J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER
EUROHYPO AG, NEW YORK BRANCH,
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 1, 2006
Fixed Rate Mortgage Loans
Series 2006-LDP9
This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as of December 1, 2006, is between J.P. Morgan Chase Commercial Mortgage
Securities Corp., as purchaser (the "Purchaser"), and Eurohypo AG, New York
Branch, as seller (the "Seller").
Capitalized terms used in this Agreement not defined herein shall
have the meanings ascribed to them in the Pooling and Servicing Agreement dated
as of 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
Wells 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 and the term "Mortgaged
Properties" refers to the properties securing such Mortgage Loans.
The Purchaser and the Seller wish to prescribe the manner of sale
of the Mortgage Loans from the Seller to the Purchaser and in consideration of
the premises and the mutual agreements hereinafter set forth, agree as follows:
SECTION 1. Sale and Conveyance of Mortgages; Possession of
Mortgage File. Effective as of the Closing Date and upon receipt of the purchase
price set forth in the immediately succeeding paragraph, the Seller does hereby
sell, transfer, assign, set over and convey to the Purchaser, without recourse
(subject to certain agreements regarding servicing as provided in the Pooling
and Servicing Agreement, subservicing agreements permitted thereunder and that
certain Servicing Rights Purchase Agreement, dated as of the Closing Date
between the applicable Master Servicer and the Seller) all of its right, title,
and interest in and to the Mortgage Loans including all interest and principal
received on or with respect to the Mortgage Loans after the Cut-off Date (other
than payments of principal and interest first due on the Mortgage Loans on or
before the Cut-off Date). Upon the sale of the Mortgage Loans, the ownership of
each related Mortgage Note, the Mortgage and the other contents of the related
Mortgage File will be vested in the Purchaser and immediately thereafter the
Trustee and the ownership of records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the Seller (other
than the records and documents described in the proviso to Section 3(a) hereof)
shall immediately vest in the Purchaser and immediately thereafter the Trustee.
The Seller's records will accurately reflect the sale of each Mortgage Loan to
the Purchaser. The Depositor will sell the Class 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 J.P.
Morgan 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 Mortgage Loans is being conducted
on an arms length basis and upon commercially reasonable terms. As the purchase
price for the Mortgage Loans, the Purchaser shall pay to the Seller or at the
Seller's direction in immediately available funds the sum of $608,205,574 (which
amount is inclusive of accrued interest and exclusive of the Seller's pro rata
share of the costs set forth in Section 9 hereof). The purchase and sale of the
Mortgage Loans shall take place on the Closing Date.
SECTION 2. Books and Records; Certain Funds Received After the
Cut-off Date. From and after the sale of the Mortgage Loans to the Purchaser,
record title to each Mortgage and the related Mortgage Note shall be transferred
to the Trustee in accordance with this Agreement. Any funds due after the
Cut-off Date in connection with a Mortgage Loan received by the Seller shall be
held in trust for the benefit of the Trustee as the owner of such Mortgage Loan
and shall be transferred promptly to the 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
Seller.
The transfer of each Mortgage Loan shall be reflected on the
Seller's balance sheets and other financial statements as a sale of the Mortgage
Loans by the Seller to the Purchaser. The Seller intends to treat the transfer
of each Mortgage Loan to the Purchaser as a sale for tax purposes.
The transfer of each Mortgage Loan shall be reflected on the
Purchaser's balance sheets and other financial statements as a purchase of the
Mortgage Loans by the Purchaser from the Seller. The Purchaser intends to treat
the transfer of each Mortgage Loan from the Seller as a purchase for tax
purposes.
SECTION 3. Delivery of Mortgage Loan Documents; Additional Costs
and Expenses. (a) The Purchaser hereby directs the Seller, and the Seller hereby
agrees, upon the transfer of the Mortgage Loans contemplated herein, to deliver
on the Closing Date to the Trustee or a Custodian appointed thereby, all
documents, instruments and agreements required to be delivered by the Purchaser
to the Trustee with respect to the Mortgage Loans under Sections 2.01(b) and
2.01(c) of the Pooling and Servicing Agreement, and meeting all the requirements
of such Sections 2.01(b) and 2.01(c), and such other documents, instruments and
agreements as the Purchaser or the Trustee shall reasonably request. In
addition, the Seller agrees to deliver or cause to be delivered to the
applicable Master Servicer, the Servicing File for each Mortgage Loan
transferred pursuant to this Agreement; provided that the Seller shall not be
required to deliver any draft documents, or any attorney client communications
which are privileged communications or constitute legal or other due diligence
analyses, or internal communications of the Seller or its affiliates, or credit
underwriting or other analyses or data.
(b) With respect to the transfer described in Section 1 hereof,
if the Mortgage Loan documents do not require the related Mortgagor to pay any
costs and expenses relating to any modifications to a related letter of credit
which modifications are required to effectuate such transfer (the "Transfer
Modification Costs"), then the Seller shall pay the Transfer Modification Costs
required to transfer the letter of credit to the Trustee as described in such
Section 1; provided that if the Mortgage Loan documents require the related
Mortgagor to pay any Transfer Modification Costs, such Transfer Modification
Costs shall be an expense of the Mortgagor unless such Mortgagor fails to pay
such Transfer Modification Costs after the 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 the
applicable Master Servicer shall give the Seller notice of such failure and the
amount of such Transfer Modification costs and the Seller shall pay such
Transfer Modification Costs.
SECTION 4. Treatment as a Security Agreement. The Seller,
concurrently with the execution and delivery hereof, has conveyed to the
Purchaser, all of its right, title and interest in and to the Mortgage Loans.
The parties intend that such conveyance of the Seller's right, title and
interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a purchase and sale and not a loan. If such conveyance is deemed to
be a pledge and not a sale, then the parties also intend and agree that the
Seller shall be deemed to have granted, and in such event does hereby grant, to
the Purchaser, a first priority security interest in all of its right, title and
interest in, to and under the Mortgage Loans, all payments of principal or
interest on such Mortgage Loans due after the Cut-off Date, all other payments
made in respect of such Mortgage Loans after the Cut-off Date (except to the
extent such payments were due on or before the Cut-off Date) and all proceeds
thereof and that this Agreement shall constitute a security agreement under
applicable law. If such conveyance is deemed to be a pledge and not a sale, the
Seller consents to the Purchaser hypothecating and transferring such security
interest in favor of the Trustee and transferring the obligation secured thereby
to the Trustee.
SECTION 5. Covenants of the Seller. The Seller covenants with the
Purchaser as follows:
(a) it shall record or cause a third party to record in the
appropriate public recording office for real property the intermediate
assignments of the Mortgage Loans and the Assignments of Mortgage from the
Seller to the Trustee in connection with the Pooling and Servicing Agreement.
All recording fees relating to the initial recordation of such intermediate
assignments and Assignments of Mortgage shall be paid by the Seller;
(b) it shall take any action reasonably required by the
Purchaser, the Trustee or the 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
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
A-1, A-2, A-3 and B thereto and the Diskette included therewith, with respect to
any information relating to the Mortgage Loans or the Seller, in order to make
the statements therein, in the light of the circumstances when the Prospectus
Supplement is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus Supplement, including Annexes A-1, A-2, A-3
and B thereto and the Diskette included therewith, with respect to any
information relating to the Mortgage Loans or the Seller, to comply with
applicable law, the Seller shall do all things necessary to assist the Depositor
to prepare and furnish, at the expense of the Seller (to the extent that such
amendment or supplement relates to the Seller, the Mortgage Loans listed on
Exhibit A and/or any information relating to the same, as provided by the
Seller), to the Underwriters such amendments or supplements to the Prospectus
Supplement as may be necessary, so that the statements in the Prospectus
Supplement as so amended or supplemented, including Annexes A-1, A-2, A-3 and B
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, will not, in the light of the
circumstances when the Prospectus is so amended or supplemented, be misleading
or so that the Prospectus Supplement, including Annexes A-1, A-2, A-3 and B
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, will comply with applicable law.
All terms used in this clause (c) and not otherwise defined herein shall have
the meaning set forth in the Indemnification Agreement, dated as of December 15,
2006 between the Purchaser and the Seller (the "Indemnification Agreement"); and
(d) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any Companion Loan related to a Serviced Whole Loan or any
Serviced Securitized Companion Loan that is deposited into an Other
Securitization or a Regulation AB Companion Loan Securitization, the depositor
in such Other Securitization or Regulation AB Companion Loan Securitization) and
the Trustee with any Additional Form 10-D Disclosure and any Additional Form
10-K Disclosure set forth next to the Purchaser's name on Schedule X and
Schedule Y of the Pooling and Servicing Agreement within the time periods set
forth in the Pooling and Servicing Agreement.
SECTION 6. Representations and Warranties.
(a) The Seller represents and warrants to the Purchaser as of the
Closing Date that:
(i) it is duly licensed and authorized to transact business in
the State of New York as a branch of a foreign bank under Article V of
the Banking Law of the United States;
(ii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iii) it has the power to execute, deliver and perform this
Agreement;
(iv) it is legally authorized to transact business in the State
of New York. The Seller is in compliance with the laws of each state in
which any Mortgaged Property is located to the extent necessary so that
a subsequent holder of the related Mortgage Loan (including, without
limitation, the Purchaser) that is in compliance with the laws of such
state would not be prohibited from enforcing such Mortgage Loan solely
by reason of any non-compliance by the Seller;
(v) the execution, delivery and performance of this Agreement by
the Seller have been duly authorized by all requisite action by the
Seller's board of directors and will not violate or breach any provision
of its organizational documents;
(vi) this Agreement has been duly executed and delivered by the
Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general
equitable principles regardless of whether enforcement is considered in
a proceeding in equity or at law);
(vii) there are no legal or governmental proceedings pending to
which the Seller is a party or of which any property of the Seller is
the subject which, if determined adversely to the Seller, would
reasonably be expected to adversely affect (A) the transfer of the
Mortgage Loans and the Mortgage Loan documents as contemplated herein,
(B) the execution and delivery by the Seller or enforceability against
the Seller of the Mortgage Loans or this Agreement, or (C) the
performance of the Seller's obligations hereunder;
(viii) it has no actual knowledge that any statement, report,
officer's certificate or other document prepared and furnished or to be
furnished by the Seller in connection with the transactions contemplated
hereby (including, without limitation, any financial cash flow models
and underwriting file abstracts furnished by the Seller) contains any
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading;
(ix) it is not, nor with the giving of notice or lapse of time or
both would be, in violation of or in default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which it is a party or by which it or any of its properties is bound,
except for violations and defaults which individually and in the
aggregate would not have a material adverse effect on the transactions
contemplated herein; the sale of the Mortgage Loans and the performance
by the Seller of all of its obligations under this Agreement and the
consummation by the Seller of the transactions herein contemplated do
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Seller is a party or by which the Seller is bound or to
which any of the property or assets of the Seller is subject, nor will
any such action result in any violation of the provisions of any
applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Seller, or
any of its properties, except for conflicts, breaches, defaults and
violations which individually and in the aggregate would not have a
material adverse effect on the transactions contemplated herein; and no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body
is required for the consummation by the Seller of the transactions
contemplated by this Agreement, other than any consent, approval,
authorization, order, license, registration or qualification that has
been obtained or made;
(x) it has either (A) not dealt with any Person (other than the
Purchaser or the Dealers or their respective affiliates or any servicer
of a Mortgage Loan) that may be entitled to any commission or
compensation in connection with the sale or purchase of the Mortgage
Loans or entering into this Agreement or (B) paid in full any such
commission or compensation (except with respect to any servicer of a
Mortgage Loan, any commission or compensation that may be due and
payable to such servicer if such servicer is terminated and does not
continue to act as a servicer); and
(xi) it is solvent and the sale of the Mortgage Loans hereunder
will not cause it to become insolvent; and the sale of the Mortgage
Loans is not undertaken with the intent to hinder, delay or defraud any
of the Seller's creditors.
(b) The Purchaser represents and warrants to the Seller as of the
Closing Date that:
(i) it is a corporation duly organized, validly existing, and in
good standing in the State of Delaware;
(ii) it is duly qualified as a foreign corporation in good
standing in all jurisdictions in which ownership or lease of its
property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not have a material
adverse effect on the Purchaser, and the Purchaser is conducting its
business so as to comply in all material respects with the applicable
statutes, ordinances, rules and regulations of each jurisdiction in
which it is conducting business;
(iii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iv) it has the power to execute, deliver and perform this
Agreement, and neither the execution and delivery by the Purchaser of
this Agreement, nor the consummation by the Purchaser of the
transactions herein contemplated, nor the compliance by the Purchaser
with the provisions hereof, will (A) conflict with or result in a breach
of, or constitute a default under, any of the provisions of the
certificate of incorporation or by-laws of the Purchaser or any of the
provisions of any law, governmental rule, regulation, judgment, decree
or order binding on the Purchaser or any of its properties, or any
indenture, mortgage, contract or other instrument or agreement to which
the Purchaser is a party or by which it is bound, or (B) result in the
creation or imposition of any lien, charge or encumbrance upon any of
the Purchaser's property pursuant to the terms of any such indenture,
mortgage, contract or other instrument or agreement;
(v) this Agreement constitutes a legal, valid and binding
obligation of the Purchaser enforceable against it in accordance with
its terms (except as enforcement thereof may be limited by (a)
bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or other laws affecting the enforcement of creditors' rights
generally and (b) general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or law));
(vi) there are no legal or governmental proceedings pending to
which the Purchaser is a party or of which any property of the Purchaser
is the subject which, if determined adversely to the Purchaser, might
interfere with or adversely affect the consummation of the transactions
contemplated herein and in the Pooling and Servicing Agreement; to the
best of the Purchaser's knowledge, no such proceedings are threatened or
contemplated by any governmental authorities or threatened by others;
(vii) it is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Purchaser or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(viii) it has not dealt with any broker, investment banker, agent
or other person, other than the Seller, the Dealers and their respective
affiliates, that may be entitled to any commission or compensation in
connection with the purchase and sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby;
(ix) all consents, approvals, authorizations, orders or filings
of or with any court or governmental agency or body, if any, required
for the execution, delivery and performance of this Agreement by the
Purchaser have been obtained or made; and
(x) it has not intentionally violated any provisions of the
United States Secrecy Act, the United States Money Laundering Control
Act of 1986 or the United States International Money Laundering
Abatement and Anti-Terrorism Financing Act of 2001.
(c) The Seller further makes the representations and warranties
as to the Mortgage Loans set forth in Exhibit B as of the Closing Date (or as of
such other date if specifically provided in the particular representation or
warranty), which representations and warranties are subject to the exceptions
thereto set forth in Exhibit C. Neither the delivery by the Seller of the
Mortgage Files, Servicing Files, or any other documents required to be delivered
under Section 2.01 of the Pooling and Servicing Agreement, nor the review
thereof or any other due diligence by the Trustee, any Master Servicer, the
Special Servicer, a Certificate Owner or any other Person shall relieve the
Seller of any liability or obligation with respect to any representation or
warranty or otherwise under this Agreement or constitute notice to any Person of
a Breach or Defect.
(d) Pursuant to this Agreement or Section 2.03(b) of the Pooling
and Servicing Agreement, the Seller and the Purchaser shall be given notice of
any Breach or Defect that materially and adversely affects the value of any
Mortgage Loan, the value of the related Mortgaged Property or the interests of
the Trustee or any Certificateholder therein.
(e) Upon notice pursuant to Section 6(d) above, the Seller shall,
not later than 90 days from the earlier of the Seller's receipt of the notice
or, in the case of a Defect or Breach relating to a Mortgage Loan not being a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, but
without regard to the rule of Treasury Regulation Section 1.860G-2(f)(2) that
causes a defective mortgage loan to be treated as a qualified mortgage, the
Seller's discovery of such Breach or Defect (the "Initial Resolution Period"),
(i) cure such Defect or Breach, as the case may be, in all material respects,
(ii) repurchase the affected Mortgage Loan at the applicable Repurchase Price
(as defined below) or (iii) substitute a Qualified Substitute Mortgage Loan (as
defined below) for such affected Mortgage Loan (provided that in no event shall
any such substitution occur later than the second anniversary of the Closing
Date) and pay the 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 the Seller to deliver to the Trustee or Custodian the
actual policy of lender's title insurance required pursuant to clause (ix) of
the definition of Mortgage File by a date not later than 18 months following the
Closing Date, if such Breach or Defect is capable of being cured but is not
cured within the Initial Resolution Period, and the Seller has commenced and is
diligently proceeding with the cure of such Breach or Defect within the Initial
Resolution Period, the Seller shall have an additional 90 days commencing
immediately upon the expiration of the Initial Resolution Period (the "Extended
Resolution Period") to complete such cure (or, failing such cure, to repurchase
the related Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as
described above); and provided, further, that with respect to the Extended
Resolution Period the Seller 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 the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such Breach or Defect will be cured
within the Extended Resolution Period. Notwithstanding the foregoing, any Defect
or Breach which causes any Mortgage Loan not to be a "qualified mortgage"
(within the meaning of Section 860G(a)(3) of the Code, without regard to the
rule of Treasury Regulations Section 1.860G-2(f)(2) which causes a defective
mortgage loan to be treated as a qualified mortgage) shall be deemed to
materially and adversely affect the interests of the holders of the Certificates
therein, and such Mortgage Loan shall be repurchased or a Qualified Substitute
Mortgage Loan substituted in lieu thereof without regard to the extended cure
period described in the preceding sentence. If the affected Mortgage Loan is to
be repurchased, the Seller shall remit the Repurchase Price (defined below) in
immediately available funds to the Trustee.
If any Breach pertains to a representation or warranty that the
related Mortgage Loan documents or any particular Mortgage Loan document
requires the related Mortgagor to bear the costs and expenses associated with
any particular action or matter under such Mortgage Loan document(s), then
Seller shall cure such Breach within the applicable cure period (as the same may
be extended) by reimbursing the Trust Fund (by wire transfer of immediately
available funds) the reasonable amount of any such costs and expenses incurred
by the 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, the Seller shall have the option to either repurchase
or substitute for the related Mortgage Loan as provided above or pay such costs
and expenses. Except as provided in the proviso to the immediately preceding
sentence, the Seller shall remit the amount of such costs and expenses and upon
its making such remittance, the Seller shall be deemed to have cured such Breach
in all respects. To the extent any fees or expenses that are the subject of a
cure by the Seller are subsequently obtained from the related Mortgagor, the
portion of the cure payment equal to such fees or expenses obtained from the
Mortgagor shall be returned to the Seller pursuant to Section 2.03(f) of the
Pooling and Servicing Agreement. Notwithstanding the foregoing, the sole remedy
with respect to any breach of the representation set forth in the second to last
sentence of clause (32) of Exhibit B hereto shall be payment by the Seller of
such costs and expenses without respect to the materiality of such breach.
Any of the following will cause a document in the Mortgage File
to be deemed to have a Defect and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interests of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity with a copy of the Mortgage
Note that appears to be regular on its face; (b) the absence from the Mortgage
File of the original signed Mortgage that appears to be regular on its face,
unless there is included in the Mortgage File a certified copy of the Mortgage
and a certificate stating that the original signed Mortgage was sent for
recordation; (c) the absence from the Mortgage File of the lender's title
insurance policy (or if the policy has not yet been issued, an original or copy
of a "marked up" written commitment or the pro-forma or specimen title insurance
policy or a commitment to issue the same pursuant to written escrow instructions
signed by the title insurance company) called for by clause (ix) of the
definition of "Mortgage File" in the Pooling and Servicing Agreement; (d) the
absence from the Mortgage File of any required letter of credit; (e) with
respect to any leasehold mortgage loan, the absence from the related Mortgage
File of a copy (or an original, if available) of the related Ground Lease; or
(f) the absence from the Mortgage File of any intervening assignments required
to create a complete chain of assignments to the Trustee on behalf of the Trust,
unless there is included in the Mortgage File a certified copy of the
intervening assignment and a certificate stating that the original intervening
assignments were sent for recordation; provided, however, 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 the Seller will be
required to repurchase or substitute for all of the remaining Crossed Loans in
the related Crossed Group as provided in the first paragraph of this Section
6(e) unless such other Crossed Loans in such Crossed Group satisfy the Crossed
Loan Repurchase Criteria, and the Mortgage Loan affected by the applicable
Defect or Breach and the Qualified Substitute Mortgage Loan, if any, satisfy all
other criteria for repurchase or substitution, as applicable, of Mortgage Loans
set forth herein. In the event that the remaining Crossed Loans satisfy the
aforementioned criteria, the Seller may elect either to repurchase or substitute
for only the affected Crossed Loan as to which the related Breach or Defect
exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. The Seller shall be responsible for the cost of any
Appraisal required to be obtained by the 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 the Seller (such approval
not to be unreasonably withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Trustee shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair
the ability of the other party to exercise its remedies with respect to the
Primary Collateral securing the Crossed Loans held by such party, then the
Seller and the Trustee shall forbear from exercising such remedies until the
Mortgage Loan documents evidencing and securing the relevant Crossed Loans can
be modified in a manner that removes the threat of material impairment as a
result of the exercise of remedies or some other accommodation can be reached.
Any reserve or other cash collateral or letters of credit securing the Crossed
Loans shall be allocated between such Crossed Loans in accordance with the
Mortgage Loan documents, or otherwise on a pro rata basis based upon their
outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan that remains in the Trust Fund is modified to terminate the related
cross collateralization and/or cross default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
any modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
The "Repurchase Price" with respect to any Mortgage Loan or REO
Loan to be repurchased pursuant to this Agreement and Section 2.03 of the
Pooling and Servicing Agreement, shall have the meaning given to the term
"Purchase Price" in the Pooling and Servicing Agreement.
A "Qualified Substitute Mortgage Loan" with respect to any
Mortgage Loan or REO Loan to be substituted pursuant to this Agreement and
Section 2.03 of the Pooling and Servicing Agreement, shall have the meaning
given to such term in the Pooling and Servicing Agreement.
A "Substitution Shortfall Amount" with respect to any Mortgage
Loan or REO Loan to be substituted pursuant to this Agreement and Section 2.03
of the Pooling and Servicing Agreement, shall have the meaning given to such
term in the Pooling and Servicing Agreement.
In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated hereby, (i) the Purchaser shall execute and deliver,
or cause the execution and delivery of, such endorsements and assignments,
without recourse, as shall be necessary to vest in the Seller the legal and
beneficial ownership of each repurchased Mortgage Loan or replaced Mortgage
Loan, as applicable, (ii) the Purchaser shall deliver, or cause the delivery, to
the Seller of all portions of the Mortgage File and other documents (including
the Servicing File) pertaining to such Mortgage Loan possessed by the Trustee,
or on the Trustee's behalf, and (iii) the Purchaser shall release, or cause to
be released, to the Seller any escrow payments and reserve funds held by the
Trustee, or on the Trustee's behalf, in respect of such repurchased or replaced
Mortgage Loans.
(f) The representations and warranties of the parties hereto
shall survive the execution and delivery and any termination of this Agreement
and shall inure to the benefit of the respective parties, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes or Assignment of
Mortgage or the examination of the Mortgage Files.
(g) Each party hereby agrees to promptly notify the other party
of any Breach of a representation or warranty contained in this Section 6. The
Seller's obligation to cure any Breach or Defect or repurchase or substitute for
the affected Mortgage Loan pursuant to Section 6(e) herein shall constitute the
sole remedy available to the Purchaser in connection with a Breach or Defect
(subject to the last sentence of the second paragraph of Section 6(e)). It is
acknowledged and agreed that the representations and warranties are being made
for risk allocation purposes only; provided, however, that no limitation of
remedy is implied with respect to the Seller's breach of its obligation to cure,
repurchase or substitute in accordance with the terms and conditions of this
Agreement.
SECTION 7. Conditions to Closing. The obligations of the
Purchaser to purchase the Mortgage Loans shall be subject to the satisfaction,
on or prior to the Closing Date, of the following conditions:
(a) Each of the obligations of the Seller required to be
performed by it at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with and all of the
representations and warranties of the Seller under this Agreement shall be true
and correct in all material respects as of the Closing Date, and no event shall
have occurred as of the Closing Date which, with notice or passage of time,
would constitute a default under this Agreement, and the Purchaser shall have
received a certificate to the foregoing effect signed by an authorized officer
of the Seller substantially in the form of Exhibit D.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of the Seller's articles of association and memorandum
of association, certified as of a recent date by the General Counsel of
the Seller;
(ii) an original or copy of a certificate of corporate existence
of the Seller issued by the State of New York Banking Department dated
not earlier than sixty days prior to the Closing Date;
(iii) an opinion of counsel of the Seller, in form and substance
satisfactory to the Purchaser and its counsel, substantially to the
effect that:
(A) the Seller is duly licensed and authorized to transact
business in the State of New York as a branch of a foreign bank
under Article V of the Banking Law of the United States;
(B) the Seller has the power to conduct its business as now
conducted and to incur and perform its obligations under this
Agreement and the Indemnification Agreement;
(C) all necessary corporate or other action has been taken
by the Seller to authorize the execution, delivery and
performance of this Agreement and the Indemnification Agreement
by the Seller and this Agreement is a legal, valid and binding
agreement of the Seller enforceable against the Seller, whether
such enforcement is sought in a procedure at law or in equity,
except to the extent such enforcement may be limited by
bankruptcy or other similar creditors' laws or principles of
equity and public policy considerations underlying the securities
laws, to the extent that such public policy considerations limit
the enforceability of the provisions of the Agreement which
purport to provide indemnification with respect to securities law
violations;
(D) the Seller's execution and delivery of, and the
Seller's performance of its obligations under, each of this
Agreement and the Indemnification Agreement do not and will not
conflict with the Seller's articles of association or by-laws or
conflict with or result in the breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Seller is a party or by
which the Seller is bound, or to which any of the property or
assets of the Seller is subject or violate any provisions of law
or conflict with or result in the breach of any order of any
court or any governmental body binding on the Seller;
(E) there is no litigation, arbitration or mediation
pending before any court, arbitrator, mediator or administrative
body, or to such counsel's actual knowledge, threatened, against
the Seller which (i) questions, directly or indirectly, the
validity or enforceability of this Agreement or the
Indemnification Agreement or (ii) would, if decided adversely to
the Seller, either individually or in the aggregate, reasonably
be expected to have a material adverse effect on the ability of
the Seller to perform its obligations under this Agreement or the
Indemnification Agreement; and
(F) no consent, approval, authorization, order, license,
registration or qualification of or with federal court or
governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by this Agreement and
the Indemnification Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications
as have been obtained; and
(iv) a letter from counsel of the Seller to the effect that
nothing has come to such counsel's attention that would lead such
counsel to believe that the Prospectus Supplement as of the date thereof
or as of the Closing Date contains, with respect to the Seller or the
Mortgage Loans, any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein
relating to the Seller or the Mortgage Loans, in the light of the
circumstances under which they were made, not misleading.
(c) The Offered Certificates shall have been concurrently issued
and sold pursuant to the terms of the Underwriting Agreement. The Private
Certificates shall have been concurrently issued and sold pursuant to the terms
of the Certificate Purchase Agreement.
(d) The Seller shall have executed and delivered concurrently
herewith the Indemnification Agreement.
(e) The Seller shall furnish the Purchaser with such other
certificates of its officers or others and such other documents and opinions to
evidence fulfillment of the conditions set forth in this Agreement as the
Purchaser and its counsel may reasonably request.
SECTION 8. Closing. The closing for the purchase and sale of the
Mortgage Loans shall take place at the office of Cadwalader, Wickersham & Taft
LLP, Charlotte, North Carolina, at 10:00 a.m., on the Closing Date or such other
place and time as the parties shall agree. The parties hereto agree that time is
of the essence with respect to this Agreement.
SECTION 9. Expenses. The Seller will pay its pro rata share (the
Seller's pro rata share to be determined according to the percentage that the
aggregate principal balance as of the Cut-off Date of all the Mortgage Loans
represents in proportion to the aggregate principal balance as of the Cut-off
Date of all the mortgage loans to be included in the Trust Fund) of all costs
and expenses of the Purchaser in connection with the transactions contemplated
herein, including (without duplication thereof), but not limited to: (i) the
costs and expenses of the Purchaser in connection with the purchase of the
Mortgage Loans and other mortgage loans; (ii) the costs and expenses of
reproducing and delivering the Pooling and Servicing Agreement and printing (or
otherwise reproducing) and delivering the Certificates; (iii) the reasonable and
documented fees, costs and expenses of the Trustee and its counsel incurred in
connection with the Trustee entering into the Pooling and Servicing Agreement;
(iv) the fees and disbursements of a firm of certified public accountants
selected by the Purchaser and the Seller with respect to numerical information
in respect of the Mortgage Loans, other mortgage loans and the Certificates
included in the Prospectus, the Memoranda (as defined in the Indemnification
Agreement) and 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 Thacher Proffitt & Wood LLP, counsel to the Underwriters, and
Cadwalader, Wickersham & Taft LLP, counsel to the Depositor.
SECTION 10. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement. Furthermore, the
parties shall in good faith endeavor to replace any provision held to be invalid
or unenforceable with a valid and enforceable provision which most closely
resembles, and which has the same economic effect as, the provision held to be
invalid or unenforceable.
SECTION 11. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to conflicts of
law principles and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
SECTION 12. No Third Party Beneficiaries. The parties do not
intend the benefits of this Agreement to inure to any third party except as
expressly set forth in Section 13.
SECTION 13. Assignment. The Seller hereby acknowledges that the
Purchaser has, concurrently with the execution hereof, executed and delivered
the Pooling and Servicing Agreement and that, in connection therewith, it has
assigned its rights hereunder to the Trustee for the benefit of the
Certificateholders to the extent set forth in the Pooling and Servicing
Agreement and that the rights so assigned may be further assigned to, and shall
inure to the benefit of, any successor trustee under the Pooling and Servicing
Agreement. The Seller hereby acknowledges its obligations (subject to the
provisions hereof), including that of expense reimbursement, pursuant to
Sections 2.01, 2.02 and 2.03 of the Pooling and Servicing Agreement. Except as
set forth hereinabove and in Sections 2.01, 2.02 and 2.03 of the Pooling and
Servicing Agreement, the representations and warranties of the Seller made
hereunder and the remedies provided hereunder with respect to Breaches or
Defects may not be further assigned by the Purchaser, the Trustee or any
successor trustee. No owner of a Certificate issued pursuant to the Pooling and
Servicing Agreement shall be deemed a successor or permitted assign because of
such ownership. This Agreement shall bind and inure to the benefit of, and be
enforceable by, the Seller, the Purchaser and their permitted successors and
permitted assigns. The warranties and representations and the agreements made by
the Seller herein shall survive delivery of the Mortgage Loans to the Trustee
until the termination of the Pooling and Servicing Agreement.
SECTION 14. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given upon
receipt by the intended recipient if personally delivered at or couriered, sent
by facsimile transmission or mailed by first class or registered mail, postage
prepaid, to (i) in the case of the Purchaser, J.P. Morgan Chase Commercial
Mortgage Securities Corp., 270 Park Avenue, New York, New York 10017, Attention:
Dennis Schuh, fax number (212) 834-6593 with a copy to Bianca Russo, fax number
(212) 834-6593, (ii) in the case of the Seller, Eurohypo AG, New York Branch,
1114 Avenue of the Americas, 29th Floor, New York, New York 10036, Attention:
Daniel Vinson, fax number: (212) 479-5800 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 Seller and the Purchaser shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. Except as set forth in
Section 6 herein, the rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any party would
otherwise have pursuant to law or equity. Except as set forth in Section 6
herein, no notice to or demand on any party in any case shall entitle such party
to any other or further notice or demand in similar or other circumstances, or
constitute a waiver of the right of either party to any other or further action
in any circumstances without notice or demand.
SECTION 18. No Partnership. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture between the parties
hereto. Nothing herein contained shall be deemed or construed as creating an
agency relationship between the Purchaser and the Seller and neither party shall
take any action which could reasonably lead a third party to assume that it has
the authority to bind the other party or make commitments on such party's
behalf.
SECTION 19. Miscellaneous. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
* * * * * *
IN WITNESS WHEREOF, the Purchaser and the Seller have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
J.P. MORGAN CHASE COMMERCIAL
MORTGAGE SECURITIES CORP., as
Purchaser
By: /s/ Charles Y. Lee
-----------------------------------
Name: Charles Y. Lee
Title: Vice President
EUROHYPO AG, NEW YORK BRANCH, as Seller
By: /s/ Daniel Vinson
-------------------------------------
Name: Daniel Vinson
Title: Managing Director
By: /s/ Nicholas Manolas
-------------------------------------
Name: Nicholas Manolas
Title: Director
EXHIBIT A
MORTGAGE LOAN SCHEDULE
JPMCC 2006-LDP9
Mortgage Loan Schedule (EHY)
c
Loan # Mortgagor Name Property Address
------ ----------------------------------------------------------------- -------------------------------------------------
6 Merchandise Mart L.L.C, MTS-MM LLC 200 World Trade Center
33 Sugarloaf Mills Limited Partnership 5900 Sugarloaf Parkway
47 TWC II-Prescott Mall, LLC 3250 Gateway Boulevard
51 Tysons Galleria L.L.C. 2001 International Drive
69 APF EDR, LP 6525 El Colegio Road and 811 Camino Pescadero
73 Universe at Sunrise Mountain, LLC 5250 Stewart Avenue
74 Direct Invest - 2 & 3 University, LLC, Direct Invest - 51 & 95 Sawyer Street
2 & 3 University 1, LLC, Direct Invest -
2 & 3 University 2, LLC, Direct Invest -
2 & 3 University 3, LLC, Direct Invest - 2 & 3 University 5, LLC
90 SPI Property Interests, LLC One & Two Nelson Parkway
94 CLK-HP 330-350 Motor Parkway, LLC 330, 350 & 352 Motor Parkway
111 STOIL 605, LLC, FORCE-FES, LLC, MLCO, LLC 605 West Olympic Boulevard
146 Jeffrey Madison, LLC 100, 102, 111, 121, 140, and 145 Research Boulevard
187 All Seven I, LLC, Berry-Bridge I, LLC 595 South Broadway
194 North Church Acquisitions LLC 2268 North Church Street
213 Honea Path Shopping Center, LLC 500 East Greer Street
226 PVP Silver Lake, L.L.C. 3270 West Silver Lake Road
246 PVP Bluffton, LLC 1975 North Main Street
250 Savannah Studio Partnership, Ltd. 700 Savannah Avenue
258 RDG Michaels, LLC; GFF Michaels, LLC 2700 Pleasant Valley Road
Loan # City State Zip Code County Property Name Size Measure Interest Rate (%)
------ ------------- ----- -------- ------------- --------------------------- ------- ----------- -----------------
6 Chicago IL 60654 Cook Merchandise Mart 3448680 Square Feet 5.57250
33 Lawrenceville GA 30043 Gwinnett Discover Mills 1184544 Square Feet 6.08332
47 Prescott AZ 86303 Yavapai Prescott Gateway 319348 Square Feet 5.78300
51 McLean VA 22102 Fairfax Tysons Galleria 309112 Square Feet 5.68567
69 Isla Vista CA 93117 Santa Barbara Fontainebleu 434 Beds 5.64100
73 Las Vegas NV 89110 Clark Broadstone Sunrise Mountain 344 Units 6.03778
74 Waltham MA 02453 Middlesex University Office Park 288127 Square Feet 6.13500
90 Mundelien IL 60060 Lake One & Two Nelson Parkway 85000 Square Feet 5.68000
94 Hauppauge NY 11788 Suffolk 330 & 350 Motor Parkway 132024 Square Feet 6.03200
111 Los Angeles CA 90015 Los Angeles Standard Oil Building 102587 Square Feet 5.90000
146 Madison AL 35758 Madison Madison Research Park 133748 Square Feet 6.15000
187 Hicksville NY 11801 Nassau Berry Bridge Corp 76000 Square Feet 5.67500
194 Burlington NC 27217 Alamance Cummings Park Plaza 197509 Square Feet 6.14000
213 Honea Path SC 29654 Anderson Honea Path Shopping Center 59785 Square Feet 5.82000
226 Fenton MI 48430 Genesee Walgreen's - Fenton 14490 Square Feet 5.78900
246 Bluffton IN 46714 Wells Walgreen's - Bluffton 14560 Square Feet 5.78900
250 McAllen TX 78503 Hidalgo Studio 6 Hotel 110 Rooms 5.84000
258 York PA 17402 York Michaels - York, PA 22180 Square Feet 6.08000
Net Mortgage Original Maturity/ Amort. Rem. Monthly Debt Servicing
Loan # Interest Rate Balance Cutoff Balance Term Rem. Term ARD Date Term Amort. Service Fee Rate
------ ------------- ----------- -------------- ---- --------- --------- ------ ------ ------------ ---------
6 5.55207 175,000,000 175,000,000 120 120 12/06/16 0 0 823,943 0.02000
33 6.06289 135,000,000 135,000,000 60 60 12/11/11 0 0 693,878 0.02000
47 5.76257 60,000,000 60,000,000 60 60 12/01/11 0 0 293,166 0.02000
51 5.66524 50,000,000 50,000,000 60 57 09/11/11 0 0 240,193 0.02000
69 5.62057 29,505,000 29,505,000 84 84 12/11/13 0 0 140,624 0.02000
73 6.01735 27,000,000 27,000,000 60 57 09/11/11 0 0 137,737 0.02000
74 6.11457 27,000,000 27,000,000 120 118 10/11/16 420 420 156,407 0.02000
90 5.65957 21,400,000 21,400,000 120 120 12/11/16 360 360 123,935 0.02000
94 6.01157 19,125,000 19,125,000 120 117 09/11/16 0 0 97,470 0.02000
111 5.87957 14,500,000 14,500,000 120 120 12/11/16 360 360 86,005 0.02000
146 6.12957 7,900,000 7,900,000 120 118 10/11/16 360 360 48,129 0.02000
187 5.65457 5,500,000 5,487,631 120 119 11/11/16 240 239 38,379 0.02000
194 6.11957 5,200,000 5,200,000 60 55 07/11/11 360 360 31,646 0.02000
213 5.79957 4,300,000 4,300,000 120 119 11/11/16 360 360 25,285 0.02000
226 5.76857 3,800,000 3,800,000 120 120 12/11/16 0 0 18,586 0.02000
246 5.76857 3,000,000 3,000,000 120 120 12/11/16 0 0 14,674 0.02000
250 5.81957 2,800,000 2,800,000 120 120 12/11/16 180 180 23,387 0.02000
258 6.05957 2,400,000 2,400,000 120 119 11/11/16 360 360 14,513 0.02000
Letter
Accrual ARD ARD Step Up Crossed Originator/ of
Loan # Type (Y/N) (%) Title Type Loan Loan Seller Guarantor Credit
------ ---------- ----- ----------- ------------- ------- ----------- ------------------------------------------ ----------
6 Actual/360 No Fee EHY Vornado Realty L.P. No
33 Actual/360 No Fee EHY The Mills Limited Partnership No
47 Actual/360 No Fee EHY The Macerich Partnership, L.P. No
51 Actual/360 No Fee/Leasehold EHY GGP/Homart, Inc. No
69 Actual/360 No Fee EHY APF EDR, LP No
73 Actual/360 No Fee EHY Henry Manoucheri No
74 Actual/360 No Leasehold EHY Direct Invest, L.L.C. No
90 Actual/360 No Fee EHY Paul Reisman, Steven Reisman, Alon Abady No
94 Actual/360 No Fee EHY Howard Parnes and Craig Koenigsberg No
111 Actual/360 No Fee EHY Marc Bohbot, Michele Bohbot, Shahriyar
Akhlaghfar, Leon Landver, Michael Landver No
146 Actual/360 No Fee EHY Scott Dew, Richard Pachulski, Nathan Rubin 300,000.00
187 Actual/360 No Fee EHY Joseph Lostritto and Glenn Lostritto No
194 Actual/360 No Fee EHY Edward Ross No
213 Actual/360 No Fee EHY Michael H. Weisser 75,000.00
226 Actual/360 No Fee EHY Paul V. Profeta No
246 Actual/360 No Fee EHY Paul V. Profeta No
250 Actual/360 No Fee EHY Vannie Cook Trusts No
258 Actual/360 No Fee EHY Roy D. Gottlieb No
UPFRONT ESCROW
----------------------------------------------------------------------------------------
Upfront Upfront Upfront Upfront Upfront Upfront
CapEx Eng. Envir. TI/LC Upfront RE Ins. Other
Loan # Reserve Reserve Reserve Reserve Tax Reserve Reserve Reserve
------ ------------ ---------- ------- ------------ ------------ ---------- -------
6 0.00 0.00 0.00 0.00 0.00 0.00 0.00
33 25,080.13 0.00 0.00 100,321.00 293,068.00 0.00 0.00
47 0.00 0.00 0.00 0.00 225,216.00 0.00 0.00
51 0.00 0.00 0.00 0.00 0.00 0.00 0.00
69 1,000,000.00 19,800.00 0.00 0.00 0.00 0.00 503,000.00
73 0.00 0.00 0.00 0.00 75,443.62 11,293.34 55,000.00
74 422,636.00 16,906.00 0.00 3,160,458.00 205,569.00 11,056.00 0.00
90 1,416.67 0.00 0.00 0.00 29,448.90 3,860.84 0.00
94 0.00 19,250.00 0.00 0.00 148,732.00 16,380.00 0.00
111 0.00 48,438.00 0.00 0.00 43,434.00 15,144.00 0.00
146 150,000.00 0.00 0.00 500,000.00 0.00 7,425.36 0.00
187 0.00 0.00 0.00 151,552.00 53,003.52 0.00 0.00
194 0.00 0.00 0.00 0.00 38,585.04 5,463.00 0.00
213 964.27 37,000.00 0.00 0.00 4,484.33 8,357.22 0.00
226 0.00 0.00 0.00 0.00 0.00 0.00 0.00
246 0.00 0.00 0.00 0.00 0.00 0.00 0.00
250 5,279.60 0.00 0.00 0.00 0.00 10,400.88 0.00
258 278.00 5,808.00 0.00 2,311.00 0.00 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
------ -------- ------- --------- ----------- ------------ ------- ------ -------- -------------
6 0.00 0.00 0.00 0.00 0.00 0.00 3 Yes Office
33 25080.13 0.00 100321.00 146534.00 0.00 0.00 0 Yes Retail
47 0.00 0.00 0.00 56304.00 0.00 0.00 5 Yes Retail
51 0.00 0.00 0.00 0.00 0.00 0.00 0 Yes Retail
69 0.00 0.00 0.00 0.00 0.00 0.00 0 Yes Multifamily
73 6994.67 0.00 0.00 0.00 5646.66 0.00 0 No Multifamily
74 0.00 0.00 0.00 68523.00 11056.00 0.00 0 Yes Office
90 1416.67 0.00 0.00 14724.45 1930.42 0.00 0 Yes Office
94 1638.00 0.00 0.00 37183.00 0.00 0.00 0 No Office
111 1483.29 0.00 0.00 21717.00 1893.00 0.00 0 Yes Office
146 2235.80 0.00 5416.67 6993.74 1856.34 0.00 0 No Office
187 0.00 0.00 0.00 17667.84 0.00 0.00 0 No Industrial
194 3127.00 0.00 2916.67 4823.13 1821.00 4918.42 0 No Retail
213 964.27 0.00 0.00 928.58 4484.33 0.00 0 No Retail
226 181.13 0.00 0.00 0.00 0.00 0.00 0 No Retail
246 182.00 0.00 0.00 0.00 0.00 0.00 0 No Retail
250 5279.60 0.00 0.00 10039.21 2600.22 0.00 0 No Hotel
258 278.00 0.00 2311.00 0.00 0.00 0.00 0 Yes Retail
Remaining
Interest Final Amortization
Defeasance Accrual Loan Maturity Term for
Loan # Permitted Period Group Date Balloon Loans
------ ---------- ---------- ----- -------- -------------
6 Yes Actual/360 1
33 Yes Actual/360 3
47 Yes Actual/360 3
51 Yes Actual/360 3
69 Yes Actual/360 3
73 Yes Actual/360 3
74 Yes Actual/360 1 420
90 Yes Actual/360 1 360
94 Yes Actual/360 1
111 Yes Actual/360 1 360
146 No Actual/360 1 360
187 Yes Actual/360 1 240
194 Yes Actual/360 3 360
213 Yes Actual/360 1 360
226 No Actual/360 1
246 No Actual/360 1
250 No Actual/360 1 180
258 No Actual/360 1 360
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
(1) No Mortgage Loan is 30 days or more delinquent in payment of
principal and interest (without giving effect to any applicable grace period in
the related Mortgage Note) and no Mortgage Loan has been 30 days or more
(without giving effect to any applicable grace period in the related Mortgage
Note) past due.
(2) Except with respect to the ARD Loans, which provide that the
rate at which interest accrues thereon increases after the Anticipated Repayment
Date, the Mortgage Loans (exclusive of any default interest, late charges or
prepayment premiums) are fixed rate mortgage loans with terms to maturity, at
origination or as of the most recent modification, as set forth in the Mortgage
Loan Schedule.
(3) The information pertaining to each Mortgage Loan set forth on
the Mortgage Loan Schedule is true and correct in all material respects as of
the Cut-off Date.
(4) At the time of the assignment of the Mortgage Loans to the
Purchaser, the Seller had good and marketable title to and was the sole owner
and holder of, each Mortgage Loan, free and clear of any pledge, lien,
encumbrance or security interest (subject to certain agreements regarding
servicing as provided in the Pooling and Servicing Agreement, subservicing
agreements permitted thereunder and that certain Servicing Rights Purchase
Agreement, dated as of the Closing Date between the applicable Master Servicer
and Seller) and such assignment validly and effectively transfers and conveys
all legal and beneficial ownership of the Mortgage Loans to the Purchaser free
and clear of any pledge, lien, encumbrance or security interest (subject to
certain agreements regarding servicing as provided in the Pooling and Servicing
Agreement, subservicing agreements permitted thereunder and that certain
Servicing Rights Purchase Agreement, dated as of the Closing Date between the
applicable Master Servicer and Seller).
(5) In respect of each Mortgage Loan, (A) in reliance on public
documents or certified copies of the incorporation or partnership or other
entity documents, as applicable, delivered in connection with the origination of
such Mortgage Loan, the related Mortgagor is an entity organized under the laws
of a state of the United States of America, the District of Columbia or the
Commonwealth of Puerto Rico and (B) as of the origination date, the Seller
(based on customary due diligence) had no knowledge, and since the origination
date, the Seller has no actual knowledge, that the related Mortgagor is a debtor
in any bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or similar proceeding.
(6) Each Mortgage Loan is secured by the related Mortgage which
establishes and creates a valid and subsisting first priority lien on the
related Mortgaged Property, or leasehold interest therein, comprising real
estate, free and clear of any liens, claims, encumbrances, participation
interests, pledges, charges or security interests subject only to Permitted
Encumbrances. Such Mortgage, together with any separate security agreement, UCC
Financing Statement or similar agreement, if any, establishes and creates a
first priority security interest in favor of the Seller in all personal property
owned by the Mortgagor that is used in, and is reasonably necessary to, the
operation of the related Mortgaged Property and, to the extent a security
interest may be created therein and perfected by the filing of a UCC Financing
Statement under the Uniform Commercial Code as in effect in the relevant
jurisdiction, the proceeds arising from the Mortgaged Property and other
collateral securing such Mortgage Loan, subject only to Permitted Encumbrances.
There exists with respect to such Mortgaged Property an assignment of leases and
rents provision, either as part of the related Mortgage or as a separate
document or instrument, which establishes and creates a first priority security
interest in and to leases and rents arising in respect of the related Mortgaged
Property, subject only to Permitted Encumbrances. Except for the holder of the
Companion Loan with respect to the AB Mortgage Loans, to the Seller's knowledge,
no person other than the related Mortgagor and the mortgagee own any interest in
any payments due under the related leases. The related Mortgage or such
assignment of leases and rents provision provides for the appointment of a
receiver for rents or allows the holder of the related Mortgage to enter into
possession of the related Mortgaged Property to collect rent or provides for
rents to be paid directly to the holder of the related Mortgage in the event of
a default beyond applicable notice and grace periods, if any, under the related
Mortgage Loan documents. As of the origination date, there were, and, to the
Seller's actual knowledge as of the Closing Date, there are, no mechanics' or
other similar liens or claims which have been filed for work, labor or materials
affecting the related Mortgaged Property which are or may be prior or equal to
the lien of the Mortgage, except those that are bonded or escrowed for or which
are insured against pursuant to the applicable Title Insurance Policy (as
defined below) and except for Permitted Encumbrances. No (a) Mortgaged Property
secures any mortgage loan not represented on the Mortgage Loan Schedule other
than a Companion Loan, (b) Mortgage Loan is cross-collateralized or
cross-defaulted with any other mortgage loan, other than a Mortgage Loan listed
on the Mortgage Loan Schedule or a Companion Loan, or (c) Mortgage Loan is
secured by property that is not a Mortgaged Property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rent, operating revenues or other personal property to the extent
that possession or control of such items or actions other than the recordation
of the Mortgage or the Assignment of Leases and Rents or the filing of UCC
Financing Statements are required in order to effect such perfection.
(7) The related Mortgagor under each Mortgage Loan has good and
indefeasible fee simple or, with respect to those Mortgage Loans described in
clause (20) hereof, leasehold title to the related Mortgaged Property comprising
real estate subject to any Permitted Encumbrances.
(8) The Seller has received an American Land Title Association
(ALTA) lender's title insurance policy or a comparable form of lender's title
insurance policy (or escrow instructions binding on the Title Insurer (as
defined below) and irrevocably obligating the Title Insurer to issue such title
insurance policy or a title policy commitment or pro-forma "marked up" at the
closing of the related Mortgage Loan and countersigned or otherwise approved by
the Title Insurer or its authorized agent) as adopted in the applicable
jurisdiction (the "Title Insurance Policy"), which was issued by a nationally
recognized title insurance company (the "Title Insurer") qualified to do
business in the jurisdiction where the applicable Mortgaged Property is located
(unless such jurisdiction is the State of Iowa), covering the portion of each
Mortgaged Property comprised of real estate and insuring that the related
Mortgage is a valid first lien in the original principal amount of the related
Mortgage Loan on the Mortgagor's fee simple interest (or, if applicable,
leasehold interest) in such Mortgaged Property comprised of real estate, subject
only to Permitted Encumbrances. Such Title Insurance Policy was issued in
connection with the origination of the related Mortgage Loan. No claims have
been made under such Title Insurance Policy. Such Title Insurance Policy is in
full force and effect and all premiums thereon have been paid and will provide
that the insured includes the owner of the Mortgage Loan and its successors
and/or assigns. No holder of the related Mortgage has done, by act or omission,
anything that would, and the Seller has no actual knowledge of any other
circumstance that would, impair the coverage under such Title Insurance Policy.
(9) The related Assignment of Mortgage and the related assignment
of the Assignment of Leases and Rents executed in connection with each Mortgage,
if any, have been recorded in the applicable jurisdiction (or, if not recorded,
have been submitted for recording or are in recordable form (but for the
insertion of the name and address of the assignee and any related recording
information which is not yet available to the Seller)) and constitute the legal,
valid and binding assignment of such Mortgage and the related Assignment of
Leases and Rents from the Seller to the Purchaser. The endorsement of the
related Mortgage Note by the Seller constitutes the legal, valid, binding and
enforceable (except as such enforcement may be limited by anti-deficiency laws
or bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law)) assignment of
such Mortgage Note, and together with such Assignment of Mortgage and the
related assignment of Assignment of Leases and Rents, legally and validly
conveys all right, title and interest in such Mortgage Loan and Mortgage Loan
documents to the Purchaser.
(10) (a) The Mortgage Loan documents for each Mortgage Loan
provide that such Mortgage Loan is non-recourse to the related parties thereto
except that the related Mortgagor and at least one individual or entity shall be
fully liable for actual losses, liabilities, costs and damages arising from
certain acts of the related Mortgagor and/or its principals specified in the
related Mortgage Loan documents, which acts generally include the following: (i)
fraud or intentional 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 Moody's 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 Moody's 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
Exceptions to Representation 6
------------------------------------------------------------------------------------------------
Mortgage Loan Exception
------------------------------------------------------------------------------------------------
Merchandise Mart In addition to the Mortgage Loan, the related Mortgaged
Property secures a pari passu A-note.
------------------------------------------------------------------------------------------------
Discover Mills In addition to the Mortgage Loan, the related Mortgaged
Property secures a subordinate B-note.
------------------------------------------------------------------------------------------------
Tysons Galleria In addition to the Mortgage Loan, the related Mortgaged
Property secures a pari passu A-note and a subordinate
B-note.
------------------------------------------------------------------------------------------------
Fontainebleu Apartments A portion of the student rental payments that are expressly
designated for food services as part of the students' food
plan are not included in the collateral securing the
Mortgage Loan. However, this is mitigated by the inclusion
of rent from the cafeteria tenant and the subordination of
the cafeteria lease and the food services agreement to the
lien of the mortgage.
------------------------------------------------------------------------------------------------
Broadstone Sunrise Mountain In addition to the Mortgage Loan, the related Mortgaged
Apartments Property secures a subordinate B-note.
------------------------------------------------------------------------------------------------
One and Two Nelson Parkway The tenant, Sysmex, under both a ground lease and space
lease has an option to purchase the Mortgaged Properties in
2019 at fair market value, which option was not expressly
subordinated to the lien of the lender's mortgage. The
option is only exercisable after the maturity date of the
Mortgage Loan.
------------------------------------------------------------------------------------------------
Walgreens - Fenton; Walgreens, the sole tenant at the Mortgaged Property, has a
Walgreens - Bluffton right to first refusal to purchase the Mortgaged Property
that has been subordinated to the Mortgage Loan and
accordingly will not affect the lender's rights to
foreclose, but such right is not subordinated to a
subsequent transfer by a purchaser at a foreclosure sale.
------------------------------------------------------------------------------------------------
Exceptions to Representation 8
------------------------------------------------------------------------------------------------
Mortgage Loan Exception
------------------------------------------------------------------------------------------------
One and Two Nelson Parkway The tenant, Sysmex, under both a ground lease and space
lease has an option to purchase the Mortgaged Properties in
2019 (after the maturity date of the Mortgage Loan) at fair
market value, which option was not expressly subordinated
to the lien of the lender's mortgage. However, the title
policy reflects that these leases are subordinate.
------------------------------------------------------------------------------------------------
Walgreens - Fenton; Walgreens - Walgreens, the sole tenant at the Mortgaged Property, has a
Bluffton right to first refusal to purchase the Mortgaged Property
that has been subordinated to the Mortgage Loan and
accordingly will not affect the lender's rights to
foreclose, but such right is not subordinated to a
subsequent transfer by a purchaser at a foreclosure sale.
------------------------------------------------------------------------------------------------
Exceptions to Representation 10(a)
------------------------------------------------------------------------------------------------
Mortgage Loan Exception
------------------------------------------------------------------------------------------------
All Mortgage Loans except as The Mortgage Loan documents provide for recourse for the
specified below misapplication or conversion by the borrower of any rents
following an event of default or any rents collected for
more than one month in advance to the extent that such
rents or any other payments in respect of the Leases and
other income of the related Mortgaged Property or any other
collateral are not applied to the costs of maintenance and
operation of the related Mortgaged Property and to the
payment of taxes, lien claims, insurance premiums, debt
service and other amounts due under the loan documents,
instead of "misapplication or misappropriation of rents,
insurance proceeds or condemnation awards" with respect to
all Mortgage Loans.
------------------------------------------------------------------------------------------------
Merchandise Mart, Tysons There is no other individual or entity other than the
Galleria, Fontainebleu Apartments borrower that is liable for the non-recourse carveouts.
Prescott Gateway With respect to clause (ii) of the second sentence of
representation 10(a), the Mortgage Loan documents provide
for recourse for "misapplication or misappropriation" of
rents, insurance proceeds or condemnation awards.
------------------------------------------------------------------------------------------------
Berry Bridge Corp. With respect to clause (ii) of the second sentence of
representation 10(a), the Mortgage Loan documents provide
for recourse for "damage or destruction to the Mortgaged
Property caused by the willful intentional acts or
omissions of the borrower, its agents, employees or
contractors."
------------------------------------------------------------------------------------------------
Exceptions to Representation 12
------------------------------------------------------------------------------------------------
Mortgage Loan Exception
------------------------------------------------------------------------------------------------
Tysons Galleria The Mortgage Loan documents permit the release of one or
more specified parcels at the Mortgaged Property without
payment of release price, provided that except with respect
to parcels that are acquired after the origination date,
each such parcel is generally required to be vacant,
non-income producing and unimproved or improved only by
landscaping utility facility that are readily relocatable
or surface parting areas.
------------------------------------------------------------------------------------------------
330 Motor Parkway The Mortgage Loan documents permit the release of the
parcel at the Mortgaged Property known as the "Wendy's"
parcel at a release price of par.
------------------------------------------------------------------------------------------------
Madison Research Park The Mortgage Loan documents permit the release of a
specified parcel at the Mortgaged Property at a release
price of less than 125%.
------------------------------------------------------------------------------------------------
Fontainebleu Apartments The Mortgage Loan documents permit the release of a portion
of the Mortgaged Property subject to satisfaction of
various conditions, including the following: (i) payment of
a release price of $4,000,000 plus yield maintenance; (ii)
receipt by the lender of a copy of an ALTA survey
reasonably acceptable to the lender; (iii) the lender shall
have confirmed that the remaining portion of the Mortgaged
Property will not be divided or affected in any way which,
in the reasonable judgment of the lender, would adversely
affect the security position of lender under the Mortgage
(including any material diminution in the value of the
remaining parcel) and ingress and egress to and from the
remaining parcel will not be terminated or unreasonably
restricted as a result of any such release; (iv) receipt by
the lender of all subdivision and zoning approvals with
respect to the release parcel and the remaining parcel as
may be reasonably required under applicable law to insure
that the remaining parcel, after the release, will comply
with all zoning ordinances, will be a separate tax parcel;
(iv) in the event that the release of the release parcel
impairs access to any public road currently accessible from
the Mortgaged Property or reduces the number of parking
spaces below that required by applicable law, have an
appurtenant easement for utilities, parking and access
crossing or located on the release parcel or, with respect
to access, have direct access to a public street; (v)
receipt by the lender of a "bring down" or "date down" of
the title insurance policy insuring the lien of the
Mortgage on the remaining parcel and endorsements to the
lender's title insurance policy for the Mortgaged Property
insuring that the priority of the security of the lien of
the Mortgage and the amount of the insurance is unaffected
as to the remaining parcel; (vi) at the lender's request
and at the borrower's expense, receipt of an opinion that
the release will not cause any adverse tax consequences to
the REMIC or any holders of the Certificates; and (vii) if
required by lender, the rating agencies shall have
confirmed that the release will not result in a downgrade,
withdrawal or qualification of the then current ratings of
the Certificates.
------------------------------------------------------------------------------------------------
Exceptions to Representation 19(b)
------------------------------------------------------------------------------------------------
Mortgage Loan Exception
------------------------------------------------------------------------------------------------
Merchandise Mart There is a pending condemnation proceeding at the U.S. Post
Office space (approximately 7,092 square feet) at the
Mortgaged Property. However, the order of taking expired on
January 1, 2006. The condemnation proceeding was for the
acquisition of a leasehold interest in the space for a
five-year fixed term from January 22, 2006 to January 21,
2011 with annual compensation of $202,200 for year 1,
$205,024 for year 2, $207,848 for year 3, $210,672 for year
4 and $207,848 for year 3, $200,672 for year 4 and $213,496
for year 5. The borrower has advised the Seller that
resolution is expected by 2006 year-end.
------------------------------------------------------------------------------------------------
Exceptions to Representation 21(d)
------------------------------------------------------------------------------------------------
Mortgage Loan Exception
------------------------------------------------------------------------------------------------
Tysons Galleria The losses covered by the environmental indemnity do not
include losses incurred by reason of diminution in value or
punitive or consequential damages.
------------------------------------------------------------------------------------------------
Berry Bridge Corp. The liability of the borrower and the guarantor under the
environmental indemnity have been limited to $1,000,000,
provided that an environmental insurance policy in favor of
the lender is in effect.
------------------------------------------------------------------------------------------------
Exceptions to Representation 22
------------------------------------------------------------------------------------------------
Mortgage Loan Exception
------------------------------------------------------------------------------------------------
Merchandise Mart The borrower is permitted to maintain insurance coverage
provided by a syndicate of insurers, so long as (i) 60%
(75% if there are four or fewer members in the syndicate)
of the aggregate limits under such insurance policies must
be provided by carriers with a minimum financial strength
rating from S&P of "A" or better and (ii) the financial
strength rating from S&P for each carrier in the syndicate
shall have a financial strength rating from S&P of at least
"BBB".
------------------------------------------------------------------------------------------------
Discover Mills The borrower is required to maintain business interruption
insurance in an amount equal to 100% of the projected gross
income from the Mortgaged Property for a period from the
date of loss to a date (assuming total destruction) which
is six (6) months from the date that the Mortgaged Property
is repaired or replaced and operations are resumed.
The borrower is permitted to maintain its policies of
insurance with a syndicate of insurers through which at
least 75% of the coverage (if there are 4 or fewer members
of the syndicate) or at least 60% of the coverage (if there
are 5 or more members of the syndicate) is with carriers
having such claims-paying ability ratings of "A-" or "A3"
(provided that all such carriers shall have claims-paying
ability ratings of not less than "BBB" or "Baa2" (or the
equivalent)); provided that if any such primary insurer
shall have a claims-paying ability rating lower than the
foregoing thresholds, the applicable policy must contain a
"cut-through" endorsement, in form and substance reasonably
approved by the lender, to one or more reinsurers having a
claims-paying ability rating of "A-" or "A3" (or the
equivalent) by each of the rating agencies. Notwithstanding
the foregoing, for purposes of determining whether the
insurer ratings requirements set forth above have been
satisfied, (1) any insurer that is not rated by Fitch will
be regarded as having a Fitch rating that is the equivalent
of the rating given to such insurer by any of Moody's and
S&P that does rate such insurer (or, if both such rating
agencies rate such insurer, the lower of the two ratings),
and (2) any insurer that is not rated by Moody's will be
regarded as having a Moody's rating of "Baa1" or better if
it is "A-" or better by S&P and will be regarded as having
a Moody's rating of "A2" or better if it is rated "A+" or
better by S&P.
------------------------------------------------------------------------------------------------
Tysons Galleria The borrower will maintain insurance coverage with respect
to workmen's comp, motor vehicle liability coverage and
earthquake insurance pursuant to policies issued by either
(A) one or more financially sound and responsible insurance
companies authorized to do business in the state in which
the Mortgaged Property is located and having a claims
paying ability rating of "A" or better by S&P or (B) a
syndicate of insurers through which (1) at least 50% of
claims coverage shall be with one or more carriers having a
claims-paying ability rating by A.M. Best of "A-X" or
better, (2) at least 90% of claims coverage (inclusive of
the coverage provided by carriers described in (1) above)
shall be with one or more carriers having a claims paying
ability rating by A.M. Best of "A-VIII" or better, (3) the
balance of the coverage not to exceed 10% of claims
coverage is with one or more carriers having a claims
paying ability rating by A.M. Best of "A-VII" or better and
(4) provided, further, with regard to any insurance carrier
which has a claims-paying-ability rating by A.M. Best of
less than "A-X" such carrier may not represent more than 5%
of the total earthquake insurance.
The borrower is permitted to maintain business income
insurance with either (A) one or more financially sound and
responsible insurance companies authorized to do business
in the state in which the Mortgaged Property is located and
having a claims-paying-ability rating by S&P not lower than
"A" or (B) a syndicate of insurers through which at least
60% of the coverage is with carriers having a claims
paying-ability rating by S&P not lower than "BBB" and which
syndicate may include Factory Mutual Insurance Company so
long as Factory Mutual Insurance Company is a member of an
insurance syndicate (i) a claims paying ability rating of
not lower than "AA" by Fitch and "A+XV" by A.M. Best and
(ii) a claims paying ability rating by S&P based solely on
public information of not lower than "BBBpi."
------------------------------------------------------------------------------------------------
Exceptions to Representation 24
------------------------------------------------------------------------------------------------
Mortgage Loan Exception
------------------------------------------------------------------------------------------------
Merchandise Mart There is a pending condemnation proceeding at the U.S. Post
Office space (approximately 7,092 square feet) at the
Mortgaged Property. However, the order of taking expired on
January 1, 2006. The condemnation proceeding was for the
acquisition of a leasehold interest in the space for a
five-year fixed term from January 22, 2006 to January 21,
2011 with annual compensation of $202,200 for year 1,
$205,024 for year 2, $207,848 for year 3, $210,672 for year
4 and $207,848 for year 3, $200,672 for year 4 and $213,496
for year 5. The borrower has advised the Seller that
resolution is expected by 2006 year-end.
------------------------------------------------------------------------------------------------
Discover Mills In January 2006, the Mills Corporation ("Mills"), the
sponsor and guarantor of the Mortgage Loan, announced that
its financial statements from 2000 to 2004 and the first
three quarters of 2005 would be restated to address
accounting errors. In March 2006, the Securities and
Exchange Commission informed Mills that it opened a formal
investigation of Mill's accounting practices, including its
lease accounting, cost capitalization and other areas of
Mill's accounting practices. There can be no assurance that
any restated financial statements will not materially or
adversely affect Mill's financial stability or that these
investigations will not result in fines, penalties or
administrative remedies or otherwise have an adverse effect
on the performance, operations or financial conditions of
Mills or its properties.
------------------------------------------------------------------------------------------------
Exceptions to Representation 30
------------------------------------------------------------------------------------------------
Mortgage Loan Exception
------------------------------------------------------------------------------------------------
Merchandise Mart Each borrower may not commingle its assets with those of
any other person other than its co-borrower and other than
the premium services fees that are deposited into the cash
management account. Each borrower holds its assets in its
own name, except with respect to the agency relationships
contemplated under the cash management agency agreement.
------------------------------------------------------------------------------------------------
Discover Mills The borrower is a Single Purpose Entity. However, the
Mortgage Loan documents, rather than the borrower's
organizational documents, require that the borrower 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.
------------------------------------------------------------------------------------------------
Exceptions to Representation 32
------------------------------------------------------------------------------------------------
Mortgage Loan Exception
------------------------------------------------------------------------------------------------
Merchandise Mart The loan agreement permits any transfer resulting from
Merchandise Mart Properties, Inc. ("MMPI") which is an
affiliate of the borrower, or the holder of all of the
direct or indirect beneficial interests in MMPI becoming a
person whose securities are traded on a public exchange
(whether by initial public offering or a "spin-off" of such
securities or otherwise and provided such person owns
substantially all of the assets of the "Merchandise Mart
Division" directly or indirectly owned by Vornado Realty
L.P. on the origination date (which for the sake of
clarity, includes the assets managed by MMPI which are
owned directly or indirectly by Vornado Realty L.P. on the
origination date), but excluding assets which are comprised
solely of office buildings and the management rights
associated therewith, including, without limitation, the
Washington Office Center in Washington, D.C.) which will be
permitted with the lender's consent, provided that the
lender's consent will be deemed granted if the borrower
obtains or causes to be obtained a rating agency
confirmation.
The lender's consent is not required for a transfer of the
Mortgaged Property, subject to the Mortgage Loan documents,
to a "Qualified Equityholder" who assumes the Mortgage
Loan. A "Qualified Equityholder" means one or more of the
following: (i) Vornado or Vornado Realty Trust, (ii) a real
estate company or investment trust, bank, saving and loan
association, investment bank, insurance company, trust
company, commercial credit corporation, pension plan,
pension fund or pension advisory firm, mutual fund,
government entity or plan, (iii) an investment company,
money management firm or "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of
1933, as amended, or an institutional "accredited investor"
within the meaning of Regulation D under the Securities Act
of 1933, as amended, (iv) an institution substantially
similar to any of the foregoing, (v) any entity controlled
by any of the entities described in clauses (i), (ii),
(iii) or (iv) above, (vi) an investment fund, limited
liability company, limited partnership or general
partnership where an entity that is otherwise a Qualified
Equityholder under clauses (i), (ii), (iii), (iv) or (v)
above acts as the general partner, managing member or fund
manager and at least 50% of the equity interests in such
investment fund are owned, directly or indirectly, by one
or more entities that are otherwise Qualified Equityholders
under clauses (i), (ii), (iii), (iv) or (v) above, or (vii)
any other entity approved by the rating agencies; in each
case of clauses (ii), (iii), or (iv) above of this
definition, which (A) has total assets (in name or under
management) in excess of $2,000,000,000 and (except with
respect to a pension advisory firm or similar fiduciary)
capital/statutory surplus or shareholder's equity in excess
of $1,000,000,000 and (B) is regularly engaged in the
business of owning and operating commercial real estate
properties, and owns other mixed use real estate comparable
to the Mortgaged Property in at least one major
metropolitan area.
A member of the borrower has incurred mezzanine debt from
the lender and the co-lender of the mortgage loan, secured
by its equity interest in the borrower, in the original
aggregate principal amount of $300,000,000. Each tranche of
mezzanine debt is in the original principal amount of
$100,000,000, with a senior tranche, a mezzanine tranche
(subordinate to the senior tranche) and a junior tranche
(subordinate to the senior tranche and the mezzanine
tranche). Each mezzanine lender executed an intercreditor
agreement in favor of the lender and the co-lender.
------------------------------------------------------------------------------------------------
Discover Mills The borrower is permitted to sell the Mortgaged Property
without lender consent, provided that, certain conditions
have been satisfied, including the following: (i) the
transferee is a "special purpose bankruptcy-remote entity";
(ii) not less than 50% of the equity interests in the
transferee are owned by a Permitted Owner (defined below)
and the transferee is controlled by a Permitted Owner;
(iii) in the event that in connection with such sale, the
property manager will not thereafter continue to manage the
Mortgaged Property, then the successor property manager
must be "qualified manager"; and (iv) the transferee shall
assume all of the obligations of the borrower under the
Mortgage Loan documents arising from and after the transfer.
A transfer of an interest in the borrower is permitted
provided that certain conditions have been satisfied,
including the following: (i) after giving effect to such
transfer not less than 50% of the equity interests in the
borrower are owned by a Permitted Owner and a Permitted
Owner controls the borrower; provided however in connection
with the transfer of interests of the borrower, the
borrower's organizational documents can be modified and
provided that the borrower remains a "special purpose
bankruptcy-remote equity"; and (ii) in the event that in
connection with such transfer the property manager will not
continue to manage the Mortgaged Property, then the
successor property manager must be a "qualifying manager"
(as defined in the loan agreement).
Kan Am, Mills REIT and Mills LP may pledge their respective
indirect interests in the borrower, if any, to a Qualified
Pledgee (defined below) in one or a series of transactions
in connection with the pledge of all or substantially all
of such entity's assets to such Qualified Pledgee to secure
the direct obligations or debt of Kan Am, Mills REIT and/or
Mills LP, as the case may be, and the pledgor may exercise
any remedies or rights pursuant to such pledge without
lender consent, provided that the following conditions are
satisfied: (i) the Qualified Pledgee shall not pledge,
sell, assign, further pledge or otherwise transfer such
pledge or any of the documents which evidence or secure
such pledge to a person other than a person who qualifies
as a Qualified Pledgee; and (ii) neither the granting of
such pledge nor the exercise of any remedies available
under such pledge shall result in a change of the property
manager unless the replacement manager is a "qualifying
manager" (as defined in the loan agreement).
The loan agreement does not restrict the right of (i) any
shareholder in Mills REIT to transfer its shares in Mills
REIT or to cause or permit its interest in Mills REIT to be
redeemed and any such transfer or redemption shall not be
deemed to be a transfer or require lender consent or (ii)
any limited partner of Mills LP to transfer its limited
partnership interest in Mills LP or to cause or permit its
limited partnership interest in Mills LP to be redeemed and
any such transfer or redemption shall not be deemed to be a
transfer or require to lender consent or (iii) Mills REIT
to issue additional stock in Mills REIT.
The term "Permitted Owner" shall mean a person who
satisfies (i), (ii) or (iii) below: (i) a Qualified
Transferee (herein defined) or an affiliate of a Qualified
Transferee that is directly or indirectly wholly owned by
such Qualified Transferee; (ii) a "Sponsor" (any of (i)
Mills LP, (ii) Mills REIT or (iii) KanAm) or an affiliate
of a Sponsor that is directly or indirectly wholly owned by
such Sponsor; or (iii) any other person with respect to
which the lender shall have received a rating agency
confirmation that the transfer to such person will not, in
and of itself, cause a downgrade, withdrawal or
qualification of the then current ratings of the
Certificates.
The term "Qualified Pledgee" means one or more of the
following: (i) a real estate investment trust, bank, saving
and loan association, investment bank, insurance company,
trust company, commercial credit corporation, pension plan,
pension fund or pension advisory firm, mutual fund,
government entity or plan provided such entity (A) has
total assets (in name or under management) in excess of
$650,000,000, and (except with respect to a pension
advisory firm or similar fiduciary) capital/statutory
surplus or shareholder's equity of $250,000,000; and (B) is
regularly engaged in the business of making or owning
commercial real estate loans or commercial loans secured by
a pledge of interests in a mortgage borrower or owning and
operating commercial mortgage properties, (ii) an entity
for which the borrower shall have obtained a rating agency
confirmation that the applicable pledge of direct or
indirect equity interests to such entity will not, in and
of itself, cause a downgrade, withdrawal or qualification
of the then current ratings of the Certificates.
The term "Qualified Transferee" shall mean any one of the
following persons: (i) a pension fund, pension trust or
pension account that (a) has total real estate assets of at
least $750 million (exclusive of the Mortgaged Property);
or (ii) a pension fund advisor who immediately prior to
such transfer, controls at least $750 million of real
estate assets (exclusive of the Mortgaged Property); or
(iii) an insurance company which is subject to supervision
by the insurance commissioner, or a similar official or
agency, of a state or territory of the United States
(including the District of Columbia) (a) with a net worth,
as of a date no more than six (6) months prior to the date
of the transfer of at least $300 million and (b) who,
immediately prior to such transfer, controls real estate
assets of at least $750 million (exclusive of the Mortgaged
Property); or (iv) any person (a) with a long-term
unsecured debt rating from the rating agencies of at least
investment grade or (b) who (i) is regularly engaged by
itself or through its affiliates in making commercial real
estate loans or owning or operating commercial real estate
or (ii) together with its affiliates, (A) owns or operates
at least five (5) regional malls totaling at least three
million square feet of gross leasable area (exclusive of
the Mortgaged Property), (B) has a net worth, as of a date
no more than six (6) months prior to the date of such
transfer, of at least $300 million and (C) immediately
prior to such transfer, owns real estate assets of at least
$750 million (exclusive of the Mortgaged Property).
------------------------------------------------------------------------------------------------
Tysons Galleria, Fontainebleu Subject to the satisfaction of certain conditions set forth
Apartments, University Office in the Mortgage Loan documents, including the satisfaction
Park, Standard Oil Building, of LTV and DSCR tests, the equity holder of the borrower is
Madison Research Park, Studio 6 permitted to incur mezzanine debt.
Hotel
------------------------------------------------------------------------------------------------
Tysons Galleria The Mortgage Loan documents permit: (i) transfers of
direct or indirect ownership interests in the borrower to
"Qualified Transferees" meeting certain financial criteria
and general creditworthiness standards set forth in the
Loan Agreement; and (ii) transfers of direct or indirect
ownership interests in certain specified affiliates of the
borrower. A "Qualified Transferee" shall mean any one of
the following Persons: (i) a pension fund, pension trust
or pension account that (a) has total real estate assets
of at least $1 billion and (b) is managed by a Person who
controls at least $1 billion of real estate equity assets;
(ii) a pension fund advisor who (a) immediately prior to
such transfer, controls at least $1 billion of real estate
equity assets and (b) is acting on behalf of one or more
pension funds that, in the aggregate, satisfy the
requirements of clause (i) of this definition; (iii) an
insurance company which is subject to supervision by the
insurance commissioner, or a similar official or agency,
of a state or territory of the United States (including
the District of Columbia) (a) with a net worth, as of a
date no more than six (6) months prior to the date of the
transfer of at least $500 million and (b) who, immediately
prior to such transfer, controls real estate equity assets
of at least $1 billion; (iv) a corporation organized under
the banking laws of the United States or any state or
territory of the United States (including the District of
Columbia) (a) with a combined capital and surplus of at
least $500 million and (b) who, immediately prior to such
transfer, controls real estate equity assets of at least
$1 billion; or (v) any person (a) with a long-term
unsecured debt rating from the Rating Agencies of at least
investment grade or (b) who (i) owns or operates at least
(10) regional shopping centers totaling at least six (6)
million square feet of gross leasable area, (ii) has a net
worth, as of a date no more than six (6) months prior to
the date of such transfer, of at least $500 million and
(iii) immediately prior to such transfer, controls real
estate equity assets of at least $1 billion.
In addition, the holders of indirect ownership interests
in the borrower are permitted to pledge their interests as
security for additional debt, provided that, among other
things, the following conditions are satisfied: (i) no
event of default under the Mortgage Loan has occurred and
is continuing, (ii) the pledge is to a "qualified
pledgee" or is subject to the lender's prior written
consent, which may be withheld in the lender's sole and
absolute discretion, provided that the lender's consent
may not be unreasonably withheld, if the borrower has
delivered (A) rating agency confirmation that the pledge
will not, in and of itself, result in a downgrade,
withdrawal or qualification of the ratings assigned to the
certificates and (B) a substantive non-consolidation
opinion reasonable acceptable to the lender and the rating
agencies, and (iii) in the event the property manager of
the Mortgaged Property will change in connection with the
pledge, the replacement property manager must meet the
conditions set forth in the related Mortgage Loan
documents. Pledges of equity to or from affiliates of the
borrower are also permitted. A "qualified pledgee"
generally means (i) one or more institutional entities
that (A) has total assets (in name or under management) in
excess of $650,000,000, and (except with respect to a
pension advisory firm or similar fiduciary)
capital/statutory surplus or shareholder's equity of
$250,000,000; and (B) is regularly engaged in the business
of making or owning commercial real estate loans or
commercial loans secured by a pledge of interests in a
mortgage borrower or owning and operating commercial
mortgage properties; or (ii) an entity for which the
borrower has obtained rating agency confirmation that the
pledge to such entity will not, in and of itself, result
in a downgrade, withdrawal or qualification of the ratings
assigned to the certificates.
------------------------------------------------------------------------------------------------
Prescott Gateway The Mortgage Loan documents permit: (i) transfers of direct
or indirect ownership interests in the borrower to
"Qualified Transferees" meeting certain financial criteria
and general creditworthiness standards set forth in the
Loan Agreement; (ii) transfers of direct or indirect
ownership interests in The Macerich Company, The Macerich
Partnership, L.P., The Westcor Company Limited Partnership,
The Westcor Company II Limited Partnership or MACWH LP;
(iii) sale, transfer or issuance of shares of stock or the
issuance of debt in or by The Macerich Company, provided
the shares of stock of The Macerich Company are listed on
the New York Stock Exchange or such other nationally
recognized stock exchange and (iv) the pledge by The
Macerich Partnership, L.P. of indirect ownership interest
in borrower in connection with certain credit facilities
($250,000,000 Term Loan Credit Facility; $650,000,000
Interim Loan Facility and $450,000,000 Term Loan Facility;
and $1,000,000,000 Revolving Loan Facility) and any
amendments thereto or replacement thereof, provided that
such credit facilities require The Macerich Partnership.
L.P. to pledge all or substantially all of its interests in
its material subsidiaries and it has pledged its interests
in the borrower (together with its interests in its
material subsidiaries) under such credit facilities
------------------------------------------------------------------------------------------------
Broadstone Sunrise Mountain A member of the borrower has incurred mezzanine debt from
Apartments an affiliate secured by its equity interest in the borrower
in the original principal amount of $6,700,000. The
mezzanine lender executed an intercreditor agreement in
favor of the lender.
------------------------------------------------------------------------------------------------
University Office Park The Mortgage Loan documents permit the following transfers:
(a) transfers of tenancy in common interests among the
tenants in common pursuant to the TIC Agreement; (b) the
sale or pledge, in one or a series of transactions, of
direct or indirect equity interests in the "sponsor
borrower" which do not result in greater than 75.01% of
such direct or indirect equity being owned by a person or
persons other than Required Borrower Principal, provided
that Required Borrower Principal shall retain control of
the sponsor borrower and the property manager; (c) the
initial sales of tenancy in common interests by the sponsor
borrower (grouped into not more than five (5) closings)
within one year of the origination date; and (d) one
simultaneous sale or transfer of the entire Property by all
tenants in common.
------------------------------------------------------------------------------------------------
Exceptions to Representation 42
------------------------------------------------------------------------------------------------
Mortgage Loan Exception
------------------------------------------------------------------------------------------------
Merchandise Mart The borrower is only required to maintain terrorism
insurance coverage to the extent that such coverage is
commercially available for an annual premium that is less
than or equal to $1,000,000. If the preceding sentence is
not satisfied, then the borrower is required to obtain
terrorism coverage (at a premium that does not exceed
$1,000,000) from such insurers, and with such coverage, as
shall be acceptable to the lender in its reasonable
discretion.
------------------------------------------------------------------------------------------------
Discover Mills The borrower is only be required to obtain terrorism
insurance coverage to the extent obtainable for an annual
premium not in excess of the "terrorism insurance cap"
(which means an amount equal to 150% of the cost of the
borrower's comprehensive all risk insurance policy),
provided, however, the borrower is required to purchase the
maximum amount of terrorism insurance required by the loan
agreement that is available with funds equal to the
terrorism insurance cap.
------------------------------------------------------------------------------------------------
Prescott Gateway The borrower is only required to maintain terrorism
insurance coverage to the extent and at the level
obtainable at an annual premium for such insurance not to
exceed $134,710.00.
------------------------------------------------------------------------------------------------
Fontainebleu Apartments The borrower is not required to obtain and maintain
terrorism insurance in the event that terrorism insurance
coverage is not available from any insurance company
licensed in Santa Barbara, California or is not customarily
required by the lender in connection with similar loans on
similarly situated properties. However, if terrorism
insurance is available but not at a commercially reasonable
rat, the borrower is required to maintain terrorism
insurance in an amount that is available at a "commercially
reasonable rate" (defined to mean the premium for terrorism
coverage does not increase the overall property and
casualty coverage premiums by more than 50% of the overall
cost of the policy without terrorism insurance coverage as
of the date of origination, as adjusted for inflation).
------------------------------------------------------------------------------------------------
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 J.P. Morgan Chase
Commercial Mortgage Securities Corp., and all of the representations and
warranties of the Company under the Agreement are true and correct in all
material respects on and as of the date hereof (or, in the case of any
particular representation or warranty set forth on Exhibit B to the Agreement,
as of such other date provided for in such representation or warranty) with the
same force and effect as if made on and as of the date hereof, subject to the
exceptions set forth in the Agreement (including Exhibit C thereto).
2. The Company has complied with all the covenants and satisfied
all the conditions on its part to be performed or satisfied under the Agreement
on or prior to the date hereof and no event has occurred which, with notice or
the passage of time or both, would constitute a default under the Agreement.
3. I have examined the information regarding the Mortgage Loans
in the Prospectus, dated 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 OTHER
ENVIRONMENTAL INSURANCE IS MAINTAINED
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph numbers set forth below:
Paragraph 21 (b) and (c):
1. Berry Bridge Corp.
Exhibit 10.5
J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER
PNC BANK, NATIONAL ASSOCIATION,
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 1, 2006
Fixed Rate Mortgage Loans
Series 2006-LDP9
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of December 1, 2006, is between J.P. Morgan Chase Commercial Mortgage Securities
Corp., as purchaser (the "Purchaser"), and PNC Bank, National Association, as
seller (the "Seller").
Capitalized terms used in this Agreement not defined herein shall
have the meanings ascribed to them in the Pooling and Servicing Agreement dated
as of 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
Wells 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 and the term "Mortgaged
Properties" refers to the properties securing such Mortgage Loans.
The Purchaser and the Seller wish to prescribe the manner of sale of
the Mortgage Loans from the Seller to the Purchaser and in consideration of the
premises and the mutual agreements hereinafter set forth, agree as follows:
SECTION 1. Sale and Conveyance of Mortgages; Possession of Mortgage
File. Effective as of the Closing Date and upon receipt of the purchase price
set forth in the immediately succeeding paragraph, the Seller does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse
(subject to certain agreements regarding servicing as provided in the Pooling
and Servicing Agreement, subservicing agreements permitted thereunder and that
certain Servicing Rights Purchase Agreement, dated as of the Closing Date
between the applicable Master Servicer and the Seller) all of its right, title,
and interest in and to the Mortgage Loans including all interest and principal
received on or with respect to the Mortgage Loans after the Cut-off Date (other
than payments of principal and interest first due on the Mortgage Loans on or
before the Cut-off Date). Upon the sale of the Mortgage Loans, the ownership of
each related Mortgage Note, the Mortgage and the other contents of the related
Mortgage File will be vested in the Purchaser and immediately thereafter the
Trustee and the ownership of records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the Seller (other
than the records and documents described in the proviso to Section 3(a) hereof)
shall immediately vest in the Purchaser and immediately thereafter the Trustee.
The Seller's records will accurately reflect the sale of each Mortgage Loan to
the Purchaser. On the Closing Date, the Seller shall also deliver to the
Depositor an amount equal to $32,685.37, which amount represents the aggregate
amount of interest that would have accrued at the related Mortgage Rates on the
applicable Mortgage Loans commencing December 1, 2006 for those Mortgage Loans
that do not have a Due Date in January 2007. 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 J.P. Morgan 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 Mortgage Loans is being conducted on
an arms length basis and upon commercially reasonable terms. As the purchase
price for the Mortgage Loans, the Purchaser shall pay to the Seller or at the
Seller's direction in immediately available funds the sum of $324,636,714 (which
amount is inclusive of accrued interest and exclusive of the Seller's pro rata
share of the costs set forth in Section 9 hereof). The purchase and sale of the
Mortgage Loans shall take place on the Closing Date.
SECTION 2. Books and Records; Certain Funds Received After the
Cut-off Date. From and after the sale of the Mortgage Loans to the Purchaser,
record title to each Mortgage and the related Mortgage Note shall be transferred
to the Trustee in accordance with this Agreement. Any funds due after the
Cut-off Date in connection with a Mortgage Loan received by the Seller shall be
held in trust for the benefit of the Trustee as the owner of such Mortgage Loan
and shall be transferred promptly to the 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
Seller.
The transfer of each Mortgage Loan shall be reflected on the
Seller's balance sheets and other financial statements as a sale of the Mortgage
Loans by the Seller to the Purchaser. The Seller intends to treat the transfer
of each Mortgage Loan to the Purchaser as a sale for tax purposes.
The transfer of each Mortgage Loan shall be reflected on the
Purchaser's balance sheets and other financial statements as a purchase of the
Mortgage Loans by the Purchaser from the Seller. The Purchaser intends to treat
the transfer of each Mortgage Loan from the Seller as a purchase for tax
purposes.
SECTION 3. Delivery of Mortgage Loan Documents; Additional Costs and
Expenses. (a) The Purchaser hereby directs the Seller, and the Seller hereby
agrees, upon the transfer of the Mortgage Loans contemplated herein, to deliver
on the Closing Date to the Trustee or a Custodian appointed thereby, all
documents, instruments and agreements required to be delivered by the Purchaser
to the Trustee with respect to the Mortgage Loans under Sections 2.01(b) and
2.01(c) of the Pooling and Servicing Agreement, and meeting all the requirements
of such Sections 2.01(b) and 2.01(c), and such other documents, instruments and
agreements as the Purchaser or the Trustee shall reasonably request. In
addition, the Seller agrees to deliver or cause to be delivered to the
applicable Master Servicer, the Servicing File for each Mortgage Loan
transferred pursuant to this Agreement; provided that the Seller shall not be
required to deliver any draft documents, or any attorney client communications
which are privileged communications or constitute legal or other due diligence
analyses, or internal communications of the Seller or its affiliates, or credit
underwriting or other analyses or data.
(b) With respect to the transfer described in Section 1 hereof, if
the Mortgage Loan documents do not require the related Mortgagor to pay any
costs and expenses relating to any modifications to a related letter of credit
which modifications are required to effectuate such transfer (the "Transfer
Modification Costs"), then the Seller shall pay the Transfer Modification Costs
required to transfer the letter of credit to the Trustee as described in such
Section 1; provided that if the Mortgage Loan documents require the related
Mortgagor to pay any Transfer Modification Costs, such Transfer Modification
Costs shall be an expense of the Mortgagor unless such Mortgagor fails to pay
such Transfer Modification Costs after the 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 the
applicable Master Servicer shall give the Seller notice of such failure and the
amount of such Transfer Modification costs and the Seller shall pay such
Transfer Modification Costs.
SECTION 4. Treatment as a Security Agreement. The Seller,
concurrently with the execution and delivery hereof, has conveyed to the
Purchaser, all of its right, title and interest in and to the Mortgage Loans.
The parties intend that such conveyance of the Seller's right, title and
interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a purchase and sale and not a loan. If such conveyance is deemed to
be a pledge and not a sale, then the parties also intend and agree that the
Seller shall be deemed to have granted, and in such event does hereby grant, to
the Purchaser, a first priority security interest in all of its right, title and
interest in, to and under the Mortgage Loans, all payments of principal or
interest on such Mortgage Loans due after the Cut-off Date, all other payments
made in respect of such Mortgage Loans after the Cut-off Date (except to the
extent such payments were due on or before the Cut-off Date) and all proceeds
thereof and that this Agreement shall constitute a security agreement under
applicable law. If such conveyance is deemed to be a pledge and not a sale, the
Seller consents to the Purchaser hypothecating and transferring such security
interest in favor of the Trustee and transferring the obligation secured thereby
to the Trustee.
SECTION 5. Covenants of the Seller. The Seller covenants with the
Purchaser as follows:
(a) it shall record or cause a third party to record in the
appropriate public recording office for real property the intermediate
assignments of the Mortgage Loans and the Assignments of Mortgage from the
Seller to the Trustee in connection with the Pooling and Servicing Agreement.
All recording fees relating to the initial recordation of such intermediate
assignments and Assignments of Mortgage shall be paid by the Seller;
(b) it shall take any action reasonably required by the Purchaser,
the Trustee or the 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 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
A-1, A-2, A-3 and B thereto and the Diskette included therewith, with respect to
any information relating to the Mortgage Loans or the Seller, in order to make
the statements therein, in the light of the circumstances when the Prospectus
Supplement is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus Supplement, including Annexes A-1, A-2, A-3
and B thereto and the Diskette included therewith, with respect to any
information relating to the Mortgage Loans or the Seller, to comply with
applicable law, the Seller shall do all things necessary to assist the Depositor
to prepare and furnish, at the expense of the Seller (to the extent that such
amendment or supplement relates to the Seller, the Mortgage Loans listed on
Exhibit A and/or any information relating to the same, as provided by the
Seller), to the Underwriters such amendments or supplements to the Prospectus
Supplement as may be necessary, so that the statements in the Prospectus
Supplement as so amended or supplemented, including Annexes A-1, A-2, A-3 and B
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, will not, in the light of the
circumstances when the Prospectus is so amended or supplemented, be misleading
or so that the Prospectus Supplement, including Annexes A-1, A-2, A-3 and B
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, will comply with applicable law.
All terms used in this clause (c) and not otherwise defined herein shall have
the meaning set forth in the Indemnification Agreement, dated as of December 15,
2006 between the Purchaser and the Seller (the "Indemnification Agreement"); and
(d) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any Companion Loan related to a Serviced Whole Loan or any
Serviced Securitized Companion Loan that is deposited into an Other
Securitization or a Regulation AB Companion Loan Securitization, the depositor
in such Other Securitization or Regulation AB Companion Loan Securitization) and
the Trustee with any Additional Form 10-D Disclosure and any Additional Form
10-K Disclosure set forth next to the Purchaser's name on Schedule X and
Schedule Y of the Pooling and Servicing Agreement pertaining to the Seller or
the Mortgage Loans within the time periods set forth in the Pooling and
Servicing Agreement.
SECTION 6. Representations and Warranties.
(a) The Seller represents and warrants to the Purchaser as of the
Closing Date that:
(i) it is a national banking association, duly organized, validly
existing, and in good standing under the laws of the United States;
(ii) it has the power and authority to own its property and to carry
on its business as now conducted;
(iii) it has the power to execute, deliver and perform this
Agreement;
(iv) it is legally authorized to transact business in the State of
New York. The Seller is in compliance with the laws of each state in which
any Mortgaged Property is located to the extent necessary so that a
subsequent holder of the related Mortgage Loan (including, without
limitation, the Purchaser) that is in compliance with the laws of such
state would not be prohibited from enforcing such Mortgage Loan solely by
reason of any non-compliance by the Seller;
(v) the execution, delivery and performance of this Agreement by the
Seller have been duly authorized by all requisite action by the Seller's
board of directors and will not violate or breach any provision of its
organizational documents;
(vi) this Agreement has been duly executed and delivered by the
Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general
equitable principles regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vii) there are no legal or governmental proceedings pending to
which the Seller is a party or of which any property of the Seller is the
subject which, if determined adversely to the Seller, would reasonably be
expected to adversely affect (A) the transfer of the Mortgage Loans and
the Mortgage Loan documents as contemplated herein, (B) the execution and
delivery by the Seller or enforceability against the Seller of the
Mortgage Loans or this Agreement, or (C) the performance of the Seller's
obligations hereunder;
(viii) it has no actual knowledge that any statement, report,
officer's certificate or other document prepared and furnished or to be
furnished by the Seller in connection with the transactions contemplated
hereby (including, without limitation, any financial cash flow models and
underwriting file abstracts furnished by the Seller) was not true and
correct in any material respect when furnished by the Seller; provided,
however, that with respect to any such statement, report, officer's
certificate or other document which contains information that is
corrected, modified or supplemented by a subsequent statement, report,
officer's certificate or other document prepared and furnished by the
Seller, this representation shall be deemed to be made with respect to the
original statement, report, officer's certificate or other document as so
corrected, modified or supplemented;
(ix) it is not, nor with the giving of notice or lapse of time or
both would be, in violation of or in default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which it is a party or by which it or any of its properties is bound,
except for violations and defaults which individually and in the aggregate
would not have a material adverse effect on the transactions contemplated
herein; the sale of the Mortgage Loans and the performance by the Seller
of all of its obligations under this Agreement and the consummation by the
Seller of the transactions herein contemplated do not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Seller is a party
or by which the Seller is bound or to which any of the property or assets
of the Seller is subject, nor will any such action result in any violation
of the provisions of any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Seller, or any of its properties, except for conflicts, breaches,
defaults and violations which individually and in the aggregate would not
have a material adverse effect on the transactions contemplated herein;
and no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Seller of the transactions
contemplated by this Agreement, other than any consent, approval,
authorization, order, license, registration or qualification that has been
obtained or made;
(x) it has either (A) not dealt with any Person (other than the
Purchaser or the Dealers or their respective affiliates or any servicer of
a Mortgage Loan) that may be entitled to any commission or compensation in
connection with the sale or purchase of the Mortgage Loans or entering
into this Agreement or (B) paid in full any such commission or
compensation (except with respect to any servicer of a Mortgage Loan, any
commission or compensation that may be due and payable to such servicer if
such servicer is terminated and does not continue to act as a servicer);
and
(xi) it is solvent and the sale of the Mortgage Loans hereunder will
not cause it to become insolvent; and the sale of the Mortgage Loans is
not undertaken with the intent to hinder, delay or defraud any of the
Seller's creditors.
(b) The Purchaser represents and warrants to the Seller as of the
Closing Date that:
(i) it is a corporation duly organized, validly existing, and in
good standing in the State of Delaware;
(ii) it is duly qualified as a foreign corporation in good standing
in all jurisdictions in which ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Purchaser, and the Purchaser is conducting its business so as to comply in
all material respects with the applicable statutes, ordinances, rules and
regulations of each jurisdiction in which it is conducting business;
(iii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iv) it has the power to execute, deliver and perform this
Agreement, and neither the execution and delivery by the Purchaser of this
Agreement, nor the consummation by the Purchaser of the transactions
herein contemplated, nor the compliance by the Purchaser with the
provisions hereof, will (A) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the certificate of
incorporation or by-laws of the Purchaser or any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Purchaser or any of its properties, or any indenture, mortgage,
contract or other instrument or agreement to which the Purchaser is a
party or by which it is bound, or (B) result in the creation or imposition
of any lien, charge or encumbrance upon any of the Purchaser's property
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or agreement;
(v) this Agreement constitutes a legal, valid and binding obligation
of the Purchaser enforceable against it in accordance with its terms
(except as enforcement thereof may be limited by (a) bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or
other laws affecting the enforcement of creditors' rights generally and
(b) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or law));
(vi) there are no legal or governmental proceedings pending to which
the Purchaser is a party or of which any property of the Purchaser is the
subject which, if determined adversely to the Purchaser, might interfere
with or adversely affect the consummation of the transactions contemplated
herein and in the Pooling and Servicing Agreement; to the best of the
Purchaser's knowledge, no such proceedings are threatened or contemplated
by any governmental authorities or threatened by others;
(vii) it is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Purchaser or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(viii) it has not dealt with any broker, investment banker, agent or
other person, other than the Seller, the Dealers and their respective
affiliates, that may be entitled to any commission or compensation in
connection with the purchase and sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby;
(ix) all consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for the
execution, delivery and performance of this Agreement by the Purchaser
have been obtained or made; and
(x) it has not intentionally violated any provisions of the United
States Secrecy Act, the United States Money Laundering Control Act of 1986
or the United States International Money Laundering Abatement and
Anti-Terrorism Financing Act of 2001.
(c) The Seller further makes the representations and warranties as
to the Mortgage Loans set forth in Exhibit B as of the Closing Date (or as of
such other date if specifically provided in the particular representation or
warranty), which representations and warranties are subject to the exceptions
thereto set forth in Exhibit C. Neither the delivery by the Seller of the
Mortgage Files, Servicing Files, or any other documents required to be delivered
under Section 2.01 of the Pooling and Servicing Agreement, nor the review
thereof or any other due diligence by the Trustee, any Master Servicer, the
Special Servicer, a Certificate Owner or any other Person shall relieve the
Seller of any liability or obligation with respect to any representation or
warranty or otherwise under this Agreement or constitute notice to any Person of
a Breach or Defect.
(d) Pursuant to this Agreement or Section 2.03(b) of the Pooling and
Servicing Agreement, the Seller and the Purchaser shall be given notice of any
Breach or Defect that materially and adversely affects the value of any Mortgage
Loan, the value of the related Mortgaged Property or the interests of the
Trustee or any Certificateholder therein.
(e) Upon notice pursuant to Section 6(d) above, the Seller shall,
not later than 90 days from the earlier of the Seller's receipt of the notice
or, in the case of a Defect or Breach relating to a Mortgage Loan not being a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, but
without regard to the rule of Treasury Regulation Section 1.860G-2(f)(2) that
causes a defective mortgage loan to be treated as a qualified mortgage, the
Seller's discovery of such Breach or Defect (the "Initial Resolution Period"),
(i) cure such Defect or Breach, as the case may be, in all material respects,
(ii) repurchase the affected Mortgage Loan at the applicable Repurchase Price
(as defined below) or (iii) substitute a Qualified Substitute Mortgage Loan (as
defined below) for such affected Mortgage Loan (provided that in no event shall
any such substitution occur later than the second anniversary of the Closing
Date) and pay the 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 the Seller to deliver to the Trustee or Custodian the
actual policy of lender's title insurance required pursuant to clause (ix) of
the definition of Mortgage File by a date not later than 18 months following the
Closing Date, if such Breach or Defect is capable of being cured but is not
cured within the Initial Resolution Period, and the Seller has commenced and is
diligently proceeding with the cure of such Breach or Defect within the Initial
Resolution Period, the Seller shall have an additional 90 days commencing
immediately upon the expiration of the Initial Resolution Period (the "Extended
Resolution Period") to complete such cure (or, failing such cure, to repurchase
the related Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as
described above); and provided, further, that with respect to the Extended
Resolution Period the Seller 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 the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such Breach or Defect will be cured
within the Extended Resolution Period. Notwithstanding the foregoing, any Defect
or Breach which causes any Mortgage Loan not to be a "qualified mortgage"
(within the meaning of Section 860G(a)(3) of the Code, without regard to the
rule of Treasury Regulations Section 1.860G-2(f)(2) which causes a defective
mortgage loan to be treated as a qualified mortgage) shall be deemed to
materially and adversely affect the interests of the holders of the Certificates
therein, and such Mortgage Loan shall be repurchased or a Qualified Substitute
Mortgage Loan substituted in lieu thereof without regard to the extended cure
period described in the preceding sentence. If the affected Mortgage Loan is to
be repurchased, the Seller shall remit the Repurchase Price (defined below) in
immediately available funds to the Trustee.
If any Breach pertains to a representation or warranty that the
related Mortgage Loan documents or any particular Mortgage Loan document
requires the related Mortgagor to bear the costs and expenses associated with
any particular action or matter under such Mortgage Loan document(s), then
Seller shall cure such Breach within the applicable cure period (as the same may
be extended) by reimbursing the Trust Fund (by wire transfer of immediately
available funds) the reasonable amount of any such costs and expenses incurred
by the 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, the Seller shall have the option to either repurchase
or substitute for the related Mortgage Loan as provided above or pay such costs
and expenses. Except as provided in the proviso to the immediately preceding
sentence, the Seller shall remit the amount of such costs and expenses and upon
its making such remittance, the Seller shall be deemed to have cured such Breach
in all respects. To the extent any fees or expenses that are the subject of a
cure by the Seller are subsequently obtained from the related Mortgagor, the
portion of the cure payment equal to such fees or expenses obtained from the
Mortgagor shall be returned to the Seller pursuant to Section 2.03(f) of the
Pooling and Servicing Agreement. Notwithstanding the foregoing, the sole remedy
with respect to any breach of the representation set forth in the second to last
sentence of clause (32) of Exhibit B hereto shall be payment by the Seller of
such costs and expenses without respect to the materiality of such breach.
Any of the following will cause a document in the Mortgage File to
be deemed to have a Defect and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interests of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity with a copy of the Mortgage
Note that appears to be regular on its face; (b) the absence from the Mortgage
File of the original signed Mortgage that appears to be regular on its face,
unless there is included in the Mortgage File a certified copy of the Mortgage
and a certificate stating that the original signed Mortgage was sent for
recordation; (c) the absence from the Mortgage File of the lender's title
insurance policy (or if the policy has not yet been issued, an original or copy
of a "marked up" written commitment or the pro-forma or specimen title insurance
policy or a commitment to issue the same pursuant to written escrow instructions
signed by the title insurance company) called for by clause (ix) of the
definition of "Mortgage File" in the Pooling and Servicing Agreement; (d) the
absence from the Mortgage File of any required letter of credit; (e) with
respect to any leasehold mortgage loan, the absence from the related Mortgage
File of a copy (or an original, if available) of the related Ground Lease; or
(f) the absence from the Mortgage File of any intervening assignments required
to create a complete chain of assignments to the Trustee on behalf of the Trust,
unless there is included in the Mortgage File a certified copy of the
intervening assignment and a certificate stating that the original intervening
assignments were sent for recordation; provided, however, 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 pro-forma or
specimen title insurance policy or other commitment to issue a lender's title
insurance policy, as provided in clause (ix) of the definition of "Mortgage
File" in the Pooling and Servicing Agreement, in lieu of the delivery of the
actual policy of lender's title insurance, shall not be considered a Defect or
Breach with respect to any Mortgage File if such actual policy is delivered to
the Trustee or its Custodian within 18 months after the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in the first paragraph of this Section
6(e), (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Defect
or Breach does not constitute a Defect or Breach, as the case may be, as to any
other Crossed Loan in such Crossed Group (without regard to this paragraph),
then the applicable Defect or Breach, as the case may be, will be deemed to
constitute a Defect or Breach, as the case may be, as to each other Crossed Loan
in the Crossed Group for purposes of this paragraph, and the Seller will be
required to repurchase or substitute for all of the remaining Crossed Loans in
the related Crossed Group as provided in the first paragraph of this Section
6(e) unless such other Crossed Loans in such Crossed Group satisfy the Crossed
Loan Repurchase Criteria, and the Mortgage Loan affected by the applicable
Defect or Breach and the Qualified Substitute Mortgage Loan, if any, satisfy all
other criteria for repurchase or substitution, as applicable, of Mortgage Loans
set forth herein. In the event that the remaining Crossed Loans satisfy the
aforementioned criteria, the Seller may elect either to repurchase or substitute
for only the affected Crossed Loan as to which the related Breach or Defect
exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. The Seller shall be responsible for the cost of any
Appraisal required to be obtained by the 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 the Seller (such approval
not to be unreasonably withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Trustee shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Trustee shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner that removes the threat of material impairment as a result of the
exercise of remedies or some other accommodation can be reached. Any reserve or
other cash collateral or letters of credit securing the Crossed Loans shall be
allocated between such Crossed Loans in accordance with the Mortgage Loan
documents, or otherwise on a pro rata basis based upon their outstanding Stated
Principal Balances. Notwithstanding the foregoing, if a Crossed Loan that
remains in the Trust Fund is modified to terminate the related cross
collateralization and/or cross default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
any modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
The "Repurchase Price" with respect to any Mortgage Loan or REO Loan
to be repurchased pursuant to this Agreement and Section 2.03 of the Pooling and
Servicing Agreement, shall have the meaning given to the term "Purchase Price"
in the Pooling and Servicing Agreement.
A "Qualified Substitute Mortgage Loan" with respect to any Mortgage
Loan or REO Loan to be substituted pursuant to this Agreement and Section 2.03
of the Pooling and Servicing Agreement, shall have the meaning given to such
term in the Pooling and Servicing Agreement.
A "Substitution Shortfall Amount" with respect to any Mortgage Loan
or REO Loan to be substituted pursuant to this Agreement and Section 2.03 of the
Pooling and Servicing Agreement, shall have the meaning given to such term in
the Pooling and Servicing Agreement.
In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated hereby, (i) the Purchaser shall execute and deliver,
or cause the execution and delivery of, such endorsements and assignments,
without recourse, as shall be necessary to vest in the Seller the legal and
beneficial ownership of each repurchased Mortgage Loan or replaced Mortgage
Loan, as applicable, (ii) the Purchaser shall deliver, or cause the delivery, to
the Seller of all portions of the Mortgage File and other documents (including
the Servicing File) pertaining to such Mortgage Loan possessed by the Trustee,
or on the Trustee's behalf, and (iii) the Purchaser shall release, or cause to
be released, to the Seller any escrow payments and reserve funds held by the
Trustee, or on the Trustee's behalf, in respect of such repurchased or replaced
Mortgage Loans.
(f) The representations and warranties of the parties hereto shall
survive the execution and delivery and any termination of this Agreement and
shall inure to the benefit of the respective parties, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes or Assignment of
Mortgage or the examination of the Mortgage Files.
(g) Each party hereby agrees to promptly notify the other party of
any Breach of a representation or warranty contained in this Section 6. The
Seller's obligation to cure any Breach or Defect or repurchase or substitute for
the affected Mortgage Loan pursuant to Section 6(e) herein shall constitute the
sole remedy available to the Purchaser, the Certificateholders and the Trustee
on behalf of the Certificateholders with respect to a Breach or Defect (subject
to the last sentence of the second paragraph of Section 6(e)); provided,
however, that no limitation of remedy is implied with respect to the Seller's
breach of its obligation to cure, repurchase or substitute in accordance with
the terms and conditions of this Agreement.
SECTION 7. Conditions to Closing. The obligations of the Purchaser
to purchase the Mortgage Loans shall be subject to the satisfaction, on or prior
to the Closing Date, of the following conditions:
(a) Each of the obligations of the Seller required to be performed
by it at or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with and all of the representations
and warranties of the Seller under this Agreement shall be true and correct in
all material respects as of the Closing Date, and no event shall have occurred
as of the Closing Date which, with notice or passage of time, would constitute a
default under this Agreement, and the Purchaser shall have received a
certificate to the foregoing effect signed by an authorized officer of the
Seller substantially in the form of Exhibit D.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of the Seller's certificate of corporate existence and
by-laws, certified as of a recent date by the Secretary or Assistant
Secretary of the Seller;
(ii) an original or copy of a certificate of corporate existence of
the Seller issued by the Comptroller of the Currency dated not earlier
than sixty days prior to the Closing Date;
(iii) an opinion of counsel of the Seller, in form and substance
satisfactory to the Purchaser and its counsel, substantially to the effect
that:
(A) the Seller is a national banking association, duly
organized, validly existing, and in good standing under the laws of
the United States;
(B) the Seller has the power to conduct its business as now
conducted and to incur and perform its obligations under this
Agreement and the Indemnification Agreement;
(C) all necessary corporate or other action has been taken by
the Seller to authorize the execution, delivery and performance of
this Agreement and the Indemnification Agreement by the Seller and
this Agreement is a legal, valid and binding agreement of the Seller
enforceable against the Seller, whether such enforcement is sought
in a procedure at law or in equity, except to the extent such
enforcement may be limited by bankruptcy or other similar creditors'
laws or principles of equity and public policy considerations
underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of
the Agreement which purport to provide indemnification with respect
to securities law violations;
(D) the Seller's execution and delivery of, and the Seller's
performance of its obligations under, each of this Agreement and the
Indemnification Agreement do not and will not conflict with the
Seller's articles of association or by-laws or conflict with or
result in the breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which
the Seller is a party or by which the Seller is bound, or to which
any of the property or assets of the Seller is subject or violate
any provisions of law or conflict with or result in the breach of
any order of any court or any governmental body binding on the
Seller;
(E) there is no litigation, arbitration or mediation pending
before any court, arbitrator, mediator or administrative body, or to
such counsel's actual knowledge, threatened, against the Seller
which (i) questions, directly or indirectly, the validity or
enforceability of this Agreement or the Indemnification Agreement or
(ii) would, if decided adversely to the Seller, either individually
or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of the Seller to perform its
obligations under this Agreement or the Indemnification Agreement;
and
(F) no consent, approval, authorization, order, license,
registration or qualification of or with federal court or
governmental agency or body is required for the consummation by the
Seller of the transactions contemplated by this Agreement and the
Indemnification Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained; and
(iv) a letter from counsel of the Seller to the effect that nothing
has come to such counsel's attention that would lead such counsel to
believe that the Prospectus Supplement as of the date thereof or as of the
Closing Date contains, with respect to the Seller or the Mortgage Loans,
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein relating to the Seller
or the Mortgage Loans, in the light of the circumstances under which they
were made, not misleading.
(c) The Offered Certificates shall have been concurrently issued and
sold pursuant to the terms of the Underwriting Agreement. The Private
Certificates shall have been concurrently issued and sold pursuant to the terms
of the Certificate Purchase Agreement.
(d) The Seller shall have executed and delivered concurrently
herewith the Indemnification Agreement.
(e) The Seller shall furnish the Purchaser with such other
certificates of its officers or others and such other documents and opinions to
evidence fulfillment of the conditions set forth in this Agreement as the
Purchaser and its counsel may reasonably request.
SECTION 8. Closing. The closing for the purchase and sale of the
Mortgage Loans shall take place at the office of Cadwalader, Wickersham & Taft
LLP, Charlotte, North Carolina, at 10:00 a.m., on the Closing Date or such other
place and time as the parties shall agree. The parties hereto agree that time is
of the essence with respect to this Agreement.
SECTION 9. Expenses. The Seller will pay its pro rata share (the
Seller's pro rata share to be determined according to the percentage that the
aggregate principal balance as of the Cut-off Date of all the Mortgage Loans
represents in proportion to the aggregate principal balance as of the Cut-off
Date of all the mortgage loans to be included in the Trust Fund) of all costs
and expenses of the Purchaser in connection with the transactions contemplated
herein, including (without duplication thereof), but not limited to: (i) the
costs and expenses of the Purchaser in connection with the purchase of the
Mortgage Loans and other mortgage loans; (ii) the costs and expenses of
reproducing and delivering the Pooling and Servicing Agreement and printing (or
otherwise reproducing) and delivering the Certificates; (iii) the reasonable and
documented fees, costs and expenses of the Trustee and its counsel incurred in
connection with the Trustee entering into the Pooling and Servicing Agreement;
(iv) the fees and disbursements of a firm of certified public accountants
selected by the Purchaser and the Seller with respect to numerical information
in respect of the Mortgage Loans, other mortgage loans and the Certificates
included in the Prospectus, the Memoranda (as defined in the Indemnification
Agreement) and 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 Thacher Proffitt & Wood LLP, counsel to the Underwriters, and
Cadwalader, Wickersham & Taft LLP, counsel to the Depositor.
SECTION 10. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement. Furthermore, the
parties shall in good faith endeavor to replace any provision held to be invalid
or unenforceable with a valid and enforceable provision which most closely
resembles, and which has the same economic effect as, the provision held to be
invalid or unenforceable.
SECTION 11. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to conflicts of
law principles and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
SECTION 12. No Third Party Beneficiaries. The parties do not intend
the benefits of this Agreement to inure to any third party except as expressly
set forth in Section 13.
SECTION 13. Assignment. The Seller hereby acknowledges that the
Purchaser has, concurrently with the execution hereof, executed and delivered
the Pooling and Servicing Agreement and that, in connection therewith, it has
assigned its rights hereunder to the Trustee for the benefit of the
Certificateholders to the extent set forth in the Pooling and Servicing
Agreement and that the rights so assigned may be further assigned to, and shall
inure to the benefit of, any successor trustee under the Pooling and Servicing
Agreement. The Seller hereby acknowledges its obligations (subject to the
provisions hereof), including that of expense reimbursement, pursuant to
Sections 2.01, 2.02 and 2.03 of the Pooling and Servicing Agreement. Except as
set forth hereinabove and in Sections 2.01, 2.02 and 2.03 of the Pooling and
Servicing Agreement, the representations and warranties of the Seller made
hereunder and the remedies provided hereunder with respect to Breaches or
Defects may not be further assigned by the Purchaser, the Trustee or any
successor trustee. No owner of a Certificate issued pursuant to the Pooling and
Servicing Agreement shall be deemed a successor or permitted assign because of
such ownership. This Agreement shall bind and inure to the benefit of, and be
enforceable by, the Seller, the Purchaser and their permitted successors and
permitted assigns. The warranties and representations and the agreements made by
the Seller herein shall survive delivery of the Mortgage Loans to the Trustee
until the termination of the Pooling and Servicing Agreement.
SECTION 14. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given upon
receipt by the intended recipient if personally delivered at or couriered, sent
by facsimile transmission or mailed by first class or registered mail, postage
prepaid, to (i) in the case of the Purchaser, J.P. Morgan Chase Commercial
Mortgage Securities Corp., 270 Park Avenue, New York, New York 10017, Attention:
Dennis Schuh, fax number (212) 834-6593 with a copy to Bianca Russo, fax number
(212) 834-6593, (ii) in the case of the Seller, PNC Bank, National Association,
10851 Mastin, Suite 300, Overland Park, Kansas 66210 (for deliveries or
courier), and P.O. Box 25965, Shawnee Mission, Kansas 66225-5965 (for United
States mail), Attention: Harry Funk, fax number: (913) 253-9001, with a copy to
it at One PNC Plaza, 249 Fifth Avenue, 21st Floor, Pittsburgh, Pennsylvania
15222, Attention: Gretchen Lengel Kelly, fax number: (412) 762-4334 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 herein or any
obligations of the Seller whatsoever shall be effective against the Seller
unless the Seller shall have agreed to such amendment in writing.
SECTION 16. Counterparts. This Agreement may be executed in any
number of counterparts, and by the parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument.
SECTION 17. Exercise of Rights. No failure or delay on the part of
any party to exercise any right, power or privilege under this Agreement and no
course of dealing between the Seller and the Purchaser shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. Except as set forth in
Section 6 herein, the rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any party would
otherwise have pursuant to law or equity. Except as set forth in Section 6
herein, no notice to or demand on any party in any case shall entitle such party
to any other or further notice or demand in similar or other circumstances, or
constitute a waiver of the right of either party to any other or further action
in any circumstances without notice or demand.
SECTION 18. No Partnership. Nothing herein contained shall be deemed
or construed to create a partnership or joint venture between the parties
hereto. Nothing herein contained shall be deemed or construed as creating an
agency relationship between the Purchaser and the Seller and neither party shall
take any action which could reasonably lead a third party to assume that it has
the authority to bind the other party or make commitments on such party's
behalf.
SECTION 19. Miscellaneous. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
* * * * * *
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
J.P. MORGAN CHASE COMMERCIAL MORTGAGE
SECURITIES CORP., as Purchaser
By: /s/ Charles Y. Lee
--------------------------------------
Name: Charles Y. Lee
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as Seller
By: /s/ Harry J. Funk
--------------------------------------
Name: Harry J. Funk
Title: Senior Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
JPMCC 2006-LDP9
Mortgage Loan Schedule (PNC)
Loan # Mortgagor Name
------ -----------------------------------------------------------------------------
48 JBG/Reston Hotel, L.L.C.
87 University Village at Salisbury, LLC
92 USA Trailside 1, LLC, USA Trailside 2, LLC, USA Trailside 3, LLC, USA
Trailside 4, LLC, USA Trailside 5, LLC, USA Trailside 6, LLC, USA Trailside
7, LLC, USA Trailside 8, LLC, USA Trailside 9, LLC, USA Trailside 10, LLC,
USA Trailside 11, LLC, USA Trailside 12, LLC, USA Trailside 13, LLC, USA
Trailside 14, LLC, USA Trailside 15, LLC, USA Trailside 16, LLC, USA
Trailside 17, LLC, USA Trailside 18, LLC, USA Trailside 19, LLC, USA
Trailside 20, LLC, USA Trailside 21, LLC, USA Trailside 22, LLC, USA
Trailside 24, LLC
93 ALH Properties No. Ten, L.P.
98 CEI Realty II, LLC
109 Lakeside San Antonio TIC, LLC
114 Aerovault Venture, L.P., Aerovault Ahern, LLC, Aerovault Barrons, LLC,
Aerovault Cook, LLC, Aerovault Freeway, LLC, Aerovault Horvath, LLC,
Aerovault Johnston, LLC, Aerovault Sunflower, LLC, Aerovault Kornievsky, LLC,
Aerovault Miyashiro, LLC, Aerovault Capital Assets, LLC
134 The Claridge Apartments, Ltd.
137 MBS-The Chancellor, Ltd
147 Kimball Plaza 1, LLC, Kimball Plaza 2, LLC, Kimball Plaza 3, LLC, Kimball
LLC, Kimball Plaza 8, LLC, Kimball Plaza 9, LLC, Kimball Plaza 10, LLC
159 Finkel Roth Group III, LLC, Roth Property LLC, Finkel Property, LLC
160 CJ Legacy, LLC
160.01
160.02
160.03
160.04
160.05
160.06
164 5400 South Apartments, L.L.C.
165 Middletown Commons, LLC & Smyrna One, L.L.C.
176 Cofat Venture, L.P., Cofat Colwell, LLC, Cofat Freeway, LLC, Cofat Harman,
LLC, Cofat HD, LLC, Cofat Khaw, LLC
183 Holly Ridge Apartments Limited Partnership
189 Olean Lodging Associates, LLC
193 MSF Frisco-I, LLC
198 Tahitian Inn, LLC
199 Aurovault Freeway LLC, Aurovault Horvath, LLC, Aurovault Johnston LLC,
Aurovault Sunflower, LLC, Aurovault Karnievsky, LLC, Aurovault Miyashiro,
LLC, Aurovault Capital Assets, LLC
202 FBL, L.L.C.
209 MSF Fort Worth-I, LLC
210 MSF Gattis-I, LLC
211 MSF Garland, LLC
212 MSF Little Elm-I, LLC
215 Greenfields Plaza Investment, LLC
216 MSF Dezavala, LLC
221 Buffalo Austin Associates-I, LLC
222 CHPC Leesburg, Ltd.
227 Cortland Lodging Associates, LLC
233 ClimaStor 7, L.L.C.
235 Allegany Lodging Associates, LLC
256 Southwest Plaza Seven, LLC
266 The Westwing Limited Partnership
267 NCSM Wedgewood I, LLC, NCSM Wedgewood II, LLC, NCSM Wedgewood III, LLC
268 Stonewood Apartments Limited Partnership
276 Chimney Hill LLC
277 Sixty Church Street, LLC
278 Bay City Bay Ranch Apartments, LP
Loan # Property Address City State Zip Code County
------ --------------------------- --------------- ----- -------- ----------------
48 11810 Sunrise Valley Drive Reston VA 20191 Fairfax
87 202 Onley Road Salisbury MD 21804 Wicomico
92 18139 East Mainstreet Parker CO 80134 Douglas
93 3201 Sage Road Houston TX 77056 Harris
98 4501 CEI Drive Blue Ash OH 45242 Hamilton
109 8555 Laurens Lane San Antonio TX 78218 San Antonio
114 8875 Aero Drive San Diego CA 92123 San Diego
134 10027 Spice Lane Houston TX 77072 Harris
137 311 Parramatta Lane Houston TX 77073 Harris
147 1612 West Ute Boulevard Park City UT 84098 Summit
159 25111 Glendale Avenue Redford MI 48239 Wayne
160 Various Various MI Various Oakland
160.01 800 Tech Row Drive Madison Heights MI 48071 Oakland
160.02 950 East Whitcomb Avenue Madison Heights MI 48071 Oakland
160.03 31900 Sherman Drive Madison Heights MI 48071 Oakland
160.04 31831 Sherman Drive Madison Heights MI 48071 Oakland
160.05 949 East Mandoline Avenue Madison Heights MI 48071 Oakland
160.06 22515 Heslip Drive Building Novi MI 48375 Oakland
164 4700 East 54th Street Tulsa OK 74135 Tulsa
165 460 West Main Street Middletown DE 19709 New Castle
176 1889 Rice Avenue Oxnard CA 93030 Ventura
183 1620 Hollywood Road Atlanta GA 30318 Fulton
189 101 Main Street Olean NY 14760 Cattaraugus
193 5401 Lebanon Road Frisco TX 75034 Collin
198 601 South Del Mabry Highway Tampa FL 33609 Hillsborough
199 8825 Aero Business Center San Diego CA 92123 San Diego
202 5445 West Missouri Avenue Glendale AZ 85301 Maricopa
209 4464 North Tarrant Parkway Ft. Worth TX 76248 Tarrant
210 1855 Gattis School Road Round Rock TX 78664 Williamson
211 5702 Lovan Drive Garland TX 75040 Dallas
212 2591 FM 423 Little Elm TX 75068 Denton
215 15615-15821 West Dodge Road Omaha NE 68118 Douglas
216 4100 DeZavala Rd. San Antonio TX 78249 Bexar
221 11725 FM 620 Austin TX 78750 Williamson
222 2511 Sennett Drive Leesburg FL 34748 Lake
227 26 River Street Cortland NY 13045 Tompkins
233 5252 Mancuso Lane Baton Rouge LA 70809 East Baton Rouge
235 3051 West State Street Olean NY 14760 Cattaraugus
256 810 W. San Mateo Road Santa Fe NM 87505 Santa Fe
266 1616 Corporate Court Irving TX 75038 Dallas
267 750 Wildwood Road Mahtomdei MN 55115 Washington
268 3600 Springer Rd Little Rock AR 77206 Pulaski
276 967 Park Lane Middletown OH 45042 Butler
277 62-64 Church Street Wallingford CT 06492 New Haven
278 1401 Thompson Drive Bay City TX 77414 Matagorda
Loan # Property Name Size Measure Interest Rate (%) Net Mortgage Interest Rate
------ ------------------------------------ ------ ----------- ----------------- --------------------------
48 Sheraton Reston 301 Rooms 5.99000 5.96957
87 University Village Apartments 147 Units 6.14000 6.11957
92 Trailside Apartments 280 Units 5.66000 5.63957
93 Hilton Garden Inn - Houston Galleria 182 Rooms 6.22000 6.17957
98 Cincinatti Eye Institute 108100 Square Feet 5.97000 5.94957
109 Lakeside Villas 293 Units 5.80000 5.77957
114 8875 Aero Business Center 101590 Square Feet 5.76000 5.70957
134 Claridge Apartment Homes 173 Units 6.23000 6.18957
137 Chancellor Apartment Homes 224 Units 6.09000 6.04957
147 Kimball Plaza 38104 Square Feet 5.75000 5.69957
159 Troy Design & Manufacturing Bldg. 135092 Square Feet 6.00000 5.94957
160 Liberty Trust Portfolio 172638 Square Feet 5.82000 5.76957
160.01 Evigna 63470 Square Feet 5.82000
160.02 Wide Open West 42120 Square Feet 5.82000
160.03 Tractech (ADT) 21950 Square Feet 5.82000
160.04 Keyang Electric 18618 Square Feet 5.82000
160.05 Baron Industries 16100 Square Feet 5.82000
160.06 Michigan Microtech 10380 Square Feet 5.82000
164 Fifty-Four Hundred South Apartments 153 Units 5.58000 5.52957
165 Middletown Commons 35421 Square Feet 5.86000 5.83957
176 First American Plaza - Oxnard 39001 Square Feet 5.80000 5.77957
183 The Park at Scott's Crossing 216 Units 7.00000 6.97957
189 Hampton Inn - Olean 76 Rooms 5.84000 5.73957
193 CVS Pharmacy - Frisco 13813 Square Feet 5.65000 5.62957
198 Tahitian Inn 79 Rooms 6.08000 6.00957
199 8825 Aero Business Center 35736 Square Feet 5.76000 5.70957
202 Missouri Avenue Distribution Center 105904 Square Feet 5.86000 5.78957
209 CVS Pharmacy - Fort Worth 13813 Square Feet 5.65000 5.62957
210 CVS Pharmacy - Round Rock 13813 Square Feet 5.65000 5.62957
211 CVS Pharmacy - Garland 13813 Square Feet 5.65000 5.62957
212 CVS Pharmacy - Little Elm 13813 Square Feet 5.65000 5.62957
215 Greenfield's Plaza 47219 Square Feet 5.79000 5.73957
216 CVS Pharmacy - San Antonio 13813 Square Feet 5.65000 5.62957
221 CVS Pharmacy - Austin 13813 Square Feet 5.65000 5.62957
222 Crossings at Leesburg Apartments 168 Units 7.00000 6.97957
227 Hampton Inn - Cortland 68 Rooms 5.84000 5.73957
233 ClimaStor 284 Units 6.10000 6.07957
235 Best Western University Inn 60 Rooms 6.02000 5.91957
256 Southwest Plaza 25029 Square Feet 5.98000 5.92957
266 1616 Corporate Court 25098 Square Feet 6.17000 6.09957
267 Wedgewood Village - Aldi 15894 Square Feet 5.66000 5.60957
268 Stonewood Apartments 52 Units 7.23000 7.20957
276 Chimney Hill Apartments 58 Units 6.14000 6.11957
277 60 Church Street 34235 Square Feet 6.52000 6.46957
278 Bay Ranch Apartments 64 Units 7.33000 7.30957
Loan # Original Balance Cutoff Balance Term Rem. Term Maturity/ARD Date Amort. Term Rem. Amort.
------ ---------------- -------------- ---- --------- ----------------- ----------- -----------
48 60,000,000 60,000,000 60 59 11/01/11 0 0
87 22,075,000 22,075,000 120 120 12/01/16 360 360
92 20,000,000 20,000,000 60 60 12/01/11 360 360
93 19,725,000 19,706,176 120 119 11/01/16 360 359
98 18,250,000 18,250,000 120 120 12/01/16 360 360
109 15,000,000 15,000,000 120 120 12/01/16 360 360
114 13,850,000 13,850,000 120 120 12/01/16 360 360
134 9,500,000 9,500,000 120 117 09/01/16 360 360
137 8,700,000 8,700,000 120 117 09/01/16 360 360
147 7,750,000 7,750,000 120 120 12/01/16 360 360
159 6,900,000 6,885,066 120 119 11/01/16 240 239
160 6,800,000 6,800,000 120 120 12/01/16 300 300
160.01 1,725,000 1,725,000 120 120 12/01/16 300 300
160.02 1,700,000 1,700,000 120 120 12/01/16 300 300
160.03 1,582,500 1,582,500 120 120 12/01/16 300 300
160.04 697,500 697,500 120 120 12/01/16 300 300
160.05 667,500 667,500 120 120 12/01/16 300 300
160.06 427,500 427,500 120 120 12/01/16 300 300
164 6,500,000 6,500,000 120 120 12/01/16 360 360
165 6,500,000 6,500,000 120 120 01/01/17 300 300
176 5,850,000 5,850,000 120 120 12/01/16 360 360
183 5,600,000 5,600,000 180 180 12/01/21 360 360
189 5,450,000 5,450,000 120 120 12/01/16 300 300
193 5,203,000 5,203,000 120 120 12/01/16 420 420
198 5,000,000 4,992,873 120 119 11/01/16 300 299
199 4,800,000 4,800,000 120 120 12/01/16 360 360
202 4,700,000 4,693,070 120 119 11/01/16 300 299
209 4,446,000 4,446,000 120 120 12/01/16 420 420
210 4,341,000 4,341,000 120 120 12/01/16 420 420
211 4,336,000 4,336,000 120 120 12/01/16 420 420
212 4,311,000 4,311,000 120 120 12/01/16 420 420
215 4,200,000 4,200,000 120 119 11/01/16 360 360
216 4,136,000 4,136,000 120 120 12/01/16 420 420
221 3,992,000 3,992,000 120 120 12/01/16 420 420
222 3,919,000 3,919,000 180 180 12/01/21 360 360
227 3,750,000 3,750,000 120 120 12/01/16 300 300
233 3,600,000 3,600,000 120 120 12/01/16 360 360
235 3,375,000 3,370,145 120 119 11/01/16 300 299
256 2,500,000 2,495,408 120 118 10/01/16 360 358
266 1,925,000 1,925,000 120 118 10/01/16 360 360
267 1,910,000 1,910,000 120 120 12/01/16 360 360
268 1,891,000 1,889,519 180 179 11/01/21 360 359
276 1,222,000 1,218,638 120 117 09/01/16 360 357
277 1,150,000 1,150,000 120 120 12/01/16 360 360
278 595,000 595,000 180 180 12/01/21 360 360
Loan # Monthly Debt Service Servicing Fee Rate Accrual Type ARD (Y/N) ARD Step Up (%) Title Type Crossed Loan
------ -------------------- ------------------ ------------ --------- --------------- ---------- ------------
48 303,660 0.02000 Actual/360 No Fee
87 134,344 0.02000 Actual/360 No Fee
92 115,574 0.02000 Actual/360 No Fee
93 121,066 0.04000 Actual/360 No Leasehold
98 109,066 0.02000 Actual/360 No Fee
109 88,013 0.02000 Actual/360 No Fee
114 80,913 0.05000 Actual/360 No Fee E
134 58,370 0.04000 Actual/360 No Fee
137 52,665 0.04000 Actual/360 No Fee
147 45,227 0.05000 Actual/360 No Fee
159 49,434 0.05000 Actual/360 No Fee
160 43,067 0.05000 Actual/360 No Fee
160.01 No Fee
160.02 No Fee
160.03 No Fee
160.04 No Fee
160.05 No Fee
160.06 No Fee
164 37,233 0.05000 Actual/360 No Fee
165 41,325 0.02000 Actual/360 No Fee
176 34,325 0.02000 Actual/360 No Fee
183 37,257 0.02000 Actual/360 No Fee
189 34,583 0.10000 Actual/360 No Fee
193 28,454 0.02000 Actual/360 No Fee
198 32,460 0.07000 Actual/360 No Fee
199 28,042 0.05000 Actual/360 No Fee E
202 29,881 0.07000 Actual/360 No Fee
209 24,314 0.02000 Actual/360 No Fee
210 23,740 0.02000 Actual/360 No Fee
211 23,713 0.02000 Actual/360 No Fee
212 23,576 0.02000 Actual/360 No Fee
215 24,617 0.05000 Actual/360 No Fee
216 22,619 0.02000 Actual/360 No Fee
221 21,832 0.02000 Actual/360 No Fee
222 26,073 0.02000 Actual/360 No Fee
227 23,796 0.10000 Actual/360 No Fee
233 21,816 0.02000 Actual/360 No Fee
235 21,786 0.10000 Actual/360 No Fee
256 14,957 0.05000 Actual/360 No Fee
266 11,753 0.07000 Actual/360 No Fee
267 11,037 0.05000 Actual/360 No Fee
268 12,874 0.02000 Actual/360 No Fee
276 7,437 0.02000 Actual/360 No Fee
277 7,284 0.05000 Actual/360 No Fee
278 4,091 0.02000 Actual/360 No Fee
Loan # Originator/Loan Seller Guarantor
------ ---------------------- -----------------------------------------------------------------------------
48 PNC JBG Investment Fund IV, LLC
87 PNC Darin A. Lockwood, Don A. Lockwood
92 PNC U.S. Advisor, LLC, Creekstone Partners, LLC, Joachim D. Reich, Sigrid Boehm,
David R. Fandel, Dawn C. Fandel, Elinor DeKoven, Sheldon H. Suskauer, George
G.Y. Niu, Sylvia S.W. Niu, Sharon L. Hawthorne, Harold Gordon Nelson, John
and Roberta Bernat, John and Frances Carol Brinkley, Phyllis E. Schnell,
Gerald Putnam, Walter T. Liu and Marianne C. Liu, James M Helmick and
Patricia I. Helmick, Raj and Lina Shah, Mike and Barbara Grimes, Larry D.
Bernhard and Penny L. Bernhard, Barton R. Bruttig and Christine M. Smith,
Paul W. Walter, Ian H. Linton and Jane W. Linton, Mark Vanbuhler and Lisa
Vanbuhler, Martin W. Parker and Margaret Parker, Shirley and James Domian
93 PNC Nick Massad, Jr.
98 PNC CEI Investments, LLC et al
109 PNC Brian E. Eliason, David J. Eliason
114 PNC James R. Hopper, Thomas Ahern, James Glenn Barrons, Kristi Cook, David
Walker, Robert Horvath, Richard M. Johnston, Alan Kipnis, George M.
Kornievsky, Susumu Miyashiro, Josh Fein, Thomas Spear, Capital Assets, Inc.
134 PNC Michael B. Smuck
137 PNC Michael B. Smuck, Edwin A. White
147 PNC Daniel K. Shaw, Joseph Mandelbaum, Gregory E. Jones, Bruce Monzulla
159 PNC Jaimey Noel Roth, Paul G. Finkel, Steven G. Gordon
160 PNC Charles F. Paine
160.01 PNC
160.02 PNC
160.03 PNC
160.04 PNC
160.05 PNC
160.06 PNC
164 PNC Julian Bernstein, Edward B. Leinbach
165 PNC David M. Cantera, Robert G.Wittig
176 PNC James R. Hopper, Virginia M. Colwell, David Waller, Glen H. Harman, Jr., Gail
Hupalo Dasse, Oscar Khaw, Josh Fein, Thomas Spear
183 PNC Rodney F. Triplett
189 PNC Arun Patel, Magan Patel, Vipin Patel
193 PNC Ronald Benderson, David H. Baldauf
198 PNC Joseph C. Pupello
199 PNC James R. Hopper, Thomas Ahern, James Glenn Barrons, Kristi Cook, David
Walker, Robert Horvath, Richard M. Johnston, Alan Kipnis, George M.
Kornievsky, Susumu Miyashiro, Josh Fein, Thomas Spear, Capital Assets, Inc.
202 PNC Lawrence L. Lantero, Jr., Robert B. Footlik, Glenn J. Binstein
209 PNC Ronald Benderson, David H. Baldauf
210 PNC Ronald Benderson, David H. Baldauf
211 PNC Ronald Benderson, David H. Baldauf
212 PNC Ronald Benderson, David H. Baldauf
215 PNC William F. Logan
216 PNC Ronald Benderson, David H. Baldauf
221 PNC Ronald Benderson, David H. Baldauf
222 PNC Community Housing Partners Corp
227 PNC Arun Patel, Hemant Patel
233 PNC James H. Jenkins
235 PNC Hemant Patel, Arun Patel
256 PNC Michael P. Branch, Jeffrey Branch
266 PNC Tina Sefayan Kaley, William F. Kaley, Nicholas N. Sefayan
267 PNC William M. Bracken, Bruce M. Carlson, John D. Maney
268 PNC Stonewood Apartments, LLC
276 PNC Christopher K. Germain, John C. Germain
277 PNC Neal E. Robison, Sr.
278 PNC Michael G. Lankford
UPFRONT ESCROW
---------------------------------------------------------------------------------------------
Loan # Letter of Credit Upfront CapEx Reserve Upfront Eng. Reserve Upfront Envir. Reserve Upfront TI/LC Reserve
------ ---------------- --------------------- -------------------- ---------------------- ---------------------
48 No 0.00 0.00 0.00 0.00
87 No 0.00 50,000.00 0.00 0.00
92 No 0.00 0.00 0.00 0.00
93 0.00 5 No Hotel No
98 0.00 5 Yes Office Yes
109 0.00 5 No Multifamily Yes
114 0.00 5 No Office Yes
134 0.00 5 No Multifamily No
137 0.00 5 No Multifamily No
147 0.00 5 No Mixed Use Yes
159 0.00 5 No Industrial Yes
160 0.00 5 No Various Yes
160.01 0.00 5 Industrial
160.02 0.00 5 Industrial
160.03 0.00 5 Office
160.04 0.00 5 Industrial
160.05 0.00 5 Industrial
160.06 0.00 5 Industrial
164 0.00 5 No Multifamily No
165 0.00 5 No Retail Yes
176 0.00 5 No Office Yes
183 0.00 5 No Multifamily Yes
189 0.00 5 No Hotel No
193 0.00 5 No Retail No
198 0.00 5 No Hotel No
199 0.00 5 No Office Yes
202 0.00 5 No Industrial Yes
209 0.00 5 No Retail No
210 0.00 5 No Retail No
211 0.00 5 No Retail No
212 0.00 5 No Retail No
215 0.00 5 No Retail No
216 0.00 5 No Retail No
221 0.00 5 No Retail No
222 0.00 5 No Multifamily Yes
227 0.00 5 No Hotel No
233 0.00 5 No Self Storage Yes
235 0.00 5 No Hotel No
256 0.00 5 No Office No
266 0.00 5 No Office No
267 0.00 5 Yes Retail Yes
268 0.00 5 No Multifamily Yes
276 0.00 5 No Multifamily No
277 0.00 5 No Office Yes
278 0.00 5 No Multifamily Yes
Loan # Interest Accrual Period Loan Group Final Maturity Date Remaining Amortization Term for Balloon Loans
------ ----------------------- ---------- ------------------- ---------------------------------------------
48 Actual/360 3
87 Actual/360 1 360
92 Actual/360 3 360
93 Actual/360 1 360
98 Actual/360 1 360
109 Actual/360 2 360
114 Actual/360 1 360
134 Actual/360 2 360
137 Actual/360 2 360
147 Actual/360 1 360
159 Actual/360 1 240
160 Actual/360 1 300
160.01 1 300
160.02 1 300
160.03 1 300
160.04 1 300
160.05 1 300
160.06 1 300
164 Actual/360 2 360
165 Actual/360 1 300
176 Actual/360 1 360
183 Actual/360 2 360
189 Actual/360 1 300
193 Actual/360 1 420
198 Actual/360 1 300
199 Actual/360 1 360
202 Actual/360 1 300
209 Actual/360 1 420
210 Actual/360 1 420
211 Actual/360 1 420
212 Actual/360 1 420
215 Actual/360 1 360
216 Actual/360 1 420
221 Actual/360 1 420
222 Actual/360 2 360
227 Actual/360 1 300
233 Actual/360 1 360
235 Actual/360 1 300
256 Actual/360 1 360
266 Actual/360 1 360
267 Actual/360 1 360
268 Actual/360 2 360
276 Actual/360 2 360
277 Actual/360 1 360
278 Actual/360 2 360
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
(1) No Mortgage Loan is 30 days or more delinquent in payment of
principal and interest (without giving effect to any applicable grace period in
the related Mortgage Note) and no Mortgage Loan has been 30 days or more
(without giving effect to any applicable grace period in the related Mortgage
Note) past due.
(2) Except with respect to the ARD Loans, which provide that the
rate at which interest accrues thereon increases after the Anticipated Repayment
Date, the Mortgage Loans (exclusive of any default interest, late charges or
prepayment premiums) are fixed rate mortgage loans with terms to maturity, at
origination or as of the most recent modification, as set forth in the Mortgage
Loan Schedule.
(3) The information pertaining to each Mortgage Loan set forth on
the Mortgage Loan Schedule is true and correct in all material respects as of
the Cut-off Date.
(4) At the time of the assignment of the Mortgage Loans to the
Purchaser, the Seller had good and marketable title to and was the sole owner
and holder of, each Mortgage Loan, free and clear of any pledge, lien,
encumbrance or security interest (subject to certain agreements regarding
servicing as provided in the Pooling and Servicing Agreement, subservicing
agreements permitted thereunder and that certain Servicing Rights Purchase
Agreement, dated as of the Closing Date between the applicable Master Servicer
and Seller) and such assignment validly and effectively transfers and conveys
all legal and beneficial ownership of the Mortgage Loans to the Purchaser free
and clear of any pledge, lien, encumbrance or security interest (subject to
certain agreements regarding servicing as provided in the Pooling and Servicing
Agreement, subservicing agreements permitted thereunder and that certain
Servicing Rights Purchase Agreement, dated as of the Closing Date between the
applicable Master Servicer and Seller).
(5) In respect of each Mortgage Loan, (A) in reliance on public
documents or certified copies of the incorporation or partnership or other
entity documents, as applicable, delivered in connection with the origination of
such Mortgage Loan, the related Mortgagor is an entity organized under the laws
of a state of the United States of America, the District of Columbia or the
Commonwealth of Puerto Rico and (B) as of the origination date, the Seller
(based on customary due diligence) had no knowledge, and since the origination
date, the Seller has no actual knowledge, that the related Mortgagor is a debtor
in any bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or similar proceeding.
(6) Each Mortgage Loan is secured by the related Mortgage which
establishes and creates a valid and subsisting first priority lien on the
related Mortgaged Property, or leasehold interest therein, comprising real
estate, free and clear of any liens, claims, encumbrances, participation
interests, pledges, charges or security interests subject only to Permitted
Encumbrances. Such Mortgage, together with any separate security agreement, UCC
Financing Statement or similar agreement, if any, establishes and creates a
first priority security interest in favor of the Seller in all personal property
owned by the Mortgagor that is used in, and is reasonably necessary to, the
operation of the related Mortgaged Property and, to the extent a security
interest may be created therein and perfected by the filing of a UCC Financing
Statement under the Uniform Commercial Code as in effect in the relevant
jurisdiction, the proceeds arising from the Mortgaged Property and other
collateral securing such Mortgage Loan, subject only to Permitted Encumbrances.
There exists with respect to such Mortgaged Property an assignment of leases and
rents provision, either as part of the related Mortgage or as a separate
document or instrument, which establishes and creates a first priority security
interest in and to leases and rents arising in respect of the related Mortgaged
Property, subject only to Permitted Encumbrances. Except for the holder of the
Companion Loan with respect to the AB Mortgage Loans, to the Seller's knowledge,
no person other than the related Mortgagor and the mortgagee own any interest in
any payments due under the related leases. The related Mortgage or such
assignment of leases and rents provision provides for the appointment of a
receiver for rents or allows the holder of the related Mortgage to enter into
possession of the related Mortgaged Property to collect rent or provides for
rents to be paid directly to the holder of the related Mortgage in the event of
a default beyond applicable notice and grace periods, if any, under the related
Mortgage Loan documents. As of the origination date, there were, and, to the
Seller's actual knowledge as of the Closing Date, there are, no mechanics' or
other similar liens or claims which have been filed for work, labor or materials
affecting the related Mortgaged Property which are or may be prior or equal to
the lien of the Mortgage, except those that are bonded or escrowed for or which
are insured against pursuant to the applicable Title Insurance Policy (as
defined below) and except for Permitted Encumbrances. No (a) Mortgaged Property
secures any mortgage loan not represented on the Mortgage Loan Schedule other
than a Companion Loan, (b) Mortgage Loan is cross-collateralized or
cross-defaulted with any other mortgage loan, other than a Mortgage Loan listed
on the Mortgage Loan Schedule or a Companion Loan, or (c) Mortgage Loan is
secured by property that is not a Mortgaged Property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rent, operating revenues or other personal property to the extent
that possession or control of such items or actions other than the recordation
of the Mortgage or the Assignment of Leases and Rents or the filing of UCC
Financing Statements are required in order to effect such perfection.
(7) The related Mortgagor under each Mortgage Loan has good and
indefeasible fee simple or, with respect to those Mortgage Loans described in
clause (20) hereof, leasehold title to the related Mortgaged Property comprising
real estate subject to any Permitted Encumbrances.
(8) The Seller has received an American Land Title Association
(ALTA) lender's title insurance policy or a comparable form of lender's title
insurance policy (or escrow instructions binding on the Title Insurer (as
defined below) and irrevocably obligating the Title Insurer to issue such title
insurance policy or a title policy commitment or pro-forma "marked up" at the
closing of the related Mortgage Loan and countersigned or otherwise approved by
the Title Insurer or its authorized agent) as adopted in the applicable
jurisdiction (the "Title Insurance Policy"), which was issued by a nationally
recognized title insurance company (the "Title Insurer") qualified to do
business in the jurisdiction where the applicable Mortgaged Property is located
(unless such jurisdiction is the State of Iowa), covering the portion of each
Mortgaged Property comprised of real estate and insuring that the related
Mortgage is a valid first lien in the original principal amount of the related
Mortgage Loan on the Mortgagor's fee simple interest (or, if applicable,
leasehold interest) in such Mortgaged Property comprised of real estate, subject
only to Permitted Encumbrances. Such Title Insurance Policy was issued in
connection with the origination of the related Mortgage Loan. No claims have
been made under such Title Insurance Policy. Such Title Insurance Policy is in
full force and effect and all premiums thereon have been paid and will provide
that the insured includes the owner of the Mortgage Loan and its successors
and/or assigns. No holder of the related Mortgage has done, by act or omission,
anything that would, and the Seller has no actual knowledge of any other
circumstance that would, impair the coverage under such Title Insurance Policy.
(9) The related Assignment of Mortgage and the related assignment of
the Assignment of Leases and Rents executed in connection with each Mortgage, if
any, have been recorded in the applicable jurisdiction (or, if not recorded,
have been submitted for recording or are in recordable form (but for the
insertion of the name and address of the assignee and any related recording
information which is not yet available to the Seller)) and constitute the legal,
valid and binding assignment of such Mortgage and the related Assignment of
Leases and Rents from the Seller to the Purchaser. The endorsement of the
related Mortgage Note by the Seller constitutes the legal, valid, binding and
enforceable (except as such enforcement may be limited by anti-deficiency laws
or bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law)) assignment of
such Mortgage Note, and together with such Assignment of Mortgage and the
related assignment of Assignment of Leases and Rents, legally and validly
conveys all right, title and interest in such Mortgage Loan and Mortgage Loan
documents to the Purchaser.
(10) (a) The Mortgage Loan documents for each Mortgage Loan provide
that such Mortgage Loan is non-recourse to the related parties thereto except
that the related Mortgagor and at least one individual or entity shall be fully
liable for actual losses, liabilities, costs and damages arising from certain
acts of the related Mortgagor and/or its principals specified in the related
Mortgage Loan documents, which acts generally include the following: (i) fraud
or intentional material misrepresentation, (ii) misapplication or
misappropriation of rents, insurance proceeds or condemnation awards, (iii)
either (x) any act of actual waste by or (y) damage or destruction to the
Mortgaged Property caused by the acts or omissions of the borrower, its agents,
employees or contractors, and (iv) any breach of the environmental covenants
contained in the related Mortgage Loan documents.
(b) The Mortgage Loan documents for each Mortgage Loan contain
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the practical realization against the
Mortgaged Property of the principal benefits of the security intended to
be provided thereby, including realization by judicial or, if applicable,
non judicial foreclosure, and there is no exemption available to the
related Mortgagor which would interfere with such right of foreclosure
except any statutory right of redemption or as may be limited by
anti-deficiency or one form of action laws or by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(c) Each of the related Mortgage Notes and Mortgages are the legal,
valid and binding obligations of the related Mortgagor named on the
Mortgage Loan Schedule and each of the other related Mortgage Loan
documents is the legal, valid and binding obligation of the parties
thereto (subject to any non recourse provisions therein), enforceable in
accordance with its terms, except as such enforcement may be limited by
anti-deficiency or one form of action laws or bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions of such Mortgage Loan documents are or may be unenforceable in
whole or in part under applicable state or federal laws, but the inclusion
of such provisions does not render any of the Mortgage Loan documents
invalid as a whole, and such Mortgage Loan documents taken as a whole are
enforceable to the extent necessary and customary for the practical
realization of the principal rights and benefits afforded thereby.
(d) The terms of the Mortgage Loans or the related Mortgage Loan
documents, have not been altered, impaired, modified or waived in any
material respect, except prior to the Cut-off Date by written instrument
duly submitted for recordation, to the extent required, and as
specifically set forth in the related Mortgage File.
(e) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently
so serves and is named in the deed of trust or may be substituted in
accordance with applicable law, and no fees or expenses are or will become
payable to the trustee under the deed of trust, except in connection with
a trustee's sale after default by the Mortgagor and de minimis fees paid
in connection with the release of the related Mortgaged Property or
related security for such Mortgage Loan following payment of such Mortgage
Loan in full.
(11) Except by a written instrument that has been delivered to the
Purchaser as a part of the related Mortgage File with respect to any immaterial
releases of the Mortgaged Property, no Mortgage Loan has been satisfied,
canceled, subordinated, released or rescinded, in whole or in part, and the
related Mortgagor has not been released, in whole or in part, from its
obligations under any related Mortgage Loan document.
(12) Except with respect to the enforceability of any provisions
requiring the payment of default interest, late fees, additional interest,
prepayment premiums or yield maintenance charges, neither the Mortgage Loan nor
any of the related Mortgage Loan documents is subject to any right of
rescission, set off, abatement, diminution, valid counterclaim or defense,
including the defense of usury, nor will the operation of any of the terms of
any such Mortgage Loan documents, or the exercise (in compliance with procedures
permitted under applicable law) of any right thereunder, render any Mortgage
Loan documents subject to any right of rescission, set off, abatement,
diminution, valid counterclaim or defense, including the defense of usury
(subject to anti-deficiency or one form of action laws and to bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or other
similar laws affecting the enforcement of creditor's rights generally and to
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law)), and no such right of
rescission, set off, abatement, diminution, valid counterclaim or defense has
been asserted with respect thereto. None of the Mortgage Loan documents provides
for a release of a portion of the Mortgaged Property from the lien of the
Mortgage except upon payment or defeasance in full of all obligations under the
Mortgage, provided that, notwithstanding the foregoing, certain of the Mortgage
Loans may allow partial release (a) upon payment or defeasance of an Allocated
Loan Amount which may be formula based, but in no event less than 125% of the
Allocated Loan Amount, or (b) in the event the portion of the Mortgaged Property
being released was not given any material value in connection with the
underwriting or appraisal of the related Mortgage Loan.
(13) As of the Closing Date, there is no payment default, after
giving effect to any applicable notice and/or grace period, and, to the Seller's
knowledge, as of the Closing Date, there is no other material default under any
of the related Mortgage Loan documents, after giving effect to any applicable
notice and/or grace period; no such material default or breach has been waived
by the Seller or on its behalf or, to the Seller's knowledge, by the Seller's
predecessors in interest with respect to the Mortgage Loans; and, to the
Seller's actual knowledge, no event has occurred which, with the passing of time
or giving of notice would constitute a material default or breach; provided,
however, that the representations and warranties set forth in this sentence do
not cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of any subject matter otherwise covered
by any other representation or warranty made by the Seller in this Exhibit B. No
Mortgage Loan has been accelerated and no foreclosure proceeding or power of
sale proceeding has been initiated under the terms of the related Mortgage Loan
documents. The Seller has not waived any material claims against the related
Mortgagor under any non-recourse exceptions contained in the Mortgage Note.
(14) (a) The principal amount of the Mortgage Loan stated on the
Mortgage Loan Schedule has been fully disbursed as of the Closing Date (except
for certain amounts that were fully disbursed by the mortgagee, but were
escrowed pursuant to the terms of the related Mortgage Loan documents) and there
are no future advances required to be made by the mortgagee under any of the
related Mortgage Loan documents. Any requirements under the related Mortgage
Loan documents regarding the completion of any on-site or off-site improvements
and to disbursements of any escrow funds therefor have been or are being
complied with or such escrow funds are still being held. The value of the
Mortgaged Property relative to the value reflected in the most recent appraisal
thereof is not materially impaired by any improvements which have not been
completed. The Seller has not, nor, to the Seller's knowledge, have any of its
agents or predecessors in interest with respect to the Mortgage Loan, in respect
of payments due on the related Mortgage Note or Mortgage, directly or
indirectly, advanced funds or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor other than (a) interest
accruing on such Mortgage Loan from the date of such disbursement of such
Mortgage Loan to the date which preceded by thirty (30) days the first payment
date under the related Mortgage Note and (b) application and commitment fees,
escrow funds, points and reimbursements for fees and expenses, incurred in
connection with the origination and funding of the Mortgage Loan.
(b) No Mortgage Loan has capitalized interest included in its
principal balance, or provides for any shared appreciation rights or other
equity participation therein and no contingent or additional interest
contingent on cash flow or negative amortization (other than with respect
to the deferment of payment with respect to ARD Loans) is due thereon.
(c) Each Mortgage Loan identified in the Mortgage Loan Schedule as
an ARD Loan starts to amortize no later than the Due Date of the calendar
month immediately after the calendar month in which such ARD Loan closed
and substantially fully amortizes over its stated term, which term is at
least 60 months after the related Anticipated Repayment Date. Each ARD
Loan has an Anticipated Repayment Date not less than seven years following
the origination of such Mortgage Loan. If the related Mortgagor elects not
to prepay its ARD Loan in full on or prior to the Anticipated Repayment
Date pursuant to the existing terms of the Mortgage Loan or a unilateral
option (as defined in Treasury Regulations under Section 1001 of the Code)
in the Mortgage Loan exercisable during the term of the Mortgage Loan, (i)
the Mortgage Loan's interest rate will step up to an interest rate per
annum as specified in the related Mortgage Loan documents; provided,
however, that payment of such Excess Interest shall be deferred until the
principal of such ARD Loan has been paid in full; (ii) all or a
substantial portion of the Excess Cash Flow (which is net of certain costs
associated with owning, managing and operating the related Mortgaged
Property) collected after the Anticipated Repayment Date shall be applied
towards the prepayment of such ARD Loan and once the principal balance of
an ARD Loan has been reduced to zero all Excess Cash Flow will be applied
to the payment of accrued Excess Interest; and (iii) if the property
manager for the related Mortgaged Property can be removed by or at the
direction of the mortgagee on the basis of a debt service coverage test,
the subject debt service coverage ratio shall be calculated without taking
account of any increase in the related Mortgage Interest Rate on such
Mortgage Loan's Anticipated Repayment Date. No ARD Loan provides that the
property manager for the related Mortgaged Property can be removed by or
at the direction of the mortgagee solely because of the passage of the
related Anticipated Repayment Date.
(d) Each Mortgage Loan identified in the Mortgage Loan Schedule as
an ARD Loan with a hard lockbox requires that tenants at the related
Mortgaged Property shall (and each Mortgage Loan identified in the
Mortgage Loan Schedule as an ARD Loan with a springing lockbox requires
that tenants at the related Mortgaged Property shall, upon the occurrence
of a specified trigger event, including, but not limited to, the
occurrence of the related Anticipated Repayment Date) make rent payments
into a lockbox controlled by the holder of the Mortgage Loan and to which
the holder of the Mortgage Loan has a first perfected security interest;
provided, however, with respect to each ARD Loan which is secured by a
multi-family property with a hard lockbox, or with respect to each ARD
Loan which is secured by a multi-family property with a springing lockbox,
upon the occurrence of a specified trigger event, including, but not
limited to, the occurrence of the related Anticipated Repayment Date,
tenants either pay rents to a lockbox controlled by the holder of the
Mortgage Loan or deposit rents with the property manager who will then
deposit the rents into a lockbox controlled by the holder of the Mortgage
Loan.
(15) The terms of the Mortgage Loan documents evidencing such
Mortgage Loan comply in all material respects with all applicable local, state
and federal laws and regulations, and the Seller has complied with all material
requirements pertaining to the origination of the Mortgage Loans, including but
not limited to, usury and any and all other material requirements of any
federal, state or local law to the extent non-compliance would have a material
adverse effect on the Mortgage Loan.
(16) To the Seller's knowledge and subject to clause (37) hereof, as
of the date of origination of the Mortgage Loan, based on inquiry customary in
the industry, the related Mortgaged Property was, and to the Seller's actual
knowledge and subject to clause (37) hereof, as of the Closing Date, the related
Mortgaged Property is, in all material respects, in compliance with, and is used
and occupied in accordance with, all restrictive covenants of record applicable
to such Mortgaged Property and applicable zoning laws and all inspections,
licenses, permits and certificates of occupancy required by law, ordinance or
regulation to be made or issued with regard to the Mortgaged Property have been
obtained and are in full force and effect, except to the extent (a) any material
non-compliance with applicable zoning laws is insured by an ALTA lender's title
insurance policy (or binding commitment therefor), or the equivalent as adopted
in the applicable jurisdiction, or a law and ordinance insurance policy, or (b)
the failure to obtain or maintain such inspections, licenses, permits or
certificates of occupancy does not materially impair or materially and adversely
affect the use and/or operation of the Mortgaged Property as it was used and
operated as of the date of origination of the Mortgage Loan or the rights of a
holder of the related Mortgage Loan.
(17) All (a) taxes, water charges, sewer rents, assessments or other
similar outstanding governmental charges and governmental assessments which
became due and owing prior to the Closing Date in respect of the related
Mortgaged Property (excluding any related personal property), and if left
unpaid, would be, or might become, a lien on such Mortgaged Property having
priority over the related Mortgage and (b) insurance premiums or ground rents
which became due and owing prior to the Closing Date in respect of the related
Mortgaged Property (excluding any related personal property), have been paid, or
if disputed, or if such amounts are not delinquent prior to the Closing Date, an
escrow of funds in an amount sufficient (together with escrow payments required
to be made prior to delinquency) to cover such taxes and assessments and any
late charges due in connection therewith has been established. As of the date of
origination, the related Mortgaged Property was one or more separate and
complete tax parcels. For purposes of this representation and warranty, the
items identified herein shall not be considered due and owing until the date on
which interest or penalties would be first payable thereon.
(18) To the Seller's knowledge based on surveys or the Title
Insurance Policy, (i) none of the material improvements that were included for
the purpose of determining the appraised value of the related Mortgaged Property
at the time of the origination of such Mortgage Loan lies outside the boundaries
and building restriction lines of such Mortgaged Property, except to the extent
they are legally nonconforming as contemplated by representation (37) below, and
(ii) no improvements on adjoining properties encroach upon such Mortgaged
Property, except in the case of either (i) or (ii) for (a) immaterial
encroachments which do not materially adversely affect the security intended to
be provided by the related Mortgage or the use, enjoyment, value or
marketability of such Mortgaged Property or (b) encroachments affirmatively
covered by the related Title Insurance Policy. With respect to each Mortgage
Loan, the property legally described in the survey, if any, obtained for the
related Mortgaged Property for purposes of the origination thereof is the same
as the property legally described in the Mortgage.
(19) (a) As of the date of the applicable engineering report (which
was performed within 12 months prior to the Cut-off Date) related to the
Mortgaged Property and, to Seller's knowledge as of the Closing Date, the
related Mortgaged Property is either (i) in good repair, free and clear of any
damage that would materially adversely affect the value of such Mortgaged
Property as security for such Mortgage Loan or the use and operation of the
Mortgaged Property as it was being used or operated as of the origination date
or (ii) escrows in an amount consistent with the standard utilized by the Seller
with respect to similar loans it holds for its own account have been
established, which escrows will in all events be not less than 100% of the
estimated cost of the required repairs. Since the origination date, to the
Seller's actual knowledge, such Mortgaged Property has not been damaged by fire,
wind or other casualty or physical condition that would materially and adversely
affect its value as security for the related Mortgage Loan (including, without
limitation, any soil erosion or subsidence or geological condition), which
damage has not been fully repaired or fully insured, or for which escrows in an
amount consistent with the standard utilized by the Seller with respect to loans
it holds for its own account have not been established.
(b) As of the origination date of such Mortgage Loan and to the
Seller's actual knowledge, as of the Closing Date, there are no
proceedings pending or, to the Seller's actual knowledge, threatened, for
the partial or total condemnation of the relevant Mortgaged Property.
(20) The Mortgage Loans that are identified on Exhibit A as being
secured in whole or in part by a leasehold estate (a "Ground Lease") (except
with respect to any Mortgage Loan also secured by the related fee interest in
the Mortgaged Property) satisfy the following conditions:
(a) such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease or other agreement received by the
originator of the Mortgage Loan from the ground lessor, provides that the
interest of the lessee thereunder may be encumbered by the related
Mortgage and does not restrict the use of the related Mortgaged Property
by such lessee, its successors or assigns, in a manner that would
materially and adversely affect the security provided by the Mortgage; as
of the date of origination of the Mortgage Loan, there was no material
change of record in the terms of such Ground Lease with the exception of
written instruments which are part of the related Mortgage File and Seller
has no knowledge of any material change in the terms of such Ground Lease
since the recordation of the related Mortgage, with the exception of
written instruments which are part of the related Mortgage File;
(b) such Ground Lease or such other agreement received by the
originator of the Mortgage Loan from the ground lessor is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related fee interest and Permitted
Encumbrances and such Ground Lease or such other agreement received by the
originator of the Mortgage Loan from the ground lessor is, and shall
remain, prior to any mortgage or other lien upon the related fee interest
(other than the Permitted Encumbrances) unless a nondisturbance agreement
is obtained from the holder of any mortgage on the fee interest which is
assignable to or for the benefit of the related lessee and the related
mortgagee;
(c) such Ground Lease or other agreement provides that upon
foreclosure of the related Mortgage or assignment of the Mortgagor's
interest in such Ground Lease in lieu thereof, the mortgagee under such
Mortgage is entitled to become the owner of such interest upon notice to,
but without the consent of, the lessor thereunder and, in the event that
such mortgagee (or any of its successors and assigns under the Mortgage)
becomes the owner of such interest, such interest is further assignable by
such mortgagee (or any of its successors and assigns under the Mortgage)
upon notice to such lessor, but without a need to obtain the consent of
such lessor;
(d) such Ground Lease is in full force and effect and no default of
tenant or ground lessor was in existence at origination, or to the
Seller's knowledge, is in existence as of the Closing Date, under such
Ground Lease, nor at origination was, or to the Seller's knowledge, is
there any condition which, but for the passage of time or the giving of
notice, would result in a default under the terms of such Ground Lease;
either such Ground Lease or a separate agreement contains the ground
lessor's covenant that it shall not amend, modify, cancel or terminate
such Ground Lease without the prior written consent of the mortgagee under
such Mortgage and any amendment, modification, cancellation or termination
of the Ground Lease without the prior written consent of the related
mortgagee, or its successors or assigns is not binding on such mortgagee,
or its successor or assigns;
(e) such Ground Lease or other agreement requires the lessor
thereunder to give written notice of any material default by the lessee to
the mortgagee under the related Mortgage, provided that such mortgagee has
provided the lessor with notice of its lien in accordance with the
provisions of such Ground Lease; and such Ground Lease or other agreement
provides that no such notice of default and no termination of the Ground
Lease in connection with such notice of default shall be effective against
such mortgagee unless such notice of default has been given to such
mortgagee and any related Ground Lease or other agreement contains the
ground lessor's covenant that it will give to the related mortgagee, or
its successors or assigns, any notices it sends to the Mortgagor;
(f) either (i) the related ground lessor has subordinated its
interest in the related Mortgaged Property to the interest of the holder
of the Mortgage Loan or (ii) such Ground Lease or other agreement provides
that (A) the mortgagee under the related Mortgage is permitted a
reasonable opportunity to cure any default under such Ground Lease which
is curable, including reasonable time to gain possession of the interest
of the lessee under the Ground Lease, after the receipt of notice of any
such default before the lessor thereunder may terminate such Ground Lease;
(B) in the case of any such default which is not curable by such
mortgagee, or in the event of the bankruptcy or insolvency of the lessee
under such Ground Lease, such mortgagee has the right, following
termination of the existing Ground Lease or rejection thereof by a
bankruptcy trustee or similar party, to enter into a new ground lease with
the lessor on substantially the same terms as the existing Ground Lease;
and (C) all rights of the Mortgagor under such Ground Lease (insofar as it
relates to the Ground Lease) may be exercised by or on behalf of such
mortgagee under the related Mortgage upon foreclosure or assignment in
lieu of foreclosure;
(g) such Ground Lease has an original term (or an original term plus
one or more optional renewal terms that under all circumstances may be
exercised, and will be enforceable, by the mortgagee or its assignee)
which extends not less than 20 years beyond the stated maturity date of
the related Mortgage Loan;
(h) under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds will be applied either to
the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee under such Mortgage or a financially
responsible institution acting as trustee appointed by it, or consented to
by it, or by the lessor having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in such cases
where a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or to the payment in whole or in part of the
outstanding principal balance of such Mortgage Loan together with any
accrued and unpaid interest thereon; and
(i) such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by the Seller; such
Ground Lease contains a covenant (or applicable laws provide) that the
lessor thereunder is not permitted, in the absence of an uncured default,
to disturb the possession, interest or quiet enjoyment of any lessee in
the relevant portion of such Mortgaged Property subject to such Ground
Lease for any reason, or in any manner, which would materially adversely
affect the security provided by the related Mortgage.
(21) (a) Except for those Mortgage Loans set forth on Schedule I
hereto for which a lender's environmental insurance policy was obtained in lieu
of an Environmental Site Assessment, an Environmental Site Assessment relating
to each Mortgaged Property and prepared no earlier than 12 months prior to the
Closing Date was obtained and reviewed by the Seller in connection with the
origination of such Mortgage Loan and a copy is included in the Servicing File.
(b) Such Environmental Site Assessment does not identify, and the
Seller has no actual knowledge of, any adverse circumstances or conditions
with respect to or affecting the Mortgaged Property that would constitute
or result in a material violation of any Environmental Laws, other than
with respect to a Mortgaged Property (i) for which environmental insurance
(as set forth on Schedule II hereto) is maintained, or (ii) which would
require any expenditure greater than 5% of the outstanding principal
balance of such Mortgage Loan to achieve or maintain compliance in all
material respects with any Environmental Laws for which adequate sums, but
in no event less than 125% of the estimated cost as set forth in the
Environmental Site Assessment, were reserved in connection with the
origination of the Mortgage Loan and for which the related Mortgagor has
covenanted to perform, or (iii) as to which the related Mortgagor or one
of its affiliates is currently taking or required to take such actions
(which may be the implementation of an operations and maintenance plan),
if any, with respect to such conditions or circumstances as have been
recommended by the Environmental Site Assessment or required by the
applicable governmental authority, or (iv) as to which another responsible
party not related to the Mortgagor with assets reasonably estimated by the
Seller at the time of origination to be sufficient to effect all necessary
or required remediation identified in a notice or other action from the
applicable governmental authority is currently taking or required to take
such actions, if any, with respect to such regulatory authority's order or
directive, or (v) as to which such conditions or circumstances identified
in the Environmental Site Assessment were investigated further and based
upon such additional investigation, an environmental consultant
recommended no further investigation or remediation, or (vi) as to which a
party with financial resources reasonably estimated to be adequate to cure
the condition or circumstance provided a guaranty or indemnity to the
related Mortgagor or to the mortgagee to cover the costs of any required
investigation, testing, monitoring or remediation, or (vii) as to which
the related Mortgagor or other responsible party obtained a "No Further
Action" letter or other evidence reasonably acceptable to a prudent
commercial mortgage lender that applicable federal, state, or local
governmental authorities had no current intention of taking any action,
and are not requiring any action, in respect of such condition or
circumstance, or (viii) which would not require substantial cleanup,
remedial action or other extraordinary response under any Environmental
Laws reasonably estimated to cost in excess of 5% of the outstanding
principal balance of such Mortgage Loan.
(c) To the Seller's actual knowledge and in reliance upon the
Environmental Site Assessment, except for any Hazardous Materials being
handled in accordance with applicable Environmental Laws and except for
any Hazardous Materials present at such Mortgaged Property for which, to
the extent that an Environmental Site Assessment recommends remediation or
other action, (A) there exists either (i) environmental insurance with
respect to such Mortgaged Property (as set forth on Schedule II hereto) or
(ii) an amount in an escrow account pledged as security for such Mortgage
Loan under the relevant Mortgage Loan documents equal to no less than 125%
of the amount estimated in such Environmental Site Assessment as
sufficient to pay the cost of such remediation or other action in
accordance with such Environmental Site Assessment or (B) one of the
statements set forth in clause (b) above is true, (1) such Mortgaged
Property is not being used for the treatment or disposal of Hazardous
Materials; (2) no Hazardous Materials are being used or stored or
generated for off-site disposal or otherwise present at such Mortgaged
Property other than Hazardous Materials of such types and in such
quantities as are customarily used or stored or generated for off-site
disposal or otherwise present in or at properties of the relevant property
type; and (3) such Mortgaged Property is not subject to any environmental
hazard (including, without limitation, any situation involving Hazardous
Materials) which under the Environmental Laws would have to be eliminated
before the sale of, or which could otherwise reasonably be expected to
adversely affect in more than a de minimis manner the value or
marketability of, such Mortgaged Property.
(d) The related Mortgage or other Mortgage Loan documents contain
covenants on the part of the related Mortgagor requiring its compliance
with any present or future federal, state and local Environmental Laws and
regulations in connection with the Mortgaged Property. The related
Mortgagor (or an affiliate thereof) has agreed to indemnify, defend and
hold the Seller, and its successors and assigns, harmless from and against
any and all losses, liabilities, damages, penalties, fines, expenses and
claims of whatever kind or nature (including attorneys' fees and costs)
imposed upon or incurred by or asserted against any such party resulting
from a breach of the environmental representations, warranties or
covenants given by the related Mortgagor in connection with such Mortgage
Loan.
(e) Each of the Mortgage Loans which is covered by a lender's
environmental insurance policy obtained in lieu of an Environmental Site
Assessment ("In Lieu of Policy") is identified on Schedule I, and each In
Lieu of Policy is in an amount equal to 125% of the outstanding principal
balance of the related Mortgage Loan and has a term ending no sooner than
the maturity date (or, in the case of an ARD Loan, the final maturity
date) of the related Mortgage Loan. All environmental assessments or
updates that were in the possession of the Seller and that relate to a
Mortgaged Property identified on Schedule I as being insured by an In Lieu
of Policy have been delivered to or disclosed to the In Lieu of Policy
carrier issuing such policy prior to the issuance of such policy.
(22) As of the date of origination of the related Mortgage Loan,
and, as of the Closing Date, the Mortgaged Property is covered by insurance
policies providing the coverage described below and the Mortgage Loan documents
permit the mortgagee to require the coverage described below. All premiums with
respect to the Insurance Policies insuring each Mortgaged Property have been
paid in a timely manner or escrowed to the extent required by the Mortgage Loan
documents, and the Seller has not received (1) any notice of non payment of
premiums that has not been cured in a timely manner by the related Mortgagor or
(2) any notice of cancellation or termination of such Insurance Policies. The
relevant Servicing File contains the Insurance Policy required for such Mortgage
Loan or a certificate of insurance for such Insurance Policy. Each Mortgage
requires that the related Mortgaged Property and all improvements thereon are
covered by Insurance Policies providing (a) coverage in the amount of the lesser
of full replacement cost of such Mortgaged Property and the outstanding
principal balance of the related Mortgage Loan (subject to customary
deductibles) for losses sustained by fire and against loss or damage by other
risks and hazards covered by a standard extended coverage insurance policy
providing "special" form coverage in an amount sufficient to prevent the
Mortgagor from being deemed a co-insurer and to provide coverage on a full
replacement cost basis of such Mortgaged Property (in some cases exclusive of
excavations, underground utilities, foundations and footings) with an agreed
amount endorsement to avoid application of any coinsurance provision; such
policies contain a standard mortgage clause naming mortgagee and its successor
in interest as additional insureds or loss payee, as applicable; (b) business
interruption or rental loss insurance in an amount at least equal to (i) 12
months of operations or (ii) in some cases all rents and other amounts
customarily insured under this type of insurance of the Mortgaged Property; (c)
flood insurance (if any portion of the improvements on the Mortgaged Property is
located in an area identified by the Federal Emergency Management Agency
("FEMA"), with respect to certain Mortgage Loans and the Secretary of Housing
and Urban Development with respect to other Mortgage Loans, as having special
flood hazards) in an amount not less than amounts prescribed by FEMA; (d)
workers' compensation, if required by law; (e) comprehensive general liability
insurance in an amount consistent with the standard utilized by the Seller with
respect to loans it holds for its own account, but not less than $1 million; all
such Insurance Policies contain clauses providing they are not terminable and
may not be terminated without thirty (30) days prior written notice to the
mortgagee (except where applicable law requires a shorter period or except for
nonpayment of premiums, in which case not less than ten (10) days prior written
notice to the mortgagee is required). In addition, each Mortgage permits the
related mortgagee to make premium payments to prevent the cancellation thereof
and shall entitle such mortgagee to reimbursement therefor. Any insurance
proceeds in respect of a casualty loss or taking will be applied either to the
repair or restoration of all or part of the related Mortgaged Property or the
payment of the outstanding principal balance of the related Mortgage Loan
together with any accrued interest thereon. The related Mortgaged Property is
insured by an Insurance Policy, issued by an insurer meeting the requirements of
such Mortgage Loan and having a claims-paying or financial strength rating of at
least "A-:V" from A.M. Best Company or "A-" (or the equivalent) from Standard &
Poor's Ratings Services, Fitch, Inc. or Moody's 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 Moody's Investors Service, Inc. To the Seller's actual
knowledge, the insurer issuing each of the foregoing insurance policies is
qualified to write insurance in the jurisdiction where the related Mortgaged
Property is located.
(23) All amounts required to be deposited by each Mortgagor at
origination under the related Mortgage Loan documents have been deposited or
have been withheld from the related Mortgage Loan proceeds at origination and
there are no deficiencies with regard thereto.
(24) Whether or not a Mortgage Loan was originated by the Seller, to
the Seller's knowledge, with respect to each Mortgage Loan originated by the
Seller and each Mortgage Loan originated by any Person other than the Seller, as
of the date of origination of the related Mortgage Loan, and, to the Seller's
actual knowledge, with respect to each Mortgage Loan originated by the Seller
and any prior holder of the Mortgage Loan, as of the Closing Date, there are no
actions, suits, arbitrations or governmental investigations or proceedings by or
before any court or other governmental authority or agency now pending against
or affecting the Mortgagor under any Mortgage Loan or any of the Mortgaged
Properties which, if determined against such Mortgagor or such Mortgaged
Property, would materially and adversely affect the value of such Mortgaged
Property, the security intended to be provided with respect to the related
Mortgage Loan, or the ability of such Mortgagor and/or the current use of such
Mortgaged Property to generate net cash flow to pay principal, interest and
other amounts due under the related Mortgage Loan; and to the Seller's actual
knowledge there are no such actions, suits or proceedings threatened against
such Mortgagor.
(25) The origination practices used by the Seller or, to its
knowledge, any prior holder of the related Mortgage Note with respect to such
Mortgage Loan have been in all material respects legal and have met customary
industry standards and since origination, the Mortgage Loan has been serviced in
all material respects in a legal manner in conformance with customary industry
standards.
(26) The originator of the Mortgage Loan or the Seller has inspected
or caused to be inspected each related Mortgaged Property within the 12 months
prior to the Closing Date.
(27) The Mortgage Loan documents require the Mortgagor to provide
the holder of the Mortgage Loan with at least annual operating statements,
financial statements and except for Mortgage Loans for which the related
Mortgaged Property is leased to a single tenant, rent rolls.
(28) All escrow deposits and payments required by the terms of each
Mortgage Loan are in the possession, or under the control of the Seller (except
to the extent they have been disbursed for their intended purposes), and all
amounts required to be deposited by the applicable Mortgagor under the related
Mortgage Loan documents have been deposited, and there are no deficiencies with
regard thereto (subject to any applicable notice and cure period). All of the
Seller's interest in such escrows and deposits will be conveyed by the Seller to
the Purchaser hereunder.
(29) No two or more Mortgage Loans representing, in the aggregate,
more than 5% of the aggregate outstanding principal amount of all the mortgage
loans included in the Trust Fund have the same Mortgagor or, to the Seller's
knowledge, are to Mortgagors which are entities controlled by one another or
under common control.
(30) Each Mortgagor with respect to a Mortgage Loan with a principal
balance as of the Cut-off Date in excess of $15,000,000 included in the Trust
Fund is an entity whose organizational documents or related Mortgage Loan
documents provide that it is, and at least so long as the Mortgage Loan is
outstanding will continue to be, a Single Purpose Entity. For this purpose,
"Single Purpose Entity" shall mean a Person, other than an individual, whose
organizational documents or related Mortgage Loan documents provide that it
shall engage solely in the business of owning and operating the Mortgaged
Property and which does not engage in any business unrelated to such property
and the financing thereof, does not have any assets other than those related to
its interest in the Mortgaged Property or the financing thereof or any
indebtedness other than as permitted by the related Mortgage or the other
Mortgage Loan documents, and the organizational documents of which require that
it have its own separate books and records and its own accounts, in each case
which are separate and apart from the books and records and accounts of any
other Person.
(31) The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated at least equal to 80% of the original principal balance of the
Mortgage Loan or (ii) at the Closing Date at least equal to 80% of the original
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (A) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (B) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in sub-clauses (a)(i) and (a)(ii) of this clause (31)
shall be made on a pro rata basis in accordance with the fair market values of
the Mortgaged Properties securing such cross-collateralized Mortgage Loan); or
(b) substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)). If the Mortgage Loan was "significantly modified" prior to
the Closing Date so as to result in a taxable exchange under Section 1001 of the
Code, it either (x) was modified as a result of the default or reasonably
foreseeable default of such Mortgage Loan or (y) satisfies the provisions of
either sub-clause (a)(i) above (substituting the date of the last such
modification for the date the Mortgage Loan was originated) or sub-clause
(a)(ii), including the proviso thereto. The Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (but without
regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats
certain defective mortgage loans as qualified mortgages). Any prepayment premium
and yield maintenance charges applicable to the Mortgage Loan constitute
"customary prepayment penalties" within the meaning of Treasury Regulations
Section 1.860G-1(b)(2).
(32) Each of the Mortgage Loans contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without the prior written consent of the holder
of the Mortgage Loan, the property subject to the Mortgage, or any controlling
interest therein, is directly or indirectly transferred or sold (except that it
may provide for transfers by devise, descent or operation of law upon the death
of a member, manager, general partner or shareholder of a Mortgagor and that it
may provide for transfers subject to the Mortgage Loan holder's approval of
transferee, transfers of worn out or obsolete furnishings, fixtures, or
equipment promptly replaced with property of equivalent value and functionality,
transfers of leases entered into in accordance with the Mortgage Loan documents,
transfers to affiliates, transfers to family members for estate planning
purposes, transfers among existing members, partners or shareholders in
Mortgagors or transfers of passive interests so long as the key principals or
general partner retains control). The Mortgage Loan documents contain a "due on
encumbrance" clause, which provides for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan if the property subject to the
Mortgage or any controlling interest in the Mortgagor is further pledged or
encumbered, unless the prior written consent of the holder of the Mortgage Loan
is obtained (except that it may provide for assignments subject to the Mortgage
Loan holder's approval of transferee, transfers to affiliates or transfers of
passive interests so long as the key principals or general partner retains
control). The Mortgage or Mortgage Note requires the Mortgagor to pay all
reasonable out-of-pocket fees and expenses associated with securing the consent
or approval of the holder of the Mortgage for a waiver of a "due on sale" or
"due on encumbrance" clause or a defeasance provision. As of the Closing Date,
the Seller holds no preferred equity interest in any Mortgagor and the Seller
holds no mezzanine debt related to such Mortgaged Property.
(33) Except with respect to the AB Mortgage Loans, each Mortgage
Loan is a whole loan and not a participation interest in a mortgage loan.
(34) Each Mortgage Loan containing provisions for defeasance of
mortgage collateral provides that: defeasance may not occur any earlier than two
years after the Closing Date; and requires or provides (i) the replacement
collateral consist of U.S. "government securities," within the meaning of
Treasury Regulations Section 1.860 G-2(a)(8)(i), in an amount sufficient to make
all scheduled payments under the Mortgage Note when due (up to the maturity date
for the related Mortgage Loan, the Anticipated Repayment Date for ARD Loans or
the date on which the Mortgagor may prepay the related Mortgage Loan without
payment of any prepayment penalty); (ii) the loan may be assumed by a Single
Purpose Entity approved by the holder of the Mortgage Loan; (iii) counsel
provide an opinion that the trustee has a perfected security interest in such
collateral prior to any other claim or interest; and (iv) such other documents
and certifications as the mortgagee may reasonably require which may include,
without limitation, (A) a certification that the purpose of the defeasance is to
facilitate the disposition of the mortgaged real property or any other customary
commercial transaction and not to be part of an arrangement to collateralize a
REMIC offering with obligations that are not real estate mortgages and (B) a
certification from an independent certified public accountant that the
collateral is sufficient to make all scheduled payments under the Mortgage Note
when due. Each Mortgage Loan containing provisions for defeasance provides that,
in addition to any cost associated with defeasance, the related Mortgagor shall
pay, as of the date the mortgage collateral is defeased, all scheduled and
accrued interest and principal due as well as an amount sufficient to defease in
full the Mortgage Loan (except as contemplated in clause (35) hereof). In
addition, if the related Mortgage Loan permits defeasance, then the Mortgage
Loan documents provide that the related Mortgagor shall (x) pay all reasonable
fees associated with the defeasance of the Mortgage Loan and all other
reasonable expenses associated with the defeasance, or (y) provide all opinions
required under the related Mortgage Loan documents, and in the case of any
Mortgage Loan with an outstanding principal balance as of the Cut-off Date of
$40,000,000 or greater, (a) a REMIC opinion and (b) rating agency letters
confirming that no downgrade or qualification shall occur as a result of the
defeasance.
(35) In the event that a Mortgage Loan is secured by more than one
Mortgaged Property, then, in connection with a release of less than all of such
Mortgaged Properties, a Mortgaged Property may not be released as collateral for
the related Mortgage Loan unless, in connection with such release, an amount
equal to not less than 125% of the Allocated Loan Amount for such Mortgaged
Property is prepaid or, in the case of a defeasance, an amount equal to not less
than 125% of the Allocated Loan Amount is defeased through the deposit of
replacement collateral (as contemplated in clause (34) hereof) sufficient to
make all scheduled payments with respect to such defeased amount, or such
release is otherwise in accordance with the terms of the Mortgage Loan
documents.
(36) Each Mortgaged Property is owned by the related Mortgagor,
except for Mortgaged Properties which are secured in whole or in a part by a
Ground Lease and for out-parcels, and is used and occupied for commercial or
multifamily residential purposes in accordance with applicable law.
(37) Any material non-conformity with applicable zoning laws
constitutes a legal non-conforming use or structure which, in the event of
casualty or destruction, may be restored or repaired to the full extent of the
use or structure at the time of such casualty, or for which law and ordinance
insurance coverage has been obtained in amounts consistent with the standards
utilized by the Seller.
(38) Neither the Seller nor any affiliate thereof has any obligation
to make any capital contributions to the related Mortgagor under the Mortgage
Loan. The Mortgage Loan was not originated for the sole purpose of financing the
construction of incomplete improvements on the related Mortgaged Property.
(39) No court of competent jurisdiction will determine in a final
decree that fraud with respect to the Mortgage Loans has taken place on the part
of the Seller or, to the Seller's actual knowledge, on the part of any
originator, in connection with the origination of such Mortgage Loan.
(40) If the related Mortgage or other Mortgage Loan documents
provide for a grace period for delinquent Monthly Payments, such grace period is
no longer than ten (10) days from the applicable payment date or, with respect
to acceleration or the commencement of the accrual of default interest under any
Mortgage Loan, five (5) days after notice to the Mortgagor of default.
(41) The following statements are true with respect to the related
Mortgaged Property: (a) the Mortgaged Property is located on or adjacent to a
dedicated road or has access to an irrevocable easement permitting ingress and
egress and (b) the Mortgaged Property is served by public or private utilities,
water and sewer (or septic facilities) appropriate for the use in which the
Mortgaged Property is currently being utilized.
(42) None of the Mortgage Loan documents contain any provision that
expressly excuses the related borrower from obtaining and maintaining insurance
coverage for acts of terrorism or, in circumstances where terrorism insurance is
not expressly required, the mortgagee is not prohibited from requesting that the
related borrower maintain such insurance, in each case, to the extent such
insurance coverage is generally available for like properties in such
jurisdictions at commercially reasonable rates. Each Mortgaged Property is
insured by a "standard extended coverage" casualty insurance policy that does
not contain an express exclusion for (or, alternatively, is covered by a
separate policy that insures against property damage resulting from) acts of
terrorism.
(43) An appraisal of the related Mortgaged Property was conducted in
connection with the origination of such Mortgage Loan, and such appraisal
satisfied the guidelines in Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as in effect on the date such Mortgage
Loan was originated.
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
PNC Loans
Reference is made to the Representations and Warranties set forth in Exhibit
B attached hereto corresponding to the Paragraph numbers set forth below:
Exceptions to Paragraph (14)(b):
With respect to the following Mortgage Loans, if the related Mortgage Note is
not paid in full on its maturity date and the holder thereof exercises its
option to forbear from pursuing its remedies, such Mortgage Loan provides
that, during the period commencing on or about the related maturity date and
continuing until the earlier of such Mortgage Loan being paid in full or the
holder terminating its forbearance, additional interest above the stated
interest rate applicable prior to the maturity date shall accrue and may be
compounded monthly and shall be payable only after all of the outstanding
principal of such Mortgage Loan is paid in full:
940953260 Wedgewood - Aldi
940952790 Troy Design & Manufacturing Building
Exceptions to Paragraph 32:
None of the Mortgage Loans provides for acceleration of its unpaid principal
balance if, without the consent of the holder of the related Mortgage Loan,
(i) an equity interest in the related Borrower of 49% or less is transferred
or sold or (ii) an equity interest in the related Borrower of any amount is
transferred by virtue of an involuntary change in ownership resulting from a
death or physical or mental disability.
With respect to the following Mortgage Loan, subject to the satisfaction of
certain requirements contained in the related Mortgage Loan documents, the
Mortgagor is allowed to incur a subordinate secured loan in connection with
the Mortgagor's construction of additional improvements at the Mortgaged
Property.
940953073 Missouri Avenue Distribution Center
With respect to the following Mortgage Loans, the related Mortgage does not
prohibit a pledge or encumbrance of a controlling interest in the Mortgagor.
880255785 Stonewood Apartments
880255786 Bay Ranch Apartments
880255789 Crossings at Leesburg Apartments
880255787 The Park at Scott's Crossing
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 J.P. Morgan Chase
Commercial Mortgage Securities Corp., and all of the representations and
warranties of the Company under the Agreement are true and correct in all
material respects on and as of the date hereof (or, in the case of any
particular representation or warranty set forth on Exhibit B to the Agreement,
as of such other date provided for in such representation or warranty) with the
same force and effect as if made on and as of the date hereof, subject to the
exceptions set forth in the Agreement (including Exhibit C thereto).
2. The Company has complied with all the covenants and satisfied all
the conditions on its part to be performed or satisfied under the Agreement on
or prior to the date hereof and no event has occurred which, with notice or the
passage of time or both, would constitute a default under the Agreement.
3. I have examined the information regarding the Mortgage Loans in
the Prospectus, dated 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
regarding the Company or the Mortgage Loans or omitted or omits to state therein
a material fact necessary in order to make the statements set forth therein
regarding the Company or 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 OTHER
ENVIRONMENTAL INSURANCE IS MAINTAINED
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph numbers set forth below:
Paragraph 21(b) and (c):
None.
Exhibit 10.6
J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER
NOMURA CREDIT & CAPITAL, INC.,
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 1, 2006
Fixed Rate Mortgage Loans
Series 2006-LDP9
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of December 1, 2006, is between J.P. Morgan Chase Commercial Mortgage Securities
Corp., as purchaser (the "Purchaser"), and Nomura Credit & Capital, Inc., as
seller (the "Seller").
Capitalized terms used in this Agreement not defined herein shall
have the meanings ascribed to them in the Pooling and Servicing Agreement dated
as of 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
Wells 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 and the term "Mortgaged
Properties" refers to the properties securing such Mortgage Loans.
The Purchaser and the Seller wish to prescribe the manner of sale of
the Mortgage Loans from the Seller to the Purchaser and in consideration of the
premises and the mutual agreements hereinafter set forth, agree as follows:
SECTION 1. Sale and Conveyance of Mortgages; Possession of Mortgage
File. Effective as of the Closing Date and upon receipt of the purchase price
set forth in the immediately succeeding paragraph, the Seller does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse
(subject to certain agreements regarding servicing as provided in the Pooling
and Servicing Agreement, subservicing agreements permitted thereunder and that
certain Servicing Rights Purchase Agreement, dated as of the Closing Date
between the applicable Master Servicer and the Seller) all of its right, title,
and interest in and to the Mortgage Loans including all interest and principal
received on or with respect to the Mortgage Loans after the Cut-off Date (other
than payments of principal and interest first due on the Mortgage Loans on or
before the Cut-off Date). Upon the sale of the Mortgage Loans, the ownership of
each related Mortgage Note, the Mortgage and the other contents of the related
Mortgage File will be vested in the Purchaser and immediately thereafter the
Trustee and the ownership of records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the Seller (other
than the records and documents described in the proviso to Section 3(a) hereof)
shall immediately vest in the Purchaser and immediately thereafter the Trustee.
The Seller's records will accurately reflect the sale of each Mortgage Loan to
the Purchaser. The Depositor will sell the Class 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 J.P.
Morgan 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 Mortgage Loans is being conducted on
an arms length basis and upon commercially reasonable terms. As the purchase
price for the Mortgage Loans, the Purchaser shall pay to the Seller or at the
Seller's direction in immediately available funds the sum of $306,705,446 (which
amount is inclusive of accrued interest and exclusive of the Seller's pro rata
share of the costs set forth in Section 9 hereof). The purchase and sale of the
Mortgage Loans shall take place on the Closing Date.
SECTION 2. Books and Records; Certain Funds Received After the
Cut-off Date. From and after the sale of the Mortgage Loans to the Purchaser,
record title to each Mortgage and the related Mortgage Note shall be transferred
to the Trustee in accordance with this Agreement. Any funds due after the
Cut-off Date in connection with a Mortgage Loan received by the Seller shall be
held in trust for the benefit of the Trustee as the owner of such Mortgage Loan
and shall be transferred promptly to the 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
Seller.
The transfer of each Mortgage Loan shall be reflected on the
Seller's balance sheets and other financial statements as a sale of the Mortgage
Loans by the Seller to the Purchaser. The Seller intends to treat the transfer
of each Mortgage Loan to the Purchaser as a sale for tax purposes.
The transfer of each Mortgage Loan shall be reflected on the
Purchaser's balance sheets and other financial statements as a purchase of the
Mortgage Loans by the Purchaser from the Seller. The Purchaser intends to treat
the transfer of each Mortgage Loan from the Seller as a purchase for tax
purposes.
SECTION 3. Delivery of Mortgage Loan Documents; Additional Costs and
Expenses. (a) The Purchaser hereby directs the Seller, and the Seller hereby
agrees, upon the transfer of the Mortgage Loans contemplated herein, to deliver
on the Closing Date to the Trustee or a Custodian appointed thereby, all
documents, instruments and agreements required to be delivered by the Purchaser
to the Trustee with respect to the Mortgage Loans under Sections 2.01(b) and
2.01(c) of the Pooling and Servicing Agreement, and meeting all the requirements
of such Sections 2.01(b) and 2.01(c), and such other documents, instruments and
agreements as the Purchaser or the Trustee shall reasonably request. In
addition, the Seller agrees to deliver or cause to be delivered to the
applicable Master Servicer, the Servicing File for each Mortgage Loan
transferred pursuant to this Agreement; provided that the Seller shall not be
required to deliver any draft documents, or any attorney client communications
which are privileged communications or constitute legal or other due diligence
analyses, or internal communications of the Seller or its affiliates, or credit
underwriting or other analyses or data.
(b) With respect to the transfer described in Section 1 hereof, if
the Mortgage Loan documents do not require the related Mortgagor to pay any
costs and expenses relating to any modifications to a related letter of credit
which modifications are required to effectuate such transfer (the "Transfer
Modification Costs"), then the Seller shall pay the Transfer Modification Costs
required to transfer the letter of credit to the Trustee as described in such
Section 1; provided that if the Mortgage Loan documents require the related
Mortgagor to pay any Transfer Modification Costs, such Transfer Modification
Costs shall be an expense of the Mortgagor unless such Mortgagor fails to pay
such Transfer Modification Costs after the 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 the
applicable Master Servicer shall give the Seller notice of such failure and the
amount of such Transfer Modification costs and the Seller shall pay such
Transfer Modification Costs.
SECTION 4. Treatment as a Security Agreement. The Seller,
concurrently with the execution and delivery hereof, has conveyed to the
Purchaser, all of its right, title and interest in and to the Mortgage Loans.
The parties intend that such conveyance of the Seller's right, title and
interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a purchase and sale and not a loan. If such conveyance is deemed to
be a pledge and not a sale, then the parties also intend and agree that the
Seller shall be deemed to have granted, and in such event does hereby grant, to
the Purchaser, a first priority security interest in all of its right, title and
interest in, to and under the Mortgage Loans, all payments of principal or
interest on such Mortgage Loans due after the Cut-off Date, all other payments
made in respect of such Mortgage Loans after the Cut-off Date (except to the
extent such payments were due on or before the Cut-off Date) and all proceeds
thereof and that this Agreement shall constitute a security agreement under
applicable law. If such conveyance is deemed to be a pledge and not a sale, the
Seller consents to the Purchaser hypothecating and transferring such security
interest in favor of the Trustee and transferring the obligation secured thereby
to the Trustee.
SECTION 5. Covenants of the Seller. The Seller covenants with the
Purchaser as follows:
(a) it shall record or cause a third party to record in the
appropriate public recording office for real property the intermediate
assignments of the Mortgage Loans and the Assignments of Mortgage from the
Seller to the Trustee in connection with the Pooling and Servicing Agreement.
All recording fees relating to the initial recordation of such intermediate
assignments and Assignments of Mortgage shall be paid by the Seller;
(b) it shall take any action reasonably required by the Purchaser,
the Trustee or the 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 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
A-1, A-2, A-3 and B thereto and the Diskette included therewith, with respect to
any information relating to the Mortgage Loans or the Seller, in order to make
the statements therein, in the light of the circumstances when the Prospectus
Supplement is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus Supplement, including Annexes A-1, A-2, A-3
and B thereto and the Diskette included therewith, with respect to any
information relating to the Mortgage Loans or the Seller, to comply with
applicable law, the Seller shall do all things necessary to assist the Depositor
to prepare and furnish, at the expense of the Seller (to the extent that such
amendment or supplement relates to the Seller, the Mortgage Loans listed on
Exhibit A and/or any information relating to the same, as provided by the
Seller), to the Underwriters such amendments or supplements to the Prospectus
Supplement as may be necessary, so that the statements in the Prospectus
Supplement as so amended or supplemented, including Annexes A-1, A-2, A-3 and B
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, will not, in the light of the
circumstances when the Prospectus is so amended or supplemented, be misleading
or so that the Prospectus Supplement, including Annexes A-1, A-2, A-3 and B
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, will comply with applicable law.
All terms used in this clause (c) and not otherwise defined herein shall have
the meaning set forth in the Indemnification Agreement, dated as of December 15,
2006 between the Purchaser and the Seller (the "Indemnification Agreement"); and
(d) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any Companion Loan related to a Serviced Whole Loan or any
Serviced Securitized Companion Loan that is deposited into an Other
Securitization or a Regulation AB Companion Loan Securitization, the depositor
in such Other Securitization or Regulation AB Companion Loan Securitization) and
the Trustee with any Additional Form 10-D Disclosure and any Additional Form
10-K Disclosure set forth next to the Purchaser's name (only with respect to
disclosure related to Items 1117 or 1119 of Regulation AB) on Schedule X and
Schedule Y of the Pooling and Servicing Agreement within the time periods set
forth in the Pooling and Servicing Agreement.
SECTION 6. Representations and Warranties.
(a) The Seller represents and warrants to the Purchaser as of the
Closing Date that:
(i) it is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(ii) it has the power and authority to own its property and to carry
on its business as now conducted;
(iii) it has the power to execute, deliver and perform this
Agreement;
(iv) it is legally authorized to transact business in the State of
New York. The Seller is in compliance with the laws of each state in which
any Mortgaged Property is located to the extent necessary so that a
subsequent holder of the related Mortgage Loan (including, without
limitation, the Purchaser) that is in compliance with the laws of such
state would not be prohibited from enforcing such Mortgage Loan solely by
reason of any non-compliance by the Seller;
(v) the execution, delivery and performance of this Agreement by the
Seller have been duly authorized by all requisite action by the Seller's
board of directors and will not violate or breach any provision of its
organizational documents;
(vi) this Agreement has been duly executed and delivered by the
Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general
equitable principles regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vii) there are no legal or governmental proceedings pending to
which the Seller is a party or of which any property of the Seller is the
subject which, if determined adversely to the Seller, would reasonably be
expected to adversely affect (A) the transfer of the Mortgage Loans and
the Mortgage Loan documents as contemplated herein, (B) the execution and
delivery by the Seller or enforceability against the Seller of the
Mortgage Loans or this Agreement, or (C) the performance of the Seller's
obligations hereunder;
(viii) it has no actual knowledge that any statement, report,
officer's certificate or other document prepared and furnished or to be
furnished by the Seller in connection with the transactions contemplated
hereby (including, without limitation, any financial cash flow models and
underwriting file abstracts furnished by the Seller) contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading;
(ix) it is not, nor with the giving of notice or lapse of time or
both would be, in violation of or in default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which it is a party or by which it or any of its properties is bound,
except for violations and defaults which individually and in the aggregate
would not have a material adverse effect on the transactions contemplated
herein; the sale of the Mortgage Loans and the performance by the Seller
of all of its obligations under this Agreement and the consummation by the
Seller of the transactions herein contemplated do not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Seller is a party
or by which the Seller is bound or to which any of the property or assets
of the Seller is subject, nor will any such action result in any violation
of the provisions of any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Seller, or any of its properties, except for conflicts, breaches,
defaults and violations which individually and in the aggregate would not
have a material adverse effect on the transactions contemplated herein;
and no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Seller of the transactions
contemplated by this Agreement, other than any consent, approval,
authorization, order, license, registration or qualification that has been
obtained or made;
(x) it has either (A) not dealt with any Person (other than the
Purchaser or the Dealers or their respective affiliates or any servicer of
a Mortgage Loan) that may be entitled to any commission or compensation in
connection with the sale or purchase of the Mortgage Loans or entering
into this Agreement or (B) paid in full any such commission or
compensation (except with respect to any servicer of a Mortgage Loan, any
commission or compensation that may be due and payable to such servicer if
such servicer is terminated and does not continue to act as a servicer);
and
(xi) it is solvent and the sale of the Mortgage Loans hereunder will
not cause it to become insolvent; and the sale of the Mortgage Loans is
not undertaken with the intent to hinder, delay or defraud any of the
Seller's creditors.
(b) The Purchaser represents and warrants to the Seller as of the
Closing Date that:
(i) it is a corporation duly organized, validly existing, and in
good standing in the State of Delaware;
(ii) it is duly qualified as a foreign corporation in good standing
in all jurisdictions in which ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Purchaser, and the Purchaser is conducting its business so as to comply in
all material respects with the applicable statutes, ordinances, rules and
regulations of each jurisdiction in which it is conducting business;
(iii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iv) it has the power to execute, deliver and perform this
Agreement, and neither the execution and delivery by the Purchaser of this
Agreement, nor the consummation by the Purchaser of the transactions
herein contemplated, nor the compliance by the Purchaser with the
provisions hereof, will (A) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the certificate of
incorporation or by-laws of the Purchaser or any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Purchaser or any of its properties, or any indenture, mortgage,
contract or other instrument or agreement to which the Purchaser is a
party or by which it is bound, or (B) result in the creation or imposition
of any lien, charge or encumbrance upon any of the Purchaser's property
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or agreement;
(v) this Agreement constitutes a legal, valid and binding obligation
of the Purchaser enforceable against it in accordance with its terms
(except as enforcement thereof may be limited by (a) bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or
other laws affecting the enforcement of creditors' rights generally and
(b) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or law));
(vi) there are no legal or governmental proceedings pending to which
the Purchaser is a party or of which any property of the Purchaser is the
subject which, if determined adversely to the Purchaser, might interfere
with or adversely affect the consummation of the transactions contemplated
herein and in the Pooling and Servicing Agreement; to the best of the
Purchaser's knowledge, no such proceedings are threatened or contemplated
by any governmental authorities or threatened by others;
(vii) it is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Purchaser or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(viii) it has not dealt with any broker, investment banker, agent or
other person, other than the Seller, the Dealers and their respective
affiliates, that may be entitled to any commission or compensation in
connection with the purchase and sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby;
(ix) all consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for the
execution, delivery and performance of this Agreement by the Purchaser
have been obtained or made; and
(x) it has not intentionally violated any provisions of the United
States Secrecy Act, the United States Money Laundering Control Act of 1986
or the United States International Money Laundering Abatement and
Anti-Terrorism Financing Act of 2001.
(c) The Seller further makes the representations and warranties as
to the Mortgage Loans set forth in Exhibit B as of the Closing Date (or as of
such other date if specifically provided in the particular representation or
warranty), which representations and warranties are subject to the exceptions
thereto set forth in Exhibit C. Neither the delivery by the Seller of the
Mortgage Files, Servicing Files, or any other documents required to be delivered
under Section 2.01 of the Pooling and Servicing Agreement, nor the review
thereof or any other due diligence by the Trustee, any Master Servicer, the
Special Servicer, a Certificate Owner or any other Person shall relieve the
Seller of any liability or obligation with respect to any representation or
warranty or otherwise under this Agreement or constitute notice to any Person of
a Breach or Defect.
(d) Pursuant to this Agreement or Section 2.03(b) of the Pooling and
Servicing Agreement, the Seller and the Purchaser shall be given notice of any
Breach or Defect that materially and adversely affects the value of any Mortgage
Loan, the value of the related Mortgaged Property or the interests of the
Trustee or any Certificateholder therein.
(e) Upon notice pursuant to Section 6(d) above, the Seller shall,
not later than 90 days from the earlier of the Seller's receipt of the notice
or, in the case of a Defect or Breach relating to a Mortgage Loan not being a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, but
without regard to the rule of Treasury Regulation Section 1.860G-2(f)(2) that
causes a defective mortgage loan to be treated as a qualified mortgage, the
Seller's discovery of such Breach or Defect (the "Initial Resolution Period"),
(i) cure such Defect or Breach, as the case may be, in all material respects,
(ii) repurchase the affected Mortgage Loan at the applicable Repurchase Price
(as defined below) or (iii) substitute a Qualified Substitute Mortgage Loan (as
defined below) for such affected Mortgage Loan (provided that in no event shall
any such substitution occur later than the second anniversary of the Closing
Date) and pay the 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 the Seller to deliver to the Trustee or Custodian the
actual policy of lender's title insurance required pursuant to clause (ix) of
the definition of Mortgage File by a date not later than 18 months following the
Closing Date, if such Breach or Defect is capable of being cured but is not
cured within the Initial Resolution Period, and the Seller has commenced and is
diligently proceeding with the cure of such Breach or Defect within the Initial
Resolution Period, the Seller shall have an additional 90 days commencing
immediately upon the expiration of the Initial Resolution Period (the "Extended
Resolution Period") to complete such cure (or, failing such cure, to repurchase
the related Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as
described above); and provided, further, that with respect to the Extended
Resolution Period the Seller 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 the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such Breach or Defect will be cured
within the Extended Resolution Period. Notwithstanding the foregoing, any Defect
or Breach which causes any Mortgage Loan not to be a "qualified mortgage"
(within the meaning of Section 860G(a)(3) of the Code, without regard to the
rule of Treasury Regulations Section 1.860G-2(f)(2) which causes a defective
mortgage loan to be treated as a qualified mortgage) shall be deemed to
materially and adversely affect the interests of the holders of the Certificates
therein, and such Mortgage Loan shall be repurchased or a Qualified Substitute
Mortgage Loan substituted in lieu thereof without regard to the extended cure
period described in the preceding sentence. If the affected Mortgage Loan is to
be repurchased, the Seller shall remit the Repurchase Price (defined below) in
immediately available funds to the Trustee.
If any Breach pertains to a representation or warranty that the
related Mortgage Loan documents or any particular Mortgage Loan document
requires the related Mortgagor to bear the costs and expenses associated with
any particular action or matter under such Mortgage Loan document(s), then
Seller shall cure such Breach within the applicable cure period (as the same may
be extended) by reimbursing the Trust Fund (by wire transfer of immediately
available funds) the reasonable amount of any such costs and expenses incurred
by the 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, the Seller shall have the option to either repurchase
or substitute for the related Mortgage Loan as provided above or pay such costs
and expenses. Except as provided in the proviso to the immediately preceding
sentence, the Seller shall remit the amount of such costs and expenses and upon
its making such remittance, the Seller shall be deemed to have cured such Breach
in all respects. To the extent any fees or expenses that are the subject of a
cure by the Seller are subsequently obtained from the related Mortgagor, the
portion of the cure payment equal to such fees or expenses obtained from the
Mortgagor shall be returned to the Seller pursuant to Section 2.03(f) of the
Pooling and Servicing Agreement. Notwithstanding the foregoing, the sole remedy
with respect to any breach of the representation set forth in the second to last
sentence of clause (32) of Exhibit B hereto shall be payment by the Seller of
such costs and expenses without respect to the materiality of such breach.
Any of the following will cause a document in the Mortgage File to
be deemed to have a Defect and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interests of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity with a copy of the Mortgage
Note that appears to be regular on its face; (b) the absence from the Mortgage
File of the original signed Mortgage that appears to be regular on its face,
unless there is included in the Mortgage File a certified copy of the Mortgage
and a certificate stating that the original signed Mortgage was sent for
recordation; (c) the absence from the Mortgage File of the lender's title
insurance policy (or if the policy has not yet been issued, an original or copy
of a "marked up" written commitment or the pro-forma or specimen title insurance
policy or a commitment to issue the same pursuant to written escrow instructions
signed by the title insurance company) called for by clause (ix) of the
definition of "Mortgage File" in the Pooling and Servicing Agreement; (d) the
absence from the Mortgage File of any required letter of credit; (e) with
respect to any leasehold mortgage loan, the absence from the related Mortgage
File of a copy (or an original, if available) of the related Ground Lease; or
(f) the absence from the Mortgage File of any intervening assignments required
to create a complete chain of assignments to the Trustee on behalf of the Trust,
unless there is included in the Mortgage File a certified copy of the
intervening assignment and a certificate stating that the original intervening
assignments were sent for recordation; provided, however, 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 the Seller will be required to repurchase or substitute for
all of the remaining Crossed Loans in the related Crossed Group as provided
in the first paragraph of this Section 6(e) unless such other Crossed Loans
in such Crossed Group satisfy the Crossed Loan Repurchase Criteria, and the
Mortgage Loan affected by the applicable Defect or Breach and the Qualified
Substitute Mortgage Loan, if any, satisfy all other criteria for repurchase
or substitution, as applicable, of Mortgage Loans set forth herein. In the
event that the remaining Crossed Loans satisfy the aforementioned criteria,
the Seller may elect either to repurchase or substitute for only the affected
Crossed Loan as to which the related Breach or Defect exists or to repurchase
or substitute for all of the Crossed Loans in the related Crossed Group. The
Seller shall be responsible for the cost of any Appraisal required to be
obtained by the 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 the Seller (such approval not to be
unreasonably withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Trustee shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Trustee shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner that removes the threat of material impairment as a result of the
exercise of remedies or some other accommodation can be reached. Any reserve or
other cash collateral or letters of credit securing the Crossed Loans shall be
allocated between such Crossed Loans in accordance with the Mortgage Loan
documents, or otherwise on a pro rata basis based upon their outstanding Stated
Principal Balances. Notwithstanding the foregoing, if a Crossed Loan that
remains in the Trust Fund is modified to terminate the related cross
collateralization and/or cross default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
any modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
The "Repurchase Price" with respect to any Mortgage Loan or REO Loan
to be repurchased pursuant to this Agreement and Section 2.03 of the Pooling and
Servicing Agreement, shall have the meaning given to the term "Purchase Price"
in the Pooling and Servicing Agreement.
A "Qualified Substitute Mortgage Loan" with respect to any Mortgage
Loan or REO Loan to be substituted pursuant to this Agreement and Section 2.03
of the Pooling and Servicing Agreement, shall have the meaning given to such
term in the Pooling and Servicing Agreement.
A "Substitution Shortfall Amount" with respect to any Mortgage Loan
or REO Loan to be substituted pursuant to this Agreement and Section 2.03 of the
Pooling and Servicing Agreement, shall have the meaning given to such term in
the Pooling and Servicing Agreement.
In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated hereby, (i) the Purchaser shall execute and deliver,
or cause the execution and delivery of, such endorsements and assignments,
without recourse, as shall be necessary to vest in the Seller the legal and
beneficial ownership of each repurchased Mortgage Loan or replaced Mortgage
Loan, as applicable, (ii) the Purchaser shall deliver, or cause the delivery, to
the Seller of all portions of the Mortgage File and other documents (including
the Servicing File) pertaining to such Mortgage Loan possessed by the Trustee,
or on the Trustee's behalf, and (iii) the Purchaser shall release, or cause to
be released, to the Seller any escrow payments and reserve funds held by the
Trustee, or on the Trustee's behalf, in respect of such repurchased or replaced
Mortgage Loans.
(f) The representations and warranties of the parties hereto shall
survive the execution and delivery and any termination of this Agreement and
shall inure to the benefit of the respective parties, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes or Assignment of
Mortgage or the examination of the Mortgage Files.
(g) Each party hereby agrees to promptly notify the other party of
any Breach of a representation or warranty contained in this Section 6. The
Seller's obligation to cure any Breach or Defect or repurchase or substitute for
the affected Mortgage Loan pursuant to Section 6(e) herein shall constitute the
sole remedy available to the Purchaser in connection with a Breach or Defect
(subject to the last sentence of the second paragraph of Section 6(e)). It is
acknowledged and agreed that the representations and warranties are being made
for risk allocation purposes only; provided, however, that no limitation of
remedy is implied with respect to the Seller's breach of its obligation to cure,
repurchase or substitute in accordance with the terms and conditions of this
Agreement.
SECTION 7. Conditions to Closing. The obligations of the Purchaser
to purchase the Mortgage Loans shall be subject to the satisfaction, on or prior
to the Closing Date, of the following conditions:
(a) Each of the obligations of the Seller required to be performed
by it at or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with and all of the representations
and warranties of the Seller under this Agreement shall be true and correct in
all material respects as of the Closing Date, and no event shall have occurred
as of the Closing Date which, with notice or passage of time, would constitute a
default under this Agreement, and the Purchaser shall have received a
certificate to the foregoing effect signed by an authorized officer of the
Seller substantially in the form of Exhibit D.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of the Seller's certificate of incorporation and by-laws,
certified as of a recent date by the Secretary or Assistant Secretary of
the Seller;
(ii) an original or copy of a certificate of good standing of the
Seller issued by the Secretary of the State of Delaware dated not earlier
than sixty days prior to the Closing Date;
(iii) an opinion of counsel of the Seller, in form and substance
satisfactory to the Purchaser and its counsel, substantially to the effect
that:
(A) the Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of
Delaware;
(B) the Seller has the power to conduct its business as now
conducted and to incur and perform its obligations under this
Agreement and the Indemnification Agreement;
(C) all necessary corporate or other action has been taken by
the Seller to authorize the execution, delivery and performance of
this Agreement and the Indemnification Agreement by the Seller and
this Agreement is a legal, valid and binding agreement of the Seller
enforceable against the Seller, whether such enforcement is sought
in a procedure at law or in equity, except to the extent such
enforcement may be limited by bankruptcy or other similar creditors'
laws or principles of equity and public policy considerations
underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of
the Agreement which purport to provide indemnification with respect
to securities law violations;
(D) the Seller's execution and delivery of, and the Seller's
performance of its obligations under, each of this Agreement and the
Indemnification Agreement do not and will not conflict with the
Seller's articles of association or by-laws or conflict with or
result in the breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which
the Seller is a party or by which the Seller is bound, or to which
any of the property or assets of the Seller is subject or violate
any provisions of law or conflict with or result in the breach of
any order of any court or any governmental body binding on the
Seller;
(E) there is no litigation, arbitration or mediation pending
before any court, arbitrator, mediator or administrative body, or to
such counsel's actual knowledge, threatened, against the Seller
which (i) questions, directly or indirectly, the validity or
enforceability of this Agreement or the Indemnification Agreement or
(ii) would, if decided adversely to the Seller, either individually
or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of the Seller to perform its
obligations under this Agreement or the Indemnification Agreement;
and
(F) no consent, approval, authorization, order, license,
registration or qualification of or with federal court or
governmental agency or body is required for the consummation by the
Seller of the transactions contemplated by this Agreement and the
Indemnification Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained; and
(iv) a letter from counsel of the Seller to the effect that nothing
has come to such counsel's attention that would lead such counsel to
believe that the Prospectus Supplement as of the date thereof or as of the
Closing Date contains, with respect to the Seller or the Mortgage Loans,
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein relating to the Seller
or the Mortgage Loans, in the light of the circumstances under which they
were made, not misleading.
(c) The Offered Certificates shall have been concurrently issued and
sold pursuant to the terms of the Underwriting Agreement. The Private
Certificates shall have been concurrently issued and sold pursuant to the terms
of the Certificate Purchase Agreement.
(d) The Seller shall have executed and delivered concurrently
herewith the Indemnification Agreement.
(e) The Seller shall furnish the Purchaser with such other
certificates of its officers or others and such other documents and opinions to
evidence fulfillment of the conditions set forth in this Agreement as the
Purchaser and its counsel may reasonably request.
SECTION 8. Closing. The closing for the purchase and sale of the
Mortgage Loans shall take place at the office of Cadwalader, Wickersham & Taft
LLP, Charlotte, North Carolina, at 10:00 a.m., on the Closing Date or such other
place and time as the parties shall agree. The parties hereto agree that time is
of the essence with respect to this Agreement.
SECTION 9. Expenses. The Seller will pay its pro rata share (the
Seller's pro rata share to be determined according to the percentage that the
aggregate principal balance as of the Cut-off Date of all the Mortgage Loans
represents in proportion to the aggregate principal balance as of the Cut-off
Date of all the mortgage loans to be included in the Trust Fund) of all costs
and expenses of the Purchaser in connection with the transactions contemplated
herein, including (without duplication thereof), but not limited to: (i) the
costs and expenses of the Purchaser in connection with the purchase of the
Mortgage Loans and other mortgage loans; (ii) the costs and expenses of
reproducing and delivering the Pooling and Servicing Agreement and printing (or
otherwise reproducing) and delivering the Certificates; (iii) the reasonable and
documented fees, costs and expenses of the Trustee and its counsel incurred in
connection with the Trustee entering into the Pooling and Servicing Agreement;
(iv) the fees and disbursements of a firm of certified public accountants
selected by the Purchaser and the Seller with respect to numerical information
in respect of the Mortgage Loans, other mortgage loans and the Certificates
included in the Prospectus, the Memoranda (as defined in the Indemnification
Agreement) and 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 Thacher Proffitt & Wood LLP, counsel to the Underwriters, and
Cadwalader, Wickersham & Taft LLP, counsel to the Depositor.
SECTION 10. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement. Furthermore, the
parties shall in good faith endeavor to replace any provision held to be invalid
or unenforceable with a valid and enforceable provision which most closely
resembles, and which has the same economic effect as, the provision held to be
invalid or unenforceable.
SECTION 11. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to conflicts of
law principles and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
SECTION 12. No Third Party Beneficiaries. The parties do not intend
the benefits of this Agreement to inure to any third party except as expressly
set forth in Section 13.
SECTION 13. Assignment. The Seller hereby acknowledges that the
Purchaser has, concurrently with the execution hereof, executed and delivered
the Pooling and Servicing Agreement and that, in connection therewith, it has
assigned its rights hereunder to the Trustee for the benefit of the
Certificateholders to the extent set forth in the Pooling and Servicing
Agreement and that the rights so assigned may be further assigned to, and shall
inure to the benefit of, any successor trustee under the Pooling and Servicing
Agreement. The Seller hereby acknowledges its obligations (subject to the
provisions hereof), including that of expense reimbursement, pursuant to
Sections 2.01, 2.02 and 2.03 of the Pooling and Servicing Agreement. Except as
set forth hereinabove and in Sections 2.01, 2.02 and 2.03 of the Pooling and
Servicing Agreement, the representations and warranties of the Seller made
hereunder and the remedies provided hereunder with respect to Breaches or
Defects may not be further assigned by the Purchaser, the Trustee or any
successor trustee. No owner of a Certificate issued pursuant to the Pooling and
Servicing Agreement shall be deemed a successor or permitted assign because of
such ownership. This Agreement shall bind and inure to the benefit of, and be
enforceable by, the Seller, the Purchaser and their permitted successors and
permitted assigns. The warranties and representations and the agreements made by
the Seller herein shall survive delivery of the Mortgage Loans to the Trustee
until the termination of the Pooling and Servicing Agreement.
SECTION 14. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given upon
receipt by the intended recipient if personally delivered at or couriered, sent
by facsimile transmission or mailed by first class or registered mail, postage
prepaid, to (i) in the case of the Purchaser, J.P. Morgan Chase Commercial
Mortgage Securities Corp., 270 Park Avenue, New York, New York 10017, Attention:
Dennis Schuh, fax number (212) 834-6593 with a copy to Bianca Russo, fax number
(212) 834-6593, (ii) in the case of the Seller, Nomura Credit & Capital, Inc., 2
World Financial Center, Building B, New York, New York 10281-1198, Attention: N.
Dante LaRocca, fax number: (646) 587-9804 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 Seller and the Purchaser shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. Except as set forth in
Section 6 herein, the rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any party would
otherwise have pursuant to law or equity. Except as set forth in Section 6
herein, no notice to or demand on any party in any case shall entitle such party
to any other or further notice or demand in similar or other circumstances, or
constitute a waiver of the right of either party to any other or further action
in any circumstances without notice or demand.
SECTION 18. No Partnership. Nothing herein contained shall be deemed
or construed to create a partnership or joint venture between the parties
hereto. Nothing herein contained shall be deemed or construed as creating an
agency relationship between the Purchaser and the Seller and neither party shall
take any action which could reasonably lead a third party to assume that it has
the authority to bind the other party or make commitments on such party's
behalf.
SECTION 19. Miscellaneous. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
* * * * * *
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
J.P. MORGAN CHASE COMMERCIAL MORTGAGE
SECURITIES CORP., as Purchaser
By: /s/ Charles Y. Lee
--------------------------------------
Name: Charles Y. Lee
Title: Vice President
NOMURA CREDIT & CAPITAL, INC., as
Seller
By: /s/ N. Dante LaRocca
--------------------------------------
Name: N. Dante LaRocca
Title: Managing Director
EXHIBIT A
MORTGAGE LOAN SCHEDULE
JPMCC 2006-LDP9
Mortgage Loan Schedule (NCCI)
Loan # Mortgagor Name Property Address
------ -------------------------------------- -------------------------------
36.01 Various
36 Club Royale Apts., Inc. 380 North Linden Avenue
37 4141 Glendale Avenue, Inc. 4141 West Glendale Avenue
38 5525 Pleasant Hill Avenue, Inc. 5575 Pleasant Hill Avenue
39 1661 First Street, Inc. 1661 First Street
40 45321-45365 Cedar Avenue, Inc. 45321-65 Cedar Avenue
41 1475 E. Date Street, Inc. 1475 East Date Street
42 14625 Rayen Street, Inc. 14625 Raven Street
43 8510 Columbus Avenue, Inc. 8510 Columbus Avenue
44 4171 W. El Segundo Blvd., Inc. 4171 West El Segundo Boulevard
52 Champion WLA, LTD. 11270 West Olympic Boulevard
56.01 Various
56 Sunset Terrace, Inc. 9301 Van Nuys Boulevard
57 Magnolia Apts, Inc. 10822 Magnolia Boulevard
58 211 S. La Fayette Park Place, Inc. 211 South La Fayette Park Place
59 Sunset Ridge Investments, Inc. 1775 Arriba Drive
60 Indian Creek Villas Apts., Inc. 851 Tucker Road
61 4801 E. Tropicana, Inc. 4801 East Tropicana Avenue
70 SCIF Torrance I, LLC and SCIF PCH LLC 4300-4320 West 190th Street
103 Centrepointe Plaza, L.P. 1040-1100 South Mount Vernon
126 Weslayan Investments, LLC 2900 Weslayan Road
142 Pack & Stack Portfolio II, LLC Various
142.01 6511 Colleyville Boulevard
142.02 1750 West Northwest Highway
142.03 525 Fort Worth Drive
150 Woodlands Terrapin Investors I, LLC, 29813 I-45 North
Woodlands Terrapin Investors II, LLC,
Woodlands Terrapin Investors III, LLC,
537 Houston, LLC, Maven Houston, LLC,
Marc Hotel Houston, LLC, Miriam Hotel
Houston, LLC
153 Reserve at AH Holdings, LLC 8446 Country Village Street
154 Niner Holdings, L.L.L.P., Niner 303 West Glenoaks Boulevard
Holdings, L.P., JD Glen Oaks, LLC, Ket
Glenoaks, LLC, Granite Glen Oaks, LLC,
RMS Glenoaks, LLC, HZL, LLC
161 M. Tara LLC 3751 East Fowler Avenue
191 Papago Place Apartments, LLC 3434 East McDowell Drive
195 Rosemont Greenville, LLC 49 Orchard Park Drive
201 Oakhill Family Park, LLC 1951 Lake Daisy Road
204 El Rancho Rialto Limited Partnership 2598 North Ayala Drive
214 F&F Suntree Associates, LLC 3040 Suntree Plaza
229 Pack & Stack Portfolio I, LLC Various
229.01 3930 Valley View Lane
229.02 201 Brothers Boulevard
234 RJC Properties, Corp. 2000 Sunset Drive
240 86th Street Limited Partnership 8615 Iltis/Meredith Drive
245 Gamete Inc. 4400 Belmont Avenue
262 CSH Lakeland/Lake Wales Partnership Various
262.01 4851 Old Road 37
262.02 1250 State Road 60 West
265 Middletown Self-Storage, LLC 1511 Saybrook Road
269 Big Horn Park Partners 314 South Main Street
Jeffrey E. Schwartz, Nannette
272 Pioneer Curtis Homes, L.P. 1334 Northwest Jackson Street
Loan # City State Zip Code County Property Name Size
------ --------------- ------- -------- -------------- ------------------------------------------ ----
36.01 Various Various Various Various Jogani Portfolio I 1298
36 Rialto CA 92376 San Bernardino Club Royale 334
37 Phoenix AZ 85051 Maricopa Cinnabarr 430
38 Las Vegas NV 89103 Clark Pleasant Hill Villas 172
39 Santa Ana CA 92701 Orange Saddleback Lodge 114
40 Lancaster CA 93534 Los Angeles Somerset Townhomes 45
41 San Bernardino CA 92404 San Bernardino Mountain View (San Bernardino) 67
42 Panorama City CA 91402 Los Angeles North Pointe (Rayen) 48
43 North Hills CA 91343 Los Angeles Columbus Gardens 48
44 Hawthorne CA 90250 Los Angeles Courtyard Hawthorne 40
52 Los Angeles CA 90064 Los Angeles One West Side 92729
56.01 Various Various Various Various Jogani Portfolio II 700
56 Panorama City CA 91402 Los Angeles Sunset Terrace 120
57 North Hollywood CA 91601 Los Angeles Studio Village 169
58 Los Angeles CA 90057 Los Angeles Park Pointe 89
59 Bullhead City AZ 86442 Mohave River Springs 201
60 Tehachapi CA 93561 Kern Indian Creek Villas 72
61 Las Vegas NV 89121 Clark Wildwood 49
70 Torrance CA 90504 Los Angeles Magellan Storage-190th Torrance Industrial 245133
103 Colton CA 92324 San Bernardino Centerpointe Shopping Center - Colton 93891
126 Houston TX 77027 Harris 2900 Weslayan Road 137705
142 Various TX Various Various Pack & Stack Portfolio II 1622
142.01 Colleyville TX 76034 Tarrant Pack & Stack - Colleyville 529
142.02 Dallas TX 75220 Dallas Pack & Stack - Dallas 581
142.03 Denton TX 76201 Denton Pack & Stack - Denton 512
150 Shenandoah TX 77381 Montgomery Homewood Suites - The Woodlands, TX 91
153 San Antonio TX 78209 Bexar The Reserve in Alamo Heights 200
154 Glendale CA 91202 Los Angeles Glenoaks Apartments 63
161 Tampa FL 33612 Hillsborough Wingate Inn 84
191 Phoenix AZ 85008 Maricopa Papago Apartments 128
195 Greenville SC 29615 Greenville Orchard Park Apartments 172
201 Winter Haven FL 33884 Polk Cypress Gardens MH & RV Park 276
204 Rialto CA 92377 San Bernardino El Rancho Verde 145
214 Kansas City KS 66103 Wyandotte Suntree Apartments (Kansas City) 216
229 Various TX Various Various Pack & Stack Portfolio I 1229
229.01 Irving TX 75062 Dallas Pack & Stack - Irving 784
229.02 Red Oak TX 75154 Ellis Pack & Stack - Red Oak 445
234 Pacific Grove CA 93950 Monterey Pacific Grove Self Storage 450
240 Urbandale IA 50322 Polk Cross Creek Apartments 120
245 Youngstown OH 44505 Trumbull Hampton Inn - Youngstown 66
262 Various FL Various Polk CSH Lakeland & Lake Wales 1001
262.01 Lakeland FL 33813 Polk CSH Lakeland 749
262.02 Lake Wales FL 33859 Polk CSH Lake Wales 252
265 Middletown CT 06457 Middlesex Middletown Self Storage 345
269 Angels Camp CA 95222 Calaveras Big Horn MHC 188
272 Topeka KS 66608 Shawnee Pioneer Curtis Homes 59
Loan # Measure Interest Rate (%) Net Mortgage Interest Rate Original Balance Cutoff Balance Term
------ ----------- ----------------- -------------------------- ---------------- -------------- ----
36.01 Units Various 69,873,200 69,733,595 120
36 Units 5.59000 5.56957 27,226,900 27,172,410 120
37 Units 5.64000 5.61957 10,808,000 10,786,604 120
38 Units 5.59000 5.56957 10,301,800 10,281,183 120
39 Units 5.59000 5.56957 6,972,400 6,958,446 120
40 Units 5.59000 5.56957 3,622,900 3,615,649 120
41 Units 5.59000 5.56957 3,200,000 3,193,596 120
42 Units 5.59000 5.56957 2,801,700 2,796,093 120
43 Units 5.59000 5.56957 2,484,900 2,479,927 120
44 Units 5.59000 5.56957 2,454,600 2,449,688 120
52 Square Feet 5.70000 5.67957 47,500,000 47,500,000 144
56.01 Units Various 43,218,600 43,132,160 120
56 Units 5.59000 5.56957 12,843,200 12,817,497 120
57 Units 5.59000 5.56957 9,564,300 9,545,159 120
58 Units 5.59000 5.56957 8,193,200 8,176,803 120
59 Units 5.59000 5.56957 6,596,100 6,582,899 120
60 Units 5.59000 5.56957 3,498,800 3,491,798 120
61 Units 5.64000 5.61957 2,523,000 2,518,005 120
70 Square Feet 6.25000 6.18957 29,000,000 29,000,000 120
103 Square Feet 6.18000 6.15957 16,200,000 16,200,000 120
126 Square Feet 6.09000 6.06957 11,400,000 11,388,845 60
142 Units 5.71000 5.68907 8,285,000 8,285,000 120
142.01 Units 5.71000 3,415,000 3,415,000 120
142.02 Units 5.71000 2,470,000 2,470,000 120
142.03 Units 5.71000 2,400,000 2,400,000 120
150 Rooms 6.00000 5.91957 7,500,000 7,500,000 120
153 Units 6.83000 6.76957 7,199,500 7,199,500 60
154 Units 6.11000 6.08957 7,100,000 7,100,000 84
161 Rooms 6.73000 6.70957 6,800,000 6,794,122 120
191 Units 5.73000 5.66957 5,330,000 5,324,414 120
195 Units 6.12000 6.09907 5,150,000 5,150,000 60
201 Pads 6.30000 6.27957 4,750,000 4,733,683 120
204 Pads 5.94000 5.87957 4,520,000 4,520,000 120
214 Units 5.65000 5.62957 4,260,000 4,260,000 120
229 Units 5.71000 5.68907 3,715,000 3,715,000 120
229.01 Units 5.71000 2,770,000 2,770,000 120
229.02 Units 5.71000 945,000 945,000 120
234 Units 5.85000 5.76957 3,500,000 3,500,000 180
240 Units 5.74000 5.71957 3,150,000 3,150,000 120
245 Rooms 6.15000 6.07957 3,000,000 3,000,000 120
262 Units 6.58000 6.55957 2,147,000 2,143,562 120
262.01 Units 6.58000 1,697,000 1,694,283 120
262.02 Units 6.58000 450,000 449,279 120
265 Units 6.18000 6.15957 2,000,000 2,000,000 120
269 Pads 5.80000 5.77957 1,875,000 1,875,000 120
272 Units 5.97000 5.90957 1,520,000 1,520,000 144
Loan # Rem. Term Maturity/ARD Date Amort. Term Rem. Amort. Monthly Debt Service Servicing Fee Rate Accrual Type
------ --------- ----------------- ----------- ----------- -------------------- ------------------ ------------
36.01 118 10/11/16 360 358 401,028 Actual/360
36 118 10/11/16 360 358 156,132 0.02000 Actual/360
37 118 10/11/16 360 358 62,319 0.02000 Actual/360
38 118 10/11/16 360 358 59,076 0.02000 Actual/360
39 118 10/11/16 360 358 39,983 0.02000 Actual/360
40 118 10/11/16 360 358 20,775 0.02000 Actual/360
41 118 10/11/16 360 358 18,350 0.02000 Actual/360
42 118 10/11/16 360 358 16,066 0.02000 Actual/360
43 118 10/11/16 360 358 14,250 0.02000 Actual/360
44 118 10/11/16 360 358 14,076 0.02000 Actual/360
52 142 10/11/18 0 0 228,759 0.02000 Actual/360
56.01 118 10/11/16 360 358 247,916 Actual/360
56 118 10/11/16 360 358 73,649 0.02000 Actual/360
57 118 10/11/16 360 358 54,846 0.02000 Actual/360
58 118 10/11/16 360 358 46,984 0.02000 Actual/360
59 118 10/11/16 360 358 37,825 0.02000 Actual/360
60 118 10/11/16 360 358 20,064 0.02000 Actual/360
61 118 10/11/16 360 358 14,548 0.02000 Actual/360
70 118 10/11/16 360 360 178,558 0.06000 Actual/360
103 119 11/11/16 360 360 99,010 0.02000 Actual/360
126 59 11/11/11 360 359 69,010 0.02000 Actual/360
142 120 12/11/16 360 360 48,139 0.02050 Actual/360
142.01 120 12/11/16 360 360
142.02 120 12/11/16 360 360
142.03 120 12/11/16 360 360
150 120 12/06/16 360 360 44,966 0.08000 Actual/360
153 56 08/11/11 0 0 41,546 0.06000 Actual/360
154 84 12/11/13 0 0 36,653 0.02000 Actual/360
161 119 11/11/16 360 359 44,014 0.02000 Actual/360
191 119 11/11/16 360 359 31,037 0.06000 Actual/360
195 58 10/11/11 0 0 26,630 0.02050 Actual/360
201 116 08/11/16 360 356 29,401 0.02000 Actual/360
204 118 10/06/16 0 0 22,685 0.06000 Actual/360
214 111 03/11/16 360 360 24,590 0.02000 Actual/360
229 120 12/11/16 360 360 21,585 0.02050 Actual/360
229.01 120 12/11/16 360 360
229.02 120 12/11/16 360 360
234 180 12/06/21 180 180 29,252 0.08000 Actual/360
240 120 12/11/16 360 360 18,363 0.02000 Actual/360
245 120 12/11/16 300 300 19,605 0.07000 Actual/360
262 118 10/11/16 360 358 13,684 0.02000 Actual/360
262.01 118 10/11/16 360 358
262.02 118 10/11/16 360 358
265 120 12/11/16 360 360 12,223 0.02000 Actual/360
269 120 12/11/16 360 360 11,002 0.02000 Actual/360
272 144 12/11/18 360 360 9,084 0.06000 Actual/360
Loan # ARD (Y/N) ARD Step Up (%) Title Type Crossed Loan Originator/Loan Seller
------ --------- --------------- ---------- ------------ ----------------------
36.01 No Fee NCCI
36 No Fee B NCCI
37 No Fee B NCCI
38 No Fee B NCCI
39 No Fee B NCCI
40 No Fee B NCCI
41 No Fee B NCCI
42 No Fee B NCCI
43 No Fee B NCCI
44 No Fee B NCCI
52 No Fee NCCI
56.01 No Fee NCCI
56 No Fee C NCCI
57 No Fee C NCCI
58 No Fee C NCCI
59 No Fee C NCCI
60 No Fee C NCCI
61 No Fee C NCCI
70 No Fee NCCI
103 No Fee NCCI
126 No Fee NCCI
142 No Fee NCCI
142.01 No Fee NCCI
142.02 No Fee NCCI
142.03 No Fee NCCI
150 No Fee NCCI
153 No Fee NCCI
154 No Fee NCCI
161 No Fee NCCI
191 No Fee NCCI
195 No Fee NCCI
201 No Fee NCCI
204 No Fee NCCI
214 No Fee NCCI
229 No Fee NCCI
229.01 No Fee NCCI
229.02 No Fee NCCI
234 No Fee NCCI
240 No Fee NCCI
245 No Fee NCCI
262 No Fee NCCI
262.01 No Fee NCCI
262.02 No Fee NCCI
265 No Fee NCCI
269 No Fee NCCI
272 No Fee NCCI
UPFRONT ESCROW
--------------------------------------------
Loan # Guarantor Letter of Credit Upfront CapEx Reserve Upfront Eng. Reserve
------ -------------------------------------- ---------------- --------------------- --------------------
36.01 No 0.00 148,762.00
36 J.K. Properties, Inc. No 0.00 93,438.00
37 J.K. Properties, Inc. No 0.00 15,063.00
38 J.K. Properties, Inc. No 0.00 0.00
39 J.K. Properties, Inc. No 0.00 9,073.00
40 J.K. Properties, Inc. No 0.00 5,000.00
41 J.K. Properties, Inc. No 0.00 10,563.00
42 J.K. Properties, Inc. No 0.00 10,000.00
43 J.K. Properties, Inc. No 0.00 5,625.00
44 J.K. Properties, Inc. No 0.00 0.00
52 Robert Champion No 0.00 1,875.00
56.01 No 0.00 125,338.00
56 J.K. Properties, Inc. No 0.00 25,125.00
57 J.K. Properties, Inc. No 0.00 1,250.00
58 J.K. Properties, Inc. No 0.00 0.00
59 J.K. Properties, Inc. No 0.00 14,875.00
60 J.K. Properties, Inc. No 0.00 1,688.00
61 J.K. Properties, Inc. No 0.00 82,400.00
70 Martin Slusser, Kevin Staley No 0.00 0.00
103 Frederick Murrill Techert No 0.00 5,062.00
126 Fawzi M. Beidas No 0.00 375,000.00
142 Margaret B. Vonder Hoya No 0.00 7,001.00
142.01
142.02
142.03
150 William D. Schmicker, Anthony Jon No 0.00 0.00
Sherman, Craig S. Lipton Revocable
Trust DTD 3/22/04 Trust, Craig S.
Lipton, Dwight W. Davis, Miriam F.
Lipton, Marc E. Lipton Living Trust,
Marc E. Lipton, Sherman Family Trust
DTD 4/22/03 Trust
153 C. Trebes Sasser No 0.00 10,313.00
154 Allen L. Boerner No 0.00 0.00
161 Veerendra Kumar Srivastava 150,000.0 0.00 3,125.00
191 Steven C. Olafson No 0.00 1,625.00
195 Rosemont Greenville, LLC No 248,540.00 826,901.00
201 Robert S. Cassidy No 0.00 61,250.00
204 Patrick F. Mockler, William F. Raymond No 0.00 7,721.00
214 The Gregory A. Fowler Living Trust No 0.00 39,813.00
u/t/a April 27, 1995, Darla T.
Flanagan
229 Margaret B. Vonder Hoya No 0.00 4,125.00
229.01
229.02
234 Jeffrey R. Cohen, Raphael Cohen No 0.00 0.00
240 Alan H. Ginsburg No 0.00 0.00
245 Shirish N. Shah No 0.00 3,375.00
262 John I. Sutmire, Philip Simolari, No 0.00 0.00
262.01 Agnes Viola, Janet D. Sutmire, Aldo
262.02 Santona, Georgia A. Barrie
265 Brenda L. Marinan, Elizabeth M. No 0.00 0.00
Brenda L. Marinan, Elizabeth M.
W. Epright, Michael W. Epright
269 Jeffrey E. Schwartz, Nannette No 0.00 0.00
Griswold, W. Robert Griswold, Jr.
272 Ross R. Freeman No 0.00 0.00
UPFRONT ESCROW
----------------------------------------------------------------------------------------------
Loan # Upfront Envir. Reserve Upfront TI/LC Reserve Upfront RE Tax Reserve Upfront Ins. Reserve
------ ---------------------- --------------------- ---------------------- --------------------
36.01 0.00 0.00 216,596.51 42,680.33
36 0.00 0.00 86,219.24 12,104.33
37 0.00 0.00 0.00 12,594.33
38 0.00 0.00 47,997.98 6,818.00
39 0.00 0.00 25,304.00 1,283.33
40 0.00 0.00 16,776.68 2,057.00
41 0.00 0.00 12,752.86 2,027.67
42 0.00 0.00 7,269.90 2,634.67
43 0.00 0.00 9,090.20 2,167.00
44 0.00 0.00 11,185.66 994.00
52 0.00 0.00 216,259.55 2,598.17
56.01 0.00 0.00 124,983.32 22,920.00
56 0.00 0.00 26,681.35 2,822.00
57 0.00 0.00 15,838.36 2,523.00
58 0.00 0.00 18,599.60 3,966.67
59 0.00 0.00 39,130.66 9,345.67
60 0.00 0.00 15,412.38 2,363.67
61 0.00 0.00 9,320.98 1,899.00
70 116,080.00 0.00 80,931.75 8,891.24
103 0.00 1,042,556.00 31,863.50 8,140.67
126 0.00 0.00 236,025.22 31,772.00
142 0.00 0.00 15,312.76 0.00
142.01
142.02
142.03
150 0.00 0.00 0.00 5,754.30
(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 Moody's 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 Moody's 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
JPMCC 2006-LDP9
Exceptions to Representations for Nomura Loans
Representation # (9)
Loan
Number Loan Name Description of Exception
Homewood Suites Mortgagor has entered into an operating
agreement with an affiliated entity as tenant.
The tenant operates the related Mortgaged
Property and has a right to the gross revenues.
Separate assignments were entered into by the
Mortgagor and tenant. A subordination agreement
was also entered into and the agreement is
collapsible in foreclosure.
Representation # (10(a))
Loan
Number Loan Name Description of Exception
Glenoaks Apartments Liability for the environmental covenants for
each tenant in common is limited to their
contribution.
Homewood Suites - Liability for each tenant in common is limited
The Woodlands, TX, to their contribution.
Magellan
Storage-190th
Torrance Industrial
Big Horn If Mortgagor converts to a single purpose
entity the indemnity and guaranty agreements
for Nannette and Robert Griswold are of no
further force and effect. The indemnity for
Jeffrey Schwartz shall remain.
Orchard Park Only the mortgagor is liable for the carveouts.
Apartments
Representation # (12)
Loan
Number Loan Name Description of Exception
Magellan Lender will permit the release of the 190th
Storage-190th Torrance Industrial Property ("Torrance
Torrance Industrial Industrial") or the Magellan Storage Property
("Magellan Storage") from the subject
collateral pursuant to the following terms: (i)
no event of default, (ii) pay-down of the Loan
proceeds at 115% of the allocated loan amount
attributable to Torrance Industrial or 120% of
the allocated loan amount attributable to
Magellan Storage, (iii) payment of the Yield
Maintenance Prepayment Penalty on the paid-down
portion of the Mortgage Loan, (iv) the DSCR on
the remaining collateral must support the
Minimum DSCR of 1.20x based on the actual loan
constant; (v) the LTV on the remaining
collateral must not exceed 75%, (vi) the
release must occur after the Lockout Period;
and (vii) other provisions pursuant to the loan
agreement.
2900 Weslayan Parcel 11 (defined below) and removing this as
collateral for the Mortgage Loan so long as
there is no loss of rent attributable to the
Chase leases, and provided that the subject
property maintains access off both Weslayan
Street and West Alabama Street through this
parcel. Tax Parcel 11 is a 0.73 acre parcel on
the south side of the building and currently
used for Chase's drive-through banking
facilities which are considered an over
improvement with multiple drive-through lanes
and teller windows.
Pack and Stack I Releases of the Mortgage Loan collateral shall
be permitted subject to (i) no event of default
having occurred, and (ii) the pre-payment with
any applicable yield maintenance penalties of
at least 115% of the allocated amount for the
related Mortgaged Property to be released.
Notwithstanding the foregoing, any collateral
release shall only be permitted following
Lender's determination that (i) the DSCR of the
remaining property shall not be less than
1.25x, and (ii) the LTV of the remaining
property shall be no higher than 75.0%.
Pack and Stack II Releases of the Mortgage Loan collateral shall
be permitted subject to (i) no event of default
having occurred, and (ii) the pre-payment with
any applicable yield maintenance penalties of
at least 115% of the allocated amount for the
related Mortgaged Property to be released.
Notwithstanding the foregoing, any collateral
release shall only be permitted following
Lender's determination that (i) the DSCR of the
remaining property shall not be less than
1.25x, and (ii) the LTV of the remaining
property shall be no higher than 75.0%.
Cinnabarr, Club Property(ies) may be released from the pool two
Royale, Columbus years from securitization based on final
Gardens, Courtyard allocated loan amounts subject to 110%
Hawthorne, Mountain defeasance and maintaining a 1.20x DSCR and 80%
View (San LTV on the remaining properties in that
Bernardino), North sub-pool or 100% defeasance and maintaining a
Pointe (Rayen), 1.25x DSCR and 75% LTV on the remaining
Pleasant Hill properties in that pool.
Villas, Saddleback
Lodge, Somerset Property(ies) may be released from the pool two
Townhomes, Indian years from closing, pursuant to an "arms length
Creek Villas, Park transaction", with no event of default, so long
Pointe, River as the remaining properties maintain not less
Springs, Studio than 1.20x DSCR and LTV of greater than 80%,
Village, Sunset subject to right to transfer provision within
Terrace, Wildwood the loan documents.
Representation # (16)
Loan
Number Loan Name Description of Exception
Glenoaks Apartments $100,000 was escrowed at closing until
Mortgagor obtains proper approvals for the
penthouse unit.
Suntree Apartments Certificates of occupancy were not available.
Per the zoning report, the absence of these
certificates is not considered a violation.
El Rancho MHP $20,000 was escrowed at closing until Mortgagor
obtains property permits and cures any
deficiencies and/or violations related to the
waste water treatment plant.
Representation # (19(a))
Loan
Number Loan Name Description of Exception
Pack and Stack II Eight units were damaged in a recent fire at
the Pack and Stack II - Denton property. These
units fall within the underwritten vacancy
factor and the damage is covered by insurance.
Orchard Park Due to a fire at the subject property, there
Apartments are currently nine down units. Full Scale
Services, Inc., a Greenville-based construction
company, presented a bid for rehabilitating the
nine down units. At closing, 100% of this cost
estimate was escrowed.
Homewod Suites - Funds were heldback at loan closing to address
The Woodlands, TX repairs and improvements required by the
franchisor.
Glenoaks An immediate repair reserve was not collected
Apartments, at closing.
Magellan
Storage-190th
Torrance Industrial
Representation # (21(a))
Loan
Number Loan Name Description of Exception
Suntree Apartments The Environmental Site Assessment was prepared
(Kansas City) on October 21, 2005.
Representation # (22)
Loan
Number Loan Name Description of Exception
All Nomura Loans Nomura generally requires an AM Best rating of
A:IX.
Big Horn The insurance provider has an AM Best rating of
A:VIII.
CSH Lakeland and Windstorm coverage was not obtained. Mortgagor
Lake Wales has 90 days from the date of damage to restore.
This period may be extended up to 180 days if
Mortgagor is diligently pursuing restoration.
During this period indemnitor is liable for any
losses related to business interruption. After
180 days or if Mortgagor does not diligently
pursue restoration the Mortgage Loan will be
recourse. Mortgagor must obtain windstorm
coverage as soon as it is available for
purchase at a commercially reasonable rate.
Representation # (24)
Loan
Number Loan Name Description of Exception
Cinnabarr, Club There is ongoing litigation within the Jogani
Royale, Columbus family regarding ownership of many of the
Gardens, Courtyard properties owned by Haresh Jogani, H.K. Realty,
Hawthorne, Mountain and J.K. Properties. This case is currently 3
View (San 1/2 years old. It is anticipated that the
Bernardino), North matter will be set to proceed to trial within 9
Pointe (Rayen), to 12 months. Further, upon conclusion of the
Pleasant Hill trial, it is anticipated that the unsuccessful
Villas, Saddleback party will appeal the judgment which appeal
Lodge, Somerset could extend the matter for years.
Townhomes, Indian
Creek Villas, Park
Pointe, River
Springs, Studio
Village, Sunset
Terrace, Wildwood
Representation # (32)
Loan
Number Loan Name Description of Exception
The Reserve in The sponsor also obtained $467,500 in
Alamo Heights traditional mezzanine financing, which is
secured by 100% of Mezzanine Borrower's
membership interest in the Mortgagor.
Magellan Future mezzanine debt is permitted provided the
Storage-190th LTV is no more than 80% and the DSCR is at
Torrance Industrial least 1.15:1.0.
One West Side Future mezzanine debt is permitted provided the
LTV is no more than 80% and the DSCR is at
least 1.07:1.0.
Big Horn MHC The Mortgagor may freely convert into a
California limited liability company by January
31, 2007.
Mortgagor may sell mobile homes on the related
Mortgaged Property to tenants and take back
seller financing notes secured by mobile homes.
Additionally, Mortgagor may incur subordinate
financing evidenced by a second lien on the
related Mortgaged Property or mezzanine debt in
a form of the pledge of the equity interests of
the Mortgagor. The secondary financing
evidenced by a second lien on the related
Mortgaged Property shall be allowed up to a
loan to value of 70% and a minimum aggregate
debt service coverage ratio of 1.45. The
subordinate financing evidenced by a second
lien on the related Mortgaged Property shall be
subject to a Subordination and Standstill
Agreement in a form acceptable to Lender and is
non-negotiable. Any secondary financing shall
take place any time from one year from loan
closing and two years prior to loan maturity.
Glenoaks Subject to the satisfaction of the typical
Apartments, requirements for transfers, as more
Homewood Suites - specifically set forth in the related loan
The Woodlands, TX, documents, transfers of interest in Mortgagor
Magellan are permitted to any entity that is party to or
Storage-190th will be party to the related TIC Agreement.
Torrance Industrial
Cross Creek Unsecured deferred developer fees in the form
Apartments of unsecured debt of the Mortgagor will be
allowed so long as they are payable only from
excess cash flow.
Keith Denner is preapproved as a substitute
sponsor/guarantor. Mr. Denner is currently a 1%
Limited Partner (TIMAK Investment C.C., L.C.),
and serves as the developer of the project for
AmerUS, and has managed the related Mortgaged
Property since it was built in 1999.
Homewood Suites Mortgagor has the right to freely roll-up the
tenants in common into a single entity.
Representation # (35)
Loan
Number Loan Name Description of Exception
Magellan Lender will permit the release of the 190th
Storage-190th Torrance Industrial Property ("Torrance
Torrance Industrial Industrial") or the Magellan Storage Property
("Magellan Storage") from the subject
collateral pursuant to the following terms: (i)
no event of default, (ii) pay-down of the
Mortgage Loan proceeds at 115% of the allocated
loan amount attributable to Torrance Industrial
or 120% of the allocated loan amount
attributable to Magellan Storage, (iii) payment
of the Yield Maintenance Prepayment Penalty on
the paid-down portion of the Mortgage Loan,
(iv) the DSCR on the remaining collateral must
support the Minimum DSCR of 1.20x based on the
actual loan constant; (v) the LTV on the
remaining collateral must not exceed 75%, (vi)
the release must occur after the Lockout
Period; and (vii) other provisions pursuant to
the loan agreement.
2900 Weslayan Mortgagor has the option of subdividing Tax
Parcel 11 and removing this as collateral for
the Mortgage Loan so long as there is no loss
of rent attributable to the Chase leases, and
provided that the subject property maintains
access off both Weslayan Street and West
Alabama Street through this parcel. Tax Parcel
11 is a 0.73 acre parcel on the south side of
the building and currently used for Chase's
drive-through banking facilities which are
considered an over improvement with multiple
drive-through lanes and teller windows.
Pack and Stack I Releases of the Mortgage Loan collateral shall
be permitted subject to (i) no event of default
having occurred, and (ii) the pre-payment with
any applicable yield maintenance penalties of
at least 115% of the allocated amount for the
related Mortgaged Property to be released.
Notwithstanding the foregoing, any collateral
release shall only be permitted following
Lender's determination that (i) the DSCR of the
remaining property shall not be less than
1.25x, and (ii) the LTV of the remaining
property shall be no higher than 75.0%.
Pack and Stack II Releases of the Mortgage Loan collateral shall
be permitted subject to (i) no event of default
having occurred, and (ii) the pre-payment with
any applicable yield maintenance penalties of
at least 115% of the allocated amount for the
related Mortgaged Property to be released.
Notwithstanding the foregoing, any collateral
release shall only be permitted following
Lender's determination that (i) the DSCR of the
remaining property shall not be less than
1.25x, and (ii) the LTV of the remaining
property shall be no higher than 75.0%.
Cinnabarr, Club Property(ies) may be released from the pool two
Royale, Columbus years from securitization based on final
Gardens, Courtyard allocated loan amounts subject to 110%
Hawthorne, Mountain defeasance and maintaining a 1.20x DSCR and 80%
View (San LTV on the remaining properties in that
Bernardino), North sub-pool or 100% defeasance and maintaining a
Pointe (Rayen), 1.25x DSCR and 75% LTV on the remaining
Pleasant Hill properties in that pool.
Villas, Saddleback
Lodge, Somerset Property(ies) may be released from the pool two
Townhomes, Indian years from closing, pursuant to an "arms length
Creek Villas, Park transaction", with no event of default, so long
Pointe, River as the remaining properties maintain not less
Springs, Studio than 1.20x DSCR and LTV of greater than 80%,
Village, Sunset subject to right to transfer provision within
Terrace, Wildwood the loan documents.
Schedule II
Loan
Number Loan Name Description
Magellan Environmental Insurance was obtained.
Storage-190th
Torrance Industrial
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 J.P. Morgan Chase
Commercial Mortgage Securities Corp., and all of the representations and
warranties of the Company under the Agreement are true and correct in all
material respects on and as of the date hereof (or, in the case of any
particular representation or warranty set forth on Exhibit B to the Agreement,
as of such other date provided for in such representation or warranty) with the
same force and effect as if made on and as of the date hereof, subject to the
exceptions set forth in the Agreement (including Exhibit C thereto).
2. The Company has complied with all the covenants and satisfied all
the conditions on its part to be performed or satisfied under the Agreement on
or prior to the date hereof and no event has occurred which, with notice or the
passage of time or both, would constitute a default under the Agreement.
3. I have examined the information regarding the Mortgage Loans in
the Prospectus, dated 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 OTHER
ENVIRONMENTAL INSURANCE IS MAINTAINED
Reference is made to the Representations and Warranties set forth in Exhibit
B attached hereto corresponding to the Paragraph numbers set forth below:
None.
EXHIBIT 10.7
J.P. MORGAN CHASE 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
This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as of December 1, 2006, is among J.P. Morgan 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
Wells 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 J.P. Morgan 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
A-1, A-2, A-3 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
A-1, A-2, A-3 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 A-1, A-2,
A-3 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 A-1, A-2, A-3 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, Wickersham & Taft
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 Thacher Proffitt & Wood LLP, counsel to the Underwriters, and
Cadwalader, Wickersham & Taft 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, J.P. Morgan Chase Commercial
Mortgage Securities Corp., 270 Park Avenue, New York, New York 10017, Attention:
Dennis Schuh, fax number (212) 834-6593 with a copy to Bianca Russo, fax number
(212) 834-6593, (ii) in the case of the Sellers, AIG Mortgage Capital, LLC, 1
SunAmerica Center, 38th Floor, Los Angeles, California 90067, Attention: Alan
Nussenblatt, fax number: (310) 772-6584 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.
J.P. MORGAN CHASE COMMERCIAL
MORTGAGE SECURITIES CORP., as
Purchaser
By: /s/ Charles Y. Lee
---------------------------------
Name: Charles Y. Lee
Title: Vice President
AIG MORTGAGE CAPITAL, LLC, as Seller
By: /s/ Keith C. Honig
---------------------------------
Name: Keith C. Honig
Title: Senior Vice President
SOME II, LLC, as Seller
By: /s/ Keith C. Honig
---------------------------------
Name: Keith C. Honig
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 80 Central Avenue Edgewater
106 Lake/Ridge L.L.C. 132-166 East Lake Street Bloomingdale
112 H-Cranford Conduit Limited Partnership 750 Walnut Avenue Cranford
118 ARG Holdings I L.L.C. 12 Christopher Way Eatontown
120 NL Ventures V TWG Illiana, L.P. Various Various
120.01 9050 West 81st Street Justice
120.02 8900 Broadway Merrillville
120.03 2001 South US Route 41 Schererville
120.04 201 West 89th Avenue Merrillville
120.05 9132-9136 Columbia Avenue Munster
122 CR Madison, LLC d/b/a CR Madison Management LLC 105 West Madison Street Chicago
123 Lakeside Office Park, LLC 4704 Harlan Street Denver
124 St. Louis Industrial Building, LLC, Goldrich & 1525 Woodson Road Overland
Kest Industries, LLC, GKHB
Royale Investments, L.P., South Gate Business and
Industrial Park Developers, L.P.
171 MJL Brooke Ventura, LLC, MJL Packer Ventura, LLC, SH Ventura, LLC 480-500 South Mills Road Ventura
207 Arthur Smyles 3056-3068 Hempstead Turnpike Levittown
Interest Rate
Loan # State Zip Code County Property Name Size Measure (%)
------ ------- -------- ------------ --------------------------------- ------ ----------- -------------
99 MD 21037 Anne Arundel Edgewater Village Shopping Center 96711 Square Feet 6.16000
106 IL 60108 Dupage Springbrook Shopping Center 185630 Square Feet 5.96000
112 NJ 07016 Union 750 Walnut 171975 Square Feet 5.45000
118 NJ 07724 Monmouth 12 Christopher Way 75816 Square Feet 5.67000
120 Various Various Various TWG Illiana Portfolio 122329 Square Feet 6.98000
120.01 IL 60458 Cook 9050 West 81st Street 59959 Square Feet 6.98000
120.02 IN 46410 Lake 8900 Broadway 16447 Square Feet 6.98000
120.03 IN 46410 Lake 2001 South US Route 41 23873 Square Feet 6.98000
120.04 IN 46410 Lake 201 West 89th Avenue 16050 Square Feet 6.98000
120.05 IN 46321 Lake 9132-9136 Columbia Avenue 6000 Square Feet 6.98000
122 IL 60602 Cook 105 West Madison Street 125729 Square Feet 5.95000
123 CO 80212 Jefferson Lakeside Office Park 116848 Square Feet 5.85000
124 MO 63114 St. Louis Fed Express 162161 Square Feet 5.91000
171 CA 93003 Ventura Ventura Retail Center 14586 Square Feet 5.95000
207 NY 11756 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 Greenberg Gibbons Commercial
Corporation
106 0.06000 Actual/360 No Fee AIG Stelios Aktipis and Samuel J. Girgis
112 0.02000 Actual/360 No Fee AIG Hartz Financial Corp.
118 0.04000 Actual/360 No Fee AIG Gerald N. Richter, Arvind Goel
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 Munir Rafidia
123 0.02200 Actual/360 No Fee AIG Anne Latham, Lloyd Latham,
Lea Cindy Foster,
Natasha Gardner,
Lisa Sherlock, Richard Latham
124 0.02000 Actual/360 No Fee AIG Jona Goldrich, Sol Kest,
Warren L. Breslow, Robert Hirsch
171 0.04000 Actual/360 No Fee AIG Scott Yorkison, Brian Appel,
Michael Heslov
207 0.07000 Actual/360 No Fee AIG Arthur Smyles
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 Moody's 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 Moody's 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
105 West Madison Street 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 J.P. Morgan Chase
Commercial Mortgage Securities Corp., and all of the representations and
warranties of the Company under the Agreement are true and correct in all
material respects on and as of the date hereof (or, in the case of any
particular representation or warranty set forth on Exhibit B to the Agreement,
as of such other date provided for in such representation or warranty) with the
same force and effect as if made on and as of the date hereof, subject to the
exceptions set forth in the Agreement (including Exhibit C thereto).
2. The Company has complied with all the covenants and satisfied
all the conditions on its part to be performed or satisfied under the Agreement
on or prior to the date hereof and no event has occurred which, with notice or
the passage of time or both, would constitute a default under the Agreement.
3. I have examined the information regarding the Mortgage Loans
in the Prospectus, dated 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.
EXHIBIT 10.8
(Multicurrency - Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December 21, 2006
JPMORGAN CHASE BANK, N.A. and J.P. MORGAN CHASE COMMERCIAL
MORTGAGE SECURITIES TRUST 2006-LDP9
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other
confirming evidence (each a "Confirmation") exchanged between the parties
confirming those Transactions.
Accordingly, the parties agree as follows: -
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master
Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the
relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single
agreement between the parties (collectively referred to as this
"Agreement"), and the parties would not otherwise enter into any
Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of
this Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds and in the manner customary for
payments in the required currency. Where settlement is by
delivery (that is, other than by payment), such delivery will be
made for receipt on the due date in the manner customary for the
relevant obligation unless otherwise specified in the relevant
Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential
Event of Default with respect to the other party has occurred and
is continuing, (2) the condition precedent that no Early
Termination Date in respect of the relevant Transaction has
occurred or been effectively designated and (3) each other
applicable condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five
Local Business Days prior to the scheduled date for the payment or
delivery to which such change applies unless such other party gives
timely notice of a reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party by
whom the larger aggregate amount would have been payable to pay to the other
party the excess of the larger aggregate amount over the smaller aggregate
amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same date
in the same currency in respect of such Transactions, regardless of whether
such amounts are payable in respect of the same Transaction. The election may
be made in the Schedule or a Confirmation by specifying that
subparagraph (ii) above will not apply to the Transactions identified as
being subject to the election, together with the starting date (in which case
subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for
different groups of Transactions and will apply separately to each pairing of
Offices through which the parties make and receive payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without
any deduction or withholding for or on account of any Tax unless
such deduction or withholding is required by any applicable law,
as modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or
withhold, then that party ("X") will:
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required
to be deducted or withheld from any additional amount paid
by X to Y under this Section 2(d)) promptly upon the
earlier of determining that such deduction or withholding
is required or receiving notice that such amount has been
assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition
to the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure
that the net amount actually received by Y (free and clear
of Indemnifiable Taxes, whether assessed against X or Y)
will equal the full amount Y would have received had no
such deduction or withholding been required. However, X
will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for:
(A) the failure by Y to comply with or perform any
agreement contained in Section 4(a)(i), 4(a)(iii) or
4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such
failure would not have occurred but for (I) any
action taken by a taxing authority, or brought in a
court of competent jurisdiction, on or after the date
on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect
to a party to this Agreement) or (II) a Change in Tax
Law.
(ii) Liability. If:
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to
make any deduction or withholding in respect of which X
would not be required to pay an additional amount to Y
under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the amount
of such liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment
obligation will, to the extent permitted by law and subject to
Section 6(c), be required to pay interest (before as well as after
judgment) on the overdue amount to the other party on demand in the
same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the
date of actual payment, at the Default Rate. Such interest will be
calculated on the basis of daily compounding and the actual number of
days elapsed. If, prior to the occurrence or effective designation of
an Early Termination Date in respect of the relevant Transaction, a
party defaults in the performance of any obligation required to be
settled by delivery, it will compensate the other party on demand if
and to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be
deemed to be repeated by each party on each date on which a Transaction is
entered into and, in the case of the representations in Section 3(f), at all
times until the termination of this Agreement) that:
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws
of the jurisdiction of its organisation or incorporation and, if
relevant under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party,
to deliver this Agreement and any other documentation relating to
this Agreement that it is required by this Agreement to deliver
and to perform its obligations under this Agreement and any
obligations it has under any Credit Support Document to which it
is a party and has taken all necessary action to authorise such
execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and
performance do not violate or conflict with any law applicable to
it, any provision of its constitutional documents, any order or
judgment of any court or other agency of government applicable to
it or any of its assets or any contractual restriction binding on
or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required
to have been obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party have been obtained
and are in full force and effect and all conditions of any such
consents have been complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its
legal, valid and binding obligations, enforceable in accordance
with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting
creditors' rights generally and subject, as to enforceability, to
equitable principles of general application (regardless of
whether enforcement is sought in a proceeding in equity or at
law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would
occur as a result of its entering into or performing its obligations
under this Agreement or any Credit Support Document to which it is a
party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or
proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely
to affect the legality, validity or enforceability against it of this
Agreement or any Credit Support Document to which it is a party or its
ability to perform its obligations under this Agreement or such Credit
Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is
identified for the purpose of this Section 3(d) in the Schedule is, as
of the date of the information, true, accurate and complete in every
material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(e) is accurate
and true.
(f) Payee Tax Representations. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3(f) is
accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may
have any obligation under this Agreement or under any Credit Support Document
to which it is a party:
(a) Furnish Specified Information. It will deliver to the other party or,
in certain cases under subparagraph (iii) below, to such government or
taxing authority as the other party reasonably directs:-
(i) any forms, documents or certificates relating to taxation
specified in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any
Confirmation; and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order
to allow such other party or its Credit Support Provider to make
a payment under this Agreement or any applicable Credit Support
Document without any deduction or withholding for or on account
of any Tax or with such deduction or withholding at a reduced
rate (so long as the completion, execution or submission of such
form or document would not materially prejudice the legal or
commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be
executed and to be delivered with any reasonably required
certification,
in each case by the date specified in the Schedule or such Confirmation or,
if none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain
in full force and effect all consents of any governmental or other
authority that are required to be obtained by it with respect to this
Agreement or any Credit Support Document to which it is a party and
will use all reasonable efforts to obtain any that may become necessary
in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to
comply would materially impair its ability to perform its obligations
under this Agreement or any Credit Support Document to which it is a
party.
(d) Tax Agreement. It will give notice of any failure of a representation
made by it under Section 3(f) to be accurate and true promptly upon
learning of such failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance
of this Agreement by a jurisdiction in which it is incorporated,
organised, managed and controlled, or considered to have its seat, or
in which a branch or office through which it is acting for the purpose
of this Agreement is located ("Stamp Tax Jurisdiction") and will
indemnify the other party against any Stamp Tax levied or imposed upon
the other party or in respect of the other party's execution or
performance of this Agreement by any such Stamp Tax Jurisdiction which
is not also a Stamp Tax Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any
Specified Entity of such party of any of the following events
constitutes an event of default (an "Event of Default") with respect to
such party:-
(i) Failure to Pay or Deliver. Failure by the party to make, when
due, any payment under this Agreement or delivery under
Section 2(a)(i) or 2(e) required to be made by it if such failure
is not remedied on or before the third Local Business Day after
notice of such failure is given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation to
make any payment under this Agreement or delivery under
Section 2(a)(i) or 2(e) or to give notice of a Termination Event
or any agreement or obligation under Section 4(a)(i), 4(a)(iii)
or 4(d)) to be complied with or performed by the party in
accordance with this Agreement if such failure is not remedied on
or before the thirtieth day after notice of such failure is given
to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation
to be complied with or performed by it in accordance with
any Credit Support Document if such failure is continuing
after any applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose of
this Agreement (in either case other than in accordance
with its terms) prior to the satisfaction of all
obligations of such party under each Transaction to which
such Credit Support Document relates without the written
consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have
been made or repeated by the party or any Credit Support Provider
of such party in this Agreement or any Credit Support Document
proves to have been incorrect or misleading in any material
respect when made or repeated or deemed to have been made or
repeated;
(v) Default under Specified Transaction. The party, any Credit
Support Provider of such party or any applicable Specified Entity
of such party (1) defaults under a Specified Transaction and,
after giving effect to any applicable notice requirement or grace
period, there occurs a liquidation of, an acceleration of
obligations under, or an early termination of, that Specified
Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or
delivery due on the last payment, delivery or exchange date of,
or any payment on early termination of, a Specified Transaction
(or such default continues for at least three Local Business Days
if there is no applicable notice requirement or grace period) or
(3) disaffirms, disclaims, repudiates or rejects, in whole or in
part, a Specified Transaction (or such action is taken by any
person or entity appointed or empowered to operate it or act on
its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a
default, event of default or other similar condition or event
(however described) in respect of such party, any Credit Support
Provider of such party or any applicable Specified Entity of such
party under one or more agreements or instruments relating to
Specified Indebtedness of any of them (individually or
collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which
has resulted in such Specified Indebtedness becoming, or becoming
capable at such time of being declared, due and payable under
such agreements or instruments, before it would otherwise have
been due and payable or (2) a default by such party, such Credit
Support Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due date
thereof in an aggregate amount of not less than the applicable
Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace
period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party
or any applicable Specified Entity of such party:
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable
to pay its debts or fails or admits in writing its
inability generally to pay its debts as they become due;
(3) makes a general assignment, arrangement or composition
with or for the benefit of its creditors; (4) institutes or
has instituted against it a proceeding seeking a judgment
of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its
winding-up or liquidation, and, in the case of any such
proceeding or petition instituted or presented against it,
such proceeding or petition (A) results in a judgment of
insolvency or bankruptcy or the entry of an order for
relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution
or presentation thereof; (5) has a resolution passed for
its winding-up, official management or liquidation (other
than pursuant to a consolidation, amalgamation or merger);
(6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator,
receiver, trustee, custodian or other similar official for
it or for all or substantially all its assets; (7) has a
secured party take possession of all or substantially all
its assets or has a distress, execution, attachment,
sequestration or other legal process levied, enforced or
sued on or against all or substantially all its assets and
such secured party maintains possession, or any such
process is not dismissed, discharged, stayed or restrained,
in each case within 30 days thereafter; (8) causes or is
subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous
effect to any of the events specified in clauses (1) to (7)
(inclusive); or (9) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in,
any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or
merges with or into, or transfers all or substantially all its
assets to, another entity and, at the time of such consolidation,
amalgamation, merger or transfer:
(1) the resulting, surviving or transferee entity fails to
assume all the obligations of such party or such Credit
Support Provider under this Agreement or any Credit Support
Document to which it or its predecessor was a party by
operation of law or pursuant to an agreement reasonably
satisfactory to the other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance
by such resulting, surviving or transferee entity of its
obligations under this Agreement.
(b) 'Termination Events. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any
Specified Entity of such party of any event specified below constitutes
an Illegality if the event is specified in (i) below, a Tax Event if
the event is specified in (ii) below or a Tax Event Upon Merger if the
event is specified in (iii) below, and, if specified to be applicable,
a Credit Event Upon Merger if the event is specified pursuant to (iv)
below or an Additional Termination Event if the event is specified
pursuant to (v) below:-
(i) Illegality. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is entered
into, or due to the promulgation of, or any change in, the
interpretation by any court, tribunal or regulatory authority
with competent jurisdiction of any applicable law after such
date, it becomes unlawful (other than as a result of a breach by
the party of Section 4(b)) for such party (which will be the
Affected Party):
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other
material provision of this Agreement relating to such
Transaction; or
(2) to perform, or for any Credit Support Provider of such
party to perform, any contingent or other obligation which
the party (or such Credit Support Provider) has under any
Credit Support Document relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party
to this Agreement) or (y) a Change in Tax Law, the party (which
will be the Affected Party) will, or there is a substantial
likelihood that it will, on the next succeeding Scheduled Payment
Date (1) be required to pay to the other party an additional
amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under
Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from
which an amount is required to be deducted or withheld for or on
account of a Tax (except in respect of interest under
Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under
Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A)
or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the
next succeeding Scheduled Payment Date will either (1) be
required to pay an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount has been deducted or withheld for or
on account of any Indemnifiable Tax in respect of which the other
party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a
result of a party consolidating or amalgamating with, or merging
with or into, or transferring all or substantially all its assets
to, another entity (which will be the Affected Party) where such
action does not constitute an event described in
Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party
("X"), any Credit Support Provider of X or any applicable
Specified Entity of X consolidates or amalgamates with, or merges
with or into, or transfers all or substantially all its assets
to, another entity and such action does not constitute an event
described in Section 5(a)(viii) but the creditworthiness of the
resulting, surviving or transferee entity is materially weaker
than that of X, such Credit Support Provider or such Specified
Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as
appropriate, will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination
Event" is specified in the Schedule or any Confirmation as
applying, the occurrence of such event (and, in such event, the
Affected Party or Affected Parties shall be as specified for such
Additional Termination Event in the Schedule or such
Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which
would otherwise constitute or give rise to an Event of Default also
constitutes an Illegality, it will be treated as an Illegality and will
not constitute an Event of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event
of Default with respect to a party (the "Defaulting Party") has
occurred and is then continuing, the other party (the "Non-defaulting
Party") may, by not more than 20 days notice to the Defaulting Party
specifying the relevant Event of Default, designate a day not earlier
than the day such notice is effective as an Early Termination Date in
respect of all outstanding Transactions. If, however, "Automatic Early
Termination" is specified in the Schedule as applying to a party, then
an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party
of an Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6)
or, to the extent analogous thereto, (8), and as of the time
immediately preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the occurrence with respect
to such party of an Event of Default specified in Section 5(a)(vii)(4)
or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party,
specifying the nature of that Termination Event and each Affected
Transaction and will also give such other information about that
Termination Event as the other party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality
under Section 5(b)(i)(1) or a Tax Event occurs and there is only
one Affected Party, or if a Tax Event Upon Merger occurs and the
Burdened Party is the Affected Party, the Affected Party will, as
a condition to its right to designate an Early Termination Date
under Section 6(b)(iv), use all reasonable efforts (which will
not require such party to incur a loss, excluding immaterial,
incidental expenses) to transfer within 20 days after it gives
notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another
of its Offices or Affiliates so that such Termination Event
ceases to exist.
If the Affected Party is not able to make such a transfer it will
give notice to the other party to that effect within such 20 day
period, whereupon the other party may effect such a transfer
within 30 days after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the
other party, which consent will not be withheld if such other
party's policies in effect at such time would permit it to enter
into transactions with the transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1)
or a Tax Event occurs and there are two Affected Parties, each
party will use all reasonable efforts to reach agreement within
30 days after notice thereof is given under Section 6(b)(i) on
action to avoid that Termination Event.
(iv) Right to Terminate. If:
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been
effected with respect to all Affected Transactions within
30 days after an Affected Party gives notice under
Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax
Event Upon Merger occurs and the Burdened Party is not the
Affected Party,
either party in the case of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a
Tax Event or an Additional Termination Event if there is more than one
Affected Party, or the party which is not the Affected Party in the
case of a Credit Event Upon Merger or an Additional Termination Event
if there is only one Affected Party may, by not more than 20 days
notice to the other party and provided that the relevant Termination
Event is then continuing, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect of all
Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the
date so designated, whether or not the relevant Event of Default
or Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under
Section 2(a)(i) or 2(e) in respect of the Terminated Transactions
will be required to be made, but without prejudice to the other
provisions of this Agreement. The amount, if any, payable in
respect of an Early Termination Date shall be determined pursuant
to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e)
and will provide to the other party a statement (1) showing, in
reasonable detail, such calculations (including all relevant
quotations and specifying any amount payable under Section 6(e))
and (2) giving details of the relevant account to which any
amount payable to it is to be paid. In the absence of written
confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the
day that notice of the amount payable is effective (in the case
of an Early Termination Date which is designated or occurs as a
result of an Event of Default) and on the day which is two Local
Business Days after the day on which notice of the amount payable
is effective (in the case of an Early Termination Date which is
designated as a result of a Termination Event). Such amount will
be paid together with (to the extent permitted under applicable
law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid,
at the Applicable Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and
a payment method, either the "First Method" or the "Second Method". If
the parties fail to designate a payment measure or payment method in
the Schedule, it will be deemed that "Market Quotation" or the "Second
Method", as the case may be, shall apply. The amount, if any, payable
in respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default:
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to
the Non-defaulting Party the excess, if a positive number,
of (A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party over
(B) the Termination Currency Equivalent of the Unpaid
Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party,
if a positive number, the Non-defaulting Party's Loss in
respect of this Agreement.
(3) Second Method and Market Quotation. If the Second Method
and Market Quotation apply, an amount will be payable equal
to (A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party less
(B) the Termination Currency Equivalent of the Unpaid
Amounts owing to the Defaulting Party. If that amount is a
positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that
amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss
apply, an amount will be payable equal to the
Non-defaulting Party's Loss in respect of this Agreement.
If that amount is a positive number, the Defaulting Party
will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event:
(1) One Affected Party. If there is one Affected Party, the
amount payable will be determined in accordance with
Section 6(e)(i)(3), if Market Quotation applies, or
Section 6(e)(i)(4), if Loss applies, except that, in either
case, references to the Defaulting Party and to the
Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected
Party, respectively, and, if Loss applies and fewer than
all the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:
(A) if Market Quotation applies, each party will
determine a Settlement Amount in respect of the
Terminated Transactions, and an amount will be
payable equal to (I) the sum of (a) one-half of the
difference between the Settlement Amount of the party
with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower
Settlement Amount ("Y") and (b) the Termination
Currency Equivalent of the Unpaid Amounts owing to X
less (II) the Termination Currency Equivalent of the
Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss
in respect of this Agreement (or, if fewer than all
the Transactions are being terminated, in respect of
all Terminated Transactions) and an amount will be
payable equal to one-half of the difference between
the Loss of the party with the higher Loss ("X") and
the Loss of the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X;
if it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination"
applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are
appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement
(and retained by such other party) during the period from the
relevant Early Termination Date to the date for payment
determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies
an amount recoverable under this Section 6(e) is a reasonable
pre-estimate of loss and not a penalty. Such amount is payable
for the loss of bargain and the loss of protection against future
risks and except as otherwise provided in this Agreement neither
party will be entitled to recover any additional damages as a
consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of
the other party, except that:
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer
of all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in
any amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be
void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for
that payment (the "Contractual Currency"). To the extent permitted by
applicable law, any obligation to make payments under this Agreement in
the Contractual Currency will not be discharged or satisfied by any
tender in any currency other than the Contractual Currency, except to
the extent such tender results in the actual receipt by the party to
which payment is owed, acting in a reasonable manner and in good faith
in converting the currency so tendered into the Contractual Currency,
of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the
Contractual Currency so received falls short of the amount in the
Contractual Currency payable in respect of this Agreement, the party
required to make the payment will, to the extent permitted by
applicable law, immediately pay such additional amount in the
Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so
received exceeds the amount in the Contractual Currency payable in
respect of this Agreement, the party receiving the payment will refund
promptly the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment
or order expressed in a currency other than the Contractual Currency is
rendered (i) for the payment of any amount owing in respect of this
Agreement, (ii) for the payment of any amount relating to any early
termination in respect of this Agreement or (iii) in respect of a
judgment or order of another court for the payment of any amount
described in (i) or (ii) above, the party seeking recovery, after
recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the
Contractual Currency received by such party as a consequence of sums
paid in such other currency and will refund promptly to the other party
any excess of the Contractual Currency received by such party as a
consequence of sums paid in such other currency if such shortfall or
such excess arises or results from any variation between the rate of
exchange at which the Contractual Currency is converted into the
currency of the judgment or order for the purposes of such judgment or
order and the rate of exchange at which such party is able, acting in a
reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency
with the amount of the currency of the judgment or order actually
received by such party. The term "rate of exchange" includes, without
limitation, any premiums and costs of exchange payable in connection
with the purchase of or conversion into the Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the
other obligations in this Agreement, will be enforceable as separate
and independent causes of action, will apply notwithstanding any
indulgence granted by the party to which any payment is owed and will
not be affected by judgment being obtained or claim or proof being made
for any other sums payable in respect of this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be
sufficient for a party to demonstrate that it would have suffered a
loss had an actual exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and
supersedes all oral communication and prior writings with respect
thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing
evidenced by a facsimile transmission) and executed by each of the
parties or confirmed by an exchange of telexes or electronic messages
on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will
survive the termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are
cumulative and not exclusive of any rights, powers, remedies and
privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be
deemed an original.
(ii) The parties intend that they are legally bound by the terms of
each Transaction from the moment they agree to those terms
(whether orally or otherwise). A Confirmation shall he entered
into as soon as practicable and may he executed and delivered in
counterparts (including by facsimile transmission) or be created
by an exchange of telexes or by an exchange of electronic
messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding
supplement to this Agreement. The parties will specify therein or
through another effective means that any such counterpart, telex
or electronic message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power
or privilege in respect of this Agreement will not be presumed to
operate as a waiver, and a single or partial exercise of any right,
power or privilege will not be presumed to preclude any subsequent or
further exercise, of that right, power or privilege or the exercise of
any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken
into consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party
that enters into a Transaction through an Office other than its head or
home office represents to the other party that, notwithstanding the
place of booking office or jurisdiction of incorporation or
organisation of such party, the obligations of such party are the same
as if it had entered into the Transaction through its head or home
office. This representation will be deemed to be repeated by such party
on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the
prior written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office
through which it makes and receives payments or deliveries with respect
to a Transaction will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other
party for and against all reasonable out-of-pocket expenses, including legal
fees and Stamp Tax, incurred by such other party by reason of the enforcement
and protection of its rights under this Agreement or any Credit Support
Document to which the Defaulting Party is a party or by reason of the early
termination of any Transaction, including, but not limited to, costs of
collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a
notice or other communication under Section 5 or 6 may not be given by
facsimile transmission or electronic messaging system) to the address
or number or in accordance with the electronic messaging system details
provided (see the Schedule) and will be deemed effective as indicated:-
(i) if in writing and delivered in person or by courier, on the date
it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that transmission
is received by a responsible employee of the recipient in legible
form (it being agreed that the burden of proving receipt will be
on the sender and will not be met by a transmission report
generated by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail
is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered
(or attempted) or received, as applicable, after the close of business on a
Local Business Day, in which case that communication shall be deemed given
and effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system
details at which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating
to this Agreement ("Proceedings"), each party irrevocably:-
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law, or to the
non-exclusive jurisdiction of the courts of the State of New York
and the United States District Court located in the Borough of
Manhattan in New York City, if this Agreement is expressed to be
governed by the laws of the State of New York; and
(ii) waives any objection which it may have at any time to the laying
of venue of any Proceedings brought in any such court, waives any
claim that such Proceedings have been brought in an inconvenient
forum and further waives the right to object, with respect to
such Proceedings, that such court does not have any jurisdiction
over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be
governed by English law, the Contracting States, as defined in Section 1(3)
of the Civil Jurisdiction and Judgments Act 1982 or any modification,
extension or re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more jurisdictions preclude the
bringing of Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent
(if any) specified opposite its name in the Schedule to receive, for it
and on its behalf, service of process in any Proceedings. If for any
reason any party's Process Agent is unable to act as such, such party
will promptly notify the other party and within 30 days appoint a
substitute process agent acceptable to the other party. The parties
irrevocably consent to service of process given in the manner provided
for notices in Section 12. Nothing in this Agreement will affect the
right of either party to serve process in any other manner permitted by
law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its
revenues and assets (irrespective of their use or intended use), all
immunity on the grounds of sovereignty or other similar grounds from
(i) suit, (ii) jurisdiction of any court, (iii) relief by way of
injunction, order for specific performance or for recovery of property,
(iv) attachment of its assets (whether before or after judgment) and
(v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in
the courts of any jurisdiction and irrevocably agrees, to the extent
permitted by applicable law, that it will not claim any such immunity
in any Proceedings.
14. Definitions
As used in this Agreement:-
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and
(b) with respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control"
of any entity or person means ownership of a majority of the voting power of
the entity or person.
"Applicable Rate" means:-
(a) in respect of obligations payable or deliverable (or which would have
been but for Section 2(a)(iii)) by a Defaulting Party. the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of
either party from and after the date (determined in accordance with
Section 6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which
would have been but for Section 2(a)(iii)) by a Non-defaulting Party,
the Non-default Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after
the date on which the relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified
as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with
Section 6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(h).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed
in respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to
such recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of
such jurisdiction, or being or having been organised, present or engaged in a
trade or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding
a connection arising solely from such recipient or related person having
executed, delivered, performed its obligations or received a payment under,
or enforced, this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case
of tax matters, by the practice of any relevant governmental revenue
authority) and "lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) (a) in relation to any obligation
under Section 2(a)(i), in the place(s) specified in the relevant Confirmation
or, if not so specified, as otherwise agreed by the parties in writing or
determined pursuant to provisions contained, or incorporated by reference, in
this Agreement, (b) in relation to any other payment, in the place where the
relevant account is located and, if different, in the principal financial
centre, if any, of the currency of such payment, (c) in relation to any
notice or other communication, including notice contemplated under
Section 5(a)(i), in the city specified in the address for notice provided by
the recipient and, in the case of a notice contemplated by Section 2(b), in
the place where the relevant new account is to be located and (d) in relation
to Section 5(a)(v)(2), in the relevant locations for performance with respect
to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be
its total losses and costs (or gain, in which case expressed as a negative
number) in connection with this Agreement or that Terminated Transaction or
group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading
position (or any gain resulting from any of them). Loss includes losses and
costs (or gains) in respect of any payment or delivery required to have been
made (assuming satisfaction of each applicable condition precedent) on or
before the relevant Early Termination Date and not made, except, so as to
avoid duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies.
Loss does not include a party's legal fees and out-of-pocket expenses
referred to under Section 11. A party will determine its Loss as of the
relevant Early Termination Date, or, if that is not reasonably practicable,
as of the earliest date thereafter as is reasonably practicable. A party may
(but need not) determine its Loss by reference to quotations of relevant
rates or prices from one or more leading dealers in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an
amount, if any, that would be paid to such party (expressed as a negative
number) or by such party (expressed as a positive number) in consideration of
an agreement between such party (taking into account any existing Credit
Support Document with respect to the obligations of such party) and the
quoting Reference Market-maker to enter into a transaction (the "Replacement
Transaction") that would have the effect of preserving for such party the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in
respect of such Terminated Transaction or group of Terminated Transactions
that would, but for the occurrence of the relevant Early Termination Date,
have been required after that date. For this purpose, Unpaid Amounts in
respect of the Terminated Transaction or group of Terminated Transactions are
to be excluded but, without limitation, any payment or delivery that would,
but for the relevant Early Termination Date, have been required (assuming
satisfaction of each applicable condition precedent) after that Early
Termination Date is to be included. The Replacement Transaction would be
subject to such documentation as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to the
extent reasonably practicable as of the same day and time (without regard to
different time zones) on or as soon as reasonably practicable after the
relevant Early Termination Date. The day and time as of which those
quotations are to be obtained will be selected in good faith by the party
obliged to make a determination under Section 6(e), and, if each party is so
obliged, after consultation with the other. If more than three quotations are
provided, the Market Quotation will be the arithmetic mean of the quotations,
without regard to the quotations having the highest and lowest values. If
exactly three such quotations are provided, the Market Quotation will be the
quotation remaining after disregarding the highest and lowest quotations. For
this purpose, if more than one quotation has the same highest value or lowest
value, then one of such quotations shall be disregarded. If fewer than three
quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it)
if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head
or home office.
"Potential Event of Default" means any event which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer or
to make an extension of credit and (b) to the extent practicable, from among
such dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions
(a) in which the party is incorporated, organised, managed and controlled or
considered to have its seat, (b) where an Office through which the party is
acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment, from or through
which such payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention
or withholding or similar right or requirement to which the payer of an
amount under Section 6 is entitled or subject (whether arising under this
Agreement, another contract, applicable law or otherwise) that is exercised
by, or imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of:
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference
to any Unpaid Amounts) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation cannot be
determined or would not (in the reasonable belief of the party making
the determination) produce a commercially reasonable result.
"Specified Entity" has the meanings specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety
or otherwise) in respect of borrowed money.
"Specified Transaction "means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter
entered into between one party to this Agreement (or any Credit Support
Provider of such party or any applicable Specified Entity of such party) and
the other party to this Agreement (or any Credit Support Provider of such
other party or any applicable Specified Entity of such other party) which is
a rate swap transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect to any of these
transactions), (b) any combination of these transactions and (c) any other
transaction identified as a Specified Transaction in this Agreement or the
relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment
or fee of any nature (including interest, penalties and additions thereto)
that is imposed by any government or other taxing authority in respect of any
payment under this Agreement other than a stamp, registration, documentation
or similar tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date
(a) if resulting from a Termination Event, all Affected Transactions and
(b) if resulting from an Event of Default, all Transactions (in either case)
in effect immediately before the effectiveness of the notice designating that
Early Termination Date (or, if "Automatic Early Termination" applies,
immediately before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated
in the Termination Currency, such Termination Currency amount and, in respect
of any amount denominated in a currency other than the Termination Currency
(the "Other Currency"), the amount in the Termination Currency determined by
the party making the relevant determination as being required to purchase
such amount of such Other Currency as at the relevant Early Termination Date,
or, if the relevant Market Quotation or Loss (as the case may be), is
determined as of a later date, that later date, with the Termination Currency
at the rate equal to the spot exchange rate of the foreign exchange agent
(selected as provided below) for the purchase of such Other Currency with the
Termination Currency at or about 11:00 a.m. (in the city in which such
foreign exchange agent is located) on such date as would be customary for the
determination of such a rate for the purchase of such Other Currency for
value on the relevant Early Termination Date or that later date. The foreign
exchange agent will, if only one party is obliged to make a determination
under Section 6(e), be selected in good faith by that party and otherwise
will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or
prior to such Early Termination Date and which remain unpaid as at such Early
Termination Date and (b) in respect of each Terminated Transaction, for each
obligation under Section 2(a)(i) which was (or would have been but for
Section 2(a)(iii)) required to be settled by delivery to such party on or
prior to such Early Termination Date and which has not been so settled as at
such Early Termination Date, an amount equal to the fair market value of that
which was (or would have been) required to be delivered as of the originally
scheduled date for delivery, in each case together with (to the extent
permitted under applicable law) interest, in the currency of such amounts,
from (and including) the date such amounts or obligations were or would have
been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b)
above shall be reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it shall be
the average of the Termination Currency Equivalents of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page
of this document.
J.P. MORGAN CHASE COMMERCIAL MORTGAGE
JPMORGAN CHASE BANK, N.A. SECURITIES TRUST 2006-LDP9
--------------------------------------- ---------------------------------------
(Name of Party) (Name of Party)
By: LaSalle Bank National Association,
not in its individual capacity, but
solely as Trustee
By: /s/ Andrew B. Taylor By: /s/ Andy Streepey
------------------------------------ ------------------------------------
Name: Andrew B. Taylor Name: Andy Streepey
Title: Vice President Title: Assistant Vice President
Date: December 21, 2006 Date:
Exhibit 10.9
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of December 21, 2006
between JPMORGAN CHASE BANK, N.A. and J.P. MORGAN CHASE COMMERCIAL MORTGAGE
SECURITIES TRUST 2006-LDP9
("Party A") ("Party B")
PART 1: Termination Provisions
(a) (i) "Trust Agreement" means the Pooling and Servicing Agreement
dated as of December 1, 2006, among J.P. Morgan Chase Commercial
Mortgage Securities Corp., as depositor, Midland Loan Services, Inc.,
as master servicer No. 1, Capmark Finance Inc., as master servicer
No. 2, Wachovia Bank, National Association, as master servicer No. 3,
LNR Partners, Inc., as special servicer, LaSalle Bank National
Association, as trustee, and Wells Fargo Bank, N.A., as paying agent,
as amended, modified, supplemented, restated or replaced from time to
time.
(ii) "Class A-2SFL Certificates" means the Commercial Mortgage
Pass-Through Certificates, Series 2006-LDP9, Class A-2SFL, issued by
Party B under the Trust Agreement.
(b) "Specified Entity" means, in relation to Party A for the purpose of:-
Section 5(a)(v) (Default under Specified none;
Transaction),
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none;
in relation to Party B for the purpose of:
Section 5(a)(v) (Default under Specified Transaction) none;
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none.
(c) "Specified Transaction" will have the meaning specified in Section 14.
(d) The "Breach of Agreement" provisions of Section 5(a)(ii), the
"Misrepresentation" provisions of Section 5(a)(iv), and the "Default
under Specified Transactions" provisions of Section 5(a)(v) will not
apply to Party B. The "Cross Default" provisions of Section 5(a)(vi)
will not apply to Party A or Party B.
(e) The "Credit Event Upon Merger" provisions of Section 5(b)(iv)
will not apply to Party A
will not apply to Party B.
(f) The "Automatic Early Termination" provision of Section 6(a)
will not apply to Party A
will not apply to Party B.
(g) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(iii) Both Party A and Party B agree that any amounts payable by Party B
to Party A under Section 6(e), if any, in connection with any Event of
Default or Termination Event will be payable only from collections on
the Trust Estate (as defined below), and only from funds, if any,
remaining in the Floating Rate Account (as defined in the Trust
Agreement) after all other amounts have been paid under the Class A-2SFL
Certificates (including all principal amounts outstanding) under the
Trust Agreement.
(h) "Termination Currency" means United States Dollars.
(i) Additional Termination Events. It shall be an Additional Termination
Event:
(i) if Party B fails to comply with Part 1(j) of this Schedule, in which
event Party B shall be the sole Affected Party and all Transactions
shall be Affected Transactions; or
(ii) if Party A fails to satisfy any of the requirements of Part 5(m),
within the applicable time periods set forth therein, in which event
Party A shall be the sole Affected Party and all Transactions shall be
Affected Transactions.
(j) Amendments. Party B shall deliver to Party A a copy of any proposed
amendment to the Trust Agreement, and any amendment to the Trust
Agreement that could reasonably materially and adversely affect Party
A shall be subject to Party A's prior consent.
(k) Downgrade of Party A. If a Ratings Event (as defined below) shall
occur and be continuing with respect to Party A, then Party A shall,
within 5 Local Business Days of such Ratings Event, (A) give notice
to Party B of the occurrence of such Ratings Event, and (B) at Party
A's option and sole expense, (x) transfer Party A's rights and
obligations under this Agreement and all Confirmations related hereto
to another party (such party whose long term debt is being rated at
least "A1" (and not on watch for possible downgrade) by Moody's (as
defined below) or rated at least "A+" by Fitch and S&P (as defined
below)), subject to Rating Agency confirmation, and at the cost of
Party A, or (y) post Eligible Collateral on a mark-to-market basis to
secure Party B's exposure, if any, to Party A, and such Eligible
Collateral shall be provided in accordance with an ISDA Credit
Support Annex to be entered into between Party A and Party B in the
form attached hereto as Exhibit A, which will be attached hereto and
made a part hereof within 10 Local Business Days of Party A's
election to post Eligible Collateral. The Eligible Collateral to be
posted and the Credit Support Annex to be executed and delivered
shall be subject to Rating Agency confirmation. Party A's obligations
to find an eligible transferee or to post Eligible Collateral under
such Credit Support Annex shall remain in effect only for so long as
a Ratings Event is continuing with respect to Party A. For the
purpose of this Part 1(k), a "Ratings Event" shall occur with respect
to Party A if the long-term senior unsecured deposit ratings of Party
A cease to be at least "A3" by Moody's Investors Service, Inc., or
any successor thereto ("Moody's"), at least "A-" by Fitch, Inc., or
any successor thereto ("Fitch") or at least "A-" by Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc., or
any successor thereto ("S&P"), to the extent such obligations are
rated by Moody's or S&P.
The failure by Party A to either post Eligible Collateral or transfer
its rights and obligations to an eligible transferee in accordance
herewith shall constitute an Additional Termination Event for which
Party A shall be the sole Affected Party.
(l) Failure to Pay or Deliver. Section 5(a)(i) is hereby deleted in its
entirety and replaced with the following:
"Failure to Pay or Deliver. Failure by the party to make, when
due, any payment under this Agreement or delivery under
Section 2(a)(i) or 2(e) required to be made by it."
PART 2: Tax Representations
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will make the following
representation:-
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority of any Relevant
Jurisdiction to make any deduction or withholding for or on account
of any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other
party under this Agreement. In making this representation, it may
rely on (x) the accuracy of any representations made by the other
party pursuant to Section 3(f) of this Agreement, (y) the
satisfaction of the agreement contained in Section 4(a)(i) or
4(a)(iii) of this Agreement and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) of this Agreement and (z) the satisfaction of the agreement
of the other party contained in Section 4(d) of this Agreement,
provided that it shall not be a breach of this representation where
reliance is placed on clause (y) and the other party does not deliver
a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will make the following
representations specified below, if any:- none
PART 3: Agreement to Deliver Documents
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents:
(a) Tax forms, documents or certificates to be delivered are:
Party required to deliver Date by which to be
document Form/Document/Certificate delivered
------------------------- --------------------------- ---------------------
Party A and Party B Any form, document or Upon request
certificate as may be
requested pursuant to
Section 4(a)(iii) of this
Agreement.
(b) Other documents to be delivered are:-
Covered by
Party required to Date by which to Section 3(d)
deliver document Form/Document/Certificate be delivered Representation
------------------- --------------------------------- ----------------- ---------------
Party B Statements to Certificateholders As soon as Yes
of Party B available.
Party B Certified copies of all corporate Upon execution Yes
authorizations and any other and delivery of
documents with respect to the this Agreement
execution, delivery and
performance of this Agreement and
the Trust Agreement
Party A and Certificate of authority and Upon execution Yes
Party B specimen signatures of and delivery of
individuals executing this this Agreement
Agreement, and any Confirmations and thereafter
upon request of
the other party
PART 4: Miscellaneous
(a) Address for Notices. For the purpose of Section 12(a) of this
Agreement:-
Address for notice or communications to Party A:
JPMorgan Chase Bank, N.A.
270 Park Avenue
6th Floor
New York, New York 10017
Attention: Andrew Taylor
Telephone No.: 212-834-3813
Facsimile No.: 212-834-6598
with a copy to:
JPMorgan Chase Bank, N.A.
270 Park Avenue
10th Floor
New York, New York 10017
Attention: Mark Levine
Telephone No.: 212-834-9346
Facsimile No.: 212-834-6593
Address for notice or communications to Party B:
J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP9
c/o Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services-J.P. Morgan 2006-LDP9
with a copy to:
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, J.P. Morgan Chase
Commercial Mortgage Securities Trust 2006-LDP9
Telecopy No.: 312-904-1085
with a copy to:
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue
New York, New York 10017
Attention: Charles Lee
Telephone No.: 212-834-9328
Facsimile No.: 212-834-6593
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10 of this Agreement:-
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party B.
(f) Credit Support Document. Details of any Credit Support Document:-
Party B agrees that only the amounts with respect to the Class A-2SFL
Certificates on deposit in the Floating Rate Account (as such terms
are defined in the Trust Agreement) held by the Paying Agent under
the Trust Agreement (such amounts, the "Trust Estate") shall
constitute security for the obligations of Party B to Party A under
this Agreement.
Party A agrees that any ISDA Credit Support Annex entered into
between Party A and Party B pursuant to Part 1(k) hereof shall be a
Credit Support Document for purposes of this Agreement.
(g) Credit Support Provider.
Credit Support Provider means in relation to Party A: Not
applicable.
Credit Support Provider means in relation to Party B: Not
applicable
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference
to its conflict of laws doctrine, other than Section 5-1401 of the
General Obligations Law).
(i) Netting of Payments. All amounts payable on the same date, in the
same currency and in respect of the same Transaction shall be netted
in accordance with Section 2(c) of this Agreement. The election
contained in the last paragraph of Section 2(c) of this Agreement
shall not apply for the purposes of this Agreement.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
PART 5: Other Provisions
(a) RESERVED.
(b) Delivery of Confirmations. For each Transaction entered into
hereunder, Party A shall promptly send to Party B a Confirmation via
facsimile transmission. Party B agrees to respond to such
Confirmation within three (3) Local Business Days, either confirming
agreement thereto or requesting a correction of any error(s)
contained therein. Failure by Party A to send a Confirmation or of
Party B to respond within such period shall not affect the validity
or enforceability of such Transaction. Absent manifest error, there
shall be a presumption that the terms contained in such Confirmation
are the terms of the Transaction.
(c) Recording of Conversations. Each party to this Agreement acknowledges
and agrees to the tape recording of conversations between trading and
marketing personnel of the parties to this Agreement whether by one
or other or both of the parties or their agents, and that any such
tape recordings may be submitted in evidence in any Proceedings
relating to the Agreement.
(d) Furnishing Specified Information. Section 4(a)(iii) is hereby amended
by inserting "promptly upon the earlier of (i)" in lieu of the word
"upon" at the beginning thereof and inserting "or (ii) such party
learning that the form or document is required" before the word "any"
on the first line thereof.
(e) Notice by Facsimile Transmission. Section 12(a) is hereby amended by
inserting the words "2(b)," between the word "Section" and the number
"5" and inserting the words "or 13(c)" between the number "6" and the
word "may" in the second line thereof.
(f) Section 3(a) of this Agreement is amended by (i) deleting the word
"and" at the end of clause (iv); (ii) deleting the period at the end
of clause (v) and inserting therein "; and "; and (iii) by inserting
the following additional representation:
"(vi) Eligible Contract Participant. Each party represents to the
other party (which representation will be deemed to be
repeated by each party on each date on which a Transaction is
entered into) that it is an "eligible contract participant" as
defined in Section 1a(12) of the U.S. Commodity Exchange Act,
7 U.S.C. Section 1a(12)."
(g) Section 3 is revised so as to add the following Section (g) at the
end thereof:
"(g) Relationship Between Parties. Each party represents to the
other party and will be deemed to represent to the other party
on the date on which it enters into a Transaction that (absent
a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that
Transaction):-
(i) Non-Reliance. It is acting for its own account, and
it has made its own independent decisions to enter
into that Transaction and as to whether that
Transaction is appropriate or proper for it based
upon its own judgment and upon advice from such
advisors as it has deemed necessary. It is not
relying on any communication (written or oral) of
the other party as investment advice or as a
recommendation to enter into that Transaction; it
being understood that information and explanations
related to the terms and conditions of a Transaction
shall not be considered investment advice or a
recommendation to enter into that Transaction.
Further, such party has not received from the other
party any assurance or guarantee as to the expected
results of that Transaction.
(ii) Evaluation and Understanding. It is capable of
evaluating and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and
risks of that Transaction. It is also capable of
assuming, and assumes, the financial and other risks
of that Transaction.
(iii) Status of Parties. The other party is not acting as
an agent, fiduciary or advisor for it in respect of
that Transaction."
(h) Waiver of Right to Trial by Jury. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
(i) Non Petition. Party A hereby agrees that it will not, prior to the
date which is one year and one day after all the Class A-2SFL
Certificates issued by Party B pursuant to the Trust Agreement have
been paid in full, acquiesce, petition or otherwise invoke or cause
Party B to invoke the process of any court or governmental authority
for the purpose of commencing or sustaining a case against Party B
under any federal or state bankruptcy, insolvency or similar law or
for the purpose of appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official for Party
B or any substantial part of the property of Party B, or for the
purpose of ordering the winding up or liquidation of the affairs of
Party B. Nothing herein shall prevent Party A from participating in
any such proceeding once commenced.
(j) Limited Recourse. The obligations of Party B under this Agreement are
limited recourse obligations of Party B, payable solely from amounts
remaining in the Trust Estate after payment in full of all amounts
due to the Class A-2SFL Certificates, subject to and in accordance
with the terms of the Trust Agreement. No recourse shall be had for
the payment of any amount owing in respect of this Agreement against
the trustee or paying agent, or any officer, member, director,
employee, security holder or incorporator thereof (each, an
"Affiliated Person") of Party B or its successors or assigns for any
amounts payable under this Agreement. Upon application of the Trust
Estate in accordance with the Trust Agreement, Party A shall not be
entitled to take any further steps against Party B to recover any
sums due but still unpaid hereunder or thereunder, and all claims by
Party A against Party B hereunder and/or under the Trust Agreement
shall be extinguished.
(k) Limitation of Liability. It is expressly understood and agreed by
the parties hereto that (a) this Agreement is executed and delivered
by LaSalle Bank National Association ("LaSalle"), not individually or
personally but solely as the trustee, in the exercise of the powers
and authority conferred and vested in it, (b) the representations,
undertaking and agreements herein made on the part of the Trust are
made and intended not as personal representations, undertakings and
agreements by LaSalle but are made and intended for the purpose of
binding only the Trust, (c) nothing herein contained shall be
construed as creating any liability on LaSalle, individually or
personally (other than to act with the standard of care provided
under the Trust Agreement), to perform any covenant either expressed
or implied contained herein, all such liability, if any, being
expressly waived by the parties who are signatories to this Agreement
and by any person claiming by, through or under such parties and (d)
under no circumstances shall LaSalle be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for
the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Trust under this Agreement.
(l) Transfer. Section 7 of the Agreement is supplemented by the
additional requirement that any transfer or assignment by Party A of
its obligations under this Agreement (including any Confirmation),
and any amendments to this Agreement (including any Confirmation),
shall be subject to Rating Agency confirmation.
(m) Compliance with Regulation AB.
(i) If at any time after the date hereof for so long as Party B is
required to file periodic reports under the Securities Exchange Act of
1934, as amended (the "Exchange Act") with respect to the Certificates,
in the reasonable determination made in good faith of the Sponsors (as
defined in the Prospectus), the aggregate "significance percentage" (as
defined in Regulation AB ("Regulation AB") under the Securities Act of
1933, as amended, and the Exchange Act) of all derivative instruments
(contemplated by Item 1115 of Regulation AB) provided by Party A and any
of its affiliates to Party B is at least 10% but less than 20%, Party A
shall, subject to subparagraph (iii) below, within five (5) Business
Days following request therefor by Party B provide the financial
information required under Item 1115(b)(1) of Regulation AB for Party A
(and for the group of affiliated entities, if applicable) (the "Item
1115(b)(1) Information"). Any such Item 1115(b)(1) Information shall be
in a form suitable for conversion to the format required for filing by
the Depositor with the Securities and Exchange Commission via the
Electronic Data Gathering and Retrieval System (EDGAR).
(ii) If at any time after the date hereof for so long as Party B is
required to file periodic reports under the Exchange Act with respect to
the Certificates, in the reasonable determination made in good faith of
the Sponsors, the aggregate "significance percentage" of all derivative
instruments (contemplated by Item 1115 of Regulation AB) provided by
Party A and any of its affiliates to Party B is at least 20%, Party A
shall, subject to subparagraph (iii) below, within five (5) Business
Days following request therefor by Party B provide the financial
information required under Item 1115(b)(2) of Regulation AB for Party A
(and for the group of affiliated entities, if applicable) (the "Item
1115(b)(2) Information", and together with the Item 1115(b)(1)
Information, the "Additional Information"). Any such Item 1115(b)(2)
Information shall be in a form suitable for conversion to the format
required for filing by the Depositor with the Securities and Exchange
Commission via the Electronic Data Gathering and Retrieval System
(EDGAR). In addition, any such Item 1115(b)(2) Information shall be
accompanied by any necessary auditor's consents.
(iii) If Party A is unable to provide any such Additional Information
if, as and when required, Party A shall, at its option, within ten (10)
Business Days following request therefor, (1) promptly post collateral
satisfactory to the Sponsors in an amount which is reasonably determined
in good faith to be sufficient to reduce the aggregate "significance
percentage" to (x) in the case of subparagraph (i) above, below 10%, and
(y) in the case of subparagraph (ii) above, provided Party A is able to
meet the requirements of subparagraph (i) above, below 20%, in each case
pursuant to a Credit Support Annex or similar agreement reasonably
satisfactory to the Sponsor, or (2) at the sole expense of Party A,
without any expense or liability to Party B, transfer or assign its
obligations under this Agreement to a substitute counterparty reasonably
acceptable to Party B that (x) is able to provide such Additional
Information if, as and when required, and (y) enters into an agreement
similar in form to this Agreement pursuant to which such substitute
counterparty agrees to provide the Additional Information if, as and
when required.
(iv) Party A's obligation to provide any such Additional Information
shall terminate beginning in any such year in which Party B's obligation
to file periodic reports under the Exchange Act has been terminated, and
shall continue to be terminated unless Party B notifies Party A that
Party B's obligations to file periodic reports under the Exchange Act
has resumed.
Accepted and agreed:
JPMORGAN CHASE BANK, N.A. J.P. MORGAN CHASE COMMERCIAL MORTGAGE
SECURITIES TRUST 2006-LDP9
By: /s/ Andrew B. Taylor By: LaSalle Bank National Association,
---------------------------------- not in its individual capacity, but
Name: Andrew B. Taylor solely as Trustee
Title: Vice President
By: /s/ Andy Streepey
------------------------------------
Name: Andy Streepey
Title: Assistant Vice President
EXHIBIT A
PARAGRAPH 13 TO
CREDIT SUPPORT ANNEX
to the Schedule to the
Master Agreement
dated as of December 21, 2006
between
-------------------------------- -------- --------------------------------------
JPMorgan Chase Bank, N.A. and J.P. Morgan Chase Commercial Mortgage
("Morgan") Securities Trust 2006-LDP9
("Counterparty")
-------------------------------- -------- --------------------------------------
Paragraph 13. Elections and Variables
(a) Security Interest for "Obligations". The term "Obligations" as used
in this Annex includes no additional obligations with respect to
either party.
(b) Credit Support Obligations.
(i) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph
3(a).
(B) "Return Amount" has the meaning specified in Paragraph
3(b).
(C) "Credit Support Amount" shall not have the meaning
specified in Paragraph 3(b) and, instead, will have the
following meaning:
"Credit Support Amount" means, for any Valuation Date, (i) the
Secured Party's Modified Exposure for that Valuation Date
minus (ii) the Pledgor's Threshold; provided, however, that
the Credit Support Amount will be deemed to be zero whenever
the calculation of Credit Support Amount yields a number less
than zero.
(ii) Eligible Collateral. The following items will qualify as
"Eligible Collateral":
----- --------------------------------------------------- --------- ------------
"Valuation
Morgan Percentage"
----- --------------------------------------------------- --------- ------------
(A) USD Cash X 100%
----- --------------------------------------------------- --------- ------------
(B) Negotiable debt obligations issued by the U.S. X 98.8%
Treasury Department having a remaining maturity
of one year or less from the Valuation Date
----- --------------------------------------------------- --------- ------------
(C) Negotiable debt obligations issued by the U.S. X 92%
Treasury Department having a remaining maturity
of more than one year but less than ten years
from the Valuation Date
----- --------------------------------------------------- --------- ------------
(D) Negotiable debt obligations issued by the U.S. X 84%
Treasury Department having a remaining maturity
of ten years or more from the Valuation Date
----- --------------------------------------------------- --------- ------------
(E) Agency Securities having a remaining maturity of X 98.4%
one year or less from the Valuation Date
----- --------------------------------------------------- --------- ------------
(F) Agency Securities having a remaining maturity of X 90%
more than one year but less than ten years from
the Valuation Date
----- --------------------------------------------------- --------- ------------
(G) Agency Securities having a remaining maturity of X 82%
ten years or more from the Valuation Date
----- --------------------------------------------------- --------- ------------
(H) USD denominated Commercial Paper rated A1/P1 by X 97%
S&P and Moody's respectively, that (a) settles
within DTC, (b) is not issued by Morgan or any of
its Affiliates and (c) has a remaining maturity
of 30 days or less from the Valuation Date
----- --------------------------------------------------- --------- ------------
For purposes of the foregoing:
(1) "Agency Securities" means negotiable debt obligations which
are fully guaranteed as to both principal and interest by the
Federal National Mortgage Association, the Government National
Mortgage Association or the Federal Home Loan Mortgage
Corporation, but excluding (i) interest only and principal only
securities and (ii) Collateralized Mortgage Obligations, Real
Estate Mortgage Investment Conduits and similar derivative
securities.
(2) "DTC" shall mean The Depository Trust & Clearing
Corporation, or its successor.
(3) "Moody's" shall mean Moody's Investors Service, Inc., or its
successor.
(4) "S&P" shall mean Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc., or its successor.
(5) Eligible Collateral of the type described in Paragraph
13(b)(ii)(H) may never constitute more than 20% of the total
Value of Posted Collateral.
(6) With respect to Posted Collateral consisting of Eligible
Collateral of the type described in Paragraph 13(b)(ii)(H), the
aggregate Value of such Posted Collateral issued by the same
issuer may never be greater than 33% of the aggregate Value of
all Posted Collateral consisting of Eligible Collateral of the
type described in Paragraph 13(b)(ii)(H).
(7) "Fitch" shall mean Fitch Ratings, Inc., or its successor.
(iii) Other Eligible Support. There shall be no "Other Eligible Support"
for purposes of this Annex, unless agreed in writing between the
parties.
(iv) Thresholds.
(D) "Independent Amount" means zero.
(E) "Threshold" shall not apply with respect to the
Counterparty and, with respect to Morgan, shall mean the
amounts determined on the basis of the lower of the
Credit Ratings set forth in the following table,
provided, however, that if (i) Morgan has no Credit
Rating, or (ii) an Event of Default has occurred and is
continuing with respect to Morgan, Morgan's Threshold
shall be U.S.$0:
------------------------------ -------------------------
CREDIT RATING THRESHOLD
(S&P /Moody's/Fitch) Morgan
------------------------------ -------------------------
S&P: A- or above Infinity
Moody's: A3 or above
Fitch: A- or above
------------------------------ -------------------------
S&P: Below A- US$0
Moody's: Below A3
Fitch: Below A-
------------------------------ -------------------------
As used herein:
"Credit Rating" means, with respect to (a) S&P, the rating
assigned by S&P to the short-term and long-term senior
unsecured deposits of Morgan, (b) Moody's, the rating assigned
by Moody's to the short-term and long-term senior unsecured
deposits of Morgan, or (c) Fitch, the rating assigned by Fitch
to the short-term and long-term senior unsecured deposits of
Morgan, as applicable.
(F) "Minimum Transfer Amount", with respect to a party on
any Valuation Date, means U.S. $250,000.
(G) Rounding. The Delivery Amount and the Return Amount will
be rounded up and down to the nearest integral multiple
of $100,000, respectively.
(c) Valuation and Timing.
(i) "Valuation Agent" means Morgan.
(ii) "Valuation Date" means weekly on the last Local Business Day of
each week or more frequently if agreed in writing by the parties.
(iii) "Valuation Time" means the close of business in the city of the
Valuation Agent on the Valuation Date or date of calculation, as
applicable.
(iv) "Notification Time" means 12:00 p.m., New York time, on a Local
Business Day.
(d) Conditions Precedent. With respect to Morgan, any Additional
Termination Event (if Morgan is the Affected Party with respect to
such Termination Event) will be a "Specified Condition".
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. Inapplicable.
(f) Dispute Resolution.
(i) "Resolution Time" means 1:00 p.m., New York time, on the Local
Business Day following the date on which the notice is given that gives
rise to a dispute under Paragraph 5.
(ii) Value. For the purposes of Paragraphs 5(i)(C) and 5(ii), the Value
of Posted Credit Support other than Cash will be calculated as follows:
(A) with respect to any Eligible Collateral except Cash, the
sum of (I) (x) the mean of the high bid and low asked
prices quoted on such date by any principal market maker
for such Eligible Collateral chosen by the Disputing
Party, or (y) if no quotations are available from a
principal market maker for such date, the mean of such
high bid and low asked prices as of the first day prior
to such date on which such quotations were available,
plus (II) the accrued interest on such Eligible
Collateral (except to the extent Transferred to a party
pursuant to any applicable provision of this Agreement
or included in the applicable price referred to in (I)
of this clause (A)) as of such date; multiplied by the
applicable Valuation Percentage.
(iii) Alternative. The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
(i) Eligibility to Hold Posted Collateral; Custodians. Counterparty and
its Custodian will be entitled to hold Posted Collateral pursuant to
Paragraph 6(b); provided that the following conditions applicable to it
are satisfied:
(1) Counterparty is not a Defaulting Party and
(2) Posted Collateral may be held only in the following
jurisdictions: New York State.
Initially, the Custodian for Counterparty is: None
(ii) Use of Posted Collateral. The provisions of Paragraph 6(c)(i) will
not apply to Counterparty but the provisions of Paragraph 6(c)(ii) will
apply to the Counterparty.
(h) Distributions and Interest Amount.
(i) Interest Rate. "Interest Rate" for any day means, the Federal Funds
Overnight Rate. For the purposes hereof, "Federal Funds Overnight Rate"
means, for any day, an interest rate per annum equal to the rate
published as the Federal Funds Effective Rate that appears on Telerate
Page 118 for such day.
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount
will be made monthly on the second Local Business Day of each calendar
month.
(iii) Alternative to Interest Amount. The provisions of Paragraph
6(d)(ii) will apply.
(i) Additional Representation(s). Not Applicable.
(j) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted
Support means: Not Applicable.
(ii) "Transfer" with respect to Other Eligible Support and Other Posted
Support means: Not Applicable
(k) Demands and Notices.
All demands, specifications and notices under this Annex will be made
pursuant to the Notices Section of this Agreement, unless otherwise
specified here:
Counterparty: Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services-J.P.
Morgan 2006-LDP9
Morgan: JPMorgan Chase Bank, National Association
Collateral Middle Office Americas 3/OPS2
500 Stanton Christiana Road
Newark, Delaware 19713
Telephone No.: (302) 634-3191
Facsimile No.: (302) 634-3270
Email: collateral_services@jpmorgan.com
(l) Other Provisions:
(i) Modification to Paragraph 1: The following subparagraph (b) is
substituted for subparagraph (b) of this Annex:
(b) Secured Party and Pledgor. All references in this Annex to the
"Secured Party" will be to Counterparty and all corresponding
references to the "Pledgor" will be to Morgan.
(ii) Modification to Paragraph 2: The following Paragraph 2 is
substituted for Paragraph 2 of this Annex:
Paragraph 2. Security Interest. The Pledgor hereby pledges
to the Secured Party, as security for its Obligations, and
grants to the Secured Party a first priority continuing
security interest in, lien on and right of Set-Off against all
Posted Collateral Transferred to or received by the Secured
Party hereunder. Upon the Transfer by the Secured Party to
the Pledgor of Posted Collateral, the security interest and
lien granted hereunder on that Posted Collateral will be
released immediately and, to the extent possible, without any
further action by either party.
(iii) Modification to Paragraph 9: The following first clause of
Paragraph 9 is substituted for the first clause of Paragraph 9 of this
Annex:
Paragraph 9. Representations. The Pledgor represents to the
Secured Party (which representations will be deemed to be repeated as
of each date on which it Transfers Eligible Collateral) that:
(iv) Modifications to Paragraph 12: The following definitions of
"Pledgor" and "Secured Party" are substituted for the definitions of
those terms contained in Paragraph 12 of this Annex:
"Pledgor" means Morgan, when that party (i) receives a demand for or
is required to Transfer Eligible Credit Support under Paragraph 3(a)
or (ii) has Transferred Eligible Credit Support under Paragraph 3(a).
"Secured Party" means Counterparty, when that party (i) makes a
demand for or is entitled to receive Eligible Credit Support under
Paragraph 3(a) or (ii) holds or is deemed to hold Posted Credit
Support.
(v) Addition to Paragraph 12: The following definitions of "Modified
Exposure" shall be added immediately after the definition of the term
"Minimum Transfer Amount" and immediately prior to the definition of the
term "Notification Time" in Paragraph 12 of this Annex:
"Modified Exposure" means, for any Valuation Date, an amount equal to
the sum of (i) the greater of USD 0 and the Secured Party's Exposure
for that Valuation Date and (ii) the sum of the Volatility Buffers
determined by the Valuation Agent with respect to each Transaction
subject to the Agreement. As used herein:
"Volatility Buffer" means, with respect to a Transaction, an amount
equal to the product of (a) the Factor applicable to the Transaction
and (b) the Notional Amount of the Transaction.
"Factor" means, with respect to a Transaction, a percentage dependent
on Morgan's Counterparty Rating by S&P or Moody's, as applicable, and
the original maturity of the Transaction and determined by the
Valuation Agent by reference to the following table:
------------------- ------------- ------------- ------------
Counterparty Maturities Maturities Maturities
Rating up to 5 up to 10 up to 30
(S&P/Moody's) years (%) years (%) years (%)
------------------- ------------- ------------- ------------
A-2/P-2 3.25 4.00 4.75
------------------- ------------- ------------- ------------
------------------- ------------- ------------- ------------
A-3/P-3 4.00 5.00 6.25
------------------- ------------- ------------- ------------
------------------- ------------- ------------- ------------
BB+ or lower/Ba1 4.50 6.75 7.50
or lower
------------------- ------------- ------------- ------------
Modification to Paragraph 12: Clause "(B)" of the definition of
"Value" will be substituted to read in its entirety as follows:
"(B) a security, the bid price obtained by the Valuation Agent from
one of the Pricing Sources multiplied by the applicable Valuation
Percentage, if any;"
(vi) Addition to Paragraph 12: The following definition of "Pricing
Sources" shall be added immediately after the definition of the term
"Posted Credit Support" and immediately prior to the definition of the
term "Recalculation Date" in Paragraph 12 of this Annex:
"Pricing Sources" means the sources of financial information commonly
known as Bloomberg, Bridge Information Services, Data Resources Inc.,
Interactive Data Services, International Securities Market
Association, Merrill Lynch Securities Pricing Service, Muller Data
Corporation, Reuters, Wood Gundy, Trepp Pricing, JJ Kenny, S&P and
Telerate.
Accepted and Agreed:
JPMORGAN CHASE BANK, N.A.
By: /s/ Andrew B. Taylor
------------------------------------------
Name: Andrew B. Taylor
Title: Vice President
J.P. MORGAN CHASE COMMERCIAL
MORTGAGE SECURITIES TRUST 2006-LDP9
By: LaSalle Bank National Association, not in its individual
capacity, but solely as Trustee
By: /s/ Andy Streepey
------------------------------------------
Name: Andy Streepey
Title: Assistant Vice President
EXHIBIT 10.10
CONFIRMATION FOR U.S. DOLLAR INTEREST RATE SWAP
TRANSACTION UNDER 1992 MASTER AGREEMENT
Date: December 21, 2006 Our ref: 99500954
To: J.P. Morgan Chase Commercial From: JPMorgan Chase Bank, N.A.
Mortgage Securities Trust 270 Park Avenue
2006-LDP9 6th Floor
c/o LaSalle Bank National New York, New York 10017
Association
135 South LaSalle Street,
Suite 1625
Chicago, Illinois 60603
Attn: Global Securities and Trust Contact: Andrew Taylor
Services, J.P. Morgan Chase
Commercial Mortgage
Securities Trust 2006-LDP9
Fax No: (312) 904-1085 Fax No: (212) 834-6598
Tel No: (212) 834-3813
Dear Sir/Madam,
The purpose of this letter agreement is to confirm the terms and
conditions of the Transaction entered into between J.P. Morgan Chase Commercial
Mortgage Securities Trust 2006-LDP9 and JPMorgan Chase Bank, N.A. (each a
"party" and together "the parties") on the Trade Date specified below (the
"Transaction"). This letter agreement constitutes a "Confirmation" as referred
to in the ISDA Master Agreement specified in paragraph 1 below (the
"Agreement").
The definitions and provisions contained in the 2000 ISDA
Definitions (as published by the International Swaps and Derivatives
Association, Inc., the "Definitions") are incorporated into this Confirmation.
In the event of any inconsistency between the Definitions and this Confirmation,
this Confirmation will govern. Capitalized terms used herein and not otherwise
defined have the meanings set forth in the Definitions or the Trust Agreement
referred to below under "Credit Support Documents."
This Confirmation supplements, forms part of, and is subject to, the
ISDA Master Agreement (including the Schedule thereto) dated as of December 21,
2006, as amended and supplemented from time to time (the "Agreement"), between
the parties. All provisions contained in the Agreement govern this Confirmation
except as expressly modified below.
In this Confirmation "Party A" means JPMorgan Chase Bank, N.A. and
"Party B" means J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP9
(the trust established pursuant to the Trust Agreement, as defined herein).
The terms of the particular Transaction to which this Confirmation relates are
as follows:
Notional Amount: For each Calculation Period, the
Certificate Balance (as defined in the
Trust Agreement) of the Commercial
Mortgage Pass-Through Certificates,
Series 2006-LDP9, Class A-2SFL Regular
Interest, issued by Party B under the
Trust Agreement, as of the close of
business on the Distribution Date (as
defined in the Trust Agreement) occurring
in such Calculation Period, except that
the Notional Amount for the Initial
Calculation Period shall be the Original
Certificate Balance (as defined in the
Trust Agreement) of the Commercial
Mortgage Pass-Through Certificates,
Series 2006-LDP9, Class A-2SFL Regular
Interest. For the avoidance of doubt, on
the Effective Date, the Notional Amount
is equal to $200,000,000.
Trade Date: December 21, 2006
Effective Date: December 21, 2006
Termination Date: The earlier of: (a) the Rated Final
Distribution Date (as defined in the
Trust Agreement) in May of 2047; or (b)
the date when the Notional Amount
hereunder has been reduced to zero, in
each case subject to adjustment in
accordance with the Following Business
Day Convention.
Initial Accrual
Interest Payment
by Party A to $576,333.33, to be paid on the Effective
Party B: Date.
Initial Up-front
Payment by Party
B to Party A: $7,600.00, to be paid on the Effective Date.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer The related Distribution Date, beginning on
Payment Dates: January 15, 2007 and ending on the
Termination Date.
Fixed Rate: 5.1870% per annum
Fixed Rate Day 30/360 (without regard to the date of the
Count Fraction: first day or last day of the Calculation
Period).
Initial Fixed Rate From and including December 1, 2006,
Calculation through and including December 31, 2006.
Period:
Fixed Amount: For each Payment Date in respect of a
Calculation Period, the lesser of: (1)
the product of (a) the Fixed Rate, (b)
the Fixed Rate Day Count Fraction and (c)
the Notional Amount for such Calculation
Period (the "Regular Fixed Amount"); or
(2) the amount of funds available for
such payment under the Trust Agreement
(the "Available Fixed Amount").
Fixed Rate Payer The first day of each calendar month (with
Period End no adjustments).
Dates:
Fixed Rate Payer For each Payment Date, the period from and
Delayed Payment: including the immediately preceding
Period End Date to, but excluding, such
Payment Date.
Fixed Rate For each Payment Date, the calendar month
Calculation preceding such Payment Date during the
Period: Term of this Swap Transaction.
Additional Fixed For any Payment Date, the amount of any
Amount: Yield Maintenance Charges (as defined in
the Trust Agreement) paid in respect of the
Class A-2SFL Regular Interest on the related
Distribution Date under the Trust Agreement.
Floating Amounts:
Floating Rate Payer: Party A
Floating Rate Payer The Business Day prior to the related
Payment Dates: Distribution Date, beginning on January
12, 2007 and ending on the Termination
Date.
Floating Rate for LIBOR plus the Spread.
Initial
Calculation
Period:
Floating Rate LIBOR, as defined and calculated under the
Option: Trust Agreement; provided that for the
Initial Floating Rate Calculation Period,
the Floating Rate Option should be
5.3500%.
Spread: 0.1200%
Floating Rate Day Actual/360
Count Fraction:
Floating Rate For each Payment Date, the period from and
Calculation including the Distribution Date in the
Period: preceding calendar month (or the Closing
Date (as defined in the Trust Agreement), in
the case of the Initial Floating Rate
Calculation Period), to, but excluding, the
related Distribution Date, except that the
final Calculation Period will end on, but
exclude, the Termination Date.
Initial Floating From and including the Closing Date to, but
Rate Calculation excluding, January 15, 2007.
Period:
Floating Amount: For each Payment Date in respect of a
Calculation Period, the lesser of: (1) an
amount equal to the product of (a) the
Floating Rate, (b) the Floating Rate Day
Count Fraction and (c) the Notional
Amount for such Calculation Period (the
"Regular Floating Amount"); or (2) an
amount equal to (a) the Regular Floating
Amount minus (b) the excess of (i) the
Regular Fixed Amount for such Payment
Date over (ii) the Available Fixed Amount.
Business Days: As defined in the Trust Agreement.
Calculation Agent: Party B
Other: For the avoidance of doubt, for purposes of
Section 2(c) of the Agreement, any amounts
payable by the Floating Rate Payer on a
Floating Rate Payer Payment Date, and by the
Fixed Rate Payer on the related Fixed Rate
Payer Payment Date, shall be netted even though
such dates may be different, and the party with
the larger aggregate amount shall make the net
payment on the related Payment Date.
Recording of Conversations
Each party to this Transaction acknowledges and agrees to the tape
recording of conversations between the parties to this Transaction whether by
one or other or both of the parties or their agents, and that any such tape
recordings may be submitted in evidence in any Proceedings relating to the
Agreement and/or this Transaction.
Credit Support With respect to Party B, the Pooling and
Documents: Servicing Agreement, dated as of December
1, 2006, among J.P. Morgan Chase
Commercial Mortgage Securities Corp., as
depositor, Midland Loan Services, Inc.,
as master servicer No. 1, Capmark Finance
Inc., as master servicer No. 2, Wachovia
Bank, National Association, as master
servicer No. 3, LNR Partners, Inc., as
special servicer, LaSalle Bank National
Association, as trustee, and Wells Fargo
Bank, N.A., as paying agent, as amended,
modified, supplemented, restated or
replaced from time to time (the "Trust
Agreement").
Account Details:
Account for Name: JPMorgan Chase Bank, N.A.
payments to City: New York
Party A: ABA: 021-000-021
Acct #: 999-97-341
Attn: Balance Guaranty
Account for Name: Wells Fargo Bank, N.A., as Paying
payments to Agent
Party B:
ABA: 121-000-248
for credit to SAS Clearing 3970771416,
for further credit to A/C # 50976100
JPM 2006-LDP9 Attn: CMBS
6 Offices:
The Office of
Party A for this
Transaction is: New York, NY
The Office of
Party B for this
Transaction is: Chicago, IL
Please confirm that the foregoing correctly sets forth the terms and
conditions of our agreement by responding within three (3) Business
Days by returning via telecopier an executed copy of this
Confirmation to the attention of Andrew Taylor (fax no. (212)
834-6598).
Failure to respond within such period shall not affect the validity or
enforceability of this Transaction, and shall be deemed to be an affirmation of
the terms and conditions contained herein, absent manifest error.
JPMorgan Chase Bank, N.A. Accepted and confirmed as of the date
first written:
J.P. Morgan Chase Commercial Mortgage
By: /s/ Andrew B. Taylor Securities Trust 2006-LDP9
----------------------------------
Name: Andrew B. Taylor
Title: Vice President By: LaSalle Bank National Association,
not in its individual capacity, but
solely as Trustee
By: /s/ Andy Streepey
------------------------------------
Name: Andy Streepey
Title: Assistant Vice President
EXHIBIT 10.11
(Multicurrency - Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December 21, 2006
JPMORGAN CHASE BANK, N.A. and J.P. MORGAN CHASE COMMERCIAL
MORTGAGE SECURITIES TRUST 2006-LDP9
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other
confirming evidence (each a "Confirmation") exchanged between the parties
confirming those Transactions.
Accordingly, the parties agree as follows: -
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master
Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the
relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single
agreement between the parties (collectively referred to as this
"Agreement"), and the parties would not otherwise enter into any
Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of
this Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds and in the manner customary for
payments in the required currency. Where settlement is by
delivery (that is, other than by payment), such delivery will be
made for receipt on the due date in the manner customary for the
relevant obligation unless otherwise specified in the relevant
Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential
Event of Default with respect to the other party has occurred and
is continuing, (2) the condition precedent that no Early
Termination Date in respect of the relevant Transaction has
occurred or been effectively designated and (3) each other
applicable condition precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five
Local Business Days prior to the scheduled date for the payment or
delivery to which such change applies unless such other party gives
timely notice of a reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party by
whom the larger aggregate amount would have been payable to pay to the other
party the excess of the larger aggregate amount over the smaller aggregate
amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same date
in the same currency in respect of such Transactions, regardless of whether
such amounts are payable in respect of the same Transaction. The election may
be made in the Schedule or a Confirmation by specifying that
subparagraph (ii) above will not apply to the Transactions identified as
being subject to the election, together with the starting date (in which case
subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for
different groups of Transactions and will apply separately to each pairing of
Offices through which the parties make and receive payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without
any deduction or withholding for or on account of any Tax unless
such deduction or withholding is required by any applicable law,
as modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or
withhold, then that party ("X") will:
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required
to be deducted or withheld from any additional amount paid
by X to Y under this Section 2(d)) promptly upon the
earlier of determining that such deduction or withholding
is required or receiving notice that such amount has been
assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition
to the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure
that the net amount actually received by Y (free and clear
of Indemnifiable Taxes, whether assessed against X or Y)
will equal the full amount Y would have received had no
such deduction or withholding been required. However, X
will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for:
(A) the failure by Y to comply with or perform any
agreement contained in Section 4(a)(i), 4(a)(iii) or
4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such
failure would not have occurred but for (I) any
action taken by a taxing authority, or brought in a
court of competent jurisdiction, on or after the date
on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect
to a party to this Agreement) or (II) a Change in Tax
Law.
(ii) Liability. If:
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to
make any deduction or withholding in respect of which X
would not be required to pay an additional amount to Y
under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies the
liability resulting from such Tax, Y will promptly pay to X the amount
of such liability (including any related liability for interest, but
including any related liability for penalties only if Y has failed to
comply with or perform any agreement contained in Section 4(a)(i),
4(a)(iii) or 4(d)).
(e) Default Interest; Other Amounts. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment
obligation will, to the extent permitted by law and subject to
Section 6(c), be required to pay interest (before as well as after
judgment) on the overdue amount to the other party on demand in the
same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the
date of actual payment, at the Default Rate. Such interest will be
calculated on the basis of daily compounding and the actual number of
days elapsed. If, prior to the occurrence or effective designation of
an Early Termination Date in respect of the relevant Transaction, a
party defaults in the performance of any obligation required to be
settled by delivery, it will compensate the other party on demand if
and to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be
deemed to be repeated by each party on each date on which a Transaction is
entered into and, in the case of the representations in Section 3(f), at all
times until the termination of this Agreement) that:
(a) Basic Representations.
(i) Status. It is duly organised and validly existing under the laws
of the jurisdiction of its organisation or incorporation and, if
relevant under such laws, in good standing;
(ii) Powers. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party,
to deliver this Agreement and any other documentation relating to
this Agreement that it is required by this Agreement to deliver
and to perform its obligations under this Agreement and any
obligations it has under any Credit Support Document to which it
is a party and has taken all necessary action to authorise such
execution, delivery and performance;
(iii) No Violation or Conflict. Such execution, delivery and
performance do not violate or conflict with any law applicable to
it, any provision of its constitutional documents, any order or
judgment of any court or other agency of government applicable to
it or any of its assets or any contractual restriction binding on
or affecting it or any of its assets;
(iv) Consents. All governmental and other consents that are required
to have been obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party have been obtained
and are in full force and effect and all conditions of any such
consents have been complied with; and
(v) Obligations Binding. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its
legal, valid and binding obligations, enforceable in accordance
with their respective terms (subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting
creditors' rights generally and subject, as to enforceability, to
equitable principles of general application (regardless of
whether enforcement is sought in a proceeding in equity or at
law)).
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has
occurred and is continuing and no such event or circumstance would
occur as a result of its entering into or performing its obligations
under this Agreement or any Credit Support Document to which it is a
party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or
proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely
to affect the legality, validity or enforceability against it of this
Agreement or any Credit Support Document to which it is a party or its
ability to perform its obligations under this Agreement or such Credit
Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is
identified for the purpose of this Section 3(d) in the Schedule is, as
of the date of the information, true, accurate and complete in every
material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(e) is accurate
and true.
(f) Payee Tax Representations. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3(f) is
accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may
have any obligation under this Agreement or under any Credit Support Document
to which it is a party:
(a) Furnish Specified Information. It will deliver to the other party or,
in certain cases under subparagraph (iii) below, to such government or
taxing authority as the other party reasonably directs:-
(i) any forms, documents or certificates relating to taxation
specified in the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any
Confirmation; and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order
to allow such other party or its Credit Support Provider to make
a payment under this Agreement or any applicable Credit Support
Document without any deduction or withholding for or on account
of any Tax or with such deduction or withholding at a reduced
rate (so long as the completion, execution or submission of such
form or document would not materially prejudice the legal or
commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be
executed and to be delivered with any reasonably required
certification,
in each case by the date specified in the Schedule or such Confirmation or,
if none is specified, as soon as reasonably practicable.
(b) Maintain Authorisations. It will use all reasonable efforts to maintain
in full force and effect all consents of any governmental or other
authority that are required to be obtained by it with respect to this
Agreement or any Credit Support Document to which it is a party and
will use all reasonable efforts to obtain any that may become necessary
in the future.
(c) Comply with Laws. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to
comply would materially impair its ability to perform its obligations
under this Agreement or any Credit Support Document to which it is a
party.
(d) Tax Agreement. It will give notice of any failure of a representation
made by it under Section 3(f) to be accurate and true promptly upon
learning of such failure.
(e) Payment of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance
of this Agreement by a jurisdiction in which it is incorporated,
organised, managed and controlled, or considered to have its seat, or
in which a branch or office through which it is acting for the purpose
of this Agreement is located ("Stamp Tax Jurisdiction") and will
indemnify the other party against any Stamp Tax levied or imposed upon
the other party or in respect of the other party's execution or
performance of this Agreement by any such Stamp Tax Jurisdiction which
is not also a Stamp Tax Jurisdiction with respect to the other party.
5. Events of Default and Termination Events
(a) Events of Default. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any
Specified Entity of such party of any of the following events
constitutes an event of default (an "Event of Default") with respect to
such party:-
(i) Failure to Pay or Deliver. Failure by the party to make, when
due, any payment under this Agreement or delivery under
Section 2(a)(i) or 2(e) required to be made by it if such failure
is not remedied on or before the third Local Business Day after
notice of such failure is given to the party;
(ii) Breach of Agreement. Failure by the party to comply with or
perform any agreement or obligation (other than an obligation to
make any payment under this Agreement or delivery under
Section 2(a)(i) or 2(e) or to give notice of a Termination Event
or any agreement or obligation under Section 4(a)(i), 4(a)(iii)
or 4(d)) to be complied with or performed by the party in
accordance with this Agreement if such failure is not remedied on
or before the thirtieth day after notice of such failure is given
to the party;
(iii) Credit Support Default.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation
to be complied with or performed by it in accordance with
any Credit Support Document if such failure is continuing
after any applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support
Document or the failing or ceasing of such Credit Support
Document to be in full force and effect for the purpose of
this Agreement (in either case other than in accordance
with its terms) prior to the satisfaction of all
obligations of such party under each Transaction to which
such Credit Support Document relates without the written
consent of the other party; or
(3) the party or such Credit Support Provider disaffirms,
disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;
(iv) Misrepresentation. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have
been made or repeated by the party or any Credit Support Provider
of such party in this Agreement or any Credit Support Document
proves to have been incorrect or misleading in any material
respect when made or repeated or deemed to have been made or
repeated;
(v) Default under Specified Transaction. The party, any Credit
Support Provider of such party or any applicable Specified Entity
of such party (1) defaults under a Specified Transaction and,
after giving effect to any applicable notice requirement or grace
period, there occurs a liquidation of, an acceleration of
obligations under, or an early termination of, that Specified
Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or
delivery due on the last payment, delivery or exchange date of,
or any payment on early termination of, a Specified Transaction
(or such default continues for at least three Local Business Days
if there is no applicable notice requirement or grace period) or
(3) disaffirms, disclaims, repudiates or rejects, in whole or in
part, a Specified Transaction (or such action is taken by any
person or entity appointed or empowered to operate it or act on
its behalf);
(vi) Cross Default. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a
default, event of default or other similar condition or event
(however described) in respect of such party, any Credit Support
Provider of such party or any applicable Specified Entity of such
party under one or more agreements or instruments relating to
Specified Indebtedness of any of them (individually or
collectively) in an aggregate amount of not less than the
applicable Threshold Amount (as specified in the Schedule) which
has resulted in such Specified Indebtedness becoming, or becoming
capable at such time of being declared, due and payable under
such agreements or instruments, before it would otherwise have
been due and payable or (2) a default by such party, such Credit
Support Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due date
thereof in an aggregate amount of not less than the applicable
Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace
period);
(vii) Bankruptcy. The party, any Credit Support Provider of such party
or any applicable Specified Entity of such party:
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable
to pay its debts or fails or admits in writing its
inability generally to pay its debts as they become due;
(3) makes a general assignment, arrangement or composition
with or for the benefit of its creditors; (4) institutes or
has instituted against it a proceeding seeking a judgment
of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its
winding-up or liquidation, and, in the case of any such
proceeding or petition instituted or presented against it,
such proceeding or petition (A) results in a judgment of
insolvency or bankruptcy or the entry of an order for
relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution
or presentation thereof; (5) has a resolution passed for
its winding-up, official management or liquidation (other
than pursuant to a consolidation, amalgamation or merger);
(6) seeks or becomes subject to the appointment of an
administrator, provisional liquidator, conservator,
receiver, trustee, custodian or other similar official for
it or for all or substantially all its assets; (7) has a
secured party take possession of all or substantially all
its assets or has a distress, execution, attachment,
sequestration or other legal process levied, enforced or
sued on or against all or substantially all its assets and
such secured party maintains possession, or any such
process is not dismissed, discharged, stayed or restrained,
in each case within 30 days thereafter; (8) causes or is
subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous
effect to any of the events specified in clauses (1) to (7)
(inclusive); or (9) takes any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in,
any of the foregoing acts; or
(viii) Merger Without Assumption. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or
merges with or into, or transfers all or substantially all its
assets to, another entity and, at the time of such consolidation,
amalgamation, merger or transfer:
(1) the resulting, surviving or transferee entity fails to
assume all the obligations of such party or such Credit
Support Provider under this Agreement or any Credit Support
Document to which it or its predecessor was a party by
operation of law or pursuant to an agreement reasonably
satisfactory to the other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance
by such resulting, surviving or transferee entity of its
obligations under this Agreement.
(b) 'Termination Events. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any
Specified Entity of such party of any event specified below constitutes
an Illegality if the event is specified in (i) below, a Tax Event if
the event is specified in (ii) below or a Tax Event Upon Merger if the
event is specified in (iii) below, and, if specified to be applicable,
a Credit Event Upon Merger if the event is specified pursuant to (iv)
below or an Additional Termination Event if the event is specified
pursuant to (v) below:-
(i) Illegality. Due to the adoption of, or any change in, any
applicable law after the date on which a Transaction is entered
into, or due to the promulgation of, or any change in, the
interpretation by any court, tribunal or regulatory authority
with competent jurisdiction of any applicable law after such
date, it becomes unlawful (other than as a result of a breach by
the party of Section 4(b)) for such party (which will be the
Affected Party):
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in
respect of such Transaction or to comply with any other
material provision of this Agreement relating to such
Transaction; or
(2) to perform, or for any Credit Support Provider of such
party to perform, any contingent or other obligation which
the party (or such Credit Support Provider) has under any
Credit Support Document relating to such Transaction;
(ii) Tax Event. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party
to this Agreement) or (y) a Change in Tax Law, the party (which
will be the Affected Party) will, or there is a substantial
likelihood that it will, on the next succeeding Scheduled Payment
Date (1) be required to pay to the other party an additional
amount in respect of an Indemnifiable Tax under
Section 2(d)(i)(4) (except in respect of interest under
Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from
which an amount is required to be deducted or withheld for or on
account of a Tax (except in respect of interest under
Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under
Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A)
or (B));
(iii) Tax Event Upon Merger. The party (the "Burdened Party") on the
next succeeding Scheduled Payment Date will either (1) be
required to pay an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a
payment from which an amount has been deducted or withheld for or
on account of any Indemnifiable Tax in respect of which the other
party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a
result of a party consolidating or amalgamating with, or merging
with or into, or transferring all or substantially all its assets
to, another entity (which will be the Affected Party) where such
action does not constitute an event described in
Section 5(a)(viii);
(iv) Credit Event Upon Merger. If "Credit Event Upon Merger" is
specified in the Schedule as applying to the party, such party
("X"), any Credit Support Provider of X or any applicable
Specified Entity of X consolidates or amalgamates with, or merges
with or into, or transfers all or substantially all its assets
to, another entity and such action does not constitute an event
described in Section 5(a)(viii) but the creditworthiness of the
resulting, surviving or transferee entity is materially weaker
than that of X, such Credit Support Provider or such Specified
Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as
appropriate, will be the Affected Party); or
(v) Additional Termination Event. If any "Additional Termination
Event" is specified in the Schedule or any Confirmation as
applying, the occurrence of such event (and, in such event, the
Affected Party or Affected Parties shall be as specified for such
Additional Termination Event in the Schedule or such
Confirmation).
(c) Event of Default and Illegality. If an event or circumstance which
would otherwise constitute or give rise to an Event of Default also
constitutes an Illegality, it will be treated as an Illegality and will
not constitute an Event of Default.
6. Early Termination
(a) Right to Terminate Following Event of Default. If at any time an Event
of Default with respect to a party (the "Defaulting Party") has
occurred and is then continuing, the other party (the "Non-defaulting
Party") may, by not more than 20 days notice to the Defaulting Party
specifying the relevant Event of Default, designate a day not earlier
than the day such notice is effective as an Early Termination Date in
respect of all outstanding Transactions. If, however, "Automatic Early
Termination" is specified in the Schedule as applying to a party, then
an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party
of an Event of Default specified in Section 5(a)(vii)(1), (3), (5), (6)
or, to the extent analogous thereto, (8), and as of the time
immediately preceding the institution of the relevant proceeding or the
presentation of the relevant petition upon the occurrence with respect
to such party of an Event of Default specified in Section 5(a)(vii)(4)
or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party,
specifying the nature of that Termination Event and each Affected
Transaction and will also give such other information about that
Termination Event as the other party may reasonably require.
(ii) Transfer to Avoid Termination Event. If either an Illegality
under Section 5(b)(i)(1) or a Tax Event occurs and there is only
one Affected Party, or if a Tax Event Upon Merger occurs and the
Burdened Party is the Affected Party, the Affected Party will, as
a condition to its right to designate an Early Termination Date
under Section 6(b)(iv), use all reasonable efforts (which will
not require such party to incur a loss, excluding immaterial,
incidental expenses) to transfer within 20 days after it gives
notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another
of its Offices or Affiliates so that such Termination Event
ceases to exist.
If the Affected Party is not able to make such a transfer it will
give notice to the other party to that effect within such 20 day
period, whereupon the other party may effect such a transfer
within 30 days after the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the
other party, which consent will not be withheld if such other
party's policies in effect at such time would permit it to enter
into transactions with the transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1)
or a Tax Event occurs and there are two Affected Parties, each
party will use all reasonable efforts to reach agreement within
30 days after notice thereof is given under Section 6(b)(i) on
action to avoid that Termination Event.
(iv) Right to Terminate. If:
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been
effected with respect to all Affected Transactions within
30 days after an Affected Party gives notice under
Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax
Event Upon Merger occurs and the Burdened Party is not the
Affected Party,
either party in the case of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a
Tax Event or an Additional Termination Event if there is more than one
Affected Party, or the party which is not the Affected Party in the
case of a Credit Event Upon Merger or an Additional Termination Event
if there is only one Affected Party may, by not more than 20 days
notice to the other party and provided that the relevant Termination
Event is then continuing, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect of all
Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the
date so designated, whether or not the relevant Event of Default
or Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries under
Section 2(a)(i) or 2(e) in respect of the Terminated Transactions
will be required to be made, but without prejudice to the other
provisions of this Agreement. The amount, if any, payable in
respect of an Early Termination Date shall be determined pursuant
to Section 6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e)
and will provide to the other party a statement (1) showing, in
reasonable detail, such calculations (including all relevant
quotations and specifying any amount payable under Section 6(e))
and (2) giving details of the relevant account to which any
amount payable to it is to be paid. In the absence of written
confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party
obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the
day that notice of the amount payable is effective (in the case
of an Early Termination Date which is designated or occurs as a
result of an Event of Default) and on the day which is two Local
Business Days after the day on which notice of the amount payable
is effective (in the case of an Early Termination Date which is
designated as a result of a Termination Event). Such amount will
be paid together with (to the extent permitted under applicable
law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid,
at the Applicable Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed.
(e) Payments on Early Termination. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and
a payment method, either the "First Method" or the "Second Method". If
the parties fail to designate a payment measure or payment method in
the Schedule, it will be deemed that "Market Quotation" or the "Second
Method", as the case may be, shall apply. The amount, if any, payable
in respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an
Event of Default:
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to
the Non-defaulting Party the excess, if a positive number,
of (A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party over
(B) the Termination Currency Equivalent of the Unpaid
Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay to the Non-defaulting Party,
if a positive number, the Non-defaulting Party's Loss in
respect of this Agreement.
(3) Second Method and Market Quotation. If the Second Method
and Market Quotation apply, an amount will be payable equal
to (A) the sum of the Settlement Amount (determined by the
Non-defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party less
(B) the Termination Currency Equivalent of the Unpaid
Amounts owing to the Defaulting Party. If that amount is a
positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that
amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss
apply, an amount will be payable equal to the
Non-defaulting Party's Loss in respect of this Agreement.
If that amount is a positive number, the Defaulting Party
will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event:
(1) One Affected Party. If there is one Affected Party, the
amount payable will be determined in accordance with
Section 6(e)(i)(3), if Market Quotation applies, or
Section 6(e)(i)(4), if Loss applies, except that, in either
case, references to the Defaulting Party and to the
Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected
Party, respectively, and, if Loss applies and fewer than
all the Transactions are being terminated, Loss shall be
calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:
(A) if Market Quotation applies, each party will
determine a Settlement Amount in respect of the
Terminated Transactions, and an amount will be
payable equal to (I) the sum of (a) one-half of the
difference between the Settlement Amount of the party
with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower
Settlement Amount ("Y") and (b) the Termination
Currency Equivalent of the Unpaid Amounts owing to X
less (II) the Termination Currency Equivalent of the
Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss
in respect of this Agreement (or, if fewer than all
the Transactions are being terminated, in respect of
all Terminated Transactions) and an amount will be
payable equal to one-half of the difference between
the Loss of the party with the higher Loss ("X") and
the Loss of the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X;
if it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination"
applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are
appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement
(and retained by such other party) during the period from the
relevant Early Termination Date to the date for payment
determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies
an amount recoverable under this Section 6(e) is a reasonable
pre-estimate of loss and not a penalty. Such amount is payable
for the loss of bargain and the loss of protection against future
risks and except as otherwise provided in this Agreement neither
party will be entitled to recover any additional damages as a
consequence of such losses.
7. Transfer
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of
the other party, except that:
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer
of all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in
any amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be
void.
8. Contractual Currency
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for
that payment (the "Contractual Currency"). To the extent permitted by
applicable law, any obligation to make payments under this Agreement in
the Contractual Currency will not be discharged or satisfied by any
tender in any currency other than the Contractual Currency, except to
the extent such tender results in the actual receipt by the party to
which payment is owed, acting in a reasonable manner and in good faith
in converting the currency so tendered into the Contractual Currency,
of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the
Contractual Currency so received falls short of the amount in the
Contractual Currency payable in respect of this Agreement, the party
required to make the payment will, to the extent permitted by
applicable law, immediately pay such additional amount in the
Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so
received exceeds the amount in the Contractual Currency payable in
respect of this Agreement, the party receiving the payment will refund
promptly the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment
or order expressed in a currency other than the Contractual Currency is
rendered (i) for the payment of any amount owing in respect of this
Agreement, (ii) for the payment of any amount relating to any early
termination in respect of this Agreement or (iii) in respect of a
judgment or order of another court for the payment of any amount
described in (i) or (ii) above, the party seeking recovery, after
recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the
Contractual Currency received by such party as a consequence of sums
paid in such other currency and will refund promptly to the other party
any excess of the Contractual Currency received by such party as a
consequence of sums paid in such other currency if such shortfall or
such excess arises or results from any variation between the rate of
exchange at which the Contractual Currency is converted into the
currency of the judgment or order for the purposes of such judgment or
order and the rate of exchange at which such party is able, acting in a
reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency
with the amount of the currency of the judgment or order actually
received by such party. The term "rate of exchange" includes, without
limitation, any premiums and costs of exchange payable in connection
with the purchase of or conversion into the Contractual Currency.
(c) Separate Indemnities. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the
other obligations in this Agreement, will be enforceable as separate
and independent causes of action, will apply notwithstanding any
indulgence granted by the party to which any payment is owed and will
not be affected by judgment being obtained or claim or proof being made
for any other sums payable in respect of this Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be
sufficient for a party to demonstrate that it would have suffered a
loss had an actual exchange or purchase been made.
9. Miscellaneous
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and
supersedes all oral communication and prior writings with respect
thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing
evidenced by a facsimile transmission) and executed by each of the
parties or confirmed by an exchange of telexes or electronic messages
on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will
survive the termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are
cumulative and not exclusive of any rights, powers, remedies and
privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be
deemed an original.
(ii) The parties intend that they are legally bound by the terms of
each Transaction from the moment they agree to those terms
(whether orally or otherwise). A Confirmation shall he entered
into as soon as practicable and may he executed and delivered in
counterparts (including by facsimile transmission) or be created
by an exchange of telexes or by an exchange of electronic
messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding
supplement to this Agreement. The parties will specify therein or
through another effective means that any such counterpart, telex
or electronic message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power
or privilege in respect of this Agreement will not be presumed to
operate as a waiver, and a single or partial exercise of any right,
power or privilege will not be presumed to preclude any subsequent or
further exercise, of that right, power or privilege or the exercise of
any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken
into consideration in interpreting this Agreement.
10. Offices; Multibranch Parties
(a) If Section 10(a) is specified in the Schedule as applying, each party
that enters into a Transaction through an Office other than its head or
home office represents to the other party that, notwithstanding the
place of booking office or jurisdiction of incorporation or
organisation of such party, the obligations of such party are the same
as if it had entered into the Transaction through its head or home
office. This representation will be deemed to be repeated by such party
on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the
prior written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office
through which it makes and receives payments or deliveries with respect
to a Transaction will be specified in the relevant Confirmation.
11. Expenses
A Defaulting Party will, on demand, indemnify and hold harmless the other
party for and against all reasonable out-of-pocket expenses, including legal
fees and Stamp Tax, incurred by such other party by reason of the enforcement
and protection of its rights under this Agreement or any Credit Support
Document to which the Defaulting Party is a party or by reason of the early
termination of any Transaction, including, but not limited to, costs of
collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a
notice or other communication under Section 5 or 6 may not be given by
facsimile transmission or electronic messaging system) to the address
or number or in accordance with the electronic messaging system details
provided (see the Schedule) and will be deemed effective as indicated:-
(i) if in writing and delivered in person or by courier, on the date
it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that transmission
is received by a responsible employee of the recipient in legible
form (it being agreed that the burden of proving receipt will be
on the sender and will not be met by a transmission report
generated by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested), on the date that mail
is delivered or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that
electronic message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered
(or attempted) or received, as applicable, after the close of business on a
Local Business Day, in which case that communication shall be deemed given
and effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system
details at which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating
to this Agreement ("Proceedings"), each party irrevocably:-
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law, or to the
non-exclusive jurisdiction of the courts of the State of New York
and the United States District Court located in the Borough of
Manhattan in New York City, if this Agreement is expressed to be
governed by the laws of the State of New York; and
(ii) waives any objection which it may have at any time to the laying
of venue of any Proceedings brought in any such court, waives any
claim that such Proceedings have been brought in an inconvenient
forum and further waives the right to object, with respect to
such Proceedings, that such court does not have any jurisdiction
over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be
governed by English law, the Contracting States, as defined in Section 1(3)
of the Civil Jurisdiction and Judgments Act 1982 or any modification,
extension or re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more jurisdictions preclude the
bringing of Proceedings in any other jurisdiction.
(c) Service of Process. Each party irrevocably appoints the Process Agent
(if any) specified opposite its name in the Schedule to receive, for it
and on its behalf, service of process in any Proceedings. If for any
reason any party's Process Agent is unable to act as such, such party
will promptly notify the other party and within 30 days appoint a
substitute process agent acceptable to the other party. The parties
irrevocably consent to service of process given in the manner provided
for notices in Section 12. Nothing in this Agreement will affect the
right of either party to serve process in any other manner permitted by
law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its
revenues and assets (irrespective of their use or intended use), all
immunity on the grounds of sovereignty or other similar grounds from
(i) suit, (ii) jurisdiction of any court, (iii) relief by way of
injunction, order for specific performance or for recovery of property,
(iv) attachment of its assets (whether before or after judgment) and
(v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in
the courts of any jurisdiction and irrevocably agrees, to the extent
permitted by applicable law, that it will not claim any such immunity
in any Proceedings.
14. Definitions
As used in this Agreement:-
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and
(b) with respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control"
of any entity or person means ownership of a majority of the voting power of
the entity or person.
"Applicable Rate" means:-
(a) in respect of obligations payable or deliverable (or which would have
been but for Section 2(a)(iii)) by a Defaulting Party. the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of
either party from and after the date (determined in accordance with
Section 6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which
would have been but for Section 2(a)(iii)) by a Non-defaulting Party,
the Non-default Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after
the date on which the relevant Transaction is entered into.
"consent" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified
as such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with
Section 6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(h).
"Indemnifiable Tax" means any Tax other than a Tax that would not be imposed
in respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to
such recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of
such jurisdiction, or being or having been organised, present or engaged in a
trade or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such jurisdiction, but excluding
a connection arising solely from such recipient or related person having
executed, delivered, performed its obligations or received a payment under,
or enforced, this Agreement or a Credit Support Document).
"law" includes any treaty, law, rule or regulation (as modified, in the case
of tax matters, by the practice of any relevant governmental revenue
authority) and "lawful" and "unlawful" will be construed accordingly.
"Local Business Day" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) (a) in relation to any obligation
under Section 2(a)(i), in the place(s) specified in the relevant Confirmation
or, if not so specified, as otherwise agreed by the parties in writing or
determined pursuant to provisions contained, or incorporated by reference, in
this Agreement, (b) in relation to any other payment, in the place where the
relevant account is located and, if different, in the principal financial
centre, if any, of the currency of such payment, (c) in relation to any
notice or other communication, including notice contemplated under
Section 5(a)(i), in the city specified in the address for notice provided by
the recipient and, in the case of a notice contemplated by Section 2(b), in
the place where the relevant new account is to be located and (d) in relation
to Section 5(a)(v)(2), in the relevant locations for performance with respect
to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be
its total losses and costs (or gain, in which case expressed as a negative
number) in connection with this Agreement or that Terminated Transaction or
group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or reestablishing any hedge or related trading
position (or any gain resulting from any of them). Loss includes losses and
costs (or gains) in respect of any payment or delivery required to have been
made (assuming satisfaction of each applicable condition precedent) on or
before the relevant Early Termination Date and not made, except, so as to
avoid duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies.
Loss does not include a party's legal fees and out-of-pocket expenses
referred to under Section 11. A party will determine its Loss as of the
relevant Early Termination Date, or, if that is not reasonably practicable,
as of the earliest date thereafter as is reasonably practicable. A party may
(but need not) determine its Loss by reference to quotations of relevant
rates or prices from one or more leading dealers in the relevant markets.
"Market Quotation" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an
amount, if any, that would be paid to such party (expressed as a negative
number) or by such party (expressed as a positive number) in consideration of
an agreement between such party (taking into account any existing Credit
Support Document with respect to the obligations of such party) and the
quoting Reference Market-maker to enter into a transaction (the "Replacement
Transaction") that would have the effect of preserving for such party the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in
respect of such Terminated Transaction or group of Terminated Transactions
that would, but for the occurrence of the relevant Early Termination Date,
have been required after that date. For this purpose, Unpaid Amounts in
respect of the Terminated Transaction or group of Terminated Transactions are
to be excluded but, without limitation, any payment or delivery that would,
but for the relevant Early Termination Date, have been required (assuming
satisfaction of each applicable condition precedent) after that Early
Termination Date is to be included. The Replacement Transaction would be
subject to such documentation as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to the
extent reasonably practicable as of the same day and time (without regard to
different time zones) on or as soon as reasonably practicable after the
relevant Early Termination Date. The day and time as of which those
quotations are to be obtained will be selected in good faith by the party
obliged to make a determination under Section 6(e), and, if each party is so
obliged, after consultation with the other. If more than three quotations are
provided, the Market Quotation will be the arithmetic mean of the quotations,
without regard to the quotations having the highest and lowest values. If
exactly three such quotations are provided, the Market Quotation will be the
quotation remaining after disregarding the highest and lowest quotations. For
this purpose, if more than one quotation has the same highest value or lowest
value, then one of such quotations shall be disregarded. If fewer than three
quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it)
if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head
or home office.
"Potential Event of Default" means any event which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer or
to make an extension of credit and (b) to the extent practicable, from among
such dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions
(a) in which the party is incorporated, organised, managed and controlled or
considered to have its seat, (b) where an Office through which the party is
acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment, from or through
which such payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of retention
or withholding or similar right or requirement to which the payer of an
amount under Section 6 is entitled or subject (whether arising under this
Agreement, another contract, applicable law or otherwise) that is exercised
by, or imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early Termination
Date, the sum of:
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference
to any Unpaid Amounts) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation cannot be
determined or would not (in the reasonable belief of the party making
the determination) produce a commercially reasonable result.
"Specified Entity" has the meanings specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety
or otherwise) in respect of borrowed money.
"Specified Transaction "means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter
entered into between one party to this Agreement (or any Credit Support
Provider of such party or any applicable Specified Entity of such party) and
the other party to this Agreement (or any Credit Support Provider of such
other party or any applicable Specified Entity of such other party) which is
a rate swap transaction, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect to any of these
transactions), (b) any combination of these transactions and (c) any other
transaction identified as a Specified Transaction in this Agreement or the
relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment
or fee of any nature (including interest, penalties and additions thereto)
that is imposed by any government or other taxing authority in respect of any
payment under this Agreement other than a stamp, registration, documentation
or similar tax.
"Tax Event" has the meaning specified in Section 5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date
(a) if resulting from a Termination Event, all Affected Transactions and
(b) if resulting from an Event of Default, all Transactions (in either case)
in effect immediately before the effectiveness of the notice designating that
Early Termination Date (or, if "Automatic Early Termination" applies,
immediately before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount denominated
in the Termination Currency, such Termination Currency amount and, in respect
of any amount denominated in a currency other than the Termination Currency
(the "Other Currency"), the amount in the Termination Currency determined by
the party making the relevant determination as being required to purchase
such amount of such Other Currency as at the relevant Early Termination Date,
or, if the relevant Market Quotation or Loss (as the case may be), is
determined as of a later date, that later date, with the Termination Currency
at the rate equal to the spot exchange rate of the foreign exchange agent
(selected as provided below) for the purchase of such Other Currency with the
Termination Currency at or about 11:00 a.m. (in the city in which such
foreign exchange agent is located) on such date as would be customary for the
determination of such a rate for the purchase of such Other Currency for
value on the relevant Early Termination Date or that later date. The foreign
exchange agent will, if only one party is obliged to make a determination
under Section 6(e), be selected in good faith by that party and otherwise
will be agreed by the parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or
prior to such Early Termination Date and which remain unpaid as at such Early
Termination Date and (b) in respect of each Terminated Transaction, for each
obligation under Section 2(a)(i) which was (or would have been but for
Section 2(a)(iii)) required to be settled by delivery to such party on or
prior to such Early Termination Date and which has not been so settled as at
such Early Termination Date, an amount equal to the fair market value of that
which was (or would have been) required to be delivered as of the originally
scheduled date for delivery, in each case together with (to the extent
permitted under applicable law) interest, in the currency of such amounts,
from (and including) the date such amounts or obligations were or would have
been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b)
above shall be reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it shall be
the average of the Termination Currency Equivalents of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page
of this document.
J.P. MORGAN CHASE COMMERCIAL MORTGAGE
JPMORGAN CHASE BANK, N.A. SECURITIES TRUST 2006-LDP9
--------------------------------------- ---------------------------------------
(Name of Party) (Name of Party)
By: LaSalle Bank National Association,
not in its individual capacity, but
solely as Trustee
By: /s/ Andrew B. Taylor By: /s/ Andy Streepey
------------------------------------ ------------------------------------
Name: Andrew B. Taylor Name: Andy Streepey
Title: Vice President Title: Assistant Vice President
Date: December 21, 2006 Date:
Exhibit 10.12
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of December 21, 2006
between JPMORGAN CHASE BANK, N.A. and J.P. MORGAN CHASE COMMERCIAL
MORTGAGE SECURITIES TRUST 2006-LDP9
("Party A") ("Party B")
PART 1: Termination Provisions
(a) (i) "Trust Agreement" means the Pooling and Servicing Agreement dated
as of December 1, 2006, among J.P. Morgan Chase Commercial Mortgage
Securities Corp., as depositor, Midland Loan Services, Inc., as master
servicer No. 1, Capmark Finance Inc., as master servicer No. 2,
Wachovia Bank, National Association, as master servicer No. 3, LNR
Partners, Inc., as special servicer, LaSalle Bank National Association,
as trustee, and Wells Fargo Bank, N.A., as paying agent, as amended,
modified, supplemented, restated or replaced from time to time.
(ii) "Class A-3SFL Certificates" means the Commercial Mortgage
Pass-Through Certificates, Series 2006-LDP9, Class A-3SFL, issued by
Party B under the Trust Agreement.
(b) "Specified Entity" means, in relation to Party A for the purpose of:-
Section 5(a)(v) (Default under Specified none;
Transaction),
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none;
in relation to Party B for the purpose
of:
Section 5(a)(v) (Default under Specified none;
Transaction)
Section 5(a)(vi) (Cross Default), none;
Section 5(a)(vii) (Bankruptcy), none; and
Section 5(b)(iv) (Credit Event Upon Merger), none.
(c) "Specified Transaction" will have the meaning specified in Section 14.
(d) The "Breach of Agreement" provisions of Section 5(a)(ii), the
"Misrepresentation" provisions of Section 5(a)(iv), and the "Default
under Specified Transactions" provisions of Section 5(a)(v) will not
apply to Party B. The "Cross Default" provisions of Section 5(a)(vi)
will not apply to Party A or Party B.
(e) The "Credit Event Upon Merger" provisions of Section 5(b)(iv)
will not apply to Party A
will not apply to Party B.
(f) The "Automatic Early Termination" provision of Section 6(a)
will not apply to Party A
will not apply to Party B.
(g) Payments on Early Termination. For the purpose of Section 6(e):
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(iii) Both Party A and Party B agree that any amounts payable by Party B
to Party A under Section 6(e), if any, in connection with any Event of
Default or Termination Event will be payable only from collections on
the Trust Estate (as defined below), and only from funds, if any,
remaining in the Floating Rate Account (as defined in the Trust
Agreement) after all other amounts have been paid under the Class A-3SFL
Certificates (including all principal amounts outstanding) under the
Trust Agreement.
(h) "Termination Currency" means United States Dollars.
(i) Additional Termination Events. It shall be an Additional Termination
Event:
(i) if Party B fails to comply with Part 1(j) of this Schedule, in which
event Party B shall be the sole Affected Party and all Transactions
shall be Affected Transactions; or
(ii) if Party A fails to satisfy any of the requirements of Part 5(m),
within the applicable time periods set forth therein, in which event
Party A shall be the sole Affected Party and all Transactions shall be
Affected Transactions.
(j) Amendments. Party B shall deliver to Party A a copy of any proposed
amendment to the Trust Agreement, and any amendment to the Trust
Agreement that could reasonably materially and adversely affect Party A
shall be subject to Party A's prior consent.
(k) Downgrade of Party A. If a Ratings Event (as defined below) shall occur
and be continuing with respect to Party A, then Party A shall, within 5
Local Business Days of such Ratings Event, (A) give notice to Party B
of the occurrence of such Ratings Event, and (B) at Party A's option
and sole expense, (x) transfer Party A's rights and obligations under
this Agreement and all Confirmations related hereto to another party
(such party whose long term debt is being rated at least "A1" (and not
on watch for possible downgrade) by Moody's (as defined below) or rated
at least "A+" by Fitch and S&P (as defined below)), subject to Rating
Agency confirmation, and at the cost of Party A, or (y) post Eligible
Collateral on a mark-to-market basis to secure Party B's exposure, if
any, to Party A, and such Eligible Collateral shall be provided in
accordance with an ISDA Credit Support Annex to be entered into between
Party A and Party B in the form attached hereto as Exhibit A, which
will be attached hereto and made a part hereof within 10 Local Business
Days of Party A's election to post Eligible Collateral. The Eligible
Collateral to be posted and the Credit Support Annex to be executed and
delivered shall be subject to Rating Agency confirmation. Party A's
obligations to find an eligible transferee or to post Eligible
Collateral under such Credit Support Annex shall remain in effect only
for so long as a Ratings Event is continuing with respect to Party A.
For the purpose of this Part 1(k), a "Ratings Event" shall occur with
respect to Party A if the long-term senior unsecured deposit ratings of
Party A cease to be at least "A3" by Moody's Investors Service, Inc.,
or any successor thereto ("Moody's"), at least "A-" by Fitch, Inc., or
any successor thereto ("Fitch") or at least "A-" by Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc., or any
successor thereto ("S&P"), to the extent such obligations are rated by
Moody's or S&P.
The failure by Party A to either post Eligible Collateral or transfer
its rights and obligations to an eligible transferee in accordance
herewith shall constitute an Additional Termination Event for which
Party A shall be the sole Affected Party.
(l) Failure to Pay or Deliver. Section 5(a)(i) is hereby deleted in its
entirety and replaced with the following:
"Failure to Pay or Deliver. Failure by the party to make, when
due, any payment under this Agreement or delivery under Section
2(a)(i) or 2(e) required to be made by it."
PART 2: Tax Representations
(a) Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will make the following representation:-
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on (x)
the accuracy of any representations made by the other party pursuant to
Section 3(f) of this Agreement, (y) the satisfaction of the agreement
contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and (z) the
satisfaction of the agreement of the other party contained in Section
4(d) of this Agreement, provided that it shall not be a breach of this
representation where reliance is placed on clause (y) and the other
party does not deliver a form or document under Section 4(a)(iii) by
reason of material prejudice to its legal or commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will make the following representations
specified below, if any:- none
PART 3: Agreement to Deliver Documents
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents:
(a) Tax forms, documents or certificates to be delivered are:
Party required to Date by which to be
deliver document Form/Document/Certificate delivered
------------------- ------------------------- -------------------
Party A and Party B Any form, document or Upon request
certificate as may be
requested pursuant to
Section 4(a)(iii) of this
Agreement.
(b) Other documents to be delivered are:-
Covered by
Party required to Date by which to Section 3(d)
deliver document Form/Document/Certificate be delivered Representation
------------------- ------------------------- ---------------- ---------------
Party B Statements to Certificateholders As soon as Yes
of Party B available.
Party B Certified copies of all corporate Upon execution Yes
authorizations and any other and delivery of
documents with respect to the this Agreement
execution, delivery and
performance of this Agreement and
the Trust Agreement
Party A and Certificate of authority and Upon execution Yes
Party B specimen signatures of and delivery of
individuals executing this this Agreement
Agreement, and any Confirmations and thereafter
upon request of
the other party
PART 4: Miscellaneous
(a) Address for Notices. For the purpose of Section 12(a) of this
Agreement:-
Address for notice or communications to Party A:
JPMorgan Chase Bank, N.A.
270 Park Avenue
6th Floor
New York, New York 10017
Attention: Andrew Taylor
Telephone No.: 212-834-3813
Facsimile No.: 212-834-6598
with a copy to:
JPMorgan Chase Bank, N.A.
270 Park Avenue
10th Floor
New York, New York 10017
Attention: Mark Levine
Telephone No.: 212-834-9346
Facsimile No.: 212-834-6593
Address for notice or communications to Party B:
J.P. Morgan Chase Commercial Mortgage Securities Trust 2006-LDP9
c/o Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services-J.P. Morgan 2006-LDP9
with a copy to:
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60603
Attention: Global Securities and Trust Services, J.P. Morgan Chase
Commercial Mortgage Securities Trust 2006-LDP9
Telecopy No.: 312-904-1085
with a copy to:
J.P. Morgan Chase Commercial Mortgage Securities Corp.
270 Park Avenue
New York, New York 10017
Attention: Charles Lee
Telephone No.: 212-834-9328
Facsimile No.: 212-834-6593
(b) Process Agent. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10 of this Agreement:-
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party B.
(f) Credit Support Document. Details of any Credit Support Document:-
Party B agrees that only the amounts with respect to the Class A-3SFL
Certificates on deposit in the Floating Rate Account (as such terms are
defined in the Trust Agreement) held by the Paying Agent under the
Trust Agreement (such amounts, the "Trust Estate") shall constitute
security for the obligations of Party B to Party A under this Agreement.
Party A agrees that any ISDA Credit Support Annex entered into between
Party A and Party B pursuant to Part 1(k) hereof shall be a Credit
Support Document for purposes of this Agreement.
(g) Credit Support Provider.
Credit Support Provider means in relation to Party A: Not
applicable.
Credit Support Provider means in relation to Party B: Not applicable
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
its conflict of laws doctrine, other than Section 5-1401 of the General
Obligations Law).
(i) Netting of Payments. All amounts payable on the same date, in the same
currency and in respect of the same Transaction shall be netted in
accordance with Section 2(c) of this Agreement. The election contained
in the last paragraph of Section 2(c) of this Agreement shall not apply
for the purposes of this Agreement.
(j) "Affiliate" will have the meaning specified in Section 14 of this
Agreement.
PART 5: Other Provisions
(a) RESERVED.
(b) Delivery of Confirmations. For each Transaction entered into hereunder,
Party A shall promptly send to Party B a Confirmation via facsimile
transmission. Party B agrees to respond to such Confirmation within
three (3) Local Business Days, either confirming agreement thereto or
requesting a correction of any error(s) contained therein. Failure by
Party A to send a Confirmation or of Party B to respond within such
period shall not affect the validity or enforceability of such
Transaction. Absent manifest error, there shall be a presumption that
the terms contained in such Confirmation are the terms of the
Transaction.
(c) Recording of Conversations. Each party to this Agreement acknowledges
and agrees to the tape recording of conversations between trading and
marketing personnel of the parties to this Agreement whether by one or
other or both of the parties or their agents, and that any such tape
recordings may be submitted in evidence in any Proceedings relating to
the Agreement.
(d) Furnishing Specified Information. Section 4(a)(iii) is hereby amended
by inserting "promptly upon the earlier of (i)" in lieu of the word
"upon" at the beginning thereof and inserting "or (ii) such party
learning that the form or document is required" before the word "any"
on the first line thereof.
(e) Notice by Facsimile Transmission. Section 12(a) is hereby amended by
inserting the words "2(b)," between the word "Section" and the number
"5" and inserting the words "or 13(c)" between the number "6" and the
word "may" in the second line thereof.
(f) Section 3(a) of this Agreement is amended by (i) deleting the word
"and" at the end of clause (iv); (ii) deleting the period at the end of
clause (v) and inserting therein "; and "; and (iii) by inserting the
following additional representation:
"(vi) Eligible Contract Participant. Each party represents to the
other party (which representation will be deemed to be repeated
by each party on each date on which a Transaction is entered
into) that it is an "eligible contract participant" as defined
in Section 1a(12) of the U.S. Commodity Exchange Act, 7 U.S.C.
Section 1a(12)."
(g) Section 3 is revised so as to add the following Section (g) at the end
thereof:
"(g) Relationship Between Parties. Each party represents to the
other party and will be deemed to represent to the other party
on the date on which it enters into a Transaction that (absent
a written agreement between the parties that expressly imposes
affirmative obligations to the contrary for that Transaction):-
(i) Non-Reliance. It is acting for its own account, and
it has made its own independent decisions to enter
into that Transaction and as to whether that
Transaction is appropriate or proper for it based
upon its own judgment and upon advice from such
advisors as it has deemed necessary. It is not
relying on any communication (written or oral) of
the other party as investment advice or as a
recommendation to enter into that Transaction; it
being understood that information and explanations
related to the terms and conditions of a Transaction
shall not be considered investment advice or a
recommendation to enter into that Transaction.
Further, such party has not received from the other
party any assurance or guarantee as to the expected
results of that Transaction.
(ii) Evaluation and Understanding. It is capable of
evaluating and understanding (on its own behalf or
through independent professional advice), and
understands and accepts, the terms, conditions and
risks of that Transaction. It is also capable of
assuming, and assumes, the financial and other risks
of that Transaction.
(iii) Status of Parties. The other party is not acting as
an agent, fiduciary or advisor for it in respect of
that Transaction."
(h) Waiver of Right to Trial by Jury. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
(i) Non Petition. Party A hereby agrees that it will not, prior to the date
which is one year and one day after all the Class A-3SFL Certificates
issued by Party B pursuant to the Trust Agreement have been paid in
full, acquiesce, petition or otherwise invoke or cause Party B to
invoke the process of any court or governmental authority for the
purpose of commencing or sustaining a case against Party B under any
federal or state bankruptcy, insolvency or similar law or for the
purpose of appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official for Party B or any
substantial part of the property of Party B, or for the purpose of
ordering the winding up or liquidation of the affairs of Party B.
Nothing herein shall prevent Party A from participating in any such
proceeding once commenced.
(j) Limited Recourse. The obligations of Party B under this Agreement are
limited recourse obligations of Party B, payable solely from amounts
remaining in the Trust Estate after payment in full of all amounts due
to the Class A-3SFL Certificates, subject to and in accordance with the
terms of the Trust Agreement. No recourse shall be had for the payment
of any amount owing in respect of this Agreement against the trustee or
paying agent, or any officer, member, director, employee, security
holder or incorporator thereof (each, an "Affiliated Person") of Party
B or its successors or assigns for any amounts payable under this
Agreement. Upon application of the Trust Estate in accordance with the
Trust Agreement, Party A shall not be entitled to take any further
steps against Party B to recover any sums due but still unpaid
hereunder or thereunder, and all claims by Party A against Party B
hereunder and/or under the Trust Agreement shall be extinguished.
(k) Limitation of Liability. It is expressly understood and agreed by the
parties hereto that (a) this Agreement is executed and delivered by
LaSalle Bank National Association ("LaSalle"), not individually or
personally but solely as the trustee, in the exercise of the powers and
authority conferred and vested in it, (b) the representations,
undertaking and agreements herein made on the part of the Trust are
made and intended not as personal representations, undertakings and
agreements by LaSalle but are made and intended for the purpose of
binding only the Trust, (c) nothing herein contained shall be construed
as creating any liability on LaSalle, individually or personally (other
than to act with the standard of care provided under the Trust
Agreement), to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by
the parties who are signatories to this Agreement and by any person
claiming by, through or under such parties and (d) under no
circumstances shall LaSalle be personally liable for the payment of any
indebtedness or expenses of the Trust or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement.
(l) Transfer. Section 7 of the Agreement is supplemented by the additional
requirement that any transfer or assignment by Party A of its
obligations under this Agreement (including any Confirmation), and any
amendments to this Agreement (including any Confirmation), shall be
subject to Rating Agency confirmation.
(m) Compliance with Regulation AB.
(i) If at any time after the date hereof for so long as Party B is
required to file periodic reports under the Securities Exchange Act of
1934, as amended (the "Exchange Act") with respect to the Certificates,
in the reasonable determination made in good faith of the Sponsors (as
defined in the Prospectus), the aggregate "significance percentage" (as
defined in Regulation AB ("Regulation AB") under the Securities Act of
1933, as amended, and the Exchange Act) of all derivative instruments
(contemplated by Item 1115 of Regulation AB) provided by Party A and any
of its affiliates to Party B is at least 10% but less than 20%, Party A
shall, subject to subparagraph (iii) below, within five (5) Business
Days following request therefor by Party B provide the financial
information required under Item 1115(b)(1) of Regulation AB for Party A
(and for the group of affiliated entities, if applicable) (the "Item
1115(b)(1) Information"). Any such Item 1115(b)(1) Information shall be
in a form suitable for conversion to the format required for filing by
the Depositor with the Securities and Exchange Commission via the
Electronic Data Gathering and Retrieval System (EDGAR).
(ii) If at any time after the date hereof for so long as Party B is
required to file periodic reports under the Exchange Act with respect to
the Certificates, in the reasonable determination made in good faith of
the Sponsors, the aggregate "significance percentage" of all derivative
instruments (contemplated by Item 1115 of Regulation AB) provided by
Party A and any of its affiliates to Party B is at least 20%, Party A
shall, subject to subparagraph (iii) below, within five (5) Business
Days following request therefor by Party B provide the financial
information required under Item 1115(b)(2) of Regulation AB for Party A
(and for the group of affiliated entities, if applicable) (the "Item
1115(b)(2) Information", and together with the Item 1115(b)(1)
Information, the "Additional Information"). Any such Item 1115(b)(2)
Information shall be in a form suitable for conversion to the format
required for filing by the Depositor with the Securities and Exchange
Commission via the Electronic Data Gathering and Retrieval System
(EDGAR). In addition, any such Item 1115(b)(2) Information shall be
accompanied by any necessary auditor's consents.
(iii) If Party A is unable to provide any such Additional Information
if, as and when required, Party A shall, at its option, within ten (10)
Business Days following request therefor, (1) promptly post collateral
satisfactory to the Sponsors in an amount which is reasonably determined
in good faith to be sufficient to reduce the aggregate "significance
percentage" to (x) in the case of subparagraph (i) above, below 10%, and
(y) in the case of subparagraph (ii) above, provided Party A is able to
meet the requirements of subparagraph (i) above, below 20%, in each case
pursuant to a Credit Support Annex or similar agreement reasonably
satisfactory to the Sponsor, or (2) at the sole expense of Party A,
without any expense or liability to Party B, transfer or assign its
obligations under this Agreement to a substitute counterparty reasonably
acceptable to Party B that (x) is able to provide such Additional
Information if, as and when required, and (y) enters into an agreement
similar in form to this Agreement pursuant to which such substitute
counterparty agrees to provide the Additional Information if, as and
when required.
(iv) Party A's obligation to provide any such Additional Information
shall terminate beginning in any such year in which Party B's obligation
to file periodic reports under the Exchange Act has been terminated, and
shall continue to be terminated unless Party B notifies Party A that
Party B's obligations to file periodic reports under the Exchange Act
has resumed.
Accepted and agreed:
JPMORGAN CHASE BANK, N.A. J.P. MORGAN CHASE COMMERCIAL MORTGAGE
Next Section
Previous Section