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 March 1, 2007
Fixed Rate Mortgage Loans
Series 2007-LDP10
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This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of March 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 March 1, 2007 (the "Pooling and Servicing Agreement") among the Purchaser,
as depositor (the "Depositor"), Midland Loan Services, Inc. and Wachovia Bank,
National Association, as master servicers (each, a "Master Servicer"), X.X.
Xxxxxx Company, Inc., as special servicer (the "Special Servicer"), Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee") and LaSalle Bank National Association, as
co-trustee (the "Co-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-1 and Exhibit A-2 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 applicable 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 A-1, Class A-1S, Class A-2, Class A-2S, Class A-2SFL, Class A-3, Class
A-3S, Class A-1A, Class X, Class A-M, Class A-MS, Class A-J, Class A-JFL, Class
A-JS, Class B-S, Class C-S and Class D-S Certificates (the "Offered
Certificates") to the underwriters (the "Underwriters") specified in the
underwriting agreement dated March 26, 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 B, Class C, Class D, Class E, Class E-S, Class F,
Class F-S, Class G, Class G-S, Class H, Class H-S, Class J, Class K, Class L,
Class M, Class N, Class P 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 March 26, 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 $81,453,704.78 (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 applicable 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 applicable 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 applicable
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 applicable 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 applicable Master Servicer, in order to assist and facilitate
in the transfer of the servicing of the Mortgage Loans to the applicable Master
Servicer, including effectuating the transfer of any letters of credit with
respect to any Mortgage Loan to the Trustee (in care of the applicable 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 applicable Master Servicer), the related Seller will
cooperate with the reasonable requests of the applicable 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 March 26, 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 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 applicable Master Servicer for deposit into the Certificate
Account, any Substitution Shortfall Amount (as defined below) in connection
therewith; provided, however, that 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, that with respect to the Extended Resolution
Period AIGMC shall have delivered an officer's certificate to the Rating
Agencies, the applicable 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 applicable 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, that 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, that 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 or the interests of the Trustee or 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 applicable 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, that 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, that 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: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Executive Director
AIG MORTGAGE CAPITAL, LLC, as Seller
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
SOME II, LLC, as Seller
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
EXHIBIT A-1
MORTGAGE LOAN SCHEDULE (AIGMC LOANS)
JPMCC 2007-LDP10
Mortgage Loan Schedule (AIG)
Loan Zip
Loan # Seller Mortgagor Name Property Address City State Code County Property Name Size
------ ------ ------------------------ ------------------- ----------- ----- ----- ------- -------------- -----
130 AIG 0000 Xxxxxxxxx Xxxx, LLC 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 Fairfax 7200 Fullerton 78539
Net
Interest Mortgage Maturity/ Monthly
Rate Interest Original Cutoff Rem. ARD Amort. Rem. Debt
Loan # Measure (%) Rate Balance Balance Term Term Date Term Amort. Service
------ ----------- -------- -------- ---------- ------------- ---- ---- --------- ------ ------- -------
130 Square Feet 5.85000 5.82961 10,000,000 10,000,000 84 84 03/01/14 360 360 58,994
ARD
Servicing Step Originator/ Letter Upfront Upfront
Fee Accrual ARD Up Title Crossed Loan of CapEx Eng.
Loan # Rate Type (Y/N) (%) Type Loan Seller Guarantor Credit Reserve Reserve
------ --------- ---------- ----- ---- ----- ------- ----------- --------------- ------ ------- -------
130 0.02000 Actual/360 No Fee AIG CEI Realty, Inc No 0.00 0.00
Upfront Monthly
Upfront Upfront RE Upfront Upfront Monthly Monthly Monthly RE Monthly Monthly
Envir. TI/LC Tax Ins. Other Capex Envir. TI/LC Tax Ins. Other
Loan # Reserve Reserve Reserve Reserve Reserve Reserve Reserve Reserve Reserve Reserve Reserve
------ ------- ------- --------- ------- ------- ------- ------- ------- ------- ------- -------
130 0.00 0.00 21,767.13 0.00 0.00 654.49 0.00 1308.98 4353.43 0.00 0.00
Remaining
Interest Final Amortization
Grace Lockbox Property Defeasance Accrual Loan Maturity Term for
Loan # Period In-place Type Permitted Period Group Date Balloon Loans
------ ------ -------- ---------- ---------- ---------- ----- -------- -------------
130 0 No Industrial Yes Actual/360 3 360
EXHIBIT A-2
MORTGAGE LOAN SCHEDULE (SOME II LOANS)
JPMCC 2007-LDP10
Mortgage Loan Schedule (SOME II)
Loan
Loan # Seller Mortgagor Name
------ ------ --------------
52 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
52.01 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
52.02 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
52.03 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
52.04 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
52.05 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
52.06 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
85 SOME II Temecula Creek Commercial Center, LLC
Loan # Property Address City State Zip Code County Property Name
------ --------------------------- ---------- ------- -------- --------- -----------------------------------
52 Vairous Various Various Various Various Xxxx Retail Portfolio
52.01 000 X. Xxxxxx Xxxxxxx Xxxxx Xxxxxx XX 00000 Orange Apopka Regional Shopping Center
52.02 0000 X. Xxxxxxxxx Xxxx Xxxxxxx XX 00000 Orange Westgate Square Shopping Center
52.03 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Guilford West Market Shopping Center
52.04 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx XX 00000 Xxxx Xxxxxxx Plaza
52.05 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Xxxxx Xxxxxx River Square Shopping Center
52.06 0000 Xxxx Xxxxxxxx Xxxxx Xxxxxxx XX 00000 Hertford Newmarket Shopping Center
85 31021 - 00000 Xxx 00 Xxxxxxxx XX 00000 Riverside Temecula Creek Plaza
Net
Interest Mortgage Maturity/ Monthly
Rate Interest Original Cutoff Rem. ARD Amort. Rem. Debt
Loan # Size Measure (%) Rate Balance Balance Term Term Date Term Amort. Service
------ ------ ----------- -------- -------- ---------- ---------- ---- ---- --------- ------ ------ -------
52 817497 Square Feet 5.86600 5.84561 49,600,000 49,600,000 120 118 01/01/17 360 360 293,117
52.01 171557 Square Feet 5.86600 5.86600 13,422,578 13,422,578 120 120 01/01/17 360 360
52.02 136188 Square Feet 5.86600 5.86600 9,927,942 9,927,942 120 120 01/01/17 360 360
52.03 153428 Square Feet 5.86600 5.86600 9,491,113 9,491,113 120 120 01/01/17 360 360
52.04 133345 Square Feet 5.86600 5.86600 8,418,895 8,418,895 120 120 01/01/17 360 360
52.05 118120 Square Feet 5.86600 5.86600 4,527,142 4,527,142 120 120 01/01/17 360 360
52.06 104859 Square Feet 5.86600 5.86600 3,812,330 3,812,330 120 120 01/01/17 360 360
85 67076 Square Feet 5.87000 5.84961 19,500,000 19,500,000 120 120 03/01/17 360 360 115,288
Servicing ARD Originator/
Fee Accrual ARD Step Title Crossed Loan
Loan # Rate Type (Y/N) Up (%) Type Loan Seller Guarantor
------ --------- ---------- ----- ------ ----- ------- ----------- --------------------------------------
52 0.02000 Actual/360 No Fee AIG Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx
52.01 0.00000 No Fee AIG
52.02 0.00000 No Fee AIG
52.03 0.00000 No Fee AIG
52.04 0.00000 No Fee AIG
52.05 0.00000 No Fee AIG
52.06 0.00000 No Fee AIG
85 0.02000 Actual/360 No Fee AIG Xxxxx X. Xxxxxxxxx , Xxxxxx X. Xxxxxxx
Letter Upfront Upfront Upfront Upfront Upfront Upfront Upfront Monthly Monthly
of CapEx Eng. Envir. TI/LC RE Tax Ins. Other Capex Envir.
Loan # Credit Reserve Reserve Reserve Reserve Reserve Reserve Reserve Reserve Reserve
------ ------ ------- ---------- ------- ---------- ---------- --------- ------------ -------- --------
52 No 0.00 968,715.00 0.00 500,000.00 249,717.65 0.00 931,285.00 13500.00 0.00
52.01 No
52.02 No
52.03 No
52.04 No
52.05 No
52.06 No
85 No 0.00 0.00 0.00 450,000.00 56,881.22 22,722.96 2,050,000.00 0.00 0.00
Monthly Monthly Monthly Monthly Interest Final
TI/LC RE Tax Ins. Other Grace Lockbox Property Defeasance Accrual Loan Maturity
Loan # Reserve Reserve Reserve Reserve Period In-place Type Permitted Period Group Date
------ ------- -------- ------- ------- ------ -------- -------- ---------- ---------- ----- --------
52 0.00 50419.64 4097.17 0.00 0 Yes Retail Yes Actual/360 1
52.01 0 Retail 1
52.02 0 Retail 1
52.03 0 Retail 1
52.04 0 Retail 1
52.05 0 Retail 1
52.06 0 Retail 1
85 5589.67 8264.79 1893.58 0.00 0 No Retail Yes Actual/360 1
Remaining
Amortization
Term for
Balloon
Loan # Loans
------ ------------
52 360
52.01 360
52.02 360
52.03 360
52.04 360
52.05 360
52.06 360
85 360
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
(1) No Mortgage Loan is 30 days or more delinquent in payment of
principal and interest (without giving effect to any applicable grace period in
the related Mortgage Note) and no Mortgage Loan has been 30 days or more
(without giving effect to any applicable grace period in the related Mortgage
Note) past due.
(2) Except with respect to the ARD Loans, which provide that the rate
at which interest accrues thereon increases after the Anticipated Repayment
Date, the Mortgage Loans (exclusive of any default interest, late charges or
prepayment premiums) are fixed rate mortgage loans with terms to maturity, at
origination or as of the most recent modification, as set forth in the Mortgage
Loan Schedule.
(3) The information pertaining to each Mortgage Loan set forth on the
Mortgage Loan Schedule is true and correct in all material respects as of the
Cut-off Date.
(4) At the time of the assignment of the Mortgage Loans to the
Purchaser, the Seller had good and marketable title to and was the sole owner
and holder of, each Mortgage Loan, free and clear of any pledge, lien,
encumbrance or security interest (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 applicable Master Servicer
and Seller) and such assignment validly and effectively transfers and conveys
all legal and beneficial ownership of the Mortgage Loans to the Purchaser free
and clear of any pledge, lien, encumbrance or security interest (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
applicable Master Servicer and Seller).
(5) In respect of each Mortgage Loan, (A) in reliance on public
documents or certified copies of the incorporation or partnership or other
entity documents, as applicable, delivered in connection with the origination of
such Mortgage Loan, the related Mortgagor is an entity organized under the laws
of a state of the United States of America, the District of Columbia or the
Commonwealth of Puerto Rico and (B) as of the origination date, the Seller
(based on customary due diligence) had no knowledge, and since the origination
date, the Seller has no actual knowledge, that the related Mortgagor is a debtor
in any bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or similar proceeding.
(6) Each Mortgage Loan is secured by the related Mortgage which
establishes and creates a valid and subsisting first priority lien on the
related Mortgaged Property, or leasehold interest therein, comprising real
estate, free and clear of any liens, claims, encumbrances, participation
interests, pledges, charges or security interests subject only to Permitted
Encumbrances. Such Mortgage, together with any separate security agreement, UCC
Financing Statement or similar agreement, if any, establishes and creates a
first priority security interest in favor of the Seller in all personal property
owned by the Mortgagor that is used in, and is reasonably necessary to, the
operation of the related Mortgaged Property and, to the extent a security
interest may be created therein and perfected by the filing of a UCC Financing
Statement under the Uniform Commercial Code as in effect in the relevant
jurisdiction, the proceeds arising from the Mortgaged Property and other
collateral securing such Mortgage Loan, subject only to Permitted Encumbrances.
There exists with respect to such Mortgaged Property an assignment of leases and
rents provision, either as part of the related Mortgage or as a separate
document or instrument, which establishes and creates a first priority security
interest in and to leases and rents arising in respect of the related Mortgaged
Property, subject only to Permitted Encumbrances. Except for the holder of the
Companion Loan with respect to the AB Mortgage Loans, to the Seller's knowledge,
no person other than the related Mortgagor and the mortgagee own any interest in
any payments due under the related leases. The related Mortgage or such
assignment of leases and rents provision provides for the appointment of a
receiver for rents or allows the holder of the related Mortgage to enter into
possession of the related Mortgaged Property to collect rent or provides for
rents to be paid directly to the holder of the related Mortgage in the event of
a default beyond applicable notice and grace periods, if any, under the related
Mortgage Loan documents. As of the origination date, there were, and, to the
Seller's actual knowledge as of the Closing Date, there are, no mechanics' or
other similar liens or claims which have been filed for work, labor or materials
affecting the related Mortgaged Property which are or may be prior or equal to
the lien of the Mortgage, except those that are bonded or escrowed for or which
are insured against pursuant to the applicable Title Insurance Policy (as
defined below) and except for Permitted Encumbrances. No (a) Mortgaged Property
secures any mortgage loan not represented on the Mortgage Loan Schedule other
than a Companion Loan, (b) Mortgage Loan is cross-collateralized or
cross-defaulted with any other mortgage loan, other than a Mortgage Loan listed
on the Mortgage Loan Schedule or a Companion Loan, or (c) Mortgage Loan is
secured by property that is not a Mortgaged Property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rent, operating revenues or other personal property to the extent
that possession or control of such items or actions other than the recordation
of the Mortgage or the Assignment of Leases and Rents or the filing of UCC
Financing Statements are required in order to effect such perfection.
(7) The related Mortgagor under each Mortgage Loan has good and
indefeasible fee simple or, with respect to those Mortgage Loans described in
clause (20) hereof, leasehold title to the related Mortgaged Property comprising
real estate subject to any Permitted Encumbrances.
(8) The Seller has received an American Land Title Association (ALTA)
lender's title insurance policy or a comparable form of lender's title insurance
policy (or escrow instructions binding on the Title Insurer (as defined below)
and irrevocably obligating the Title Insurer to issue such title insurance
policy or a title policy commitment or pro-forma "marked up" at the closing of
the related Mortgage Loan and countersigned or otherwise approved by the Title
Insurer or its authorized agent) as adopted in the applicable jurisdiction (the
"Title Insurance Policy"), which was issued by a nationally recognized title
insurance company (the "Title Insurer") qualified to do business in the
jurisdiction where the applicable Mortgaged Property is located (unless such
jurisdiction is the State of Iowa), covering the portion of each Mortgaged
Property comprised of real estate and insuring that the related Mortgage is a
valid first lien in the original principal amount of the related Mortgage Loan
on the Mortgagor's fee simple interest (or, if applicable, leasehold interest)
in such Mortgaged Property comprised of real estate, subject only to Permitted
Encumbrances. Such Title Insurance Policy was issued in connection with the
origination of the related Mortgage Loan. No claims have been made under such
Title Insurance Policy. Such Title Insurance Policy is in full force and effect
and all premiums thereon have been paid and will provide that the insured
includes the owner of the Mortgage Loan and its successors and/or assigns. No
holder of the related Mortgage has done, by act or omission, anything that
would, and the Seller has no actual knowledge of any other circumstance that
would, impair the coverage under such Title Insurance Policy.
(9) The related Assignment of Mortgage and the related assignment of
the Assignment of Leases and Rents executed in connection with each Mortgage, if
any, have been recorded in the applicable jurisdiction (or, if not recorded,
have been submitted for recording or are in recordable form (but for the
insertion of the name and address of the assignee and any related recording
information which is not yet available to the Seller)) and constitute the legal,
valid and binding assignment of such Mortgage and the related Assignment of
Leases and Rents from the Seller to the Purchaser. The endorsement of the
related Mortgage Note by the Seller constitutes the legal, valid, binding and
enforceable (except as such enforcement may be limited by anti-deficiency laws
or bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law)) assignment of
such Mortgage Note, and together with such Assignment of Mortgage and the
related assignment of Assignment of Leases and Rents, legally and validly
conveys all right, title and interest in such Mortgage Loan and Mortgage Loan
documents to the Purchaser.
(10) (a) The Mortgage Loan documents for each Mortgage Loan provide
that such Mortgage Loan is non-recourse to the related parties thereto except
that the related Mortgagor and at least one individual or entity shall be fully
liable for actual losses, liabilities, costs and damages arising from certain
acts of the related Mortgagor and/or its principals specified in the related
Mortgage Loan documents, which acts generally include the following: (i) fraud
or intentional material misrepresentation, (ii) misapplication or
misappropriation of rents, insurance proceeds or condemnation awards, (iii)
either (x) any act of actual waste by or (y) damage or destruction to the
Mortgaged Property caused by the acts or omissions of the borrower, its agents,
employees or contractors, and (iv) any breach of the environmental covenants
contained in the related Mortgage Loan documents.
(b) The Mortgage Loan documents for each Mortgage Loan contain
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the practical realization against the Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including realization by judicial or, if applicable, non judicial
foreclosure, and there is no exemption available to the related Mortgagor
which would interfere with such right of foreclosure except any statutory
right of redemption or as may be limited by anti-deficiency or one form of
action laws or by bankruptcy, receivership, conservatorship,
reorganization, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) Each of the related Mortgage Notes and Mortgages are the
legal, valid and binding obligations of the related Mortgagor named on the
Mortgage Loan Schedule and each of the other related Mortgage Loan
documents is the legal, valid and binding obligation of the parties thereto
(subject to any non recourse provisions therein), enforceable in accordance
with its terms, except as such enforcement may be limited by
anti-deficiency or one form of action laws or bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions of such Mortgage Loan documents are or may be unenforceable in
whole or in part under applicable state or federal laws, but the inclusion
of such provisions does not render any of the Mortgage Loan documents
invalid as a whole, and such Mortgage Loan documents taken as a whole are
enforceable to the extent necessary and customary for the practical
realization of the principal rights and benefits afforded thereby.
(d) The terms of the Mortgage Loans or the related Mortgage Loan
documents, have not been altered, impaired, modified or waived in any
material respect, except prior to the Cut-off Date by written instrument
duly submitted for recordation, to the extent required, and as specifically
set forth in the related Mortgage File.
(e) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently so
serves and is named in the deed of trust or may be substituted in
accordance with applicable law, and no fees or expenses are or will become
payable to the trustee under the deed of trust, except in connection with a
trustee's sale after default by the Mortgagor and de minimis fees paid in
connection with the release of the related Mortgaged Property or related
security for such Mortgage Loan following payment of such Mortgage Loan in
full.
(11) Except by a written instrument that has been delivered to the
Purchaser as a part of the related Mortgage File with respect to any immaterial
releases of the Mortgaged Property, no Mortgage Loan has been satisfied,
canceled, subordinated, released or rescinded, in whole or in part, and the
related Mortgagor has not been released, in whole or in part, from its
obligations under any related Mortgage Loan document.
(12) Except with respect to the enforceability of any provisions
requiring the payment of default interest, late fees, additional interest,
prepayment premiums or yield maintenance charges, neither the Mortgage Loan nor
any of the related Mortgage Loan documents is subject to any right of
rescission, set off, abatement, diminution, valid counterclaim or defense,
including the defense of usury, nor will the operation of any of the terms of
any such Mortgage Loan documents, or the exercise (in compliance with procedures
permitted under applicable law) of any right thereunder, render any Mortgage
Loan documents subject to any right of rescission, set off, abatement,
diminution, valid counterclaim or defense, including the defense of usury
(subject to anti-deficiency or one form of action laws and to bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or other
similar laws affecting the enforcement of creditor's rights generally and to
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law)), and no such right of
rescission, set off, abatement, diminution, valid counterclaim or defense has
been asserted with respect thereto. None of the Mortgage Loan documents provides
for a release of a portion of the Mortgaged Property from the lien of the
Mortgage except upon payment or defeasance in full of all obligations under the
Mortgage, provided that, notwithstanding the foregoing, certain of the Mortgage
Loans may allow partial release (a) upon payment or defeasance of an Allocated
Loan Amount which may be formula based, but in no event less than 125% of the
Allocated Loan Amount, or (b) in the event the portion of the Mortgaged Property
being released was not given any material value in connection with the
underwriting or appraisal of the related Mortgage Loan.
(13) As of the Closing Date, there is no payment default, after giving
effect to any applicable notice and/or grace period, and, to the Seller's
knowledge, as of the Closing Date, there is no other material default under any
of the related Mortgage Loan documents, after giving effect to any applicable
notice and/or grace period; no such material default or breach has been waived
by the Seller or on its behalf or, to the Seller's knowledge, by the Seller's
predecessors in interest with respect to the Mortgage Loans; and, to the
Seller's actual knowledge, no event has occurred which, with the passing of time
or giving of notice would constitute a material default or breach; provided,
however, that the representations and warranties set forth in this sentence do
not cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of any subject matter otherwise covered
by any other representation or warranty made by the Seller in this Exhibit B. No
Mortgage Loan has been accelerated and no foreclosure proceeding or power of
sale proceeding has been initiated under the terms of the related Mortgage Loan
documents. The Seller has not waived any material claims against the related
Mortgagor under any non-recourse exceptions contained in the Mortgage Note.
(14) (a) The principal amount of the Mortgage Loan stated on the
Mortgage Loan Schedule has been fully disbursed as of the Closing Date (except
for certain amounts that were fully disbursed by the mortgagee, but were
escrowed pursuant to the terms of the related Mortgage Loan documents) and there
are no future advances required to be made by the mortgagee under any of the
related Mortgage Loan documents. Any requirements under the related Mortgage
Loan documents regarding the completion of any on-site or off-site improvements
and to disbursements of any escrow funds therefor have been or are being
complied with or such escrow funds are still being held. The value of the
Mortgaged Property relative to the value reflected in the most recent appraisal
thereof is not materially impaired by any improvements which have not been
completed. The Seller has not, nor, to the Seller's knowledge, have any of its
agents or predecessors in interest with respect to the Mortgage Loan, in respect
of payments due on the related Mortgage Note or Mortgage, directly or
indirectly, advanced funds or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor other than (a) interest
accruing on such Mortgage Loan from the date of such disbursement of such
Mortgage Loan to the date which preceded by thirty (30) days the first payment
date under the related Mortgage Note and (b) application and commitment fees,
escrow funds, points and reimbursements for fees and expenses, incurred in
connection with the origination and funding of the Mortgage Loan.
(b) No Mortgage Loan has capitalized interest included in its
principal balance, or provides for any shared appreciation rights or other
equity participation therein and no contingent or additional interest
contingent on cash flow or negative amortization (other than with respect
to the deferment of payment with respect to ARD Loans) is due thereon.
(c) Each Mortgage Loan identified in the Mortgage Loan Schedule as
an ARD Loan starts to amortize no later than the Due Date of the calendar
month immediately after the calendar month in which such ARD Loan closed
and substantially fully amortizes over its stated term, which term is at
least 60 months after the related Anticipated Repayment Date. Each ARD Loan
has an Anticipated Repayment Date not less than seven years following the
origination of such Mortgage Loan. If the related Mortgagor elects not to
prepay its ARD Loan in full on or prior to the Anticipated Repayment Date
pursuant to the existing terms of the Mortgage Loan or a unilateral option
(as defined in Treasury Regulations under Section 1001 of the Code) in the
Mortgage Loan exercisable during the term of the Mortgage Loan, (i) the
Mortgage Loan's interest rate will step up to an interest rate per annum as
specified in the related Mortgage Loan documents; provided, however, that
payment of such Excess Interest shall be deferred until the principal of
such ARD Loan has been paid in full; (ii) all or a substantial portion of
the Excess Cash Flow (which is net of certain costs associated with owning,
managing and operating the related Mortgaged Property) collected after the
Anticipated Repayment Date shall be applied towards the prepayment of such
ARD Loan and once the principal balance of an ARD Loan has been reduced to
zero all Excess Cash Flow will be applied to the payment of accrued Excess
Interest; and (iii) if the property manager for the related Mortgaged
Property can be removed by or at the direction of the mortgagee on the
basis of a debt service coverage test, the subject debt service coverage
ratio shall be calculated without taking account of any increase in the
related Mortgage Interest Rate on such Mortgage Loan's Anticipated
Repayment Date. No ARD Loan provides that the property manager for the
related Mortgaged Property can be removed by or at the direction of the
mortgagee solely because of the passage of the related Anticipated
Repayment Date.
(d) Each Mortgage Loan identified in the Mortgage Loan Schedule as
an ARD Loan with a hard lockbox requires that tenants at the related
Mortgaged Property shall (and each Mortgage Loan identified in the Mortgage
Loan Schedule as an ARD Loan with a springing lockbox requires that tenants
at the related Mortgaged Property shall, upon the occurrence of a specified
trigger event, including, but not limited to, the occurrence of the related
Anticipated Repayment Date) make rent payments into a lockbox controlled by
the holder of the Mortgage Loan and to which the holder of the Mortgage
Loan has a first perfected security interest; provided, however, with
respect to each ARD Loan which is secured by a multi-family property with a
hard lockbox, or with respect to each ARD Loan which is secured by a
multi-family property with a springing lockbox, upon the occurrence of a
specified trigger event, including, but not limited to, the occurrence of
the related Anticipated Repayment Date, tenants either pay rents to a
lockbox controlled by the holder of the Mortgage Loan or deposit rents with
the property manager who will then deposit the rents into a lockbox
controlled by the holder of the Mortgage Loan.
(15) The terms of the Mortgage Loan documents evidencing such Mortgage
Loan comply in all material respects with all applicable local, state and
federal laws and regulations, and the Seller has complied with all material
requirements pertaining to the origination of the Mortgage Loans, including but
not limited to, usury and any and all other material requirements of any
federal, state or local law to the extent non-compliance would have a material
adverse effect on the Mortgage Loan.
(16) To the Seller's knowledge and subject to clause (37) hereof, as of
the date of origination of the Mortgage Loan, based on inquiry customary in the
industry, the related Mortgaged Property was, and to the Seller's actual
knowledge and subject to clause (37) hereof, as of the Closing Date, the related
Mortgaged Property is, in all material respects, in compliance with, and is used
and occupied in accordance with, all restrictive covenants of record applicable
to such Mortgaged Property and applicable zoning laws and all inspections,
licenses, permits and certificates of occupancy required by law, ordinance or
regulation to be made or issued with regard to the Mortgaged Property have been
obtained and are in full force and effect, except to the extent (a) any material
non-compliance with applicable zoning laws is insured by an ALTA lender's title
insurance policy (or binding commitment therefor), or the equivalent as adopted
in the applicable jurisdiction, or a law and ordinance insurance policy, or (b)
the failure to obtain or maintain such inspections, licenses, permits or
certificates of occupancy does not materially impair or materially and adversely
affect the use and/or operation of the Mortgaged Property as it was used and
operated as of the date of origination of the Mortgage Loan or the rights of a
holder of the related Mortgage Loan.
(17) All (a) taxes, water charges, sewer rents, assessments or other
similar outstanding governmental charges and governmental assessments which
became due and owing prior to the Closing Date in respect of the related
Mortgaged Property (excluding any related personal property), and if left
unpaid, would be, or might become, a lien on such Mortgaged Property having
priority over the related Mortgage and (b) insurance premiums or ground rents
which became due and owing prior to the Closing Date in respect of the related
Mortgaged Property (excluding any related personal property), have been paid, or
if disputed, or if such amounts are not delinquent prior to the Closing Date, an
escrow of funds in an amount sufficient (together with escrow payments required
to be made prior to delinquency) to cover such taxes and assessments and any
late charges due in connection therewith has been established. As of the date of
origination, the related Mortgaged Property was one or more separate and
complete tax parcels. For purposes of this representation and warranty, the
items identified herein shall not be considered due and owing until the date on
which interest or penalties would be first payable thereon.
(18) To the Seller's knowledge based on surveys or the Title Insurance
Policy, (i) none of the material improvements that were included for the purpose
of determining the appraised value of the related Mortgaged Property at the time
of the origination of such Mortgage Loan lies outside the boundaries and
building restriction lines of such Mortgaged Property, except to the extent they
are legally nonconforming as contemplated by representation (37) below, and (ii)
no improvements on adjoining properties encroach upon such Mortgaged Property,
except in the case of either (i) or (ii) for (a) immaterial encroachments which
do not materially adversely affect the security intended to be provided by the
related Mortgage or the use, enjoyment, value or marketability of such Mortgaged
Property or (b) encroachments affirmatively covered by the related Title
Insurance Policy. With respect to each Mortgage Loan, the property legally
described in the survey, if any, obtained for the related Mortgaged Property for
purposes of the origination thereof is the same as the property legally
described in the Mortgage.
(19) (a) As of the date of the applicable engineering report (which was
performed within 12 months prior to the Cut-off Date) related to the Mortgaged
Property and, to Seller's knowledge as of the Closing Date, the related
Mortgaged Property is either (i) in good repair, free and clear of any damage
that would materially adversely affect the value of such Mortgaged Property as
security for such Mortgage Loan or the use and operation of the Mortgaged
Property as it was being used or operated as of the origination date or (ii)
escrows in an amount consistent with the standard utilized by the Seller with
respect to similar loans it holds for its own account have been established,
which escrows will in all events be not less than 100% of the estimated cost of
the required repairs. Since the origination date, to the Seller's actual
knowledge, such Mortgaged Property has not been damaged by fire, wind or other
casualty or physical condition that would materially and adversely affect its
value as security for the related Mortgage Loan (including, without limitation,
any soil erosion or subsidence or geological condition), which damage has not
been fully repaired or fully insured, or for which escrows in an amount
consistent with the standard utilized by the Seller with respect to loans it
holds for its own account have not been established.
(b) As of the origination date of such Mortgage Loan and to the
Seller's actual knowledge, as of the Closing Date, there are no proceedings
pending or, to the Seller's actual knowledge, threatened, for the partial
or total condemnation of the relevant Mortgaged Property.
(20) The Mortgage Loans that are identified on Exhibit A as being
secured in whole or in part by a leasehold estate (a "Ground Lease") (except
with respect to any Mortgage Loan also secured by the related fee interest in
the Mortgaged Property) satisfy the following conditions:
(a) such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease or other agreement received by the
originator of the Mortgage Loan from the ground lessor, provides that the
interest of the lessee thereunder may be encumbered by the related Mortgage
and does not restrict the use of the related Mortgaged Property by such
lessee, its successors or assigns, in a manner that would materially and
adversely affect the security provided by the Mortgage; as of the date of
origination of the Mortgage Loan, there was no material change of record in
the terms of such Ground Lease with the exception of written instruments
which are part of the related Mortgage File and Seller has no knowledge of
any material change in the terms of such Ground Lease since the recordation
of the related Mortgage, with the exception of written instruments which
are part of the related Mortgage File;
(b) such Ground Lease or such other agreement received by the
originator of the Mortgage Loan from the ground lessor is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related fee interest and Permitted
Encumbrances and such Ground Lease or such other agreement received by the
originator of the Mortgage Loan from the ground lessor is, and shall
remain, prior to any mortgage or other lien upon the related fee interest
(other than the Permitted Encumbrances) unless a nondisturbance agreement
is obtained from the holder of any mortgage on the fee interest which is
assignable to or for the benefit of the related lessee and the related
mortgagee;
(c) such Ground Lease or other agreement provides that upon
foreclosure of the related Mortgage or assignment of the Mortgagor's
interest in such Ground Lease in lieu thereof, the mortgagee under such
Mortgage is entitled to become the owner of such interest upon notice to,
but without the consent of, the lessor thereunder and, in the event that
such mortgagee (or any of its successors and assigns under the Mortgage)
becomes the owner of such interest, such interest is further assignable by
such mortgagee (or any of its successors and assigns under the Mortgage)
upon notice to such lessor, but without a need to obtain the consent of
such lessor;
(d) such Ground Lease is in full force and effect and no default
of tenant or ground lessor was in existence at origination, or to the
Seller's knowledge, is in existence as of the Closing Date, under such
Ground Lease, nor at origination was, or to the Seller's knowledge, is
there any condition which, but for the passage of time or the giving of
notice, would result in a default under the terms of such Ground Lease;
either such Ground Lease or a separate agreement contains the ground
lessor's covenant that it shall not amend, modify, cancel or terminate such
Ground Lease without the prior written consent of the mortgagee under such
Mortgage and any amendment, modification, cancellation or termination of
the Ground Lease without the prior written consent of the related
mortgagee, or its successors or assigns is not binding on such mortgagee,
or its successor or assigns;
(e) such Ground Lease or other agreement requires the lessor
thereunder to give written notice of any material default by the lessee to
the mortgagee under the related Mortgage, provided that such mortgagee has
provided the lessor with notice of its lien in accordance with the
provisions of such Ground Lease; and such Ground Lease or other agreement
provides that no such notice of default and no termination of the Ground
Lease in connection with such notice of default shall be effective against
such mortgagee unless such notice of default has been given to such
mortgagee and any related Ground Lease or other agreement contains the
ground lessor's covenant that it will give to the related mortgagee, or its
successors or assigns, any notices it sends to the Mortgagor;
(f) either (i) the related ground lessor has subordinated its
interest in the related Mortgaged Property to the interest of the holder of
the Mortgage Loan or (ii) such Ground Lease or other agreement provides
that (A) the mortgagee under the related Mortgage is permitted a reasonable
opportunity to cure any default under such Ground Lease which is curable,
including reasonable time to gain possession of the interest of the lessee
under the Ground Lease, after the receipt of notice of any such default
before the lessor thereunder may terminate such Ground Lease; (B) in the
case of any such default which is not curable by such mortgagee, or in the
event of the bankruptcy or insolvency of the lessee under such Ground
Lease, such mortgagee has the right, following termination of the existing
Ground Lease or rejection thereof by a bankruptcy trustee or similar party,
to enter into a new ground lease with the lessor on substantially the same
terms as the existing Ground Lease; and (C) all rights of the Mortgagor
under such Ground Lease (insofar as it relates to the Ground Lease) may be
exercised by or on behalf of such mortgagee under the related Mortgage upon
foreclosure or assignment in lieu of foreclosure;
(g) such Ground Lease has an original term (or an original term
plus one or more optional renewal terms that under all circumstances may be
exercised, and will be enforceable, by the mortgagee or its assignee) which
extends not less than 20 years beyond the stated maturity date of the
related Mortgage Loan;
(h) under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds will be applied either to
the repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee under such Mortgage or a financially responsible
institution acting as trustee appointed by it, or consented to by it, or by
the lessor having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender), or to the payment in whole or in part of the outstanding principal
balance of such Mortgage Loan together with any accrued and unpaid interest
thereon; and
(i) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by the
Seller; such Ground Lease contains a covenant (or applicable laws provide)
that the lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment of any
lessee in the relevant portion of such Mortgaged Property subject to such
Ground Lease for any reason, or in any manner, which would materially
adversely affect the security provided by the related Mortgage.
(21) (a) Except for those Mortgage Loans set forth on Schedule I hereto
for which a lender's environmental insurance policy was obtained in lieu of an
Environmental Site Assessment, an Environmental Site Assessment relating to each
Mortgaged Property and prepared no earlier than 12 months prior to the Closing
Date was obtained and reviewed by the Seller in connection with the origination
of such Mortgage Loan and a copy is included in the Servicing File.
(b) Such Environmental Site Assessment does not identify, and the
Seller has no actual knowledge of, any adverse circumstances or conditions
with respect to or affecting the Mortgaged Property that would constitute
or result in a material violation of any Environmental Laws, other than
with respect to a Mortgaged Property (i) for which environmental insurance
(as set forth on Schedule II hereto) is maintained, or (ii) which would
require any expenditure greater than 5% of the outstanding principal
balance of such Mortgage Loan to achieve or maintain compliance in all
material respects with any Environmental Laws for which adequate sums, but
in no event less than 125% of the estimated cost as set forth in the
Environmental Site Assessment, were reserved in connection with the
origination of the Mortgage Loan and for which the related Mortgagor has
covenanted to perform, or (iii) as to which the related Mortgagor or one of
its affiliates is currently taking or required to take such actions (which
may be the implementation of an operations and maintenance plan), if any,
with respect to such conditions or circumstances as have been recommended
by the Environmental Site Assessment or required by the applicable
governmental authority, or (iv) as to which another responsible party not
related to the Mortgagor with assets reasonably estimated by the Seller at
the time of origination to be sufficient to effect all necessary or
required remediation identified in a notice or other action from the
applicable governmental authority is currently taking or required to take
such actions, if any, with respect to such regulatory authority's order or
directive, or (v) as to which such conditions or circumstances identified
in the Environmental Site Assessment were investigated further and based
upon such additional investigation, an environmental consultant recommended
no further investigation or remediation, or (vi) as to which a party with
financial resources reasonably estimated to be adequate to cure the
condition or circumstance provided a guaranty or indemnity to the related
Mortgagor or to the mortgagee to cover the costs of any required
investigation, testing, monitoring or remediation, or (vii) as to which the
related Mortgagor or other responsible party obtained a "No Further Action"
letter or other evidence reasonably acceptable to a prudent commercial
mortgage lender that applicable federal, state, or local governmental
authorities had no current intention of taking any action, and are not
requiring any action, in respect of such condition or circumstance, or
(viii) which would not require substantial cleanup, remedial action or
other extraordinary response under any Environmental Laws reasonably
estimated to cost in excess of 5% of the outstanding principal balance of
such Mortgage Loan.
(c) To the Seller's actual knowledge and in reliance upon the
Environmental Site Assessment, except for any Hazardous Materials being
handled in accordance with applicable Environmental Laws and except for any
Hazardous Materials present at such Mortgaged Property for which, to the
extent that an Environmental Site Assessment recommends remediation or
other action, (A) there exists either (i) environmental insurance with
respect to such Mortgaged Property (as set forth on Schedule II hereto) or
(ii) an amount in an escrow account pledged as security for such Mortgage
Loan under the relevant Mortgage Loan documents equal to no less than 125%
of the amount estimated in such Environmental Site Assessment as sufficient
to pay the cost of such remediation or other action in accordance with such
Environmental Site Assessment or (B) one of the statements set forth in
clause (b) above is true, (1) such Mortgaged Property is not being used for
the treatment or disposal of Hazardous Materials; (2) no Hazardous
Materials are being used or stored or generated for off-site disposal or
otherwise present at such Mortgaged Property other than Hazardous Materials
of such types and in such quantities as are customarily used or stored or
generated for off-site disposal or otherwise present in or at properties of
the relevant property type; and (3) such Mortgaged Property is not subject
to any environmental hazard (including, without limitation, any situation
involving Hazardous Materials) which under the Environmental Laws would
have to be eliminated before the sale of, or which could otherwise
reasonably be expected to adversely affect in more than a de minimis manner
the value or marketability of, such Mortgaged Property.
(d) The related Mortgage or other Mortgage Loan documents contain
covenants on the part of the related Mortgagor requiring its compliance
with any present or future federal, state and local Environmental Laws and
regulations in connection with the Mortgaged Property. The related
Mortgagor (or an affiliate thereof) has agreed to indemnify, defend and
hold the Seller, and its successors and assigns, harmless from and against
any and all losses, liabilities, damages, penalties, fines, expenses and
claims of whatever kind or nature (including attorneys' fees and costs)
imposed upon or incurred by or asserted against any such party resulting
from a breach of the environmental representations, warranties or covenants
given by the related Mortgagor in connection with such Mortgage Loan.
(e) Each of the Mortgage Loans which is covered by a lender's
environmental insurance policy obtained in lieu of an Environmental Site
Assessment ("In Lieu of Policy") is identified on Schedule I, and each In
Lieu of Policy is in an amount equal to 125% of the outstanding principal
balance of the related Mortgage Loan and has a term ending no sooner than
the maturity date (or, in the case of an ARD Loan, the final maturity date)
of the related Mortgage Loan. All environmental assessments or updates that
were in the possession of the Seller and that relate to a Mortgaged
Property identified on Schedule I as being insured by an In Lieu of Policy
have been delivered to or disclosed to the In Lieu of Policy carrier
issuing such policy prior to the issuance of such policy.
(22) As of the date of origination of the related Mortgage Loan, and,
as of the Closing Date, the Mortgaged Property is covered by insurance policies
providing the coverage described below and the Mortgage Loan documents permit
the mortgagee to require the coverage described below. All premiums with respect
to the Insurance Policies insuring each Mortgaged Property have been paid in a
timely manner or escrowed to the extent required by the Mortgage Loan documents,
and the Seller has not received (1) any notice of non payment of premiums that
has not been cured in a timely manner by the related Mortgagor or (2) any notice
of cancellation or termination of such Insurance Policies. The relevant
Servicing File contains the Insurance Policy required for such Mortgage Loan or
a certificate of insurance for such Insurance Policy. Each Mortgage requires
that the related Mortgaged Property and all improvements thereon are covered by
Insurance Policies providing (a) coverage in the amount of the lesser of full
replacement cost of such Mortgaged Property and the outstanding principal
balance of the related Mortgage Loan (subject to customary deductibles) for
losses sustained by fire and against loss or damage by other risks and hazards
covered by a standard extended coverage insurance policy providing "special"
form coverage in an amount sufficient to prevent the Mortgagor from being deemed
a co-insurer and to provide coverage on a full replacement cost basis of such
Mortgaged Property (in some cases exclusive of excavations, underground
utilities, foundations and footings) with an agreed amount endorsement to avoid
application of any coinsurance provision; such policies contain a standard
mortgage clause naming mortgagee and its successor in interest as additional
insureds or loss payee, as applicable; (b) business interruption or rental loss
insurance in an amount at least equal to (i) 12 months of operations or (ii) in
some cases all rents and other amounts customarily insured under this type of
insurance of the Mortgaged Property; (c) flood insurance (if any portion of the
improvements on the Mortgaged Property is located in an area identified by the
Federal Emergency Management Agency ("FEMA"), with respect to certain Mortgage
Loans and the Secretary of Housing and Urban Development with respect to
other Mortgage Loans, as having special flood hazards) in an amount not less
than amounts prescribed by FEMA; (d) workers' compensation, if required by law;
(e) comprehensive general liability insurance in an amount consistent with the
standard utilized by the Seller with respect to loans it holds for its own
account, but not less than $1 million; all such Insurance Policies contain
clauses providing they are not terminable and may not be terminated without
thirty (30) days prior written notice to the mortgagee (except where applicable
law requires a shorter period or except for nonpayment of premiums, in which
case not less than ten (10) days prior written notice to the mortgagee is
required). In addition, each Mortgage permits the related mortgagee to make
premium payments to prevent the cancellation thereof and shall entitle such
mortgagee to reimbursement therefor. Any insurance proceeds in respect of a
casualty loss or taking will be applied either to the repair or restoration of
all or part of the related Mortgaged Property or the payment of the outstanding
principal balance of the related Mortgage Loan together with any accrued
interest thereon. The related Mortgaged Property is insured by an Insurance
Policy, issued by an insurer meeting the requirements of such Mortgage Loan and
having a claims-paying or financial strength rating of at least "A-:V" from A.M.
Best Company or "A-" (or the equivalent) from Standard & Poor's Ratings
Services, Fitch, Inc. or Xxxxx'x Investors Service, Inc. An architectural or
engineering consultant has performed an analysis of each of the Mortgaged
Properties located in seismic zones 3 or 4 in order to evaluate the structural
and seismic condition of such property, for the sole purpose of assessing the
probable maximum loss ("PML") for the Mortgaged Property in the event of an
earthquake. In such instance, the PML was based on a return period of not less
than 100 years, an exposure period of 50 years and a 10% probability of
exceedence. If the resulting report concluded that the PML would exceed 20% of
the amount of the replacement costs of the improvements, earthquake insurance on
such Mortgaged Property was obtained by an insurer rated at least "A-:V" by A.M.
Best Company or "A-" (or the equivalent) from Standard & Poor's Ratings
Services, Fitch, Inc. or Xxxxx'x Investors Service, Inc. To the Seller's actual
knowledge, the insurer issuing each of the foregoing insurance policies is
qualified to write insurance in the jurisdiction where the related Mortgaged
Property is located.
(23) All amounts required to be deposited by each Mortgagor at
origination under the related Mortgage Loan documents have been deposited or
have been withheld from the related Mortgage Loan proceeds at origination and
there are no deficiencies with regard thereto.
(24) Whether or not a Mortgage Loan was originated by the Seller, to
the Seller's knowledge, with respect to each Mortgage Loan originated by the
Seller and each Mortgage Loan originated by any Person other than the Seller, as
of the date of origination of the related Mortgage Loan, and, to the Seller's
actual knowledge, with respect to each Mortgage Loan originated by the Seller
and any prior holder of the Mortgage Loan, as of the Closing Date, there are no
actions, suits, arbitrations or governmental investigations or proceedings by or
before any court or other governmental authority or agency now pending against
or affecting the Mortgagor under any Mortgage Loan or any of the Mortgaged
Properties which, if determined against such Mortgagor or such Mortgaged
Property, would materially and adversely affect the value of such Mortgaged
Property, the security intended to be provided with respect to the related
Mortgage Loan, or the ability of such Mortgagor and/or the current use of such
Mortgaged Property to generate net cash flow to pay principal, interest and
other amounts due under the related Mortgage Loan; and to the Seller's actual
knowledge there are no such actions, suits or proceedings threatened against
such Mortgagor.
(25) The origination practices used by the Seller or, to its knowledge,
any prior holder of the related Mortgage Note with respect to such Mortgage Loan
have been in all material respects legal and have met customary industry
standards and since origination, the Mortgage Loan has been serviced in all
material respects in a legal manner in conformance with customary industry
standards.
(26) The originator of the Mortgage Loan or the Seller has inspected or
caused to be inspected each related Mortgaged Property within the 12 months
prior to the Closing Date.
(27) The Mortgage Loan documents require the Mortgagor to provide the
holder of the Mortgage Loan with at least annual operating statements, financial
statements and except for Mortgage Loans for which the related Mortgaged
Property is leased to a single tenant, rent rolls.
(28) All escrow deposits and payments required by the terms of each
Mortgage Loan are in the possession, or under the control of the Seller (except
to the extent they have been disbursed for their intended purposes), and all
amounts required to be deposited by the applicable Mortgagor under the related
Mortgage Loan documents have been deposited, and there are no deficiencies with
regard thereto (subject to any applicable notice and cure period). All of the
Seller's interest in such escrows and deposits will be conveyed by the Seller to
the Purchaser hereunder.
(29) No two or more Mortgage Loans representing, in the aggregate, more
than 5% of the aggregate outstanding principal amount of all the mortgage loans
included in the Trust Fund have the same Mortgagor or, to the Seller's
knowledge, are to Mortgagors which are entities controlled by one another or
under common control.
(30) Each Mortgagor with respect to a Mortgage Loan with a principal
balance as of the Cut-off Date in excess of $15,000,000 included in the Trust
Fund is an entity whose organizational documents or related Mortgage Loan
documents provide that it is, and at least so long as the Mortgage Loan is
outstanding will continue to be, a Single Purpose Entity. For this purpose,
"Single Purpose Entity" shall mean a Person, other than an individual, whose
organizational documents or related Mortgage Loan documents provide that it
shall engage solely in the business of owning and operating the Mortgaged
Property and which does not engage in any business unrelated to such property
and the financing thereof, does not have any assets other than those related to
its interest in the Mortgaged Property or the financing thereof or any
indebtedness other than as permitted by the related Mortgage or the other
Mortgage Loan documents, and the organizational documents of which require that
it have its own separate books and records and its own accounts, in each case
which are separate and apart from the books and records and accounts of any
other Person.
(31) The gross proceeds of each Mortgage Loan to the related Mortgagor
at origination did not exceed the non-contingent principal amount of the
Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest in
real property having a fair market value (i) at the date the Mortgage Loan was
originated at least equal to 80% of the original principal balance of the
Mortgage Loan or (ii) at the Closing Date at least equal to 80% of the original
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (A) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (B) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in sub-clauses (a)(i) and (a)(ii) of this clause (31)
shall be made on a pro rata basis in accordance with the fair market values of
the Mortgaged Properties securing such cross-collateralized Mortgage Loan); or
(b) substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)). If the Mortgage Loan was "significantly modified" prior to
the Closing Date so as to result in a taxable exchange under Section 1001 of the
Code, it either (x) was modified as a result of the default or reasonably
foreseeable default of such Mortgage Loan or (y) satisfies the provisions of
either sub-clause (a)(i) above (substituting the date of the last such
modification for the date the Mortgage Loan was originated) or sub-clause
(a)(ii), including the proviso thereto. The Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (but without
regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats
certain defective mortgage loans as qualified mortgages). Any prepayment premium
and yield maintenance charges applicable to the Mortgage Loan constitute
"customary prepayment penalties" within the meaning of Treasury Regulations
Section 1.860G-1(b)(2).
(32) Each of the Mortgage Loans contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if, without the prior written consent of the holder of the
Mortgage Loan, the property subject to the Mortgage, or any controlling interest
therein, is directly or indirectly transferred or sold (except that it may
provide for transfers by devise, descent or operation of law upon the death of a
member, manager, general partner or shareholder of a Mortgagor and that it may
provide for transfers subject to the Mortgage Loan holder's approval of
transferee, transfers of worn out or obsolete furnishings, fixtures, or
equipment promptly replaced with property of equivalent value and functionality,
transfers of leases entered into in accordance with the Mortgage Loan documents,
transfers to affiliates, transfers to family members for estate planning
purposes, transfers among existing members, partners or shareholders in
Mortgagors or transfers of passive interests so long as the key principals or
general partner retains control). The Mortgage Loan documents contain a "due on
encumbrance" clause, which provides for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan if the property subject to the
Mortgage or any controlling interest in the Mortgagor is further pledged or
encumbered, unless the prior written consent of the holder of the Mortgage Loan
is obtained (except that it may provide for assignments subject to the Mortgage
Loan holder's approval of transferee, transfers to affiliates or transfers of
passive interests so long as the key principals or general partner retains
control). The Mortgage or Mortgage Note requires the Mortgagor to pay all
reasonable out-of-pocket fees and expenses associated with securing the consent
or approval of the holder of the Mortgage for a waiver of a "due on sale" or
"due on encumbrance" clause or a defeasance provision. As of the Closing Date,
the Seller holds no preferred equity interest in any Mortgagor and the Seller
holds no mezzanine debt related to such Mortgaged Property.
(33) Except with respect to the AB Mortgage Loans, each Mortgage Loan
is a whole loan and not a participation interest in a mortgage loan.
(34) Each Mortgage Loan containing provisions for defeasance of
mortgage collateral provides that: defeasance may not occur any earlier than two
years after the Closing Date; and requires or provides (i) the replacement
collateral consist of U.S. "government securities," within the meaning of
Treasury Regulations Section 1.860 G-2(a)(8)(i), in an amount sufficient to make
all scheduled payments under the Mortgage Note when due (up to the maturity date
for the related Mortgage Loan, the Anticipated Repayment Date for ARD Loans or
the date on which the Mortgagor may prepay the related Mortgage Loan without
payment of any prepayment penalty); (ii) the loan may be assumed by a Single
Purpose Entity approved by the holder of the Mortgage Loan; (iii) counsel
provide an opinion that the trustee has a perfected security interest in such
collateral prior to any other claim or interest; and (iv) such other documents
and certifications as the mortgagee may reasonably require which may include,
without limitation, (A) a certification that the purpose of the defeasance is to
facilitate the disposition of the mortgaged real property or any other customary
commercial transaction and not to be part of an arrangement to collateralize a
REMIC offering with obligations that are not real estate mortgages and (B) a
certification from an independent certified public accountant that the
collateral is sufficient to make all scheduled payments under the Mortgage Note
when due. Each Mortgage Loan containing provisions for defeasance provides that,
in addition to any cost associated with defeasance, the related Mortgagor shall
pay, as of the date the mortgage collateral is defeased, all scheduled and
accrued interest and principal due as well as an amount sufficient to defease in
full the Mortgage Loan (except as contemplated in clause (35) hereof). In
addition, if the related Mortgage Loan permits defeasance, then the Mortgage
Loan documents provide that the related Mortgagor shall (x) pay all reasonable
fees associated with the defeasance of the Mortgage Loan and all other
reasonable expenses associated with the defeasance, or (y) provide all opinions
required under the related Mortgage Loan documents, and in the case of any
Mortgage Loan with an outstanding principal balance as of the Cut-off Date of
$40,000,000 or greater, (a) a REMIC opinion and (b) rating agency letters
confirming that no downgrade or qualification shall occur as a result of the
defeasance.
(35) In the event that a Mortgage Loan is secured by more than one
Mortgaged Property, then, in connection with a release of less than all of such
Mortgaged Properties, a Mortgaged Property may not be released as collateral for
the related Mortgage Loan unless, in connection with such release, an amount
equal to not less than 125% of the Allocated Loan Amount for such Mortgaged
Property is prepaid or, in the case of a defeasance, an amount equal to not less
than 125% of the Allocated Loan Amount is defeased through the deposit of
replacement collateral (as contemplated in clause (34) hereof) sufficient to
make all scheduled payments with respect to such defeased amount, or such
release is otherwise in accordance with the terms of the Mortgage Loan
documents.
(36) Each Mortgaged Property is owned by the related Mortgagor, except
for Mortgaged Properties which are secured in whole or in a part by a Ground
Lease and for out-parcels, and is used and occupied for commercial or
multifamily residential purposes in accordance with applicable law.
(37) Any material non-conformity with applicable zoning laws
constitutes a legal non-conforming use or structure which, in the event of
casualty or destruction, may be restored or repaired to the full extent of the
use or structure at the time of such casualty, or for which law and ordinance
insurance coverage has been obtained in amounts consistent with the standards
utilized by the Seller.
(38) Neither the Seller nor any affiliate thereof has any obligation to
make any capital contributions to the related Mortgagor under the Mortgage Loan.
The Mortgage Loan was not originated for the sole purpose of financing the
construction of incomplete improvements on the related Mortgaged Property.
(39) No court of competent jurisdiction will determine in a final
decree that fraud with respect to the Mortgage Loans has taken place on the part
of the Seller or, to the Seller's actual knowledge, on the part of any
originator, in connection with the origination of such Mortgage Loan.
(40) If the related Mortgage or other Mortgage Loan documents provide
for a grace period for delinquent Monthly Payments, such grace period is no
longer than ten (10) days from the applicable payment date or, with respect to
acceleration or the commencement of the accrual of default interest under any
Mortgage Loan, five (5) days after notice to the Mortgagor of default.
(41) The following statements are true with respect to the related
Mortgaged Property: (a) the Mortgaged Property is located on or adjacent to a
dedicated road or has access to an irrevocable easement permitting ingress and
egress and (b) the Mortgaged Property is served by public or private utilities,
water and sewer (or septic facilities) appropriate for the use in which the
Mortgaged Property is currently being utilized.
(42) None of the Mortgage Loan documents contain any provision that
expressly excuses the related borrower from obtaining and maintaining insurance
coverage for acts of terrorism or, in circumstances where terrorism insurance is
not expressly required, the mortgagee is not prohibited from requesting that the
related borrower maintain such insurance, in each case, to the extent such
insurance coverage is generally available for like properties in such
jurisdictions at commercially reasonable rates. Each Mortgaged Property is
insured by a "standard extended coverage" casualty insurance policy that does
not contain an express exclusion for (or, alternatively, is covered by a
separate policy that insures against property damage resulting from) acts of
terrorism.
(43) An appraisal of the related Mortgaged Property was conducted in
connection with the origination of such Mortgage Loan, and such appraisal
satisfied the guidelines in Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as in effect on the date such Mortgage
Loan was originated.
(44) Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, (b) to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent with
its capital markets conduit lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property, in each case in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the
improvements located at the Mortgaged Property, and not less than the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the Mortgaged Property, and the policy contains no provisions for a deduction
for depreciation.
Defined Terms:
The term "Allocated Loan Amount" shall mean, for each Mortgaged
Property, the portion of principal of the related Mortgage Loan allocated to
such Mortgaged Property for certain purposes (including determining the release
prices of properties, if permitted) under such Mortgage Loan as set forth in the
related loan documents. There can be no assurance, and it is unlikely, that the
Allocated Loan Amounts represent the current values of individual Mortgaged
Properties, the price at which an individual Mortgaged Property could be sold in
the future to a willing buyer or the replacement cost of the Mortgaged
Properties.
The term "Anticipated Repayment Date" shall mean the date on which all
or substantially all of any Excess Cash Flow is required to be applied toward
prepayment of the related Mortgage Loan and on which any such Mortgage Loan
begins accruing Excess Interest.
The term "ARD Loan" shall have the meaning assigned thereto in the
Pooling and Servicing Agreement.
The term "Environmental Site Assessment" shall mean a Phase I
environmental report meeting the requirements of the American Society for
Testing and Materials, and, if in accordance with customary industry standards a
reasonable lender would require it, a Phase II environmental report, each
prepared by a licensed third party professional experienced in environmental
matters.
The term "Excess Cash Flow" shall mean the cash flow from the Mortgaged
Property securing an ARD Loan after payments of interest (at the Mortgage
Interest Rate) and principal (based on the amortization schedule), and (a)
required payments for the tax and insurance fund and ground lease escrows fund,
(b) required payments for the monthly debt service escrows, if any, (c) payments
to any other required escrow funds and (d) payment of operating expenses
pursuant to the terms of an annual budget approved by the applicable Master
Servicer and discretionary (lender approved) capital expenditures.
The term "Excess Interest" shall mean any accrued and deferred interest
on an ARD Loan in accordance with the following terms. Commencing on the
respective Anticipated Repayment Date each ARD Loan (pursuant to its existing
terms or a unilateral option, as defined in Treasury Regulations under Section
1001 of the Code, in the Mortgage Loans exercisable during the term of the
Mortgage Loan) generally will bear interest at a fixed rate (the "Revised Rate")
per annum equal to the Mortgage Interest Rate plus a percentage specified in the
related Mortgage Loan documents. Until the principal balance of each such
Mortgage Loan has been reduced to zero (pursuant to its existing terms or a
unilateral option, as defined in Treasury Regulations under Section 1001 of the
Code, in the Mortgage Loans exercisable during the term of the Mortgage Loan),
such Mortgage Loan will only be required to pay interest at the Mortgage
Interest Rate and the interest accrued at the excess of the related Revised Rate
over the related Mortgage Interest Rate will be deferred (such accrued and
deferred interest and interest thereon, if any, is "Excess Interest").
The term "in reliance on" shall mean that:
(a) the Seller has examined and relied in whole or in part upon
one or more of the specified documents or other information in connection
with a given representation or warranty;
(b) that the information contained in such document or otherwise
obtained by the Seller appears on its face to be consistent in all material
respects with the substance of such representation or warranty;
(c) the Seller's reliance on such document or other information is
consistent with the standard of care exercised by prudent lending
institutions originating commercial mortgage loans; and
(d) although the Seller is under no obligation to verify
independently the information contained in any document specified as being
relied upon by it, the Seller believes the information contained therein to
be true, accurate and complete in all material respects and has no actual
knowledge of any facts or circumstances which would render reliance thereon
unjustified without further inquiry.
The term "Mortgage Interest Rate" shall mean the fixed rate of interest
per annum that each Mortgage Loan bears as of the Cut-off Date.
The term "Permitted Encumbrances" shall mean:
(a) the lien of current real property taxes, water charges, sewer
rents and assessments not yet delinquent or accruing interest or penalties;
(b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record acceptable to mortgage lending
institutions generally and referred to in the related mortgagee's title
insurance policy;
(c) other matters to which like properties are commonly subject,
and
(d) the rights of tenants, as tenants only, whether under ground
leases or space leases at the Mortgaged Property.
which together do not materially and adversely affect the related
Mortgagor's ability to timely make payments on the related Mortgage Loan,
which do not materially interfere with the benefits of the security
intended to be provided by the related Mortgage or the use, for the use
currently being made, the operation as currently being operated, enjoyment,
value or marketability of such Mortgaged Property, provided, however, that,
for the avoidance of doubt, Permitted Encumbrances shall exclude all pari
passu, second, junior and subordinated mortgages but shall not exclude
mortgages that secure other Mortgage Loans or Companion Loans that are
cross-collateralized with the related Mortgage Loan.
Other. For purposes of these representations and warranties, the term
"to the Seller's knowledge" shall mean that no officer, employee or agent of the
Seller responsible for the underwriting, origination or sale of the Mortgage
Loans or of any servicer responsible for servicing the Mortgage Loan on behalf
of the Seller, believes that a given representation or warranty is not true or
is inaccurate based upon the Seller's reasonable inquiry and during the course
of such inquiry, no such officer, employee or agent of the Seller has obtained
any actual knowledge of any facts or circumstances that would cause such person
to believe that such representation or warranty was inaccurate. Furthermore, all
information contained in documents which are part of or required to be part of a
Mortgage File shall be deemed to be within the Seller's knowledge. For purposes
of these representations and warranties, the term "to the Seller's actual
knowledge" shall mean that an officer, employee or agent of the Seller
responsible for the underwriting, origination and sale of the Mortgage Loans
does not actually know of any facts or circumstances that would cause such
person to believe that such representation or warranty was inaccurate.
EXHIBIT C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Exceptions to Representation 12
Mortgage Loan Exception
------------- ---------
Xxxx Retail Portfolio The Mortgage Loan documents permit the release of
an individual Mortgaged Property at a release price
of 115%, rather than 125%, of the allocated loan
amount.
Exceptions to Representation 18
Mortgage Loan Exception
------------- ---------
Xxxx Retail Portfolio Although the parcel identified in the loan
documents as the Bank parcel (identified as Tract
2-Parcel 12.01) was shown in the survey of the
Mortgaged Property, it was not included in the
collateral at origination as it was an additional
parcel that was given no material value by the
lender in the underwriting of the Mortgage Loan;
the parcel was sold by the borrower prior to
origination and is no longer owned by the borrower.
Exceptions to Representation 32
Mortgage Loan Exception
------------- ---------
Xxxx Retail Portfolio An equity owner of the borrower pledged its
ownership interest in the borrower as security for
an $8,000,000 mezzanine loan. An intercreditor
agreement between the Seller and the holder of the
mezzanine loan was executed.
7200 Fullerton The Mortgage Loan documents permit the principals
of the borrower to incur mezzanine debt, secured
by a pledge of their equity interests in the
borrower, subject to conditions including, but not
limited to, a combined DSCR of not less than
1.15x, a combined LTV ratio of not more than 85%,
lender consent to the identity of the mezzanine
lender and delivery of an intercreditor agreement
acceptable to the lender.
Exceptions to Representation 35
Mortgage Loan Exception
------------- ---------
Xxxx Retail Portfolio The Mortgage Loan documents permit the release of
an individual Mortgaged Property at a release price
of 115%, rather than 125%, of the allocated loan
amount.
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
March 1, 2007 (the "Agreement"), between the Company and X.X. Xxxxxx Chase
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 March 26, 2007 (collectively, the "Prospectus"), relating to
the offering of the Class A-1, Class A-1S, Class A-2, Class A-2S, Class A-2SFL,
Class A-3, Class A-3S, Class A-1A, Class X, Class A-M, Class A-MS, Class A-J,
Class A-JFL, Class A-JS, Class B-S, Class C-S and Class D-S Certificates, the
Private Placement Memorandum, dated March 26, 2007 (the "Privately Offered
Certificate Private Placement Memorandum"), relating to the offering of the
Class B, Class C, Class D, Class E, Class E-S, Class F, Class F-S, Class G,
Class G-S, Class H, Class H-S, Class J, Class K, Class L, Class M, Class N,
Class P and Class NR Certificates, and the Residual Private Placement
Memorandum, dated March 26, 2007 (together with the Privately Offered
Certificate Private Placement Memorandum, the "Private Placement Memoranda"),
relating to the offering of the Class R, Class MR 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 March,
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.
Paragraph 21(a) and (e):
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:
Paragraph 21(b) and (c):
None.
