EXHIBIT 10.6
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X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER
AIG MORTGAGE CAPITAL, LLC AND SOME II, LLC,
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 among X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as purchaser (the "Purchaser"), and AIG Mortgage Capital, LLC ("AIGMC"),
as seller of the loan identified on Exhibit A-1 (the "AIGMC Loans") and SOME II,
LLC ("SOME II" and together with AIGMC, the "Sellers" and each individually, a
"Seller"), as seller of the loans identified on Exhibit A-2 (the "SOME II
Loans").
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 Sellers wish to prescribe the manner of sale
of the Mortgage Loans from the Sellers 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, each 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 Sellers) all of its right, title, and
interest in and to the related Mortgage Loans described in Exhibit A-1 or
Exhibit A-2, as applicable, 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 related 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 applicable
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 Sellers' records will accurately reflect the sale of each
Mortgage Loan sold by such Seller 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 AIGMC Loans and the SOME II Loans are
being conducted on an arms length basis and upon commercially reasonable terms.
As the purchase price for the AIGMC Loans and the SOME II Loans, the Purchaser
shall pay to the Sellers or at the Sellers' direction in immediately available
funds the sum of $115,922,389.69 (which amount is inclusive of accrued interest
and exclusive of AIGMC's and SOME II's pro rata share of the costs set forth in
Section 9 hereof). The purchase and sale of the AIGMC Loans and the SOME II
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 each 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 related
Seller.
The transfer of each Mortgage Loan shall be reflected on the related
Seller's balance sheets and other financial statements as a sale of such
Mortgage Loan by such Seller to the Purchaser. The Sellers intend 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 such
Mortgage Loan by the Purchaser from the applicable Seller. The Purchaser intends
to treat the transfer of each Mortgage Loan from the Sellers as a purchase for
tax purposes.
SECTION 3. Delivery of Mortgage Loan Documents; Additional Costs and
Expenses. (a) The Purchaser hereby directs the Sellers, and the Sellers hereby
agree, 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 sold by such Seller 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, each Seller agrees to deliver or cause to be
delivered to the Master Servicer, the Servicing File for each Mortgage Loan
transferred by it pursuant to this Agreement; provided that the Sellers 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 a 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 related 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 applicable Mortgage Loan
documents to collect such Transfer Modification Costs from such Mortgagor, in
which case Master Servicer shall give the related Seller notice of such failure
and the amount of such Transfer Modification costs and the related Seller shall
pay such Transfer Modification Costs.
SECTION 4. Treatment as a Security Agreement. Each Seller,
concurrently with the execution and delivery hereof, has conveyed to the
Purchaser, all of its right, title and interest in and to the related Mortgage
Loans. The parties intend that such conveyance of each Seller's right, title and
interest in and to the related 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 each
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 related 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, each 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. Each 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 applicable Mortgage Loans and the Assignments of Mortgage
from such 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
related 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 related 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 related 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 related Seller, to comply
with applicable law, such Seller shall do all things necessary to assist the
Depositor to prepare and furnish, at the expense of such Seller (to the extent
that such amendment or supplement relates to such Seller, the Mortgage Loans
sold by such Seller and/or any information relating to the same, as provided by
the Sellers), 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 related 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 related 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 AIGMC (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 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) Each Seller represents and warrants to the Purchaser as of the
Closing Date that:
(i) it is a limited liability company organized, validly existing,
and in good standing under the laws 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. Such Seller is in compliance with the laws of each state in
which any related 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 such Seller;
(v) the execution, delivery and performance of this Agreement by
such Seller have been duly authorized by all requisite action by such
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 such
Seller and constitutes a legal, valid and binding obligation of such
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 such Seller is a party or of which any property of such Seller is
the subject which, if determined adversely to such Seller, would
reasonably be expected to adversely affect (A) the transfer of the
applicable Mortgage Loans and the Mortgage Loan documents as contemplated
herein, (B) the execution and delivery by such Seller or enforceability
against such Seller of the applicable Mortgage Loans or this Agreement, or
(C) the performance of such 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 such Seller in connection with the transactions contemplated
hereby (including, without limitation, any financial cash flow models and
underwriting file abstracts furnished by such 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 applicable Mortgage Loans and the performance by
such Seller of all of its obligations under this Agreement and the
consummation by such 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 such Seller is bound or to which any of the
property or assets of such 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 such 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 such
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 its Mortgage Loans hereunder will
not cause it to become insolvent; and the sale of its Mortgage Loans is
not undertaken with the intent to hinder, delay or defraud any of such
Seller's creditors.
(b) The Purchaser represents and warrants to each 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 Sellers, 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) AIGMC and SOME II each hereby make the representations and
warranties set forth in Exhibit B as to the SOME II Loans and 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. AIGMC further makes the
representations and warranties set forth in Exhibit B as to the AIGMC Loans and
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 related Seller of the related 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 such 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, SOME II (only with respect to the SOME II Loans), AIGMC
(with respect to any Mortgage Loan) 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, AIGMC shall, not
later than 90 days from the earlier of AIGMC'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 AIGMC'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 AIGMC 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 AIGMC has commenced and is diligently proceeding
with the cure of such Breach or Defect within the Initial Resolution Period,
AIGMC 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 AIGMC 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 AIGMC 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 anything else in this Agreement to the contrary, all of the
obligations with respect to a Breach or Defect relating to the SOME II Loans
shall be solely the obligations of AIGMC, and the Purchaser shall have no right
to require SOME II to take any action following a Breach or Default with respect
to the SOME II Loans. 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, AIGMC 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 AIGMC
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, AIGMC 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, AIGMC shall
remit the amount of such costs and expenses and upon its making such remittance,
AIGMC 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 AIGMC 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 AIGMC
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 AIGMC 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 AIGMC 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, AIGMC 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. AIGMC 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 AIGMC (such approval not to be unreasonably
withheld).
To the extent that AIGMC 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 AIGMC
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 AIGMC 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, AIGMC 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 AIGMC.
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 AIGMC 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
AIGMC 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 AIGMC 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. AIGMC'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 of any of AIGMC's
or SOME II's representations or warranties contained in this Section 6 and 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 AIGMC'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 Sellers 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 Sellers 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 each
Seller substantially in the form of Exhibit D.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of each Seller's limited liability company agreement and
by-laws, certified as of a recent date by the Secretary or Assistant
Secretary of such Seller;
(ii) an original or copy of a certificate of corporate existence of
each Seller issued by the Secretary of State of the State of Delaware
dated not earlier than sixty days prior to the Closing Date;
(iii) an opinion of counsel of the Sellers, in form and substance
satisfactory to the Purchaser and its counsel, substantially to the effect
that:
(A) each Seller is a limited liability company organized,
validly existing, and in good standing under the laws of Delaware;
(B) each 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
each Seller to authorize the execution, delivery and performance of
this Agreement and the Indemnification Agreement by such Seller and
this Agreement is a legal, valid and binding agreement of such
Seller enforceable against such 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) each Seller's execution and delivery of, and such Seller's
performance of its obligations under, each of this Agreement and the
Indemnification Agreement do not and will not conflict with such
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
such Seller is a party or by which such Seller is bound, or to which
any of the property or assets of such 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 such
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 either 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 such Seller, either individually
or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of such 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 any 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 Sellers 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 Sellers 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 Sellers
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) AIGMC shall have executed and delivered concurrently herewith
the Indemnification Agreement.
(e) The Sellers shall furnish the Purchaser with such other
certificates of their 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. Each Seller will pay its pro rata share (such
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
sold by such Seller 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 Sellers 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 the 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 Sellers hereby acknowledge 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 Sellers hereby acknowledge their 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 Sellers 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 Sellers, the Purchaser and their permitted successors and
permitted assigns. The warranties and representations and the agreements made by
the Sellers 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 Sellers, AIG Mortgage Capital, LLC, 0
XxxXxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx
Xxxxxxxxxxx, 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 Sellers 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 Sellers 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:
AIG MORTGAGE CAPITAL, LLC, as Seller
By:____________________________________
Name:
Title:
SOME II, LLC, as Seller
By:____________________________________
Name:
Title:
EXHIBIT A-1
MORTGAGE LOAN SCHEDULE (AIGMC LOANS)
JPMCC 2007-LDP11
Mortgage Loan Schedule (Combined)
Loan # Originator Mortgagor Name Property Address
------ ---------- -------------------------- ----------------------------------------------
12 AIG Michiana Owner, LLC Various
105 AIG BCP-Xxxxxx, LLC 0000 Xxxxxx Xxxxxx
135 AIG Breton Bay Holdings, LLC 40814, 40824 & 00000 Xxxxxxxxx Xxxx
189 AIG Commack Properties, LLC 366 & 368 Veterans Memorial Highway (Rte. 454)
213 AIG D & R Chestnut Garage, LLC 000 Xxxx Xxxxxxxx Xxxxxx
Xxxx # Xxxx Xxxxx Zip Code County Property Name Size Measure
------ ------------ ------- -------- ----------- ----------------------------------- ----- --------------
12 Various Various Various Various Denmark MHC Portfolio 0000 Xxxx
000 Xxx Xxxxxxx XX 00000 Los Angeles Citizen News Building 00000 Xxxxxx Xxxx
000 Xxxxxxxxxxxx XX 00000 St. Mary's Shops at Xxxxxx Xxx 00000 Square Feet
189 Commack NY 11725 Suffolk 366 & 000 Xxxxxxxx Xxxxxxxx Xxxxxxx 00000 Xxxxxx Feet
213 Chicago IL 60611 Xxxx Chestnut Parking Garage 133 Parking Spaces
Loan # Interest Rate (%) Net Mortgage Interest Rate Original Balance Cutoff Balance Term Rem. Term
------ ----------------- -------------------------- ---------------- -------------- ---------- ----------
12 6.20600 6.18566 89,250,000 89,250,000 120 117
105 5.97000 5.92966 10,000,000 10,000,000 60 54
135 5.91000 5.83966 7,800,000 7,800,000 120 117
189 5.98000 5.90966 5,000,000 5,000,000 120 117
213 6.07000 6.04966 4,040,000 4,036,032 120 119
Loan # Maturity/ARD Date Amort. Term Rem. Amort. Monthly Debt Service Servicing Fee Rate Accrual Type ARD (Y/N
------ ------------------ ----------- ----------- -------------------- ------------------ ------------ --------
12 04/01/17 360 360 546,976 0.02000 Actual/360 No
105 01/01/12 360 360 59,762 0.04000 Actual/360 No
135 04/01/17 360 360 46,315 0.07000 Actual/360 No
189 04/01/17 360 360 29,913 0.07000 Actual/360 No
213 06/01/17 360 359 24,404 0.02000 Actual/360 No
Loan # ARD Step Up (%) Title Type Crossed Loan Originator/Loan Selle
------ --------------- ---------- ------------ ----------------------
12 Fee AIG
105 Fee AIG
135 Fee AIG
189 Fee AIG
213 Fee AIG
UPFRONT ESCROW
---------------------
Loan # Guarantor Letter of Credit Upfront CapEx Reserve
------ --------------------------------------------------------------- ---------------- ---------------------
12 D. Xxxx Xxxxxxx No 3,835,000.00
105 BCP-Xxxxxx, LLC, Brentwood Capital Partners I, LP No 0.00
135 Xxxxxxxxx Xxxxxxx Commerical Corporation No 0.00
189 Xxx X. Xxxxxx No 0.00
213 Xxxxxx Demos, Xxxxx Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx No 0.00
UPFRONT ESCROW
----------------------------------------------------------------------------------------------
Loan # Upfront Eng. Reserve Upfront Envir. Reserve Upfront TI/LC Reserve Upfront RE Tax Reserve
------ -------------------- ---------------------- --------------------- ----------------------
12 165,000.00 0.00 0.00 284,469.48
105 0.00 0.00 0.00 42,559.80
135 0.00 0.00 115,469.00 35,731.90
189 0.00 0.00 0.00 58,232.48
213 0.00 0.00 0.00 0.00
UPFRONT ESCROW MONTHLY ESCROW
-------------------------------------------- ----------------------------------------------
Loan # Upfront Ins. Reserve Upfront Other Reserve Monthly Capex Reserve Monthly Envir. Reserve
------ -------------------- --------------------- --------------------- ----------------------
12 0.00 1,000,000.00 10167.50 0.00
105 0.00 0.00 1024.67 0.00
135 1,923.73 0.00 924.20 0.00
189 4,860.34 0.00 0.00 0.00
213 0.00 0.00 0.00 0.00
MONTHLY ESCROW
---------------------------------------------------------------------------------------------
Loan # Monthly TI/LC Reserve Monthly RE Tax Reserve Monthly Ins. Reserve Monthly Other Reserve
------ --------------------- ---------------------- -------------------- ---------------------
12 0.00 80329.40 0.00 0.00
105 2050.00 8717.07 0.00 0.00
135 0.00 3970.27 641.24 0.00
189 0.00 10093.63 1620.11 0.00
213 0.00 0.00 0.00 0.00
Loan # Grace Period Lockbox In-place Property Type Defeasance Permitted Interest Accrual Perio
------ ------------ ----------------- -------------------- -------------------- ----------------------
12 5 Yes Manufactured Housing No Actual/360
105 0 No Office No Actual/360
135 0 No Retail Yes Actual/360
189 0 No Office Yes Actual/360
213 5 No Parking Garage No Actual/360
Loan # Loan Group Final Maturity Date Remaining Amortization Term for Balloon Loans
------ ---------- ------------------- ---------------------------------------------
12 2 360
105 1 360
135 1 360
189 1 360
213 1 360
EXHIBIT A-2
MORTGAGE LOAN SCHEDULE (SOME II LOANS)
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
EXHIBIT C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Note: The Mortgage Loan known as Shops at Breton Bay is structured with the
promissory note secured by a guaranty agreement (rather than a deed of trust),
which guaranty agreement from the property owner, in favor of the lender covers
all of the obligations under the promissory note. All of the obligations under
the guaranty agreement are secured by an indemnity deed of trust ("IDOT"). With
respect to certain of the representations and warranties with respect to this
Mortgage Loan, statements regarding the borrower relate to the guarantor, as the
owner of the Mortgaged Property.
Exceptions to Representation 10(iv)
Mortgage Loan Exception
Denmark MHC Portfolio On June 1, 2007, the amount of the Mortgage Loan was increased from $84,500,000
to $89,250,000 and an amortization schedule was added as an exhibit to the Loan
Agreement (with no change to the existing loan terms). The Mortgage Loan
documents were amended accordingly.
Exceptions to Representation 6
Mortgage Loan Exception
Denmark MHC Portfolio Subsequent to the closing date of the Mortgage Loan, the lender consented to the
borrower entering into a Development and Fence Encroachment License Agreement
("License"), which provides the owner of an adjacent real property an access
license through the internal, private roadways of a portion of a Mortgaged
Property for the purpose of conducting pre-development analysis (survey,
environmental, etc.). The access license excludes the use of heavy vehicles or
machinery and terminates on the earlier of (i) construction of access roadways
within the benefited property or (ii) five years from the grant of the License.
In addition, a fence on the Mortgaged Property encroaches on the adjacent
property and the borrower has been granted a license for the encroachment.
Exceptions to Representation 8
Mortgage Loan Exception
Denmark MHC Portfolio Subsequent to the closing date of the Mortgage Loan, the lender consented to the
borrower entering into a Development and Fence Encroachment License Agreement
("License"), which provides the owner of an adjacent real property an access
license through the internal, private roadways of a portion of a Mortgaged
Property for the purpose of conducting pre-development analysis (survey,
environmental, etc.). The access license excludes the use of heavy vehicles or
machinery and terminates on the earlier of (i) construction of access roadways
within the benefited property or (ii) five years from the grant of the License.
In addition, a fence on the Mortgaged Property encroaches on the adjacent
property and the borrower has been granted a license for the encroachment.
Exceptions to Representation 12
Mortgage Loan Exception
Denmark MHC Portfolio The Mortgage Loan documents permit the borrower, at any time after the
expiration of the lockout period, to obtain the release of up to four Mortgaged
Properties, subject to the satisfaction of certain conditions, including, but
not limited to: (i) no event of default exists; (ii) payment of 120% of the
allocated loan amount as set forth in the related loan agreement related to such
property or properties to be released; and (iii) after giving effect to such
release, the debt service coverage ratio for the trailing 12 months for all of
the properties then remaining must be higher than the debt service coverage
ratio for the trailing 12 months immediately preceding the release.
Exceptions to Representation 32
Mortgage Loan Exception
Denmark MHC Portfolio The sole member of the borrower pledged its membership interest in the borrower
as security for two loans in the amount of $8,450,000 and $3,400,000,
respectively. An intercreditor agreement in favor of the lender was executed
with respect to both loans.
Exceptions to Representation 35
Mortgage Loan Exception
Denmark MHC Portfolio The Mortgage Loan documents permit the borrower, at any time after the
expiration of the lockout period, to obtain the release of up to four Mortgaged
Properties, subject to the satisfaction of certain conditions, including, but
not limited to: (i) no event of default exists; (ii) payment of 120% of the
allocated loan amount as set forth in the related loan agreement related to such
property or properties to be released; and (iii) after giving effect to such
release, the debt service coverage ratio for the trailing 12 months for all of
the properties then remaining must be higher than the debt service coverage
ratio for the trailing 12 months immediately preceding the release.
Exceptions to Representation 42
Mortgage Loan Exception
Chestnut Parking Garage The borrower is not required to obtain and maintain terrorism insurance.
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
None.
SCHEDULE II
MORTGAGED PROPERTY FOR WHICH
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:
None.
