EXHIBIT 10.7
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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 December 1, 2006
Fixed Rate Mortgage Loans
Series 2006-LDP9
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This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as of December 1, 2006, is among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as purchaser (the "Purchaser"), and AIG Mortgage Capital, LLC
("AIGMC"), as seller of the loans 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 loan 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 December 1, 2006 (the "Pooling and Servicing Agreement") among the
Purchaser, as depositor (the "Depositor"), Midland Loan Services, Inc., Capmark
Finance Inc. and Wachovia Bank, National Association, as master servicers (each,
a "Master Servicer"), LNR Partners, Inc., as special servicer (the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee") and
Xxxxx Fargo Bank, N.A., as paying agent (the "Paying Agent"), 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-3SFL, Class A-1A, Class X, Class A-M, Class A-MS, Class A-J, Class A-JS, Class
B, Class B-S, Class C, Class C-S, Class D and Class D-S Certificates (the
"Offered Certificates") to the underwriters (the "Underwriters") specified in
the underwriting agreement dated December 15, 2006 (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 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, the
initial purchaser (together with the Underwriters, the "Dealers") specified in
the certificate purchase agreement dated December 15, 2006 (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 $125,524,410 (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 December 15, 2006 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 any related 8-K Information (as defined in the
Underwriting Agreement), or items similar to the 8-K Information, 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/ Xxxxxxx X. Xxx
---------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
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
MORTGAGE LOAN SCHEDULE
JPMCC 2006-LDP9
Mortgage Loan Schedule (AIG)
Loan # Mortgagor Name Property Address City
------ ----------------------------------------------------------------- ---------------------------- ------------
99 Edgewater Shopping Center LLC 00 Xxxxxxx Xxxxxx Xxxxxxxxx
000 Xxxx/Xxxxx L.L.C. 000-000 Xxxx Xxxx Xxxxxx Xxxxxxxxxxxx
112 H-Cranford Conduit Limited Partnership 000 Xxxxxx Xxxxxx Xxxxxxxx
118 ARG Holdings I L.L.C. 00 Xxxxxxxxxxx Xxx Xxxxxxxxx
000 XX Ventures V TWG Illiana, L.P. Various Various
120.01 0000 Xxxx 00xx Xxxxxx Justice
120.02 0000 Xxxxxxxx Xxxxxxxxxxxx
120.03 0000 Xxxxx XX Xxxxx 00 Xxxxxxxxxxxx
120.04 000 Xxxx 00xx Xxxxxx Xxxxxxxxxxxx
120.05 0000-0000 Xxxxxxxx Xxxxxx Munster
000 XX Xxxxxxx, LLC d/b/a XX Xxxxxxx Management LLC 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx
123 Lakeside Office Park, LLC 0000 Xxxxxx Xxxxxx Xxxxxx
000 Xx. Xxxxx Xxxxxxxxxx Xxxxxxxx, XXX, Xxxxxxxx & 0000 Xxxxxxx Xxxx Xxxxxxxx
Kest Industries, LLC, GKHB
Royale Investments, L.P., South Gate Business and
Industrial Park Developers, L.P.
171 MJL Xxxxxx Xxxxxxx, LLC, MJL Packer Ventura, LLC, XX Xxxxxxx, LLC 000-000 Xxxxx Xxxxx Xxxx Ventura
207 Xxxxxx Xxxxxx 3056-3068 Hempstead Turnpike Levittown
Interest Rate
Loan # State Zip Code County Property Name Size Measure (%)
------ ------- -------- ------------ --------------------------------- ------ ----------- -------------
99 MD 21037 Xxxx Arundel Edgewater Village Shopping Center 00000 Xxxxxx Xxxx 0.00000
000 XX 00000 Dupage Springbrook Shopping Center 000000 Xxxxxx Xxxx 0.00000
000 XX 00000 Union 750 Walnut 000000 Xxxxxx Xxxx 0.00000
000 XX 00000 Xxxxxxxx 00 Xxxxxxxxxxx Xxx 75816 Square Feet 5.67000
120 Various Various Various TWG Illiana Portfolio 122329 Square Feet 6.98000
120.01 IL 60458 Xxxx 0000 Xxxx 00xx Xxxxxx 59959 Square Feet 6.98000
120.02 IN 46410 Lake 0000 Xxxxxxxx 00000 Xxxxxx Feet 6.98000
120.03 IN 46410 Lake 0000 Xxxxx XX Xxxxx 00 00000 Xxxxxx Feet 6.98000
120.04 IN 00000 Xxxx 000 Xxxx 00xx Xxxxxx 00000 Square Feet 6.98000
120.05 IN 46321 Lake 0000-0000 Xxxxxxxx Xxxxxx 0000 Xxxxxx Xxxx 0.00000
000 XX 00000 Xxxx 000 Xxxx Xxxxxxx Xxxxxx 125729 Square Feet 5.95000
123 CO 00000 Xxxxxxxxx Xxxxxxxx Xxxxxx Xxxx 116848 Square Feet 5.85000
124 MO 63114 St. Louis Fed Express 162161 Square Feet 5.91000
000 XX 00000 Xxxxxxx Xxxxxxx Retail Center 14586 Square Feet 5.95000
000 XX 00000 Nassau Hempstead Turnpike 36296 Square Feet 5.75000
Net Mortgage Maturity/ Amort. Rem. Monthly
Loan # Interest Rate Original Balance Cutoff Balance Term Rem. Term ARD Date Term Amort. Debt Service
------ ------------- ---------------- -------------- ---- --------- -------- ---- ------ ------------
99 6.10957 18,100,000 18,100,000 120 119 11/01/16 360 360 110,388
106 5.89957 16,000,000 15,983,950 120 119 11/01/16 360 359 95,517
112 5.42957 14,000,000 14,000,000 120 120 12/01/16 360 360 79,052
118 5.62957 13,000,000 13,000,000 120 120 12/01/16 360 360 75,205
120 6.95957 13,000,000 13,000,000 60 56 08/01/11 300 300 91,716
120.01 6,825,000 6,825,000 60 56 08/01/11 300 300
120.02 2,002,000 2,002,000 60 56 08/01/11 300 300
120.03 1,703,000 1,703,000 60 56 08/01/11 300 300
120.04 1,482,000 1,482,000 60 56 08/01/11 300 300
120.05 988,000 988,000 60 56 08/01/11 300 300
122 5.92957 12,500,000 12,500,000 120 119 11/05/16 360 360 74,542
123 5.82757 12,450,000 12,450,000 120 120 12/01/16 360 360 73,448
124 5.88957 11,500,000 11,500,000 120 120 12/01/16 0 0 57,424
171 5.90957 6,250,000 6,250,000 120 120 12/01/16 360 360 37,271
207 5.67957 4,500,000 4,500,000 120 120 12/01/16 300 300 28,310
Servicing ARD ARD Step Up Crossed Originator/
Loan # Fee Rate Accrual Type (Y/N) (%) Title Type Loan Loan Seller Guarantor
------ --------- ------------ ----- ----------- ---------- ------- ----------- -------------------------------------
99 0.05000 Actual/360 No Leasehold AIG Xxxxxxxxx Xxxxxxx Commercial
Corporation
106 0.06000 Actual/360 No Fee AIG Xxxxxxx Xxxxxxx and Xxxxxx X. Xxxxxx
112 0.02000 Actual/360 No Fee AIG Xxxxx Financial Corp.
118 0.04000 Actual/360 No Fee AIG Xxxxxx X. Xxxxxxx, Xxxxxx Xxxx
120 0.02000 Actual/360 No Fee AIG NL Ventures V, L.P.
120.01 No Fee AIG
120.02 No Fee AIG
120.03 No Fee AIG
120.04 No Fee AIG
120.05 No Fee AIG
122 0.02000 Actual/360 No Fee AIG Xxxxx Xxxxxxx
123 0.02200 Actual/360 No Fee AIG Xxxx Xxxxxx, Xxxxx Xxxxxx,
Lea Xxxxx Xxxxxx,
Xxxxxxx Xxxxxxx,
Xxxx Xxxxxxxx, Xxxxxxx Xxxxxx
124 0.02000 Actual/360 No Fee AIG Xxxx Xxxxxxxx, Xxx Xxxx,
Xxxxxx X. Xxxxxxx, Xxxxxx Xxxxxx
171 0.04000 Actual/360 No Fee AIG Xxxxx Xxxxxxxx, Xxxxx Xxxxx,
Xxxxxxx Heslov
207 0.07000 Actual/360 No Fee AIG Xxxxxx Xxxxxx
UPFRONT ESCROW
--------------------------------------------------------------------------------------------------
Letter Upfront Upfront Upfront Upfront Upfront Upfront
of CapEx Eng. Envir. TI/LC Upfront RE Ins. Other
Loan # Credit Reserve Reserve Reserve Reserve Tax Reserve Reserve Reserve
------ ----------- ---------- --------- ------- ---------- ----------- --------- ----------
99 No 0.00 0.00 0.00 0.00 35,504.00 2,909.40 206,438.84
106 No 0.00 0.00 0.00 0.00 71,750.08 7,337.46 0.00
112 No 0.00 0.00 0.00 0.00 98,690.58 33,795.84 0.00
118 No 0.00 0.00 0.00 125,000.00 39,289.59 0.00 41,667.00
120 1,467,948.0 0.00 0.00 0.00 0.00 122,852.15 0.00 0.00
120.01
120.02
120.03
120.04
120.05
122 No 75,000.00 0.00 0.00 50,000.00 126,139.44 0.00 0.00
123 No 0.00 28,125.00 0.00 300,000.00 149,103.80 18,149.56 250,000.00
124 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
171 No 223,350.00 0.00 0.00 0.00 19,000.00 0.00 171,549.00
207 No 0.00 0.00 0.00 0.00 77,549.82 0.00 0.00
MONTHLY ESCROW
----------------------------------------------------------------------
Monthly Monthly Monthly Monthly
Capex Envir. TI/LC Monthly RE Monthly Ins. Other Grace Lockbox
Loan # Reserve Reserve Reserve Tax Reserve Reserve Reserve Period In-place Property Type
------ -------- ------- -------- ----------- ------------ -------- ------ -------- -------------
99 9671.10 0.00 0.00 11834.67 323.27 3358.85 0 No Retail
106 0.00 0.00 15430.50 17937.52 2445.82 0.00 0 No Retail
112 0.00 0.00 0.00 30460.02 3755.09 0.00 0 No Industrial
118 0.00 0.00 0.00 13474.82 0.00 0.00 5 No Office
120 0.00 0.00 0.00 17550.31 0.00 0.00 0 Yes Office
120.01 0 Office
120.02 0 Office
120.03 0 Office
120.04 0 Office
120.05 0 Office
122 0.00 0.00 0.00 32018.96 0.00 0.00 0 No Office
123 2531.71 0.00 0.00 16567.09 1649.96 0.00 0 No Office
124 0.00 0.00 0.00 0.00 0.00 0.00 0 Yes Industrial
171 0.00 0.00 0.00 4750.00 0.00 0.00 0 No Retail
207 0.00 0.00 0.00 25849.94 0.00 0.00 0 No Retail
Remaining
Interest Final Amortization
Defeasance Accrual Loan Maturity Term for
Loan # Permitted Period Group Date Balloon Loans
------ ---------- ---------- ----- -------- -------------
99 Yes Actual/360 1 360
106 Yes Actual/360 1 360
112 Yes Actual/360 1 360
118 No Actual/360 1 360
120 No Actual/360 3 300
120.01 3 300
120.02 3 300
120.03 3 300
120.04 3 300
120.05 3 300
122 Yes Actual/360 1 360
123 Yes Actual/360 1 360
124 Yes Actual/360 1
171 Yes Actual/360 1 360
207 Yes Actual/360 1 300
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 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.
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
Note: The Mortgage Loans known as Edgewater Center has an Indemnity Deed of
Trust structure. The related borrower under such Mortgage Loan executed and
delivered the related note to the lender and is obligated to make payments
thereunder. The related property owner for each such Mortgage Loan executed an
Indemnity Deed of Trust and Security Agreement in favor of the lender,
guaranteeing all amounts payable by the borrower under the related note. With
respect to certain of the representations and warranties, with respect to these
Mortgage Loans, statements regarding the borrower relate to the property owner
of the related Mortgaged Property.
Exceptions to Representation 10(d)
Mortgage Loan Exception
Springbrook Shopping Center The terms of the Mortgage Loan were modified on
December 20, 2006 in order to correct an error
regarding the amounts required to be collected in
respect of the rollover reserve and capital
expenditure reserve.
Exceptions to Representation 16
Mortgage Loan Exception
000 Xxxx Xxxxxxx Xxxxxx The Mortgaged Property is legally non-conforming
with respect to the maximum floor area ratio. In
the event that the Mortgaged Property is
intentionally destroyed, it must be constructed in
compliance with the then applicable zoning laws.
Otherwise, any partial or total damage can be
rebuilt to the same condition as existed prior to
the casualty or destruction so long as it does not
increase such non-compliance. Law and ordinance
insurance coverage was in place at origination.
Hempstead Turnpike The Mortgaged Property is legally non-conforming
with respect to a deficiency of 50 parking spaces.
In the event that the Mortgaged Property is
intentionally destroyed, it must be constructed in
compliance with the then applicable zoning laws.
Otherwise, any partial or total damage can be
rebuilt to the same condition as existed prior to
the casualty or destruction so long as it does not
increase such non-compliance. Law and ordinance
insurance coverage was in place at origination.
Ventura Retail Center The Mortgaged Property is currently under
construction as a result of which certificates of
occupancy and other required permits have not been
obtained.
Exceptions to Representation 18
Mortgage Loan Exception
Ventura Retail Center The Mortgaged Property is currently under
construction as a result of which a survey has not
been obtained in respect of the improvements under
construction. A survey endorsement has been issued
based on the existing survey and site plans for the
improvements under construction.
Exceptions to Representation 20(d)
Mortgage Loan Exception
Edgewater Village Shopping The ground lease may be amended or modified without
Center the prior written consent of the mortgagee.
Exceptions to Representation 32
Mortgage Loan Exception
Ventura Retail Center The Mortgage Loan documents permit the owners of
direct or indirect interests in the borrower to
incur mezzanine debt, subject to conditions
including, but not limited to a combined DSCR of
not less than 1.15x, a combined LTV ratio of not
more than 80% and delivery of confirmation in
writing from each applicable rating agency that the
incurrence of such debt will not result in a
qualification, downgrade or withdrawal of any
rating assigned to the certificates.
In addition, the Mortgage Loan documents permit
transfers of tenancy in common interests among the
tenants in common.
Ventura Retail Center and The Mortgage Loan documents permit transfers of
Fed Express tenancy in common interests among the tenants in
common.
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 December 1, 2006 (the "Agreement"), between the Company and X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., and all of the representations and
warranties of the Company under the Agreement are true and correct in all
material respects on and as of the date hereof (or, in the case of any
particular representation or warranty set forth on Exhibit B to the Agreement,
as of such other date provided for in such representation or warranty) with the
same force and effect as if made on and as of the date hereof, subject to the
exceptions set forth in the Agreement (including Exhibit C thereto).
2. The Company has complied with all the covenants and satisfied
all the conditions on its part to be performed or satisfied under the Agreement
on or prior to the date hereof and no event has occurred which, with notice or
the passage of time or both, would constitute a default under the Agreement.
3. I have examined the information regarding the Mortgage Loans
in the Prospectus, dated September 22, 2006, as supplemented by the Prospectus
Supplement, dated December 15, 2006 (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-3SFL, Class A-1A, Class X, Class A-M, Class A-MS,
Class A-J, Class A-JS, Class B, Class B-S, Class C, Class C-S, Class D and Class
D-S Certificates, the Private Placement Memorandum, dated December 15, 2006 (the
"Privately Offered Certificate Private Placement Memorandum"), relating to the
offering of the 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
December 15, 2006 (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
December, 2006.
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:
None.
