Exhibit 99.4
Barclays Mortgage Loan Purchase Agreement
See attached
MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated and effective October 30, 2006, between Barclays Capital Real Estate Inc.,
as seller (the "Seller"), and Deutsche Mortgage & Asset Receiving Corporation,
as purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey
to the Purchaser, and the Purchaser desires to purchase, subject to the terms
and conditions set forth below, its portion of the ShopKo Portfolio Loan (the
"Mortgage Loan") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loan will be transferred,
together with other commercial, multifamily and manufactured housing mortgage
loans (such mortgage loans, the "Other Mortgage Loans") to CD 2006-CD3 Mortgage
Trust, a trust fund (the "Trust Fund") to be formed by the Purchaser, the
beneficial ownership of which will be evidenced by a series of mortgage
pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies, Inc. and Xxxxx'x Investors Service, Inc. (together,
the "Rating Agencies"). Certain classes of the Certificates (the "Registered
Certificates") will be registered under the Securities Act of 1933, as amended
(the "Securities Act"). The Trust Fund will be created and the Certificates will
be issued pursuant to a pooling and servicing agreement to be dated as of
October 1, 2006 (the "Pooling and Servicing Agreement"), among the Purchaser as
depositor, Capmark Finance Inc., as a master servicer with respect to all of the
Mortgage Loans other than the Mortgage Loans known as the Ala Moana Portfolio
loan and the Fair Lakes Office Portfolio loan (the "Master Servicer"), and
Wachovia Bank, National Association with respect to the Mortgage Loans known as
the Ala Moana Portfolio loan and the Fair Lakes Office Portfolio loan (the
"Other Servicer"), X.X. Xxxxxx Company, Inc., as special servicer (in such
capacity, the "Special Servicer") and LaSalle Bank National Association, as
trustee (the "Trustee").
The Purchaser intends to sell certain of the Certificates to
Deutsche Bank Securities Inc. ("DBS"), Citigroup Global Markets Inc. ("CGM"),
Capmark Securities Inc. ("CSI"), Barclays Capital Inc. ("BCI"), Banc of America
Securities LLC ("B of A") and Wachovia Capital Markets, LLC ("Wachovia" and
collectively with DBS, CGM, CSI, BCI and B of A, the "Underwriters") pursuant to
an underwriting agreement dated October 23, 2006 (the "Underwriting Agreement").
The Purchaser intends to sell certain other Certificates (the "Non-Registered
Certificates") pursuant to a certificate purchase agreement dated October 23,
2006 (the "Certificate Purchase Agreement") to Deutsche Bank Securities Inc. and
Citigroup Global Markets Inc. (together, in such capacity the "Initial
Purchaser"). Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement (as of the Closing Date)
or in the BCRE Indemnification Agreement which was entered into by the Seller,
the Purchaser and the Underwriters as of October 23, 2006 (the "BCRE
Indemnification Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey
to the Purchaser upon receipt of the purchase price referred to in this Section
1, and the Purchaser agrees to purchase, the Mortgage Loan. The purchase and
sale of the Mortgage Loan shall take place on October 30, 2006 or such other
date as shall be mutually acceptable to the parties hereto (the "Closing Date").
As of the close of business on the related due date for the Mortgage Loan
occurring in October 2006 (the "Cut-off Date"), the Mortgage Loan will have an
aggregate principal balance (the "Aggregate Cut-off Date Balance"), after
application of all payments of principal due thereon on or before such date,
whether or not received, of $172,271,717, subject to a variance of plus or minus
5%. The purchase price of the Mortgage Loan (inclusive of accrued interest, and
exclusive of the Seller's pro rata share of the costs set forth in clause (c) of
Section 9 hereof) (the "Mortgage Loan Purchase Price") shall be $183,227,554.91.
SECTION 2. Conveyance of Mortgage Loan.
(a) On the Closing Date, subject only to receipt by the Seller of
the purchase price referred to in Section 1 hereof, the satisfaction of the
other closing conditions required to be satisfied on the part of Purchaser
pursuant to Section 7 and the issuance of the Certificates, the Seller agrees to
(i) sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse, all the right, title and interest of the Seller in and to the
Mortgage Loan identified on the Mortgage Loan Schedule, including all rights to
payment in respect thereof, which includes all interest and principal received
or receivable by the Seller on or with respect to the Mortgage Loan after the
Cut-off Date (subject to the proviso in the next sentence), together with all of
the Seller's right, title and interest in and to the proceeds of any related
title, hazard, or other insurance policies and any escrow, reserve or other
comparable accounts related to the Mortgage Loan, subject to that certain
Servicing Rights Purchase Agreement dated as of October 26, 2006 between the
Master Servicer and the Seller. The Purchaser shall be entitled to (and, to the
extent received by or on behalf of the Seller, the Seller shall deliver or cause
to be delivered to or at the direction of the Purchaser) all scheduled payments
of principal and interest due on the Mortgage Loan after the Cut-off Date, and
all other recoveries of principal and interest collected thereon after the
Cut-off Date; provided, however, that all scheduled payments of principal and
interest accrued but not paid thereon, due on or before the Cut-off Date and
collected after the Cut-off Date shall belong to the Seller, and the Purchaser
or its successors or assigns shall promptly remit any such payments to the
Seller.
On or prior to the Closing Date, the Seller shall retain a third
party vendor reasonably satisfactory to the Controlling Class Representative to
complete the assignment and recordation of the related Loan Documents, as
contemplated by the next sentence. On or promptly following the Closing Date,
the Seller shall cause such third party vendor, to the extent possession of
recorded copies of each Mortgage and the documents described in clauses (iii),
(iv), (v), (viii), (xiii) and (xiv) of Exhibit B have been delivered to it, at
the expense of the Seller, (1) to prepare and record (a) each Assignment of
Mortgage referred to in clause (iii) of Exhibit B which has not yet been
submitted for recording and (b) each Reassignment of Assignment of Leases, Rents
and Profits referred to in clause (viii)(B) of Exhibit B (if not otherwise
included in the related Assignment of Mortgage) which has not yet been submitted
for recordation; and (2) to prepare and file each UCC assignment of financing
statement referred to in clause (v)(B) or (xiii) of Exhibit B which has not yet
been submitted for filing or recording. The Seller shall direct the related
third party vendor to promptly prepare and submit (and in no event later than 30
Business Days following the receipt of the related documents in the case of
clause 1(a) of the prior sentence and 60 days following the receipt of the
applicable documents in the case of clauses 1(b) and 2 of the prior sentence)
for recording or filing, as the case may be, in the appropriate public recording
or filing office, each such document. In the event that any such document is
lost or returned unrecorded because of a defect therein, the Seller, at its
expense, shall promptly prepare a substitute document for signature by the
Purchaser or itself, as applicable, and thereafter the Seller shall cause each
such document to be duly recorded or filed. The Seller shall, promptly upon
receipt of the original recorded or filed copy (and in no event later than five
Business Days following such receipt) deliver such original to the Custodian (in
the case of each UCC financing statement or UCC assignment of financing
statement, with evidence of filing or recording thereon). Notwithstanding
anything to the contrary contained in this Section 2, in those instances where
the public recording office retains the original Mortgage, Assignment of
Mortgage or Reassignment of Assignment of Leases, Rents and Profits, if
applicable, after any has been recorded, the obligations hereunder of the
Purchaser shall be deemed to have been satisfied upon delivery to the Custodian
of a copy of such Mortgage, Assignment of Mortgage or Reassignment of Assignment
of Leases, Rents and Profits, if applicable, certified by the public recording
office to be a true and complete copy of the recorded original thereof or
otherwise with evidence of recording indicated thereon
(b) In connection with the Seller's assignment pursuant to
subsection (a) above, the Seller shall deliver to and deposit with, or cause to
be delivered to and deposited with, the Custodian, on or before the Closing
Date, the Note for the Mortgage Loan so assigned and, within 30 days following
the Closing Date, the remaining applicable documents in Exhibit B for the
Mortgage Loan with copies to the Master Servicer.
If the Seller cannot deliver, or cause to be delivered, as to the
Mortgage Loan, the original Note, the Seller shall deliver a copy or duplicate
original of such Note, together with an affidavit certifying that the original
thereof has been lost or destroyed and an indemnification in connection
therewith in favor of the Trustee.
If the Seller cannot deliver, or cause to be delivered, as to the
Mortgage Loan, the original or a copy of any of the documents and/or instruments
referred to in clauses (ii), (v)(A), (viii)(A), (xiv) and (xvi) of Exhibit B and
the UCC financing statements and UCC assignments of financing statements
referred to in clause (xiii) of Exhibit B, with evidence of recording or filing
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, or because such original recorded or filed document has been lost or
returned from the recording or filing office and subsequently lost, as the case
may be, the delivery requirements of this Section 2(b) shall be deemed to have
been satisfied as to such missing item, and such missing item shall be deemed to
have been included in the related Mortgage File, provided that a copy of such
document or instrument (without evidence of recording or filing thereon, but
certified (which certificate may relate to multiple documents and/or
instruments) by the applicable public recording or filing office, the applicable
title insurance company or by the Seller to be a true and complete copy of the
original thereof submitted for recording or filing, as the case may be) has been
delivered to the Trustee within 45 days after the Closing Date, and either the
original of such missing document or instrument, or a copy thereof, with
evidence of recording or filing, as the case may be, thereon, is delivered to or
at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee) within 180 days after
the Closing Date (or within such longer period after the Closing Date as the
Purchaser (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Seller has provided the Purchaser (or such
subsequent owner) with evidence of such recording or filing, as the case may be,
or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or filing, as the case may be, and is, as certified
to the Purchaser (or such subsequent owner) no less often than quarterly, in
good faith attempting to obtain from the appropriate county recorder's or filing
office such original or copy).
If the Seller cannot deliver, or cause to be delivered, as to the
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (vii) of Exhibit B solely because such policy has
not yet been issued, the delivery requirements of this Section 2(b) shall be
deemed to be satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that the
Seller has delivered to the Trustee a binder marked as binding and countersigned
by the title insurer or its authorized agent (which may be a pro forma or
specimen title insurance policy which has been accepted or approved in writing
as binding by the related title insurance company) or an acknowledged closing
instruction or escrow letter, and the Seller shall deliver to or at the
direction of the Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee), promptly following the receipt
thereof, the original related lender's title insurance policy (or a copy
thereof).
Notwithstanding anything herein to the contrary, with respect to
the documents referred to in clause (xvii) and clause (xviii) on Exhibit B, the
Master Servicer shall hold the original of each such document in trust on behalf
of the Trustee in order to draw on such letter of credit on behalf of the Trust
and the Seller shall be deemed to have satisfied the delivery requirements of
this Agreement by delivering the original of each such document to the Master
Servicer. The Seller shall pay any costs of assignment or amendment of such
letter of credit required (which assignment or amendment shall change the
beneficiary of the letter of credit to the Trust in care of the Master Servicer)
in order for the Master Servicer to draw on such letter of credit on behalf of
the Trust. In the event that the documents specified in clause (xviii) on
Exhibit B are missing because the related assignment or amendment documents have
not been completed, the Seller shall take all reasonably necessary steps to
enable the Master Servicer to draw on the related letter of credit on behalf of
the Trust including, if necessary, drawing on the letter of credit in its own
name pursuant to written instructions from the Master Servicer and immediately
remitting such funds (or causing such funds to be remitted) to the Master
Servicer.
Contemporaneously with the execution of this Agreement by the
Purchaser and the Seller, the Seller shall deliver a power of attorney to each
of the Master Servicer and the Special Servicer at the direction of the
Controlling Class Representative or its assignees, to take such other action as
is necessary to effect the delivery, assignment and/or recordation of any
documents and/or instruments relating to the Mortgage Loan which have not been
delivered, assigned or recorded at the time required for enforcement by the
Trust Fund. The Seller will be required to effect at its expense the assignment
and recordation of its Loan Documents until the assignment and recordation of
all such Loan Documents has been completed.
(c) As to the Mortgage Loan, the Seller shall be responsible for
all costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (viii)(B) of Exhibit B and each
UCC-2 and UCC-3 assignment of financing statement, if any, referred to in clause
(v)(B) of Exhibit B. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause the preparation of a substitute therefor
or cure or cause the curing of such defect, as the case may be, and shall
thereafter deliver the substitute or corrected document to or at the direction
of the Purchaser (or any subsequent owner of the affected Mortgage Loan,
including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) Except as provided below, all documents and records in the
Seller's possession (or under its control) relating to the Mortgage Loan that is
not required to be a part of a Mortgage File in accordance with Exhibit B but
that is reasonably required to service the Mortgage Loan (all such other
documents and records, including Environmental Reports, as to the Mortgage Loan,
the "Servicing File"), together with all escrow payments, reserve funds and
other comparable funds in the possession of the Seller (or under its control)
with respect to the Mortgage Loan, shall (unless they are held by a sub-servicer
that shall, as of the Closing Date, begin acting on behalf of the Master
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date; provided, however, the Seller shall not be required to deliver,
and the Servicing File shall not be deemed to include drafts of Loan Documents,
attorney-client or internal communications of the Seller or its affiliates or
Seller's credit underwriting or due diligence analyses or related data (as
distinguished from Environmental Reports, financial statements, credit reports,
title reports, structural and engineering reports, appraisals and other reports,
analyses or data provided by the Borrowers or third parties other than the
Seller's attorneys). If a sub-servicer shall, as of the Closing Date, begin
acting on behalf of the Master Servicer with respect to the Mortgage Loan
pursuant to a written agreement between such parties, the Seller or its agent
shall deliver a copy of the related Servicing File to the Master Servicer.
(e) Each of the Seller's and the Purchaser's records will reflect
the transfer of the Mortgage Loan to the Purchaser as a sale, including for
accounting purposes. Following the transfer of the Mortgage Loan to the
Purchaser, the Seller will not take any action to suggest that the Purchaser is
not the legal owner of the Mortgage Loan.
(f) Furthermore, it is the express intent of the parties hereto
that the conveyance of the Mortgage Loan by Seller to Purchaser as provided in
this Agreement be, and be construed as, a sale of the Mortgage Loan by Seller to
Purchaser. It is, further, not the intention of the parties that such conveyance
be deemed a pledge of the Mortgage Loan by Seller to Purchaser to secure a debt
or other obligation of Seller. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loan is held to be property of Seller or if
for any reason this Agreement is held or deemed to create a security interest in
the Mortgage Loan:
(i) this Agreement shall hereby create a security agreement
within the meaning of Articles 8 and 9 of the Uniform Commercial Code in
effect in the applicable state;
(ii) the conveyance provided for in this Agreement shall hereby
grant from Seller to Purchaser a security interest in and to all of
Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) all accounts, contract rights (including any
guarantees), general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
property described in the Mortgage Loan, including the related
Notes, Mortgage and title, hazard and other insurance policies,
identified on the Mortgage Loan Schedule, and all distributions
with respect thereto payable after the Cut-off Date;
(B) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of
credit and investment property arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount), in each
case, payable after the Cut-off Date; and
(C) all cash and non-cash proceeds of the collateral
described in clauses (A) and (B) above payable after the Cut-off
Date;
(iii) the possession by Purchaser or its assignee of the Notes
and such other goods, letters of credit, advices of credit, instruments,
money, documents, chattel paper or certificated securities shall be
deemed to be possession by the secured party or possession by a
purchaser or a person designated by him or her, for purposes of
perfecting the security interest pursuant to the Uniform Commercial Code
(including, without limitation, Sections 9-306, 9-313 and 9-314 thereof)
as in force in the relevant jurisdiction; and
(iv) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, securities intermediaries, bailees or
agents of, or persons holding for (as applicable), Purchaser or its
assignee for the purpose of perfecting such security interest under
applicable law.
The Seller at the direction of the Purchaser or its assignee,
shall, to the extent consistent with this Agreement, take such actions as may be
reasonably necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loan and the proceeds thereof, such security
interest would be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of this
Agreement. In connection herewith, Purchaser and its assignee shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction and may execute and
file such UCC Financing Statements as may be reasonably necessary or appropriate
to accomplish the foregoing.
(g) It is further acknowledged and agreed by the Seller that the
Purchaser intends to convey all right, title and interest of the Purchaser in
and to the Mortgage Loan and all rights and remedies under this Agreement
(excluding the Seller's representations, warranties and covenants set forth in
paragraph (viii) of Section 4(b), the Purchaser's rights and remedies under
Section 9 and the BCRE Indemnification Agreement) to the Trustee on behalf of
the Certificateholders, including, without limitation, all rights and remedies
as may be available under Section 6 to the Purchaser in the event of a Material
Breach or a Material Defect; provided, that the Trustee on behalf of the
Certificateholders shall be a third-party beneficiary of this Agreement and
shall be entitled to enforce any obligations of the Seller hereunder in
connection with a Material Breach or a Material Defect as if the Trustee on
behalf of the Certificateholders had been an original party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law under Section 6 for a breach of the Seller's representations,
warranties and covenants set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby makes with respect to the Mortgage Loan, as
of the date hereof (or as of such other date specifically provided in the
particular representation or warranty), to and for the benefit of the Purchaser,
the Trustee on behalf of the Certificateholders and the respective
successors-in-interest of the Purchaser and the Trustee, each of the
representations and warranties set forth in Exhibit C subject to the exceptions
set forth in Exhibit D and any schedule referenced in Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware, and is in
compliance with the laws of each State in which any Mortgaged Property
is located to the extent necessary to ensure the enforceability of the
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller,
and the performance of, and compliance with, the terms of this Agreement
by the Seller, do not violate the Seller's organizational documents, or
constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets, in each case which
materially and adversely affects the ability of the Seller to carry out
the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification or contribution for
securities laws liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement do not constitute a violation of, any law,
any judgment, order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(vi) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Seller to perform its obligations
under this Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchaser, and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loan or the consummation of any of the
other transactions contemplated hereby.
(viii) Insofar as it relates to the Mortgage Loan, the
information set forth in Annex A-1 and Annex A-2 to the Prospectus
Supplement (as defined in the BCRE Indemnification Agreement) (the "Loan
Detail") and, to the extent consistent therewith, the information set
forth on the diskette attached to the Prospectus Supplement and the
accompanying prospectus (the "Diskette"), is true and correct in all
material respects. Insofar as it relates to the description of the
Mortgage Loan and/or the Seller and does not represent a restatement or
aggregation of the information on the Loan Detail, the information set
forth in the Time of Sale Information (as defined in the BCRE
Indemnification Agreement), the Memorandum (as defined in the BCRE
Indemnification Agreement) (insofar as the Prospectus Supplement is an
exhibit thereto) and in the Prospectus Supplement under the headings
"Summary of the Prospectus Supplement--Relevant Parties and
Dates--Mortgage Loan Sellers" "--The Mortgage Pool," "Risk
Factors--Risks Related to the Mortgage Loans" and "Description of the
Mortgage Pool" and the information set forth on Annex A-1 and Annex A-2
and Annex B to the Prospectus Supplement, and to the extent it contains
information consistent with that on such Annex A-1 and Annex A-2 set
forth on the Diskette, does not (or, in the case of the Time of Sale
Information, did not as of the Time of Sale (as defined in the BCRE
Indemnification Agreement)) contain any untrue statement of a material
fact or (in the case of the Memorandum, when read together with the
other information specified therein as being available for review by
investors) omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(ix) The information set forth in any Disclosure Information (as
defined in the BCRE Indemnification Agreement), as last forwarded to
each prospective investor at or prior to the date on which a contract
for sale was entered into with such prospective investor, (i) does not
contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and (ii)
complies with the requirements of and contains all of the applicable
information required by Regulation AB (as defined in the BCRE
Indemnification Agreement); but only to the extent that (i) such
information regards the Mortgage Loan and is contained in the Loan
Detail or, to the extent consistent therewith, the Diskette or (ii) such
information regarding the Seller or the Mortgage Loan was contained in
the Memorandum or the Prospectus Supplement under the headings "Summary
of the Prospectus Supplement--Relevant Parties and Dates," "--Mortgage
Loan Sellers," --Originators," "--The Mortgage Pool," "Risk
Factors--Risks Related to the Mortgage Loans," "Transaction Parties"
"Description of the Mortgage Pool" and Annex B and such information does
not represent an incorrect restatement or an incorrect aggregation of
correct information regarding the Mortgage Loan contained in the Loan
Detail.
(x) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any
bulk sale laws), for the execution, delivery and performance of, or
compliance by, the Seller with this Agreement, or the consummation by
the Seller of any transaction contemplated hereby, other than (1) the
filing or recording of financing statements, instruments of assignment
and other similar documents necessary in connection with the Seller's
sale of the Mortgage Loan to the Purchaser, (2) such consents,
approvals, authorizations, qualifications, registrations, filings or
notices as have been obtained, made or given and (3) where the lack of
such consent, approval, authorization, qualification, registration,
filing or notice would not have a material adverse effect on the
performance by the Seller under this Agreement.
(c) Upon discovery by any of the Seller or the parties to the
Pooling and Servicing Agreement of a breach of any of the representations and
warranties made pursuant to and set forth in subsection (b) above which
materially and adversely affects the interests of the Purchaser or a breach of
any of the representations and warranties made pursuant to subsection (a) above
and set forth in Exhibit C which materially and adversely affects the value of
the Mortgage Loan, the value of the related Mortgaged Property or the interests
therein of the Purchaser, the Trustee on behalf of the Certificateholders or any
Certificateholder, the party discovering such breach shall give prompt written
notice to the Seller and/or the other parties, as applicable.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance of, and compliance with, the terms of
this Agreement by the Purchaser, do not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement will not constitute a violation of, any law,
any judgment, order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchaser and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale
of the Mortgage Loan or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or
court is required, under federal or state law, for the Purchaser's
execution, delivery and performance of or compliance by the Purchaser
with this Agreement, or the consummation by the Purchaser of any
transaction contemplated hereby, other than (1) such consents,
approvals, authorizations, qualifications, registrations, filings or
notices as have been obtained, made or given and (2) where the lack of
such consent, approval, authorization, qualification, registration,
filing or notice would not have a material adverse effect on the
performance by the Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of
any of the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases; Substitutions.
(a) If any of the parties to this Agreement discovers that any
document constituting a part of a Mortgage File has not been delivered within
the time periods provided for herein, has not been properly executed, is
missing, does not appear to be regular on its face or contains information that
does not conform in any material respect with the corresponding information set
forth in the Mortgage Loan Schedule (each, a "Defect"), or discovers or receives
notice of a breach of any representation or warranty of the Seller made pursuant
to Section 4(a) of this Agreement with respect to the Mortgage Loan (a
"Breach"), such party shall give prompt written notice thereof to each of the
Rating Agencies, the Seller, the parties to the Pooling and Servicing Agreement
and the Controlling Class Representative. If any such Defect or Breach
materially and adversely affects the value of the Mortgage Loan, the value of
the related Mortgaged Property or the interests therein of the Purchaser, the
Trustee or any Certificateholders, then such Defect shall constitute a "Material
Defect" or such Breach shall constitute a "Material Breach," as the case may be;
provided, however, that if any of the documents specified in the first paragraph
of Section 2.01(b) of the Pooling and Servicing Agreement is not delivered, and
is certified as missing, pursuant to the first paragraph of Section 2.01(b) of
the Pooling and Servicing Agreement, it shall be deemed a Material Defect.
Promptly upon receiving written notice of any such Material Defect or Material
Breach with respect to the Mortgage Loan (including through a written notice
given by any party hereto, as provided above), the Seller shall, not later than
90 days from the Seller's receipt of notice from the Master Servicer, the
Special Servicer, the Trustee or the Custodian of such Material Defect or
Material Breach, as the case may be (or, in the case of a Material Defect or
Material Breach relating to a Mortgage Loan not being a "qualified mortgage"
within the meaning of the REMIC Provisions, not later than 90 days after the
Seller or any party to the Pooling and Servicing Agreement discovering such
Material Defect or Material Breach) (any such 90-day period, the "Initial
Resolution Period"), (i) cure the same in all material respects, (ii) repurchase
the Mortgage Loan at the applicable Repurchase Price or (iii) substitute a
Qualifying Substitute Mortgage Loan for such Mortgage Loan (provided that in no
event shall such substitution occur later than the second anniversary of the
Closing Date) and pay to the Master Servicer for deposit into the Collection
Account (or, with respect to any Serviced Whole Loan, the applicable Serviced
Whole Loan Collection Account) any Substitution Shortfall Amount in connection
therewith; provided, however, that with respect to any Material Defect arising
from a missing document as to which the Trustee inadvertently certified its
possession of such document (x) on the Closing Date, in the form of Exhibit S-1
to the Pooling and Servicing Agreement or (y) no later than 45 days following
the Closing Date, in the form of Exhibit S-2 to the Pooling and Servicing
Agreement, the related Seller shall have (A) 15 days to cure the Material Defect
relating to the missing document in the certification of clause (x) and (B) 30
days to cure the Material Defect relating to the missing document in the
certification of clause (y); provided, further, that if (i) such Material Defect
or Material Breach (other than one relating to the immediately preceding
proviso) is capable of being cured but not within the Initial Resolution Period,
(ii) such Material Defect or Material Breach is not related to the Mortgage
Loan's not being a "qualified mortgage" within the meaning of the REMIC
Provisions and (iii) the Seller has commenced and is diligently proceeding with
the cure of such Material Defect or Material Breach within the Initial
Resolution Period, then the Seller shall have an additional period equal to the
applicable Resolution Extension Period to complete such cure or, failing such
cure, to repurchase the Mortgage Loan or substitute a Qualifying Substitute
Mortgage Loan. The Seller shall have an additional 90 days (without duplication
of the additional 90-day period set forth in the last sentence of the definition
of Resolution Extension Period) to cure such Material Defect or Material Beach,
provided that, the Seller has commenced and is diligently proceeding with the
cure of such Material Defect or Material Breach and such failure to cure is
solely the result of a delay in the return of documents from the local filing or
recording authorities. Notwithstanding the foregoing, if a Mortgage Loan is not
secured by a hotel, restaurant (operated by a Borrower), healthcare facility,
nursing home, assisted living facility, self-storage facility, theatre,
manufactured housing or fitness center (operated by a Borrower) property, then
the failure to deliver to the Trustee copies of the UCC financing statements
with respect to such Mortgage Loan shall not be a Material Defect. For the
avoidance of doubt, Seller shall only be obligated to take remedial actions with
respect to the Mortgage Loan identified on the schedule annexed hereto as
Exhibit A.
If the Seller is notified of a Defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such Defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes. The failure of the Master Servicer, the Special Servicer or the
Trustee to notify the Seller of a Material Defect or Material Breach shall not
constitute a waiver of any cure or repurchase obligation, provided that the
Seller must receive written notice thereof as described in this Section 6(a)
before commencement of the Initial Resolution Period.
(b) In connection with any repurchase of, or substitution for,
the Mortgage Loan contemplated by this Section 6, (A) the Trustee, the Master
Servicer (with respect to the Mortgage Loan at a time when the loan is not a
Specially Serviced Loan) and the Special Servicer (with respect to such Mortgage
Loan at a time when it is a Specially Serviced Loan) shall each tender to the
Seller, and the Seller shall be entitled to receive therefrom, upon delivery (i)
to each of the Master Servicer or the Special Servicer, as applicable, of a
trust receipt and (ii) to the Trustee by the Master Servicer or the Special
Servicer, as applicable, of a Request for Release and an acknowledgement by the
Master Servicer or applicable Special Servicer, as applicable, of its receipt of
the Repurchase Price or the Substitution Shortfall Amount from the Seller, (1)
all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it and (2) each document that constitutes a part of
the Mortgage File that was endorsed or assigned to the Trustee shall be endorsed
or assigned without recourse in the form of endorsement or assignment provided
to the Trustee by the Seller, as the case may be, to the Seller as shall be
necessary to vest in the Seller the legal and beneficial ownership of each
Removed Mortgage Loan to the extent such ownership was transferred to the
Trustee, and (B) the Trustee shall release, or cause the release of, any escrow
payments and reserve funds held by or on behalf of the Trustee, the Master
Servicer or the Special Servicer, in respect of such Removed Mortgage Loan(s) to
the Seller.
(c) This Section 6 provides the sole remedies available to the
Purchaser, and its successors and permitted assigns (i.e., the Trustee and the
holders of the Certificates) in respect of any Defect in a Mortgage File or any
Breach. If the Seller defaults on its obligations to cure, to repurchase, or to
substitute for, the Mortgage Loan in accordance with this Section 6, or disputes
its obligation to cure, to repurchase, or to substitute for, the Mortgage Loan
in accordance with Section 6, the Purchaser or the Trustee, as applicable, may
take such action as is appropriate to enforce such payment or performance,
including, without limitation, the institution and prosecution of appropriate
proceedings. To the extent the Purchaser or the Trustee, as applicable, prevails
in such proceeding, the Seller shall reimburse the Purchaser or the Trustee, as
applicable, for all necessary and reasonable costs and expenses incurred in
connection with the enforcement of such obligation of the Seller to cure, to
repurchase, or to substitute for, the Mortgage Loan in accordance with this
Section 6.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties with respect to
the Mortgage Loan the Seller will not be obligated to repurchase the Mortgage
Loan if (i) the affected Mortgaged Property may be released pursuant to the
terms of any partial release provisions in the related Loan Documents (and such
Mortgaged Property is, in fact, released), (ii) the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the Loan Documents
and the Seller provides an Opinion of Counsel to the effect that such release
would not cause an Adverse REMIC Event to occur and (iii) each Rating Agency
then rating the Certificates shall have provided written confirmation that such
release would not cause the then-current ratings of the Certificates rated by it
to be qualified, withdrawn or downgraded.
As to any Qualifying Substitute Mortgage Loan, at the direction
of the Trustee, the Seller shall deliver to the Custodian for such Qualifying
Substitute Mortgage Loan (with a copy to the Master Servicer), the related
Mortgage File with the related Note endorsed as required by Exhibit B hereto.
Pursuant to the Pooling and Servicing Agreement, Monthly Payments due with
respect to Qualifying Substitute Mortgage Loans in or prior to the month of
substitution shall not be part of the Trust Fund and will be retained by the
Master Servicer and remitted by the Master Servicer to the related Seller on the
next succeeding Distribution Date. For the month of repurchase or substitution,
distributions to Certificateholders pursuant to the Pooling and Servicing
Agreement will include the Monthly Payment(s) due on the related Removed
Mortgage Loan and received by the Master Servicer or the Special Servicer on
behalf of the Trust on or prior to the related date of repurchase or
substitution, as applicable, and the Seller shall be entitled to retain all
amounts received thereafter in respect of such Removed Mortgage Loan.
In any month in which the Seller substitutes a Qualifying
Substitute Mortgage Loan for a Removed Mortgage Loan, pursuant to the Pooling
and Servicing Agreement, the Master Servicer will determine the applicable
Substitution Shortfall Amount. At the direction of the Trustee, the Seller shall
deposit cash equal to such amount into the Collection Account and/or the
applicable Serviced Whole Loan Collection Account, as applicable, concurrently
with the delivery of the Mortgage Files for such Qualifying Substitute Mortgage
Loan, without any reimbursement thereof. At the direction of the Trustee, the
Seller shall give written notice to the Purchaser and the Master Servicer of
such deposit.
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loan (the
"Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP,
Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York
City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller and
the Purchaser specified herein shall be true and correct as of the
Closing Date, and the Aggregate Cut-off Date Balance shall be within the
range permitted by Section 1 of this Agreement;
(ii) All of the documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser and, in the case of the Pooling and Servicing Agreement
(insofar as such Agreement affects the obligations of the Seller
hereunder) and other documents to be delivered by or on behalf of the
Purchaser, to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) The Seller (or its agent) shall have delivered and released
to the Trustee, the Purchaser or the Purchaser's designee, as the case
may be, all documents and funds required to be so delivered on or before
the Closing Date pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied
with, and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(vi) The Seller shall have received the consideration for the
Mortgage Loan as specified in Section 1, and the Seller shall have paid
or agreed to pay all fees, costs and expenses payable by it to the
Purchaser pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loan on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement and a xxxx of sale duly executed and delivered
by the Purchaser and the Seller;
(b) An Officer's Certificate substantially in the form of Exhibit
E-1 hereto, executed by the Secretary or an assistant secretary of the Seller,
and dated the Closing Date, and upon which the Purchaser, the Initial Purchaser
and each Underwriter may rely, attaching thereto as an exhibit the By-Laws of
the Seller;
(c) A certificate of good standing regarding the Seller from the
Secretary of State for the State of Delaware, dated not earlier than 30 days
prior to the Closing Date;
(d) Written opinions of counsel (which may include opinions of
in-house counsel, outside counsel or a combination thereof) for the Seller, in
form reasonably acceptable to counsel for the Purchaser and subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller and acceptable to counsel for the Purchaser, dated the Closing Date and
addressed to the Purchaser, the Initial Purchaser and each Underwriter;
(e) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates, each of which shall include the Purchaser, the Initial Purchaser
and each Underwriter as an addressee; and
(f) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Costs.
The Seller shall pay (or shall reimburse the Purchaser to the
extent that the Purchaser has paid) (a) the fees and expenses of counsel to the
Seller, (b) the expenses of filing or recording UCC assignments of financing
statements, assignments of Mortgage and Reassignments of Assignments of Leases,
Rents and Profits with respect to the Mortgage Loan as contemplated by Article 2
of the Pooling and Servicing Agreement and (c) on the Closing Date, the Seller's
pro rata portion of the aggregate of the following amounts (the Seller's pro
rata portion to be determined according to the percentage that the aggregate
principal balance of the Mortgage Loan as of the Cut-off Date represents of the
aggregate principal balance of the Mortgage Loan and the Other Mortgage Loans as
of the Cut-off Date): (i) the costs and expenses of printing (or otherwise
reproducing) and delivering a preliminary and final Prospectus relating to the
Certificates; (ii) the up front fees, costs, and expenses of the Trustee
(including reasonable attorneys' fees) incurred in connection with the Trustee
entering into and performing certain of its obligations under the Pooling and
Servicing Agreement; (iii) the filing fee charged by the Securities and Exchange
Commission for registration of the Certificates so registered; (iv) the fees
charged by the Rating Agencies to rate the Certificates so rated; (v) the fees
and expenses of counsel to the Underwriters; (vi) the fees and expenses of
counsel to the Purchaser; (vii) the fees and expenses of counsel to the
Servicers; (viii) the cost of obtaining a "comfort letter" from a firm of
certified public accountants selected by the Purchaser and the Seller with
respect to numerical information in respect of the Mortgage Loan and the Other
Mortgage Loans included in the Prospectus; and (ix) other miscellaneous costs
and expenses agreed upon by the parties hereto. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by overnight mail or courier service and received by the
addressee or (d) transmitted by facsimile (or any other type of electronic
transmission agreed upon by the parties) and confirmed by a writing delivered by
any of the means described in (a), (b) or (c), if (i) to the Purchaser,
addressed to Deutsche Mortgage & Asset Receiving Corporation, 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx, facsimile no. (000) 000-0000,
with a copy to Xxxx Xxxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile no. (000) 000-0000, or
such other address or facsimile number as may hereafter be furnished to the
Seller in writing by the Purchaser; and if (ii) to the Seller, addressed to
Barclays Capital Real Estate Inc., , 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxxxx, with a copy to Xxx Xxxxxxxx, Esq. and Xxxxx
Xxxxxxxx, Esq. at Barclays Capital Real Estate Inc., 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 and Xxx Xxxxxx and Xxx Xxxxxxxx at Xxxxxxx, Xxxxxxxx & Xxxx, LLP,
Two World Financial Center, New York, New York 10281, or to such other address
or facsimile number as the Seller may designate in writing to the Purchaser.
SECTION 11. Notice of Exchange Act Reportable Events.
The Seller hereby agrees to deliver to the Purchaser and the
Trustee any disclosure information relating to any event, specifically relating
to the Seller, reasonably determined in good faith by the Purchaser as required
to be reported on Form 8-K, Form 10-D or Form 10-K by the Trust Fund (in
formatting reasonably appropriate for inclusion in such form) insofar as such
disclosure is required under Items 1117 and 1119 of Regulation AB and Item 1.03
to Form 8-K. The Seller shall use reasonable efforts to deliver proposed
disclosure language relating to any event, specifically relating to the Seller,
described under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K
to the Trustee and the Purchaser as soon as reasonably practicable after the
Seller becomes aware of such event and in no event more than two business days
following the occurrence of such event if such event is reportable under Item
1.03 to Form 8-K. The obligation of the Seller to provide the above referenced
disclosure materials will terminate upon notice or other written confirmation
from the Purchaser or the Trustee that the Trustee has filed a Form 15 with
respect to the Trust Fund as to that fiscal year in accordance with Section
10.10(a) of the Pooling and Servicing Agreement or the reporting requirements
with respect to the Trust under the Securities Exchange Act of 1934 have
otherwise automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section will be used in the
preparation of reports meeting the reporting requirements of the Trust under
Section 13(a) and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loan by the
Seller to the Purchaser or its designee.
SECTION 13. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 15. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 16. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller under this Agreement
shall not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part (excluding the Seller's
representations, warranties and covenants set forth in paragraph (viii) of
Section 4(b), the Purchaser's rights and remedies under Section 9 and the BCRE
Indemnification Agreement), to the Trustee, for the benefit of the
Certificateholders, as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall, to the extent
of such assignment, succeed to the rights and obligations hereunder of the
Purchaser, provided that the Trustee shall have no right to further assign such
rights to any other Person. Subject to the foregoing, this Agreement shall bind
and inure to the benefit of and be enforceable by the Seller and the Purchaser,
and their permitted successors and permitted assigns.
SECTION 18. Amendments.
No term or provision of this Agreement may be amended, waived,
modified or in any way altered, unless such amendment, waiver, modification or
alteration is in writing and signed by a duly authorized officer of the party
against whom such amendment, waiver, modification or alteration is sought to be
enforced.
U
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized officers as
of the date first above written.
BARCLAYS CAPITAL REAL ESTATE INC.
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: President
DEUTSCHE MORTGAGE & ASSET RECEIVING
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things,
the following information with respect to the Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip code) of
the related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date;
(iv) the original principal balance;
(v) the Stated Principal Balance as of the Cut-off Date;
(vi) the Maturity Date or Anticipated Repayment Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(ix) the Servicing Fee Rate;
(x) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(xi) whether such Mortgage Loan has an Anticipated Repayment
Date;
(xii) the Revised Rate of such Mortgage Loan, if any;
(xiii) whether such Mortgage Loan has a hard lock-box, a
springing hard lock-box, a soft-at-closing, springing hard lock-box or no
lock-box at all; and
(xiv) the number of units, pads, rooms or square feet with
respect to each Mortgaged Property.
Such list may be in the form of more than one list, collectively setting forth
all of the information required. Certain of the above-referenced items are
described on the Mortgage Loan Schedule attached hereto. Certain of the
above-referenced items are described on Exhibit B-1 to the Pooling and Servicing
Agreement and such descriptions are incorporated by reference into the Mortgage
Loan Schedule attached hereto.
ID Mortgage Loan Seller City State Zip Code Address Interest Rate Original Balance Cut-off Date Balance
-- -------------------- ---- ----- -------- ------- ------------- ---------------- --------------------
2 CGM/BCRE Various Various Various Various 6.5875% $ 259,241,258 $ 258,407,576
CTL Tenant Corporate
ID Maturity/ARD Balance Payment Date Monthly Debt Service CTL Tenant CTL Guarantor Credit Rating (S/M/F)
-- -------------------- ------------ -------------------- ---------- ------------- ---------------------
2 $ 223,616,541 5 $ 1,653,527
ID Administrative Fee Rate Interest Accrual Basis ARD (Yes/No)
-- ----------------------- -----------------------------------
2 0.03% Actual/360 No
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for the Mortgage Loan shall, subject to
Section 2(b), collectively consist of the following documents:
(i) (A) the original Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the Originator, without recourse, either in
blank or to the order of the Trustee in the following form: "Pay to the order of
LaSalle Bank National Association, as Trustee for the registered holders of CD
2006-CD3, Commercial Mortgage Pass-Through Certificates, without recourse"; and
(B) in the case of each related Serviced Companion Loan, a copy of the executed
Note for such Serviced Companion Loan;
(ii) the original or a copy of the Mortgage and, if applicable,
the originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the Mortgage Loan or
Serviced Whole Loan to the most recent assignee of record thereof prior to the
Trustee, if any, in each case with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the Originator, either in blank or in favor of the Trustee (in such
capacity);
(iv) (A) an original or copy of any related security agreement
(if such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the Originator of the Mortgage Loan or Serviced Whole
Loan to the most recent assignee of record thereof prior to the Trustee, if any;
and (B) an original assignment of any related security agreement (if such item
is a document separate from the related Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the Originator,
either in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage referred to
in clause (iii) above;
(v) (A) stamped or certified copies of any UCC financing
statements and continuation statements which were filed in order to perfect (and
maintain the perfection of) any security interest held by the Originator of the
Mortgage Loan (and each assignee of record prior to the Trustee) in and to the
personalty of the Borrower at the Mortgaged Property (in each case with evidence
of filing or recording thereon) and which were in the possession of the Seller
(or its agent) at the time the Mortgage Files were delivered to the Custodian,
together with original UCC-2 or UCC-3 assignments of financing statements
showing a complete chain of assignment from the secured party named in such
UCC-1 financing statement to the most recent assignee of record thereof prior to
the Trustee, if any, and (B) if any such security interest is perfected and the
earlier UCC financing statements and continuation statements were in the
possession of the Seller, an assignment of UCC financing statement by the most
recent assignee of record prior to the Trustee or, if none, by the Originator,
evidencing the transfer of such security interest, either in blank or in favor
of the Trustee;
(vi) the original or a copy of the Loan Agreement thereof
relating to such Mortgage Loan, if any;
(vii) the original or a copy of the lender's title insurance
policy issued in connection with the origination of the Mortgage Loan, together
with all endorsements or riders (or copies thereof) that were issued with or
subsequent to the issuance of such policy, insuring the priority of the Mortgage
as a first lien on the Mortgaged Property or a "marked-up" commitment to insure
marked as binding and countersigned by the related insurer or its authorized
agent (which may be a pro forma or specimen title insurance policy which has
been accepted or approved as binding in writing by the related title insurance
company), or an agreement to provide the same pursuant to binding escrow
instructions executed by an authorized representative of the title company;
(viii) (A) the original or a copy of the related Assignment of
Leases, Rents and Profits (if such item is a document separate from the
Mortgage) and, if applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment from the Originator
of the Mortgage Loan to the most recent assignee of record thereof prior to the
Trustee, if any, in each case with evidence of recording thereon; and (B) an
original assignment of any related Assignment of Leases, Rents and Profits (a
"Reassignment of Assignment of Leases, Rents and Profits") (if such item is a
document separate from the Mortgage), in recordable form, executed by the most
recent assignee of record thereof prior to the Trustee or, if none, by the
Originator, either in blank or in favor of the Trustee (in such capacity), which
assignment may be included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above;
(ix) copies of the original environmental indemnity agreements
and environmental insurance policies pertaining to the Mortgaged Properties
required in connection with origination of the Mortgage Loan, if any;
(x) [Reserved];
(xi) if the Borrower has a leasehold interest in the related
Mortgaged Property, the original Ground Lease or a copy thereof;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of contracts and the
assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral
Account Agreement is separate from the Mortgage or Loan Agreement, a copy
thereof; with respect to the Reserve Accounts, Cash Collateral Accounts and
Lock-Box Accounts, if any, a copy of the UCC-1 financing statements, if any,
submitted for filing with respect to the Seller's security interest in the
Reserve Accounts, Cash Collateral Accounts and Lock-Box Accounts and all funds
contained therein (and UCC-3 assignments of financing statements assigning such
UCC-1 financing statements to the Trustee on behalf of the Certificateholders
and with respect to any Serviced Whole Loan on behalf of Certificateholders and
the related Serviced Companion Loan Noteholders);
(xiv) originals or copies of all assumption, modification,
written assurance and substitution agreements, with evidence of recording
thereon if appropriate, in those instances where the terms or provisions of the
Mortgage, Note or any related security document have been modified or the
Mortgage Loan or Serviced Whole Loan has been assumed;
(xv) the original or a copy of any guaranty of the obligations of
the Borrower under the Mortgage Loan or Serviced Whole Loan together with, as
applicable, (A) the original or copies of any intervening assignments of such
guaranty showing a complete chain of assignment from the Originator of the
Mortgage Loan to the most recent assignee thereof prior to the Trustee and (B)
an original assignment of such guaranty executed by the most recent assignee
thereof prior to the Trustee or, if none, by the Originator;
(xvi) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate) granted by the related Borrower
if the Mortgage, Note or other document or instrument referred to above was
signed on behalf of the Borrower pursuant to such power of attorney;
(xvii) the original (or copy, if the original is held by the
Master Servicer pursuant to Section 2(b)) of any letter of credit for the
benefit of the lender securing such Mortgage Loan;
(xviii) the appropriate assignment or amendment documentation
related to the assignment to the Trust of any letter of credit securing such
Mortgage Loan (or copy thereof, if the original is held by the Master Servicer
pursuant to Section 2(b)) which entitles the Master Servicer on behalf of the
Trust to draw thereon;
(xix) with respect hospitality properties, a copy of the
franchise agreement, if any, an original or copy of the comfort letter, if any,
and any transfer documents with respect to any such comfort letter; and
(xx) with respect to each Whole Loan, a copy of the related
Co-Lender Agreement and a copy of the related Other Pooling and Servicing
Agreement;
provided that whenever the term "Mortgage File" is used to refer
to documents actually received by the Purchaser or the Trustee, such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually so received. The original assignments referred
to in clauses (iii), (iv)(B), (viii)(B) and (xv)(B), may be in the form of one
or more instruments in recordable form in any applicable filing or recording
offices.
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants with respect to the Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date, except as set forth on Exhibit D hereto and the Annex
hereto referred to below:
1. The information pertaining to the Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material respects as of
the Cut-off Date.
2. As of the date of its origination, the Mortgage Loan and, the
interest (exclusive of any default interest, late charges or prepayment
premiums) contracted for thereunder, complied in all material respects with, or
was exempt from, all requirements of federal, state or local law relating to the
origination of the Mortgage Loan, including those pertaining to usury.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good and marketable title to, and was the sole owner
of the Mortgage Loan, and the Seller is transferring the Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests of any nature
encumbering the Mortgage Loan. Upon consummation of the transactions
contemplated by the Mortgage Loan Purchase Agreement, the Seller will have
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to the Mortgage Loan free and clear of any pledge, lien or
security interest.
4. The proceeds of the Mortgage Loan have been fully disbursed
(except if the Mortgage Loan is a Mortgage Loan as to which a portion of the
funds disbursed are being held in escrow or reserve accounts) and there is no
requirement for future advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed by the Borrower in connection with the
Mortgage Loan is a legal, valid and binding obligation of the related Borrower
(subject to any non-recourse provisions therein and any state anti-deficiency or
market value limit deficiency legislation), enforceable in accordance with its
terms, except (a) that certain provisions contained in the Mortgage Loan
documents are or may be unenforceable in whole or in part under applicable state
or federal laws, but neither the application of any such laws to any such
provision nor the inclusion of any such provisions renders any of the Mortgage
Loan documents invalid as a whole and such Mortgage Loan documents taken as a
whole are enforceable to the extent necessary and customary for the practical
realization of the rights and benefits afforded thereby and (b) as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). The related Mortgage Note and Mortgage contain no provision limiting
the right or ability of the Seller to assign, transfer and convey the related
Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with respect to any of
the related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-off Date, there is no valid offset,
defense, counterclaim or right to rescission with respect to such Mortgage Note,
Mortgage(s) or other agreements, except in each case, with respect to the
enforceability of any provisions requiring the payment of default interest, late
fees, additional interest, prepayment premiums or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of
Assignment of Leases from the Seller to the Trustee constitutes the legal, valid
and binding assignment from the Seller, except as such enforcement may be
limited by bankruptcy, insolvency, redemption, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting creditors'
rights generally or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). Each Mortgage
and Assignment of Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property subject only to the exceptions set forth in
representation (5) above and the following title exceptions (each such title
exception, a "Title Exception", and collectively, the "Title Exceptions"): (a)
the lien of current real property taxes, ground rents, water charges, sewer
rents and assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record, none
of which, individually or in the aggregate, materially and adversely interferes
with the current use of the Mortgaged Property or the security intended to be
provided by such Mortgage or with the Borrower's ability to pay its obligations
under the Mortgage Loan when they become due or materially and adversely affects
the value of the Mortgaged Property, (c) the exceptions (general and specific)
and exclusions set forth in the applicable policy described in representation
(12) below or appearing of record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the Borrower's
ability to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (d) other
matters to which like properties are commonly subject, none of which,
individually or in the aggregate, materially and adversely interferes with the
current use of the Mortgaged Property or the security intended to be provided by
such Mortgage or with the Borrower's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely affects the value
of the Mortgaged Property, (e) the right of tenants (whether under ground
leases, space leases or operating leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such tenants are
performing under such leases), (f) if such Mortgage Loan is cross-collateralized
with any other Mortgage Loan, the lien of the Mortgage for such other Mortgage
Loan, and (g) if such Mortgage Loan is part of a Serviced Whole Loan, the lien
of the Mortgage for the related Companion Loan, none of which, individually or
in the aggregate, materially and adversely interferes with the current use of
the Mortgaged Property or the security intended to be provided by such Mortgage
or with the Borrower's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property.
9. UCC Financing Statements have been filed and/or recorded (or,
if not filed and/or recorded, have been submitted in proper form for filing and
recording) in all public places necessary at the time of the origination of the
Mortgage Loan to perfect a valid security interest in all items of personal
property reasonably necessary to operate the Mortgaged Property owned by a
Borrower and located on the related Mortgaged Property (other than any personal
property subject to a purchase money security interest or a sale and leaseback
financing arrangement permitted under the terms of such Mortgage Loan or any
other personal property leases applicable to such personal property), to the
extent perfection may be effected pursuant to applicable law by recording or
filing, and the Mortgages, security agreements, chattel Mortgages or equivalent
documents related to and delivered in connection with the related Mortgage Loan
establish and create a valid and enforceable lien and priority security interest
on such items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium, redemption,
liquidation or other laws affecting the enforcement of creditor's rights
generally, or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). Notwithstanding
any of the foregoing, no representation is made as to the perfection of any
security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing of UCC
Financing Statements are required in order to effect such perfection.
10. All real estate taxes and governmental assessments, or
installments thereof, which would be a lien on the Mortgaged Property and that
prior to the Cut-off Date have become delinquent in respect of each related
Mortgaged Property have been paid, or an escrow of funds in an amount sufficient
to cover such payments has been established. For purposes of this representation
and warranty, real estate taxes and governmental assessments and installments
thereof shall not be considered delinquent until the earlier of (a) the date on
which interest and/or penalties would first be payable thereon and (b) the date
on which enforcement action is entitled to be taken by the related taxing
authority.
11. To the Seller's actual knowledge as of the Cut-off Date, and
to the Seller's actual knowledge based solely upon due diligence customarily
performed with the origination of comparable mortgage loans by the Seller, each
related Mortgaged Property was free and clear of any material damage (other than
deferred maintenance for which escrows were established at origination) that
would materially and adversely affect the value of such Mortgaged Property as
security for the Mortgage Loan and to the Seller's actual knowledge as of the
Cut-off Date there was no proceeding pending for the total or partial
condemnation of such Mortgaged Property.
12. The lien of each related Mortgage as a first priority lien in
the original principal amount of such Mortgage Loan (and, in the case of a
Mortgage Loan that is part of a Serviced Whole Loan, in the original (aggregate,
if applicable) principal amount of the other mortgage loan(s) constituting the
related Serviced Whole Loan) after all advances of principal (as set forth on
the Mortgage Loan Schedule) is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller, its successors and assigns,
subject only to the Title Exceptions; the Seller or its successors or assigns is
the named insured of such policy; such policy is assignable without consent of
the insurer and will inure to the benefit of the Trustee as mortgagee of record;
such policy is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; all premiums thereon have been
paid; no material claims have been made under such policy and the Seller has not
done anything, by act or omission, and the Seller has no actual knowledge of any
matter, which would impair or diminish the coverage of such policy. The insurer
issuing such policy is either (x) a nationally recognized title insurance
company or (y) qualified to do business in the jurisdiction in which the related
Mortgaged Property is located to the extent required; such policy contains no
material exclusions for, or affirmatively insures (except for any Mortgaged
Property located in a jurisdiction where such insurance is not available) (a)
access to a public road or (b) against any loss due to encroachments of any
material portion of the improvements thereon.
13. Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightening, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
capital markets conduit lending practices, against other risks insured against
by persons operating like properties in the locality of the Mortgaged Property
in an amount not less than the lesser of the principal balance of the related
Mortgage Loan and the replacement cost of the improvements located at the
Mortgaged Property, and not less than the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged Property,
and the policy contains no provisions for a deduction for depreciation; (b) a
business interruption or rental loss insurance policy, in an amount at least
equal to twelve months of operations of the Mortgaged Property estimated as of
the date of origination by the originator of such Mortgage Loan consistent with
its capital markets conduit lending practices; (c) a flood insurance policy (if
any portion of buildings or other structures on the Mortgage Property are
located in an area identified by the Federal Emergency Management Agency as
having special flood hazards and the Federal Emergency Management Agency
requires flood insurance to be maintained); and (d) a comprehensive general
liability insurance policy in amounts as are generally required by commercial
mortgage lenders for properties of similar types and in any event not less than
$1 million per occurrence. Each insurance policy contains a standard mortgagee
clause that names the mortgagee as an additional insured in the case of
liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination, reduction of coverage or cancellation. No such notice has been
received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Mortgagor to maintain all such
insurance and, upon such Mortgagor's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will (or at the lender's option will) be applied (a)
to the restoration or repair of the related Mortgaged Property, (b) to the
restoration or repair of the related Mortgaged Property, with any excess
insurance proceeds after restoration or repair being paid to the Mortgagor, or
(c) to the reduction of the principal amount of the Mortgage Loan. For each
Mortgaged Property located in a Zone 3 or Zone 4 seismic zone, either: (i) a
seismic report which indicated a PML of less than 20% was prepared, based on a
450 or 475-year average return period with a 10% probability of exceedance in a
50-year period, in connection with the origination of the Mortgage Loan secured
by such Mortgaged Property or (ii) the improvements for the Mortgaged Property
are insured against earthquake damage.
14. The insurance policies contain a standard mortgagee clause
naming the holder of the related Mortgage, its successors and assigns as loss
payee, in the case of a property insurance policy, and additional insured in the
case of a liability insurance policy, and provide that they are not terminable
without 30 days prior written notice to the Mortgagee (or, with respect to
non-payment, 10 days prior written notice to the Mortgagee) or such lesser
period as prescribed by applicable law. Each Mortgage requires that the Borrower
maintain insurance as described above or permits the Mortgagee to require
insurance as described above, and permits the Mortgagee to purchase such
insurance at the Borrower's expense if Borrower fails to do so.
15. Other than payments due but not yet 30 days or more
delinquent, to the Seller's actual knowledge, based upon due diligence
customarily performed with the servicing of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions, there is no material
default, breach, violation or event of acceleration existing under the related
Mortgage or the related Mortgage Note, and to the Seller's actual knowledge no
event (other than payments due but not yet delinquent) which, with the passage
of time or with notice and the expiration of any grace or cure period, would
constitute a material default, breach, violation or event of acceleration;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any paragraph of this Exhibit
C and the Seller has not waived any material default, breach, violation or event
of acceleration under such Mortgage or Mortgage Note, except for a written
waiver contained in the related Mortgage File being delivered to the Purchaser,
and pursuant to the terms of the related Mortgage or the related Mortgage Note
and other documents in the related Mortgage File no Person or party other than
the holder of such Mortgage Note may declare any event of default or accelerate
the related indebtedness under either of such Mortgage or Mortgage Note.
16. As of the Closing Date, each Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past due in
respect of any Scheduled Payment.
17. Except with respect to ARD Loans, which provide that the rate
at which interest accrues thereon increases after the Anticipated Repayment
Date, the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
18. Each related Mortgage does not provide for or permit, without
the prior written consent of the holder of the Mortgage Note, each related
Mortgaged Property to secure any other promissory note or obligation except as
expressly described in such Mortgage or other Mortgage Loan document.
19. The Mortgage Loan is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (a)
substantially all of the proceeds of such Mortgage Loan were used to acquire,
improve or protect the portion of such commercial or multifamily residential
property that consists of an interest in real property (within the meaning of
Treasury Regulations Sections 1.856-3(c) and 1.856-3(d)) and such interest in
real property was the only security for such Mortgage Loan as of the Testing
Date (as defined below), or (b) the fair market value of the interest in real
property which secures such Mortgage Loan was at least equal to 80% of the
principal amount of such Mortgage Loan (i) as of the Testing Date, or (ii) as of
the Closing Date. For purposes of the previous sentence, (A) the fair market
value of the referenced interest in real property shall first be reduced by (1)
the amount of any lien on such interest in real property that is senior to such
Mortgage Loan, and (2) a proportionate amount of any lien on such interest in
real property that is on a parity with the Mortgage Loan, and (B) the "Testing
Date" shall be the date on which the referenced Mortgage Loan was originated
unless (1) such Mortgage Loan was modified after the date of its origination in
a manner that would cause a "significant modification" of such Mortgage Loan
within the meaning of Treasury Regulations Section 1.1001-3(b), and (2) such
"significant modification" did not occur at a time when such Mortgage Loan was
in default or when default with respect to such Mortgage Loan was reasonably
foreseeable. However, if the referenced Mortgage Loan has been subjected to a
"significant modification" after the date of its origination and at a time when
such Mortgage Loan was not in default or when default with respect to such
Mortgage Loan was not reasonably foreseeable, the Testing Date shall be the date
upon which the latest such "significant modification" occurred.
20. One or more environmental site assessments, updates or
transaction screens thereof were performed by an environmental consulting firm
independent of the Seller and the Seller's affiliates with respect to each
related Mortgaged Property during the 18-months preceding the origination of the
related Mortgage Loan, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the assessment(s),
updates or transaction screens referenced herein, has no actual knowledge and
has received no notice of any material and adverse environmental condition or
circumstance affecting such Mortgaged Property that was not disclosed in such
report(s). If any such environmental report identified any Recognized
Environmental Condition (REC), as that term is defined in the Standard Practice
for Environmental Site Assessments: Phase I Environmental Site Assessment
Process Designation: E 1527-00, as recommended by the American Society for
Testing and Materials (ASTM), with respect to the related Mortgaged Property and
the same have not been subsequently addressed in all material respects, then
either (i) an escrow greater than 100% of the amount identified as necessary by
the environmental consulting firm to address the REC is held by the Seller for
purposes of effecting same (and the related Borrower has covenanted in the
Mortgage Loan documents to perform such work), (ii) the related Borrower or
other responsible party having financial resources reasonably estimated to be
adequate to address the REC is required to take such actions or is liable for
the failure to take such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental regulatory
authority or any environmental law or regulation, (iii) the related Borrower has
provided a secured creditor environmental insurance policy (in which case such
Mortgage Loan is identified on Annex A to this Exhibit C), (iv) an operations
and maintenance plan has been or will be implemented or (v) such conditions or
circumstances were investigated further and based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation. All environmental assessments or updates that were
in the possession of the Seller and that relate to a Mortgaged Property insured
by an environmental insurance policy have been delivered to or disclosed to the
environmental insurance carrier issuing such policy prior to the issuance of
such policy.
21. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties similarly situated such as to render the rights
and remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure, subject to
the effects of bankruptcy, insolvency, reorganization, receivership, moratorium,
redemption, liquidation or similar laws affecting the rights of creditors and
the application of principles of equity.
22. At the time of origination and, to the actual knowledge of
Seller as of the Cut-off Date, no Borrower is a debtor in, and no Mortgaged
Property is the subject of, any state or federal bankruptcy or insolvency
proceeding.
23. Except with respect to the Mortgage Loan that is part of a
Serviced Whole Loan, the Mortgage Loan is a whole loan and contains no equity
participation by the Seller or shared appreciation feature and does not provide
for any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property or, other than the ARD Loans,
provide for negative amortization. The Seller holds no preferred equity interest
in the related Borrower.
24. Subject to certain exceptions, which are customarily
acceptable to prudent commercial and multifamily mortgage lending institutions
lending on the security of property comparable to the related Mortgaged
Property, each related Mortgage or loan agreement contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of the Mortgage or loan
agreement, (a) the related Mortgaged Property, or any controlling interest in
the related Borrower, is directly transferred or sold (other than by reason of
family and estate planning transfers, transfers by devise, descent or operation
of law upon the death or incapacity of a member, general partner or shareholder
of the related Borrower, transfers of less than a controlling interest in a
Borrower, issuance of non-controlling new equity interests, transfers among
existing members, partners or shareholders in the Borrower or an affiliate
thereof, transfers among affiliated Borrowers with respect to
cross-collateralized and cross-defaulted Mortgage Loans or multi-property
Mortgage Loans or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan, such as pledges of ownership interest that do
not result in a change of control) or a substitution or release of collateral is
effected other than in the circumstances specified in representation (27) below,
or (b) the related Mortgaged Property is encumbered in connection with
subordinate financing by a lien or security interest against the related
Mortgaged Property, other than any existing permitted additional debt.
25. Except as set forth in the related Mortgage File, the terms
of the related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by such
Mortgage.
26. Each related Mortgaged Property was inspected by or on behalf
of the related originator or an affiliate during the 12-month period prior to
the related origination date.
27. Since origination, no material portion of the related
Mortgaged Property has been released from the lien of the related Mortgage in
any manner which materially and adversely affects the value of the Mortgage Loan
or materially interferes with the security intended to be provided by such
Mortgage, and, except with respect to the Mortgage Loan (a) which permits
defeasance by means of substituting for the Mortgaged Property (or, in the case
of a Mortgage Loan secured by multiple Mortgaged Properties, one or more of such
Mortgaged Properties) "government securities" within the meaning of Treasury
Regulation Section 1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loan (or
portions thereof) in accordance with its terms, (b) where a release of the
portion of the Mortgaged Property was contemplated at origination and such
portion was not considered material for purposes of underwriting the Mortgage
Loan, (c) where release is conditional upon the satisfaction of certain
underwriting and legal requirements and the payment of a release price that
represents adequate consideration for such Mortgaged Property or the portion
thereof that is being released, (d) which permit the related Borrower to
substitute a replacement property in compliance with REMIC Provisions or (e)
which permit the release(s) of unimproved out-parcels or other portions of the
Mortgaged Property that will not have a material adverse affect on the
underwritten value of the security for the Mortgage Loan or that were not
allocated any value in the underwriting during the origination of the Mortgage
Loan, the terms of the related Mortgage do not provide for release of any
portion of the Mortgaged Property from the lien of the Mortgage except in
consideration of payment in full therefor.
28. To the Seller's actual knowledge, based upon a letter from
governmental authorities, a legal opinion, an endorsement to the related title
policy, an architect's letter or zoning consultant's report or based upon other
due diligence considered reasonable by prudent commercial and multifamily
mortgage lending institutions in the area where the applicable Mortgaged
Property is located, as of the date of origination of such Mortgage Loan and as
of the Cut-off Date, there are no material violations of any applicable zoning
ordinances, building codes and land laws applicable to the Mortgaged Property or
the use and occupancy thereof which (a) are not insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, or a law and ordinance insurance policy
or (b) would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
29. To the Seller's actual knowledge based on surveys and/or the
title policy referred to herein obtained in connection with the origination of
the Mortgage Loan, none of the material improvements which were included for the
purposes of determining the appraised value of the related Mortgaged Property at
the time of the origination of the Mortgage Loan lies outside of the boundaries
and building restriction lines of such property (except Mortgaged Properties
which are legal non-conforming uses), to an extent which would have a material
adverse affect on the value of the Mortgaged Property or related Borrower's use
and operation of such Mortgaged Property (unless affirmatively covered by title
insurance) and no improvements on adjoining properties encroached upon such
Mortgaged Property to any material and adverse extent (unless affirmatively
covered by title insurance).
30. With respect to at least 95% of the Seller's Mortgage Loan
(by principal balance) having a Cut-off Date Balance in excess of 1% of the
Initial Pool Balance, the related Borrower has covenanted in its organizational
documents and/or the Mortgage Loan documents to own no significant asset other
than the related Mortgaged Property or Mortgaged Properties, as applicable, and
assets incidental to its ownership and operation of such Mortgaged Property, and
to hold itself out as being a legal entity, separate and apart from any other
Person.
31. No advance of funds has been made other than pursuant to the
loan documents, directly or indirectly, by the Seller to the Borrower and, to
the Seller's actual knowledge, no funds have been received from any Person other
than the Borrower, for or on account of payments due on the Mortgage Note or the
Mortgage.
32. As of the date of origination and, to the Seller's actual
knowledge, as of the Cut-off Date, there was no pending action, suit or
proceeding, or governmental investigation of which it has received notice,
against the Borrower or the related Mortgaged Property the adverse outcome of
which could reasonably be expected to materially and adversely affect such
Borrower's ability to pay principal, interest or any other amounts due under
such Mortgage Loan or the security intended to be provided by the Mortgage Loan
documents or the current use of the Mortgaged Property.
33. As of the date of origination, and, to the Seller's actual
knowledge, as of the Cut-off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has either been
properly designated and serving under such Mortgage or may be substituted in
accordance with the Mortgage and applicable law.
34. Except with respect to the Mortgage Loan that is part of a
Serviced Whole Loan, the related Mortgage Note is not secured by any collateral
that secures a mortgage loan that is not in the Trust Fund and the Mortgage Loan
that is cross-collateralized is cross-collateralized only with other Mortgage
Loans sold pursuant to this Agreement.
35. The improvements located on the Mortgaged Property are either
not located in a federally designated special flood hazard area or the Borrower
is required to maintain or the mortgagee maintains, flood insurance with respect
to such improvements and such insurance policy is in full force and effect.
36. All escrow deposits and payments required pursuant to the
Mortgage Loan as of the Closing Date required to be deposited with the Seller in
accordance with the Mortgage Loan documents have been so deposited, and to the
extent not disbursed or otherwise released in accordance with the related
Mortgage Loan documents, are in the possession, or under the control, of the
Seller or its agent and there are no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to the
related geographic area and properties comparable to the related Mortgaged
Property, as of the date of origination of the Mortgage Loan, the related
Borrower was in possession of all material licenses, permits and authorizations
then required for use of the related Mortgaged Property, and, as of the Cut-off
Date, the Seller has no actual knowledge that the related Borrower was not in
possession of such licenses, permits and authorizations.
38. The origination (or acquisition, as the case may be)
practices used by the Seller or its affiliates with respect to the Mortgage Loan
have been in all material respects legal and the servicing and collection
practices used by the Seller or its affiliates with respect to the Mortgage Loan
have met customary industry standards for servicing of commercial mortgage loans
for conduit loan programs.
39. Except for the Mortgage Loan secured by a Borrower's
leasehold interest in the related Mortgaged Property, the related Borrower (or
its affiliate) has title in the fee simple interest in each related Mortgaged
Property.
40. The Mortgage Loan documents for the Mortgage Loan provide
that each Mortgage Loan is non-recourse to the related Borrower except that the
related Borrower accepts responsibility for fraud and/or other intentional
material misrepresentation. The Mortgage Loan documents for the Mortgage Loan
provide that the related Borrower shall be liable to the lender for losses
incurred due to the misapplication or misappropriation of rents collected in
advance or received by the related Borrower after the occurrence of an event of
default and not paid to the Mortgagee or applied to the Mortgaged Property in
the ordinary course of business, misapplication or conversion by the Borrower of
insurance proceeds or condemnation awards or breach of the environmental
covenants in the related Mortgage Loan documents.
41. Subject to the exceptions set forth in representation (5),
the Assignment of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting and enforceable lien and security
interest in the related Borrower's interest in all leases, subleases, licenses
or other agreements pursuant to which any Person is entitled to occupy, use or
possess all or any portion of the real property.
42. With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of Treasury
Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance
of mortgage collateral, such Mortgage Loan permits defeasance (a) no earlier
than two years after the Closing Date, and (b) only with substitute collateral
constituting "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments
under the Mortgage Note. In addition, if such Mortgage contains such a
defeasance provision, it provides (or otherwise contains provisions pursuant to
which the holder can require) that an opinion be provided to the effect that
such holder has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender to charge all
of its expenses associated with a defeasance to the Borrower (including rating
agencies' fees, accounting fees and attorneys' fees), and provide that the
related Borrower must deliver (or otherwise, the Mortgage Loan documents contain
certain provisions pursuant to which the lender can require) (i) an accountant's
certification as to the adequacy of the defeasance collateral to make payments
under the related Mortgage Loan for the remainder of its term or through the
date on which the Mortgage Loan is freely prepayable (or the Anticipated
Repayment Date, if applicable), (ii) an Opinion of Counsel that the defeasance
complies with all applicable REMIC Provisions, and (iii) assurances from the
Rating Agencies that the defeasance will not result in the withdrawal, downgrade
or qualification of the ratings assigned to the Certificates. Notwithstanding
the foregoing, some of the Mortgage Loan documents may not affirmatively contain
all such requirements, but such requirements are effectively present in such
documents due to the general obligation to comply with the REMIC Provisions
and/or deliver a REMIC Opinion of Counsel.
44. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability of the
Mortgage Loan, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is located
at all times when it originated and held the Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any
obligation to make any capital contributions to the Borrower under the Mortgage
Loan.
46. Except with respect to any Mortgage Loan that is part of a
Serviced Whole Loan, none of the Mortgaged Properties are encumbered, and none
of the Mortgage Loan documents permit the related Mortgaged Property to be
encumbered subsequent to the Closing Date without the prior written consent of
the holder thereof, by any lien securing the payment of money junior to or of
equal priority with, or superior to, the lien of the related Mortgage (other
than Title Exceptions, taxes, assessments and contested mechanics and
materialmen's liens that become payable after the Cut-off Date of the related
Mortgage Loan).
47. With respect to the Mortgage Loan secured by a leasehold
interest (except with respect to the Mortgage Loan also secured by a fee
interest in the related Mortgaged Property), the Seller represents and warrants
the following with respect to the related Ground Lease:
(i) Such Ground Lease or a memorandum thereof has been or
will be duly recorded no later than 30 days after the Closing
Date and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if
consent of the lessor thereunder is required, it has been
obtained prior to the Closing Date;
(ii) Upon the foreclosure of the Mortgage Loan (or
acceptance of a deed in lieu thereof), the Borrower's interest in
such Ground Lease is assignable to the mortgagee under the
leasehold estate and its assigns without the consent of the
lessor thereunder (or, if any such consent is required, it has
been obtained prior to the Closing Date);
(iii) Such Ground Lease may not be amended, modified,
canceled or terminated without the prior written consent of the
mortgagee and any such action without such consent is not binding
on the mortgagee, its successors or assigns, except termination
or cancellation if (a) an event of default occurs under the
Ground Lease, (b) notice thereof is provided to the mortgagee and
(c) such default is curable by the mortgagee as provided in the
Ground Lease but remains uncured beyond the applicable cure
period;
(iv) To the actual knowledge of the Seller, at the
Closing Date, such Ground Lease is in full force and effect and
other than payments due but not yet 30 days or more delinquent,
(a) there is no material default, and (b) there is no event
which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a material default
under such Ground Lease;
(v) The Ground Lease or ancillary agreement between the
lessor and the lessee requires the lessor to give notice of any
default by the lessee to the mortgagee. The Ground Lease or
ancillary agreement further provides that no notice of default
given is effective against the mortgagee unless a copy has been
given to the mortgagee in a manner described in the Ground Lease
or ancillary agreement;
(vi) The Ground Lease (a) is not subject to any liens or
encumbrances superior to, or of equal priority with, the
Mortgage, subject, however, to only the Title Exceptions or (b)
is subject to a subordination, non-disturbance and attornment
agreement to which the mortgagee on the lessor's fee interest in
the Mortgaged Property is subject;
(vii) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession
of the interest of the lessee under the Ground Lease) to cure any
curable default under such Ground Lease before the lessor
thereunder may terminate such Ground Lease;
(viii) Such Ground Lease has an original term (together
with any extension options, whether or not currently exercised,
set forth therein all of which can be exercised by the mortgagee
if the mortgagee acquires the lessee's rights under the Ground
Lease) that extends not less than 20 years beyond the Stated
Maturity Date;
(ix) Under the terms of such Ground Lease, any estoppel
or consent letter received by the mortgagee from the lessor, and
the related Mortgage, taken together, any related insurance
proceeds or condemnation award (other than in respect of a total
or substantially total loss or taking) will be applied either to
the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed or approved
by it having the right to hold and disburse such proceeds as
repair or restoration progresses, or to the payment or defeasance
of the outstanding principal balance of the Mortgage Loan,
together with any accrued interest (except in cases where a
different allocation would not be viewed as commercially
unreasonable by any commercial mortgage lender, taking into
account the relative duration of the Ground Lease and the related
Mortgage and the ratio of the market value of the related
Mortgaged Property to the outstanding principal balance of such
Mortgage Loan);
(x) The Ground Lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a
prudent commercial and multifamily mortgage lending institution;
and
(xi) The ground lessor under such Ground Lease is
required to enter into a new lease upon termination of the Ground
Lease for any reason, including the rejection of the Ground Lease
in bankruptcy.
Annex A to Exhibit C
--------------------
Mortgage Loan With Environmental Insurance Coverage
---------------------------------------------------
[None]
EXHIBIT D
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Representation numbers referred to below relate to the
corresponding Mortgage Loan representations and warranties set forth in Exhibit
C to the Mortgage Loan Purchase Agreement. Underlined titles are provided for
reference only.
Representation #3
-----------------
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO With respect to the loan listed to the left,
such loan is part of a loan combination that
includes multiple additional mortgage loans
(not included in the series 2006-CD3
securitization transaction) that are: (a) pari
passu and pro rata in right of payment with,
and cross-defaulted with, the subject
underlying mortgage loan; and (b) secured by
the same mortgage instrument(s) encumbering
the same portfolio of mortgaged real
properties as is the subject underlying
mortgage loan.
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Representation #8
-----------------
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (MADISON, WI) With respect to the loan listed to the left,
there is an outstanding third party purchase
option which has not been subordinated to the
lien of the related mortgage. The borrower is
permitted to release the affected property in
connection with such purchase option, subject
to certain conditions, including, among other
things, by payment of a release price
specified in the loan documents. In the event
such option is exercised prior to the
permitted defeasance date, the ShopKo
Portfolio Loan will be subject to prepayment
(together with a yield maintenance payment) in
an amount equal to the greater of (i) 100% of
the allocated loan amount and (ii) the price
received by the related borrower in connection
with the exercise of such purchase option.
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO With respect to the loan listed to the left,
such loan is part of a loan combination that
includes multiple additional mortgage loans
(not included in the series 2006-CD3
securitization transaction) that are: (a) pari
passu and pro rata in right of payment with,
and cross-defaulted with, the subject
underlying mortgage loan; and (b) secured by
the same mortgage instrument(s) encumbering
the same portfolio of mortgaged real
properties as is the subject underlying
mortgage loan.
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Representationu #11
-------------------
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (DE PERE, WI) The borrower (with the consent of lender)
recently agreed to convey a non-material
portion of the mortgaged property to assist in
a road project being undertaken to construct a
new bridge. The amount of land conveyed was 31
square feet, for which the borrower received
$372.00.
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (WALLA WALLA, WA) The city of Walla Walla is studying a road
realignment project that may affect the
parking lot and access to the mortgaged
property. The borrower is working with a
developer and potential purchaser of the
adjoining mall to submit alternative site plan
designs to ensure desirable access to the
mortgaged property and no negative impact with
respect to parking.
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (ASHWAUBENON, WI) In conjunction with the Wisconsin Department
of Transportation, the village of Ashwaubenon
is studying an extension of an off-ramp from a
nearby state highway that would extend through
a portion of excess land near the general
office building at the related mortgaged
property. The borrower is cooperating with the
Village and this project has not been
finalized and is still confidential.
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (STEVENS POINT, WI) The City of Xxxxxxx Point and the owner of the
adjacent mall desire to realign roads and
redevelop certain surrounding properties. The
ShopKo store is key to the current development
but the building location is not conducive to
the developer's optimal design and
redevelopment plan. The plans are preliminary
and the City has yet to approve any such plans.
-------------------------------------------------------------------------------------------------
Representation #18
------------------
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO With respect to the loan listed to the left,
such loan is part of a loan combination that
includes multiple additional mortgage loans
(not included in the series 2006-CD3
securitization transaction) that are: (a) pari
passu and pro rata in right of payment with,
and cross-defaulted with, the subject
underlying mortgage loan; and (b) secured by
the same mortgage instrument(s) encumbering
the same portfolio of mortgaged real
properties as is the subject underlying
mortgage loan.
-------------------------------------------------------------------------------------------------
Representation #22
------------------
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO With respect to all the loans in the 2006 CD3
securitization, Seller makes no representation
regarding the bankruptcy or insolvency of any
tenant at the Mortgaged Property.
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Representation #23
------------------
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO With respect to the loan listed to the left,
sponsors of the borrower are permitted to
pledge indirect interests in the borrower in
connection with a line of credit or similar
corporate facility secured by all, or
substantially all, of such sponsor's assets.
-------------------------------------------------------------------------------------------------
Representation #27
------------------
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (MADISON, WI) With respect to the loan listed to the left,
there is an outstanding third party purchase
option which has not been subordinated to the
lien of the related mortgage. The borrower is
permitted to release the affected property in
connection with such purchase option, subject
to certain conditions, including, among other
things, by payment of a release price
specified in the loan documents. In the event
such option is exercised prior to the
permitted defeasance date, the ShopKo
Portfolio Loan will be subject to prepayment
(together with a yield maintenance payment) in
an amount equal to the greater of (i) 100% of
the allocated loan amount and (ii) the price
received by the related borrower in connection
with the exercise of such purchase option.
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (MADISON, WI) With respect to the loan listed to the left,
there is an outstanding third party purchase
option which has not been subordinated to the
lien of the related mortgage. The borrower is
permitted to release the affected property in
connection with such purchase option, subject
to certain conditions, including, among other
things, by payment of a release price
specified in the loan documents. In the event
such option is exercised prior to the
permitted defeasance date, the ShopKo
Portfolio Loan will be subject to prepayment
(together with a yield maintenance payment) in
an amount equal to the greater of (i) 100% of
the allocated loan amount and (ii) the price
received by the related borrower in connection
with the exercise of such purchase option.
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO With respect to loan listed to the left, the
borrower may obtain a release of any of the
related mortgaged real properties by
substituting another retail property of like
kind and quality, subject to satisfaction of
the following conditions, among others:
(a) the aggregate combined amount (by square
foot) of rentable space (expressed as a
percentage of the total rentable space) that
can be substituted may not exceed 20% in any
one calendar year and 30% over the term of the
related operating leases at the ShopKo
Portfolio mortgaged real properties; (b) based
on a current appraisal of the replaced
property and the substitute property, the
appraised value of the substitute property
must be equal to or greater than the appraised
value of the replaced property as of
origination and immediately prior to the date
of proposed substitution; (c) based on a
certificate of the related borrower, together
with other evidence that would be satisfactory
to a prudent institutional mortgage loan
lender, after the substitution of a substitute
property and the release of the replaced
property, the debt service coverage ratio for
the 12 full calendar months immediately
preceding the date of the substitution with
respect to all properties remaining subject to
the lien of the related mortgage instrument
after the substitution will be equal to or
greater than the (i) debt service coverage
ratio for the 12 full calendar months
immediately preceding the origination date and
(ii) debt service coverage ratio for the 12
full calendar months immediately preceding the
substitution (including the replaced property
and excluding the substitute property);
(d) after individual properties with an
aggregate square footage of at least ten
percent (10%) of the original square footage
demised under the related operating leases
have been released, if the ShopKo Portfolio
Mortgage Loan is part of a securitization, the
lender shall have received confirmation in
writing from the rating agencies to the effect
that such release and substitution will not
result in a withdrawal, qualification or
downgrade of the respective ratings in effect
immediately prior to such release and
substitution for the securities issued in
connection with the securitization that are
then outstanding; (e) the lender has received
evidence that the store-level profitability as
set forth in the P&L report of the substitute
property is equal to or greater than the
store-level profitability of the replaced
property as set forth in the P&L report for
the immediately preceding 12-month period; and
(f) no event of default shall have occurred
and be continuing and borrower shall be in
compliance in all material respects with all
terms and conditions set forth in the loan
documents.
-------------------------------------------------------------------------------------------------
Representation #29
------------------
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO No surveys were received in connection with the
ShopKo Portfolio Loan. However, title insurance
with no survey exception and express map
endorsements were issued with respect to the
related mortgaged properties.
-------------------------------------------------------------------------------------------------
Representation #32
------------------
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO Federated Bond Fund, a Portfolio of Federated
Investment Series Funds, Inc. et al v. ShopKo
Stores, Inc., Sun Capital, Partners Group IV,
Inc., Sun Capital Partners IV, LP, SKO Group
Holdings Corp., and SKO Acquisition Group
This matter involves a tender by an affiliate
("Affiliate") of ShopKo Stores Operating Co.,
LLC (an operating tenant of the mortgaged
properties which no longer has any relation to
the borrower) to purchase its 9.25% Senior
Notes due March 15, 2023, Plaintiffs allege
(1) the Affiliate violated Section 14(e) of
the Securities Exchange Act of 1934 and that
any consent solicitations received after July
14, 2005 are invalid, (2) that the Affiliate
and the other defendants violated 15 U.S.C.A.
Section 78n(e) by manipulating proposed merger
transactions, first with an affiliate of
Xxxxxxx Xxxx Xxxxxxx & Xxxxxxxx, Inc. and then
with an affiliate of Sun Capital Partners, (3)
that the Affiliate committed fraud and
coercion in the inducement, and (4) that the
Affiliate fraudulently misrepresented the
proposed merger transactions. The Affiliate
intends to vigorously defend this action. The
Affiliate and the other defendants have filed
a motion to dismiss the action in lieu of an
Answer, an oral argument and the motion was
heard on May 12, 2006.
Xxxx Xxxxxxx, Individually and on behalf of
others similarly situated v. ShopKo Stores,
d/b/a ShopKo Stores and Pamida Stores
Purported class action filed by a former
general merchandise manager in Boise, Idaho,
seeking (1) unpaid wages and overtime pursuant
to FLSA, (2) declaration that the Affiliate's
practices violate the FLSA, and (3) injunction
prohibiting the Affiliate from continuing to
misclassify persons in assistant manager
positions as exempt from the wage and overtime
requirements of the FLSA, and from destroying,
altering or discarding evidence and records.
The Affiliate has filed a summary judgment
motion that is pending before the Court. The
Affiliate intends to vigorously defend this
action.
-------------------------------------------------------------------------------------------------
Representation #40
------------------
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO Mortgage loans in many or all cases provide for
recourse liability to the borrower and/or other
guarantors or indemnitors other than the
borrower for matters and/or under circumstances
which are in addition to those items specified
in representation number 40.
Representation #45
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO With respect to the loan listed to the left,
sponsors of the borrower are permitted to
pledge indirect interests in the borrower in
connection with a line of credit or similar
corporate facility secured by all, or
substantially all, of such sponsor's assets.
-------------------------------------------------------------------------------------------------
Ground Lease Exceptions
Representation #47(ii)
----------------------
-------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (LOGAN, UT) The ground lease provided that only rental
payments due under any lease of improvements
are assignable without ground lessor's consent.
-------------------------------------------------------------------------------------------------
Representation #47(iv)
----------------------
-------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (UNION GAP, WA) Certain material lender protection covenants
were incorporated into the related ground lease
pursuant to that certain Ground Lessor Estoppel
and Agreement executed in connection with the
prior financing by Wachovia Bank, N.A.
According to the Escrow Agreement between
borrower and ground lessor, borrower is
obligated to perform certain work related to
the parking lot and was required to deposit
$23,000 into escrow to pay for such work. If
borrower fails to perform its obligations under
the Escrow Agreement after 15 days notice from
ground lessor, the Ground Lessor Estoppel and
Agreement will immediately and automatically be
withdrawn and be of no further force and
effect. Borrower's counsel has indicated and
the Ground Lessor Estoppel confirms that the
funds to perform such parking lot work have
been deposited into escrow and the required
work is contracted for and is scheduled to be
completed by July 1, 2006. The failure to
perform such work is an event of default under
the related loan documents. Seller has been
advised that Borrower has been sent a notice of
material default from ground lessor, because
the work was not completed by July 1, 2006.
Subsequently, borrower's counsel has advised
that 3 out of the 4 repairs have now been
completed and evidence thereof has been
submitted to the ground lessor. Borrower's
counsel has advised that the remaining repair,
the replacement of 2 light posts, was delayed
due to manufacturing delay in getting the
materials required. Borrower's counsel has
further advised that such final repair is close
to completion and is expected to completed on
or around the week of September 20, 2006 once
the proper material arrive. Ground lessor has
been advised of the same.
-------------------------------------------------------------------------------------------------
Representation #47(viii)
------------------------
-------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (BURLINGTON, IA) With respect to the loan listed to the left,
the ground lease term does not extend beyond 20
years following the stated maturity date of the
related mortgage loan. The ground lease
provides for an option to purchase the fee
interest by borrower or an affiliate of
borrower prior to the maturity date of the
loan. The related loan documents require the
purchase option to be exercised prior to the
expiration of the ground lease, whereby the
related mortgage will automatically spread to
cover the fee interest. In addition, in the
event the option to purchase is exercised by an
affiliate of borrower, the ground lease is
required under the loan documents to be
extended for at least 20 years beyond the
maturity date of the loan.
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (LEWISTON, ID) In the event the ground lease is assigned or
sublet to an unrelated third party without the
consent of ground lessor, the ground lease
shall terminate at the end of the then current
term (presently, January 31, 2012) and any
options to extend contained therein will be
void. The borrower is prohibited under the loan
documents to assign or sublet any portion of
any individual mortgaged property without the
consent of lender; provided, however, the
operating tenant may freely sublet without
lender consent, provided that the operating
tenant shall not be released of its obligations
under the operating lease.
-------------------------------------------------------------------------------------------------
Representation #47(ix)
----------------------
-------------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (SPOKANE VALLEY, Condemnation awards are not required to be used
WA) for the restoration of the related mortgaged
property and all condemnation awards shall be
the property of ground lessor, except for
awards made to tenant for loss of business or
depreciation of and cost of removal of stock
and fixtures, or other leasehold improvement.
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (LEWISTON, ID The respective ground leases are silent as to
AND UNION GAP, WA) the use of condemnation awards in connection
with a partial taking, although the related
mortgaged property must be restored in
accordance with the terms of the respective
lease.
-------------------------------------------------------------------------------------------------
SHOPKO PORTFOLIO (LOGAN, UT AND The respective ground leases are silent as the
BURLINGTON, IA) use and ownership of condemnation awards.
-------------------------------------------------------------------------------------------------
Representation #47(x)
---------------------
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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SHOPKO PORTFOLIO (LEWISTON, ID) In the event that the ground lease is assigned
or sublet to an unrelated third party without
the consent of ground lessor, the ground lease
shall terminate at the end of the then current
term (presently, January 31, 2012) and any
options to extend contained therein will be
void. The borrower is prohibited under the loan
documents to assign or sublet any portion of
any individual mortgaged property without the
consent of lender; provided, however, the
operating tenant may freely sublet without
lender consent, provided that the operating
tenant shall not be released of its obligations
under the operating lease.
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Representation #47(xi)
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LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
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SHOPKO PORTFOLIO (LOGAN, UT AND The ground lessor is not required to enter into
BURLINGTON, IA) a new lease upon termination of the related
ground lease for any reason, including the
rejection of the ground lease in bankruptcy.
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SHOPKO PORTFOLIO (UNION GAP, WA) The ground lessor is obligated to enter into a
new lease with lender only upon the rejection
of the ground lease in bankruptcy.
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EXHIBIT E-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
CERTIFICATE OF BARCLAYS CAPITAL REAL ESTATE INC.
Deutsche Mortgage & Asset Receiving Corporation
CD 2006-CD3 Mortgage Trust
Commercial Mortgage Pass-Through Certificates, Series CD 2006-CD3
In connection with the execution and delivery by Barclays Capital
Real Estate Inc. ("BCRE") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of
October 30, 2006 (the "Mortgage Loan Purchase Agreement"), between Deutsche
Mortgage & Asset Receiving Corporation (the "Purchaser") and BCRE, the
undersigned hereby certifies that (i) the representations and warranties of BCRE
in the Mortgage Loan Purchase Agreement are true and correct in all material
respects, with the same effect as if made on the date hereof, and (ii) BCRE has,
in all material respects, complied with all the agreements and satisfied all the
conditions on its part required under the Mortgage Loan Purchase Agreement to be
performed or satisfied at or prior to the date hereof.
Capitalized terms used but not otherwise defined herein have the
respective meanings assigned to them in the Mortgage Loan Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
Certified this ___ day of October, 2006.
BARCLAYS CAPITAL REAL ESTATE INC.
By: ____________________________________
Name:
Title:
