Description
1 3, 4 22905340 GSK North American HQ $0 $0 $0   0 0 Springing Hard Office Lockout/25_Defeasance/28_0%/7 Actual/360 207,779 SF
2 5 22352278 1000 Wilshire $0 $3,453,871 $0 Unfunded Obligations Reserve 0 5 Springing Hard Office Lockout/28_YM/51_0%/5 Actual/360 477,774 SF
3   22912369 Aliso Creek Apartments $0 $0 $0   0 0 In Place Soft Multifamily Lockout/27_Defeasance/89_0%/4 Actual/360 535 Units
4   22985101 Commonwealth Centre $0 $0 $0   0 0 Springing Hard Office Lockout/26_Defeasance/87_0%/7 Actual/360 316,081 SF
5   23220079 MOA Hotel Leased Fee Portfolio $0 $136,520 $0 Gap Rent Reserve 0 0 Springing Hard   Lockout/24_Defeasance/89_0%/7 Actual/360 NAP NAP
5.01   23220079 Radisson Blu at Mall of America - Ground Lease                 Ground Leased Land     NAP NAP
5.02   23220079 JW Marriott at Mall of America - Ground Lease                 Ground Leased Land     NAP NAP
6 4, 6 23313835 FXI Portfolio $0 $0 $0   0 0 Springing Hard   Lockout/24_Defeasance/92_0%/4 Actual/360 2,121,643 SF
6.01   23313835 FXI Portland OR                 Industrial     186,116 SF
6.02   23313835 FXI Auburn IN                 Industrial     434,174 SF
6.03   23313835 FXI Santa Teresa NM                 Industrial     297,812 SF
6.04   23313835 FXI Verona MS                 Industrial     323,300 SF
6.05   23313835 FXI Corry PA                 Industrial     277,805 SF
6.06   23313835 FXI Fort Wayne IN                 Industrial     271,380 SF
6.07   23313835 FXI Cuautitlan MX                 Industrial     331,056 SF
7 4 22575939 U.S. Industrial Portfolio $0 $361,809 $0 Unfunded Obligations Reserve 0 3 Springing Hard   Lockout/28_Defeasance/88_0%/4 Actual/360 2,701,192 SF
7.01   22575939 DialogDirect                 Industrial     578,050 SF
7.02   22575939 JIT Packaging                 Industrial     443,103 SF
7.03   22575939 Markel                 Industrial     167,666 SF
7.04   22575939 Dedicated Logistics                 Industrial     355,185 SF
7.05   22575939 Wilbert                 Industrial     296,876 SF
7.06   22575939 Matandy Steel                 Industrial     174,170 SF
7.07   22575939 Landmark Plastics                 Industrial     212,000 SF
7.08   22575939 Rohrer Corporation (OH)                 Industrial     169,000 SF
7.09   22575939 Rohrer Corporation (IL)                 Industrial     90,000 SF
7.10   22575939 Rohrer Corporation (GA)                 Industrial     117,215 SF
7.11   22575939 AAP Metals                 Industrial     97,927 SF
8 4, 6 23344631 Quality RV Resorts $0 $0 $0   0 0 Springing Springing   Lockout/24_>YM or 1%/89_0%/7 Actual/360 1,671 Pads
8.01   23344631 Quality RV Resorts Lakeview                 Manufactured Housing     282 Pads
8.02   23344631 Quality RV Resorts Brazoria                 Manufactured Housing     266 Pads
8.03   23344631 Quality RV Resorts Highway Six                 Manufactured Housing     218 Pads
8.04   23344631 Quality RV Resorts Mont Belvieu                 Manufactured Housing     243 Pads
8.05   23344631 Quality RV Resorts Greenlake                 Manufactured Housing     231 Pads
8.06   23344631 Quality RV Resorts Fallbrook                 Manufactured Housing     186 Pads
8.07   23344631 Quality RV Resorts Southlake                 Manufactured Housing     121 Pads
8.08   23344631 Quality RV Resorts Allstar                 Manufactured Housing     124 Pads
9   22985103 Thorncreek Crossing $0 $0 $0   0 0 Springing Springing Retail Lockout/26_>YM or 1%/90_0%/4 Actual/360 212,127 SF
10   23024774 SanTan Village Marketplace $0 $0 $0   0 0 Springing Springing Retail Lockout/11_>YM or 1%/102_0%/7 Actual/360 285,581 SF
11 4 21769944 Marina Heights State Farm $0 $0 $0   0 0 Springing Hard Office Lockout/11_>YM or 1%/102_0%/7 Actual/360 2,031,293 SF
12   23006974 Dolwick Business Center $0 $1,399,560 $0 Saint Elizabeth TI/LC Reserve ($1,142,115), Saint Elizabeth Rent Reserve ($157,763.84), Toyota Boshoku Rent Reserve ($99,681) 0 0 Springing Springing Office Lockout/26_Defeasance/90_0%/4 Actual/360 225,783 SF
13   23176250 5500 Hellyer Avenue $0 $3,796,302 $0 Genista TI/LC Reserve ($2,236,395), Genista Rent Reserve ($1,125,462), Benchmark TI/LC Reserve ($354,573), Genista Gap Rent Reserve ($79,872) 0 0 Springing Springing Industrial Lockout/25_Defeasance/90_0%/5 Actual/360 196,534 SF
14   23063792 Spring Hill Logistics Center $0 $27,500 $0 Comprehensive Logistics Reserve 0 0 Springing Springing Industrial Lockout/25_>YM or 1%/90_0%/5 Actual/360 498,400 SF
15 7 23043806 3300 East 1st Avenue $0 $198,034 $0 Unfunded Obligations Reserve 0 0 Springing Hard Mixed Use Lockout/25_Defeasance/91_0%/4 Actual/360 97,770 SF
16 8 23314516 The Commons $0 $173,821 $0 Unfunded Obligations Reserve 0 0 Springing Hard Retail Lockout/24_Defeasance/92_0%/4 Actual/360 148,277 SF
17   23347272 Market at Crenshaw $0 $0 $0   0 0 Springing Springing Retail Lockout/24_>YM or 1%/92_0%/4 Actual/360 105,315 SF
18 4, 6 23351455 Davenport Commons $0 $0 $0   0 0 Springing Springing Retail Lockout/24_>YM or 1%/92_0%/4 Actual/360 403,388 SF
19 9 2321945 Athens Townhomes $0 $1,925,000 $0 Earnout Reserve ($1,750,000), Yield Maintenance Earnout Amount ($175,000) 0 0 None None Multifamily Lockout/24_Defeasance/92_0%/4 Actual/360 135 Units
20   22985530 Naples Plaza $0 $0 $0   0 0 Springing Springing Retail Lockout/26_Defeasance/90_0%/4 Actual/360 84,856 SF
21 10 23005456 Center at Pearland II $0 $65,422 $0 Unfunded Obligations Reserve 0 0 Springing Springing Retail Lockout/26_Defeasance/90_0%/4 Actual/360 90,336 SF
22 11 22999703 Holiday Inn Express Toledo West $0 $0 $0   0 0 Springing Springing Hospitality Lockout/26_Defeasance/90_0%/4 Actual/360 106 Rooms
23   22778586 Arbor Plaza $0 $0 $0   0 0 Springing Springing Retail Lockout/27_>YM or 1%/89_0%/4 Actual/360 69,683 SF
24 4 22558058 Two Democracy $0 $143,760 $71,880 Ground Rent Reserve 0 0 In Place Hard Office Lockout/28_Defeasance/88_0%/4 Actual/360 275,134 SF
25 12 23219508 Capital Complex $0 $0 $0   0 0 Springing Springing Office Lockout/24_Defeasance/92_0%/4 Actual/360 178,328 SF
26   23042533 Cabela’s Farmington $0 $0 $0   0 0 Springing Springing Retail Lockout/25_>YM or 1%/91_0%/4 Actual/360 68,885 SF
27 13 23063870 Courtyard Bentonville $0 $2,535,000 $0 PIP Reserve 0 0 Springing Springing Hospitality Lockout/25_Defeasance/91_0%/4 Actual/360 90 Rooms
28   23313687 20151 Nordhoff Street $0 $0 $0   0 0 Springing Hard Office Lockout/24_Defeasance/92_0%/4 Actual/360 73,595 SF
29   23036062 Shallowford Exchange $0 $0 $0   0 0 Springing Springing Retail Lockout/25_Defeasance/91_0%/4 Actual/360 46,291 SF
30   23060255 Roundhouse Campus $0 $0 $0   0 0 Springing Hard Office Lockout/25_Defeasance/91_0%/4 Actual/360 66,058 SF
31   23005457 Shops at Spring Village $0 $325,154 $0 Unfunded Obligations Reserve 0 0 Springing Springing Retail Lockout/26_Defeasance/90_0%/4 Actual/360 20,938 SF
32   23219183 Moses Lake Town Center $0 $0 $0   0 0 Springing Springing Retail Lockout/24_Defeasance/91_0%/5 Actual/360 58,075 SF
33   23217813 Dallas Commons $0 $0 $0   0 0 Springing Springing Retail Lockout/24_Defeasance/91_0%/5 Actual/360 25,158 SF

 

 

 

GS10

 

1 The monthly debt service shown for Mortgage Loans with a partial interest-only period reflects the amount payable after the expiration of the interest-only period.
2 The open period is inclusive of the Maturity Date / ARD.
3 The lockout period will be at least 25 payment dates beginning with and including the first payment date of July 2018. For the purpose of this prospectus, the assumed lockout period of 25 payment dates is based on the expected GSMS 2018-GS10 securitization closing date in July 2018. The actual lockout period may be longer.
4 The Mortgage Loan is part of a whole loan structure. Cut-off Date LTV Ratio, LTV Ratio at Maturity / ARD, Underwritten NCF DSCR, Debt Yield on Underwritten Net Operating Income, Debt Yield on Underwritten Net Cash Flow and Loan Per Unit calculations are based on the Mortgage Loan and any related Pari Passu Companion Loans, but excluding any related Subordinate Companion Loans.
5 On each Due Date, if and to the extent the amount contained in the TI/LC reserve account is less than $1,000,000, the borrower is required to deposit into the TI/LC reserve account an Ongoing TI/LC Reserve amount equal to $39,708.
6 The lockout period will be at least 24 payment dates beginning with and including the first payment date of August 2018. For the purpose of this prospectus, the assumed lockout period of 24 payment dates is based on the expected GSMS 2018-GS10 securitization closing date in July 2018. The actual lockout period may be longer.
7 On each Due Date, if and to the extent the amount contained in the TI/LC reserve account is less than $97,770, the borrower is required to deposit into the TI/LC reserve account an Ongoing TI/LC Reserve amount equal to $8,148.
8 On each Due Date, if and to the extent the amount contained in the TI/LC reserve account is less than (i) prior to the occurrence of a Critical Tenant Renewal Event, $500,000 and (ii) from and after the occurrence of a Critical Tenant Renewal Event, $350,000, the borrower is required to deposit into the TI/LC reserve account an Ongoing TI/LC Reserve amount equal to $12,356.
9 Upfront Other Reserve ($) represents an earnout and a potential yield maintenance reserve. Funds will be held in escrow until the borrower has achieved a debt yield of 8.74% on the fully funded amount, completed the construction of 14 additional multifamily units at the property, and provides evidence of monthly rents no less than 1/12th of the underwritten base rent. If such conditions are not satisfied by December 13, 2019, the reserve is required to be applied to prepay the Athens Townhomes Loan and the related yield maintenance for such prepayment.
10 On each Due Date, if and to the extent the amount contained in the TI/LC reserve account is less than $120,000, the borrower is required to deposit into the TI/LC reserve account an Ongoing TI/LC Reserve amount equal to $5,000.
11 The Ongoing Replacement Reserve is an FF&E reserve in an amount equal to (i) for the Due Dates occurring in June 2018 through May 2019, $6,033, (ii) for the Due Dates occurring in June 2019 through May 2020, the greater of (a) the monthly amount required to be reserved pursuant to the franchise agreement for the replacement of FF&E or (b) 1/12th of 3% of the operating income of the Mortgaged Property for the previous 12-month period as determined on the anniversary of the last day of the calendar month in April and (iii) thereafter the greater of (a) the monthly amount required to be reserved pursuant to the franchise agreement for the replacement of FF&E or (b) 1/12th of 4% of the operating income of the Mortgaged Property for the previous 12-month period as determined on the anniversary of the last day of the calendar month in April.
12 On each Due Date, if and to the extent the amount contained in the TI/LC reserve account is less than $300,000, the borrower is required to deposit into the TI/LC reserve account an Ongoing TI/LC Reserve amount equal to $8,333.
13 The Ongoing Replacement Reserve is an FF&E reserve in an amount equal to (i) for the Due Dates occurring in July 2018 through June 2019, $10,247 and (ii) thereafter the greater of (a) the monthly amount required to be reserved pursuant to the franchise agreement for the replacement of FF&E or (b) 1/12th of 4% of the operating income of the Mortgaged Property for the previous 12-month period as determined on the anniversary of the last day of the calendar month in June.

 

 

 

EXHIBIT B

MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES

 

(1)          Whole Loan; Ownership of Mortgage Loans. Except with respect to a Mortgage Loan that is part of a Whole Loan, each Mortgage Loan is a whole loan and not a participation interest in a Mortgage Loan. Each Mortgage Loan that is part of a Whole Loan is a senior or pari passu portion of a whole loan evidenced by a senior or pari passu note. At the time of the sale, transfer and assignment to Depositor, no Mortgage Note or Mortgage was subject to any assignment (other than assignments to the Seller), participation or pledge, and the Seller had good title to, and was the sole owner of, each Mortgage Loan free and clear of any and all liens, charges, pledges, encumbrances, participations, any other ownership interests on, in or to such Mortgage Loan other than any servicing rights appointment, or similar agreement, any Other Pooling and Servicing Agreement with respect to a Non-Serviced Mortgage Loan and rights of the holder of a related Companion Loan pursuant to a Co-Lender Agreement. The Seller has full right and authority to sell, assign and transfer each Mortgage Loan, and the assignment to Depositor constitutes a legal, valid and binding assignment of such Mortgage Loan free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Mortgage Loan other than the rights of the holder of a related Companion Loan pursuant to a Co-Lender Agreement.

 

(2)           Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases (if a separate instrument), guaranty and other agreement executed by or on behalf of the related Mortgagor, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related Mortgagor, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except (i) as such enforcement may be limited by (a) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar 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) and (ii) that certain provisions in such Loan Documents (including, without limitation, provisions requiring the payment of default interest, late fees or prepayment/yield maintenance fees, charges and/or premiums) are, or may be, further limited or rendered unenforceable by or under applicable law, but (subject to the limitations set forth in clause (i) above) such limitations or unenforceability will not render such Loan Documents invalid as a whole or materially interfere with the Mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Standard Qualifications”).

 

Except as set forth in the immediately preceding sentence, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Mortgage Notes, Mortgages or other Loan Documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by the Seller in connection with the origination of the Mortgage

 

B-1

 

Loan, that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage Note, Mortgage or other Loan Documents.

 

(3)          Mortgage Provisions. The Loan Documents for each Mortgage Loan contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, nonjudicial foreclosure subject to the limitations set forth in the Standard Qualifications.

 

(4)           Mortgage Status; Waivers and Modifications. Since origination and except by written instruments set forth in the related Mortgage File (a) the material terms of such Mortgage, Mortgage Note, Mortgage Loan guaranty, and related Loan Documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such Mortgage; (b) no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c) neither the related Mortgagor nor the related guarantor has been released from its material obligations under the Mortgage Loan.

 

(5)           Lien; Valid Assignment. Subject to the Standard Qualifications, each Assignment of Mortgage and assignment of Assignment of Leases to the Issuing Entity constitutes a legal, valid and binding assignment to the Issuing Entity. Each related Mortgage and Assignment of Leases is freely assignable without the consent of the related Mortgagor. Each related Mortgage is a legal, valid and enforceable first lien on the related Mortgagor’s fee (or if identified on the Mortgage Loan Schedule, leasehold) interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount (subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph (6) set forth on Exhibit C (each such exception, a “Title Exception”)), except as the enforcement thereof may be limited by the Standard Qualifications. Such Mortgaged Property (subject to and excepting Permitted Encumbrances and the Title Exceptions) as of origination was, and as of the Cut-off Date, to the Seller’s knowledge, is free and clear of any recorded mechanics’ liens, recorded materialmen’s liens and other recorded encumbrances which are prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below), and, to the Seller’s knowledge and subject to the rights of tenants (as tenants only) (subject to and excepting Permitted Encumbrances and the Title Exceptions), no rights exist which under law could give rise to any such lien or encumbrance that would be prior to or equal with the lien of the related Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s title insurance policy (as described below). Notwithstanding anything in this representation to the contrary, 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 Uniform Commercial Code financing statements is required in order to effect such perfection.

 

B-2

 

(6)          Permitted Liens; Title Insurance. Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary title policy with escrow instructions or a “marked up” commitment, in each case binding on the title insurer) (the “Title Policy”) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage, which lien is subject only to (a) the lien of current real property taxes, water charges, sewer rents and assessments due and payable but not yet delinquent; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record; (c) the exceptions (general and specific) and exclusions set forth in such Title Policy; (d) other matters to which like properties are commonly subject; (e) the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property and condominium declarations; (f) if the related Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in the same Crossed Mortgage Loan Group; and (g) if the related Mortgage Loan is part of a Whole Loan, the rights of the holder(s) of any related Companion Loan(s) pursuant to the related Co-Lender Agreement; provided that none of items (a) through (g), individually or in the aggregate, materially and adversely interferes with the value or current use of the Mortgaged Property or the security intended to be provided by such Mortgage or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”). Except as contemplated by clauses (f) and (g) of the preceding sentence, none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage. Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made by the Seller thereunder and no claims have been paid thereunder. Neither the Seller, nor to the Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy.

 

(7)           Junior Liens. It being understood that B notes secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan, there are no subordinate mortgages or junior liens securing the payment of money encumbering the related Mortgaged Property (other than Permitted Encumbrances and the Title Exceptions, taxes and assessments, mechanics and materialmens liens (which are the subject of the representation in paragraph (5) above), and equipment and other personal property financing). Except as set forth on an exhibit to the applicable Mortgage Loan Purchase Agreement, the Seller has no knowledge of any mezzanine debt secured directly by interests in the related Mortgagor.

 

(8)          Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases (either as a separate instrument or incorporated into the related

 

B-3

 

Mortgage). Subject to the Permitted Encumbrances and the Title Exceptions, each related Assignment of Leases creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications. The related Mortgage or related Assignment of Leases, subject to applicable law, provides that, upon an event of default under the Mortgage Loan, a receiver is permitted to be appointed for the collection of rents or for the related Mortgagee to enter into possession to collect the rents or for rents to be paid directly to the Mortgagee.

 

(9)          UCC Filings. If the related Mortgaged Property is operated as a hospitality property, the Seller has filed and/or recorded or caused to be filed and/or recorded (or, if not filed and/or recorded, submitted in proper form for filing and/or recording), UCC Financing Statements in the appropriate public filing and/or recording offices necessary at the time of the origination of the Mortgage Loan to perfect a valid security interest in all items of physical personal property reasonably necessary to operate such Mortgaged Property owned by such Mortgagor and located on the related Mortgaged Property (other than any non-material personal property, any personal property subject to a purchase money security interest, a sale a