EXHIBIT 99.2
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and effective December 21, 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, the commercial, multifamily and manufactured housing
mortgage loans (collectively, the "Mortgage Loans") identified on the schedule
annexed hereto as Exhibit A (the "Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together
with other commercial, multifamily and manufactured housing mortgage loans (such
mortgage loans, the "Other Mortgage Loans"), to COMM 2006-C8 Mortgage Trust, a
trust fund (the "Trust Fund") to be formed by the Purchaser, the beneficial
ownership of which will be evidenced by a series of mortgage pass-through
certificates (the "Certificates"). Certain classes of the Certificates will be
rated by Xxxxx'x Investors Service, Inc., and Fitch, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of December 1, 2006
(the "Pooling and Servicing Agreement"), among the Purchaser, as depositor,
Midland Loan Services, Inc., as the master servicer with respect to all of the
Mortgage Loans other than the EZ Storage Portfolio Loan (the "Master Servicer"),
LNR Partners, Inc., as special servicer with respect to all of the Mortgage
Loans other than the EZ Storage Portfolio Loan (in such capacity, the "Special
Servicer"), and LaSalle Bank National Association, as trustee (the "Trustee")
and paying agent.
The Purchaser intends to sell certain of the Certificates to
Deutsche Bank Securities Inc. ("DBS"), Banc of America Securities LLC ("BAS"),
Barclays Capital Inc. ("BCI") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx") and collectively with DBS, BAS and BCI, in such capacity the
"Underwriters") pursuant to an underwriting agreement dated December 13, 2006
(the "Underwriting Agreement"). The Purchaser intends to sell certain other
Certificates (the "Non Registered Certificates") pursuant to a certificate
purchase agreement dated December 13, 2006 (the "Certificate Purchase
Agreement") to Deutsche Bank Securities Inc. and Banc of America Securities LLC
(together, in such capacity the "Initial Purchasers"). Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Pooling and
Servicing Agreement (as of the Closing Date) or in the BCRE Indemnification
Agreement which was entered into by the Seller, the Purchaser and the
Underwriters on December 13, 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.
Subject to the terms and conditions set forth in this Agreement, the
Seller agrees to sell, assign, transfer and otherwise convey to the Purchaser
upon receipt of the Mortgage Loan Purchase Price referred to in this Section 1,
and the Purchaser agrees to purchase, the Mortgage Loans. The purchase and sale
of the Mortgage Loans shall take place on December 21, 2006 or such other date
as shall be mutually acceptable to the parties hereto (the "Closing Date"). As
of the close of business on December 1, 2006 (the "Cut-off Date"), the Mortgage
Loans will have an aggregate principal balance (the "Aggregate Cut-off Date
Balance"), after application of all payments of principal due thereon on or
before the Cut-off Date, whether or not received, of $736,898,769, subject to a
variance of plus or minus 5%. The purchase price of the Mortgage Loans
(inclusive of accrued interest and exclusive of the Seller's pro rata share of
the costs set forth in Section 9 hereof) (the "Mortgage Loan Purchase Price")
shall be equal to the amount set forth on the cross receipt between the Seller
and the Purchaser dated the date hereof.
SECTION 2. Conveyance of Mortgage Loans.
(a) On the Closing Date, subject only to receipt by the Seller
of the Mortgage Loan Purchase Price, the satisfaction of the other closing
conditions required to be satisfied on the part of Purchaser pursuant to Section
7 and the issuance of the Certificates, the Seller agrees to sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse, all
the right, title and interest of the Seller in and to the Mortgage Loans
identified on the Mortgage Loan Schedule, including all rights to payment in
respect thereof, which includes all interest and principal received or
receivable by the Seller on or with respect to the Mortgage Loans after the
Cut-off Date (subject to the proviso in the next sentence), together with all of
the Seller's right, title and interest in and to the proceeds of any related
title, hazard, or other insurance policies and any escrow, reserve or other
comparable accounts related to the Mortgage Loans, subject to that certain
Master Servicer Appointment Agreement dated as of December 21, 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 Loans after the Cut-off Date, and
all other recoveries of principal and interest collected thereon after the
Cut-off Date; provided, however, that all scheduled payments of principal and
interest accrued but not paid thereon, due on or before the Cut-off Date and
collected after the Cut-off Date shall belong to the Seller, and the Purchaser
or its successors or assigns shall promptly remit any such payments to the
Seller.
On or prior to the Closing Date, the Seller shall retain a third
party vendor reasonably satisfactory to the Controlling Class Representative to
complete the assignment and recordation of the related Loan Documents, as
contemplated by the next sentence. On or promptly following the Closing Date,
the Seller shall cause such third party vendor, to the extent possession of
recorded copies of each Mortgage and the documents described in clauses (iii),
(iv), (v), (viii), (xiii) and (xiv) of Exhibit B have been delivered to it, at
the expense of the Seller, (1) to prepare and record (a) each Assignment of
Mortgage referred to in clause (iii) of Exhibit B which has not yet been
submitted for recording and (b) each Reassignment of Assignment of Leases, Rents
and Profits referred to in clause (viii)(B) of Exhibit B (if not otherwise
included in the related Assignment of Mortgage) which has not yet been submitted
for recordation; and (2) to prepare and file each UCC assignment of financing
statement referred to in clause (v)(B) or (xiii) of Exhibit B which has not yet
been submitted for filing or recording. The Seller shall direct the related
third party vendor to promptly prepare and submit (and in no event later than 30
Business Days following the receipt of the related documents in the case of
clause 1(a) of the prior sentence and 60 days following the receipt of the
applicable documents in the case of clauses 1(b) and 2 of the prior sentence)
for recording or filing, as the case may be, in the appropriate public recording
or filing office, each such document. In the event that any such document is
lost or returned unrecorded because of a defect therein, the Seller, at its
expense, shall promptly prepare (or cause to be prepared) a substitute document
for signature by the Purchaser or itself, as applicable, and thereafter the
Seller shall cause each such document to be duly recorded or filed. The Seller
shall, promptly upon receipt of the original recorded or filed copy (and in no
event later than five Business Days following such receipt) deliver such
original to the Custodian (in the case of each UCC financing statement or UCC
assignment of financing statement, with evidence of filing or recording
thereon). Notwithstanding anything to the contrary contained in this Section 2,
in those instances where the public recording office retains the original
Mortgage, Assignment of Mortgage or Reassignment of Assignment of Leases, Rents
and Profits, if applicable, after any has been recorded, the obligations
hereunder of the Seller shall be deemed to have been satisfied upon delivery to
the Custodian of a copy of such Mortgage, Assignment of Mortgage or Reassignment
of Assignment of Leases, Rents and Profits, if applicable, certified by the
public recording office to be a true and complete copy of the recorded original
thereof or otherwise with evidence of recording indicated thereon.
(b) In connection with the Seller's assignment pursuant to
subsection (a) above, the Seller shall deliver to and deposit with, or cause to
be delivered to and deposited with, the Custodian, on or before the Closing
Date, the documents and/or instruments referred to in clauses (i), (ii), (vii),
(xi) and (xvii) of Exhibit B for each Mortgage Loan so assigned (with originals
with respect to clauses (i) and (xvii) and copies with respect to clauses (ii),
(vii) and (xi)) and, within 30 days following the Closing Date, the remaining
applicable documents in Exhibit B for each such Mortgage Loan with copies to the
Master Servicer.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original Note, the Seller shall deliver a copy or duplicate
original of such Note, together with an affidavit certifying that the original
thereof has been lost or destroyed and an indemnification in connection
therewith in favor of the Trustee.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of any of the documents and/or instruments
referred to in clauses (ii), (iv)(A), (v)(A), (viii)(A), (xiv) and (xvi) of
Exhibit B and the UCC financing statements and UCC assignments of financing
statements referred to in clause (xiii) of Exhibit B, with evidence of recording
or filing thereon, solely because of a delay caused by the public recording or
filing office where such document or instrument has been delivered for
recordation or filing, or because such original recorded or filed document has
been lost or returned from the recording or filing office and subsequently lost,
as the case may be, the delivery requirements of this Section 2(b) shall be
deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that a copy of such document or instrument (without evidence of recording or
filing thereon, but certified (which certificate may relate to multiple
documents and/or instruments) by the applicable public recording or filing
office, the applicable title insurance company or by the Seller to be a true and
complete copy of the original thereof submitted for recording or filing, as the
case may be) has been delivered to the Trustee within 45 days after the Closing
Date, and either the original of such missing document or instrument, or a copy
thereof, with evidence of recording or filing, as the case may be, thereon, is
delivered to or at the direction of the Purchaser (or any subsequent owner of
the affected Mortgage Loan, including without limitation the Trustee) within 180
days after the Closing Date (or within such longer period after the Closing Date
as the Purchaser (or such subsequent owner) may consent to, which consent shall
not be unreasonably withheld so long as the Seller has provided the Purchaser
(or such subsequent owner) with evidence of such recording or filing, as the
case may be, or has certified to the Purchaser (or such subsequent owner) as to
the occurrence of such recording or filing, as the case may be, and is, as
certified to the Purchaser (or such subsequent owner) no less often than
quarterly, in good faith attempting to obtain from the appropriate public
recording or filing office such original or copy).
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (vii) of Exhibit B solely because such policy has
not yet been issued, the delivery requirements of this Section 2(b) shall be
deemed to be satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that the
Seller has delivered to the Trustee a binder marked as binding and countersigned
by the title insurer or its authorized agent (which may be a pro forma or
specimen title insurance policy which has been accepted or approved in writing
as binding by the related title insurance company) or an acknowledged closing
instruction or escrow letter, and the Seller shall deliver to or at the
direction of the Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee), promptly following the receipt
thereof, the original related lender's title insurance policy (or a copy
thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan. On the Closing Date, upon (i)
notification from the Seller that the Mortgage Loan Purchase Price referred to
in Section 1 has been received by the Seller and (ii) the issuance of the
Certificates, the Purchaser shall be authorized to release to the Trustee or its
designee all of the Mortgage Files in the Purchaser's possession relating to the
Mortgage Loans.
Notwithstanding anything herein to the contrary, with respect to the
documents referred to in clause (xvii) and clause (xviii) on Exhibit B, the
Master Servicer shall hold the original of each such document in trust on behalf
of the Trustee in order to draw on such letter of credit on behalf of the Trust
and the Seller shall be deemed to have satisfied the delivery requirements of
this Agreement by delivering the original of each such document to or as
directed by the Master Servicer. The Seller shall pay any costs of assignment or
amendment of such letter of credit required (which assignment or amendment shall
change the beneficiary of the letter of credit to the Trust in care of the
Master Servicer) in order for the Master Servicer to draw on such letter of
credit on behalf of the Trust. In the event that the documents specified in
clause (xviii) on Exhibit B are missing because the related assignment or
amendment documents have not been completed, the Seller shall take all
reasonably necessary steps to enable the Master Servicer to draw on the related
letter of credit on behalf of the Trust including, if necessary, drawing on the
letter of credit in its own name pursuant to written instructions from the
Master Servicer and immediately remitting such funds (or causing such funds to
be remitted) to the Master Servicer.
Contemporaneously with the execution of this Agreement by the
Purchaser and the Seller, the Seller shall deliver a power of attorney to each
of the Master Servicer and the Special Servicer at the direction of the
Controlling Class Representative or its assignees, to take such other action as
is necessary to effect the delivery, assignment and/or recordation of any
documents and/or instruments relating to any Mortgage Loan which have not been
delivered, assigned or recorded at the time required for enforcement by the
Trust Fund. The Seller will be required to effect at its expense the assignment
and recordation of its Loan Documents until the assignment and recordation of
all such Loan Documents has been completed.
(c) As to each Mortgage Loan, the Seller shall be responsible for
all costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (viii)(B) of Exhibit B and each
UCC-2 and UCC-3 assignment of financing statement, if any, referred to in clause
(v)(B) of Exhibit B. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause the preparation of a substitute therefor
or cure or cause the curing of such defect, as the case may be, and shall
thereafter deliver the substitute or corrected document to or at the direction
of the Purchaser (or any subsequent owner of the affected Mortgage Loan,
including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) Except as provided below, all documents and records in the
Seller's possession (or under its control) relating to the Mortgage Loans that
are not required to be a part of a Mortgage File in accordance with Exhibit B
but that are reasonably required to service the Mortgage Loans (all such other
documents and records, including Environmental Reports, as to any Mortgage Loan,
the "Servicing File"), together with all escrow payments, reserve funds and
other comparable funds in the possession of the Seller (or under its control)
with respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer that shall, as of the Closing Date, begin acting on behalf of the
Master Servicer pursuant to a written agreement between such parties) be
delivered by the Seller (or its agent) to the Purchaser (or its designee) no
later than the Closing Date; provided, however, the Seller shall not be required
to deliver, and the Servicing File shall not be deemed to include drafts of Loan
Documents, attorney-client or internal communications of the Seller or its
affiliates or Seller's credit underwriting or due diligence analyses or related
data (as distinguished from Environmental Reports, financial statements, credit
reports, title reports, structural and engineering reports, appraisals and other
reports, analyses or data provided by the Borrowers or third parties other than
the Seller's attorneys). If a sub-servicer shall, as of the Closing Date, begin
acting on behalf of the Master Servicer with respect to any Mortgage Loan
pursuant to a written agreement between such parties, the Seller or its agent
shall deliver a copy of the related Servicing File to the Master Servicer.
(e) Each of the Seller's and the Purchaser's records will reflect
the transfer of the Mortgage Loans to the Purchaser as a sale, including for
accounting purposes. Following the transfer of the Mortgage Loans to the
Purchaser, the Seller will not take any action inconsistent with the ownership
of the Mortgage Loans by the Purchaser or its assignees.
(f) Furthermore, it is the express intent of the parties hereto that
the conveyance of the Mortgage Loans by Seller to Purchaser as provided in this
Agreement be, and be construed as, a sale of the Mortgage Loans by Seller to
Purchaser and not a pledge of the Mortgage Loans by Seller to Purchaser to
secure a debt or other obligation of Seller. However, in the event that,
notwithstanding the intent of the parties, the Mortgage Loans are held to be
property of Seller or if for any reason this Agreement is held or deemed to
create a security interest in the Mortgage Loans:
(i) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect
in the applicable state;
(ii) the conveyance provided for in this Agreement shall hereby
grant from Seller to Purchaser a security interest in and to all of
Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property consisting of, arising
from or relating to any of the property described in the Mortgage
Loans, including the related Notes, Mortgages and title, hazard and
other insurance policies, identified on the Mortgage Loan Schedule,
and all distributions with respect thereto payable after the Cut-off
Date;
(B) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit
and investment property arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable
with respect to, or claims against other persons with respect to,
all or any part of the collateral described in clause (A) above
(including any accrued discount realized on liquidation of any
investment purchased at a discount), in each case, payable after the
Cut-off Date; and
(C) all cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above payable after the Cut-off Date;
(iii) the possession by Purchaser or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments,
money, documents, chattel paper or certificated securities shall be deemed
to be possession by the secured party or possession by a purchaser or a
person designated by him or her, for purposes of perfecting the security
interest pursuant to the Uniform Commercial Code (including, without
limitation, Sections 9-306, 9-313 and 9-314 thereof) as in force in the
relevant jurisdiction; and
(iv) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property, shall be deemed to be notifications to, or acknowledgments,
receipts or confirmations from, securities intermediaries, bailees or
agents of, or persons holding for (as applicable), Purchaser or its
assignee for the purpose of perfecting such security interest under
applicable law.
The Seller at the direction of the Purchaser or its assignee, shall,
to the extent consistent with this Agreement, take such actions as may be
reasonably necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans and the proceeds thereof, such security
interest would be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of this
Agreement. In connection herewith, Purchaser and its assignee shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction and may execute and
file such UCC Financing Statements as may be reasonably necessary or appropriate
to accomplish the foregoing.
(g) It is further acknowledged and agreed by the Seller that the
Purchaser intends to convey all right, title and interest of the Purchaser in
and to the Mortgage Loans and all rights and remedies under this Agreement
(excluding the Purchaser's rights and remedies under Section 9 below 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, as of the date hereof (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, the Trustee on behalf of the
Certificateholders and the respective successors-in-interest of the Purchaser
and the Trustee, each of the representations and warranties set forth in Exhibit
C subject to the exceptions set forth in Schedule C-1 to Exhibit C.
(b) In addition, the Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing
and in good standing under the laws of the State of 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 each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of, and compliance with, the terms of this Agreement by
the Seller, do not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, in each case which materially and
adversely affects the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification or contribution for
securities laws liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement do not constitute a violation of, any law, any
judgment, order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(vi) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Seller to perform its obligations
under this Agreement or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the
Initial Purchasers, the Master Servicer, the Trustee, and their respective
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the other transactions contemplated hereby.
(viii) Insofar as it relates to the Mortgage Loans, the information
set forth in Annex A-1 and Annex A-2 to the Prospectus Supplement (as
defined in the 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 Loans and/or the Seller and
does not represent a restatement or aggregation of the information on the
Loan Detail, the information set forth in Time of Sale Information (as
defined in the 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--Sponsors," "--Mortgage Loan Sellers," "--Originators," "--The
Mortgage Pool," "Risk Factors--Risks Related to the Mortgage Loans,"
"Transaction Parties--The Sponsors" and "Description of the Mortgage Pool"
and the information set forth on Annex A-1 and Annex A-2 and Annex B to
the Prospectus Supplement, and to the extent it contains information
consistent with that on such Annex A-1 and Annex A-2 set forth on the
Diskette, does not (or, in the case of the Time of Sale Information, did
not as of the Time of Sale (as defined in the 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) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any bulk
sale laws), for the execution, delivery and performance of, or compliance
by, the Seller with this Agreement, or the consummation by the Seller of
any transaction contemplated hereby, other than (1) the filing or
recording of financing statements, instruments of assignment and other
similar documents necessary in connection with the Seller's sale of the
Mortgage Loans to the Purchaser, (2) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as have
been obtained, made or given and (3) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the Seller
under this Agreement.
(c) Upon discovery by any of the Seller or the parties to the
Pooling and Servicing Agreement of a breach of any of the representations and
warranties made pursuant to and set forth in subsection (b) above which
materially and adversely affects the interests of the Purchaser or a breach of
any of the representations and warranties made pursuant to subsection (a) above
and set forth in Exhibit C which materially and adversely affects the value of
any Mortgage Loan, the value of the related Mortgaged Property or the interests
therein of the Purchaser, the Trustee on behalf of the Certificateholders or any
Certificateholder, the party discovering such breach shall give prompt written
notice to the Seller and/or the other parties, as applicable.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance of, and compliance with, the terms of this Agreement
by the Purchaser, do not violate the Purchaser's organizational documents
or constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach of,
any material agreement or other instrument to which it is a party or which
is applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance of, and compliance with,
the terms of this Agreement will not constitute a violation of, any law,
any judgment, order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters,
the Initial Purchasers and their respective affiliates, that may be
entitled to any commission or compensation in connection with the sale of
the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the Purchaser's execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as have
been obtained, made or given and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any
of the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases; Substitutions.
(a) If any of the parties to this Agreement discovers that any
document constituting a part of a Mortgage File has not been delivered within
the time periods provided for herein, has not been properly executed, is
missing, does not appear to be regular on its face or contains information that
does not conform in any material respect with the corresponding information set
forth in the Mortgage Loan Schedule (each, a "Defect"), or discovers or receives
notice of a breach of any representation or warranty of the Seller made pursuant
to Section 4(a) of this Agreement with respect to any Mortgage Loan (a
"Breach"), such party shall give prompt written notice thereof to each of the
Rating Agencies, the Seller, the parties to the Pooling and Servicing Agreement
and the Controlling Class Representative. If any such Defect or Breach
materially and adversely affects the value of any Mortgage Loan, the value of
the related Mortgaged Property or the interests therein of the Purchaser, the
Trustee or any Certificateholders, then such Defect shall constitute a "Material
Defect" or such Breach shall constitute a "Material Breach," as the case may be;
provided, however, that if any of the documents specified in clauses (i), (ii),
(vii), (xi) and (xvii) of the definition of "Mortgage File" is not delivered,
and is certified as missing, pursuant to the first paragraph of Section 2.01(b)
of the Pooling and Servicing Agreement, it shall be deemed a Material Defect.
Promptly upon receiving written notice of any such Material Defect or Material
Breach with respect to a Mortgage Loan (including through a written notice given
by any party hereto, as provided above), the Seller shall, not later than 90
days from the Seller's receipt of notice from the Master Servicer, the Special
Servicer, the Trustee or the Custodian of such Material Defect or Material
Breach, as the case may be (or, in the case of a Material Defect or Material
Breach relating to a Mortgage Loan not being a "qualified mortgage" within the
meaning of the REMIC Provisions, not later than 90 days after the Seller or any
party to the Pooling and Servicing Agreement discovering such Material Defect or
Material Breach) (any such 90-day period, the "Initial Resolution Period"), (i)
cure the same in all material respects, (ii) repurchase the affected Mortgage
Loan at the applicable Repurchase Price or (iii) substitute a Qualifying
Substitute Mortgage Loan for such affected Mortgage Loan (provided that in no
event shall such substitution occur later than the second anniversary of the
Closing Date) and pay to the Master Servicer for deposit into the Collection
Account any Substitution Shortfall Amount in connection therewith; provided,
however, that with respect to any Material Defect arising from a missing
document as to which the Trustee closing date certification stated the Trustee
was not in possession of such document on the Closing Date pursuant to the first
sentence of the second paragraph of Section 2.02 of the Pooling and Servicing
Agreement, the related Mortgage Loan Seller shall have 30 days to cure such
Material Defect; provided, further, that with respect to any Material Defect
arising from a missing document as to which the Trustee inadvertently certified
its possession of such document (x) as of the Closing Date, in the form of
Exhibit S-1 to the Pooling and Servicing Agreement or (y) no later than 45 days
following the Closing Date, in the form of Exhibit S-2 to the Pooling and
Servicing Agreement, the Seller shall have 30 days to cure the Material Defect
relating to the missing document; provided, further, that if (i) such Material
Defect or Material Breach (other than one relating to the immediately preceding
proviso) is capable of being cured but not within the Initial Resolution Period,
(ii) such Material Defect or Material Breach is not related to any Mortgage
Loan's not being a "qualified mortgage" within the meaning of the REMIC
Provisions and (iii) the Seller has commenced and is diligently proceeding with
the cure of such Material Defect or Material Breach within the Initial
Resolution Period, then the Seller shall have an additional period equal to the
applicable Resolution Extension Period to complete such cure or, failing such
cure, to repurchase the Mortgage Loan or substitute a Qualifying Substitute
Mortgage Loan. The Seller shall have an additional 90 days (without duplication
of the additional 90-day period set forth in the last sentence of the definition
of Resolution Extension Period) to cure such Material Defect or Material Beach,
provided that, the Seller has commenced and is diligently proceeding with the
cure of such Material Defect or Material Breach and such failure to cure is
solely the result of a delay in the return of documents from the local filing or
recording authorities. Notwithstanding the foregoing, if a Mortgage Loan is not
secured by a hotel, restaurant (operated by a Borrower), healthcare facility,
nursing home, assisted living facility, self-storage facility, theatre,
manufactured housing or fitness center (operated by a Borrower) property, then
the failure to deliver to the Trustee copies of the UCC financing statements
with respect to such Mortgage Loan shall not be a Material Defect.
If the Seller is notified of a Defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such Defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes. The failure of the Master Servicer, the Special Servicer or the
Trustee to notify the Seller of a Material Defect or Material Breach shall not
constitute a waiver of any cure or repurchase obligation, provided that the
Seller must receive written notice thereof as described in this Section 6(a)
before commencement of the Initial Resolution Period.
Notwithstanding the foregoing, if (x) there exists a Breach of any
representation or warranty on the part of the Seller as set forth in, or made
pursuant to, clause 38 of Exhibit C to this Agreement relating to fees and
expenses payable by the Borrower associated with the exercise of a defeasance
option, a waiver of a "due-on-sale" provision or a "due-on-encumbrance"
provision or the release of any Mortgaged Property, and (y) the related Mortgage
Loan documents specifically prohibit the Master Servicer or Special Servicer
from requiring the related Borrower to pay such fees and expenses, then, upon
notice by the Master Servicer or Special Servicer, the Seller shall transfer to
the Collection Account, within 90 days of the Seller's receipt of such notice,
the amount of any such fees and expenses borne by the Trust Fund that are the
basis of such Breach. Upon its making such deposit, the Seller shall be deemed
to have cured such Breach in all respects. Provided such payment is made, this
paragraph describes the sole remedy available to the Purchaser and its assignees
regarding any such Breach, regardless of whether it constitutes a Material
Breach, and the Seller shall not be obligated to repurchase or otherwise cure
such Breach.
(b) In connection with any repurchase of, or substitution for, a
Mortgage Loan contemplated by this Section 6, (A) the Trustee, the Master
Servicer (with respect to any such Mortgage Loan other than a Specially Serviced
Loan) and the Special Servicer (with respect to any such Mortgage Loan that is a
Specially Serviced Loan) shall each tender to the Seller, and the Seller shall
be entitled to receive therefrom, upon delivery (i) to each of the Master
Servicer or the Special Servicer, as applicable, of a trust receipt and (ii) to
the Trustee by the Master Servicer or the Special Servicer, as applicable, of a
Request for Release and an acknowledgement by the Master Servicer or applicable
Special Servicer, as applicable, of its receipt of the Repurchase Price or the
Substitution Shortfall Amount from the Seller, (1) all portions of the Mortgage
File and other documents pertaining to such Mortgage Loan possessed by it and
(2) each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Trustee shall be endorsed or assigned without recourse in the
form of endorsement or assignment provided to the Trustee by the Seller, as the
case may be, to the Seller as shall be necessary to vest in the Seller the legal
and beneficial ownership of each Removed Mortgage Loan to the extent such
ownership was transferred to the Trustee, and (B) the Trustee shall release, or
cause the release of, any escrow payments and reserve funds held by or on behalf
of the Trustee, the Master Servicer or the Special Servicer, in respect of such
Removed Mortgage Loan(s) to the Seller.
(c) This Section 6 provides the sole remedies available to the
Purchaser, and its successors and permitted assigns (i.e., the Trustee and the
holders of the Certificates) in respect of any Defect in a Mortgage File or any
Breach. If the Seller defaults on its obligations to cure, to repurchase, or to
substitute for, any Mortgage Loan in accordance with this Section 6, or disputes
its obligation to cure, to repurchase, or to substitute for, any Mortgage Loan
in accordance with Section 6, the Purchaser or the Trustee, as applicable, may
take such action as is appropriate to enforce such payment or performance,
including, without limitation, the institution and prosecution of appropriate
proceedings. To the extent the Purchaser or the Trustee, as applicable, prevails
in such proceeding, the Seller shall reimburse the Purchaser or the Trustee, as
applicable, for all necessary and reasonable costs and expenses incurred in
connection with the enforcement of such obligation of the Seller to cure, to
repurchase, or to substitute for, any Mortgage Loan in accordance with this
Section 6.
(d) If one or more (but not all) of the Mortgage Loans constituting
a cross-collateralized group of Mortgage Loans are to be repurchased or
substituted by the Seller as contemplated by this Section 6, then, prior to the
subject repurchase or substitution, the Seller or its designee shall use its
reasonable efforts, subject to the terms of the related Mortgage Loan(s), to
prepare and, to the extent necessary and appropriate, have executed by the
related Borrower and record, such documentation as may be necessary to terminate
the cross-collateralization between the Mortgage Loan(s) in such
cross-collateralized group of Mortgage Loans that are to be repurchased or
substituted, on the one hand, and the remaining Mortgage Loan(s) therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that, no such termination shall be effected
unless and until the Controlling Class Representative, if one is then acting,
has consented in its sole discretion and the Trustee has received from the
Seller (i) an Opinion of Counsel to the effect that such termination would not
cause an Adverse REMIC Event to occur and (ii) written confirmation from each
Rating Agency that the then current rating assigned to any of the Certificates
that are currently being rated by such Rating Agency will not be qualified,
downgraded or withdrawn by reason of such termination; provided, further, that
the Seller, in the case of the related Mortgage Loans, may, at its option and
within the 90-day cure period described above (and any applicable extension
thereof), purchase or substitute for the entire subject cross-collateralized
group of Mortgage Loans in lieu of effecting a termination of the
cross-collateralization. All costs and expenses incurred by the Trustee or any
Person acting on its behalf pursuant to this paragraph shall be included in the
calculation of the Repurchase Price for the Mortgage Loan(s) to be repurchased
or substituted. If the cross-collateralization of any cross-collateralized group
of Mortgage Loans cannot be terminated as contemplated by this paragraph, then
the Seller shall repurchase or substitute the entire subject
cross-collateralized group of Mortgage Loans.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties with respect to
a Mortgage Loan or cross-collateralized group of Mortgage Loans, the Seller will
not be obligated to repurchase the Mortgage Loan or cross-collateralized group
of Mortgage Loans if (i) the affected Mortgaged Property may be released
pursuant to the terms of any partial release provisions in the related Loan
Documents (and such Mortgaged Property is, in fact, released), (ii) the
remaining Mortgaged Property(ies) satisfy the requirements, if any, set forth in
the Loan Documents and the Seller provides an Opinion of Counsel to the effect
that such release would not cause an Adverse REMIC Event to occur and (iii) each
Rating Agency then rating the Certificates shall have provided written
confirmation that such release would not cause the then-current ratings of the
Certificates rated by it to be qualified, withdrawn or downgraded.
As to any Qualifying Substitute Mortgage Loan, at the direction of
the Trustee, the Seller shall deliver to the Custodian for such Qualifying
Substitute Mortgage Loan (with a copy to the Master Servicer), the related
Mortgage File with the related Note endorsed as required by Exhibit B hereto.
Pursuant to the Pooling and Servicing Agreement, Monthly Payments due with
respect to Qualifying Substitute Mortgage Loans in or prior to the month of
substitution shall not be part of the Trust Fund and will be retained by the
Master Servicer and remitted by the Master Servicer to the related Seller on the
next succeeding Distribution Date. For the month of repurchase or substitution,
distributions to Certificateholders pursuant to the Pooling and Servicing
Agreement will include the Monthly Payment(s) due on the related Removed
Mortgage Loan and received by the Master Servicer or the Special Servicer on
behalf of the Trust on or prior to the related date of repurchase or
substitution, as applicable, and the Seller shall be entitled to retain all
amounts received thereafter in respect of such Removed Mortgage Loan.
In any month in which the Seller substitutes one or more Qualifying
Substitute Mortgage Loans for one or more Removed Mortgage Loans, pursuant to
the Pooling and Servicing Agreement, the Master Servicer will determine the
applicable Substitution Shortfall Amount. At the direction of the Trustee, the
Seller shall deposit cash equal to such amount into the Collection Account
concurrently with the delivery of the Mortgage Files for such Qualifying
Substitute Mortgage Loans, without any reimbursement thereof. At the direction
of the Trustee, the Seller shall give written notice to the Purchaser and the
Master Servicer of such deposit.
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP,
Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York
City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller and the
Purchaser specified herein shall be true and correct as of the Closing
Date, and the Aggregate Cut-off Date Balance shall be within the range
permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"),
in such forms as are agreed upon and acceptable to the Purchaser and, in
the case of the Pooling and Servicing Agreement (insofar as such Agreement
affects the obligations of the Seller hereunder) and other documents to be
delivered by or on behalf of the Purchaser, to the Seller, shall be duly
executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the Trustee,
the Purchaser or the Purchaser's designee, as the case may be, all
documents and funds required to be so delivered on or before the Closing
Date pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller shall have received the Mortgage Loan Purchase
Price, and the Seller shall have paid or agreed to pay all fees, costs and
expenses payable by it to the Purchaser pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement and a xxxx of sale duly executed and delivered by
the Purchaser and the Seller;
(b) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of the Seller,
and dated the Closing Date, and upon which the Purchaser, the Initial Purchasers
and each Underwriter may rely, attaching thereto as an exhibit the By-Laws of
the Seller;
(c) A certificate of good standing regarding the Seller from the
Secretary of State for the State of 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 Purchasers and each Underwriter;
(e) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates, each of which shall include the Purchaser, the Initial Purchasers
and each Underwriter as an addressee; and
(f) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Costs.
The Seller shall pay (or shall reimburse the Purchaser to the extent
that the Purchaser has paid) (a) the fees and expenses of counsel to the Seller,
(b) the expenses of filing or recording UCC assignments of financing statements,
assignments of Mortgage and Reassignments of Assignments of Leases, Rents and
Profits with respect to the Mortgage Loans as contemplated by Article 2 of the
Pooling and Servicing Agreement and (c) on the Closing Date, the Seller's pro
rata portion of the aggregate of the following amounts (the Seller's pro rata
portion to be determined according to the percentage that the aggregate
principal balance of the Mortgage Loans as of the Cut-off Date represents of the
aggregate principal balance of the Mortgage Loans and the Other Mortgage Loans
as of the Cut-off Date): (i) the costs and expenses of printing (or otherwise
reproducing) and delivering a preliminary and final Prospectus relating to the
Certificates; (ii) the up front fees, costs, and expenses of the Trustee
(including reasonable attorneys' fees) incurred in connection with the Trustee
entering into and performing certain of its obligations under the Pooling and
Servicing Agreement; (iii) the filing fee charged by the Securities and Exchange
Commission for registration of the Certificates so registered; (iv) the fees
charged by the Rating Agencies to rate the Certificates so rated; (v) the fees
and expenses of counsel to the Underwriters; (vi) the fees and expenses of
counsel to the Purchaser; (vii) the fees and expenses of counsel to the Master
Servicer; (viii) the cost of obtaining a "comfort letter" from a firm of
certified public accountants selected by the Purchaser and the Seller with
respect to numerical information in respect of the Mortgage Loans and the Other
Mortgage Loans included in the Prospectus; and (ix) other miscellaneous costs
and expenses agreed upon by the parties hereto. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if (a) personally delivered,
(b) mailed by registered or certified mail, postage prepaid and received by the
addressee, (c) sent by overnight mail or courier service and received by the
addressee or (d) transmitted by facsimile (or any other type of electronic
transmission agreed upon by the parties) and confirmed by a writing delivered by
any of the means described in (a), (b) or (c), if (i) to the Purchaser,
addressed to Deutsche Mortgage & Asset Receiving Corporation, 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, facsimile number: (000) 000-0000 (with copies to
Xxx Xxxxxxxx, Esq. and Xxxxx Xxxxxxxx, Esq. at Barclays Capital Real Estate
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 10166), or to such other address or
facsimile number as the Seller may designate in writing to the Purchaser.
SECTION 11. Notice of Exchange Act Reportable Events.
The Seller hereby agrees to deliver to the Purchaser and the Trustee
any disclosure information relating to any event, specifically relating to the
Seller, reasonably determined in good faith by the Purchaser as required to be
reported on Form 8-K, Form 10-D or Form 10-K by the Trust Fund (in formatting
reasonably appropriate for inclusion in such form), insofar as such disclosure
is required under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form
8-K. The Seller shall use reasonable efforts to deliver proposed disclosure
language relating to any event, specifically relating to the Seller, described
under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K to the
Trustee and the Purchaser as soon as reasonably practicable after the Seller
becomes aware of such event and in no event more than two business days
following the occurrence of such event if such event is reportable under Item
1.03 to Form 8-K. The obligation of the Seller to provide the above referenced
disclosure materials will terminate upon notice or other written confirmation
from the Purchaser or the Trustee that the Trustee has filed a Form 15 with
respect to the Trust Fund as to that fiscal year in accordance with Section
10.10(a) of the Pooling and Servicing Agreement or the reporting requirements
with respect to the Trust under the Securities Exchange Act of 1934 have
otherwise automatically suspended. The Seller hereby acknowledges that the
information to be provided by it pursuant to this Section will be used in the
preparation of reports meeting the reporting requirements of the Trust under
Section 13(a) and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 13. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 15. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 16. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 17. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part (excluding the Purchaser's
rights and remedies under Section 9 and the 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.
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: Vice President
DEUTSCHE MORTGAGE & ASSET
RECEIVING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date;
(iv) the original principal balance;
(v) the Stated Principal Balance as of the Cut-off Date;
(vi) the Maturity Date or Anticipated Repayment Date for each
Mortgage Loan;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) the Servicing Fee Rate;
(x) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(xi) whether such Mortgage Loan has an Anticipated Repayment Date;
(xii) the Revised Rate of such Mortgage Loan, if any;
(xiii) whether such Mortgage Loan has a hard lock-box, a springing
hard lock-box, a soft-at-closing, springing hard lock-box or no lock-box at all;
(xiv) identifying any Mortgage Loans with which any such Mortgage
Loans are cross-collateralized; and
(xv) the number of units, pads, rooms or square feet with respect to
each Mortgaged Property.
Such list may be in the form of more than one list, collectively setting forth
all of the information required. Certain of the above-referenced items are
described on the Mortgage Loan Schedule attached hereto. Certain of the
above-referenced items are described on Exhibit B-1 to the Pooling and Servicing
Agreement and such descriptions are incorporated by reference into the Mortgage
Loan Schedule attached hereto.
Mortgage
Loan
ID Property Name Seller City State Zip Code
-------------------------------------------------------------------------------------------------------------
4 JQH Hotel Portfolio BCRE Various Various Various
4.1 Embassy Suites Frisco BCRE Xxxxxx XX 00000
4.2 Embassy Suites Hampton BCRE Xxxxxxx XX 00000
4.3 Embassy Suites Hot Springs BCRE Hot Xxxxxxx XX 00000
4.4 Holiday Inn Express Springfield BCRE Xxxxxxxxxxx XX 00000
4.5 Courtyard by Xxxxxxxx Xxxxxxxx Xxxx XXXX Xxxxxxxx Xxxx XX 00000
0 Xxxxx Xxxx Xxxxx XXXX Xxxxxxx XX 00000
10 Xxxxxx Resort Portfolio BCRE Various Various Various
10.1 Buena Vista Resort BCRE Xxxxx Xxxxx XX 00000
10.2 Xxxx Xxxxx Xxxxxx XXXX Xxxxxxx XX 00000
10.3 Crystal Xxxx Xxxxxx XXXX Xxxx XX 00000
10.4 Yogi Jellystone Resort OH BCRE Xxxxxx XX 00000
10.5 Xxxxx Xxxxx Xxxxxx XXXX Xxxxxx Xxxx XX 00000
10.6 Mountain Pines Resort XXXX Xxxxxxxx XX 00000
10.7 Xxxxxxxxxxx Xxxxxx XXXX Xxxxxx Xxxxxx XX 00000
10.8 Xxxxx Xxxxx Xxxxxx XXXX Xxxxxx XX 00000
10.9 Blueberry Hill Resort FL XXXX Xxxxxxxx XX 00000
10.10 Blueberry Resort NJ BCRE Xxxx Xxxxxxxx XX 00000
10.11 Coldbrook Resort BCRE Xxxxxx XX 00000
10.12 Yogi Jellystone Resort NJ BCRE Xxxx Xxxxxxx XX 00000
12 JPIM Self Storage Portfolio BCRE Various Various Various
12.1 Waipahu BCRE Xxxxxxx XX 00000
12.2 Xxx Xxxxxxxxx XXXX Xxx Xxxxxxxxx XX 00000
12.3 Southampton BCRE Xxxxxxxxxxx XX 00000
12.4 Metairie XXXX Xxxxxxxx XX 00000
12.5 Philadelphia XXXX Xxxxxxxxxxxx XX 00000
12.6 Berkeley XXXX Xxxxxxxx XX 00000
12.7 Kingwood BCRE Xxxxxxxx XX 00000
12.8 Pennsauken BCRE Xxxxxxxxxx XX 00000
12.9 Xxx Xxxxxxx XXXX Xxx Xxxxxxx XX 00000
12.10 Vallejo XXXX Xxxxxxx XX 00000
12.11 Bedford BCRE Xxxxxxx XX 00000
12.12 Xxxx Xxxx Xxxxx XXXX Xxxx Xxxx Xxxxx XX 00000
12.13 Xxxx Xxxxx XXXX Xxxx Xxxxx XX 00000
12.14 Euless XXXX Xxxxxx XX 00000
Xxxxxxx Hotel Portfolio BCRE Various Various Various
16 Xxxxxxx Bloomington and Philadelphia BCRE Various Various Various
16.1 Country Inn & Suites Mall of America BCRE Xxxxxxxxxxx XX 00000
16.2 Radisson Warwick XXXX Xxxxxxxxxxxx XX 00000
00 Xxxxxxx Xxxxxxxx Xxxx Xxxxxxxxx XXXX Xxxxxxxxx XX 00000
25 Wild Acres, Indian Creek and Wagon Wheel Resorts BCRE Various Various Various
25.1 Wild Acres Resort BCRE Xxx Xxxxxxx Xxxxx XX 00000
25.2 Xxxxxx Xxxxx Xxxxxx XXXX Xxxxxx XX 00000
25.3 Wagon Wheel Resort XXXX Xxx Xxxxxxx Xxxxx XX 00000
31 Fort Xxxxxxx Marriott Portfolio BCRE Xxxx Xxxxxxx XX 00000
31.1 Fort Xxxxxxx Marriott BCRE Xxxx Xxxxxxx XX 00000
31.2 Xxxxxxxxx Xxx Xxxx Xxxxxxx XXXX Xxxx Xxxxxxx XX 00000
31.3 Courtyard Fort Xxxxxxx BCRE Xxxx Xxxxxxx XX 00000
00 Xxxxxxxxxx Xxxxxxxx Xxxxxx XXXX Xxx Xxxxx XX 00000
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx XXXX Xxxxxx XX 00000
64 Xxxx Xxxxxx and Xxxx Xxxxxx Resorts BCRE Various Various Various
64.1 Xxxx Xxxxxx Resort BCRE Xxxx Xxx XX 00000
64.2 Xxxx Xxxxxx Resort BCRE Xxxxxxxxxx XX 00000
69 00000 Xxxx Xxxxxx XXXX Xxxx xx Xxxxxxxx XX 00000
00 Xxxxx Xxxxx Xxxxxx XXXX Xxxxx Xxxxx XX 00000
75 Casa xx Xxxx BCRE Xxxxxx XX 00000
80 Safety Storage portfolio BCRE Various Various Various
80.1 Xxxxxx City BCRE Xxxxxx Xxxx XX 00000
80.2 Pleasant Valley XXXX Xxxxxxxx Xxxxxx XX 00000
80.3 Independence South BCRE Xxxxxxxxxxxx XX 00000
80.4 X-00 Xxxxxxx XXXX Xxxxxxx XX 00000
80.5 Olathe BCRE Xxxxxx XX 00000
00 Xxxxxxx Xxx & Xxxxxx Xxxxxxxxx XXXX Xxxxxxxxx XX 00000
00 Xxxxxxxx Xxxxxxx Xxxxxxxx XXXX Xxxxxxxx XX 00000
00 Xxxxxxxxx Xxxxx XXXX Xxxxxxxx XX 00000
00 Xxxxxxx & Xxxxxxxx Xxxxxxx XXXX Xxxxxxx XX 00000
000 Xxx Xxxxx Xxxxx XXXX Xxxxx XX 00000
000 Xxxx Xxxxxxxxxx Xxxxxxxxxx XXXX Xxxxxxxxxx XX 00000
000 Xxxx Xxxxxx Xxxxxx XXXX Xxxxxxxxxxx XX 00000
000 Xxxxxxxx Xxxxxx Xxxxx XXXX Xxxxxxxxxx XX 00000
000 Xxxxxxx Xxxx Xxxxx XXXX Xxxxxxx XX 00000
000 Xxxxxxxx Xxxxxxxxxx XXXX Xxx Xxxxx XX 00000
000 Xxxxxxxxx Xxx Xxxxxxxxx XX BCRE Xxxxxxxxx XX 00000
000 Xxxxxx Xxxx Xxxxxx Xxxxxx XXXX Xxx Xxxxxxxxxx XX 00000
000 Xxxxxxxx Xxx Xxxxxxxxxx XXXX Xxxxx XX 00000
000 Xxxxxxx Xxx & Xxxxxx - Xxxxxxxxx XXXX Xxxxxxxxx XX 00000
000 Xxxxxxx Xxxxxx XXXX Xxxxxxxxx Xxxxx XX 00000
144 Holiday Inn Express-Lexington SC BCRE Xxxxxxxxx XX 00000
000 Xxxxxxxx Xxxxxxxxxx XXXX Xxxxxxxx XX 00000
157 Commercial Vehicles Group Building BCRE Xxxxxxx XX 00000
161 00000 Xxxx Xxxx XXXX Xxxx XX 00000
000 Xxxxxxxxx Xxxxxxxx XXXX Xxxxxxxxx XX 00000
170 Econo Lodge Xxxxx Church BCRE Xxxxxxxxxx XX 00000
172 Pine Haven Mobile Home Park BCRE Xxxxxxxxx XX 00000
173 3391 Berlin Turnpike BCRE Xxxxxxxxx XX 00000
Cut-off
Interest Original Date Maturity / ARD
ID Address Rate Balance Balance Balance
-----------------------------------------------------------------------------------------------------------------------
4 Various 6.3900% 125,000,000 125,000,000 109,560,803
4.1 7600 Xxxx X. Xxxxxxx Drive 53,300,000 53,300,000
4.2 0000 Xxxxxxxx Xxxxx 27,200,000 27,200,000
4.3 000 Xxxxxxxxxx Xxxxxxxxx 26,800,000 26,800,000
4.4 0000 Xxxx Xx. Xxxxx Xxxxxx 9,400,000 9,400,000
4.5 000 Xxxxxxx Xxxxx 8,300,000 8,300,000
7 1001 Xxxxxx 6.1300% 93,000,000 93,000,000 93,000,000
10 Various 6.5800% 75,500,000 75,500,000 72,145,217
10.1 000 Xxxxxxx Xxxxxxx 12,850,000 12,850,000
10.2 00 Xxxxxxxx Xxxx 10,875,000 10,875,000
10.3 000 Xxxxxx Xxxx 8,000,000 8,000,000
10.4 0000 Xxxxx Xxxxx 00 7,450,000 7,450,000
10.5 0000 Xxxx Xxxxxxx 000 6,800,000 6,800,000
10.6 0000 Xxxxxx Xxxxx Xxxxxx Xxxx 5,850,000 5,850,000
10.7 0000 Xxxx Xxxx 4,750,000 4,750,000
10.8 10354 Smooth Water Drive 4,550,000 4,550,000
10.9 0000 Xxxxxx Xxxx 000 3,950,000 3,950,000
10.10 000 Xxxxxx Xxxxxxx Xxxx 3,700,000 3,700,000
10.11 000 Xxxx Xxxxxxx Xxxx 3,400,000 3,400,000
10.12 0000 00xx Xxxxxx 3,325,000 3,325,000
12 Various 6.1530% 66,400,000 66,400,000 66,400,000
12.1 00-0000 Xxxxxx Xxx Xxxxxx 11,560,000 11,560,000
12.2 0000 00xx Xxxxxx 7,700,000 7,700,000
12.3 00 Xxxxxx Xxxxx 7,090,000 7,090,000
12.4 0000 Xxxxxxx Xxxxxx 5,890,000 5,890,000
12.5 0000 Xxxxxx Xxxxxx 5,470,000 5,470,000
12.6 000 Xxxxxxxx Xxxxxx 5,050,000 5,050,000
12.7 000 Xxxxxxxx Xxxxx 4,780,000 4,780,000
12.8 0000 Xxxxx Xxxxxxxx Xxxxxxxxx 4,410,000 4,410,000
12.9 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx 4,040,000 4,040,000
12.10 000 Xxxxx Xxxxxx 3,470,000 3,470,000
12.11 0000 Xxxxxxx Xxxx 1,930,000 1,930,000
12.12 0000 Xxxxxxxxx Xxxxx 1,750,000 1,750,000
12.13 0000 Xxxx Xxxxxxx 1,700,000 1,700,000
12.14 000 Xxxxx Xxxx Xxxxxx 1,560,000 1,560,000
Various 61,000,000 61,000,000 54,878,427
16 Various 5.6400% 34,000,000 34,000,000 29,228,034
16.1 0000 Xxxxxxxxx Xxxxx 21,000,000 21,000,000
16.2 0000 Xxxxxx Xxxxxx 13,000,000 13,000,000
17 20 West Baltimore 6.0000% 27,000,000 27,000,000 25,650,392
25 Various 6.3800% 36,350,000 36,350,000 35,123,877
25.1 000 Xxxx Xxxxxx 15,622,000 15,622,000
25.2 0000 Xxxx Xxxx Xxxx 14,527,000 14,527,000
25.3 0 Xxx Xxxxxxx Xxxx 6,201,000 6,201,000
31 Various 6.3700% 32,500,000 32,500,000 30,992,720
31.1 000 Xxxx Xxxxxxxxxx Xxxx 17,200,000 17,200,000
31.2 0000 Xxxxxxxx Xxxxx 8,600,000 8,600,000
31.3 0000 Xxxxxxxx Xxxxx 6,700,000 6,700,000
53 0000 Xxxxx Xxxx Xxxxxxxxx 5.6140% 22,000,000 22,000,000 22,000,000
61 0000 Xxxxxxx Xxxxx Xxxxx 5.7500% 16,800,000 16,800,000 15,664,678
64 Various 6.6300% 16,300,000 16,300,000 15,778,409
64.1 000 Xxxxx 0 12,319,000 12,319,000
64.2 0000 Xxxxx Xxxxx 0 3,981,000 3,981,000
69 00000 Xxxx Xxxxxx 6.2900% 15,600,000 15,600,000 14,049,315
70 0000 Xxxxx XX Xxxxxxx 00 5.8900% 15,450,000 15,450,000 13,931,180
75 0000 Xxxxx Xxxxxx Xxxxxx 6.3400% 13,200,000 13,200,000 11,555,188
80 Various 5.8800% 11,800,000 11,800,000 9,972,643
80.1 00000 Xxxxxx Xxxx 3,250,000 3,250,000
80.2 0000 Xxxxxxx Xxxx 2,600,000 2,600,000
80.3 00000 Xxxx 00 Xxxxxxx 2,575,000 2,575,000
80.4 000 Xxxxx Xxxxxx Xxxx 1,775,000 1,775,000
80.5 0000 X. Xxxxxx Xxxxxx 1,600,000 1,600,000
81 00000 Xxxxxxxxx Xxxx 6.2500% 11,500,000 11,500,000 8,981,001
83 00000 Xxxxxxxx Xxxxxxxxx 6.0500% 11,400,000 11,400,000 10,673,204
87 0000 Xxxxxxx Xxxx Xxxx 5.7500% 10,520,000 10,520,000 10,116,434
97 000 Xxxxx 00 Xxxx 6.0000% 9,560,000 9,560,000 8,108,331
000 000 Xxxxx Xxx Xxxx 5.7900% 8,700,000 8,700,000 7,829,617
114 00 Xxxxx Xxxxxx 5.8400% 7,500,000 7,500,000 7,002,019
117 0000 Xxxx Xxxx Xxxxxx 5.8000% 7,200,000 7,200,000 6,717,010
118 1981 North Central Expressway 5.9000% 7,000,000 7,000,000 6,643,092
000 0000 Xxxxx Xxxxxx Xxxx 6.0600% 6,450,000 6,450,000 5,480,229
123 00 Xxxxxxx Xxxxxx 5.8900% 6,400,000 6,400,000 5,979,121
128 000 Xxxxxxxx Xxxxxx 6.3500% 6,100,000 6,091,661 4,779,038
130 000 Xxxxxxx Xxxxxx 6.0500% 5,600,000 5,600,000 5,065,502
134 000 Xxxxxx Xxxx 5.8000% 5,300,000 5,300,000 4,945,387
140 000 Xxxxxx Xxxx 6.3800% 5,000,000 4,980,372 3,921,216
000 0000-0000 Xxxxxxxxx Xxxx 5.7600% 4,630,000 4,630,000 4,243,308
144 000 Xxxxxxxxx Xxxxx 5.9100% 4,500,000 4,500,000 3,474,457
145 25, 35 & 00 Xxxxxxxxx Xxxx and 50 & 00 Xxxxxxxx Xxxxx 5.8700% 4,500,000 4,500,000 4,131,754
157 0000 Xxxx Xxxxxx Xxxx 6.2500% 3,750,000 3,750,000 3,231,117
000 00000 Xxxx Xxxx 5.8600% 3,124,000 3,124,000 2,917,369
000 000 Xxxxx Xxxxxx Xxxxxxx 5.8600% 2,425,000 2,425,000 2,185,424
170 20080 Xxxxxx'x Neck Boulevard 7.0000% 1,900,000 1,900,000 1,520,012
172 0000 00xx Xxxxxx Xxxx 6.6100% 1,620,000 1,620,000 1,480,832
173 0000 Xxxxxx Xxxxxxxx 6.3800% 1,350,000 1,347,736 1,157,673
Monthly Interest Crossed
Payment Debt Administrative Accrual ARD With Loan Group
ID Date Service Fee Rate Basis (Yes/No) Lockbox Other Loans 1 or 2
---------------------------------------------------------------------------------------------------------------------------------
4 1 781,064 0.020540% Actual/360 No Hard No 1
4.1
4.2
4.3
4.4
4.5
7 1 481,673 0.020540% Actual/360 No Hard No 1
10 1 481,190 0.020540% Actual/360 No Hard No 1
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12
12 1 345,195 0.020540% Actual/360 No None at Closing; Springing Soft No 1
12.1
12.2
12.3
12.4
12.5
12.6
12.7
12.8
12.9
12.10
12.11
12.12
12.13
12.14
1 357,924 0.020540% Actual/360 No None at Closing; Springing Hard Yes 1
16 1 196,045 0.020540% Actual/360 No None at Closing; Springing Hard Yes 1
16.1
16.2
17 1 161,879 0.020540% Actual/360 No None at Closing; Springing Hard Yes 1
25 1 226,896 0.020540% Actual/360 No Hard No 1
25.1
25.2
25.3
31 1 202,651 0.020540% Actual/360 No Soft at Closing; Springing Hard No 1
31.1
31.2
31.3
53 1 104,353 0.020540% Actual/360 No None at Closing; Springing Soft No 1
61 1 98,040 0.020540% Actual/360 No None No 1
64 1 104,425 0.020540% Actual/360 No Hard No 1
64.1
64.2
69 1 96,458 0.020540% Actual/360 No Hard No 1
70 1 91,541 0.020540% Actual/360 No Soft at Closing; Springing Hard No 1
75 1 82,049 0.020540% Actual/360 No None No 2
80 1 69,839 0.020540% Actual/360 No None No 1
80.1
80.2
80.3
80.4
80.5
81 1 75,862 0.020540% Actual/360 No Hard; Springing Cash Management No 1
83 1 68,716 0.020540% Actual/360 No None No 1
87 1 61,392 0.020540% Actual/360 No Hard No 1
97 1 57,317 0.020540% Actual/360 No Hard No 1
105 1 50,992 0.020540% Actual/360 No None at Closing; Springing Hard No 1
114 1 44,198 0.020540% Xxxxxx/000 Xx Xxxx Xx 0
000 0 42,246 0.020540% Actual/360 No Soft; Springing cash management No 2
118 1 41,520 0.020540% Actual/360 No None at Closing; Springing Hard No 1
121 1 38,920 0.020540% Xxxxxx/000 Xx Xxxx Xx 0
000 0 37,920 0.020540% Xxxxxx/000 Xx Xxxx Xx 0
000 0 40,618 0.020540% Actual/360 No Hard, Springing Cash Management No 1
130 1 33,755 0.020540% Actual/360 No None at Closing; Springing Hard No 1
134 1 31,098 0.020540% Xxxxxx/000 Xx Xxxx Xx 0
000 0 33,386 0.020540% Actual/360 No Hard No 1
143 1 27,049 0.060540% Xxxxxx/000 Xx Xxxx Xx 0
000 0 28,746 0.020540% Actual/360 No Hard, Springing Cash Management No 1
145 1 26,605 0.020540% Xxxxxx/000 Xx Xxxx Xx 0
000 0 24,738 0.020540% Actual/360 No Hard No 1
161 1 18,450 0.020540% Actual/360 No None at Closing; Springing Hard No 1
167 1 14,322 0.020540% Actual/360 No Hard No 1
170 1 13,429 0.020540% Actual/360 No None at Closing; Springing Hard No 1
172 1 10,357 0.020540% Xxxxxx/000 Xx Xxxx Xx 0
000 0 8,427 0.020540% Actual/360 No Hard No 1
Net
Rentable
Area
ID SF/Units
------------------
4 1,110
4.1 330
4.2 295
4.3 246
4.4 120
4.5 119
7 1,333,312
10 4,856
10.1 678
10.2 418
10.3 418
10.4 425
10.5 409
10.6 885
10.7 300
10.8 310
10.9 406
10.10 176
10.11 267
10.12 164
12 857,421
12.1 72,975
12.2 48,720
12.3 63,913
12.4 60,360
12.5 81,375
12.6 46,667
12.7 84,915
12.8 69,974
12.9 42,295
12.10 54,295
12.11 52,570
12.12 56,737
12.13 63,300
12.14 59,325
971
16 532
16.1 234
16.2 298
17 439
25 1,416
25.1 510
25.2 623
25.3 283
31 455
31.1 230
31.2 113
31.3 112
53 421,093
61 85,078
64 982
64.1 742
64.2 240
69 76,109
70 162,285
75 136
80 2,473
80.1 560
80.2 484
80.3 661
80.4 362
80.5 406
81 122
83 44,529
87 206,828
97 62,000
105 187,350
114 111
117 121
118 296
121 67
123 104
128 98
130 48,332
134 72
140 74
143 79,025
144 74
145 60
157 59,400
161 17,667
167 12,000
170 72
172 74
173 4,000
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section
2(b), collectively consist of the following documents:
(i) (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 Assocation, as Trustee for the registered holders of COMM
2006-C8, Commercial Mortgage Pass-Through Certificates, without recourse"; and
(B) in the case of a 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); provided, if the related Mortgage has been recorded in the name of
MERS or its designee, no assignment of Mortgage in favor of the Trustee will be
required to be recorded or delivered and instead, the Mortgage Loan Seller shall
take all actions as are necessary to cause the Trustee, on behalf of the
Certificateholders, to be shown as (and the Trustee shall take all necessary
actions to confirm that it is shown as) the owner of the related Mortgage Loan
on the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS;
(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; provided, if the related security agreement has been
recorded in the name of MERS or its designee, no assignment of security
agreement in favor of the Trustee will be required to be recorded or delivered
and instead, the Mortgage Loan Seller shall take all actions as are necessary to
cause the Trustee, on behalf of the Certificateholders, to be shown as (and the
Trustee shall take all necessary actions to confirm that it is shown as) the
owner of the related assignment of security agreement on the records of MERS for
purposes of the system of recording transfers of beneficial ownership of
security agreements maintained by MERS;
(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; provided, if the related UCC financing statement has been
recorded in the name of MERS or its designee, no UCC financing statement in
favor of the Trustee will be required to be recorded or delivered and instead,
the Mortgage Loan Seller shall take all actions as are necessary to cause the
Trustee, on behalf of the Certificateholders, to be shown as (and the Trustee
shall take all necessary actions to confirm that it is shown as) the owner of
the related UCC Financing Statement on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of UCC financing
statements maintained by MERS;
(vi) the original or a copy of the Loan Agreement 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; provided, if the related Assignment of
Leases, Rents and Profits has been recorded in the name of MERS or its designee,
no Assignment of Leases, Rents and Profits in favor of the Trustee will be
required to be recorded or delivered and instead, the Mortgage Loan Seller shall
take all actions as are necessary to cause the Trustee, on behalf of the
Certificateholders, to be shown as (and the Trustee shall take all necessary
actions to confirm that it is shown as) the owner of the related Assignment of
Leases, Rents and Profits on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of assignment of leases, rents and
profits maintained by MERS;
(ix) the original of any environmental indemnity agreements and
copies of any environmental insurance policies pertaining to the Mortgaged
Properties required in connection with origination of the Mortgage Loans, if
any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Properties;
(xi) if the Borrower has a leasehold interest in the related
Mortgaged Property, the original ground lease and any related lessor estoppel 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 held by the lender as
beneficiary or assigned as security for 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, if applicable.
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
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date herein specified or, if no such date is specified, as
of the Closing Date, except as set forth on Schedule C-1 hereto, that:
1) Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of
the date of this Agreement and as of the Cut-off Date.
2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan.
Immediately prior to the transfer to the Purchaser of the Mortgage Loans,
the Seller had good title to, and was the sole owner of, each Mortgage
Loan. The Seller has full right, power and authority to transfer and
assign each of the Mortgage Loans to or at the direction of the Purchaser
and has validly and effectively conveyed (or caused to be conveyed) to the
Purchaser or its designee all of the Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all
pledges, liens, charges, security interests and/or other encumbrances. The
sale of the Mortgage Loans to the Purchaser or its designee does not
require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3) Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-off
Date, and no Mortgage Loan was 30 days or more delinquent in the
twelve-month period immediately preceding the Cut-off Date.
4) Lien; Valid Assignment. None of the matters referred to in
clauses (B), (C) or (D) of the definition of "Permitted Encumbrances" (as
defined below), individually or in the aggregate, materially interferes
with the security intended to be provided by such Mortgage, the
marketability or current use of the Mortgaged Property, or the current
ability of the Mortgaged Property to generate operating income sufficient
to service the Mortgage Loan debt. The related assignment of such Mortgage
executed and delivered in favor of the Trustee is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to
the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage; provided, if the related assignment of
Mortgage has been recorded in the name of Mortgage Electronic Registration
Systems, Inc. ("MERS") or its designee, no assignment of Mortgage in favor
of the Trustee will be required to be prepared or delivered and instead,
the Mortgage Loan Seller shall take all actions as are necessary to cause
the Trust to be shown as the owner of the related Mortgage Loan on the
records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS. Such Mortgage,
together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and enforceable
(subject to the exceptions set forth in paragraph 13 below) first lien on
the Mortgaged Property (subject to the Permitted Encumbrances) and,
subject to the exceptions set forth in paragraph 13 below, valid and
enforceable security interest in favor of the holder thereof in all of the
related Borrower's personal property used in, and reasonably necessary to
operate, the related Mortgaged Property. In the case of a Mortgaged
Property operated as a hotel or an assisted living facility, the
Borrower's personal property includes all personal property that a prudent
mortgage lender making a similar Mortgage Loan would deem reasonably
necessary to operate the related Mortgaged Property as it is currently
being operated. A Uniform Commercial Code financing statement has been
filed and/or recorded in all places necessary to perfect a valid security
interest in such personal property, to the extent a security interest may
be so created therein, and such security interest is a first priority
security interest, subject to any prior purchase money security interest
in such personal property and any personal property leases applicable to
such personal property; provided, if the related Uniform Commercial Code
Financing Statement has been recorded in the name of MERS or its designee,
no assignment of Uniform Commercial Code Financing Statement in favor of
the Trustee will be required to be prepared or delivered and instead, the
Mortgage Loan Seller shall take all actions as are necessary to cause the
Trust to be shown as the owner of the related Mortgage Loan on the records
of MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS). Notwithstanding 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 Uniform Commercial Code
financing statements are required in order to effect such perfection.
"Permitted Encumbrances" shall mean, (A) the lien for current real estate
taxes and assessments not yet due and payable, (B) covenants, conditions
and restrictions, rights of way, easements and other matters that are of
public record and/or are referred to in the related lender's title
insurance policy, (C) exceptions and exclusions specifically referred to
in such lender's title insurance policy, (D) other matters to which like
properties are commonly subject.
5) Assignment of Leases and Rents. The Assignment of Leases related
to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
paragraph 13 below, enforceable first priority lien and first priority
security interest in the related Borrower's interest in all leases,
sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full
right to assign the same; provided, if the related Assignment of Leases
has been recorded in the name of MERS or its designee, no Assignment of
Leases in favor of the Trustee will be required to be prepared or
delivered and instead, the Mortgage Loan Seller shall take all actions as
are necessary to cause the Trust to be shown as the owner of the related
Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by
MERS. The related assignment of any Assignment of Leases not included in a
Mortgage has been executed and delivered in favor of the Trustee and is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's
right, title and interest in, to and under such Assignment of Leases.
6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and
the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination,
rescission or release, in any manner that, in each case, materially
adversely affects the value of the related Mortgaged Property. None of the
terms of any Mortgage Note, Mortgage or Assignment of Leases has been
impaired, waived, altered or modified in any respect, except by written
instruments, all of which are included in the related Mortgage File.
7) Condition of Property; Condemnation. (i) Each of the Mortgaged
Properties securing the Mortgage Loans was the subject of an engineering
report within 18 months prior to the Cut-off Date. Each such Mortgaged
Property is, to the Seller's knowledge, free and clear of any damage (or
adequate reserves therefor have been established) that would materially
and adversely affect its value as security for the related Mortgage Loan.
Each Mortgaged Property securing the Mortgage Loans that was not the
subject of an engineering report within 18 months prior to the Cut-off
Date is set forth on Schedule C-1 to this Exhibit C and each such
Mortgaged Property is in good repair and condition and all building
systems contained therein are in good working order (or adequate reserves
therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely
affect its value as security for the related Mortgage Loan as of the date
hereof. The Seller has received no notice of the commencement of any
proceeding for the condemnation of all or any material portion of any
Mortgaged Property. To the Seller's knowledge (based on surveys and/or
title insurance obtained in connection with the origination of the
Mortgage Loans), as of the date of the origination of each Mortgage Loan,
all of the material improvements on the related Mortgaged Property that
were considered in determining the appraised value of the Mortgaged
Property lay wholly within the boundaries and building restriction lines
of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to herein or that do not
materially and adversely affect the value or marketability of such
Mortgaged Property, and no improvements on adjoining properties materially
encroached upon such Mortgaged Property so as to materially and adversely
affect the value or marketability of such Mortgaged Property, except those
encroachments that are insured against by the Title Policy referred to
herein.
8) Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy or a marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance
policy (the "Title Policy") in the original principal amount of the
related Mortgage Loan after all advances of principal. Each Title Policy
insures that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to Permitted Encumbrances. Each Title
Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid,
and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or
omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the
related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. To
the Seller's knowledge, the insurer issuing such Title Policy is qualified
to do business in the jurisdiction in which the related Mortgaged Property
is located.
9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as
to completion of any on-site or off-site improvement and as to
disbursements of any funds escrowed for such purpose that were to have
been complied with on or before the Closing Date have been complied with,
or any such funds so escrowed have not been released.
10) Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph
13) such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby.
11) Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(i) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (ii) no fees or
expenses are payable to such trustee by the Seller, the Purchaser or any
transferee thereof except in connection with a trustee's sale after
default by the related Borrower or in connection with any full or partial
release of the related Mortgaged Property or related security for the
related Mortgage Loan.
12) Environmental Conditions.
i) Each of the Mortgaged Properties securing the Mortgage
Loans was the subject of an environmental site assessment within 18
months prior to the Cut-off Date or the Mortgaged Property is
covered under paragraph 12(iii) below. An environmental site
assessment, or an update of a previous such report, was performed
with respect to each such Mortgaged Property in connection with the
origination or the sale of the related Mortgage Loan, a report of
each such assessment (or the most recent assessment with respect to
each Mortgaged Property) (an "Environmental Report") has been
delivered to the Purchaser, and the Seller has no knowledge of any
material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such
report. Each Mortgage requires the related Borrower to comply with
all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a
material and adverse environmental condition or circumstance
affecting any Mortgaged Property, (i) a party not related to the
Borrower was identified as the responsible party for such condition
or circumstance or (ii) environmental insurance covering such
condition was obtained or must be maintained until the condition is
remediated, or (iii) the related Borrower was required either to
provide additional security that was deemed to be sufficient by the
originator in light of the circumstances and/or to establish an
operations and maintenance plan.
ii) In the case of each Mortgage Loan set forth on Schedule
C-1 to this Exhibit C, (i) such Mortgage Loan is the subject of a
Secured Creditor Impaired Property Policy, issued by the issuer set
forth on Schedule C-1 (the "Policy Issuer") and effective as of the
date thereof (the "Environmental Insurance Policy"), (ii) the
Environmental Insurance Policy is in full force and effect, (iii)(a)
a property condition or engineering report was prepared with respect
to lead based paint ("LBP"), asbestos containing materials ("ACM")
and radon gas ("RG") at each related Mortgaged Property, and (b) if
such report disclosed the existence of a material and adverse LBP,
ACM or RG environmental condition or circumstance affecting the
related Mortgaged Property, the related Borrower (A) was required to
remediate the identified condition prior to closing the Mortgage
Loan or provide additional security or establish with the lender a
reserve from loan proceeds, in an amount deemed to be sufficient by
the Seller, for the remediation of the problem, and/or (B) agreed in
the Mortgage Loan documents to establish an operations and
maintenance plan after the closing of the Mortgage Loan, (iv) on the
effective date of the Environmental Insurance Policy, Seller as
originator had no knowledge of any material and adverse
environmental condition or circumstance affecting the Mortgaged
Property (other than the existence of LBP, ACM or RG) that was not
disclosed to the Policy Issuer in one or more of the following: (a)
the application for insurance, (b) a borrower questionnaire that was
provided to the Policy Issuer, or (c) an engineering or other report
provided to the Policy Issuer, and (v) the premium of any
Environmental Insurance Policy has been paid through the maturity of
the policy's term and the term of such policy extends at least five
years beyond the maturity of the Mortgage Loan.
iii) With respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an environmental site
assessment within 18 months prior to the Cut-off Date, which
Mortgaged Properties are set forth on Schedule C-1 to this Exhibit
C, (i) no Hazardous Material is present on such Mortgaged Property
such that (1) the value of such Mortgaged Property is materially and
adversely affected or (2) under applicable federal, state or local
law, (a) such Hazardous Material could be required to be eliminated
at a cost materially and adversely affecting the value of the
Mortgaged Property before such Mortgaged Property could be altered,
renovated, demolished or transferred, or (b) the presence of such
Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting
the value of the Mortgaged Property, and (ii) such Mortgaged
Property is in material compliance with all applicable federal,
state and local laws pertaining to Hazardous Materials or
environmental hazards, any noncompliance with such laws does not
have a material adverse effect on the value of such Mortgaged
Property, and neither Seller nor, to Seller's knowledge, the related
Borrower or any current tenant thereon, has received any notice of
violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials and any other substance or material as
may be defined as a hazardous or toxic substance by any federal,
state or local environmental law ordinance, rule, regulation or
order, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. xx.xx. 9601 et seq.), the Hazardous Materials Transportation
Act as amended (42 U.S.C. xx.xx. 6901 et seq.), the Federal Water
Pollution Control Act as amended (33 U.S.C. xx.xx. 1251 et seq.),
the Clean Air Act (42 U.S.C. xx.xx. 1251 et seq.) and any
regulations promulgated pursuant thereto.
13) Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by
or on behalf of the related Borrower is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related
Borrower with respect to such Mortgage Note, Mortgage or other agreement.
14) Insurance. 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, lightning, 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 normal commercial mortgage 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 Mortgaged Property, and contains no provisions
for a deduction for depreciation, and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
Mortgaged Property; (b) a business interruption or rental loss insurance
policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of
buildings or other structures on the Mortgaged 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, and in any event not less than $1 million per
occurrence. Such 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 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 Borrower to maintain all such insurance
and, upon such Borrower's failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at the Borrower's cost and expense and
to seek reimbursement therefor from such Borrower. Each Mortgage provides
that casualty insurance proceeds 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 Borrower, or (c) to the
reduction of the principal amount of the Mortgage Loan.
15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in
future installments) or other outstanding charges affecting any Mortgaged
Property that are or may become a lien of priority equal to or higher than
the lien of the related Mortgage. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered
unpaid until the date on which interest or penalties would be first
payable thereon.
16) Borrower Bankruptcy. No Mortgaged Property, nor any portion
thereof is the subject of, and no Borrower under a Mortgage Loan is, a
debtor in any state or federal bankruptcy or insolvency or similar
proceeding.
17) Leasehold Estate. Each Mortgaged Property consists of a fee
simple estate in real estate or, if the related Mortgage Loan is secured
in whole or in part by the interest of a Borrower as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Borrower's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest"), and as to such
Ground Leases:
i) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease (or the related estoppel letter
or lender protection agreement between the Seller and related
lessor) does not prohibit the current use of the Mortgaged Property
and does not prohibit the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no material
change in the payment terms of such Ground Lease since the
origination of the related Mortgage Loan, with the exception of
material changes reflected in written instruments that are a part of
the related Mortgage File;
ii) The lessee's interest in such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with,
the related Mortgage, other than Permitted Encumbrances;
iii) The Borrower's interest in such Ground Lease is
assignable to the Purchaser and its successors and assigns upon
notice to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
iv) Such Ground Lease is in full force and effect, and the
Ground Lease provides that no material amendment to such Ground
Lease is binding on a mortgagee unless the mortgagee has consented
thereto, and the Seller has received no notice that an event of
default has occurred thereunder, and, to the Seller's knowledge,
there exists no condition that, but for the passage of time or the
giving of notice, or both, would result in an event of default under
the terms of such Ground Lease;
v) Such Ground Lease or an estoppel letter or other agreement,
(A) requires the lessor under such Ground Lease to give notice of
any default by the lessee to the holder of the Mortgage; and (B)
provides that no notice of termination given under such Ground Lease
is effective against the holder of the Mortgage unless a copy of
such notice has been delivered to such holder and the lessor has
offered or is required to enter into a new lease with such holder on
terms that do not materially vary from the economic terms of the
Ground Lease.
vi) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the receipt
of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
vii) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less than
twenty years beyond the Stated Maturity Date of the related Mortgage
Loan;
viii) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease
interest will be applied either (A) to the repair or restoration of
all or part of the related Mortgaged Property, with the mortgagee or
a trustee appointed by the related Mortgage having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (B) to the
payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon;
ix) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an uncured default,
to disturb the possession, interest or quiet enjoyment of the lessee
thereunder for any reason, or in any manner, which would materially
adversely affect the security provided by the related Mortgage; and
x) Such Ground Lease requires the Lessor to enter into a new
lease upon termination of such Ground Lease or if such Ground Lease
is rejected in a bankruptcy proceeding.
18) Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury
regulation section 1.860G-2(a), and the related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) (without regard to Section 856(e)(4) of the Code).
19) Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be
deposited or paid have been so deposited or paid.
20) Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required
by such Mortgage Loan.
21) No Mechanics' Liens. Each Mortgaged Property is free and clear
of any and all mechanics' and materialmen's liens that are prior or equal
to the lien of the related Mortgage, and no rights are outstanding that
under law could give rise to any such lien that would be prior or equal to
the lien of the related Mortgage except, in each case, for liens insured
against by the Title Policy referred to herein.
22) Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
23) Cross-collateralization. No Mortgage Loan is
cross-collateralized or cross-defaulted with any loan other than one or
more other Mortgage Loans.
24) Releases of Mortgaged Property. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the
related Mortgaged Property (that was included in the appraisal for such
Mortgaged Property and/or generates income) from the lien of the related
Mortgage, except (i) upon payment in full of all amounts due under the
related Mortgage Loan, (ii) in connection with a full or partial
defeasance pursuant to provisions in the related loan documents, (iii)
those Mortgage Loans set forth on Schedule C-1 which provide for certain
releases upon the satisfaction of certain legal and underwriting
requirements or (iv) upon the payment of a release price and prepayment
consideration in connection therewith. Except with respect to a release of
a portion of the Mortgaged Properties that was not included in the
appraisal or does not generate income, no Mortgage Loan permits the full
or partial release or substitution of collateral unless the mortgagee or
servicer can require the Borrower to provide an opinion of tax counsel to
the effect that such release or substitution of collateral (a) would not
constitute a "significant modification" of such Mortgage Loan within the
meaning of Treas. Reg. ss.1.1001-3 and (b) would not cause such Mortgage
Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
25) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of
interest at an increased rate after the Anticipated Repayment Date) or for
any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property.
26) No Material Default. There exists no material Event of Default,
breach, violation or event of acceleration (and, to the Seller's actual
knowledge, no event which, with the passage of time or the giving of
notice, or both, would constitute any of the foregoing) under the
documents evidencing or securing the Mortgage Loan, in any such case to
the extent the same materially and adversely affects the value of the
Mortgage Loan and the related Mortgaged Property; 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 of paragraphs 3, 7, 12, 14, 15, 16 and
17 of this Exhibit C.
27) Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of
the related Mortgage Loan.
28) Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area
where the Mortgaged Property is located, the improvements located on or
forming part of each Mortgaged Property comply with applicable zoning laws
and ordinances, or constitute a legal non-conforming use or structure or,
if any such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance does not materially
and adversely affect the value of the related Mortgaged Property, such
value as determined by the appraisal performed at origination or in
connection with the sale of the related Mortgage Loan by the Seller
hereunder.
29) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified
therein. The Seller has no knowledge that any of the Mortgaged Properties
is encumbered by any lien junior to the lien of the related Mortgage.
30) Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits, or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Borrower
or related Mortgaged Property that might adversely affect title to the
Mortgaged Property or the validity or enforceability of the related
Mortgage or that might materially and adversely affect the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which
the premises were intended.
31) Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in
all material respects legal, proper and prudent and have met customary
industry standards.
32) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage Loan or as
of the date of the sale of the related Mortgage Loan by the Seller
hereunder, the related Borrower was in possession of all material
licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated.
33) Assisted Living Facility Regulation. If the Mortgaged Property
is operated as an assisted living facility, to the Seller's knowledge (a)
the related Borrower is in compliance in all material respects with all
federal and state laws applicable to the use and operation of the related
Mortgaged Property, and (b) if the operator of the Mortgaged Property
participates in Medicare or Medicaid programs, the facility is in
compliance in all material respects with the requirements for
participation in such programs.
34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to
the Purchaser.
35) Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any
material portion thereof, or a controlling interest in the related
Borrower, is transferred, sold, or encumbered; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Borrower's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Borrower or constituent entities of the Borrower to a
third party or parties related to the Borrower upon the Borrower's
satisfaction of certain conditions precedent.
36) Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this
purpose, a "Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents provide substantially to the
effect that it is formed or organized solely for the purpose of owning and
operating one or more of the Mortgaged Properties securing the Mortgage
Loans and it is prohibited from engaging in any business unrelated to such
Mortgaged Property or Properties, and whose organizational documents
further provide, or which entity represented in the related Mortgage Loan
documents, substantially to the effect that it does not have any assets
other than those related to its interest in and operation of such
Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage Loan documents, that it has its own
books and records and accounts separate and apart from any other person
(other than a Borrower for a Mortgage Loan that is cross-collateralized
and cross-defaulted with the related Mortgage Loan), and that it holds
itself out as a legal entity, separate and apart from any other person.
37) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the
non-recourse obligations of the related Borrower, provided that at least
one natural person (and the Borrower if the Borrower is not a natural
person) is liable to the holder of the Mortgage Loan for damages arising
in the case of fraud or willful misrepresentation by the Borrower,
misappropriation of rents, insurance proceeds, or condemnation awards and
breaches of the environmental covenants in the Mortgage Loan documents.
38) Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the payment
of all reasonable costs and expenses of the lender incurred in connection
with the defeasance of such Mortgage Loan and the release of the related
Mortgaged Property, and the borrower is required to pay all reasonable
costs and expenses of the lender associated with the approval of an
assumption of such Mortgage Loan.
39) Defeasance. No Mortgage Loan provides that it can be defeased
until the date that is more than two years after the Closing Date or
provides that it can be defeased with any property other than government
securities (as defined in Section 2(a)(16) of the Investment Company Act
of 1940, as amended) or any direct non-callable security issued or
guaranteed as to principal or interest by the United States.
40) Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance
charges payable under the terms of the Mortgage Loans, in respect of
voluntary prepayments, constituted customary prepayment premiums and yield
maintenance charges for commercial mortgage loans.
41) [Reserved]
42) Single Asset REMIC. With respect to each of the single asset
REMICs, there has been no amendment, waiver, impairment, alteration, or
modification to any provision of the related REMIC declaration or to any
provisions of the related Mortgage Loan documents since the startup day of
the single asset REMIC. With respect to each of the single asset REMICs,
the single asset REMIC has been administered, the related Mortgage Loan
has been serviced, and each provision of the related REMIC declaration has
been complied with in a manner such that the single asset REMIC has not
failed to qualify as a REMIC for federal income tax purposes at any time
since the Startup Day.
For purposes of these representations and warranties, the phrases "to the
knowledge of the Seller" or "to the Seller's knowledge" shall mean (except where
otherwise expressly set forth below) the actual state of knowledge of the Seller
(i) after the Seller's having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Seller's underwriting standards, at the time of the Seller's origination or
acquisition of the particular Mortgage Loan; and (ii) subsequent to such
origination, utilizing the monitoring practices customarily utilized by prudent
commercial or multifamily, as applicable, mortgage lenders with respect to
securitizable commercial or multifamily, as applicable, mortgage loans,
including inquiry with a representative of the loan servicer designated as the
party responsible for the knowledge of the servicer pertaining to the Mortgage
Loans. Also for purposes of these representations and warranties, the phrases
"to the actual knowledge of the Seller" or "to the Seller's actual knowledge"
shall mean (except where otherwise expressly set forth below) the actual state
of knowledge of the Seller without any express or implied obligation to make
inquiry. All information contained in the documents included in the definition
of Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Seller, to the extent that
the Seller or its closing counsel or custodian, if any, has reviewed or had
possession of such document at any time. For purposes of these representations
and warranties, to the extent that any representation or warranty is qualified
by the Seller's knowledge with respect to the contents of the Mortgage Note,
Mortgage, lender's title policy and any letters of credit or Ground Leases, if
such document is not included in the Mortgage File, the Seller shall make such
representation or warranty without any such qualification. Wherever there is a
reference in a representation or warranty to receipt by, or possession of, the
Seller of any information or documents, or to any action taken by the Seller or
to any action which has not been taken by the Seller or its agents or employees,
such reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking such action by, the
Seller. For purposes of these representations and warranties, when referring to
the conduct of "reasonable prudent institutional commercial or multifamily, as
applicable mortgage lenders" (or similar such phrases and terms), such conduct
shall be measured by reference to the industry standards generally in effect as
of the date the related representation or warranty relates to or is made.
It is understood and agreed that the representations and warranties set forth in
this Exhibit C shall survive delivery of the respective Mortgage Files to the
Purchaser and/or the Trustee and shall inure to the benefit of the Purchaser and
its successors and assigns (including without limitation the Trustee and the
holders of the Certificates), notwithstanding any restrictive or qualified
endorsement or assignment.
SCHEDULE C-1
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 for BCRE.
Note: The Mortgage Loans known as Xxxxxxx Radisson Lord Baltimore,
identified on Annex A-1 by ID 17, has an Indemnity Deed of Trust structure. The
related borrower under such Mortgage Loan executed and delivered the related
note to the lender and is obligated to make payments thereunder. The related
property owner for each such Mortgage Loan executed an Indemnity Deed of Trust
and Security Agreement in favor of the lender, guaranteeing all amounts payable
by the borrower under the related note. With respect to certain of the
representations and warranties, with respect to these Mortgage Loans, statements
regarding the borrower relate to the property owner of the related Mortgaged
Property.
Annex A-1
ID # Mortgage Loan Exception
--------------------------------------------------------------------------------
Exceptions to Representation 4: Lien; Valid Assignment.
7 First City Tower The lien of the Mortgage also secured a
subordinate B note in the principal amount of
$17,000,000 of which $3,208,741.73 has been
funded.
69 00000 Xxxx Xxxxxx The single tenant at the Mortgaged Property has
a purchase option (i) at any time after the
117th month of the lease term, which is the
last 3 months of the term of the Mortgage Loan,
and is during the "open period" of the Mortgage
Loan and (ii) following condemnation of 25% of
the land or 10% of the building if the loss
would substantially and materially be adverse
to the tenant's business. The purchase price
following condemnation requires payment of all
money due to the borrower, as well as any
yield, prepayment and defeasance costs. The
purchase price following the 117th month of the
lease term (which will be within the open
period of the Mortgage Loan) exceeds the
principal amount of the Mortgage Loan.
161 27754 Novi Road The single tenant at the Mortgaged Property has
the right, exercisable upon 12 months' notice,
to purchase the Mortgaged Property at the
expiration of its lease term on February 5,
2016 at a purchase price equal to the greater
of $3,370,000 or the fair market value of the
Mortgaged Property.
--------------------------------------------------------------------------------
97 Raymour & Xxxxxxxx The Ground Lease relating to the Mortgaged
Paramus Property is subordinate to the fee mortgage
that is in place at the Mortgaged Property.
However, the fee mortgagee has entered into a
non-disturbance agreement with the ground
lessee and per the estoppel executed by the
ground lessee in favor of the lender, the fee
mortgagee would acknowledge the lender's rights
under the Ground Lease.
172 Pine Haven Mobile The lender's lien with respect to a certain
Home Park mobile home owned by the borrower must be
registered on the Certificate of Title to such
mobile home and the re-issued Certificate of
Title must be delivered to lender within 45
days of origination.
--------------------------------------------------------------------------------
Exceptions to Representation 7: Condition of Property; Condemnation.
172 Pine Haven Mobile The improvements on the Mortgaged Property
Home Park encroach over the related setback lines.
97 Raymour & Xxxxxxxx The improvements on the Mortgaged Property are
Paramus under construction; no escrow or reserve has
been established to cover the costs of
completion.
--------------------------------------------------------------------------------
Exceptions to Representation 9: No Holdbacks.
7 First City Tower Pursuant to the Mortgage Loan documents, the
holder of a partially funded subordinate B note
is required to make additional advances under
the B note pursuant to the terms thereof in an
aggregate principal amount not to exceed
$17,000,000 of which $3,208,741.73 has been
funded.
--------------------------------------------------------------------------------
Exceptions to Representation 14: Insurance.
170 Econo Lodge - The mortgaged property is 10% coinsured by the
Xxxxx Church borrower and 90% coinsured by an unaffiliated
insurance company. The insurance coverage
provided by such insurance company exceeds the
insurable value of the property.
172 Pine Haven Mobile The business interruption insurance coverage
maintained by the borrower excludes coverage
with respect to casualty resulting from
windstorm. However the nonrecourse carveout
guarantor is liable for any losses associated
with loss of income attributable to windstorm
damage
157 Commercial The borrower is not required to maintain
Vehicles Group business interruption insurance, but is
Building required to use its best efforts to cause the
sole tenant at the Mortgaged Property to obtain
such insurance.
--------------------------------------------------------------------------------
Exceptions to Representation 16: Mortgagor Bankruptcy.
All All The Seller makes no representation regarding
the bankruptcy or insolvency of any tenant at
the Mortgaged Property.
--------------------------------------------------------------------------------
Exceptions to Representation 17: Leasehold Estate.
97 Raymour & Xxxxxxxx (ii) The Ground Lease relating to the Mortgaged
Paramus Property is subordinate to the fee mortgage
that is in place at the Mortgaged Property.
However, the fee mortgagee has entered into a
non-disturbance agreement with the ground
lessee and per the estoppel executed by the
ground lessee in favor of the lender, the fee
mortgagee would acknowledge the lender's rights
under the Ground Lease.
12 JPIM Self Storage (viii) All condemnation proceeds awarded for
Portfolio the taking of the land or any part thereof will
(Berkeley, belong to and be the property of the ground
California lessor. The ground lessee will be entitled to
property) compensation for taking of the ground lessee's
leasehold and for any of the buildings and
improvements placed upon the premises by the
ground lessee during the term of the ground
lease. The ground lessee may terminate the
ground lease if more than 25% of the premises
is taken, and the portion not so taken is not
reasonably adequate for the operation of the
ground lessee's business. If the ground lessee
elects to remain in possession, it is required,
at its own cost and expense, to make all
necessary repairs or alterations to the
buildings and improvements so as to constitute
the portion of any improvements or buildings
not taken a complete architectural unit.
--------------------------------------------------------------------------------
Exceptions to Representation 24: Releases of Mortgaged Property.
10, 12, Xxxxxx Resort See Schedule C-2 attached hereto.
25.2 and Portfolio, JPIM
64 Self Storage
Portfolio,
Indian Creek,
Xxxx Xxxxxx
31 Fort Xxxxxxx The borrower is entitled to obtain the release
Marriott of an individual property through partial
Portfolio defeasance after the expiration of the lockout
period. In addition, the borrower is entitled
to obtain the release of an individual property
through prepayment as follows: (i) on and after
November 1, 2007, the borrower is entitled to
obtain the release of the Courtyard by Marriott
property at a release price equal to 110% of
the allocated loan amount for that property,
together with a prepayment premium and (ii) on
and after November 1, 2009, the borrower is
entitled to obtain the release of an individual
property at a release price equal to 110% of
the allocated loan amount for that property.
The borrower is also permitted, in connection
with a sale of an individual property and
termination of the cross-collateralization
provisions, (i) with respect to the Courtyard
by Marriott property, at any time after
November 1, 2007 but prior to the expiration of
the lockout period, to prepay the Mortgage Loan
in an amount equal to 10%, together with yield
maintenance and (ii) with respect to any
individual property, after the expiration of
the lockout period the borrower is required to
partially defease to Mortgage Loan in an amount
equal to 10%. Any partial prepayment or partial
defeasance with respect to an individual
property will be subject to satisfaction of
various conditions, including satisfaction of
LTV and DSCR tests as stated in the Mortgage
Loan documents.
16 Xxxxxxx The borrower is entitled to obtain the release
Bloomington and of an individual property through partial
Philadelphia defeasance after the expiration of the lockout
period. In addition, the borrower is entitled
to obtain the release of an individual property
through prepayment after the first day of the
third month preceding the maturity date at a
release price equal to 110% of the allocated
loan amount for that property, provided that if
as of the release date the DSCR for the
remaining property is at least equal to 1.85x
and the LTV is less than 60%, the release price
will be 100%. The borrower is also required, in
connection with a total defeasance and
termination of the cross-collateralization
provisions of the crossed loan, to cause the
partial prepayment of the crossed Mortgage Loan
secured by the property known as Xxxxxxx
Radisson Lord Baltimore ("Xxxxxxx Baltimore
Loan" in an amount equal to 10%. The borrower
is also permitted, in connection with a sale of
(i) an individual property and the termination
of the cross-collateralization provisions, to
partially defease the Mortgage Loan in an
amount equal to 10%, or (ii) both mortgaged
properties, to cause the partial prepayment of
the Xxxxxxx Baltimore Loan in an amount equal
to 10%. The borrower is also required, in
connection with a total assumption and
termination of the cross-collateralization
provisions, to cause the partial prepayment of
the Xxxxxxx Baltimore Loan in an amount equal
to 10%.
17 Xxxxxxx Radisson The borrower is entitled to obtain the release
Lord Baltimore of the mortgaged property at any time after the
open date or in connection with a sale of the
mortgaged property after the expiration of the
lockout period and the termination of the
cross-collateralization provisions, provided
that, the mortgaged properties securing the
Mortgage Loan known as Xxxxxxx Bloomington and
Philadelphia are required to meet certain DSCR
and LTV tests as stated in the Mortgage Loan
documents.
--------------------------------------------------------------------------------
Exception to Representation 28: Local Law Compliance.
12 JPIM Self Storage Three of the related mortgaged properties are
illegal and nonconforming with respect to the
required number of striped parking spaces, as
follows: the Philadelphia mortgaged property is
deficient by 14 striped spaces, the Los Angeles
mortgaged property is deficient by 29 striped
spaces and the Fort Worth mortgaged property is
deficient by 4 striped spaces. The related
borrower has a post-origination obligation to
make each such property legally conforming or
legal nonconforming by August 16, 2007, in each
case either by striping the required additional
parking spaces or by obtaining the necessary
variance from the applicable governmental
authority.
97 Raymour & Xxxxxxxx The Mortgaged Property is under construction
Paramus and final certificates of occupancy have not
yet been issued.
--------------------------------------------------------------------------------
Exception to Representation 32: Licenses and Permits.
97 Raymour & Xxxxxxxx The Mortgaged Property is under construction
Paramus and final certificates of occupancy and the
tenant's license or permit to operate have not
yet been issued.
--------------------------------------------------------------------------------
Exceptions to Representation 35: Due on Sale.
Various The Mortgage Loan documents also permit,
without lender consent, (i) transfers for
purposes of family and estate planning, (ii)
transfers by devise, descent or operation of
law upon the death of a direct or indirect
member, partner or shareholder of the related
borrower, (iii) the issuance of non-controlling
new equity interests, (iv) transfers among
existing direct or indirect members, partners
or shareholders in the borrower or an affiliate
of the borrower, (v) transfers with respect to
any person whose stocks or certificates are
traded on a nationally recognized stock
exchange, (vi) with respect to Mortgage Loans
made to tenant-in-common borrowers, transfers
among and to additional tenant-in-common
borrowers, (vii) transfers among affiliated
borrowers with respect to cross-collateralized
and cross-defaulted Mortgage Loans or
multi-property Mortgage Loans or (viii)
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.
4 JQH Hotel The Mortgage Loan documents permit the equity
Portfolio owners of the borrower to obtain mezzanine
financing, subject to conditions including, but
not limited to a combined DSCR of not less than
1.30x, a combined LTV ratio of not more than
70% and delivery of confirmation in writing
from each applicable rating agency that the
incurrence of such debt will not result in a
qualification, downgrade or withdrawal of any
rating assigned to the certificates.
12 JPIM Self Storage The Mortgage Loan documents permit transfers
Portfolio without lender consent between pensions funds
or collective investment funds for which X.X.
Xxxxxx Investment Management Inc. or JPMorgan
Chase Bank, N.A. or one of its affiliates acts
as trustee, agent or advisor, provided that
following such transfer, the borrower is
controlled by the constituent entities of the
fund marketed as the "JPMorgan Alternative
Property Fund."
61 Mission Hills The equity owners of the borrower obtained
Shopping Center mezzanine financing secured by the membership
interests of the borrower in the original
principal amount of $30,000,000. An
intercreditor agreement in favor of the lender
was executed.
In addition, the Mortgage Loan documents permit
the owners of direct or indirect interests in
the borrower to replace the existing mezzanine
debt, subject to conditions including, but not
limited to a combined DSCR of not less than
1.20x, a combined LTV ratio of not more than
80%, delivery of an acceptable intercreditor
agreement and delivery of confirmation in
writing from each applicable rating agency that
the incurrence of such debt will not result in
a qualification, downgrade or withdrawal of any
rating assigned to the certificates.
69 00000 Xxxx Xxxxxx The Mortgage Loan documents permit the owners
of direct or indirect interests in the borrower
to incur mezzanine debt, subject to conditions
including, but not limited to a combined DSCR
of not less than 1.07x, a combined LTV ratio of
not more than 85%, delivery of an acceptable
intercreditor agreement and delivery of
confirmation in writing from each applicable
rating agency that the incurrence of such debt
will not result in a qualification, downgrade
or withdrawal of any rating assigned to the
certificates.
70 Towne South Center The equity owner of the borrower obtained
mezzanine financing secured by the membership
interests of the borrower in the original
principal amount of $5,471,250. An
intercreditor agreement in favor of the lender
was executed.
The asset manager, an affiliate of the "sponsor
borrower") may acquire 100% undivided interests
in the Mortgaged Property and assume the
Mortgage Loan if certain conditions precedent
are satisfied, including delivery of
confirmation in writing from each applicable
rating agency that such assumption will not
result in a qualification, downgrade or
withdrawal of any rating assigned to the
certificates.
--------------------------------------------------------------------------------
Exceptions to Representation 37 Non-Recourse Exceptions.
Certain mortgage Certain of the Mortgage Loans have a recourse
loans carveout for "fraud or material
misrepresentation" or "fraud or intentional
misrepresentation" rather than "fraud or
willful misrepresentation."
4 JQH Hotel Portfolio There is no natural person that is liable for
the non-recourse carveouts.
7 First City Tower There is no natural person that is liable for
the non-recourse carveouts.
12 JPIM Self Storage There is no natural person or entity other than
Portfolio the borrower that is liable for the
non-recourse carveouts.
31 Fort Xxxxxxx In lieu of providing an indemnity with respect
Marriott Portfolio to the environmental covenants, the borrower
provided the Seller with an environmental
insurance policy from Indian Harbor Insurance
Company with a $10,000,000 limit.
53 Northpoint There is no natural person or entity that is
Business Center liable for the non-recourse carveouts.
118 Radisson Dallas There is no natural person or entity other than
North the borrower that is liable for the
non-recourse carveouts.
16 Xxxxxxx There is no natural person or entity other than
Bloomington and the borrower that is liable for the
Philadelphia non-recourse carveouts.
17 Xxxxxxx Radisson There is no natural person or entity other than
Lord Baltimore the borrower that is liable for the
non-recourse carveouts.
61 Mission Hills There is no natural person that is liable for
Shopping Center the non-recourse carveouts.
69 00000 Xxxx Xxxxxx The Mortgage Loan is fully recourse to the
"sponsor borrower" and the "sponsor guarantor"
(rather than liability for just losses or
damages) with respect to fraud (and material
misrepresentation) if caused by such persons,
and each other borrower and guarantor,
respectively, if caused by such other entities.
The sponsor borrower and the sponsor guarantor
(and each other borrower) are subject to a
recourse carve-out for misapplication or
misappropriation of rents, insurance proceeds,
or condemnation awards. The Mortgage Loan is
fully recourse to the sponsor borrower and the
sponsor guarantor (but no others) for violation
of environmental laws.
00 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxx Partners, LLC is the guarantor for
actions and inactions of the "sponsor
borrower"; the sponsor (which is typically an
individual) of each other borrower will be an
additional guarantor for the actions and
inactions of such respective other borrower.
Consequently, no natural person is liable for
the recourse obligations of the sponsor
borrower.
000 Xxxxxxx Xxxxxx There is no natural person that is liable for
the non-recourse carveouts.
--------------------------------------------------------------------------------
Schedule C-2
------------
Annex A-1
ID # Mortgage Loan Exception
--------------------------------------------------------------------------------
10 Xxxxxx Resort Portfolio After the expiration of the lockout
period, the borrower has the right
to obtain a release of an
individual mortgaged property and
to substitute a new property used
primarily for RV parks and of like
kind and quality, subject to the
satisfaction of conditions set
forth in the related mortgage loan
documents, including, among other
things, (i) that the individual
property proposed to be released,
together with all previously
released individual properties,
represents no greater than 25% of
the original principal amount of
the mortgage loan, (ii) the
satisfaction of certain debt
service coverage ratio and
loan-to-value ratio tests and (iii)
receipt of a "no downgrade" letter
from the Rating Agencies.
The Mortgage Loan documents permit
the borrower to obtain the release
of 32.49 acres (Cold Brook release
parcel) of unimproved land and/or
2.5 acres (Buena Vista release
parcel) of unimproved land, without
payment of a release price.
10, 25.2 and Xxxxxx Resort Portfolio, The Mortgage Loan documents permit
Indian Creek and Lake the lender to 64 uncross one or
Xxxxxx more of the mortgaged properties
from the cross-default and
cross-collateralization provisions
of the related mortgage loan, and
require the borrower to execute a
new promissory note having a
principal amount equal to the
allocated loan amount for the
mortgaged property that is
released. The lender is permitted
to obtain confirmation in writing
from each applicable rating agency
that such transfer will not result
in a qualification, downgrade or
withdrawal of any rating assigned
to the certificates.
12 JPIM Self Storage Portfolio After the expiration of the lockout
period, the borrower has the right
to obtain a release of an
individual mortgaged property and
to substitute a new property used
as a self storage facility of like
kind and quality, subject to the
satisfaction of conditions set
forth in the related mortgage loan
documents, including, among other
things, (i) that the individual
property proposed to be released,
together with all previously
released individual properties,
represents no greater than 33% of
the original principal amount of
the mortgage loan, (ii) the
satisfaction of certain debt
service coverage ratio and
loan-to-value ratio tests, (iii)
receipt of a "no downgrade" letter
from the Rating Agencies and (iv)
after the substitution, no more
than 50% of the mortgage loan will
be allocated to certain specified
western states, no more than 30% of
the mortgage loan will be allocated
to the certain specified
northeastern states, no more than
30% of the mortgage loan will be
allocated to the certain specified
south central states, and no more
than 5% of the mortgage loan will
be allocated to certain specified
southeastern states and certain
specified north central states,
respectively.
16 and 17 Xxxxxxx Bloomington and The Mortgage Loan documents for the
Philadelphia and Xxxxxxx Xxxxxxx Radisson Lord Baltimore
Radisson Lord Baltimore mortgage loan (the "Xxxxxxx
(two crossed loans) Maryland Loan") permit the borrower
to prepay the mortgage loan with
yield maintenance and terminate the
cross-collateralization provisions
at any time after the first
anniversary of the origination
date. The Mortgage Loan documents
for the Xxxxxxx Bloomington and
Philadelphia mortgage loan (the
"Xxxxxxx Portfolio Loan") permit
the borrower to either partially or
fully defease the mortgage loan or
to obtain the individual release of
one or both of the Mortgaged
Properties and to terminate the
cross-collateralization provisions
at any time after the expiration of
the lockout period. In connection
with the defeasance in whole of the
Mortgaged Properties securing the
Xxxxxxx Portfolio Loan, the
borrower under the Maryland Loan is
required to pay down the Maryland
Loan by 10%. The borrower under the
Xxxxxxx Portfolio Loan is also
required, in connection with a sale
of (i) an individual property and
the termination of the
cross-collateralization provisions,
to partially defease the Mortgage
Loan in an amount equal to 10%, or
(ii) both Mortgaged Properties, to
partially prepay the Xxxxxxx
Baltimore Loan in an amount equal
to 10%.
Annex A to Exhibit C
--------------------
Mortgage Loans With Environmental Insurance Coverage
----------------------------------------------------
Fort Xxxxxxx Marriott Portfolio.
EXHIBIT D-1
FORM OF CERTIFICATE OF THE SECRETARY OF
THE SELLER
Certificate of Secretary of Barclays Capital Real Estate Inc.
-------------------------------------------------------------
I, [_____], hereby certify that I am an Assistant Secretary of
Barclays Capital Real Estate Inc. ("BCRE"), and certify further as follows:
1. Attached hereto as Exhibits A and B, respectively, are true and
correct copies of the certificate of incorporation and by-laws of BCRE,
which are in full force and effect on the date hereof.
2. Attached hereto as Exhibit C is a Certificate of Good Standing
for BCRE issued by the Office of the Secretary of State of the State of
Delaware. No event has occurred since the date thereof which has affected
the good standing of BCRE under the laws of the State of Delaware.
3. Each individual who, as an officer or representative of BCRE,
signed (1) the Mortgage Loan Purchase Agreement, dated as of December 21,
2006 (the "Mortgage Loan Purchase Agreement") between Deutsche Mortgage &
Asset Receiving Corporation, as purchaser, and BCRE, as seller, (2) the
BCRE Indemnification Agreement, dated as of December 21, 2006 (the
"Indemnification Agreement" and together with the Mortgage Loan Purchase
Agreement, the "Agreements") by BCRE in favor of Deutsche Mortgage & Asset
Receiving Corporation, Banc of America Securities LLC, Barclays Capital
Inc. and Xxxxxx Xxxxxxx & Co. Incorporated or (3) any other document or
certificate delivered by or on behalf of BCRE prior hereto or on the date
hereof in connection with the transactions contemplated in the Agreements
was, at the respective times of such signing and delivery, and is as of
the date hereof, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on
such documents and certificates are their genuine signatures.
4. No proceedings looking towards merger, liquidation, dissolution
or bankruptcy of BCRE are pending or contemplated.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: ________ __, ____
--------------------------------------
Name: [______]
Title: Assistant Secretary
Exhibit A
Certificate of Incorporation of Barclays Capital Real Estate Inc.
Exhibit B
By-Laws of Barclays Capital Real Estate Inc.
Exhibit C
Certificate of Good Standing of Barclays Capital Real Estate Inc.
