EXHIBIT 10.3
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X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER
NOMURA CREDIT & CAPITAL, INC.,
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of July 1, 2007
Fixed Rate Mortgage Loans
Series 2007-LDP11
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This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as of July 1, 2007, is between X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as purchaser (the "Purchaser"), and Nomura Credit &
Capital, Inc., as seller (the "Seller").
Capitalized terms used in this Agreement not defined herein shall
have the meanings ascribed to them in the Pooling and Servicing Agreement dated
as of July 1, 2007 (the "Pooling and Servicing Agreement") among the Purchaser,
as depositor (the "Depositor"), Wachovia Bank, National Association, as master
servicer (the "Master Servicer"), CWCapital Asset Management LLC, as special
servicer (the "Special Servicer"), and LaSalle Bank National Association, as
trustee (the "Trustee"), pursuant to which the Purchaser will sell the Mortgage
Loans (as defined herein) to a trust fund and certificates representing
ownership interests in the Mortgage Loans will be issued by the trust fund. For
purposes of this Agreement, the term "Mortgage Loans" refers to the mortgage
loans listed on Exhibit A and the term "Mortgaged Properties" refers to the
properties securing such Mortgage Loans.
The Purchaser and the Seller wish to prescribe the manner of sale of
the Mortgage Loans from the Seller to the Purchaser and in consideration of the
premises and the mutual agreements hereinafter set forth, agree as follows:
SECTION 1. Sale and Conveyance of Mortgages; Possession of Mortgage
File. Effective as of the Closing Date and upon receipt of the purchase price
set forth in the immediately succeeding paragraph, the Seller does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse
(subject to certain agreements regarding servicing as provided in the Pooling
and Servicing Agreement, subservicing agreements permitted thereunder and that
certain Servicing Rights Purchase Agreement, dated as of the Closing Date
between the Master Servicer and the Seller) all of its right, title, and
interest in and to the Mortgage Loans including all interest and principal
received on or with respect to the Mortgage Loans after the Cut-off Date (other
than payments of principal and interest first due on the Mortgage Loans on or
before the Cut-off Date). Upon the sale of the Mortgage Loans, the ownership of
each related Mortgage Note, the Mortgage and the other contents of the related
Mortgage File will be vested in the Purchaser and immediately thereafter the
Trustee and the ownership of records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the Seller (other
than the records and documents described in the proviso to Section 3(a) hereof)
shall immediately vest in the Purchaser and immediately thereafter the Trustee.
The Seller's records will accurately reflect the sale of each Mortgage Loan to
the Purchaser. The Depositor will sell the Class X-0, Xxxxx X-0, Class A-2FL,
Class X-0, Xxxxx X-0, Class A-SB, Class A-1A, Class X, Class A-M, Class A-J,
Class B, Class C, Class D, Class E and Class F Certificates (the "Offered
Certificates") to the underwriters (the "Underwriters") specified in the
underwriting agreement dated June 28, 2007 (the "Underwriting Agreement")
between the Depositor and X.X. Xxxxxx Securities Inc. ("JPMSI") for itself and
as representative of the several underwriters identified therein, and the
Depositor will sell the Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class P, Class Q, Class T and Class NR Certificates (the "Private
Certificates") to JPMSI and UBS Securities LLC, the initial purchasers (together
with the Underwriters, the "Dealers") specified in the certificate purchase
agreement dated June 28, 2007 (the "Certificate Purchase Agreement"), between
the Depositor and JPMSI for itself and as representative of the initial
purchasers identified therein.
The sale and conveyance of the Mortgage Loans is being conducted on
an arms length basis and upon commercially reasonable terms. As the purchase
price for the Mortgage Loans, the Purchaser shall pay to the Seller or at the
Seller's direction in immediately available funds the sum of $740,641,284.54
(which amount is inclusive of accrued interest and exclusive of the Seller's pro
rata share of the costs set forth in Section 9 hereof). The purchase and sale of
the Mortgage Loans shall take place on the Closing Date.
SECTION 2. Books and Records; Certain Funds Received After the
Cut-off Date. From and after the sale of the Mortgage Loans to the Purchaser,
record title to each Mortgage and the related Mortgage Note shall be transferred
to the Trustee in accordance with this Agreement. Any funds due after the
Cut-off Date in connection with a Mortgage Loan received by the Seller shall be
held in trust for the benefit of the Trustee as the owner of such Mortgage Loan
and shall be transferred promptly to the Master Servicer. All scheduled payments
of principal and interest due on or before the Cut-off Date but collected after
the Cut-off Date, and recoveries of principal and interest collected on or
before the Cut-off Date (only in respect of principal and interest on the
Mortgage Loans due on or before the Cut-off Date and principal prepayments
thereon), shall belong to, and shall be promptly remitted to, the Seller.
The transfer of each Mortgage Loan shall be reflected on the
Seller's balance sheets and other financial statements as a sale of the Mortgage
Loans by the Seller to the Purchaser. The Seller intends to treat the transfer
of each Mortgage Loan to the Purchaser as a sale for tax purposes.
The transfer of each Mortgage Loan shall be reflected on the
Purchaser's balance sheets and other financial statements as a purchase of the
Mortgage Loans by the Purchaser from the Seller. The Purchaser intends to treat
the transfer of each Mortgage Loan from the Seller as a purchase for tax
purposes.
SECTION 3. Delivery of Mortgage Loan Documents; Additional Costs and
Expenses. (a) The Purchaser hereby directs the Seller, and the Seller hereby
agrees, upon the transfer of the Mortgage Loans contemplated herein, to deliver
on the Closing Date to the Trustee or a Custodian appointed thereby, all
documents, instruments and agreements required to be delivered by the Purchaser
to the Trustee with respect to the Mortgage Loans under Sections 2.01(b) and
2.01(c) of the Pooling and Servicing Agreement, and meeting all the requirements
of such Sections 2.01(b) and 2.01(c), and such other documents, instruments and
agreements as the Purchaser or the Trustee shall reasonably request. In
addition, the Seller agrees to deliver or cause to be delivered to the Master
Servicer, the Servicing File for each Mortgage Loan transferred pursuant to this
Agreement; provided that the Seller shall not be required to deliver any draft
documents, or any attorney client communications which are privileged
communications or constitute legal or other due diligence analyses, or internal
communications of the Seller or its affiliates, or credit underwriting or other
analyses or data.
(b) With respect to the transfer described in Section 1 hereof, if
the Mortgage Loan documents do not require the related Mortgagor to pay any
costs and expenses relating to any modifications to a related letter of credit
which modifications are required to effectuate such transfer (the "Transfer
Modification Costs"), then the Seller shall pay the Transfer Modification Costs
required to transfer the letter of credit to the Trustee as described in such
Section 1; provided that if the Mortgage Loan documents require the related
Mortgagor to pay any Transfer Modification Costs, such Transfer Modification
Costs shall be an expense of the Mortgagor unless such Mortgagor fails to pay
such Transfer Modification Costs after the Master Servicer has exercised all
remedies available under the Mortgage Loan documents to collect such Transfer
Modification Costs from such Mortgagor, in which case the Master Servicer shall
give the Seller notice of such failure and the amount of such Transfer
Modification costs and the Seller shall pay such Transfer Modification Costs.
SECTION 4. Treatment as a Security Agreement. The Seller,
concurrently with the execution and delivery hereof, has conveyed to the
Purchaser, all of its right, title and interest in and to the Mortgage Loans.
The parties intend that such conveyance of the Seller's right, title and
interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a purchase and sale and not a loan. If such conveyance is deemed to
be a pledge and not a sale, then the parties also intend and agree that the
Seller shall be deemed to have granted, and in such event does hereby grant, to
the Purchaser, a first priority security interest in all of its right, title and
interest in, to and under the Mortgage Loans, all payments of principal or
interest on such Mortgage Loans due after the Cut-off Date, all other payments
made in respect of such Mortgage Loans after the Cut-off Date (except to the
extent such payments were due on or before the Cut-off Date) and all proceeds
thereof and that this Agreement shall constitute a security agreement under
applicable law. If such conveyance is deemed to be a pledge and not a sale, the
Seller consents to the Purchaser hypothecating and transferring such security
interest in favor of the Trustee and transferring the obligation secured thereby
to the Trustee.
SECTION 5. Covenants of the Seller. The Seller covenants with the
Purchaser as follows:
(a) it shall record or cause a third party to record in the
appropriate public recording office for real property the intermediate
assignments of the Mortgage Loans and the Assignments of Mortgage from the
Seller to the Trustee in connection with the Pooling and Servicing Agreement.
All recording fees relating to the initial recordation of such intermediate
assignments and Assignments of Mortgage shall be paid by the Seller;
(b) it shall take any action reasonably required by the Purchaser,
the Trustee or the Master Servicer, in order to assist and facilitate in the
transfer of the servicing of the Mortgage Loans to the Master Servicer,
including effectuating the transfer of any letters of credit with respect to any
Mortgage Loan to the Trustee (in care of the Master Servicer) for the benefit of
Certificateholders. Prior to the date that a letter of credit, if any, with
respect to any Mortgage Loan is transferred to the Trustee (in care of the
Master Servicer), the Seller will cooperate with the reasonable requests of the
Master Servicer or Special Servicer, as applicable, in connection with
effectuating a draw under such letter of credit as required under the terms of
the related Mortgage Loan documents;
(c) if, during such period of time after the first date of the
public offering of the Offered Certificates as in the opinion of counsel for the
Underwriters, a prospectus relating to the Offered Certificates is required by
applicable law to be delivered in connection with sales thereof by an
Underwriter or a Dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus Supplement, including Annexes
X-0, X-0, X-0 and B thereto and the Diskette included therewith, with respect to
any information relating to the Mortgage Loans or the Seller, in order to make
the statements therein, in the light of the circumstances when the Prospectus
Supplement is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus Supplement, including Annexes X-0, X-0, X-0
and B thereto and the Diskette included therewith, with respect to any
information relating to the Mortgage Loans or the Seller, to comply with
applicable law, the Seller shall do all things necessary to assist the Depositor
to prepare and furnish, at the expense of the Seller (to the extent that such
amendment or supplement relates to the Seller, the Mortgage Loans listed on
Exhibit A and/or any information relating to the same, as provided by the
Seller), to the Underwriters such amendments or supplements to the Prospectus
Supplement as may be necessary, so that the statements in the Prospectus
Supplement as so amended or supplemented, including Annexes X-0, X-0, X-0 and B
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, will not, in the light of the
circumstances when the Prospectus is so amended or supplemented, be misleading
or so that the Prospectus Supplement, including Annexes X-0, X-0, X-0 and B
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, will comply with applicable law.
All terms used in this clause (c) and not otherwise defined herein shall have
the meaning set forth in the Indemnification Agreement, dated as of June 28,
2007 between the Purchaser and the Seller (the "Indemnification Agreement"); and
(d) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any Companion Loan related to a Serviced Whole Loan or any
Serviced Securitized Companion Loan that is deposited into an Other
Securitization or a Regulation AB Companion Loan Securitization, the depositor
in such Other Securitization or Regulation AB Companion Loan Securitization) and
the Trustee with any Additional Form 10-D Disclosure and any Additional Form
10-K Disclosure set forth next to the Purchaser's name (only with respect to
disclosure related to Items 1117 or 1119 of Regulation AB) on Schedule X and
Schedule Y of the Pooling and Servicing Agreement within the time periods set
forth in the Pooling and Servicing Agreement.
SECTION 6. Representations and Warranties.
(a) The Seller represents and warrants to the Purchaser as of the
Closing Date that:
(i) it is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(ii) it has the power and authority to own its property and to carry
on its business as now conducted;
(iii) it has the power to execute, deliver and perform this
Agreement;
(iv) it is legally authorized to transact business in the State of
New York. The Seller is in compliance with the laws of each state in which
any Mortgaged Property is located to the extent necessary so that a
subsequent holder of the related Mortgage Loan (including, without
limitation, the Purchaser) that is in compliance with the laws of such
state would not be prohibited from enforcing such Mortgage Loan solely by
reason of any non-compliance by the Seller;
(v) the execution, delivery and performance of this Agreement by the
Seller have been duly authorized by all requisite action by the Seller's
board of directors and will not violate or breach any provision of its
organizational documents;
(vi) this Agreement has been duly executed and delivered by the
Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general
equitable principles regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vii) there are no legal or governmental proceedings pending to
which the Seller is a party or of which any property of the Seller is the
subject which, if determined adversely to the Seller, would reasonably be
expected to adversely affect (A) the transfer of the Mortgage Loans and
the Mortgage Loan documents as contemplated herein, (B) the execution and
delivery by the Seller or enforceability against the Seller of the
Mortgage Loans or this Agreement, or (C) the performance of the Seller's
obligations hereunder;
(viii) it has no actual knowledge that any statement, report,
officer's certificate or other document prepared and furnished or to be
furnished by the Seller in connection with the transactions contemplated
hereby (including, without limitation, any financial cash flow models and
underwriting file abstracts furnished by the Seller) contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading;
(ix) it is not, nor with the giving of notice or lapse of time or
both would be, in violation of or in default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which it is a party or by which it or any of its properties is bound,
except for violations and defaults which individually and in the aggregate
would not have a material adverse effect on the transactions contemplated
herein; the sale of the Mortgage Loans and the performance by the Seller
of all of its obligations under this Agreement and the consummation by the
Seller of the transactions herein contemplated do not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Seller is a party
or by which the Seller is bound or to which any of the property or assets
of the Seller is subject, nor will any such action result in any violation
of the provisions of any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Seller, or any of its properties, except for conflicts, breaches,
defaults and violations which individually and in the aggregate would not
have a material adverse effect on the transactions contemplated herein;
and no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Seller of the transactions
contemplated by this Agreement, other than any consent, approval,
authorization, order, license, registration or qualification that has been
obtained or made;
(x) it has either (A) not dealt with any Person (other than the
Purchaser or the Dealers or their respective affiliates or any servicer of
a Mortgage Loan) that may be entitled to any commission or compensation in
connection with the sale or purchase of the Mortgage Loans or entering
into this Agreement or (B) paid in full any such commission or
compensation (except with respect to any servicer of a Mortgage Loan, any
commission or compensation that may be due and payable to such servicer if
such servicer is terminated and does not continue to act as a servicer);
and
(xi) it is solvent and the sale of the Mortgage Loans hereunder will
not cause it to become insolvent; and the sale of the Mortgage Loans is
not undertaken with the intent to hinder, delay or defraud any of the
Seller's creditors.
(b) The Purchaser represents and warrants to the Seller as of the
Closing Date that:
(i) it is a corporation duly organized, validly existing, and in
good standing in the State of Delaware;
(ii) it is duly qualified as a foreign corporation in good standing
in all jurisdictions in which ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Purchaser, and the Purchaser is conducting its business so as to comply in
all material respects with the applicable statutes, ordinances, rules and
regulations of each jurisdiction in which it is conducting business;
(iii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iv) it has the power to execute, deliver and perform this
Agreement, and neither the execution and delivery by the Purchaser of this
Agreement, nor the consummation by the Purchaser of the transactions
herein contemplated, nor the compliance by the Purchaser with the
provisions hereof, will (A) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the certificate of
incorporation or by-laws of the Purchaser or any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Purchaser or any of its properties, or any indenture, mortgage,
contract or other instrument or agreement to which the Purchaser is a
party or by which it is bound, or (B) result in the creation or imposition
of any lien, charge or encumbrance upon any of the Purchaser's property
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or agreement;
(v) this Agreement constitutes a legal, valid and binding obligation
of the Purchaser enforceable against it in accordance with its terms
(except as enforcement thereof may be limited by (a) bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or
other laws affecting the enforcement of creditors' rights generally and
(b) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or law));
(vi) there are no legal or governmental proceedings pending to which
the Purchaser is a party or of which any property of the Purchaser is the
subject which, if determined adversely to the Purchaser, might interfere
with or adversely affect the consummation of the transactions contemplated
herein and in the Pooling and Servicing Agreement; to the best of the
Purchaser's knowledge, no such proceedings are threatened or contemplated
by any governmental authorities or threatened by others;
(vii) it is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Purchaser or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(viii) it has not dealt with any broker, investment banker, agent or
other person, other than the Seller, the Dealers and their respective
affiliates, that may be entitled to any commission or compensation in
connection with the purchase and sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby;
(ix) all consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for the
execution, delivery and performance of this Agreement by the Purchaser
have been obtained or made; and
(x) it has not intentionally violated any provisions of the United
States Banking Secrecy Act, the United States Money Laundering Control Act
of 1986 or the United States International Money Laundering Abatement and
Anti-Terrorism Financing Act of 2001.
(c) The Seller further makes the representations and warranties as
to the Mortgage Loans set forth in Exhibit B as of the Closing Date (or as of
such other date if specifically provided in the particular representation or
warranty), which representations and warranties are subject to the exceptions
thereto set forth in Exhibit C. Neither the delivery by the Seller of the
Mortgage Files, Servicing Files, or any other documents required to be delivered
under Section 2.01 of the Pooling and Servicing Agreement, nor the review
thereof or any other due diligence by the Trustee, any Master Servicer, the
Special Servicer, a Certificate Owner or any other Person shall relieve the
Seller of any liability or obligation with respect to any representation or
warranty or otherwise under this Agreement or constitute notice to any Person of
a Breach or Defect.
(d) Pursuant to this Agreement or Section 2.03(b) of the Pooling and
Servicing Agreement, the Seller and the Purchaser shall be given notice of any
Breach or Defect that materially and adversely affects the value of any Mortgage
Loan, the value of the related Mortgaged Property or the interests of the
Trustee or any Certificateholder therein.
(e) Upon notice pursuant to Section 6(d) above, the Seller shall,
not later than 90 days from the earlier of the Seller's receipt of the notice
or, in the case of a Defect or Breach relating to a Mortgage Loan not being a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, but
without regard to the rule of Treasury Regulation Section 1.860G-2(f)(2) that
causes a defective mortgage loan to be treated as a qualified mortgage, the
Seller's discovery of such Breach or Defect (the "Initial Resolution Period"),
(i) cure such Defect or Breach, as the case may be, in all material respects,
(ii) repurchase the affected Mortgage Loan at the applicable Repurchase Price
(as defined below) or (iii) substitute a Qualified Substitute Mortgage Loan (as
defined below) for such affected Mortgage Loan (provided that in no event shall
any such substitution occur later than the second anniversary of the Closing
Date) and pay the Master Servicer for deposit into the Certificate Account, any
Substitution Shortfall Amount (as defined below) in connection therewith;
provided, however, except with respect to a Defect resulting solely from the
failure by the Seller to deliver to the Trustee or Custodian the actual policy
of lender's title insurance required pursuant to clause (ix) of the definition
of Mortgage File by a date not later than 18 months following the Closing Date,
if such Breach or Defect is capable of being cured but is not cured within the
Initial Resolution Period, and the Seller has commenced and is diligently
proceeding with the cure of such Breach or Defect within the Initial Resolution
Period, the Seller shall have an additional 90 days commencing immediately upon
the expiration of the Initial Resolution Period (the "Extended Resolution
Period") to complete such cure (or, failing such cure, to repurchase the related
Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as described
above); and provided, further, with respect to the Extended Resolution Period
the Seller shall have delivered an officer's certificate to the Rating Agencies,
the Master Servicer, the Special Servicer, the Trustee and the Directing
Certificateholder setting forth the reason such Breach or Defect is not capable
of being cured within the Initial Resolution Period and what actions the Seller
is pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Breach or Defect will be cured within the Extended
Resolution Period. Notwithstanding the foregoing, any Defect or Breach which
causes any Mortgage Loan not to be a "qualified mortgage" (within the meaning of
Section 860G(a)(3) of the Code, without regard to the rule of Treasury
Regulations Section 1.860G-2(f)(2) which causes a defective mortgage loan to be
treated as a qualified mortgage) shall be deemed to materially and adversely
affect the interests of the holders of the Certificates therein, and such
Mortgage Loan shall be repurchased or a Qualified Substitute Mortgage Loan
substituted in lieu thereof without regard to the extended cure period described
in the preceding sentence. If the affected Mortgage Loan is to be repurchased,
the Seller shall remit the Repurchase Price (defined below) in immediately
available funds to the Trustee.
If any Breach pertains to a representation or warranty that the
related Mortgage Loan documents or any particular Mortgage Loan document
requires the related Mortgagor to bear the costs and expenses associated with
any particular action or matter under such Mortgage Loan document(s), then
Seller shall cure such Breach within the applicable cure period (as the same may
be extended) by reimbursing the Trust Fund (by wire transfer of immediately
available funds) the reasonable amount of any such costs and expenses incurred
by the Master Servicer, the Special Servicer, the Trustee or the Trust Fund that
are the basis of such Breach and have not been reimbursed by the related
Mortgagor; provided, however, in the event any such costs and expenses exceed
$10,000, the Seller shall have the option to either repurchase or substitute for
the related Mortgage Loan as provided above or pay such costs and expenses.
Except as provided in the proviso to the immediately preceding sentence, the
Seller shall remit the amount of such costs and expenses and upon its making
such remittance, the Seller shall be deemed to have cured such Breach in all
respects. To the extent any fees or expenses that are the subject of a cure by
the Seller are subsequently obtained from the related Mortgagor, the portion of
the cure payment equal to such fees or expenses obtained from the Mortgagor
shall be returned to the Seller pursuant to Section 2.03(f) of the Pooling and
Servicing Agreement. Notwithstanding the foregoing, the sole remedy with respect
to any breach of the representation set forth in the second to last sentence of
clause (32) of Exhibit B hereto shall be payment by the Seller of such costs and
expenses without respect to the materiality of such breach.
Any of the following will cause a document in the Mortgage File to
be deemed to have a Defect and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interests of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity with a copy of the Mortgage
Note that appears to be regular on its face; (b) the absence from the Mortgage
File of the original signed Mortgage that appears to be regular on its face,
unless there is included in the Mortgage File a certified copy of the Mortgage
and a certificate stating that the original signed Mortgage was sent for
recordation; (c) the absence from the Mortgage File of the lender's title
insurance policy (or if the policy has not yet been issued, an original or copy
of a "marked up" written commitment or the pro-forma or specimen title insurance
policy or a commitment to issue the same pursuant to written escrow instructions
signed by the title insurance company) called for by clause (ix) of the
definition of "Mortgage File" in the Pooling and Servicing Agreement; (d) the
absence from the Mortgage File of any required letter of credit; (e) with
respect to any leasehold mortgage loan, the absence from the related Mortgage
File of a copy (or an original, if available) of the related Ground Lease; or
(f) the absence from the Mortgage File of any intervening assignments required
to create a complete chain of assignments to the Trustee on behalf of the Trust,
unless there is included in the Mortgage File a certified copy of the
intervening assignment and a certificate stating that the original intervening
assignments were sent for recordation; provided, however, no Defect (except the
Defects previously described in clauses (a) through (f)) shall be considered to
materially and adversely affect the value of any Mortgage Loan, the value of the
related Mortgaged Property, the interests of the Trustee therein or the
interests of any Certificateholder therein unless the document with respect to
which the Defect exists is required in connection with an imminent enforcement
of the Mortgagee's rights or remedies under the related Mortgage Loan, defending
any claim asserted by any borrower or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien on any collateral
securing the Mortgage Loan or for any immediate significant servicing
obligation. Notwithstanding the foregoing, the delivery of executed escrow
instructions or a commitment to issue a lender's title insurance policy, as
provided in clause (ix) of the definition of "Mortgage File" in the Pooling and
Servicing Agreement, in lieu of the delivery of the actual policy of lender's
title insurance, shall not be considered a Defect or Breach with respect to any
Mortgage File if such actual policy is delivered to the Trustee or its Custodian
within 18 months after the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in the first paragraph of this Section
6(e), (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Defect
or Breach does not constitute a Defect or Breach, as the case may be, as to any
other Crossed Loan in such Crossed Group (without regard to this paragraph),
then the applicable Defect or Breach, as the case may be, will be deemed to
constitute a Defect or Breach, as the case may be, as to each other Crossed Loan
in the Crossed Group for purposes of this paragraph, and the Seller will be
required to repurchase or substitute for all of the remaining Crossed Loans in
the related Crossed Group as provided in the first paragraph of this Section
6(e) unless such other Crossed Loans in such Crossed Group satisfy the Crossed
Loan Repurchase Criteria, and the Mortgage Loan affected by the applicable
Defect or Breach and the Qualified Substitute Mortgage Loan, if any, satisfy all
other criteria for repurchase or substitution, as applicable, of Mortgage Loans
set forth herein. In the event that the remaining Crossed Loans satisfy the
aforementioned criteria, the Seller may elect either to repurchase or substitute
for only the affected Crossed Loan as to which the related Breach or Defect
exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. The Seller shall be responsible for the cost of any
Appraisal required to be obtained by the Master Servicer to determine if the
Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and
cost of such Appraisal has been approved by the Seller (such approval not to be
unreasonably withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Trustee shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Trustee shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner that removes the threat of material impairment as a result of the
exercise of remedies or some other accommodation can be reached. Any reserve or
other cash collateral or letters of credit securing the Crossed Loans shall be
allocated between such Crossed Loans in accordance with the Mortgage Loan
documents, or otherwise on a pro rata basis based upon their outstanding Stated
Principal Balances. Notwithstanding the foregoing, if a Crossed Loan that
remains in the Trust Fund is modified to terminate the related cross
collateralization and/or cross default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
any modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
The "Repurchase Price" with respect to any Mortgage Loan or REO Loan
to be repurchased pursuant to this Agreement and Section 2.03 of the Pooling and
Servicing Agreement, shall have the meaning given to the term "Purchase Price"
in the Pooling and Servicing Agreement.
A "Qualified Substitute Mortgage Loan" with respect to any Mortgage
Loan or REO Loan to be substituted pursuant to this Agreement and Section 2.03
of the Pooling and Servicing Agreement, shall have the meaning given to such
term in the Pooling and Servicing Agreement.
A "Substitution Shortfall Amount" with respect to any Mortgage Loan
or REO Loan to be substituted pursuant to this Agreement and Section 2.03 of the
Pooling and Servicing Agreement, shall have the meaning given to such term in
the Pooling and Servicing Agreement.
In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated hereby, (i) the Purchaser shall execute and deliver,
or cause the execution and delivery of, such endorsements and assignments,
without recourse, as shall be necessary to vest in the Seller the legal and
beneficial ownership of each repurchased Mortgage Loan or replaced Mortgage
Loan, as applicable, (ii) the Purchaser shall deliver, or cause the delivery, to
the Seller of all portions of the Mortgage File and other documents (including
the Servicing File) pertaining to such Mortgage Loan possessed by the Trustee,
or on the Trustee's behalf, and (iii) the Purchaser shall release, or cause to
be released, to the Seller any escrow payments and reserve funds held by the
Trustee, or on the Trustee's behalf, in respect of such repurchased or replaced
Mortgage Loans.
(f) The representations and warranties of the parties hereto shall
survive the execution and delivery and any termination of this Agreement and
shall inure to the benefit of the respective parties, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes or assignment of
Mortgage or the examination of the Mortgage Files.
(g) Each party hereby agrees to promptly notify the other party of
any Breach of a representation or warranty contained in this Section 6. The
Seller's obligation to cure any Breach or Defect or repurchase or substitute for
the affected Mortgage Loan pursuant to Section 6(e) herein shall constitute the
sole remedy available to the Purchaser in connection with a Breach or Defect
(subject to the last sentence of the second paragraph of Section 6(e)). It is
acknowledged and agreed that the representations and warranties are being made
for risk allocation purposes only; provided, however, no limitation of remedy is
implied with respect to the Seller's breach of its obligation to cure,
repurchase or substitute in accordance with the terms and conditions of this
Agreement.
SECTION 7. Conditions to Closing. The obligations of the Purchaser
to purchase the Mortgage Loans shall be subject to the satisfaction, on or prior
to the Closing Date, of the following conditions:
(a) Each of the obligations of the Seller required to be performed
by it at or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with and all of the representations
and warranties of the Seller under this Agreement shall be true and correct in
all material respects as of the Closing Date, and no event shall have occurred
as of the Closing Date which, with notice or passage of time, would constitute a
default under this Agreement, and the Purchaser shall have received a
certificate to the foregoing effect signed by an authorized officer of the
Seller substantially in the form of Exhibit D.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of the Seller's certificate of incorporation and by-laws,
certified as of a recent date by the Secretary or Assistant Secretary of
the Seller;
(ii) an original or copy of a certificate of good standing of the
Seller issued by the Secretary of the State of Delaware dated not earlier
than sixty days prior to the Closing Date;
(iii) an opinion of counsel of the Seller, in form and substance
satisfactory to the Purchaser and its counsel, substantially to the effect
that:
(A) the Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of
Delaware;
(B) the Seller has the power to conduct its business as now
conducted and to incur and perform its obligations under this
Agreement and the Indemnification Agreement;
(C) all necessary corporate or other action has been taken by
the Seller to authorize the execution, delivery and performance of
this Agreement and the Indemnification Agreement by the Seller and
this Agreement is a legal, valid and binding agreement of the Seller
enforceable against the Seller, whether such enforcement is sought
in a procedure at law or in equity, except to the extent such
enforcement may be limited by bankruptcy or other similar creditors'
laws or principles of equity and public policy considerations
underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of
the Agreement which purport to provide indemnification with respect
to securities law violations;
(D) the Seller's execution and delivery of, and the Seller's
performance of its obligations under, each of this Agreement and the
Indemnification Agreement do not and will not conflict with the
Seller's articles of association or by-laws or conflict with or
result in the breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which
the Seller is a party or by which the Seller is bound, or to which
any of the property or assets of the Seller is subject or violate
any provisions of law or conflict with or result in the breach of
any order of any court or any governmental body binding on the
Seller;
(E) there is no litigation, arbitration or mediation pending
before any court, arbitrator, mediator or administrative body, or to
such counsel's actual knowledge, threatened, against the Seller
which (i) questions, directly or indirectly, the validity or
enforceability of this Agreement or the Indemnification Agreement or
(ii) would, if decided adversely to the Seller, either individually
or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of the Seller to perform its
obligations under this Agreement or the Indemnification Agreement;
and
(F) no consent, approval, authorization, order, license,
registration or qualification of or with federal court or
governmental agency or body is required for the consummation by the
Seller of the transactions contemplated by this Agreement and the
Indemnification Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained; and
(iv) a letter from counsel of the Seller to the effect that nothing
has come to such counsel's attention that would lead such counsel to
believe that the Prospectus Supplement as of the date thereof or as of the
Closing Date contains, with respect to the Seller or the Mortgage Loans,
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein relating to the Seller
or the Mortgage Loans, in the light of the circumstances under which they
were made, not misleading.
(c) The Offered Certificates shall have been concurrently issued and
sold pursuant to the terms of the Underwriting Agreement. The Private
Certificates shall have been concurrently issued and sold pursuant to the terms
of the Certificate Purchase Agreement.
(d) The Seller shall have executed and delivered concurrently
herewith the Indemnification Agreement.
(e) The Seller shall furnish the Purchaser with such other
certificates of its officers or others and such other documents and opinions to
evidence fulfillment of the conditions set forth in this Agreement as the
Purchaser and its counsel may reasonably request.
SECTION 8. Closing. The closing for the purchase and sale of the
Mortgage Loans shall take place at the office of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, Charlotte, North Carolina, at 10:00 a.m., on the Closing Date or such other
place and time as the parties shall agree. The parties hereto agree that time is
of the essence with respect to this Agreement.
SECTION 9. Expenses. The Seller will pay its pro rata share (the
Seller's pro rata share to be determined according to the percentage that the
aggregate principal balance as of the Cut-off Date of all the Mortgage Loans
represents in proportion to the aggregate principal balance as of the Cut-off
Date of all the mortgage loans to be included in the Trust Fund) of all costs
and expenses of the Purchaser in connection with the transactions contemplated
herein, including (without duplication thereof), but not limited to: (i) the
costs and expenses of the Purchaser in connection with the purchase of the
Mortgage Loans and other mortgage loans; (ii) the costs and expenses of
reproducing and delivering the Pooling and Servicing Agreement and printing (or
otherwise reproducing) and delivering the Certificates; (iii) the reasonable and
documented fees, costs and expenses of the Trustee and its counsel incurred in
connection with the Trustee entering into the Pooling and Servicing Agreement;
(iv) the fees and disbursements of a firm of certified public accountants
selected by the Purchaser and the Seller with respect to numerical information
in respect of the Mortgage Loans, other mortgage loans and the Certificates
included in the Prospectus, the Memoranda (as defined in the Indemnification
Agreement) and Term Sheet (as defined in the Indemnification Agreement), or
items similar to the Term Sheet, including the cost of obtaining any "comfort
letters" with respect to such items; (v) the costs and expenses in connection
with the qualification or exemption of the Certificates under state securities
or blue sky laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith; (vi) the costs and expenses in connection with
any determination of the eligibility of the Certificates for investment by
institutional investors in any jurisdiction and the preparation of any legal
investment survey, including reasonable fees and disbursements of counsel in
connection therewith; (vii) the costs and expenses in connection with printing
(or otherwise reproducing) and delivering the Registration Statement, Prospectus
and Memoranda, and the reproduction and delivery of this Agreement and the
furnishing to the Underwriters of such copies of the Registration Statement,
Prospectus, Memoranda and this Agreement as the Underwriters may reasonably
request; (viii) the fees of the rating agency or agencies requested to rate the
Certificates and (ix) the reasonable fees and expenses of Xxxxxxx Xxxxxxxx &
Wood LLP, counsel to the Underwriters, and Cadwalader, Xxxxxxxxxx & Xxxx LLP,
counsel to the Depositor.
SECTION 10. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement. Furthermore, the
parties shall in good faith endeavor to replace any provision held to be invalid
or unenforceable with a valid and enforceable provision which most closely
resembles, and which has the same economic effect as, the provision held to be
invalid or unenforceable.
SECTION 11. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to conflicts of
law principles and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
SECTION 12. No Third Party Beneficiaries. The parties do not intend
the benefits of this Agreement to inure to any third party except as expressly
set forth in Section 13.
SECTION 13. Assignment. The Seller hereby acknowledges that the
Purchaser has, concurrently with the execution hereof, executed and delivered
the Pooling and Servicing Agreement and that, in connection therewith, it has
assigned its rights hereunder to the Trustee for the benefit of the
Certificateholders to the extent set forth in the Pooling and Servicing
Agreement and that the rights so assigned may be further assigned to, and shall
inure to the benefit of, any successor trustee under the Pooling and Servicing
Agreement. The Seller hereby acknowledges its obligations (subject to the
provisions hereof), including that of expense reimbursement, pursuant to
Sections 2.01, 2.02 and 2.03 of the Pooling and Servicing Agreement. Except as
set forth hereinabove and in Sections 2.01, 2.02 and 2.03 of the Pooling and
Servicing Agreement, the representations and warranties of the Seller made
hereunder and the remedies provided hereunder with respect to Breaches or
Defects may not be further assigned by the Purchaser, the Trustee or any
successor trustee. No owner of a Certificate issued pursuant to the Pooling and
Servicing Agreement shall be deemed a successor or permitted assign because of
such ownership. This Agreement shall bind and inure to the benefit of, and be
enforceable by, the Seller, the Purchaser and their permitted successors and
permitted assigns. The warranties and representations and the agreements made by
the Seller herein shall survive delivery of the Mortgage Loans to the Trustee
until the termination of the Pooling and Servicing Agreement.
SECTION 14. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given upon
receipt by the intended recipient if personally delivered at or couriered, sent
by facsimile transmission or mailed by first class or registered mail, postage
prepaid, to (i) in the case of the Purchaser, X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxx, fax number (000) 000-0000 with a copy to Xxxxxx Xxxxx, fax number
(000) 000-0000, (ii) in the case of the Seller, Nomura Credit & Capital, Inc., 2
World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: N.
Xxxxx XxXxxxx, fax number: (000) 000-0000 and (iii) in the case of any of the
preceding parties, such other address or fax number as may hereafter be
furnished to the other party in writing by such party.
SECTION 15. Amendment. This Agreement may be amended only by a
written instrument which specifically refers to this Agreement and is executed
by the Purchaser and the Seller; provided, however, unless such amendment is to
cure an ambiguity, mistake or inconsistency in this Agreement, no amendment
shall be permitted unless each Rating Agency has delivered a written
confirmation that such amendment will not result in a downgrade, withdrawal or
qualification of the then current ratings of the Certificates and the cost of
obtaining any Rating Agency confirmation shall be borne by the party requesting
such amendment. This Agreement shall not be deemed to be amended orally or by
virtue of any continuing custom or practice. No amendment to the Pooling and
Servicing Agreement which relates to defined terms contained therein or any
obligations of the Seller whatsoever shall be effective against the Seller
unless the Seller shall have agreed to such amendment in writing.
SECTION 16. Counterparts. This Agreement may be executed in any
number of counterparts, and by the parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument.
SECTION 17. Exercise of Rights. No failure or delay on the part of
any party to exercise any right, power or privilege under this Agreement and no
course of dealing between the Seller and the Purchaser shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. Except as set forth in
Section 6 herein, the rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any party would
otherwise have pursuant to law or equity. Except as set forth in Section 6
herein, no notice to or demand on any party in any case shall entitle such party
to any other or further notice or demand in similar or other circumstances, or
constitute a waiver of the right of either party to any other or further action
in any circumstances without notice or demand.
SECTION 18. No Partnership. Nothing herein contained shall be deemed
or construed to create a partnership or joint venture between the parties
hereto. Nothing herein contained shall be deemed or construed as creating an
agency relationship between the Purchaser and the Seller and neither party shall
take any action which could reasonably lead a third party to assume that it has
the authority to bind the other party or make commitments on such party's
behalf.
SECTION 19. Miscellaneous. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
* * * * * *
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP., as Purchaser
By:____________________________________
Name:
Title:
NOMURA CREDIT & CAPITAL, INC., as
Seller
By:____________________________________
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
JPMCC 2007-LDP11
Mortgage Loan Schedule (Combined)
Loan # Originator Mortgagor Name
-----------------------------------------------------------------------------------------------------------------------------------
11 NCCI Hermann Street DE, LLC; Xxxxxx Associates DE, LLC; Trophy Properties I DE, LLC; LRL Citi Properties I DE, LLC
13 NCCI Xxxxxxx Properties - Stadium Towers, LLC
16 NCCI HN Property Owner LLC
20 NCCI SLTS Grand Avenue II, L.P.
24 NCCI Florida Parks Associates
28 NCCI 510 Borrower LLC
32 NCCI WBN, Ltd.
42 NCCI American Property Investors - OKC, LLC, DNT-OKC, LLC, YNT-OKC, LLC
45 NCCI Villas at D'Xxxxxx, LLC
47 NCCI Windmill Ranch Associates LLP
51 NCCI Pop/2155 Kalakaua, LLC
57 NCCI HIHC, LLC
65 NCCI BGK1, LLLP
68 NCCI Westchase Marquis, L.P.
72 NCCI Xxxxx Xxxxxxxxxx Center, LLC
74 NCCI Rising Development - BPS, LLC
81 NCCI Carrollton Edentree, L.P.
00 XXXX Xxxxxx Xxxx Xxxxxxxx Associates, L.C.
99 NCCI 53 Associates LLP
102 NCCI Kumho Tire Georgia Holding, LLC
123 NCCI Foothill Xxxx Apartments, LLC
136 NCCI Inland Chicago Grace, L.L.C.
000 XXXX Xxxxx Xxx Apartments, LLC
162 NCCI HFLP II/Xxxxxxx LLC
200 NCCI Devan, Inc.
205 NCCI Sudha Investment, Inc. of Xxxxxxxxx City
000 XXXX Xxxxx'x Xxxxxxxx Xxxxxx, X.X.X.
236 NCCI Xxxxxxxx X. Xxxxxxxx, as Trustee of The Xxxx Oaks Apartments Land Trust dated February 17, 2004
247 NCCI Rails End Co-op, Inc.
Zip
Loan # Property Address City State Code County
-------------------------------------------------------------------------------------------------------------------------
11 Various San Francisco CA Various San Francisco
13 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000 Orange
16 0 Xxx Xxxx Xxxxxxxx Xxxxxxx XX 00000 Fairfield
20 0000 Xxxx Xxxxx Xxxxxxx 000 Xxxxxxxxx XX 00000 Tarrant
24 0000 XX Xxxxxxx 00 Xxxx Xxxxxxxxxx XX 00000 Polk
28 000 Xxxxx Xxxxxx Xxx Xxxx XX 00000 New York
32 00000 Xxxx Xxxxxxxxxx Xxxx Xxxxxxx Xxxxxxx XX 00000 Miami-Dade
00 Xxx Xxxxx Xxxxxxxx Xxxxxxxx Xxxx XX 00000 Oklahoma
45 0000 Xxxxx X'Xxxxxx Xxxxxxx Xxxxxx XX 00000 Washoe
47 000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Polk
51 0000 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000 Honolulu
57 000 Xxxxxx Xxx Xxx Xxxxx Xxx Xxxxx XX 00000 San Diego
65 0000 Xxxxxxxxxxxx Xxxxx Xxxxxxx Xxxxx XX 00000 Xxxxxx
68 0000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 Xxxxxx
72 000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 Xxxx
74 000-00 Xxxxx Xxxx Xxxxx Xxxxx XX 00000 Bronx
81 0000 Xxxx Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Xxxxxx
83 0000 Xxxxxxxxxxx Xxxxx Xxxxxxxx XX 00000 Chesterfield
99 0000 XX Xxxxxxx 00 Xxxxx Xxxxxxxxx XX 00000 Polk
102 0000 Xxxxxxx 000 Xxxxx XxXxxxxxx XX 00000 Xxxxx
123 00000-00000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000 Los Angeles
136 0000 Xxxx Xxxxx Xxxxxx Xxxxxxx XX 00000 Xxxx
145 0000 Xxxxx Xxxx Xxxxxx Xxxxxx XX 00000 Pima
162 000 X Xxxxxx Xxx Xxxxx XX 00000 San Diego
200 00000 Xxxxxx Xxxxx Xxxxxxxxxxx XX 00000 Xxxxxxxx
205 000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx Xxxx XX 00000 Pasquotank
235 0000-0000 Xxxxxxx Xxxx Xxxxxxxxxxxxxxx XX 00000 Xxxx
236 0000 Xxxxxx Xxxx Xxxxx Xxxxxx Xxxx XX 00000 Hernando
247 0000 Xxxx Xxxxx Xxxxxxx 00 Xxxxxxxx XX 00000 Sumter
Net
Interest Mortgage Original
Loan # Property Name Size Measure Rate (%) Interest Rate Balance
---------------------------------------------------------------------------------------------------------------------------------
11 Lembi Portfolio 662 Units 6.08000 6.05966 90,000,000
13 Stadium Towers 257248 Square Feet 5.47468 5.45434 83,200,000
16 Healthnet Headquarters 327327 Square Feet 6.50000 6.47966 74,800,000
00 Xxxxxxxxx Xxxxx Xxxxxx 310711 Square Feet 5.67300 5.65266 59,661,271
24 Hamptons MHP 829 Pads 5.91000 5.88966 52,880,000
28 000 Xxxxx Xxxxxx 00000 Xxxxxx Feet 5.67000 5.64966 46,000,000
32 Courtly Manor 525 Pads 5.91000 5.88966 37,800,000
42 Sheraton Oklahoma City 395 Rooms 5.96000 5.93966 31,900,500
45 Villas at D'Xxxxxx Apartments 256 Units 5.76000 5.73966 29,500,000
47 Windmill MHP 509 Pads 5.91000 5.88966 28,620,000
51 XXX Kalakaua Center 151842 Square Feet 5.99000 5.96966 26,900,000
00 Xxxxxxx Xxxxxx - Xxx Xxxxx, XX 126 Rooms 5.86000 5.83966 21,845,000
65 The College Suites at Xxxxxxxx Xxxx Apartments 216 Units 5.97000 5.94966 20,000,000
00 Xxxxxxx Xxxx 216 Units 5.79000 5.76966 18,400,000
72 500 Xxxxx Center 119242 Square Feet 6.34500 6.32466 17,927,153
00 Xxxxx Xxxx Xxxxx Xxxxxxxxxx 000 Units 5.65000 5.62966 16,400,000
00 Xxxxxxxx Xxxxxxxxx Xxxxxxx 000 Xxxxx 5.75000 5.72966 15,000,000
00 Xxxxxx Xxxx Xxxxxxxxxx 000 Xxxxx 5.62000 5.59966 14,990,000
99 Palm Key MHP 204 Pads 5.91000 5.88966 11,270,000
102 Kumho Tires 406874 Square Feet 5.94000 5.91966 10,600,000
123 Foothill Xxxx Apartments 81 Units 6.13000 6.10966 8,535,000
136 AT&T Xxxxxxx 00000 Square Feet 5.83000 5.80966 7,787,805
145 Santa Xxx 176 Units 5.82000 5.78966 6,944,000
000 Xxxxxxx Xxxxxxxx 00000 Xxxxxx Feet 5.65000 5.58966 6,100,000
000 Xxxxxxx Xxx Xxxxxxx - Xxxxxxxxxxx, XX 73 Rooms 5.95000 5.92966 4,750,000
000 Xxxxxxx Xxx Xxxxxxx - Xxxxxxxxx Xxxx, XX 79 Rooms 6.68000 6.58966 4,500,000
000 Xxxxx'x Xxxxxxxx Xxxxx Xxxxxx 00000 Xxxxxx Feet 5.38000 5.35966 2,700,000
000 Xxxx Xxxx Xxxxxxxxxx 00 Xxxxx 6.26000 6.23966 2,700,000
247 Rails End 112 Pads 6.09000 6.06966 1,920,000
Monthly
Cutoff Rem. Maturity/ Amort. Rem. Debt Servicing Accrual ARD
Loan # Balance Term Term ARD Date Term Amort. Service Fee Rate Type (Y/N)
--------------------------------------------------------------------------------------------------------------------------------
11 90,000,000 60 59 06/11/12 0 0 462,333 0.02000 Actual/360 No
13 83,200,000 120 118 05/11/17 0 0 384,850 0.02000 Actual/360 No
16 74,800,000 120 117 04/11/17 300 300 505,055 0.02000 30/360 Yes
20 59,661,271 60 60 07/11/12 0 0 282,049 0.02000 30/360 No
24 52,880,000 60 59 06/11/12 0 0 264,051 0.02000 Actual/360 No
28 46,000,000 120 117 04/11/17 0 0 220,369 0.02000 Actual/360 No
32 37,800,000 60 59 06/11/12 0 0 188,751 0.02000 Actual/360 No
42 31,900,500 60 58 05/11/12 0 0 160,640 0.02000 Actual/360 No
45 29,500,000 60 58 05/11/12 0 0 143,567 0.02000 Actual/360 No
47 28,620,000 60 59 06/11/12 0 0 142,911 0.02000 Actual/360 No
51 26,900,000 120 116 03/11/17 0 0 136,141 0.02000 Actual/360 No
57 21,845,000 120 117 04/11/17 360 360 129,012 0.02000 Actual/360 No
65 20,000,000 120 116 03/11/17 0 0 100,882 0.02000 Actual/360 No
68 18,400,000 84 82 05/11/14 0 0 90,013 0.02000 Actual/360 No
72 17,927,153 120 119 06/11/17 0 0 96,106 0.02000 Actual/360 No
74 16,400,000 120 117 04/06/17 360 360 94,667 0.02000 Actual/360 No
81 15,000,000 60 58 05/11/12 0 0 72,873 0.02000 Actual/360 No
83 14,990,000 120 117 04/11/17 0 0 71,178 0.02000 Actual/360 No
99 11,270,000 60 59 06/11/12 0 0 56,276 0.02000 Actual/360 No
102 10,580,357 120 118 05/11/17 360 358 63,144 0.02000 Actual/360 Yes
123 8,535,000 60 59 06/11/12 0 0 44,205 0.02000 Actual/360 No
136 7,787,805 120 118 05/11/17 0 0 37,836 0.02000 30/360 Yes
145 6,944,000 120 118 05/11/17 360 360 40,833 0.03000 Actual/360 No
162 6,100,000 120 118 05/11/17 0 0 29,120 0.06000 Actual/360 No
200 4,739,658 120 119 06/01/17 240 239 33,894 0.02000 Actual/360 No
205 4,500,000 120 120 07/01/17 300 300 30,892 0.09000 Actual/360 No
235 2,700,000 84 64 11/11/12 0 0 12,105 0.02000 30/360 No
236 2,696,257 120 119 06/11/17 300 299 17,828 0.02000 Actual/360 No
247 1,920,000 120 118 05/11/17 0 0 9,879 0.02000 Actual/360 No
Crossed Originator/
Loan # ARD Step Up (%) Title Type Loan Loan Seller
---------------------------------------------------------------------------------------
11 Fee NCCI
13 Fee NCCI
16 Greater of (i) IR +2% or (ii) TR +2% Fee NCCI
20 Fee NCCI
24 Fee NCCI
28 Fee NCCI
32 Fee NCCI
42 Fee NCCI
45 Fee NCCI
47 Fee NCCI
51 Leasehold NCCI
57 Leasehold NCCI
65 Fee NCCI
68 Fee NCCI
72 Fee NCCI
74 Fee NCCI
81 Fee NCCI
83 Fee NCCI
99 Fee NCCI
102 Greater of (i) IR +2% or (ii) TR +2% Fee NCCI
123 Fee NCCI
136 Interest rate plus 2% Fee NCCI
145 Fee NCCI
162 Fee NCCI
200 Fee NCCI
205 Fee NCCI
235 Fee NCCI
236 Fee NCCI
247 Fee NCCI
Letter of
Loan # Guarantor Credit
---------------------------------------------------------------------------------------------------------
11 Xxxxx X. Xxxxx, Xxxxxx Xxxxx, The Xxxx Xxxxx Residual Trust No
13 Xxxxxxx Properties, L.P. No
16 Xxxxx Xxxxxx No
20 Inland Western Retail Real Estate Trust, Inc. No
24 Xxxxxx Xxxxxx No
28 510 Borrower LLC No
32 Xxxxxx Xxxxxx No
42 Xxxxxxx X. Xxxxxxxx No
45 Xxxx X. Xxxx No
47 Xxxxxx Xxxxxx No
51 Xxxxx X. Xxxxxxxx No
57 HIHC, LLC No
65 Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx No
68 CWS Apartment Homes LLC No
72 Xxxxxxxx Xxxxx No
74 Xxxxxxxx Xxxxxxxxxx No
81 Xxxx Xxxxxx, Xxxxx Xxxxxxxxx No
83 Xxxxxx X. Xxxxxxxxx No
99 Xxxxxx Xxxxxx No
102 Kumho Tires USA Inc No
123 Max Xxxxxxxxxx, Xxxxx Paskover No
136 Inland Real Estate Exchange Corporation No
145 Xxxxxx X. Xxxxxxx No
162 Xxxxxxx X. Xxxxxxxxx No
200 Xxxxxx X. Xxxxx No
205 Xxxxx Deva, Xxxxxxxxx Xxxxx No
235 Inland Real Estate Investment Corporation, Raven's Crossing Center, L.L.C., No
236 Xxxxxxxx X. Xxxxxxxx No
247 Rails End Co-op, Inc. No
UPFRONT ESCROW
------------------------------------------------------------------------------------------------------
Upfront Upfront Upfront Upfront Upfront Upfront Upfront
CapEx Eng. Envir. TI/LC RE Tax Ins. Other
Loan # Reserve Reserve Reserve Reserve Reserve Reserve Reserve
---------------------------------------------------------------------------------------------------------------------
11 500,000.00 26,688.00 0.00 0.00 206,527.33 145,071.50 4,400,000.00
13 0.00 0.00 0.00 3,890,000.00 240,157.50 50,037.20 1,750,000.00
16 0.00 165,000.00 0.00 0.00 0.00 0.00 6,600,000.00
20 0.00 0.00 0.00 0.00 0.00 0.00 0.00
24 0.00 0.00 0.00 0.00 231,687.13 0.00 0.00
28 0.00 0.00 0.00 0.00 0.00 0.00 0.00
32 0.00 0.00 0.00 0.00 166,224.17 0.00 0.00
42 3,200,000.00 73,750.00 0.00 600,000.00 93,177.99 101,581.00 0.00
45 0.00 0.00 0.00 0.00 101,665.45 28,296.45 0.00
47 0.00 0.00 0.00 0.00 95,006.27 0.00 0.00
51 500,000.00 131,250.00 0.00 1,204,569.89 111,564.98 98,238.74 347,617.80
57 0.00 0.00 0.00 0.00 50,000.00 0.00 0.00
65 0.00 0.00 0.00 0.00 55,872.68 48,386.32 0.00
68 0.00 4,375.00 0.00 0.00 216,442.58 0.00 18,125.00
72 750,000.00 0.00 0.00 19,580.00 155,135.04 2,260.25 365,000.00
74 0.00 0.00 0.00 0.00 263,392.11 0.00 0.00
81 1,414,875.00 10,000.00 0.00 0.00 68,875.00 49,774.67 0.00
83 0.00 12,500.00 0.00 0.00 38,377.10 13,801.37 0.00
99 0.00 0.00 0.00 0.00 71,288.17 0.00 0.00
102 0.00 0.00 0.00 0.00 0.00 0.00 0.00
123 300,000.00 3,750.00 0.00 0.00 35,282.50 3,438.17 110,000.00
136 0.00 0.00 0.00 0.00 0.00 0.00 0.00
145 0.00 0.00 0.00 0.00 17,928.45 5,694.00 12,375.00
162 0.00 0.00 0.00 38,326.00 21,289.71 0.00 0.00
200 0.00 0.00 0.00 0.00 7,139.39 3,684.33 67,787.17
205 0.00 22,968.00 0.00 0.00 13,573.05 10,402.00 0.00
235 0.00 6,625.00 0.00 127,500.00 0.00 0.00 472,500.00
236 1,525.00 0.00 0.00 0.00 19,616.20 13,461.97 0.00
247 0.00 0.00 0.00 0.00 10,621.33 3,416.35 0.00
MONTHLY ESCROW
---------------------------------------------------------------------------------------
Monthly Monthly Monthly Monthly Monthly Monthly
Capex Envir. TI/LC RE Tax Ins. Other
Loan # Reserve Reserve Reserve Reserve Reserve Reserve
-------------------------------------------------------------------------------------------------------------
11 0.00 0.00 0.00 51631.83 20724.50 0.00
13 0.00 0.00 0.00 80052.50 20848.83 0.00
16 0.00 0.00 27277.25 0.00 0.00 0.00
20 0.00 0.00 0.00 0.00 0.00 0.00
24 0.00 0.00 0.00 28960.89 0.00 0.00
28 0.00 0.00 0.00 0.00 0.00 0.00
32 0.00 0.00 0.00 20778.02 0.00 0.00
42 0.00 0.00 0.00 23294.50 5933.83 2% of Gross
Revenues
(Year 1), 3%
(Year 2), 4%
(Year 3)
45 5866.67 0.00 0.00 20333.09 4716.08 0.00
47 0.00 0.00 0.00 11875.78 0.00 0.00
51 1903.28 0.00 12688.50 37188.33 8186.56 0.00
57 15469.33 0.00 0.00 0.00 0.00 0.00
65 5355.00 0.00 0.00 13968.17 6048.29 0.00
68 3600.00 0.00 0.00 36073.76 0.00 0.00
72 1987.33 0.00 9912.75 38783.76 2260.25 0.00
74 4291.67 0.00 0.00 44632.87 0.00 0.00
81 0.00 0.00 0.00 22958.33 6221.83 0.00
83 3500.00 0.00 0.00 7675.42 1254.67 0.00
99 0.00 0.00 0.00 8911.02 0.00 0.00
102 3390.58 0.00 0.00 0.00 0.00 0.00
123 0.00 0.00 0.00 11760.83 1719.08 0.00
136 0.00 0.00 0.00 0.00 0.00 0.00
145 3666.67 0.00 0.00 5976.15 1898.00 0.00
162 1022.00 0.00 3193.84 5322.43 0.00 0.00
200 6006.67 0.00 0.00 3569.69 921.08 15000.00
205 4700.00 0.00 0.00 1939.01 1733.67 0.00
235 0.00 0.00 0.00 0.00 0.00 0.00
236 1333.33 0.00 0.00 4904.05 4554.22 0.00
247 0.00 0.00 0.00 1517.33 1708.17 0.00
Remaining
Interest Final Amortization
Grace Lockbox Defeasance Accrual Loan Maturity Term for
Loan # Period In-place Property Type Permitted Period Group Date Balloon Loans
---------------------------------------------------------------------------------------------------------------------------------
11 0 Yes Multifamily Yes Actual/360 2
13 0 Yes Office No Actual/360 1
16 0 Yes Office Yes 30/360 1 04/11/27 300
20 0 No Retail No 30/360 1
24 0 No Manufactured Housing Yes Actual/360 2
28 0 Yes Retail Yes Actual/360 1
32 0 No Manufactured Housing Yes Actual/360 2
42 0 No Hotel No Actual/360 1
45 0 Yes Multifamily Yes Actual/360 2
47 0 No Manufactured Housing Yes Actual/360 2
51 0 Yes Office No Actual/360 1
57 0 No Hotel Yes Actual/360 1 360
65 0 No Multifamily Yes Actual/360 2
68 0 No Multifamily Yes Actual/360 2
72 0 Yes Office Yes Actual/360 1
74 0 No Multifamily Yes Actual/360 2 360
81 0 Yes Multifamily No Actual/360 2
83 0 No Multifamily Yes Actual/360 2
99 0 No Manufactured Housing Yes Actual/360 2
102 0 Yes Industrial Yes Actual/360 1 05/11/37 360
123 0 No Multifamily No Actual/360 2
136 0 No Office No 30/360 1 05/11/37
145 0 No Multifamily Yes Actual/360 2 360
162 0 No Mixed Use Yes Actual/360 1
200 10 No Hotel Yes Actual/360 1 240
205 15 No Hotel Yes Actual/360 1 300
235 0 No Retail No 30/360 1
236 0 No Multifamily Yes Actual/360 2 300
247 0 No Manufactured Housing No Actual/360 2
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
EXHIBIT C
JPMCC 2007-LDP11
Exceptions to Representations for Nomura Loans
Representation # (6)
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
Lembi Portfolio The property also secures a $25,000,000 B note that is subject
to a subordination and/or standstill agreement.
------------------------------------------------------------------------------------------------------------
Stadium Towers The property also secures a $16,800,000 B note that is subject
to a subordination and/or standstill agreement.
------------------------------------------------------------------------------------------------------------
Foothill Xxxx Apartments The property also secures a $1,500,000 B note that is subject
to a subordination and/or standstill agreement.
------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxxxxx The property also secures a $3,000,000 B note that is subject
to a subordination and/or standstill agreement.
------------------------------------------------------------------------------------------------------------
Edentree Apartments The property also secures a $1,000,000 B note that is subject
to a subordination and/or standstill agreement.
------------------------------------------------------------------------------------------------------------
Squire Hill Apartments The property also secures a $1,600,000 B note that is subject
to a subordination and/or standstill agreement.
------------------------------------------------------------------------------------------------------------
Representation # (10(i))
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
Comfort Suites - San Diego, Only the mortgagor is liable for the carveouts.
CA; 000 Xxxxx Xxxxxx; Rails
End
------------------------------------------------------------------------------------------------------------
AT&T Chicago; Raven's Only the mortgagor is liable for a breach of the environmental
Crossing Strip Center; covenants. Liability does not go to actual waste but to acts
Southlake Grand Avenue related to the removal or disposal of any portion of the
property after an event
of default.
------------------------------------------------------------------------------------------------------------
Sheraton Oklahoma City; Liability for each tenant in common is limited to their
AT&T Chicago; Farnham Park contribution.
------------------------------------------------------------------------------------------------------------
XXX Kalakaua Center Borrower shall not be required to incur a cost for the annual
premium for such terrorism coverage that exceeds $35,000.
------------------------------------------------------------------------------------------------------------
Representation # (12)
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
Lembi Portfolio Lender will allow for the individual release of the properties
after the Lockout Period pursuant to the following conditions:
(i) no event of default, (ii) paydown of the Loan proceeds at
120% of the allocated loan amount attributable to the released
collateral, (iii) payment of the associated Defeasance penalty,
(iv) 1.10x DSCR based, and (v) the LTV on the remaining
collateral must not exceed 95%.
------------------------------------------------------------------------------------------------------------
Stadium Towers The loan documents contain provisions for the release of the
adjacent land parcel ("Adjacent Parcel") from the Loan
collateral at no cost to Borrower and at anytime following
closing provided, among other requirements as set for the in
the Loan Agreement, the following conditions are met:
* The Adjacent Parcel and the Property are separate tax lots
with separate legal descriptions. Prior to the release,
Borrower must provide individual surveys, legal descriptions
and any such other information requested by and reasonably
acceptable to Lender reflecting the legal separation of the
Adjacent Parcel and Property;
* Borrower shall provide such easements, maintenance
agreements, access agreements or other agreements as reasonably
required by Lender so the use, access, appeal, marketability or
value of the subject collateral are not impeded or impaired;
* Non-compete: Borrower shall not actively solicit any then
current tenant or parent company of a then current tenant at
the Property for tenancy at the Adjacent Parcel without
Lender's prior written consent.
* The Adjacent Parcel is transferred or ground leased (which
ground lease will be superior to the lien of other related
Mortgage) to an entity controlled directly or indirectly by
the principal of the Borrower.
------------------------------------------------------------------------------------------------------------
Representation # (16)
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
Sheraton Oklahoma City An affiliate of the Mortgagor holds (or will hold) the liquor
license for the property, and provides liquor concession
services to the Mortgagor pursuant to a Lease Agreement which
has been assigned to the lender and subordinated to the loan
documents.
------------------------------------------------------------------------------------------------------------
Rails End The property does not conform with zoning. Law and Ordinance
insurance was not obtained. Beacuase the property is in Florida
and the only permanent structure is a small Clubhouse, L&O
coverage was not available. Per the zoning report, because the
use was legal at the time of inception, and is now legal
non-conforming due to the adoption of a comprehensive plan,
"the existing use is statutorily vested and may continue and
expand as provided in this section"
------------------------------------------------------------------------------------------------------------
Representation # (19(i))
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
Raven's Crossing Strip The engineering report is dated 03/22/2005.
Center
------------------------------------------------------------------------------------------------------------
AT&T Chicago An escrow for immediate repairs was not taken at closing.
------------------------------------------------------------------------------------------------------------
Southlake Grand Avenue The Xxxx & Xxxxxx space is currently being completed. Inland
provided a related guaranty.
------------------------------------------------------------------------------------------------------------
Representation # (20 (ii))
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
Comfort Suites - San Diego, The ground lease will not be superior to any mortgage on the
CA fee, though lessor and such mortgagee are required to deliver a
non-disturbance agreement to Borrower and Lender.
------------------------------------------------------------------------------------------------------------
Representation # (22)
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
All Nomura Loans Nomura generally requires an AM Best rating of A:IX.
------------------------------------------------------------------------------------------------------------
AT&T Chicago; Raven's If any of the policies of insurance contain an exclusion from
Crossing Strip Center; coverage for acts of terrorism, Mortgagor shall not be required
Southlake Grand Avenue to obtain such coverage provided (I) an Inland entity executes
a guaranty, in form and substance satisfactory to Lender,
guaranteeing in the event of any act of terrorism, payment to
Lender of any sums that would have been payable to Lender under
such coverage (which shall be applied by Lender in accordance
with 6.4 hereof), and (II) the Inland entity maintains a net
worth of at least $300,000,000 (as determined by such entity's
most recent audited financial statements), such entity
maintains a direct or indirect ownership interest in Mortgagor,
and the aggregate loan to value ratio (as determined by Lender)
("LTV") for all properties on which such entity has a direct or
indirect ownership interest shall not exceed 60%, however, the
Inland entity may exceed the 60% LTV for a period not to exceed
six (6) months out of any twelve (12) month period either (1)
during the time period when the Inland entity is offering
securities to the public or 2) when in the business judgment of
the Inland entity, exceeding an LTV of 60% is necessary given
existing circumstances
------------------------------------------------------------------------------------------------------------
AT&T Chicago; Healthnet Tenant may self insure.
Headquarters; Kumho Tires
------------------------------------------------------------------------------------------------------------
XXX Kalakaua Center Borrower shall not be required to incur a cost for the annual
premium for such terrorism coverage that exceeds $35,000.
------------------------------------------------------------------------------------------------------------
Representation # (24)
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
Lembi Portfolio The sponsor of the related borrowers and affiliated entities
are currently the subject of various lawsuits, including
lawsuits by the City of San Francisco, which allege, among
other things, that the sponsor and its principals have, in
their capacity as landlords, consistently engaged in illegal
practices with respect to multi-family dwellings they own.
There can be no assurance that these lawsuits and the negative
publicity generated by them and the actions of the sponsor and
its affiliates will not have a negative effect on the
operations of the sponsor and on the mortgaged property
securing such Loan.
------------------------------------------------------------------------------------------------------------
Representation # (30)
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
Lembi Portfolio A Non Consolidation Opinion was not obtained.
------------------------------------------------------------------------------------------------------------
Representation # (32)
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
Comfort Suites - San Diego, Lender provided in the loan documents the ability for a direct
CA or indirect equity member of Borrower to procure mezzanine debt
after the expiration of the Lockout Period to be secured by the
direct or indirect equity interests of the Borrower. The
combined loan-to-value of the Loan and the mezzanine loan,
based on a then current appraisal, shall not exceed 85%, and
the DSCR based on the trailing 12-month cashflows shall be not
less than 1.10 x DSCR (based on the actual loan constant on an
amortized basis) at the loan closing. In connection with such
mezzanine debt, the Lender and the mezzanine lender shall enter
into an intercreditor agreement in a form consistent with
industry standards at that time and to be consistent with
Rating Agency guidelines, and Lender at its discretion may
require a Rating Confirmation (unless the mezzanine lender is a
Qualified Institutional Lender as defined in the loan
agreement) at the time the mezzanine loan is placed and a new
Non-consolidation Opinion of counsel. Lender will have a right
of first offer to provide the mezzanine loan, and if the
mezzanine lender is not a Qualified Institutional Lender,
Lender shall have the right to approve (i) the mezzanine
lender, and (ii) the mezzanine terms.
------------------------------------------------------------------------------------------------------------
AT&T Chicago Within 24 months of closing the Borrower is permitted to
transfer interests to a tenant in common structure.
Additionally, transfers are allowed to permitted Inland
entities, affiliates and to Accredited Investors.
------------------------------------------------------------------------------------------------------------
Raven's Crossing Strip A prohibited transfer does not include a) any issuance, sale or
Center; Southlake Grand transfer of interests in Sole Member or any successor entity
Avenue; AT&T Chicago resulting from any merger permitted hereunder, b) a transfer by
devise or descent or by operation of law upon the death of a
member or partner of Mortgagor, or c) the merger of the Sole
Member with any of the following entities: Inland Retail Real
Estate Trust, Inc., a Maryland corporation, Inland Real Estate
Investment Corporation, a Delaware corporation, Inland American
Real Estate Trust, Inc., a Maryland Corporation, any other real
estate investment trust sponsored by Inland Real Estate
Investment Corporation, or any other entity composed entirely
of any of the foregoing by merger. On or after the Closing
Date, Mortgagor may transfer greater than 49% of the direct or
indirect interests in the Mortgagor, provided that the transfer
is to a Qualified Entity, as defined in the loan documents.
------------------------------------------------------------------------------------------------------------
Raven's Crossing Strip Upon the subject property achieving a stabilized 87.0% economic
Center occupancy level, Borrower shall be allowed to obtain mezzanine
financing secured by partnership interests up to 70% combined
max LTV and minimum combined DSCR of 1.50x. The mezzanine
financing shall be subject to Lender standstill and
subordination agreement.
------------------------------------------------------------------------------------------------------------
Bronx Park South Apartments Borrower may incur subordinate financing evidenced by a second
lien on the property or mezzanine debt in a form of pledge of
the equity interest of the Borrower (it being understood that
preferred equity shall be permitted and is not considered
subordinate financing). The secondary financing evidenced by a
second lien on the property shall be allowed up to value of 80%
and a minimum aggregate debt service coverage ratio of 1.20x on
a thirty (30) year amortization basis. The subordinate
financing evidenced by a second lien on the property shall be
subject to a Subordination and Standstill Agreement in a form
acceptable to Lender and is non-negotiable. Any secondary
financing shall take place any time from one year from loan
closing to two years prior to loan maturity. Subject to the
Lender being willing to provide secondary financing on
substantially similar terms and conditions as other lenders,
the Lender has first right of refusal to provide any secondary
financing, however, the Lender shall be under no obligation to
provide said financing. The interest rate on the future
funding, if provided by the Lender shall be based on the
applicable Swap Rate and market rate spreads at the time of
funding. The amortization of the secured second mortgage shall
be no less than the effective remaining amortization schedule
on the first mortgage.
------------------------------------------------------------------------------------------------------------
Farnham Park Mortgage permits the transfer of certain ownership interests in
Borrower and affiliated entities to other affiliated entities
without Lender's consent pursuant to the terms of the Mortgage.
In connection with any Sale of the Property pursuant to the
terms of the Deed of Trust, Lender agrees that it shall allow
the members or partners, as applicable, of the Buyer ("Mezz
Borrower"), to incur mezzanine debt from a mezzanine lender
acceptable to Lender (the "Subordinate Debt"), subject to
Borrower's strict compliance with the following requirements:
(i) The Subordinate Debt shall only be undertaken pursuant to
those loan documents approved by Lender (the "Subordinate Debt
Loan Documents"), which Subordinate Loan Debt Documents shall
not, except to the extent otherwise permitted by the
Subordination and Standstill Agreement (described below), be
amended or modified in any respect, absent obtaining the prior
written consent of Lender; (ii) The Subordinate Debt shall not
constitute an obligation of Borrower or be secured by a lien on
the Property, but, rather, shall constitute an obligation of
the Mezz Borrower and any guarantor thereof and be secured by a
security interest in Mezz Borrower's membership or partnership,
as applicable, interest in Borrower (the "Pledged Interest"),
and such other collateral as set forth in the Subordinate Debt
Loan Documents; (iii) Mezz Lender shall not be entitled to
foreclose on the Pledged Interest except in a manner consistent
with the Subordination and Standstill Agreement; (iv) The
combined (i.e., the indebtedness secured by the Deed of Trust
and such Subordinate Debt) loan-to-value ratio at the time of
such mezzanine financing shall not exceed eighty percent (80%)
based on an appraised value in an appraisal reasonably
acceptable to Lender; (v) The combined minimum debt service
coverage ratio at the time of such mezzanine financing shall be
no less than 1.20:1.0; (vi) The holder of the Subordinate Debt
must execute a Subordination and Standstill Agreement in a form
acceptable to Lender in Lender's sole discretion, pursuant to
which such holder agrees to take no action to enforce or
collect such indebtedness until the indebtedness secured hereby
(or any refinancing hereof) is paid in full; (vii) The
Subordinate Debt Loan Documents must be reviewed and approved
by Lender, in Lender's sole discretion, and shall provide,
among other things, that such Subordinate Debt is only payable
to the extent available net cash flow (after all operating
expenses, required or appropriate reserves and debt service for
the indebtedness secured hereby is paid) is available and that
the holder of said Subordinate Debt shall not assign the
Subordinate Debt at any time during the term of the Loan.
------------------------------------------------------------------------------------------------------------
Kumho Tires The Borrower is permitted to incur future mezzanine
indebtedness after the expiration of the lockout period to be
secured by the equity interest of the Borrower so long as (a)
the total LTV ratio does not exceed 70%, (b) the debt service
coverage is not less than 1.25x, (c) the mezzanine lender shall
enter into a form of inter-creditor agreement.
------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxxxxx Lender agrees not to withhold its consent to a one-time
conveyance of the Property to a Permitted Transferee provided
Borrower complies with the terms of Section 8.1 of the Loan
Agreement. "Permitted Transferee" is defined to mean a
corporation, partnership or limited liability company (i)
acceptable to Lender in its sole discretion, (ii) that
qualifies as a single purpose, bankruptcy remote entity under
criteria established by the Rating Agencies, (iii) whose
counsel has delivered to Lender a non-consolidation opinion
acceptable to Lender and the Rating Agencies in their sole
discretion, and (iv) is a reputable Person of good character,
creditworthy and with sufficient financial worth considering
the obligations assumed and undertaken, as evidenced by
financial statements and other information reasonably requested
by Lender.
------------------------------------------------------------------------------------------------------------
Sheraton Oklahoma City Subject to the satisfaction of the typical requirements for
transfers, as more specifically set forth in the related loan
documents (e.g. prospective buyer of a TIC interest to be a
single purpose, bankruptcy remote entity), transfers of
interest in Mortgagor are permitted to any entity that is party
to or will be party to the related TIC Agreement.
Lender provided in the loan documents the ability for the
Borrower to procure mezzanine debt (the "Mezzanine Loan") after
the expiration of the Lockout Period to be secured by the
equity interests of the Borrower. The combined loan-to-value
of the existing loan and the Mezzanine Loan, based on a then
current appraisal, shall not exceed 75%, and the DSCR at the
time of the request for the Mezzanine Loan, based on the
Underwritten Net Cashflow (as defined herein), using Borrower
certified operating statements shall be not less 1.25 to 1 on a
30 year amortization based on the senior mortgage actual debt
service plus the proposed mezzanine debt service. In
connection with such Mezzanine Loan, the Lender and the
mezzanine lender shall enter into an intercreditor agreement
acceptable to Lender and consistent with Rating Agency
guidelines, and Lender at its discretion may require a Rating
Confirmation at the time the Mezzanine Loan is placed and a new
nonconsolidation opinion of counsel. Lender will have an
absolute right of first offer to provide the Mezzanine Loan.
Lender shall have the right to approve (i) the mezzanine
lender, and (ii) the mezzanine terms.
------------------------------------------------------------------------------------------------------------
Xxxx Oaks Apartments Borrower shall be allowed, in connection with an approved sale
of the property, to take back subordinate debt secured only by
a pledge of partnership or membership interests in the new
borrowing entity so long as the sale occurs two years after the
closing date, Borrower has executed Lender's subordination and
standstill agreement and the subordinate debt upon a sale is
limited to a 1.15x DSCR and 75% Loan to Value on a combined
basis with all outstanding debt.
------------------------------------------------------------------------------------------------------------
Healthnet Headquarters Mezzanine debt secured by equity interest in the Borrower
exists in the amount of $16,644,306.
The following transfers are permitted hereunder without the
payment of any transfer or assumption fee without requiring the
prior written consent of Lender: (a) up to but not in excess
of, 49% in the aggregate, taking into account all such
transfers, of the limited partnership, member interests and/or
aggregate of the issue, taking into account all such transfers,
of the limited partnership, member interests and/or aggregate
of the issued and outstanding capital stock, as the case may
be, in Borrower or in any general partner or member of
Borrower, or entity directly or indirectly owning such
interests, shall be freely transferable without the consent of
Lender
In addition, the following transfers are permitted: transfer of
up to, but not in excess of 49% of the interests in the limited
liability company constituting Borrower provided (i) the
balance of the ownership of the Borrowing entity, carried
through to its ultimate principals, remains unchanged, or (ii)
such transfer is to a Qualified Equity Holder satisfying any
applicable requirements of the Rating Agencies.
In addition, the following transfer is permitted without the
payment of any transfer or assumption fee and without requiring
the prior written consent of Lender: the transfer by the
Remainder Interest Owner of its interest as Remainder Interest
Owner pursuant to that certain Trust Agreement made and entered
into as of March 14, 2007, by and among HN Realty Holding LLC,
HN Realty Remainderman LLC, Xxxxx X. Xxxxxxx and Wilmington
Trust Company or a direct or indirect transfer of the interests
in the Remainder Interest Owner provided that in any such case
(i) such transfer is made prior to the Anticipated Repayment
Date and (ii) notice of such transfer is given to Lender
promptly following the transfer.
------------------------------------------------------------------------------------------------------------
Lembi Portfolio The property also secures a $25,000,000 B note that is subject
to a subordination and/or standstill agreement.
There is $17,430,000 in existing mezzanine debt
------------------------------------------------------------------------------------------------------------
Stadium Towers The property also secures a $16,800,000 B note that is subject
to a subordination and/or standstill agreement.
------------------------------------------------------------------------------------------------------------
Foothill Xxxx Apartments The property also secures a $1,500,000 B note that is subject
to a subordination and/or standstill agreement.
------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxxxxx The property also secures a $3,000,000 B note that is subject
to a subordination and/or standstill agreement.
------------------------------------------------------------------------------------------------------------
Edentree Apartments The property also secures a $1,000,000 B note that is subject
to a subordination and/or standstill agreement.
There is $3,040,000 in existing mezzanine debt.
------------------------------------------------------------------------------------------------------------
Squire Hill Apartments The property also secures a $1,600,000 B note that is subject
to a subordination and/or standstill agreement.
------------------------------------------------------------------------------------------------------------
Villas at D'Xxxxxx Future Unsecured Subordinate debt is permitted subject to (i)
Apartments DSCR >= 1.20x, (ii) LTV <= 80% and other conditions as
specified in the loan documents.
------------------------------------------------------------------------------------------------------------
Representation # (34)
------------------------------------------------------------------------------------------------------------
Loan Number
Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
Rails End Up to 10% of the loan balance, in addition to scheduled
amortization, may be pre-paid without penalty over the life of
the loan from the proceeds of additional share sales. After 10%
of the loan balance has been paid down additional share sale
proceeds can be used to pre-pay the Loan with yield maintenance
penalties, or for capital improvements or shareholder subsidies.
------------------------------------------------------------------------------------------------------------
Representation # (35)
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
Lembi Portfolio Lender will allow for the individual release of the properties
after the Lockout Period pursuant to the following conditions:
(i) no event of default, (ii) paydown of the Loan proceeds at
120% of the allocated loan amount attributable to the released
collateral, (iii) payment of the associated Defeasance penalty,
(iv) 1.10x DSCR based, and (v) the LTV on the remaining
collateral must not exceed 95%.
------------------------------------------------------------------------------------------------------------
Stadium Towers The loan documents contain provisions for the release of the
adjacent land parcel ("Adjacent Parcel") from the Loan
collateral at no cost to Borrower and at anytime following
closing provided, among other requirements as set for the in
the Loan Agreement, the following conditions are met:
* The Adjacent Parcel and the Property are separate tax lots
with separate legal descriptions. Prior to the release,
Borrower must provide individual surveys, legal descriptions
and any such other information requested by and reasonably
acceptable to Lender reflecting the legal separation of the
Adjacent Parcel and Property;
* Borrower shall provide such easements, maintenance
agreements, access agreements or other agreements as reasonably
required by Lender so the use, access, appeal, marketability or
value of the subject collateral are not impeded or impaired;
* Non-compete: Borrower shall not actively solicit any then
current tenant or parent company of a then current tenant at
the Property for tenancy at the Adjacent Parcel without
Lender's prior written consent.
* The Adjacent Parcel is transferred or ground leased (which
ground lease will be superior to the lien of other related
Mortgage) to an entity controlled directly or indirectly by the
principal of the Borrower.
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Representation # (37)
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Loan Number Loan Name Description of Exception
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Rails End The property does not conform with zoning. Law and Ordinance
insurance was not obtained. Beacuase the property is in Florida
and the only permanent structure is a small Clubhouse, L&O
coverage was not available. Per the zoning report, because the
use was legal at the time of inception, and is now legal
non-conforming due to the adoption of a comprehensive plan,
"the existing use is statutorily vested and may continue and
expand as provided in this section"
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Representation # (41)
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Loan Number Loan Name Description of Exception
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Rails End The property has an on site water well and on site waste water
treatment plant.
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Representation # (42)
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Loan Number Loan Name Description of Exception
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XXX Kalakaua Center Borrower shall not be required to incur a cost for the annual
premium for such terrorism coverage that exceeds $35,000.
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AT&T Chicago; Raven's If any of the policies of insurance contain an exclusion from
Crossing Strip Center; coverage for acts of terrorism, Mortgagor shall not be required
Southlake Grand Avenue to obtain such coverage provided (I) an Inland entity executes
a guaranty, in form and substance satisfactory to Lender,
guaranteeing in the event of any act of terrorism, payment to
Lender of any sums that would have been payable to Lender under
such coverage (which shall be applied by Lender in accordance
with 6.4 hereof), and (II) the Inland entity maintains a net
worth of at least $300,000,000 (as determined by such entity's
most recent audited financial statements), such entity
maintains a direct or indirect ownership interest in Mortgagor,
and the aggregate loan to value ratio (as determined by Lender)
("LTV") for all properties on which such entity has a direct or
indirect ownership interest shall not exceed 60%, however, the
Inland entity may exceed the 60% LTV for a period not to exceed
six (6) months out of any twelve (12) month period either (1)
during the time period when the Inland entity is offering
securities to the public or 2) when in the business judgment of
the Inland entity, exceeding an LTV of 60% is necessary given
existing circumstances
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Schedule II
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Loan Number Loan Name Description of Exception
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Healthnet Headquarters Environmental Insurance was obtained.
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Exhibit A - Ground Leases
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XXX Kalakaua Center Leasehold
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Comfort Suites - San Diego, CA Leasehold
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EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
I, [______], a duly appointed, qualified and acting [______] of
[___________], a [________] [______] (the "Company"), hereby certify on behalf
of the Company as follows:
1.____I have examined the Mortgage Loan Purchase Agreement, dated as
of July 1, 2007 (the "Agreement"), between the Company and X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., and all of the representations and
warranties of the Company under the Agreement are true and correct in all
material respects on and as of the date hereof (or, in the case of any
particular representation or warranty set forth on Exhibit B to the Agreement,
as of such other date provided for in such representation or warranty) with the
same force and effect as if made on and as of the date hereof, subject to the
exceptions set forth in the Agreement (including Exhibit C thereto).
2. The Company has complied with all the covenants and satisfied all
the conditions on its part to be performed or satisfied under the Agreement on
or prior to the date hereof and no event has occurred which, with notice or the
passage of time or both, would constitute a default under the Agreement.
3. I have examined the information regarding the Mortgage Loans in
the Prospectus, dated March 9, 2007, as supplemented by the Prospectus
Supplement, dated June 28, 2007 (collectively, the "Prospectus"), relating to
the offering of the Class X-0, Xxxxx X-0, Class A-2FL, Class X-0, Xxxxx X-0,
Class A-SB, Class A-1A, Class X, Class A-M, Class A-J, Class B, Class C, Class
D, Class E and Class F Certificates, the Private Placement Memorandum, dated
June 28, 2007 (the "Privately Offered Certificate Private Placement
Memorandum"), relating to the offering of the Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class P, Class Q, Class T and Class NR
Certificates, and the Residual Private Placement Memorandum, dated June 28, 2007
(together with the Privately Offered Certificate Private Placement Memorandum,
the "Private Placement Memoranda"), relating to the offering of the Class R and
Class LR Certificates, and nothing has come to my attention that would lead me
to believe that the Prospectus, as of the date of the Prospectus Supplement or
as of the date hereof, or the Private Placement Memoranda, as of the date of the
Private Placement Memoranda or as of the date hereof, included or includes any
untrue statement of a material fact relating to the Mortgage Loans or omitted or
omits to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading.
Capitalized terms used herein without definition have the meanings
given them in the Agreement.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, I have signed my name this ___ day of July,
2007.
By:____________________________________
Name:
Title:
SCHEDULE I
MORTGAGE LOANS FOR WHICH A LENDER'S ENVIRONMENTAL POLICY WAS OBTAINED IN LIEU
OF AN ENVIRONMENTAL SITE ASSESSMENT
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph number set forth below.
None.
SCHEDULE II
MORTGAGED PROPERTY FOR WHICH OTHER
ENVIRONMENTAL INSURANCE IS MAINTAINED
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph numbers set forth below:
Healthnet Headquarters.
