J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER
NOMURA CREDIT & CAPITAL, INC.,
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of March 1, 2007
Fixed Rate Mortgage Loans
Series 2007-LDP10
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of March 1, 2007, 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 March 1, 2007 (the "Pooling and Servicing Agreement") among the Purchaser,
as depositor (the "Depositor"), Midland Loan Services, Inc. and Wachovia Bank,
National Association, as master servicers (each, a "Master Servicer"), J.E.
Robert Company, Inc., as special servicer (the "Special Servicer"), Wells Fargo
Bank, N.A., as trustee (the "Trustee") and LaSalle Bank National Association, as
co-trustee (the "Co-Trustee"), pursuant to which the Purchaser will sell the
Mortgage Loans (as defined herein) to a trust fund and certificates representing
ownership interests in the Mortgage Loans will be issued by the trust fund. For
purposes of this Agreement, the term "Mortgage Loans" refers to the mortgage
loans listed on Exhibit A 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-3S, Class A-1A, Class X, Class A-M,
Class A-MS, Class A-J, Class A-JFL, Class A-JS, Class B-S, Class C-S and Class
D-S Certificates (the "Offered Certificates") to the underwriters (the
"Underwriters") specified in the underwriting agreement dated March 26, 2007
(the "Underwriting Agreement") between the Depositor and J.P. Morgan Securities
Inc. ("JPMSI") for itself and as representative of the several underwriters
identified therein, and the Depositor will sell the Class B, Class C, Class D,
Class E, Class E-S, Class F, Class F-S, Class G, Class G-S, Class H, Class H-S,
Class J, Class K, Class L, Class M, Class N, Class P and Class NR Certificates
(the "Private Certificates") to JPMSI and UBS Securities LLC, the initial
purchasers (together with the Underwriters, the "Dealers") specified in the
certificate purchase agreement dated March 26, 2007 (the "Certificate Purchase
Agreement"), between the Depositor and JPMSI for itself and as representative of
the initial purchasers identified therein.
The sale and conveyance of the 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 $1,265,015,257.72
(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 March 26,
2007 between the Purchaser and the Seller (the "Indemnification Agreement"); and
(d) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any Companion Loan related to a Serviced Whole Loan or any
Serviced Securitized Companion Loan that is deposited into an Other
Securitization or a Regulation AB Companion Loan Securitization, the depositor
in such Other Securitization or Regulation AB Companion Loan Securitization) and
the Trustee with any Additional Form 10-D Disclosure and any Additional Form
10-K Disclosure set forth next to the Purchaser's name (only with respect to
disclosure related to Items 1117 or 1119 of Regulation AB) on Schedule X and
Schedule Y of the Pooling and Servicing Agreement within the time periods set
forth in the Pooling and Servicing Agreement.
SECTION 6. Representations and Warranties.
(a) The Seller represents and warrants to the Purchaser as of the
Closing Date that:
(i) it is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(ii) it has the power and authority to own its property and to carry
on its business as now conducted;
(iii) it has the power to execute, deliver and perform this
Agreement;
(iv) it is legally authorized to transact business in the State of
New York. The Seller is in compliance with the laws of each state in which
any Mortgaged Property is located to the extent necessary so that a
subsequent holder of the related Mortgage Loan (including, without
limitation, the Purchaser) that is in compliance with the laws of such
state would not be prohibited from enforcing such Mortgage Loan solely by
reason of any non-compliance by the Seller;
(v) the execution, delivery and performance of this Agreement by the
Seller have been duly authorized by all requisite action by the Seller's
board of directors and will not violate or breach any provision of its
organizational documents;
(vi) this Agreement has been duly executed and delivered by the
Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general
equitable principles regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vii) there are no legal or governmental proceedings pending to
which the Seller is a party or of which any property of the Seller is the
subject which, if determined adversely to the Seller, would reasonably be
expected to adversely affect (A) the transfer of the Mortgage Loans and
the Mortgage Loan documents as contemplated herein, (B) the execution and
delivery by the Seller or enforceability against the Seller of the
Mortgage Loans or this Agreement, or (C) the performance of the Seller's
obligations hereunder;
(viii) it has no actual knowledge that any statement, report,
officer's certificate or other document prepared and furnished or to be
furnished by the Seller in connection with the transactions contemplated
hereby (including, without limitation, any financial cash flow models and
underwriting file abstracts furnished by the Seller) contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading;
(ix) it is not, nor with the giving of notice or lapse of time or
both would be, in violation of or in default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which it is a party or by which it or any of its properties is bound,
except for violations and defaults which individually and in the aggregate
would not have a material adverse effect on the transactions contemplated
herein; the sale of the Mortgage Loans and the performance by the Seller
of all of its obligations under this Agreement and the consummation by the
Seller of the transactions herein contemplated do not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Seller is a party
or by which the Seller is bound or to which any of the property or assets
of the Seller is subject, nor will any such action result in any violation
of the provisions of any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Seller, or any of its properties, except for conflicts, breaches,
defaults and violations which individually and in the aggregate would not
have a material adverse effect on the transactions contemplated herein;
and no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Seller of the transactions
contemplated by this Agreement, other than any consent, approval,
authorization, order, license, registration or qualification that has been
obtained or made;
(x) it has either (A) not dealt with any Person (other than the
Purchaser or the Dealers or their respective affiliates or any servicer of
a Mortgage Loan) that may be entitled to any commission or compensation in
connection with the sale or purchase of the Mortgage Loans or entering
into this Agreement or (B) paid in full any such commission or
compensation (except with respect to any servicer of a Mortgage Loan, any
commission or compensation that may be due and payable to such servicer if
such servicer is terminated and does not continue to act as a servicer);
and
(xi) it is solvent and the sale of the Mortgage Loans hereunder will
not cause it to become insolvent; and the sale of the Mortgage Loans is
not undertaken with the intent to hinder, delay or defraud any of the
Seller's creditors.
(b) The Purchaser represents and warrants to the Seller as of the
Closing Date that:
(i) it is a corporation duly organized, validly existing, and in
good standing in the State of Delaware;
(ii) it is duly qualified as a foreign corporation in good standing
in all jurisdictions in which ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Purchaser, and the Purchaser is conducting its business so as to comply in
all material respects with the applicable statutes, ordinances, rules and
regulations of each jurisdiction in which it is conducting business;
(iii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iv) it has the power to execute, deliver and perform this
Agreement, and neither the execution and delivery by the Purchaser of this
Agreement, nor the consummation by the Purchaser of the transactions
herein contemplated, nor the compliance by the Purchaser with the
provisions hereof, will (A) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the certificate of
incorporation or by-laws of the Purchaser or any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Purchaser or any of its properties, or any indenture, mortgage,
contract or other instrument or agreement to which the Purchaser is a
party or by which it is bound, or (B) result in the creation or imposition
of any lien, charge or encumbrance upon any of the Purchaser's property
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or agreement;
(v) this Agreement constitutes a legal, valid and binding obligation
of the Purchaser enforceable against it in accordance with its terms
(except as enforcement thereof may be limited by (a) bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or
other laws affecting the enforcement of creditors' rights generally and
(b) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or law));
(vi) there are no legal or governmental proceedings pending to which
the Purchaser is a party or of which any property of the Purchaser is the
subject which, if determined adversely to the Purchaser, might interfere
with or adversely affect the consummation of the transactions contemplated
herein and in the Pooling and Servicing Agreement; to the best of the
Purchaser's knowledge, no such proceedings are threatened or contemplated
by any governmental authorities or threatened by others;
(vii) it is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Purchaser or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(viii) it has not dealt with any broker, investment banker, agent or
other person, other than the Seller, the Dealers and their respective
affiliates, that may be entitled to any commission or compensation in
connection with the purchase and sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby;
(ix) all consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for the
execution, delivery and performance of this Agreement by the Purchaser
have been obtained or made; and
(x) it has not intentionally violated any provisions of the United
States 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 Term Sheet (as defined in the Indemnification Agreement), or
items similar to the Term Sheet, including the cost of obtaining any "comfort
letters" with respect to such items; (v) the costs and expenses in connection
with the qualification or exemption of the Certificates under state securities
or blue sky laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith; (vi) the costs and expenses in connection with
any determination of the eligibility of the Certificates for investment by
institutional investors in any jurisdiction and the preparation of any legal
investment survey, including reasonable fees and disbursements of counsel in
connection therewith; (vii) the costs and expenses in connection with printing
(or otherwise reproducing) and delivering the Registration Statement, Prospectus
and Memoranda, and the reproduction and delivery of this Agreement and the
furnishing to the Underwriters of such copies of the Registration Statement,
Prospectus, Memoranda and this Agreement as the Underwriters may reasonably
request; (viii) the fees of the rating agency or agencies requested to rate the
Certificates and (ix) the reasonable fees and expenses of 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/ Dennis Schuh
--------------------------------------
Name: Dennis Schuh
Title: Executive Director
NOMURA CREDIT & CAPITAL, INC., as
Seller
By: /s/ N. Dante LaRocca
--------------------------------------
Name: N. Dante LaRocca
Title: Managing Director
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Loan # Loan Seller
------ -----------
1 NCCI
24 NCCI
26 NCCI
30 NCCI
33 NCCI
34 NCCI
35 NCCI
36 NCCI
37 NCCI
38 NCCI
39 NCCI
40 NCCI
41 NCCI
42 NCCI
43 NCCI
50 NCCI
53 NCCI
53.01 NCCI
53.02 NCCI
53.03 NCCI
53.04 NCCI
53.05 NCCI
53.06 NCCI
53.07 NCCI
53.08 NCCI
63 NCCI
64 NCCI
67 NCCI
68 NCCI
69 NCCI
72 NCCI
79 NCCI
81 NCCI
83 NCCI
84 NCCI
89 NCCI
90 NCCI
91 NCCI
95 NCCI
96 NCCI
99 NCCI
101 NCCI
107 NCCI
108 NCCI
110 NCCI
111 NCCI
113 NCCI
125 NCCI
131 NCCI
132 NCCI
138 NCCI
140 NCCI
143 NCCI
147 NCCI
148 NCCI
152 NCCI
153 NCCI
154 NCCI
163 NCCI
167 NCCI
169 NCCI
179 NCCI
191 NCCI
195 NCCI
202 NCCI
209 NCCI
219 NCCI
221 NCCI
222 NCCI
Loan # Mortgagor Name
------ --------------
1 Coconut Point Town Center, LLC
24 WALF, LLC
26 Davies Pacific, LLC
30 Jefferson at Pelican Point, L.P.
33 26030 E. Baseline Street, Inc.
34 North Pointe Apts., Inc.
35 Boardwalk Apts., Inc.
36 4355 S. Jones Blvd., Inc.
37 334 S. Westlake Avenue, Inc.
38 2016 Riverside Drive, Inc.
39 Mountainview Apts., Inc.
40 4575 Little Mountain Drive, Inc.
41 1129 E Central Avenue, Inc.
42 6851 Sepulveda Blvd., Inc.
43 The Victorian Apartments, Inc.
50 Rubicon Investments II, LLC
53 Trophy Properties IV B8A, LLC
53.01 1155 Jones Street
53.02 940-942 Hayes Street
53.03 755-757 Green Street
53.04 815 O'Farrell Street
53.05 1085 South Van Ness Avenue
53.06 720 Jones Street
53.07 626 Powell Street
53.08 1705 Octavia Street
63 MG Pinnacle Heights Apartments LLC
64 Addison Associates, LLC
67 Ruffin/Azar Huntsville Hotel, LLC
68 Daves New National, LLC and New National, LLC
69 Shea and Tatum Associates Limited Partnership
72 Worthington Meadows Columbus Associates, L.L.C.
79 Hampton Apts., Inc.
81 Kapolei Marketplace, LLC and Kapolei-57, LLC
83 The Pointe at Raiders Campus 22 LLC, The Pointe at Raiders Campus 21 LLC, The Pointe at Raiders Campus 24 LLC, The
Pointe at Raiders Campus 13 LLC, The Pointe at Raiders Campus 15 LLC, The Pointe at Raiders Campus 16 LLC, The Pointe
at Raiders Campus 17 LLC, The Pointe at Raiders Campus 18 LLC, The Pointe at Raiders Campus 19 LLC
84 Doheny V LLC, Brahms Sierra LLC
89 PCCP CS LANDCO Tanque Verde, LLC
90 Inland Riverwoods, L.L.C.
91 W Hemet Holdings LLC
95 A-S Northwest Crossing Acquisition LLC
96 455 Associates L.L.C.
99 Ashton Oaks Limited Partnership
101 MG Colonia Del Rio Apartments LLC
107 Hickory Ridge Lake Apartments LLC
108 Sagebrush Stonegate Apartments, LLC, Chavis Stonegate Apartments, LLC, R. Costanzo Stonegate Apartments, LLC, C.
Costanzo Apartments, LLC, Davis Stonegate Apartments, LLC, Defeyter Stonegate Apartments, LLC, Flaherty Stonegate
Apartments, LLC, Frisbie Stonegate Apartments, LLC, Kaus Stonegate Apartments, LLC, LIU Stonegate Apartments, LLC,
McLennan Stonegate Apartments, LLC, Ratzlaf Stonegate Apartments, LLC, Shimoda Stonegate Apartments, LLC, McDaniel
Stonegate Apartments, LLC, Goebel Stonegate Apartments, LLC, Mullen Stonegate Apartments, LLC, Ebbole Stonegate
Apartments, LLC, Encanto Stonegate Apartments, LLC, Geerdes Stonegate Apartments, LLC
110 MG Hacienda Del Rio Apartments LLC
111 GWR-B Tempe, LLC
113 One South King, LLC and South King LH, LLC
125 MB Rockford State, L.L.C.
131 DIWA, L.L.C.
132 ISIP, L.L.C.
138 CP Vineyard Center ONT LLC
140 Sierra Mobile Estates, LLC and De Baun-Sierra, LLC
143 Santiago Mobilehome Estates, LLC
147 Perry Grove Park Apartments, Ltd.
148 Parkside Village LLC
152 TLG Springcreek Apartments, LLC, TLG Springcreek Apartments 2, LLC, TLG Springcreek Apartments 3, LLC, TLG Springcreek
Apartments 4, LLC, TLG Springcreek Apartments 5, LLC, TLG Springcreek Apartments 6, LLC, TLG Springcreek Apartments 7,
LLC, TLG Springcreek Apartments 8, LLC, TLG Springcreek Apartments 9, LLC, TLG Springcreek Apartments 10, LLC, TLG
Springcreek Apartments 11, LLC
153 CP Simi Shops SV LLC
154 Wine Valley Inn, LLC
163 Olde Towne Village LLC
167 Netcom Hospitality LLC
169 Prado 825 Pine, LLC
179 8633 California LLC
191 Cedar Ridge Apartments LLC
195 Evergreen Court LLC
202 Paradise Park Co-op, Inc.
209 1001 Jefferson, LLC
219 Skylark MHP, L.P., Rancho San Manuel Limited Partnership
221 HFLP III/ Corona, LLC
222 Shri Krishna, Inc.
Loan # Property Address City State Zip Code County
------ ---------------- ---- ----- -------- ------
1 NEQ US 41 and Coconut Road Estero FL 33928 Lee
24 23600 - 23760 El Toro Road Lake Forest CA 92630 Orange
26 841 Bishop Street Honolulu HI 96813 Honolulu
30 760 South Hill Road Ventura CA 93003 Ventura
33 26030 East Baseline Street San Bernardino CA 92410 San Bernardino
34 5829 Montgomery Street Riverside CA 92503 Riverside
35 7270 8th Street Buena Park CA 90621 Orange
36 4355 South Jones Boulevard Las Vegas NV 89103 Clark
37 334 South Westlake Avenue Los Angeles CA 90057 Los Angeles
38 2016 Riverside Drive Los Angeles CA 90039 Los Angeles
39 1100 East Whittier Avenue Hemet CA 92543 Riverside
40 4575 Little Mountain Drive San Bernardino CA 92407 San Bernardino
41 1129 East Central Avenue Redlands CA 92374 San Bernardino
42 6851 Sepulveda Boulevard Van Nuys CA 91405 Los Angeles
43 3435 Webb Chapel Extension Dallas TX 75220 Dallas
50 6800 West 115th Street Overland Park KS 66211 Johnson
53 Various San Francisco CA Various San Francisco
53.01 San Francisco CA 94109 San Francisco 1155 Jones
53.02 San Francisco CA 94117 San Francisco 940 Hayes
53.03 San Francisco CA 94133 San Francisco 755 Green
53.04 San Francisco CA 94109 San Francisco 815 O'Farrell
53.05 San Francisco CA 94110 San Francisco 1085 South Van Ness
53.06 San Francisco CA 94109 San Francisco 720 Jones
53.07 San Francisco CA 94108 San Francisco 626 Powell
53.08 San Francisco CA 94109 San Francisco 1705 Octavia
63 7990 East Snyder Road Tucson AZ 85750 Pima
64 11401 Old Nuckols Road Glen Allen VA 23059 Henrico
67 5 Tranquility Base Huntsville AL 35805 Madison
68 1677 Collins Avenue Miami Beach FL 33139 Miami-Dade
69 Northeast corner of East Shea Boulevard
and North Tatum Boulevard Phoenix AZ 85028 Maricopa
72 699 Wellingshire Boulevard Worthington OH 43085 Franklin
79 3070 South Nellis Boulevard Las Vegas NV 89121 Clark
81 590 Farrington Highway Kapolei HI 96707 Honolulu
83 2315 Tennessee Boulevard Murfreesboro TN 37130 Rutherford
84 452 Old Mammoth Road Mammoth Lakes CA 93546 Mono
89 7671 East Tanque Verde Road Tuscon AZ 85715 Pima
90 N17 W24300 Riverwood Drive Pewaukee WI 53188 Waukesha
91 2701-2897 West Florida Avenue Hemet CA 92545 Riverside
95 13333 Northwest Freeway Houston TX 77040 Harris
96 455 West Fort Street Detroit MI 48226 Wayne
99 2030 Northcliffe Drive Winston-Salem NC 27106 Forsyth
101 4601 North Via Entrada Tucson AZ 85718 Pima
107 1718 West 55th Avenue Merrillville IN 46410 Lake
108 700 Rock Quarry Road Stockbridge GA 30281 Henry
110 4545 North Via Entrada Tucson AZ 85718 Pima
111 4415 South Wendler Drive Tempe AZ 85282 Maricopa
113 33 South King Street Honolulu HI 96813 Honolulu
125 6260-6380 East State Street Rockford IL 61108 Winnebago
131 2555 Twin Oaks Court Decatur IL 62526 Macon
132 3155 Beth Boulevard Decatur IL 62526 Macon
138 1610-1680 East 4th Street Ontario CA 91764 San Bernardino
140 17333 & 17225 Valley Boulevard Fontana CA 92335 San Bernardino
143 4650 East Carey Avenue Las Vegas NV 89115 Clark
147 8915 Rosedale Highway Bakersfield CA 93312 Kern
148 101 Brookside Drive and 1-63 Candlelight Lane Dover OH 44622 Tuscarawas
152 6407 Springdale Road Austin TX 78723 Travis
153 1931-2941 Cochran Street Simi Valley CA 93065 Ventura
154 1564 Copenhagen Drive Solvang CA 93463 Santa Barbara
163 790 Irving Drive Clarksville IN 47129 Clark
167 3710 Hillsborough Road Durham NC 27705 Durham
169 825 - 835 Pine Street San Francisco CA 94108 San Francisco
179 8633 California Avenue South Gate CA 90280 Los Angeles
191 2313 Grantline Road New Albany IN 47150 Floyd
195 813 Eastern Boulevard Clarksville IN 47129 Clark
202 7111 142nd Avenue North Largo FL 33771 Pinellas
209 1001 Jefferson Avenue Washington PA 15301 Washington
219 9113 Rosecrans Avenue Bellflower CA 90706 Los Angeles
221 110 Washburn Circle Corona CA 92882 Riverside
222 2316 Hanover Drive Monroe NC 28110 Union
Loan # Property Name Size Measure Interest Rate (%) Net Mortgage Interest Rate
------ ------------- ---- ------- ----------------- --------------------------
1 Coconut Point 834859 Square Feet 5.83000 5.80961
24 The Orchard at Saddleback 278461 Square Feet 6.53200 6.51161
26 Davies Pacific Center 355802 Square Feet 5.86000 5.83961
30 Pelican Point 411 Units 6.58000 6.55961
33 Sierra Springs 220 Units 5.59000 5.56961
34 North Pointe - Riverside 140 Units 5.59000 5.56961
35 Boardwalk / Park Place 100 Units 5.59000 5.56961
36 Crosswinds 64 Units 5.64000 5.61961
37 West View (West Lake) 57 Units 5.59000 5.56961
38 2016 Riverside Office 30748 Square Feet 5.59000 5.56961
39 Mountain View Townhouse 56 Units 5.59000 5.56961
40 Mountain Gate 44 Units 5.59000 5.56961
41 Central Park 40 Units 5.64000 5.61961
42 Sherman Pointe 36 Units 5.59000 5.56961
43 The Victorian 127 Units 5.59000 5.56961
50 Overland Park Trade Center 651648 Square Feet 5.90000 5.87961
53 Lembi Multifamily Portfolio 291 Units 5.99000 5.96961
53.01 60 Units 00006 5.99000 16738596.49123
53.02 40 Units 00006 5.99000 5854385.96491
53.03 30 Units 00006 5.99000 4836052.63158
53.04 42 Units 00006 5.99000 4836052.63158
53.05 30 Units 00006 5.99000 4695877.19298
53.06 43 Units 00006 5.99000 4349561.40351
53.07 34 Units 00006 5.99000 4122807.01754
53.08 12 Units 00006 5.99000 1566666.66667
63 Pinnacle Heights 310 Units 5.94000 5.86961
64 Addison at Wyndham 312 Units 5.75000 5.72961
67 Marriott Hotel Huntsville AL 290 Rooms 5.86000 5.83961
68 National Hotel 151 Rooms 6.03000 6.00961
69 Paradise Village Gateway 294820 Square Feet 5.38500 5.36461
72 Worthington Meadows 528 Units 5.86000 5.83961
79 The Hamptons 492 Units 5.59000 5.56961
81 The Marketplace at Kapolei 64106 Square Feet 6.00000 5.96461
83 College Suites-Murfreesboro TN 216 Units 5.79000 5.76961
84 Sierra Center Mammoth Lakes 75529 Square Feet 6.25000 6.22961
89 Tanque Verde Apartments 428 Units 6.86700 6.84661
90 AT&T Pewaukee 176960 Square Feet 5.94000 5.91961
91 Hemet Village 87986 Square Feet 5.53000 5.50961
95 Northwest Crossing 112023 Square Feet 6.09000 6.01961
96 455 West Fort Street 120000 Square Feet 6.18000 6.11961
99 Ashton Oaks Apartments 288 Units 6.10000 6.07961
101 Colonia Del Rio 176 Units 5.94000 5.86961
107 Hickory Ridge 395 Units 6.24000 6.21961
108 Stonegate at Eagle's Landing 167 Units 5.67000 5.64961
110 Hacienda Del Rio 248 Units 5.94000 5.86961
111 Corporate Fountains 110769 Square Feet 6.16300 6.14261
113 One South King 82829 Square Feet 5.64000 5.61961
125 State Street Market 193657 Square Feet 5.62300 5.60261
131 Twin Oaks Apartments 202 Units 5.71000 5.68961
132 Beth Boulevard Apartments 122 Units 5.71000 5.68961
138 Vineyard Freeway Center 49008 Square Feet 5.69000 5.66961
140 Sierra Mobile Estates 214 Pads 5.92000 5.89961
143 Santiago MHP 185 Pads 6.49000 6.46961
147 Ashley Furniture Retail Center - Bakersfield 40347 Square Feet 5.86000 5.83961
148 Heritage Village & Parkside Apartments 150 Units 5.84000 5.81961
152 Spring Creek Apartments (Austin) 204 Units 5.66000 5.63961
153 Target Center Shops 22812 Square Feet 6.05000 6.02961
154 Wine Valley Inn 63 Rooms 6.38000 6.35961
163 Olde Towne 156 Units 5.84000 5.81961
167 Quality Inn & Suites - Durham 115 Rooms 6.16000 6.13961
169 Pierre Suites 32 Units 6.18000 6.09961
179 California Senior Plaza 69 Units 6.22000 6.15961
191 Cedar Ridge 112 Units 5.84000 5.81961
195 Evergreen 125 Units 5.84000 5.81961
202 Paradise Park ROC 108 Pads 6.08000 6.05961
209 Rite Aid - Washington, PA 11060 Square Feet 5.77000 5.74961
219 Skylark MHP 46 Pads 6.12000 6.09961
221 Corona Auto Center 19500 Square Feet 5.87000 5.82961
222 Best Western- Monroe 64 Rooms 6.39000 6.29961
Loan # Original Balance Cutoff Balance Term Rem. Term Maturity/ARD Date Amort. Term
------ ---------------- -------------- ---- --------- ----------------- -----------
1 230,000,000 230,000,000 120 117 12/10/16 0
24 100,000,000 100,000,000 120 118 01/11/17 0
26 95,000,000 95,000,000 120 116 11/11/16 0
30 72,000,000 72,000,000 60 59 02/11/12 0
33 13,270,900 13,200,958 120 115 10/11/16 360
34 12,361,900 12,296,749 120 115 10/11/16 360
35 8,441,400 8,396,911 120 115 10/11/16 360
36 4,428,000 4,404,894 120 115 10/11/16 360
37 3,960,900 3,940,025 120 115 10/11/16 360
38 3,900,400 3,879,844 120 115 10/11/16 360
39 3,258,700 3,241,526 120 115 10/11/16 360
40 3,181,000 3,164,235 120 115 10/11/16 360
41 2,839,000 2,824,185 120 115 10/11/16 360
42 2,715,900 2,701,586 120 115 10/11/16 360
43 2,200,000 2,188,405 120 115 10/11/16 360
50 55,000,000 55,000,000 60 59 02/11/12 0
53 47,000,000 47,000,000 60 55 10/11/11 0
53.01 16,738,596 60 55 40827 01/00/00 0
53.02 5,854,386 60 55 40827 01/00/00 0
53.03 4,836,053 60 55 40827 01/00/00 0
53.04 4,836,053 60 55 40827 01/00/00 0
53.05 4,695,877 60 55 40827 01/00/00 0
53.06 4,349,561 60 55 40827 01/00/00 0
53.07 4,122,807 60 55 40827 01/00/00 0
53.08 1,566,667 60 55 40827 01/00/00 0
63 32,937,000 32,937,000 120 120 03/11/17 0
64 30,850,000 30,850,000 120 120 03/11/17 0
67 30,000,000 30,000,000 120 120 03/11/17 360
68 30,000,000 30,000,000 60 59 02/11/12 360
69 30,000,000 30,000,000 60 60 03/11/12 0
72 27,000,000 27,000,000 120 118 01/11/17 0
79 23,565,900 23,441,700 120 115 10/11/16 360
81 22,560,000 22,560,000 120 120 03/11/17 0
83 21,120,000 21,120,000 120 119 02/11/17 360
84 19,500,000 19,500,000 60 59 02/01/12 0
89 17,300,000 17,300,000 60 52 07/11/11 0
90 17,212,195 17,212,195 120 119 02/11/17 0
91 17,000,000 17,000,000 120 117 12/11/16 420
95 15,400,000 15,400,000 120 119 02/11/17 360
96 15,000,000 15,000,000 120 119 02/11/17 240
99 14,250,000 14,250,000 120 118 01/01/17 360
101 14,102,000 14,102,000 120 120 03/11/17 0
107 13,220,000 13,220,000 120 119 02/11/17 360
108 13,000,000 13,000,000 120 119 02/11/17 360
110 12,560,000 12,560,000 120 120 03/11/17 0
111 12,500,000 12,500,000 72 69 12/11/12 0
113 12,185,000 12,185,000 120 119 02/11/17 0
125 10,450,000 10,450,000 60 60 03/11/12 0
131 7,500,000 7,500,000 120 120 03/11/17 360
132 2,200,000 2,200,000 120 120 03/11/17 360
138 8,400,000 8,400,000 60 58 01/11/12 0
140 8,200,000 8,200,000 60 58 01/11/12 0
143 7,800,000 7,800,000 60 53 08/11/11 360
147 7,200,000 7,177,827 120 117 12/11/16 360
148 7,120,000 7,120,000 120 119 02/11/17 360
152 6,940,000 6,940,000 84 82 01/11/14 360
153 6,800,000 6,800,000 60 58 01/11/12 0
154 6,750,000 6,750,000 60 60 03/11/12 360
163 6,190,000 6,190,000 120 119 02/11/17 360
167 6,000,000 5,982,044 120 118 01/01/17 300
169 5,939,100 5,939,100 120 119 02/06/17 0
179 5,100,000 5,093,371 120 119 02/11/17 360
191 4,225,000 4,225,000 120 119 02/11/17 360
195 3,920,000 3,920,000 120 119 02/11/17 360
202 3,650,000 3,650,000 120 117 12/11/16 360
209 3,100,000 3,100,000 120 120 03/11/17 360
219 2,540,000 2,540,000 60 58 01/11/12 0
221 2,175,000 2,175,000 120 117 12/11/16 360
222 2,150,000 2,150,000 120 120 03/01/17 300
Loan # Rem. Amort. Monthly Debt Service Servicing Fee Rate Accrual Type ARD (Y/N)
------ ----------- -------------------- ------------------ ------------ ---------
1 0 1,132,936 0.02000 Actual/360 No
24 0 551,894 0.02000 Actual/360 No
26 0 470,360 0.02000 Actual/360 No
30 0 400,283 0.02000 Actual/360 No
33 355 76,102 0.02000 Actual/360 No
34 355 70,889 0.02000 Actual/360 No
35 355 48,407 0.02000 Actual/360 No
36 355 25,532 0.02000 Actual/360 No
37 355 22,714 0.02000 Actual/360 No
38 355 22,367 0.02000 Actual/360 No
39 355 18,687 0.02000 Actual/360 No
40 355 18,241 0.02000 Actual/360 No
41 355 16,370 0.02000 Actual/360 No
42 355 15,574 0.02000 Actual/360 No
43 355 12,616 0.02000 Actual/360 No
50 0 274,172 0.02000 Actual/360 No
53 0 237,867 0.02000 Actual/360 No
53.01 - No
53.02 - No
53.03 - No
53.04 - No
53.05 - No
53.06 - No
53.07 - No
53.08 - No
63 0 165,303 0.07000 Actual/360 No
64 0 149,876 0.02000 Actual/360 No
67 360 177,174 0.02000 Actual/360 No
68 360 180,444 0.02000 Actual/360 No
69 0 136,495 0.02000 Actual/360 No
72 0 133,681 0.02000 Actual/360 No
79 355 135,138 0.02000 Actual/360 No
81 0 114,367 0.03500 Actual/360 No
83 360 123,788 0.02000 Actual/360 No
84 0 102,973 0.02000 Actual/360 No
89 0 100,374 0.02000 Actual/360 No
90 0 85,200 0.02000 30/360 Yes
91 420 91,627 0.02000 Actual/360 No
95 360 93,224 0.07000 Actual/360 No
96 240 109,028 0.06000 Actual/360 Yes
99 360 86,354 0.02000 Actual/360 No
101 0 70,774 0.07000 Actual/360 No
107 360 81,312 0.02000 Actual/360 No
108 360 75,205 0.02000 Actual/360 No
110 0 63,036 0.07000 Actual/360 No
111 0 65,090 0.02000 Actual/360 No
113 0 58,065 0.02000 Actual/360 No
125 0 48,967 0.02000 30/360 No
131 360 43,578 0.02000 Actual/360 No
132 360 12,783 0.02000 Actual/360 No
138 0 40,383 0.02000 Actual/360 No
140 0 41,015 0.02000 Actual/360 No
143 360 49,250 0.02000 Actual/360 No
147 357 42,522 0.02000 Actual/360 Yes
148 360 41,958 0.02000 Actual/360 No
152 360 40,104 0.02000 Actual/360 No
153 0 34,759 0.02000 Actual/360 No
154 360 42,133 0.02000 Actual/360 No
163 360 36,478 0.02000 Actual/360 No
167 298 39,247 0.02000 Actual/360 No
169 0 31,011 0.08000 Actual/360 No
179 359 31,302 0.06000 Actual/360 No
191 360 24,898 0.02000 Actual/360 No
195 360 23,101 0.02000 Actual/360 No
202 360 22,072 0.02000 Actual/360 No
209 360 18,130 0.02000 Actual/360 Yes
219 0 13,134 0.02000 Actual/360 No
221 360 12,859 0.04000 Actual/360 No
222 300 14,370 0.09000 Actual/360 No
Loan # ARD Step Up (%) Title Type Crossed Loan Originator/Loan Seller
------ --------------- ---------- ------------ ----------------------
1 Fee/Leasehold NCCI
24 Fee NCCI
26 Fee NCCI
30 Fee NCCI
33 Fee B NCCI
34 Fee B NCCI
35 Fee B NCCI
36 Fee B NCCI
37 Fee B NCCI
38 Fee B NCCI
39 Fee B NCCI
40 Fee B NCCI
41 Fee B NCCI
42 Fee B NCCI
43 Fee B NCCI
50 Fee NCCI
53 Fee NCCI
53.01 Fee NCCI
53.02 Fee NCCI
53.03 Fee NCCI
53.04 Fee NCCI
53.05 Fee NCCI
53.06 Fee NCCI
53.07 Fee NCCI
53.08 Fee NCCI
63 Fee NCCI
64 Fee NCCI
67 Leasehold NCCI
68 Fee NCCI
69 Fee NCCI
72 Fee NCCI
79 Fee NCCI
81 Leasehold NCCI
83 Fee NCCI
84 Fee NCCI
89 Fee NCCI
90 Lesser of (a) the maximum rate permitted by the law, or (b) 7.94% Fee NCCI
91 Fee NCCI
95 Fee NCCI
96 Greater of (i) IR +2% or (ii) TR +5% Fee NCCI
99 Fee NCCI
101 Fee NCCI
107 Fee NCCI
108 Fee NCCI
110 Fee NCCI
111 Fee NCCI
113 Fee/Leasehold NCCI
125 Fee NCCI
131 Fee E NCCI
132 Fee E NCCI
138 Fee NCCI
140 Fee NCCI
143 Fee NCCI
147 Greater of IR +2% or TR+1.25%+2% Fee NCCI
148 Fee NCCI
152 Fee NCCI
153 Fee NCCI
154 Fee NCCI
163 Fee NCCI
167 Fee NCCI
169 Fee NCCI
179 Fee NCCI
191 Fee NCCI
195 Fee NCCI
202 Fee NCCI
209 Greater of IR +2% or TR+1.17%+2% Fee NCCI
219 Fee NCCI
221 Fee NCCI
222 Fee NCCI
Loan # Guarantor
------ ---------
1 Coconut Point Town Center, LLC
24 WALF, LLC
26 James C. Reynolds
30 JPI Multifamily Investments, L.P.
33 J.K. Properties, Inc.
34 J.K. Properties, Inc.
35 J.K. Properties, Inc.
36 J.K. Properties, Inc.
37 J.K. Properties, Inc.
38 J.K. Properties, Inc.
39 Woodman Realty, Inc.
40 J.K. Properties, Inc.
41 J.K. Properties, Inc.
42 J.K. Properties, Inc.
43 J.K. Properties, Inc.
50 Sharon Altenbach, Arthur G. Weiss
53 Frank E. Lembi, Walter Lembi
53.01
53.02
53.03
53.04
53.05
53.06
53.07
53.08
63 Mark Gleiberman , Hanna Nora Gleiberman
64 Marcus M. Weinstein
67 George A. Azar, Phillip G. Ruffin
68 Claude Dray
69 Shea and Tatum Associates Limited Partnership
72 Brent D. Crawford, Robert C. Hoying
79 J.K. Properties, Inc.
81 Sam Rahim Siam, Behzad Bandari
83 Joel O'Hayon-Crosby, Coni Jo Papin, Richard Rose, Sharon Rose, Carlos A.G. Vignon, David S. Wier, Greta J. Wier, Roger
O. Danley, Nancy B. Danley, William Augenstein, Christopher Beck, Howard Johnson, Solange Johnson, Blaine Charles
Juchau, Barbara Fox Juchau
84 Jerry L. Preston, Viviane Brahms
89 Mark Lester, David Rosenbaum
90 Inland Real Estate Exchange Corporation
91 W Hemet Holdings LLC
95 Jason R. Larson, Touchmark Living Centers, Inc.
96 Gary Torgow
99 Fabrizio Lucchese, William Myers
101 Mark Gleiberman, Hanna Nora Gleiberman
107 Brad Galinson, Jeff Lubow
108 Robert P. Jacobsen
110 Mark Gleiberman, Hanna Nora Gleiberman
111 Erik S. Good, Timothy B. Good, Bruce L. Way, Nathan L. Way
113 James C. Reynolds
125 MB Rockford State, L.L.C., Minto Builders (Florida), Inc.
131 Carlos P. Capati
132 Carlos P. Capati
138 William R. Rothacker
140 Peter DeBaun, Gordon Meyer
143 Kim W. Eggleston
147 Alvin R. Perry
148 Brad Galinson, Jeff Lubow
152 David Lindahl, Lawrence Fine, Brandon Mattes, Richard Cohn, Anna Stanislowski, David Friedman, Joan Deddo, Terry Austin,
Sonny Byun
153 William R. Rothacker
154 Larry Broughton
163 Brad Galinson, Jeff Lubow
167 Anuj Mittal, Pradeep Sharma
169 Irvin Taylor, Craig Greenwood
179 Percival Vaz
191 Brad Galinson, Jeff Lubow
195 Brad Galinson, Jeff Lubow
202 Paradise Park Co-op, Inc.
209 John F. Tsern
219 Kim W. Eggleston
221 Jeffrey F. Hermanson
222 Prakash B. Desai
Loan # Letter of Credit Upfront CapEx Reserve Upfront Eng. Reserve
------ ---------------- --------------------- --------------------
1 No 0.00 0.00
24 No 0.00 0.00
26 No 0.00 0.00
30 No 0.00 28,400.00
33 No 0.00 6,875.00
34 No 0.00 25,954.00
35 No 0.00 250.00
36 No 0.00 0.00
37 No 0.00 9,175.00
38 No 0.00 0.00
39 No 0.00 12,700.00
40 No 0.00 7,950.00
41 No 0.00 0.00
42 No 0.00 3,125.00
43 No 0.00 0.00
50 No 0.00 0.00
53 No 200,000.00 91,188.00
53.01
53.02
53.03
53.04
53.05
53.06
53.07
53.08
63 No 0.00 9,000.00
64 No 0.00 0.00
67 No 0.00 0.00
68 No 0.00 6,250.00
69 No 0.00 0.00
72 No 0.00 168,000.00
79 No 0.00 0.00
81 No 0.00 0.00
83 No 500,000.00 0.00
84 No 250,000.00 0.00
89 No 0.00 7,125.00
90 No 0.00 0.00
91 No 0.00 0.00
95 No 0.00 0.00
96 No 0.00 0.00
99 No 0.00 0.00
101 No 0.00 0.00
107 No 0.00 0.00
108 No 200,400.48 0.00
110 No 0.00 0.00
111 No 0.00 16,875.00
113 No 400,000.00 0.00
125 No 0.00 0.00
131 No 0.00 28,500.00
132 No 0.00 17,408.75
138 No 30,000.00 0.00
140 No 0.00 0.00
143 No 0.00 0.00
147 No 12,105.00 0.00
148 No 0.00 0.00
152 No 0.00 10,875.00
153 No 7,500.00 0.00
154 No 1,480,000.00 0.00
163 No 0.00 0.00
167 No 0.00 5,625.00
169 No 0.00 16,500.00
179 No 0.00 0.00
191 No 0.00 0.00
195 No 0.00 0.00
202 No 0.00 0.00
209 No 0.00 0.00
219 No 0.00 0.00
221 No 0.00 0.00
222 No 0.00 0.00
(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.
(44) Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, (b) to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent with
its capital markets conduit lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property, in each case in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the
improvements located at the Mortgaged Property, and not less than the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the Mortgaged Property, and the policy contains no provisions for a deduction
for depreciation.
Defined Terms:
The term "Allocated Loan Amount" shall mean, for each Mortgaged
Property, the portion of principal of the related Mortgage Loan allocated to
such Mortgaged Property for certain purposes (including determining the release
prices of properties, if permitted) under such Mortgage Loan as set forth in the
related loan documents. There can be no assurance, and it is unlikely, that the
Allocated Loan Amounts represent the current values of individual Mortgaged
Properties, the price at which an individual Mortgaged Property could be sold in
the future to a willing buyer or the replacement cost of the Mortgaged
Properties.
The term "Anticipated Repayment Date" shall mean the date on which all
or substantially all of any Excess Cash Flow is required to be applied toward
prepayment of the related Mortgage Loan and on which any such Mortgage Loan
begins accruing Excess Interest.
The term "ARD Loan" shall have the meaning assigned thereto in the
Pooling and Servicing Agreement.
The term "Environmental Site Assessment" shall mean a Phase I
environmental report meeting the requirements of the American Society for
Testing and Materials, and, if in accordance with customary industry standards a
reasonable lender would require it, a Phase II environmental report, each
prepared by a licensed third party professional experienced in environmental
matters.
The term "Excess Cash Flow" shall mean the cash flow from the Mortgaged
Property securing an ARD Loan after payments of interest (at the Mortgage
Interest Rate) and principal (based on the amortization schedule), and (a)
required payments for the tax and insurance fund and ground lease escrows fund,
(b) required payments for the monthly debt service escrows, if any, (c) payments
to any other required escrow funds and (d) payment of operating expenses
pursuant to the terms of an annual budget approved by the applicable Master
Servicer and discretionary (lender approved) capital expenditures.
The term "Excess Interest" shall mean any accrued and deferred interest
on an ARD Loan in accordance with the following terms. Commencing on the
respective Anticipated Repayment Date each ARD Loan (pursuant to its existing
terms or a unilateral option, as defined in Treasury Regulations under Section
1001 of the Code, in the Mortgage Loans exercisable during the term of the
Mortgage Loan) generally will bear interest at a fixed rate (the "Revised Rate")
per annum equal to the Mortgage Interest Rate plus a percentage specified in the
related Mortgage Loan documents. Until the principal balance of each such
Mortgage Loan has been reduced to zero (pursuant to its existing terms or a
unilateral option, as defined in Treasury Regulations under Section 1001 of the
Code, in the Mortgage Loans exercisable during the term of the Mortgage Loan),
such Mortgage Loan will only be required to pay interest at the Mortgage
Interest Rate and the interest accrued at the excess of the related Revised Rate
over the related Mortgage Interest Rate will be deferred (such accrued and
deferred interest and interest thereon, if any, is "Excess Interest").
The term "in reliance on" shall mean that:
(a) the Seller has examined and relied in whole or in part upon
one or more of the specified documents or other information in connection
with a given representation or warranty;
(b) that the information contained in such document or otherwise
obtained by the Seller appears on its face to be consistent in all material
respects with the substance of such representation or warranty;
(c) the Seller's reliance on such document or other information is
consistent with the standard of care exercised by prudent lending
institutions originating commercial mortgage loans; and
(d) although the Seller is under no obligation to verify
independently the information contained in any document specified as being
relied upon by it, the Seller believes the information contained therein to
be true, accurate and complete in all material respects and has no actual
knowledge of any facts or circumstances which would render reliance thereon
unjustified without further inquiry.
The term "Mortgage Interest Rate" shall mean the fixed rate of interest
per annum that each Mortgage Loan bears as of the Cut-off Date.
The term "Permitted Encumbrances" shall mean:
(a) the lien of current real property taxes, water charges, sewer
rents and assessments not yet delinquent or accruing interest or penalties;
(b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record acceptable to mortgage lending
institutions generally and referred to in the related mortgagee's title
insurance policy;
(c) other matters to which like properties are commonly subject,
and
(d) the rights of tenants, as tenants only, whether under ground
leases or space leases at the Mortgaged Property.
which together do not materially and adversely affect the related
Mortgagor's ability to timely make payments on the related Mortgage Loan,
which do not materially interfere with the benefits of the security
intended to be provided by the related Mortgage or the use, for the use
currently being made, the operation as currently being operated, enjoyment,
value or marketability of such Mortgaged Property, provided, however, that,
for the avoidance of doubt, Permitted Encumbrances shall exclude all pari
passu, second, junior and subordinated mortgages but shall not exclude
mortgages that secure other Mortgage Loans or Companion Loans that are
cross-collateralized with the related Mortgage Loan.
Other. For purposes of these representations and warranties, the term
"to the Seller's knowledge" shall mean that no officer, employee or agent of the
Seller responsible for the underwriting, origination or sale of the Mortgage
Loans or of any servicer responsible for servicing the Mortgage Loan on behalf
of the Seller, believes that a given representation or warranty is not true or
is inaccurate based upon the Seller's reasonable inquiry and during the course
of such inquiry, no such officer, employee or agent of the Seller has obtained
any actual knowledge of any facts or circumstances that would cause such person
to believe that such representation or warranty was inaccurate. Furthermore, all
information contained in documents which are part of or required to be part of a
Mortgage File shall be deemed to be within the Seller's knowledge. For purposes
of these representations and warranties, the term "to the Seller's actual
knowledge" shall mean that an officer, employee or agent of the Seller
responsible for the underwriting, origination and sale of the Mortgage Loans
does not actually know of any facts or circumstances that would cause such
person to believe that such representation or warranty was inaccurate.
EXHIBIT C
JPMCC 2007-LDP10
Exceptions to Representations for Nomura Loans
Representation # (4)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
California Senior Plaza A portion of the tenant mix consists of Section 8 preservation
tenant-based assistance.
Sierra Mobile Estates The subject property is subject to rent control by the City of
Fontana, which allows annual CPI increases of rents and pass-through
expenses.
Representation # (6)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
California Senior Plaza A portion of the tenant mix consists of Section 8 preservation
tenant-based assistance.
Sierra Mobile Estates The subject property is subject to rent control by the City of Fontana,
which allows annual CPI increases of rents and pass-through expenses.
Representation # (8)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
California Senior Plaza A portion of the tenant mix consists of Section 8 preservation
tenant-based assistance.
Sierra Mobile Estates The subject property is subject to rent control by the City of Fontana,
which allows annual CPI increases of rents and pass-through expenses.
Representation # (9)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Stonegate at Eagles Landing 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 y the mortgagor and tenant. The operating lease is
subordinate by its terms.
Representation # (10(a))
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Spring Creek Apartments Liability for each tenant in common is limited to their contribution.
(Austin), Northwest Crossing,
Skylark MHP, Sierra Center
Mammoth Lakes, Sierra Mobile
Estates, Stonegate at Eagles
Landing, College Suites -
Murfreesboro, TN, Marketplace
at Kapolei
State Street Market; AT&T Only the mortgagor is liable for a breach of the environmental
Pewaukee covenants. Liability does not go to actual waste but to acts related
to the removal or disposal of any portion of the property after an
event of default.
Coconut Point, Hemet Village, Only the mortgagor is liable for the carveouts.
Paradise Park ROC
The Orchard at Saddleback Only the mortgagor is liable for the environmental carveouts. There
is no entity or warm body on the remaining carveouts.
Paradise Village Gateway There is no entity or warm body on the carveouts.
Marriott - Huntsville An act, omission or event described as an event of default in the loan
documents relating to one of Phillip Ruffin or George Azar shall not
constitute an event of default so long as i) there is no other event of
default, ii) such act, omission or event does not have a material
adverse effect on the property and iii) the other indemnitor executes
such documents as Lender may reasonably request to reaffirm his
obligations. The actions of one indemnitor related to bankruptcy,
collusion or interference shall not result in liability for the other
indemnitor. All indemnities expire four years after loan payoff.
Representation # (11)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Coconut Point Pursuant to the terms of the mortgage loan documents, the air rights
have been released.
Representation # (12)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Beth Boulevard Apartments, Properties may be released from the pool two years from the date of
Twin Oaks Apartments securitization based on final allocated loan amounts, subject to
110% defeasance and maintaining a minimum 1.25x DSCR, based on a 30
year amortization, based on Lender's underwritten Net Operating
Income. Additionally, there must be a minimum LTV of 75% on the
remaining property.
2016 Riverside Office, Property(ies) may be released from the pool two years from
Boardwalk/Park Place, Central securitization based on final allocated loan amounts subject to 110%
Park, Crosswinds, Mountain defeasance and maintaining a 1.20x DSCR and 80% LTV on the remaining
Gate, Mountain View properties in that sub-pool or 100% defeasance and maintaining a
Townhouse, North Pointe - 1.25x DSCR and 75% LTV on the remaining properties in that pool.
Riverside, Sherman Pointe,
Sierra Springs, The Property(ies) may be released from the pool two years from closing,
Victorian, West View (West pursuant to an "ARMS Length Transaction", with no event of default, so
Lake) long as the remaining properties maintain not less than 1.20x DSCR and
LTV of not greater than 80%, subject to Right to Transfer provision
within the loan documents.
Paradise Park ROC The borrower is permitted to partially prepay up to 10% of the balance
of the Loan (over the life thereof) without penalty from the proceeds
of sales of additional shares of Borrower.
Lembi Multifamily Portfolio Lender will allow for the individual release of the properties after
the Lockout Period pursuant to the following conditions: (i) no event
of default, (ii) paydown of the Loan proceeds at 120% of the allocated
loan amount attributable to the released collateral, (iii) payment of
the associated Defeasance penalty, (iv) a DSCR of no less than the
greater of 1.10:1 or the DSCR prior to the partial release, and (v) the
LTV on the remaining collateral must not exceed 85.9%.
Coconut Point Non income producing parcels may be released provided (i) no material
adverse effect, (ii) REMIL opinion and (iii) remaining property
complies with all applicable laws and remains separate tax parcel
Air rights parcel may be released in connection with development of
residential condominiums subject to terms set forth in the loan
agreement
Representation # (16)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Addison at Wyndham Apartments The Borrower is to add 7 parking spaces within 60 days of loan closing
to bring parking into conformity.
Spring Creek Apartments The Borrower is to add 18 parking spaces within 30 days of loan closing
to bring parking into conformity.
National Hotel There are 2 open permits (one for a canvas awning installation and
another for installation of a cobble system over an existing concrete
drive). The estimated cost to complete such installation is $10,000.
Accordingly, Borrower has established with the Lender a reserve in the
amount of $12,500. Borrower covenants and agrees to satisfy the Permit
Requirements within 60 days of loan closing.
Rite Aid - Washington, PA, A copy of the certificate of occupancy was not available. Per a
Wine Valley Inn zoning report the absence of a certification of occupancy on file is
not considered a violation.
Lembi Multifamily Portfolio At 1155 Jones Street, there are 6 "illegal" units (units in excess of
the number permitted in the certificate of occupancy). Recourse
carveouts were taken for any losses associated with the illegal units.
Representation # (17)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Northwest Crossing The property is part, but not all of a single tax lot. Borrower has
escrowed 125% of the estimated 2007 tax amount allocated to the
additional portion of the property ("Parcel Two"). Borrower has agreed
to cause all taxing authorities to treat the Property and Parcel Two as
separate tax parcels, and has indemnified Lender against any cost or
loss related to the failure of Borrower to properly subdivide the
Property and Parcel Two
Representation # (18)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Wine Valley Inn A few of the buildings encroach upon easements. Borrower provided
recourse carveout to the extent of losses in the event that the owner
of the easements compels removal of any portion of the improvements.
Representation # (20)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
One South King The ground lease generally does not conform with the representations
and warranties. The ground lessor is a borrower under the mortgage,
note and other loan documents and the ground lease terminates upon
foreclosure.
455 West Fort Street A 50 year ground lease effective in 1968 and expiring in 2018 covering
the parking lot of the property is filed of record. After investigating
the chain of title and history of the property, it was determined that
the ground lease was of no effect. Title coverage was provided.
Representation # (19(a))
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
State Street Market An immediate repair reserve was not collected at closing; however, the
Mortgagor is required to repair all items that are life safety or code
violations within nine months of closing. If Mortgagor fails to repair
items that are life safety, code violations or are greater than 0.10%
of the loan amount within nine months of closing, the Mortgagor is
required to escrow funds equivalent to the related Deferred Maintenance
costs identified by Engineer.
455 West Fort Street, Quality An escrow for immediate repairs was not taken at closing.
Inn and Suites - Durham, The
Marketplace at Kapolei
Representation # (22)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
All Nomura Loans Nomura generally requires an AM Best rating of A:IX.
State Street Market, AT&T If any of the policies of insurance contain an exclusion from
Pewaukee coverage for acts of terrorism, Mortgagor shall not be required to
obtain such coverage provided (I) an Inland entity executes a guaranty,
in form and substance satisfactory to Lender, guaranteeing in the event
of any act of terrorism, payment to Lender of any sums that would have
been payable to Lender under such coverage (which shall be applied by
Lender in accordance with 6.4 hereof), and (II) the Inland entity
maintains a net worth of at least $300,000,000 (as determined by such
entity's most recent audited financial statements), such entity
maintains a direct or indirect ownership interest in Mortgagor, and the
aggregate loan to value ratio (as determined by Lender) ("LTV") for all
properties on which such entity has a direct or indirect ownership
interest shall not exceed 60%, however, the Inland entity may exceed
the 60% LTV for a period not to exceed six (6) months out of any twelve
(12) month period either (1) during the time period when the Inland
entity is offering securities to the public or 2) when in the business
judgment of the Inland entity, exceeding an LTV of 60% is necessary
given existing circumstances
455 West Fort Street, Ashley Tenant may self insure.
Furniture Retail Center -
Bakersfield, 2016 Riverside
Office
Rite Aid - Washington, PA Tenant may self insure. Borrower may elect to not obtain loss of
business income or terrorism insurance so longs as Borrower and
Guarantor of the loan each remain personally liable for losses to
Lender.
National Hotel Windstorm Insurance will not be required so long as (i) Borrower and
Guarantor shall be personally liable for any Losses to Lender resulting
from a lack of windstorm coverage, and (ii) Borrower and/or Guarantor
maintains cash or marketable securities of at least $10,000,000 in a
financial institution of Borrower's choice in the United States in an
account identified to Lender and which cannot be liquidated without
Lender's consent.
Davies Pacific Center Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $75,000.
One South King Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $25,000.
Marriott Huntsville Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds 300% of the current premium.
The Orchard at Saddleback Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $65,000.
Coconut Point If insurance is provided by a syndicate of five or more insurers, 40%
of the coverage is permitted to be from BBB rated insurers.
Representation # (24)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
2016 Riverside Office, There is ongoing litigation within the Jogani family regarding
Boardwalk/Park Place, Central ownership of many of the properties owned by Haresh Jogani, H.K.
Park, Crosswinds, Mountain Realty, and J.K. Properties. This case is currently 3 1/2 years old.
Gate, Mountain View It is anticipated that the matter will be set to proceed to trial
Townhouse, North Pointe - within 9 to 12 months. Further, upon conclusion of the trial, it is
Riverside, Sherman Pointe, anticipated that the unsuccessful party will appeal the judgment
Sierra Springs, The which appeal could extend the matter for years.
Victorian, West View (West
Lake) and The Hamptons
Lembi Multifamily Portfolio The sponsor of the related borrowers and affiliated entities are
currently the subject of various lawsuits, including lawsuits by the
City of San Francisco, which allege, among other things, that the
sponsor and its principals have, in their capacity as landlords,
consistently engaged in illegal practices with respect to multi-family
dwellings they own. There can be no assurance that these lawsuits and
the negative publicity generated by them and the actions of the sponsor
and its affiliates will not have a negative effect on the operations of
the sponsor and on the mortgaged property securing such Loan.
Representation # (32)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Pierre Suites Borrower may incur subordinate financing evidence by a second lien on
the property or mezzanine debt in a form of pledge of the equity
interest of the borrower (it being understood that preferred equity
shall be permitted and is not considered subordinate financing). The
secondary financing evidence by a second lien on the property shall be
allowed up to value of 75% and a minimum aggregate debt service
coverage ratio of 1.20x on an interest only basis.
State Street Market A prohibited transfer does not include a) any issuance, sale or
transfer of interests in Sole Member or any successor entity resulting
from any merger permitted hereunder, b) a transfer by devise or descent
or by operation of law upon the death of a member or partner of
Mortgagor, or c) the merger of the Sole Member with any of the
following entities: Inland Retail Real Estate Trust, Inc., a Maryland
corporation, Inland Real Estate Investment Corporation, a Delaware
corporation, Inland American Real Estate Trust, Inc., a Maryland
Corporation, any other real estate investment trust sponsored by Inland
Real Estate Investment Corporation, or any other entity composed
entirely of any of the foregoing by merger. On or after the Closing
Date, Mortgagor may transfer greater than 49% of the direct or indirect
interests in the Mortgagor, provided that the transfer is to a
Qualified Entity, as defined in the loan documents
AT&T Pewaukee Within 24 months of closing the Borrower is permitted to transfer
interests to a tenant in common structure. Additionally, transfers are
allowed to permitted Inland entities, affiliates and to Accredited
Investors.
California Senior Plaza Future Mezzanine Debt Permitted - After 12 months from closing and
before 24 months from maturity, DSCR >= 1.15, LTV <= 80%
Corporate Fountains Future Mezzanine debt secured by interest in the borrower permitted
provided no event of default. The debt shall only result in the event
of the failure of Mezzanine Borrower to make a capital call.
Borrower may, upon prior written notice to Lender, transfer interests
between The Buchanan Fund IV, LLC and GWR Tempe, LLC.
Tanque Verde Apartments Upon prior written notice to Lender, the following transfers are
permitted: (i) any transfer of membership interests in Borrower by and
between PCCP CS Tanque Verde, LLC and LANDCO Tanque Verde, LLC, whether
or not pursuant to the organizational documents of Borrower or
otherwise; (ii) any sales, transfers or conveyances by PacificCal, LLC,
a Delaware limited liability company (together with its permitted
successors), of its direct and indirect interest in the managing member
of the Borrower to any direct or indirect subsidiary or affiliate of
either Pacific Coast Capital Partners, LLC or The California State
Teachers' Retirement System; or (iii) any transfer, sale or conveyance
by PacificCal of the PacificCal Interest to a REIT so long as Pacific
Coast Capital Partners, LLC or The California State Teachers'
Retirement System or any direct or indirect subsidiary of either of the
foregoing, or an affiliate of any of the foregoing, retains day to day
control of the PacificCal Interest.
Davies Pacific Center Subject to meeting certain conditions, transfers are permitted to a
Qualified Transferee, as defined in the related mortgage loan
documents.
After the second anniversary of the Securitization of the loan, the
loan borrower's equity owners may obtain mezzanine financing subject to
LTV <= 80% based on the then appraisal value of the subject property
and DSCR >= 1.10x.
The Orchard at Saddleback Transfers (which include encumbrances) of up to 49% of the direct or
indirect non-managing membership interests in Borrower are permitted
without Lender consent provided that the persons responsible for the
management and control of Borrower and the Property remain unchanged
following such transfer. Additionally, the following transfers are
permitted without consent: a) substitution pr replacement of the
current managing member where the new managing member is the current
majority member of Borrower b) transfers of interests in the managing
member provided that at least one of the current principals continues
to own 51% and controls and c) transfers of interests in the majority
member provided that at least one of the current principals continues
to own 51% and controls.
College Suites - With respect to the ownership of Investors LLC, an entity which owns
Murfreesboro, TN an interest in any Borrower, may transfer any or all of said interest
in said Borrower to any entity which owns an interest in any other
Borrower without Lender's prior consent.
The sole member of Borrower may, without Lender's consent, transfer or
permit to be transferred its direct or indirect interest in Borrower;
provided that (a) not more than 49% of the membership interests in
Borrower are transferred and (b) those persons responsible for the
management and control of Borrower and the Property remain unchanged
following such transfer.
Coconut Point Transfers permitted to institution with net worth of at least $400
Million and real estate assets of at least $250 Million.
Transfers permitted between Simon and Dillards.
Dillards may transfer its interest to third parties provided Simon or
other qualified transferee is in control.
Sponsor is permitted to incur future mezzanine indebtedness. The loan
servicer will not have discretion to approve of any such indebtedness
so long as (a) the total LTV ratio does not exceed 80%, (b) the debt
service coverage (based on EBITDA) does not fall below 1.05x, (c) the
mezzanine lender meets a predetermined definition of "qualified
lender", (d) the mezzanine loan shall be coterminous or mature
subsequent to the mortgage loan and (e) the mezzanine lender shall
enter into a form of inter-creditor agreement.
One South King Subject to meeting certain conditions, transfers are permitted to a
Qualified Transferee, as defined in the related mortgage loan
documents.
Borrower may procure mezzanine debt after the expiration of the Lockout
Period to be secured by the equity interests of the Borrower. The
combined loan-to-value of the existing loan and the mezzanine loan
shall not exceed 70.0%, based on a then current appraisal, and the DSCR
applying Lender's then current underwriting guidelines shall be not
less 1.10 to 1 based on the actual mortgage constant.
Spring Creek Apartments Subject to the satisfaction of the typical requirements for
(Austin), Northwest Crossing, transfers, as more specifically set forth in the related loan
Skylark MHP, Sierra Center documents (e.g. prospective buyer of a TIC interest to be a single
Mammoth Lakes, Sierra Mobile purpose, bankruptcy remote entity), transfers of interest in
Estates, Stonegate at Eagles Mortgagor are permitted to any entity that is party to or will be
Landing, College Suites - party to the related TIC Agreement.
Murfreesboro, TN, Marketplace
at Kapolei
Paradise Village Gateway Transfers of interests to DDR or an affiliate of DDR are permitted
without Lender consent.
Hemet Village The following transfers are permitted: a) to a tenant in common
structure, b) any interests in Grantor as long as there is not a change
in control in Grantor and c) transfers to a Qualified Buyer as defined
in the related mortgage loan documents.
Marriott Huntsville Interests may be transferred between Azar Inc. and/or George Azar and
Philip Ruffin (or entities controlled by them).
Overland Park Up to $10,000,000 in future secured debt is permitted subject to a
subordination agreement and a 1.50x DSCR on the combined debt. This
funding obligation is held by Nomura Credit & Capital, Inc.
Lembi Multifamily Portfolio The equity interest secure $10,000,000 in mezzanine debt. This loan is
held by Nomura Credit & Capital, Inc.
Pelican Point The equity interest secure $24,049,000 mezzanine debt.
Representation # (35)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Beth Boulevard Apartments, Properties may be released from the pool two years from the date of
Twin Oaks Apartments securitization based on final allocated loan amounts, subject to
110% defeasance and maintaining a minimum 1.25x DSCR, based on a 30
year amortization, based on Lender's underwritten Net Operating
Income. Additionally, there must be a minimum LTV of 75% on the
remaining property.
2016 Riverside Office, Property(ies) may be released from the pool two years from
Boardwalk/Park Place, Central securitization based on final allocated loan amounts subject to 110%
Park, Crosswinds, Mountain defeasance and maintaining a 1.20x DSCR and 80% LTV on the remaining
Gate, Mountain View properties in that sub-pool or 100% defeasance and maintaining a
Townhouse, North Pointe - 1.25x DSCR and 75% LTV on the remaining properties in that pool.
Riverside, Sherman Pointe,
Sierra Springs, The Property(ies) may be released from the pool two years from closing,
Victorian, West View (West pursuant to an "ARMS Length Transaction", with no event of default, so
Lake) long as the remaining properties maintain not less than 1.20x DSCR and
LTV of not greater than 80%, subject to Right to Transfer provision
within the loan documents.
Lembi Multifamily Portfolio Lender will allow for the individual release of the properties after
the Lockout Period pursuant to the following conditions: (i) no event
of default, (ii) paydown of the Loan proceeds at 120% of the allocated
loan amount attributable to the released collateral, (iii) payment of
the associated Defeasance penalty, (iv) a DSCR of no less than the
greater of 1.10:1 or the DSCR prior to the partial release, and (v) the
LTV on the remaining collateral must not exceed 85.9%.
Coconut Point Non income producing parcels may be released provided (i) no material
adverse effect, (ii) REMIC opinion and (iii) remaining property
complies with all applicable laws and remains separate tax parcel
Air rights parcel may be released in connection with development of
residential condominiums subject to terms set forth in the loan
agreement.
Representation # (37)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Addison at Wyndham Apartments The Borrower is to add 7 parking spaces within 60 days of loan closing
to bring parking into conformity.
Spring Creek Apartments The Borrower is to add 18 parking spaces within 30 days of loan closing
to bring parking into conformity.
Representation # (38)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Overland Park Up to $10,000,000 in future secured debt is permitted subject to a
subordination agreement and a 1.50x DSCR on the combined debt. This
funding obligation is held by Nomura Credit & Capital, Inc.
Representation # (42)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
Davies Pacific Center Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $75,000.
One South King Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $25,000.
Marriott Huntsville Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds 300% of the current premium.
The Orchard at Saddleback Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $65,000.
State Street Market, AT&T If any of the policies of insurance contain an exclusion from
Pewaukee coverage for acts of terrorism, Mortgagor shall not be required to
obtain such coverage provided (I) an Inland entity executes a guaranty,
in form and substance satisfactory to Lender, guaranteeing in the event
of any act of terrorism, payment to Lender of any sums that would have
been payable to Lender under such coverage (which shall be applied by
Lender in accordance with 6.4 hereof), and (II) the Inland entity
maintains a net worth of at least $300,000,000 (as determined by such
entity's most recent audited financial statements), such entity
maintains a direct or indirect ownership interest in Mortgagor, and the
aggregate loan to value ratio (as determined by Lender) ("LTV") for all
properties on which such entity has a direct or indirect ownership
interest shall not exceed 60%, however, the Inland entity may exceed
the 60% LTV for a period not to exceed six (6) months out of any twelve
(12) month period either (1) during the time period when the Inland
entity is offering securities to the public or 2) when in the business
judgment of the Inland entity, exceeding an LTV of 60% is necessary
given existing circumstances
455 West Fort Street, Ashley Tenant may self insure.
Furniture Retail Center -
Bakersfield, 2016 Riverside
Office
Representation # (44)
Loan Number Loan Name Description of Exception
----------- --------- ------------------------
National Hotel Windstorm Insurance will not be required so long as (i) Borrower and
Guarantor shall be personally liable for any Losses to Lender resulting
from a lack of windstorm coverage, and (ii) Borrower and/or Guarantor
maintains cash or marketable securities of at least $10,000,000 in a
financial institution of Borrower's choice in the United States in an
account identified to Lender and which cannot be liquidated without
Lender's consent.
Davies Pacific Center Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $75,000.
One South King Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $25,000.
Marriott Huntsville Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds 300% of the current premium.
The Orchard at Saddleback Borrower shall not be required to incur a cost for the annual premium
for terrorism coverage that exceeds $65,000.
State Street Market, AT&T If any of the policies of insurance contain an exclusion from
Pewaukee coverage for acts of terrorism, Mortgagor shall not be required to
obtain such coverage provided (I) an Inland entity executes a guaranty,
in form and substance satisfactory to Lender, guaranteeing in the event
of any act of terrorism, payment to Lender of any sums that would have
been payable to Lender under such coverage (which shall be applied by
Lender in accordance with 6.4 hereof), and (II) the Inland entity
maintains a net worth of at least $300,000,000 (as determined by such
entity's most recent audited financial statements), such entity
maintains a direct or indirect ownership interest in Mortgagor, and the
aggregate loan to value ratio (as determined by Lender) ("LTV") for all
properties on which such entity has a direct or indirect ownership
interest shall not exceed 60%, however, the Inland entity may exceed
the 60% LTV for a period not to exceed six (6) months out of any twelve
(12) month period either (1) during the time period when the Inland
entity is offering securities to the public or 2) when in the business
judgment of the Inland entity, exceeding an LTV of 60% is necessary
given existing circumstances
455 West Fort Street, Ashley Tenant may self insure.
Furniture Retail Center -
Bakersfield, 2016 Riverside
Office
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
I, [______], a duly appointed, qualified and acting [______] of
[___________], a [________] [______] (the "Company"), hereby certify on behalf
of the Company as follows:
1. I have examined the Mortgage Loan Purchase Agreement, dated as of
March 1, 2007 (the "Agreement"), between the Company and 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 March 9, 2007, as supplemented by the Prospectus
Supplement, dated March 26, 2007 (collectively, the "Prospectus"), relating to
the offering of the Class A-1, Class A-1S, Class A-2, Class A-2S, Class A-2SFL,
Class A-3, Class A-3S, Class A-1A, Class X, Class A-M, Class A-MS, Class A-J,
Class A-JFL, Class A-JS, Class B-S, Class C-S and Class D-S Certificates, the
Private Placement Memorandum, dated March 26, 2007 (the "Privately Offered
Certificate Private Placement Memorandum"), relating to the offering of the
Class B, Class C, Class D, Class E, Class E-S, Class F, Class F-S, Class G,
Class G-S, Class H, Class H-S, Class J, Class K, Class L, Class M, Class N,
Class P and Class NR Certificates, and the Residual Private Placement
Memorandum, dated March 26, 2007 (together with the Privately Offered
Certificate Private Placement Memorandum, the "Private Placement Memoranda"),
relating to the offering of the Class R, Class MR and Class LR Certificates, and
nothing has come to my attention that would lead me to believe that the
Prospectus, as of the date of the Prospectus Supplement or as of the date
hereof, or the Private Placement Memoranda, as of the date of the Private
Placement Memoranda or as of the date hereof, included or includes any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omits
to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading.
Capitalized terms used herein without definition have the meanings
given them in the Agreement.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, I have signed my name this ___ day of March,
2007.
By:____________________________________
Name:
Title:
SCHEDULE I
MORTGAGE LOANS FOR WHICH A LENDER'S ENVIRONMENTAL POLICY WAS OBTAINED IN LIEU
OF AN ENVIRONMENTAL SITE ASSESSMENT
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph number set forth below.
Paragraph 21(a) and (e):
None.
SCHEDULE II
MORTGAGED PROPERTY FOR WHICH 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 10.4
J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER
EUROHYPO AG, NEW YORK BRANCH,
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of March 1, 2007
Fixed Rate Mortgage Loans
Series 2007-LDP10
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
March 1, 2007, 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
March 1, 2007 (the "Pooling and Servicing Agreement") among the Purchaser, as
depositor (the "Depositor"), Midland Loan Services, Inc. and Wachovia Bank,
National Association, as master servicers (each, a "Master Servicer"), J.E.
Robert Company, Inc., as special servicer (the "Special Servicer"), Wells Fargo
Bank, N.A., as trustee (the "Trustee") and LaSalle Bank National Association, as
co-trustee (the "Co-Trustee"), pursuant to which the Purchaser will sell the
Mortgage Loans (as defined herein) to a trust fund and certificates representing
ownership interests in the Mortgage Loans will be issued by the trust fund. For
purposes of this Agreement, the term "Mortgage Loans" refers to the mortgage
loans listed on Exhibit A 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-3S, Class A-1A, Class X, Class A-M,
Class A-MS, Class A-J, Class A-JFL, Class A-JS, Class B-S, Class C-S and Class
D-S Certificates (the "Offered Certificates") to the underwriters (the
"Underwriters") specified in the underwriting agreement dated March 26, 2007
(the "Underwriting Agreement") between the Depositor and J.P. Morgan Securities
Inc. ("JPMSI") for itself and as representative of the several underwriters
identified therein, and the Depositor will sell the Class B, Class C, Class D,
Class E, Class E-S, Class F, Class F-S, Class G, Class G-S, Class H, Class H-S,
Class J, Class K, Class L, Class M, Class N, Class P and Class NR Certificates
(the "Private Certificates") to JPMSI and UBS Securities LLC, the initial
purchasers (together with the Underwriters, the "Dealers") specified in the
certificate purchase agreement dated March 26, 2007 (the "Certificate Purchase
Agreement"), between the Depositor and JPMSI for itself and as representative of
the initial purchasers identified therein.
The sale and conveyance of the 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 $939,221,720.61 (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 March 26,
2007 between the Purchaser and the Seller (the "Indemnification Agreement"); and
(d) for so long as the Trust is subject to the reporting requirements of
the Exchange Act, the Seller shall provide the Purchaser (or with respect to any
Companion Loan related to a Serviced Whole Loan or any Serviced Securitized
Companion Loan that is deposited into an Other Securitization or a Regulation AB
Companion Loan Securitization, the depositor in such Other Securitization or
Regulation AB Companion Loan Securitization) and the Trustee with any Additional
Form 10-D Disclosure and any Additional Form 10-K Disclosure set forth next to
the Purchaser's name 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 the
Term Sheet (as defined in the Indemnification Agreement), or items similar to
the Term Sheet, including the cost of obtaining any "comfort letters" with
respect to such items; (v) the costs and expenses in connection with the
qualification or exemption of the Certificates under state securities or blue
sky laws, including filing fees and reasonable fees and disbursements of counsel
in connection therewith; (vi) the costs and expenses in connection with any
determination of the eligibility of the Certificates for investment by
institutional investors in any jurisdiction and the preparation of any legal
investment survey, including reasonable fees and disbursements of counsel in
connection therewith; (vii) the costs and expenses in connection with printing
(or otherwise reproducing) and delivering the Registration Statement, Prospectus
and Memoranda, and the reproduction and delivery of this Agreement and the
furnishing to the Underwriters of such copies of the Registration Statement,
Prospectus, Memoranda and this Agreement as the Underwriters may reasonably
request; (viii) the fees of the rating agency or agencies requested to rate the
Certificates and (ix) the reasonable fees and expenses of 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/ Dennis Schuh
---------------------------------
Name: Dennis Schuh
Title: Executive Director
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 2007-LDP10
Mortgage Loan Schedule (EHY)
Loan
Loan # Seller Mortgagor Name
----------------------------------------------------------------------------------------------------------------------------
3 EHY CESC Skyline LLC
3.01 EHY CESC Skyline LLC
3.02 EHY CESC Skyline LLC
3.03 EHY CESC Skyline LLC
3.04 EHY CESC Skyline LLC
3.05 EHY CESC Skyline LLC
3.06 EHY CESC Skyline LLC
3.07 EHY CESC Skyline LLC
3.08 EHY CESC Skyline LLC
5 EHY Industrial CIC Owner LLC, Industrial CP II Owner LLC, Industrial CT Owner LLC, Industrial HPM Owner LLC,
Industrial Memphis International Owner LLC, Industrial MS Logistec Owner LLC, Industrial Rickenbacker III
Owner LLC, Industrial Southpark IX Owner LLC, Industrial Woodlands Owner LLC
5.01 EHY Industrial CIC Owner LLC, Industrial CP II Owner LLC, Industrial CT Owner LLC, Industrial HPM Owner LLC,
Industrial Memphis International Owner LLC, Industrial MS Logistec Owner LLC, Industrial Rickenbacker III
Owner LLC, Industrial Southpark IX Owner LLC, Industrial Woodlands Owner LLC
5.02 EHY Industrial CIC Owner LLC, Industrial CP II Owner LLC, Industrial CT Owner LLC, Industrial HPM Owner LLC,
Industrial Memphis International Owner LLC, Industrial MS Logistec Owner LLC, Industrial Rickenbacker III
Owner LLC, Industrial Southpark IX Owner LLC, Industrial Woodlands Owner LLC
5.03 EHY Industrial CIC Owner LLC, Industrial CP II Owner LLC, Industrial CT Owner LLC, Industrial HPM Owner LLC,
Industrial Memphis International Owner LLC, Industrial MS Logistec Owner LLC, Industrial Rickenbacker III
Owner LLC, Industrial Southpark IX Owner LLC, Industrial Woodlands Owner LLC
5.04 EHY Industrial CIC Owner LLC, Industrial CP II Owner LLC, Industrial CT Owner LLC, Industrial HPM Owner LLC,
Industrial Memphis International Owner LLC, Industrial MS Logistec Owner LLC, Industrial Rickenbacker III
Owner LLC, Industrial Southpark IX Owner LLC, Industrial Woodlands Owner LLC
5.05 EHY Industrial CIC Owner LLC, Industrial CP II Owner LLC, Industrial CT Owner LLC, Industrial HPM Owner LLC,
Industrial Memphis International Owner LLC, Industrial MS Logistec Owner LLC, Industrial Rickenbacker III
Owner LLC, Industrial Southpark IX Owner LLC, Industrial Woodlands Owner LLC
5.06 EHY Industrial CIC Owner LLC, Industrial CP II Owner LLC, Industrial CT Owner LLC, Industrial HPM Owner LLC,
Industrial Memphis International Owner LLC, Industrial MS Logistec Owner LLC, Industrial Rickenbacker III
Owner LLC, Industrial Southpark IX Owner LLC, Industrial Woodlands Owner LLC
5.07 EHY Industrial CIC Owner LLC, Industrial CP II Owner LLC, Industrial CT Owner LLC, Industrial HPM Owner LLC,
Industrial Memphis International Owner LLC, Industrial MS Logistec Owner LLC, Industrial Rickenbacker III
Owner LLC, Industrial Southpark IX Owner LLC, Industrial Woodlands Owner LLC
5.08 EHY Industrial CIC Owner LLC, Industrial CP II Owner LLC, Industrial CT Owner LLC, Industrial HPM Owner LLC,
Industrial Memphis International Owner LLC, Industrial MS Logistec Owner LLC, Industrial Rickenbacker III
Owner LLC, Industrial Southpark IX Owner LLC, Industrial Woodlands Owner LLC
5.09 EHY Industrial CIC Owner LLC, Industrial CP II Owner LLC, Industrial CT Owner LLC, Industrial HPM Owner LLC,
Industrial Memphis International Owner LLC, Industrial MS Logistec Owner LLC, Industrial Rickenbacker III
Owner LLC, Industrial Southpark IX Owner LLC, Industrial Woodlands Owner LLC
5.10 EHY Industrial CIC Owner LLC, Industrial CP II Owner LLC, Industrial CT Owner LLC, Industrial HPM Owner LLC,
Industrial Memphis International Owner LLC, Industrial MS Logistec Owner LLC, Industrial Rickenbacker III
Owner LLC, Industrial Southpark IX Owner LLC, Industrial Woodlands Owner LLC
6 EHY Augusta Mall, LLC, Augusta Mall Anchor Acquisition, LLC
7 EHY Maguire Partners-Solana Limited Partnership
45 EHY Arches Apartment Homes, LLC
54 EHY Salva Delaware, LLC
73 EHY Old Mill Meier, LLC/Shefflin Old Mill, LLC
73.01 EHY Old Mill Meier, LLC/Shefflin Old Mill, LLC
73.02 EHY Old Mill Meier, LLC/Shefflin Old Mill, LLC
73.03 EHY Old Mill Meier, LLC/Shefflin Old Mill, LLC
74 EHY Fountains Title Holder, L.L.C.
121 EHY Direct Invest - 80 Lancaster, LLC, Direct Invest - 80 Lancaster 1, LLC, Direct Invest - 80 Lancaster 2, LLC,
Direct Invest - Lancaster 3, LLC, Direct Invest - 80 Lancaster 4, LLC
135 EHY Guardian Fund II - Riverview LLC
139 EHY GRI Cedar Park LLC
145 EHY VR Legacy at Wesleyan Limited Partnership
155 EHY 59th Ferry, LLC, 42nd Ashland, LLC
155.01 EHY 59th Ferry, LLC, 42nd Ashland, LLC
155.02 EHY 59th Ferry, LLC, 42nd Ashland, LLC
187 EHY Brighton Underground Garage II, LLC
196 EHY Crosby Retail Haleku'AI LLC
203 EHY Halsted New City Financial, L.L.C.
212 EHY Fog Properties, LLC
Loan # Property Address City State Zip Code County
------------------------------------------------------------------------------------------------------------------------------------
3 Various Falls Church VA 22041 Fairfax
3.01 5107 Leesburg Pike Falls Church VA 22041 Fairfax
3.02 5275 Leesburg Pike Falls Church VA 22041 Fairfax
3.03 5109 Leesburg Pike Falls Church VA 22041 Fairfax
3.04 5111 Leesburg Pike Falls Church VA 22041 Fairfax
3.05 5205 Leesburg Pike Falls Church VA 22041 Fairfax
3.06 5113 Leesburg Pike Falls Church VA 22041 Fairfax
3.07 5203 Leesburg Pike Falls Church VA 22041 Fairfax
3.08 5201 Leesburg Pike Falls Church VA 22041 Fairfax
5 Various Various Various Various Various
5.01 437 Sanford Road La Vergne TN 37086 Rutherford
5.02 2190 Creekside Parkway Lockbourne OH 43137 Franklin
5.03 5200 Tradeport Drive Memphis TN 38141 Shelby
5.04 3399 East Raines Road Memphis TN 38118 Shelby
5.05 221 Hanson Way Woodland CA 95776 Yolo
5.06 6005 Freeport Avenue Memphis TN 38141 Shelby
5.07 2222 East Beamer Street Woodland CA 95776 Yolo
5.08 2250 Spiegel Drive Groveport OH 43125 Franklin
5.09 4550 Swinnea Road Memphis TN 38118 Shelby
5.10 3400 Southpark Place Grove City OH 43123 Franklin
6 3450 Wrightsboro Road Augusta GA 30909 Richmond
7 5 Village Circle and State Highway 114 at Kirkwood Boulevard Westlake TX 76262 Tarrant
45 1235 Wildwood Avenue Sunnyvale CA 94089 Santa Clara
54 546 Broadway New York NY 10012 New York
73 Various Salt Lake City UT 84121 Salt Lake
73.01 6415 South 3000 East Salt Lake City UT 84121 Salt Lake
73.02 6550 South 3000 East Salt Lake City UT 84121 Salt Lake
73.03 6405 South 3000 East Salt Lake City UT 84121 Salt Lake
74 5175 Cinderlane Parkway Orlando FL 32808 Orange
121 80 West Lancaster Avenue Devon PA 19333 Chester
135 6196 Oxon Hill Road Oxon Hill MD 20745 Prince George's
139 264 Cedar Lane Vienna VA 22180 Fairfax
145 1800 Wesleyan Drive Macon GA 31210 Bibb
155 Various Various IL Various Various
155.01 4200 South Ashland Avenue Chicago IL 60609 Cook
155.02 4 South 120 Route 59 Naperville IL 60555 DuPage
187 90 Oceana Drive East and 90 Oceana Drive West Brooklyn NY 11235 Kings
196 14041 FM 2100 Road Crosby TX 77532 Harris
203 7900 South Halsted Street Chicago IL 60620 Cook
212 4055 West Peterson Avenue Chicago IL 60646 Cook
Interest Net Mortgage
Loan # Property Name Size Measure Rate (%) Interest Rate
------------------------------------------------------------------------------------------------------------------
3 Skyline 2566783 Square Feet 5.74300 5.72261
3.01 One Skyline Tower 473350 Square Feet 5.74300 5.74300
3.02 Seven Skyline Place 402824 Square Feet 5.74300 5.74300
3.03 Six Skyline Place 308533 Square Feet 5.74300 5.74300
3.04 Five Skyline Place 298468 Square Feet 5.74300 5.74300
3.05 One Skyline Place 275492 Square Feet 5.74300 5.74300
3.06 Four Skyline Place 267651 Square Feet 5.74300 5.74300
3.07 Two Skyline Place 270679 Square Feet 5.74300 5.74300
3.08 Three Skyline Place 269786 Square Feet 5.74300 5.74300
5 StratReal Industrial Portfolio II 5003066 Square Feet 5.59600 5.57561
5.01 Mid-South Logistec Center VI 770000 Square Feet 5.59600 5.59600
5.02 Continental Tire 766571 Square Feet 5.59600 5.59600
5.03 HP Memphis (Hewlett-Packard) 625000 Square Feet 5.59600 5.59600
5.04 Centerpoint II 400000 Square Feet 5.59600 5.59600
5.05 Woodland Industrial Hanson Way 400000 Square Feet 5.59600 5.59600
5.06 CIC Memphis (Chickasaw Ind. Ctr.) 550000 Square Feet 5.59600 5.59600
5.07 Woodland Industrial E. Beamer 400000 Square Feet 5.59600 5.59600
5.08 Rickenbacker III 344220 Square Feet 5.59600 5.59600
5.09 Memphis International 337655 Square Feet 5.59600 5.59600
5.10 South Park 9 409620 Square Feet 5.59600 5.59600
6 Augusta Mall 470717 Square Feet 5.48800 5.46761
7 Solana 1874975 Square Feet 6.10300 6.08261
45 Arches 410 Units 5.47700 5.45661
54 546 Broadway 93600 Square Feet 5.52000 5.49961
73 Old Mill Portfolio 131808 Square Feet 5.62200 5.60161
73.01 Old Mill Business Center II 60621 Square Feet 5.62200 5.62200
73.02 Old Mill Village 36501 Square Feet 5.62200 5.62200
73.03 Old Mill Business Center I 34686 Square Feet 5.62200 5.62200
74 Fountain Apartments 552 Units 5.46000 5.43961
121 80 West Lancaster Avenue 52400 Square Feet 5.84000 5.81961
135 Riverview Office Bulding 69823 Square Feet 5.66500 5.64461
139 Cedar Park Shopping Center 75699 Square Feet 5.53500 5.51461
145 Legacy at Wesleyan 200 Units 5.80000 5.77961
155 LaSalle Bank Branch Portfolio 12000 Square Feet 5.77000 5.74961
155.01 LaSalle Bank-4200 South Ashland 6000 Square Feet 5.77000 5.77000
155.02 LaSalle Bank-Route 59 6000 Square Feet 5.77000 5.77000
187 Oceana Garage 524 Spaces 5.69900 5.67861
196 Crosby Center 24090 Square Feet 5.81500 5.79461
203 LaSalle Bank Branch 5000 Square Feet 5.77000 5.74961
212 4055 West Peterson Avenue 31915 Square Feet 6.10500 6.08461
Maturity/ARD Amort. Rem. Monthly Debt
Loan # Original Balance Cutoff Balance Term Rem. Term Date Term Amort. Service
-------------------------------------------------------------------------------------------------------------
3 203,400,000 203,400,000 120 119 02/01/17 0 0 986,958
3.01 40,410,000 40,410,000 120 119 02/01/17 0 0
3.02 30,240,000 30,240,000 120 119 02/01/17 0 0
3.03 24,570,000 24,570,000 120 119 02/01/17 0 0
3.04 23,610,000 23,610,000 120 119 02/01/17 0 0
3.05 21,990,000 21,990,000 120 119 02/01/17 0 0
3.06 21,150,000 21,150,000 120 119 02/01/17 0 0
3.07 21,000,000 21,000,000 120 119 02/01/17 0 0
3.08 20,430,000 20,430,000 120 119 02/01/17 0 0
5 186,000,000 186,000,000 120 118 01/11/17 0 0 879,427
5.01 34,926,587 34,926,587 120 118 01/11/17 0 0
5.02 24,401,001 24,401,001 120 118 01/11/17 0 0
5.03 22,953,874 22,953,874 120 118 01/11/17 0 0
5.04 17,394,239 17,394,239 120 118 01/11/17 0 0
5.05 17,188,803 17,188,803 120 118 01/11/17 0 0
5.06 16,943,477 16,943,477 120 118 01/11/17 0 0
5.07 16,628,001 16,628,001 120 118 01/11/17 0 0
5.08 13,949,378 13,949,378 120 118 01/11/17 0 0
5.09 12,951,968 12,951,968 120 118 01/11/17 0 0
5.10 8,662,671 8,662,671 120 118 01/11/17 0 0
6 175,000,000 175,000,000 60 56 11/11/11 0 0 811,449
7 140,000,000 140,000,000 84 81 12/11/13 0 0 721,906
45 65,000,000 65,000,000 60 58 01/11/12 0 0 300,791
54 46,000,000 46,000,000 120 120 03/11/17 360 360 261,760
73 26,650,000 26,650,000 120 120 03/06/17 0 0 126,589
73.01 10,884,084 10,884,084 120 120 03/06/17 0 0
73.02 8,883,333 8,883,333 120 120 03/06/17 0 0
73.03 6,882,583 6,882,583 120 120 03/06/17 0 0
74 26,000,000 26,000,000 60 58 01/11/12 0 0 119,943
121 11,200,000 11,200,000 120 119 02/11/17 360 360 66,002
135 9,025,000 9,025,000 120 119 02/11/17 360 360 52,181
139 8,250,000 8,250,000 120 119 02/11/17 0 0 38,582
145 7,500,000 7,500,000 120 120 03/11/17 0 0 36,753
155 6,560,000 6,560,000 120 119 02/11/17 360 360 38,366
155.01 3,597,419 3,597,419 120 119 02/11/17 360 360
155.02 2,962,581 2,962,581 120 119 02/11/17 360 360
187 4,300,000 4,300,000 120 120 03/06/17 360 360 24,954
196 3,900,000 3,891,311 120 118 01/11/17 360 358 22,921
203 3,515,000 3,515,000 120 119 02/11/17 360 360 20,557
212 2,960,000 2,960,000 120 120 03/11/17 360 360 17,947
Loan # Servicing Fee Rate Accrual Type ARD (Y/N) ARD Step Up (%) Title Type Crossed Loan Originator/Loan Seller
------------------------------------------------------------------------------------------------------------------------------------
3 0.02000 Actual/360 No Fee EHY
3.01 0.00000 No Fee EHY
3.02 0.00000 No Fee EHY
3.03 0.00000 No Fee EHY
3.04 0.00000 No Fee EHY
3.05 0.00000 No Fee EHY
3.06 0.00000 No Fee EHY
3.07 0.00000 No Fee EHY
3.08 0.00000 No Fee EHY
5 0.02000 Actual/360 No Fee EHY
5.01 0.00000 No Fee EHY
5.02 0.00000 No Fee EHY
5.03 0.00000 No Fee EHY
5.04 0.00000 No Fee EHY
5.05 0.00000 No Fee EHY
5.06 0.00000 No Fee EHY
5.07 0.00000 No Fee EHY
5.08 0.00000 No Fee EHY
5.09 0.00000 No Fee EHY
5.10 0.00000 No Fee EHY
6 0.02000 Actual/360 No Fee/Leasehold EHY
7 0.02000 Actual/360 No Fee EHY
45 0.02000 Actual/360 No Fee EHY
54 0.02000 Actual/360 No Fee EHY
73 0.02000 Actual/360 No Fee EHY
73.01 0.00000 No Fee EHY
73.02 0.00000 No Fee EHY
73.03 0.00000 No Fee EHY
74 0.02000 Actual/360 No Fee EHY
121 0.02000 Actual/360 No Fee EHY
135 0.02000 Actual/360 No Fee EHY
139 0.02000 Actual/360 No Fee EHY
145 0.02000 Actual/360 No Fee EHY
155 0.02000 Actual/360 No Fee EHY
155.01 0.00000 No Fee EHY
155.02 0.00000 No Fee EHY
187 0.02000 Actual/360 No Fee EHY
196 0.02000 Actual/360 No Fee EHY
203 0.02000 Actual/360 No Fee EHY
212 0.02000 Actual/360 No Fee EHY
Loan # Guarantor
-------------------------------------------------------------------------------------------------------------
3 Vornado Realty L.P.
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
5
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.10
6 General Growth Properties, Inc.
7 Robert F. Maguire III
45 Commingled Pension Trust Fund (Special Situation Property) of JPMorgan Chase Bank, N.A.
54 Abraham Chetrit
73 Joel Shefflin, Kenneth Gaynes
73.01
73.02
73.03
74 LaSalle Income and Growth Fund IV
121 Direct Invest, L.L.C., Richard Previdi, William F. Rand, III, John Graham
135 Guardian Realty Fund II Business Trust
139 Global Retail Investors, LLC
145 Andrew Stewart, John Foresi
155 Robert S. Qualkinbush
155.01
155.02
187 Joshua L. Muss
196 Kenneth Tanizaki
203 Robert S. Qualkinbush
212 Barry J. Bass, Ronald L. Futterman, Michael B. Tarnoff, Louis Kahn, Leon Lurie, Steve Nasatir
Upfront Upfront Upfront Upfront Upfront Upfront Upfront
Letter of CapEx Eng. Envir. TI/LC RE Tax Ins. Other
Loan # Credit Reserve Reserve Reserve Reserve Reserve Reserve Reserve
--------------------------------------------------------------------------------------------------------------------
3 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
5 6,000,000.0 0.00 0.00 0.00 85,976.00 143,459.00 606,607.46 21,135.99
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.10
6 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
7 No 400,000.00 0.00 0.00 39,638,796.00 592,000.00 79,000.00 21,000,000.00
45 No 0.00 0.00 0.00 0.00 0.00 0.00 2,600,000.00
54 No 1,073.25 0.00 0.00 0.00 129,010.85 41,318.00 1,000,000.00
73 No 1,672.00 0.00 0.00 400,000.00 109,402.00 6,391.00 300,000.00
73.01
73.02
73.03
74 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
121 No 436.67 0.00 0.00 300,000.00 0.00 10,482.96 0.00
135 No 1,685.55 12,467.00 0.00 0.00 58,333.31 5,725.44 0.00
139 No 0.00 0.00 0.00 0.00 30,313.74 0.00 0.00
145 No 900,000.00 0.00 0.00 0.00 52,458.48 10,620.75 0.00
155 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
155.01 No
155.02 No
187 No 1,091.66 0.00 0.00 0.00 44,364.00 2,468.00 0.00
196 No 200.75 0.00 0.00 1,204.50 9,551.78 2,935.68 0.00
203 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
212 No 521.00 10,000.00 0.00 3,255.00 24,020.50 1,132.00 0.00
Loan # Monthly Capex Reserve Monthly Envir. Reserve Monthly TI/LC Reserve Monthly RE Tax Reserve Monthly Ins. Reserve
-----------------------------------------------------------------------------------------------------------------------------------
3 0.00 0.00 0.00 0.00 0.00
3.01
3.02
3.03
3.04
3.05
3.06
3.07
3.08
5 0.00 0.00 59135.00 142453.00 75825.93
5.01
5.02
5.03
5.04
5.05
5.06
5.07
5.08
5.09
5.10
6 0.00 0.00 0.00 0.00 0.00
7 31250.00 0.00 132809.00 250000.00 36533.00
45 0.00 0.00 0.00 0.00 0.00
54 1073.25 0.00 0.00 25802.17 4131.75
73 1672.00 0.00 0.00 21880.42 2130.00
73.01
73.02
73.03
74 0.00 0.00 0.00 0.00 0.00
121 436.67 0.00 0.00 0.00 873.58
135 1685.55 0.00 0.00 8333.33 817.92
139 0.00 0.00 0.00 10104.58 0.00
145 4167.00 0.00 0.00 8743.08 3540.25
155 0.00 0.00 0.00 0.00 0.00
155.01
155.02
187 1091.66 0.00 0.00 14788.00 2468.00
196 200.75 0.00 1204.50 4775.89 733.92
203 0.00 0.00 0.00 0.00 0.00
212 521.00 0.00 3255.00 3431.50 566.00
Loan # Monthly Other Reserve Grace Period Lockbox In-place Property Type Defeasance Permitted
--------------------------------------------------------------------------------------------------------------
3 0.00 3 Yes Office Yes
3.01 3 Office
3.02 3 Office
3.03 3 Office
3.04 3 Office
3.05 3 Office
3.06 3 Office
3.07 3 Office
3.08 3 Office
5 9567.99 0 Yes Industrial Yes
5.01 0 Industrial
5.02 0 Industrial
5.03 0 Industrial
5.04 0 Industrial
5.05 0 Industrial
5.06 0 Industrial
5.07 0 Industrial
5.08 0 Industrial
5.09 0 Industrial
5.10 0 Industrial
6 0.00 0 Yes Retail Yes
7 0.00 0 Yes Mixed Use Yes
45 0.00 0 Yes Multifamily Yes
54 0.00 0 No Mixed Use Yes
73 0.00 0 No Various Yes
73.01 0 Office
73.02 0 Retail
73.03 0 Office
74 0.00 0 No Multifamily Yes
121 0.00 0 Yes Office Yes
135 0.00 0 No Office Yes
139 0.00 0 No Retail No
145 0.00 0 No Multifamily Yes
155 0.00 0 Yes Retail Yes
155.01 0 Retail
155.02 0 Retail
187 0.00 0 No Parking Garage Yes
196 0.00 0 Yes Retail Yes
203 0.00 0 Yes Retail Yes
212 0.00 0 No Industrial Yes
Loan # Interest Accrual Period Loan Group Final Maturity Date Remaining Amortization Term for Balloon Loans
-----------------------------------------------------------------------------------------------------------------------
3 Actual/360 1
3.01 1
3.02 1
3.03 1
3.04 1
3.05 1
3.06 1
3.07 1
3.08 1
5 Actual/360 1
5.01 1
5.02 1
5.03 1
5.04 1
5.05 1
5.06 1
5.07 1
5.08 1
5.09 1
5.10 1
6 Actual/360 3
7 Actual/360 3
45 Actual/360 3
54 Actual/360 1 360
73 Actual/360 1
73.01 1
73.02 1
73.03 1
74 Actual/360 3
121 Actual/360 1 360
135 Actual/360 1 360
139 Actual/360 1
145 Actual/360 2
155 Actual/360 1 360
155.01 1 360
155.02 1 360
187 Actual/360 1 360
196 Actual/360 1 360
203 Actual/360 1 360
212 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 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.
(44) Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, (b) to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent with
its capital markets conduit lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property, in each case in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the
improvements located at the Mortgaged Property, and not less than the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the Mortgaged Property, and the policy contains no provisions for a deduction
for depreciation.
Defined Terms:
The term "Allocated Loan Amount" shall mean, for each Mortgaged
Property, the portion of principal of the related Mortgage Loan allocated to
such Mortgaged Property for certain purposes (including determining the release
prices of properties, if permitted) under such Mortgage Loan as set forth in the
related loan documents. There can be no assurance, and it is unlikely, that the
Allocated Loan Amounts represent the current values of individual Mortgaged
Properties, the price at which an individual Mortgaged Property could be sold in
the future to a willing buyer or the replacement cost of the Mortgaged
Properties.
The term "Anticipated Repayment Date" shall mean the date on which all
or substantially all of any Excess Cash Flow is required to be applied toward
prepayment of the related Mortgage Loan and on which any such Mortgage Loan
begins accruing Excess Interest.
The term "ARD Loan" shall have the meaning assigned thereto in the
Pooling and Servicing Agreement.
The term "Environmental Site Assessment" shall mean a Phase I
environmental report meeting the requirements of the American Society for
Testing and Materials, and, if in accordance with customary industry standards a
reasonable lender would require it, a Phase II environmental report, each
prepared by a licensed third party professional experienced in environmental
matters.
The term "Excess Cash Flow" shall mean the cash flow from the Mortgaged
Property securing an ARD Loan after payments of interest (at the Mortgage
Interest Rate) and principal (based on the amortization schedule), and (a)
required payments for the tax and insurance fund and ground lease escrows fund,
(b) required payments for the monthly debt service escrows, if any, (c) payments
to any other required escrow funds and (d) payment of operating expenses
pursuant to the terms of an annual budget approved by the applicable Master
Servicer and discretionary (lender approved) capital expenditures.
The term "Excess Interest" shall mean any accrued and deferred interest
on an ARD Loan in accordance with the following terms. Commencing on the
respective Anticipated Repayment Date each ARD Loan (pursuant to its existing
terms or a unilateral option, as defined in Treasury Regulations under Section
1001 of the Code, in the Mortgage Loans exercisable during the term of the
Mortgage Loan) generally will bear interest at a fixed rate (the "Revised Rate")
per annum equal to the Mortgage Interest Rate plus a percentage specified in the
related Mortgage Loan documents. Until the principal balance of each such
Mortgage Loan has been reduced to zero (pursuant to its existing terms or a
unilateral option, as defined in Treasury Regulations under Section 1001 of the
Code, in the Mortgage Loans exercisable during the term of the Mortgage Loan),
such Mortgage Loan will only be required to pay interest at the Mortgage
Interest Rate and the interest accrued at the excess of the related Revised Rate
over the related Mortgage Interest Rate will be deferred (such accrued and
deferred interest and interest thereon, if any, is "Excess Interest").
The term "in reliance on" shall mean that:
(a) the Seller has examined and relied in whole or in part upon
one or more of the specified documents or other information in connection
with a given representation or warranty;
(b) that the information contained in such document or otherwise
obtained by the Seller appears on its face to be consistent in all material
respects with the substance of such representation or warranty;
(c) the Seller's reliance on such document or other information is
consistent with the standard of care exercised by prudent lending
institutions originating commercial mortgage loans; and
(d) although the Seller is under no obligation to verify
independently the information contained in any document specified as being
relied upon by it, the Seller believes the information contained therein to
be true, accurate and complete in all material respects and has no actual
knowledge of any facts or circumstances which would render reliance thereon
unjustified without further inquiry.
The term "Mortgage Interest Rate" shall mean the fixed rate of interest
per annum that each Mortgage Loan bears as of the Cut-off Date.
The term "Permitted Encumbrances" shall mean:
(a) the lien of current real property taxes, water charges, sewer
rents and assessments not yet delinquent or accruing interest or penalties;
(b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record acceptable to mortgage lending
institutions generally and referred to in the related mortgagee's title
insurance policy;
(c) other matters to which like properties are commonly subject,
and
(d) the rights of tenants, as tenants only, whether under ground
leases or space leases at the Mortgaged Property.
which together do not materially and adversely affect the related
Mortgagor's ability to timely make payments on the related Mortgage Loan,
which do not materially interfere with the benefits of the security
intended to be provided by the related Mortgage or the use, for the use
currently being made, the operation as currently being operated, enjoyment,
value or marketability of such Mortgaged Property, provided, however, that,
for the avoidance of doubt, Permitted Encumbrances shall exclude all pari
passu, second, junior and subordinated mortgages but shall not exclude
mortgages that secure other Mortgage Loans or Companion Loans that are
cross-collateralized with the related Mortgage Loan.
Other. For purposes of these representations and warranties, the term
"to the Seller's knowledge" shall mean that no officer, employee or agent of the
Seller responsible for the underwriting, origination or sale of the Mortgage
Loans or of any servicer responsible for servicing the Mortgage Loan on behalf
of the Seller, believes that a given representation or warranty is not true or
is inaccurate based upon the Seller's reasonable inquiry and during the course
of such inquiry, no such officer, employee or agent of the Seller has obtained
any actual knowledge of any facts or circumstances that would cause such person
to believe that such representation or warranty was inaccurate. Furthermore, all
information contained in documents which are part of or required to be part of a
Mortgage File shall be deemed to be within the Seller's knowledge. For purposes
of these representations and warranties, the term "to the Seller's actual
knowledge" shall mean that an officer, employee or agent of the Seller
responsible for the underwriting, origination and sale of the Mortgage Loans
does not actually know of any facts or circumstances that would cause such
person to believe that such representation or warranty was inaccurate.
EXHIBIT C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Exceptions to Representation 6
Mortgage Loan Exception
Skyline Portfolio The Mortgage was granted in favor of Mortgage
Electronic Registration Systems, Inc. for the
benefit of the Seller and Bank of America National
Association, as co-lender. In addition to the
Mortgage Loan, the related Mortgaged Property
secures two pari passu A-notes.
Solana In addition to the Mortgage Loan, the related
Mortgaged Property secures a pari passu A-note.
In addition, the Mortgage Loan is not secured by
any oil, gas and mineral rights at the Mortgaged
Property and the borrower is permitted to lease,
license, grant easements of or otherwise grant
access to the Mortgaged Property for the purpose
of exploring or developing oil, gas or other
minerals. Pursuant to a deed with an affiliate of
the borrower, such affiliate agreed, as a covenant
running with the land, that it will not conduct or
permit operations for the drilling, exploration,
extraction, removal or production of minerals that
could reasonably be expected to result in any
material damage to any of the improvements at the
Mortgaged Property or materially interfere with
the borrower's use or operation of the Mortgaged
Property or any portion thereof. The affiliate
further that any and all drilling, exploration,
extraction, removal or production of minerals will
be conducted in accordance with all applicable
federal, state, county and local laws, rules and
regulations applicable thereto.
Exceptions to Representation 10(a)
Mortgage Loan Exception
All Mortgage Loans except The Mortgage Loan documents provide for recourse
as specified below for the 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.
Skyline Portfolio, There is no other individual or entity other than
StratReal Industrial the borrower that is liable for the non-recourse
Portfolio II carveouts.
Augusta Mall There is no other individual or entity other than
the borrower that is liable for the non-recourse
carveouts. In addition, non-recourse carveouts to
the borrower do not include damage or destruction
to the Mortgaged Property caused by the acts or
omissions of the borrower, its agents, employees or
contractors.
Fountain Apartments There is no other individual or entity other than
the borrower that is liable for the non-recourse
carveouts. In addition, non-recourse carveouts to
the borrower include damage or destruction to the
Mortgaged Property caused by the gross negligence
or willful misconduct of the borrower, its agents,
employees or contractors, rather than the acts or
omissions of the borrower, its agents, employees
or contractors.
Arches There is no other individual or entity other than
the borrower that is liable for the non-recourse
carveouts. In the event that, as a result of a
transfer, a "Morgan Entity" owns less than 10% of
the equity interest in the borrower, a person or
entity acceptable to lender is required to execute
an environmental indemnity agreement and a limited
recourse guaranty acceptable to lender. A "Morgan
Entity" means any pension fund or collective
investment fund containing pension funds, separate
accounts or other investor with respect to which
JPMorgan Chase Bank, N.A. or J.P. Morgan
Investment Management Inc. (or any affiliate,
successor or assigns thereof) acts as trustee,
agent or independent advisor.
Cedar Park Shopping Center There is no other individual or entity other than
the borrower that is liable for any breach of the
environmental covenants contained in the related
Mortgage Loan documents.
Exceptions to Representation 12
Mortgage Loan Exception
Skyline Portfolio The Mortgage Loan documents permit the related
borrower, at any time from the earlier of 3 years
from origination and the date that is 2 years from
the last securitization that includes a portion of
the note (in the original aggregate amount of
$678,000,000) and in connection with a partial
defeasance of such Mortgage Loan, to obtain the
release of some or all of the portions of the
related Mortgaged Property, subject to the
satisfaction of certain conditions, including, but
not limited to: (i) no event of default exists;
(ii) payment of (a) 100% of the allocated loan
amount as set forth in the related loan agreement
related to such property or properties to be
released which, when taken together with any
property previously released, is less than or equal
to $135,600,000; (b) 110% of the allocated loan
amount which, when taken together with any property
previously released, is greater than $135,600,000
and less than or equal to $271,200,000; (c) 115% of
the allocated loan amount which, when taken
together with any property previously released, is
greater than $271,200,000 and less than or equal to
$406,800,000; or (d) 125% of the allocated loan
amount which, when taken together with any property
previously released, is greater than $406,800,000;
(iii) delivery of a pledge and security agreement
in form and substance satisfactory to a prudent
lender and defeasance collateral meeting the
requirements of the related loan agreement; (iv)
confirmation from the rating agencies that such
release will not result in a downgrade, withdrawal
or qualification of the ratings assigned to the
Certificates; and (v) after giving effect to such
release, the debt service coverage ratio must be
not less than the greater of (a) (1) 80% of the
debt service coverage ratio for the trailing 12
months immediately preceding the release or (2) a
debt service coverage ratio in an amount sufficient
to obtain a rating agency confirmation or (b) the
debt service coverage ratio as of the closing date
of such Mortgage Loan.
StratReal Industrial The Mortgage Loan documents permit the borrower to
Portfolio II obtain the release of an individual Mortgaged
Property through partial defeasance after the
defeasance lockout period or prior to the
defeasance lockout period through partial
prepayment, at a release price equal to (i) 100%,
if 30% or less of the Mortgage Loan is being
defeased or prepaid, (ii) 110%, if more than 30%
but less than 45% of the Mortgage Loan is being
defeased and (iii) 125%, if 45% or more of the
Mortgage Loan is being defeased. A release via
prepayment prior to the lockout period is limited
to 20% of the loan amount. Additional conditions to
release include, but are not limited to the
following: (i) after giving effect to such release,
the debt service coverage ratio for the remaining
properties is at least equal to the greater of (a)
the debt service coverage ratio as of the
origination date, and (b) the debt service coverage
ratio for the remaining properties (including the
individual Mortgaged Property to be released) for
the 12 months immediately preceding the release;
and (ii) receipt of confirmation from each rating
agency then rating the Certificates that such
release will not result in a downgrade, withdrawal
or qualification of the ratings assigned to the
Certificates.
Augusta Mall 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 parking areas.
Old Mill Portfolio The Mortgage Loan documents permit the borrower to
obtain the release of one or more of the
individual Mortgaged Properties through a partial
defeasance of such Mortgage Loan after the
expiration of the defeasance lockout period,
subject to the satisfaction of certain conditions,
including but not limited to: (i) payment of 110%
of the appraised value of the individual Mortgaged
Property; (ii) after giving effect to such
release, the debt service coverage ratio for the
remaining Mortgaged Properties is at least equal
to the greater of (a) the debt service coverage
ratio as of the origination date, and (b) the debt
service coverage ratio for the remaining Mortgaged
Properties (including the individual Mortgaged
Property to be released) for the 12 months
immediately preceding the release; (iii) after
giving effect to such release, the loan-to-value
ratio for the remaining Mortgaged Properties
(calculated using the allocated loan amounts for
the properties then remaining) must be no greater
than the lesser of (a) the loan-to-value ratio
immediately preceding the origination date and (b)
) the loan-to-value ratio immediately preceding
the date of the release of the individual
Mortgaged Property (without giving effect to the
release of the individual Mortgaged Property); and
(iv) confirmation from the rating agencies that
such a release will not result in a downgrade,
withdrawal or qualification of the ratings
assigned to the Certificates.
Exceptions to Representation 16
Mortgage Loan Exception
Arches At origination, the Mortgaged Property was not in
compliance with the Americans with Disabilities
Act. The Mortgage Loan documents require that the
Mortgaged Property be brought into compliance
within six months of origination.
546 Broadway Certain certificates of occupancy were not
obtained as of the date of origination of the
Mortgage Loan. The borrower has provided a
post-closing undertaking to deliver the missing
certificates and lender held back $1,000,000 of
loan proceeds at closing, with $500,000 of such
proceeds to be released upon delivery of a
temporary certificate of occupancy and the
remainder upon delivery of a permanent certificate
of occupancy.
Riverview Office Building Certain certificates of occupancy were not obtained
as of the date of origination of the Mortgage Loan.
The borrower has provided a post-closing
undertaking to deliver the missing certificates and
a recourse carveout to indemnify the lender for
losses suffered as a result of the borrower's
failure to obtain such certificates.
Exceptions to Representation 16
Mortgage Loan Exception
Oceana Garage A portion of the Mortgaged Property is situated on
a temporary tax lot. However, the borrower has
submitted an application for a permanent tax lot to
the appropriate governmental authority and has
provided a post-closing undertaking to deliver
satisfactory evidence that the tax lot has been
obtained within 120 days of the origination date.
Exceptions to Representation 20
Mortgage Loan Exception
Augusta Mall Representation 20(c):
The related ground lease provides that lender is
entitled to become the owner of the borrower's
interest in the ground lease upon foreclosure
without the consent of the ground lessor, but it is
not further assignable thereafter without the
consent of the ground lessor.
Representation 20(d):
The ground lease is silent regarding whether
amendments thereto without lender consent are
binding on the lender. However, the loan agreement
requires lender consent to any amendment or
modification.
Representation 20(e):
The ground lease does not provide that a notice of
default and resulting termination of the ground
lease is ineffective against lender unless lender
has been given such notice. If the ground lease is
terminated, lender has the right to obtain a new
ground lease with the ground lessor.
Representation 20(h):
The ground lease provides that insurance proceeds
that are to be applied to the restoration of the
Mortgaged Property will be held by an entity
appointed by the ground lessor.
Representation 20(i):
The ground lessor has the right to approve
subleases (and consequently any related
subtenants).
Exceptions to Representation 21(d)
Mortgage Loan Exception
Augusta Mall The losses covered by the environmental indemnity
do not include losses incurred by reason of
diminution in value or punitive or consequential
damages.
Exceptions to Representation 22
Mortgage Loan Exception
Augusta Mall The borrower is permitted to maintain commercial
general liability insurance coverage issued by
either (A) an insurer having a claims paying
ability rating of "A-" or better by S&P 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" or by A.M. Best not lower than "A:X" and
which syndicate may include Factory Mutual
Insurance Company so long as Factory Mutual
Insurance Company has (i) a claims paying ability
rating of not lower than "A-" by Fitch and "A:IX"
by A.M. Best and (ii) a claims-paying ability
rating by S&P based solely on public information of
not lower than "BBBpi" (the "Factory Mutual
Qualifications").
The borrower is permitted maintain earthquake
insurance, worker's compensation and motor vehicle
insurance coverage pursuant to policies issued by
either (A) an insurer having a claims paying
ability rating of "A-" or better by S&P or (b) a
syndicate of insurers through which (i) 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, (ii) subject to the
requirement set forth in the insurance provisions
of the Loan Agreement, at least 90% of claims
coverage (inclusive of the coverage provided by
carriers described in (i) above) shall be with one
or more carriers having a claims paying ability
rating by A.M. Best of "A-VIII" or better, (iii)
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 (iv) 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 all risk,
flood insurance, business income insurance,
builder's risk insurance, comprehensive boiler
and machinery insurance and terrorism insurance
coverage with either (A) an issuer having a claims-
paying-ability rating by S&P not lower than "A-" or
by A.M. Best not lower than "A:X" or (B) a
syndicate of insurers through which at least 60%
of the coverage (if there are 4 or fewer members
of the syndicate) or at least 50% of the coverage
(if there are 5 or more members of the syndicate)
is with carriers having a claims-paying-ability
rating by S&P not lower than "A-" or by A.M. Best
not lower than "A:X" and the balance of the
coverage is, in each case, with insurers having a
claims-paying-ability rating by S&P of not lower
than "BBB", provided that in each case, the first
loss risk is borne by the carriers having a
claims-paying-rating by S&P of not lower than
"A-" by A.M. Best not lower than "A:X" and
which syndicate may include Factory Mutual
Insurance Company so long as Factory Mutual
Insurance Company satisfies the Factory Mutual
Qualifications.
Fountain Apartments The borrower is permitted to maintain property
insurance coverage with a syndicate of insurers,
provided that at least 60% or 75% of the coverage
(depending on the number of insurers in the
syndicate) coverage is with carriers having a
claims-paying ability rating by S&P not lower than
"A" and the equivalent rating by one of the other
rating agencies and the balance of the coverage
is, in each case with insurers having a
claims-paying-ability rating by S&P not lower than
"BBB" and the equivalent rating by one of the
other rating agencies and that the first loss
position is borne by carriers having a
claims-paying ability rating by S&P not lower than
"A".
Cedar Park Shopping Center The borrower is permitted to maintain insurance
coverage issued by one or more financially sound
and responsible insurance companies authorized to
do business in the state in which the Mortgaged
Property is located and, with respect to the
carrier covering the $15,000,000 primary layer of
coverage, having a claims paying ability rating of
"A-" or better by S&P and the equivalent rating by
one of the other rating agencies.
LaSalle Bank Branch The borrower is not required to maintain business
Portfolio, LaSalle Bank - interruption insurance for so long as LaSalle
79th Street National Association ("LaSalle") is the tenant,
provided that, LaSalle is required to pay rent
regardless of business interruption.
Exceptions to Representation 30
Mortgage Loan Exception
Exceptions to Representation 32
Mortgage Loan Exception
Solana The Mortgage Loan documents permit certain
transfers of indirect ownership interests in the
borrower consisting of ownership interests in, or
at any level above the level of MP-Solana Junior
Mezzanine 2006, LLC (the mezzanine B borrower), to
(i) a "Qualified Transferee" or (ii) a joint
venture between an affiliate of the borrower and a
"Qualified Transferee," subject to satisfaction of
specified conditions. A "Qualified Transferee"
shall mean any one of the following persons: (a) a
pension fund, pension trust or pension account
that has total real estate assets of at least $1
billion (exclusive of the Mortgaged Property); (b)
a pension fund advisor who immediately prior to
such transfer, controls at least $1 billion of
real estate assets (exclusive of the Mortgaged
Property); (c) an insurance company which is
subject to supervision by the insurance
commissioner, or similar official or agency, of a
state or territory of the United States (including
the District of Columbia) (i) 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
(ii) who, immediately prior to such transfer,
controls real estate assets of at least $1
billion; (d) 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) with a combined capital and
surplus of at least $500 million; or (e) any
person (i) with a long-term unsecured debt rating
from each of the rating agencies of at least
investment grade and is regularly engaged (itself
or through a subsidiary) in making commercial real
estate loans or owning commercial real estate or
(ii) who together with its affiliates (A) owns or
operates six (6) Class "A" office projects
totaling at least 3,000,000 square feet of gross
leasable area of space comparable to (and
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 $500 million and (C) immediately prior to
such transfer, owns (itself or through a
subsidiary) real estate assets of at least $1
billion.
In addition, the sole member of the borrower
pledged 100% of its membership interest in the
borrower as security for a $35,000,000 loan. An
intercreditor agreement in favor of the lender was
executed.
StratReal Industrial Subject to the satisfaction of certain conditions
Portfolio II, set forth in the Mortgage Loan documents,
Augusta Mall, including the satisfaction of LTV and DSCR tests,
80 W. Lancaster the equity holder of the borrower is permitted to
Ave., Riverview Office incur mezzanine debt.
Building, Cedar Park
Shopping Center
and Legacy at Wesleyan
Augusta Mall 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)
confirmation from the rating agencies 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 confirmation
from the rating agencies 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.
Arches The Mortgage Loan documents permit: (i) transfers
of ownership interests in the borrower among the
borrower's members, including the transfer of a
member's entire ownership interest to the other
members; and (ii) transfers of direct or indirect
ownership interests in a member of the borrower,
provided that (A) the transferee is controlled
by, controlling or under common control with the
transferor, (B) the transferee is a government
plan, investment fund or pension fund with
respect to which JPMorgan Chase Bank, N.A. or
J.P. Morgan Investment Management Inc. or one of
its affiliates or subsidiaries acts as the
trustee, agent or investment advisor, or (C)
following any such transfer, control of such
ember continues to be vested in the same
individuals who controlled such member prior to
the transfer; provided that (1) no transfer may
be made to any Prohibited Person (as defined in
the loan agreement), (2) the proposed transferee
and the borrower must continue to comply with the
covenants set forth in the Mortgage Loan
documents, and (3) with respect to clause (ii)
above, if such transfer results in a transfer in
one or a series of transactions of more than 49%
of the direct or indirect stock, limited
partnership interests or non-managing membership
interest in a "Restricted Party," lender reserves
the right to condition such transfers on receipt
of confirmation from each rating agency then
rating the Certificates that such transfer will
not result in a downgrade, withdrawal or
qualification of the ratings assigned to the
Certificates and a new non-consolidation opinion.
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.
80 W. Lancaster Ave. 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; and (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 a
required borrower principal, provided that such
required borrower principal must retain control
of the sponsor borrower and the property manager.
Exceptions to Representation 34
Mortgage Loan Exception
Certain Mortgage Loans In connection with a defeasance of certain of the
Mortgage Loans, a successor borrower is subject to
approval from the applicable rating agencies rather
than the holder of the Mortgage Loan.
Exceptions to Representation 35
Mortgage Loan Exception
Skyline Portfolio The Mortgage Loan documents permit the related
borrower, at any time from the earlier of 3 years
from origination and the date that is 2 years from
the last securitization that includes a portion of
the note (in the original aggregate amount of
$678,000,000) and in connection with a partial
defeasance of such Mortgage Loan, to obtain the
release of some or all of the portions of the
related Mortgaged Property, subject to the
satisfaction of certain conditions, including, but
not limited to: (i) no event of default exists;
(ii) payment of (a) 100% of the allocated loan
amount as set forth in the related loan agreement
related to such property or properties to be
released which, when taken together with any
property previously released, is less than or
equal to $135,600,000; (b) 110% of the allocated
loan amount which, when taken together with any
property previously released, is greater than
$135,600,000 and less than or equal to
$271,200,000; (c) 115% of the allocated loan
amount which, when taken together with any
property previously released, is greater than
$271,200,000 and less than or equal to
$406,800,000; or (d) 125% of the allocated loan
amount which, when taken together with any
property previously released, is greater than
$406,800,000; (iii) delivery of a pledge and
security agreement in form and substance
satisfactory to a prudent lender and defeasance
collateral meeting the requirements of the related
loan agreement; (iv) confirmation from the rating
agencies that such release will not result in a
downgrade, withdrawal or qualification of the
ratings assigned to the Certificates; and (v)
after giving effect to such release, the debt
service coverage ratio must be not less than the
greater of (a) (1) 80% of the debt service
coverage ratio for the trailing 12 months
immediately preceding the release or (2) a debt
service coverage ratio in an amount sufficient to
obtain a rating agency confirmation or (b) the
debt service coverage ratio as of the closing date
of such Mortgage Loan.
StratReal Industrial The Mortgage Loan documents permit the borrower to
Portfolio II obtain the release of an individual Mortgaged
Property through partial defeasance or prior to
the defeasance lockout period through partial
prepayment, at a release price equal to (i) 100%,
if 30% or less of the Mortgage Loan is being
defeased or prepaid, (ii) 110%, if more than 30%
but less than 45% of the Mortgage Loan is being
defeased and (iii) 125%, if 45% or more of the
Mortgage Loan is being defeased. A release via
prepayment is limited to 20% of the allocated loan
amount. Additional conditions to release include,
but are not limited to, the following: (i) after
giving effect to such release, the debt service
coverage ratio for the remaining properties is at
least equal to the greater of (a) the debt service
coverage ratio as of the origination date, and (b)
the debt service coverage ratio for the remaining
properties (including the individual Mortgaged
Property to be released) for the 12 months
immediately preceding the release; and (ii)
receipt of confirmation from each rating agency
then rating the Certificates that such release
will not result in a downgrade, withdrawal or
qualification of the ratings assigned to the
Certificates.
Old Mill Portfolio The Mortgage Loan documents permit the borrower to
obtain the release of one or more of the
individual Mortgaged Properties through a partial
defeasance of such Mortgage Loan after the
expiration of the defeasance lockout period,
subject to the satisfaction of certain conditions,
including but not limited to: (i) payment of 110%
of the appraised value of the individual Mortgaged
Property; (ii) after giving effect to such
release, the debt service coverage ratio for the
remaining Mortgaged Properties is at least equal
to the greater of (a) the debt service coverage
ratio as of the origination date, and (b) the debt
service coverage ratio for the remaining Mortgaged
Properties (including the individual Mortgaged
Property to be released) for the 12 months
immediately preceding the release; (iii) after
giving effect to such release, the loan-to-value
ratio for the remaining Mortgaged Properties
(calculated using the allocated loan amounts for
the properties then remaining) must be no greater
than the lesser of (a) the loan-to-value ratio
immediately preceding the origination date and (b)
the loan-to-value ratio immediately preceding the
date of the release of the individual Mortgaged
Property (without giving effect to the release of
the individual Mortgaged Property); and (iv)
confirmation from the rating agencies that such a
release will not result in a downgrade, withdrawal
or qualification of the ratings assigned to the
Certificates.
Exceptions to Representation 42
Mortgage Loan Exception
Skyline Portfolio The borrower is only required to maintain
terrorism insurance coverage to the extent
obtainable for an annual premium that is not in
excess of $625,000.
Solana The borrower is not required to obtain and
maintain terrorism insurance in an amount greater
than the amount of terrorism insurance that is
available for an annual premium 1.5 times the
amount of the annual premium for the all-risk
coverage then in effect. The terrorism cap does
not apply if (A) owners and/or operators of
properties in the same class as the Mortgaged
Property in Tarrant County, Texas are generally
obtaining terrorism insurance, (B) lenders
financing such properties in the same class as the
Mortgaged Property in Tarrant County, Texas are
generally requiring terrorism insurance as a
condition of financing, or (C) the principal, any
affiliates of the borrower, any transferee of the
principal, or any of their affiliates, are
obtaining terrorism insurance on any other
properties in Tarrant County, Texas which any of
the foregoing persons own or operate.
StratReal Industrial The borrower is not required to obtain and
Portfolio II maintain terrorism insurance in an amount greater
than the amount of terrorism insurance that is
available for an annual premium 2 times the amount
of the annual premium for the all-risk coverage
then in effect. The terrorism cap does not apply
if (A) owners and/or operators of office buildings
in the same class as any individual property in
the state in which such individual property is
located are generally obtaining terrorism
insurance, (B) lenders financing such office
buildings in the same class as any individual
property in the state in which such individual
property is located are generally requiring
terrorism insurance as a condition of financing,
or (C) the borrower principal or any affiliates of
the borrower principal or any transferee of the
borrower principal or any of its affiliates, is
obtaining terrorism insurance on any other
properties in any state in which any of the
foregoing persons own or operate.
Fountain Apartments The borrower is not required to obtain and
maintain terrorism insurance in an amount greater
than the amount of terrorism insurance that is
available for an annual premium 2 times the amount
of the annual premium for the insurance polices
required to be maintained during the prior
calendar year. The terrorism cap does not apply if
(A) the insurance policies of owners and/or
operators of multifamily apartment complexes in
the same class as the Mortgaged Property generally
cover terrorism perils or acts or other similar
acts or events without limitation based on cost,
(B) lenders originating loans secured by
multifamily apartment complexes in the same class
as the Mortgaged Property are generally requiring
terrorism insurance as a condition of financing
without limitation based on cost, or (C) the
borrower or any affiliate of the borrower
principal or any transferee of the borrower or any
of its affiliates has obtained terrorism insurance
on any other properties located in the state where
the Mortgaged Property is located.
Arches The borrower is permitted to maintain insurance
policies which exclude risks associated with
terrorism if terrorism insurance coverage is (i)
not available from any insurance company licensed
in Sunnyvale, California or (ii) not customarily
required by lender in connection with similar
loans on similarly-situated properties. However,
if terrorism insurance is available but not at a
commercially reasonable rate, 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).
Exceptions to Representation 44
Mortgage Loan Exception
All Mortgage Loans The related Mortgage Loan documents require the
borrower to maintain comprehensive "all risk"
coverage, which is interpreted by the Seller to
include the risks specified in representation
(44). As of the date of origination, each
Mortgaged Property is insured in accordance with
representation (44).
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
I, [______], a duly appointed, qualified and acting [______] of
[___________], a [________] [______] (the "Company"), hereby certify on behalf
of the Company as follows:
1.____I have examined the Mortgage Loan Purchase Agreement, dated as of
March 1, 2007 (the "Agreement"), between the Company and 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 March 9, 2007, as supplemented by the Prospectus Supplement,
dated March 26, 2007 (collectively, the "Prospectus"), relating to the offering
of the Class A-1, Class A-1S, Class A-2, Class A-2S, Class A-2SFL, Class A-3,
Class A-3S, Class A-1A, Class X, Class A-M, Class A-MS, Class A-J, Class A-JFL,
Class A-JS, Class B-S, Class C-S and Class D-S Certificates, the Private
Placement Memorandum, dated March 26, 2007 (the "Privately Offered Certificate
Private Placement Memorandum"), relating to the offering of the Class B, Class
C, Class D, Class E, Class E-S, Class F, Class F-S, Class G, Class G-S, Class H,
Class H-S, Class J, Class K, Class L, Class M, Class N, Class P and Class NR
Certificates, and the Residual Private Placement Memorandum, dated March 26,
2007 (together with the Privately Offered Certificate Private Placement
Memorandum, the "Private Placement Memoranda"), relating to the offering of the
Class R, Class MR and Class LR Certificates, and nothing has come to my
attention that would lead me to believe that the Prospectus, as of the date of
the Prospectus Supplement or as of the date hereof, or the Private Placement
Memoranda, as of the date of the Private Placement Memoranda or as of the date
hereof, included or includes any untrue statement of a material fact relating to
the Mortgage Loans or omitted or omits to state therein a material fact
necessary in order to make the statements therein relating to the Mortgage
Loans, in light of the circumstances under which they were made, not misleading.
Capitalized terms used herein without definition have the meanings given
them in the Agreement.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, I have signed my name this ___ day of March, 2007.
By:
Name:
Title:
SCHEDULE I
MORTGAGE LOANS FOR WHICH A LENDER'S ENVIRONMENTAL POLICY WAS
OBTAINED IN LIEU OF AN ENVIRONMENTAL SITE ASSESSMENT
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph number set forth below.
Paragraph 21(a) and (e):
None.
SCHEDULE II
MORTGAGED PROPERTY FOR WHICH 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 10.5
J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER
PNC BANK, NATIONAL ASSOCIATION,
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of March 1, 2007
Fixed Rate Mortgage Loans
Series 2007-LDP10
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of March 1, 2007, 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 March 1, 2007 (the "Pooling and Servicing Agreement") among the Purchaser,
as depositor (the "Depositor"), Midland Loan Services, Inc. and Wachovia Bank,
National Association, as master servicers (each, a "Master Servicer"), J.E.
Robert Company, Inc., as special servicer (the "Special Servicer"), Wells Fargo
Bank, N.A., as trustee (the "Trustee") and LaSalle Bank National Association, as
co-trustee (the "Co-Trustee"), pursuant to which the Purchaser will sell the
Mortgage Loans (as defined herein) to a trust fund and certificates representing
ownership interests in the Mortgage Loans will be issued by the trust fund. For
purposes of this Agreement, the term "Mortgage Loans" refers to the mortgage
loans listed on Exhibit A 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 $151,212.34, which amount represents the aggregate
amount of interest that would have accrued at the related Mortgage Rates on the
applicable Mortgage Loans commencing March 1, 2007 for those Mortgage Loans that
do not have a Due Date in April 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-3S, Class
A-1A, Class X, Class A-M, Class A-MS, Class A-J, Class A-JFL, Class A-JS, Class
B-S, Class C-S and Class D-S Certificates (the "Offered Certificates") to the
underwriters (the "Underwriters") specified in the underwriting agreement dated
March 26, 2007 (the "Underwriting Agreement") between the Depositor and J.P.
Morgan Securities Inc. ("JPMSI") for itself and as representative of the several
underwriters identified therein, and the Depositor will sell the Class B, Class
C, Class D, Class E, Class E-S, Class F, Class F-S, Class G, Class G-S, Class H,
Class H-S, Class J, Class K, Class L, Class M, Class N, Class P and Class NR
Certificates (the "Private Certificates") to JPMSI and UBS Securities LLC, the
initial purchasers (together with the Underwriters, the "Dealers") specified in
the certificate purchase agreement dated March 26, 2007 (the "Certificate
Purchase Agreement"), between the Depositor and JPMSI for itself and as
representative of the initial purchasers identified therein.
The sale and conveyance of the 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 $281,178,847.50
(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 March 26,
2007 between the Purchaser and the Seller (the "Indemnification Agreement"); and
(d) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any Companion Loan related to a Serviced Whole Loan or any
Serviced Securitized Companion Loan that is deposited into an Other
Securitization or a Regulation AB Companion Loan Securitization, the depositor
in such Other Securitization or Regulation AB Companion Loan Securitization) and
the Trustee with any Additional Form 10-D Disclosure and any Additional Form
10-K Disclosure set forth next to the Purchaser's name 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 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 the Term Sheet (as defined in the Indemnification Agreement), or
items similar to the Term Sheet, including the cost of obtaining any "comfort
letters" with respect to such items; (v) the costs and expenses in connection
with the qualification or exemption of the Certificates under state securities
or blue sky laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith; (vi) the costs and expenses in connection with
any determination of the eligibility of the Certificates for investment by
institutional investors in any jurisdiction and the preparation of any legal
investment survey, including reasonable fees and disbursements of counsel in
connection therewith; (vii) the costs and expenses in connection with printing
(or otherwise reproducing) and delivering the Registration Statement, Prospectus
and Memoranda, and the reproduction and delivery of this Agreement and the
furnishing to the Underwriters of such copies of the Registration Statement,
Prospectus, Memoranda and this Agreement as the Underwriters may reasonably
request; (viii) the fees of the rating agency or agencies requested to rate the
Certificates and (ix) the reasonable fees and expenses of 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/ Dennis Schuh
-------------------------------------
Name: Dennis Schuh
Title: Executive Director
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 2007-LDP10
Mortgage Loan Schedule (PNC)
Loan
Loan # Seller Mortgagor Name Property Address
------------------------------------------------------------------------------------------------------------------------------------
65 PNC Anchor Government Properties I, LLC Various
65.01 PNC Anchor Government Properties I, LLC 274 E. First Avenue
65.02 PNC Anchor Government Properties I, LLC 400 E Campus View Boulevard
65.03 PNC Anchor Government Properties I, LLC 1030 & 1100 Alum Creek Drive
65.04 PNC Anchor Government Properties I, LLC 350 Broad Street
65.05 PNC Anchor Government Properties I, LLC 33 N Grant Avenue
82 PNC MBS-Ashley House, LTD 3903 South Mason Road
87 PNC Case-Remington Limited Partnership 8801 Tarter Avenue
93 PNC Notohio, LLC 5801 East Taft Road
103 PNC Aero Investments DL, LLC, Matt and Melissa Kelly, LLC,
Metro Office, LLC 10000 North 31st Avenue
104 PNC Beechwood Lodging, LLC 3840 Orange Place
115 PNC Longford Plaza III, LLC 3199-3291 E. Warm Springs Road
118 PNC MSF Niskayuna, LLC 3333 Consaul Road
120 PNC Rose FP, LLC 2370 West Warrior Trail
126 PNC Alabama Hotel Properties, LLC 7651 Eastchase Parkway
127 PNC 37 Hotel Munster, LLC 8936 Calumet Avenue
134 PNC Creekstone Tamiami West, LLC 14270 SW 8th Street
151 PNC SGI-Walpole, LLC 500 Providence Highway
156 PNC South Sierra Plaza, LLC 10650-64 Sierra Avenue
157 PNC Palm Ridge Gateway, LLC 4350, 4370 & 4380 Palm Avenue
161 PNC Sims Road Industrial Leasing, LLC 6100 Sims Road
171 PNC Crossroads Hospitality Services, LLC 80 Clyde E. Martin Drive
173 PNC 3605 Long Beach Boulevard, LLC 3605 Long Beach Blvd
175 PNC MSF Oakdale, LLC 175 Maag Avenue
176 PNC Watt-Fair Oaks Professional Centre, LLC 591 Watt Avenue and 3461 Fair Oaks Boulevard
178 PNC Libby Manchester Enterprises, LLC 5752 Harrison Avenue
184 PNC Rosewood VIII Real Estate Trust 63-65 South Street
185 PNC Watt-Folsom Executive Plaza, LLC 8785 & 8795 Folsom Boulevard
188 PNC Desert Winds 44, Ltd. 102-197 Desert Winds Way
193 PNC PDL Investors III, LLC 7902 South Sheridan
200 PNC Aztec Square, LLC 1616 East Indian School Road
204 PNC 107th Avenue Partners, LLC 10730 - 10740 West Lower Buckeye Rd
206 PNC Chase Building Associates Limited Partnership II 44 Front Street
207 PNC PDL Investors II, LLC 2218 East 59th Street
211 PNC Painted Post Lodging Associates, LLC 9775 Victory Highway
216 PNC Salem Crossing, LLC 92 River Road
220 PNC Warne West Investments LLP 3707-57 E. Broadway Road
226 PNC Prime Properties Slate Ridge, LLC , Rockmill Investments, LLC 1880 Baltimore Reynoldsburg Road
Loan # City State Zip Code County Property Name Size Measure
------------------------------------------------------------------------------------------------------------------------------------
65 Columbus OH Various Franklin Anchor Government Assets Portfolio 371702 Square Feet
65.01 Columbus OH 43201 Franklin 274 E First Avenue 132301 Square Feet
65.02 Columbus OH 43235 Franklin 400 E Campus View Boulevard 142246 Square Feet
65.03 Columbus OH 43209 Franklin 1030 & 1100 Alum Creek Drive 58450 Square Feet
65.04 Columbus OH 43215 Franklin 350 Broad Street 25658 Square Feet
65.05 Columbus OH 43215 Franklin 33 N Grant Avenue 13047 Square Feet
82 Katy TX 77450 Fort Bend Ashley House Apartment Homes 276 Units
87 Amarillo TX 79119 Randall Remington Apartments 288 Units
93 Cicero NY 13212 Onondaga Airport Business Park 210168 Square Feet
103 Phoenix AZ 85051 Maricopa Metrocenter Business Park - Phoenix 132212 Square Feet
104 Orange Village OH 44122 Cuyahoga Hampton Inn & Suites - Beachwood 139 Rooms
115 Las Vegas NV 89120 Clark Longford Plaza III 58178 Square Feet
118 Niskayuna NY 12309 Schenectady Niskayuna Square 86329 Square Feet
120 Grand Prairie TX 75052 Tarrant Chiquita Cold Storage Building 112741 Square Feet
126 Montgomery AL 36117 Montgomery Hampton Inn & Suites - Montgomery 102 Rooms
127 Munster IN 46321 Lake Hampton Inn & Suites - Munster 91 Rooms
134 Miami FL 33184 Dade Tamiami West Shopping Center 35309 Square Feet
151 Walpole MA 02081 Norfolk Stor Gard Self Storage 692 Units
156 Fontana CA 92337 San Bernardino South Sierra Plaza Retail 25164 Square Feet
157 San Diego CA 92154 San Diego Palm Ridge Shopping Center - San Diego 23494 Square Feet
161 Sterling Heights MI 48313 Macomb Faurecia Automotive Seating 91454 Square Feet
171 Savannah GA 31408 Chatham Hilton Garden Inn - Savannah Airport 105 Rooms
173 Long Beach CA 90807 Los Angeles 3605 Long Beach Blvd 67040 Square Feet
175 Oakdale CA 95361 Stanislaus K-Mart Store - Oakdale 86479 Square Feet
176 Sacramento CA 95864 Sacramento Watt-Fair Oaks Professional Centre 34944 Square Feet
178 Cincinnati OH 45248 Hamilton Manchester Plaza 85314 Square Feet
184 Hopkinton MA 01748 Middlesex 63-65 South Street - Hopkinton 58584 Square Feet
185 Sacramento CA 95826 Sacramento College Green Executive Plaza 42759 Square Feet
188 Mesquite NV 89027 Clark Desert Winds Townhomes 44 Units
193 Tulsa OK 74133 Tulsa Timberline Apartments 168 Units
200 Phoenix AZ 85012 Maricopa Aztec Office Building 56044 Square Feet
204 Avondale AZ 85353 Maricopa Sanctuary at Avondale 16053 Square Feet
206 Worcester MA 01608 Worcester The Chase Building 67618 Square Feet
207 Tulsa OK 74105 Tulsa Turtle Creek Park 101 Units
211 Painted Post NY 14870 Steuben Hampton Inn- Painted Post 67 Rooms
216 Summit NJ 07901 Union Solomon Headquarters 16969 Square Feet
220 Phoenix AZ 85040 Maricopa Broadway Plaza East 136582 Square Feet
226 Reynoldsburg OH 43068 Franklin WesBanco Bank Branch 3362 Square Feet
Net
Mortgage
Interest Interest Original Cutoff Rem. Maturity Amort. Rem. Monthly
Loan # Rate % Rate Balance Balance Term Term /ARD Date Term Amort. Debt Service
---------------------------------------------------------------------------------------------------------------------------------
65 5.67000 5.63961 30,880,000 30,781,211 120 118 01/01/17 300 298 192,778
65.01 5.67000 5.67000 12,160,000 12,121,099 120 118 01/01/17 300 298
65.02 5.67000 5.67000 11,440,000 11,403,402 120 118 01/01/17 300 298
65.03 5.67000 5.67000 4,160,000 4,146,692 120 118 01/01/17 300 298
65.04 5.67000 5.67000 2,240,000 2,232,834 120 118 01/01/17 300 298
65.05 5.67000 5.67000 880,000 877,185 120 118 01/01/17 300 298
82 5.55000 5.49961 21,500,000 21,500,000 120 119 02/01/17 360 360 122,750
87 5.73000 5.69961 19,000,000 19,000,000 120 115 10/01/16 360 360 110,638
93 5.79000 5.75961 16,280,000 16,280,000 120 120 04/01/17 360 360 95,420
103 5.93000 5.86961 13,768,000 13,768,000 120 119 02/01/17 360 360 81,928
104 5.79000 5.75961 13,700,000 13,669,352 120 118 01/01/17 360 358 80,298
115 5.76000 5.69961 12,000,000 12,000,000 120 119 02/01/17 360 360 70,105
118 5.79000 5.75961 11,680,000 11,680,000 120 120 03/01/17 360 360 68,458
120 5.66000 5.59961 11,350,000 11,334,377 120 119 02/01/17 360 359 65,588
126 6.12000 6.08961 10,400,000 10,400,000 60 58 01/01/12 360 360 63,158
127 6.08000 6.04961 10,400,000 10,386,291 120 119 02/01/17 360 359 62,889
134 6.14000 6.10961 9,100,000 9,100,000 120 112 07/01/16 360 360 55,381
151 5.90000 5.86961 7,000,000 7,000,000 120 120 03/01/17 360 360 41,520
156 6.10000 6.06961 6,500,000 6,500,000 120 120 03/01/17 360 360 39,390
157 5.98000 5.89961 6,423,000 6,423,000 120 120 03/01/17 360 360 38,427
161 5.94000 5.87961 6,300,000 6,300,000 120 120 03/01/17 360 360 37,529
171 5.87000 5.83961 5,825,000 5,814,525 120 119 02/01/17 300 299 37,069
173 5.84000 5.77961 5,600,000 5,600,000 120 120 03/01/17 360 360 33,001
175 5.79000 5.75961 5,455,000 5,455,000 120 119 02/01/17 360 360 31,973
176 5.88000 5.84961 5,400,000 5,400,000 120 119 02/01/17 360 360 31,960
178 5.88000 5.84961 5,100,000 5,100,000 120 119 02/01/17 300 300 32,486
184 5.93000 5.86961 4,600,000 4,600,000 120 120 03/01/17 360 360 27,373
185 5.53000 5.49961 4,525,000 4,525,000 120 119 02/01/17 360 360 25,778
188 6.16000 6.09961 4,300,000 4,290,945 120 118 01/01/17 360 358 26,225
193 5.70000 5.66961 4,109,000 4,109,000 120 120 04/01/17 360 360 23,849
200 5.95000 5.86961 3,740,000 3,740,000 120 120 04/01/17 360 360 22,303
204 5.61000 5.54961 3,400,000 3,400,000 120 120 04/01/17 360 360 19,540
206 5.93000 5.86961 3,200,000 3,200,000 120 120 03/01/17 360 360 19,042
207 5.70000 5.66961 3,125,000 3,125,000 120 120 04/01/17 360 360 18,138
211 5.84000 5.69961 3,050,000 3,040,466 120 118 01/01/17 300 298 19,354
216 5.64000 5.60961 2,700,000 2,700,000 120 119 02/01/17 360 360 15,568
220 6.16000 6.12961 2,510,000 2,493,957 120 119 02/01/17 120 119 28,068
226 5.80000 5.71961 1,750,000 1,750,000 120 120 03/01/17 360 360 10,268
ARD
Servicing Accrual ARD Step Up Title Crossed Originator/
Loan # Fee Rate Type (Y/N) (%) Type Loan Loan Seller Guarantor
------------------------------------------------------------------------------------------------------------------------------------
65 0.03000 Actual/360 No 0 Fee PNC Larry Gunsorek, Jason Gunsorek
65.01 0.00000 No Fee PNC
65.02 0.00000 No Fee PNC
65.03 0.00000 No Fee PNC
65.04 0.00000 No Fee PNC
65.05 0.00000 No Fee PNC
82 0.05000 Actual/360 No Fee PNC Michael B. Smuck, Edwin A. White
87 0.03000 Actual/360 No Fee PNC Case-Remington Limited Partnership
93 0.03000 Actual/360 No Fee PNC BENDERSON 1985-1 TRUST
103 0.06000 Actual/360 No Fee PNC Henry Hohenstein, Matt W. Kelly, Thomas M. Murray
104 0.03000 Actual/360 No Fee PNC Benderson 85-1 Trust
115 0.06000 Actual/360 No Fee PNC Murtagh Family Living Trust
118 0.03000 Actual/360 No Fee PNC BENDERSON 1985-1 TRUST
120 0.06000 Actual/360 No Fee PNC Mark T. Lambert, Craig A. Whitehead, Lawrence Lantero,
Jr., Joseph Grendys
126 0.03000 Actual/360 No Fee PNC Richard C. Tyre
127 0.03000 Actual/360 No Fee PNC David Roberts
134 0.03000 Actual/360 No Fee PNC Michael F. Preston, Everett Jackson, Steve Keller
151 0.03000 Actual/360 No Fee PNC Nicholas P. Abraham, Nicholas A. Abraham
156 0.03000 Actual/360 No Fee PNC David Wiener
157 0.08000 Actual/360 No Fee PNC Bradley Decendents Trust - E, Linda Dowdy Revocable
Trust
161 0.06000 Actual/360 No Fee PNC John Secco, Gaetano Rizzo
171 0.03000 Actual/360 No Leasehold PNC Douglas H. Lambert, William R. Hickman, Jr.
173 0.06000 Actual/360 No Fee PNC Donald Y. Lam
175 0.03000 Actual/360 No Fee PNC Randall Benderson 1993-1 Trust
176 0.03000 Actual/360 No Fee PNC Mark C. Lucas
178 0.03000 Actual/360 No Fee PNC Harold L. Libby, James A. Libby, Robert S. Libby
184 0.06000 Actual/360 No Fee PNC Robert J. Depietri, Jr., Robert Depietri, Sr.
185 0.03000 Actual/360 No Fee PNC Mark C. Lucas, Richard Quintero
188 0.06000 Actual/360 No Fee PNC Investment Concepts Inc.
193 0.03000 Actual/360 No Fee PNC Michael Nuanes, Mike Curtis, Timothy Bonner
200 0.08000 Actual/360 No Fee PNC Monty S. Coury, Pete S. Coury
204 0.06000 Actual/360 No Fee PNC 107th Avenue Partners, LLC
206 0.06000 Actual/360 No Fee PNC Robert J Depietri Sr., Robert J. Depietri Jr.
207 0.03000 Actual/360 No Fee PNC Michael Nuanes, Mike Curtis, Timothy Bonner
211 0.14000 Actual/360 No Fee PNC Hemant Patel, Hasmukh Patel
216 0.03000 Actual/360 No Fee PNC Mark Rosen, Marc Solomon
220 0.03000 Actual/360 No Fee PNC Warne West Investments LLP
226 0.08000 Actual/360 No Fee PNC Frank J. Cipriano, William R. Heifner
Upfront Upfront Upfront Upfront Upfront Upfront Upfront
Letter CapEx Eng. Envir. TI/LC Re Tax Ins. Other
Loan # of Credit Reserve Reserve Reserve Reserve Reserve Reserve Reserve
------------------------------------------------------------------------------------------------------------------------------------
65 No 0.00 0.00 1,500.00 1,500,000.00 129,358.57 41,911.08 20,000.00
65.01
65.02
65.03 No
65.04
65.05
82 No 0.00 400,000.00 0.00 0.00 67,675.00 16,307.66 500,000.00
87 No 0.00 0.00 0.00 0.00 38,511.67 8,184.50 0.00
93 No 0.00 0.00 500.00 0.00 40,742.75 0.00 0.00
103 No 0.00 0.00 0.00 300,000.00 0.00 1,834.16 0.00
104 No 0.00 0.00 0.00 0.00 194,394.42 0.00 0.00
115 No 0.00 0.00 0.00 0.00 7,000.00 10,777.25 0.00
118 No 0.00 0.00 0.00 0.00 220,555.89 0.00 0.00
120 4,500,000.0 0.00 0.00 0.00 0.00 0.00 0.00 0.00
126 No 0.00 0.00 0.00 0.00 14,000.00 25,764.00 0.00
127 No 0.00 0.00 0.00 0.00 47,166.66 12,521.25 0.00
134 No 0.00 0.00 0.00 35,846.00 168,825.00 71,310.33 0.00
151 No 0.00 0.00 0.00 0.00 17,740.30 3,383.33 0.00
156 No 0.00 0.00 0.00 0.00 5,507.05 1,927.09 0.00
157 No 0.00 48,188.00 0.00 0.00 3,018.34 9,586.66 0.00
161 No 0.00 0.00 0.00 0.00 7,389.84 15,527.00 0.00
171 No 0.00 0.00 0.00 0.00 47,145.84 17,256.50 0.00
173 No 0.00 0.00 0.00 0.00 3,116.00 3,497.00 0.00
175 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
176 No 0.00 0.00 1,000.00 0.00 43,097.73 4,006.66 0.00
178 No 0.00 0.00 0.00 0.00 22,657.24 0.00 0.00
184 No 0.00 24,625.00 9,000.00 0.00 18,269.26 4,550.00 150,000.00
185 No 68,081.00 0.00 1,000.00 0.00 37,516.44 3,683.75 0.00
188 No 0.00 0.00 0.00 0.00 8,476.89 10,277.00 0.00
193 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
200 No 0.00 0.00 0.00 60,000.00 10,167.00 1,060.00 0.00
204 No 0.00 0.00 0.00 0.00 3,633.33 4,021.67 0.00
206 No 0.00 0.00 0.00 0.00 17,545.44 15,302.50 0.00
207 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
211 No 0.00 0.00 0.00 0.00 11,137.50 7,854.00 96,937.50
216 No 0.00 0.00 0.00 0.00 10,575.76 0.00 3,000.00
220 No 0.00 0.00 0.00 0.00 0.00 0.00 0.00
226 No 0.00 0.00 0.00 0.00 13,848.33 570.33 0.00
Monthly Monthly Monthly Monthly
Envir. TI/LC RE Tax Ins.
Loan # Monthly Capex Reserve Reserve Monthly Reserve Reserve
------------------------------------------------------------------------------------------------------------------------------------
65 6449.42 0.00 25000.00 43119.52 4450.58
65.01
65.02
65.03
65.04
65.05
82 5750.00 0.00 0.00 33837.50 8153.83
87 0.00 0.00 0.00 3851.17 4092.25
93 1751.42 0.00 0.00 0.00 0.00
103 2203.50 0.00 0.00 21048.79 917.08
104 $9,538.25 the first month, 3% of gross revenues thereafter. 0.00 0.00 0.00 0.00
115 969.67 0.00 3333.33 7000.00 979.75
118 1817.25 0.00 0.00 0.00 0.00
120 1130.00 0.00 0.00 0.00 0.00
126 $5,676.93 the first month, 2% of gross revenues for 2007, 2.5% for
2008, 3% for 2009, 3.5% for 2010, and 4% thereafter 0.00 0.00 7000.00 0.00
127 $4,967.65 the first month, 4% of gross revenues thereafter 0.00 0.00 9433.33 2504.25
134 441.33 0.00 4166.67 18758.33 0.00
151 946.67 0.00 0.00 0.00 845.83
156 314.50 0.00 3000.00 3823.51 385.42
157 515.17 0.00 2000.00 3018.34 1198.33
161 762.08 0.00 0.00 0.00 0.00
171 $11,314.04 for the first month, 4% of gross revenues thereafter 0.00 0.00 9429.17 0.00
173 1117.33 0.00 4166.67 3115.68 1165.67
175 0.00 0.00 0.00 0.00 0.00
176 618.42 0.00 2083.33 6216.48 801.33
178 1066.42 0.00 0.00 5749.72 0.00
184 1298.33 0.00 4166.67 6089.75 455.00
185 721.42 0.00 2083.33 6459.70 736.75
188 916.67 0.00 0.00 4238.45 856.42
193 3500.00 0.00 0.00 4603.16 2868.19
200 1205.58 0.00 2500.00 10166.50 264.92
204 200.67 0.00 1000.00 3633.33 402.17
206 1127.00 0.00 4166.67 5777.36 1530.25
207 0.00 0.00 0.00 3062.36 1863.80
211 $4,743.79 the first month, 4% of gross revenues thereafter 0.00 0.00 4712.50 0.00
216 0.00 0.00 0.00 5287.92 0.00
220 0.00 0.00 0.00 0.00 0.00
226 56.00 0.00 0.00 3462.23 142.58
Remaining
Interest Final Amortization
Grace Lockbox Property Defeasance Accrual Loan Maturity Term for
Loan # Monthly Other Reserve Period In-place Type Permitted Period Group Date Balloon Loans
------------------------------------------------------------------------------------------------------------------------------------
65 0.00 5 NAP Office Yes Actual/360 1 300
65.01 5 Office 1 300
65.02 5 Office 1 300
65.03 5 Office 1 300
65.04 5 Office 1 300
65.05 5 Office 1 300
82 0.00 5 NAP Multifamily No Actual/360 2 360
87 0.00 5 NAP Multifamily No Actual/360 2 360
93 0.00 5 NAP Office No Actual/360 1 360
103 0.00 5 NAP Office No Actual/360 1 360
104 0.00 5 NAP Hotel No Actual/360 1 360
115 0.00 5 NAP Office Yes Actual/360 1 360
118 0.00 5 NAP Retail No Actual/360 1 360
120 0.00 5 Yes Industrial Yes Actual/360 1 360
126 0.00 5 NAP Hotel No Actual/360 3 360
127 0.00 5 NAP Hotel No Actual/360 1 360
134 0.00 5 NAP Retail Yes Actual/360 1 360
151 0.00 5 NAP Self Storage Yes Actual/360 1 360
156 0.00 5 NAP Retail Yes Actual/360 1 360
157 0.00 5 NAP Retail No Actual/360 1 360
161 0.00 5 NAP Industrial No Actual/360 1 360
171 0.00 5 NAP Hotel No Actual/360 1 300
173 0.00 5 NAP Office No Actual/360 1 360
175 0.00 5 No Retail No Actual/360 1 360
176 0.00 5 NAP Office No Actual/360 1 360
178 0.00 5 NAP Retail Yes Actual/360 1 300
184 0.00 5 NAP Office No Actual/360 1 360
185 0.00 5 NAP Office No Actual/360 1 360
188 0.00 5 NAP Multifamily No Actual/360 2 360
193 0.00 5 NAP Multifamily No Actual/360 2 360
200 0.00 5 NAP Office Yes Actual/360 1 360
204 0.00 5 NAP Retail No Actual/360 1 360
206 0.00 5 NAP Office No Actual/360 1 360
207 0.00 5 NAP Multifamily No Actual/360 2 360
211 $793.50; On 11/1/09 and
11/1/14 shall increase by 15% 5 NAP Hotel No Actual/360 1 300
216 0.00 5 NAP Office No Actual/360 1 360
220 0.00 5 NAP Industrial Yes Actual/360 1 120
226 0.00 5 No Office 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 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.
(44) Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, (b) to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent with
its capital markets conduit lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property, in each case in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the
improvements located at the Mortgaged Property, and not less than the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the Mortgaged Property, and the policy contains no provisions for a deduction
for depreciation.
Defined Terms:
The term "Allocated Loan Amount" shall mean, for each Mortgaged
Property, the portion of principal of the related Mortgage Loan allocated to
such Mortgaged Property for certain purposes (including determining the release
prices of properties, if permitted) under such Mortgage Loan as set forth in the
related loan documents. There can be no assurance, and it is unlikely, that the
Allocated Loan Amounts represent the current values of individual Mortgaged
Properties, the price at which an individual Mortgaged Property could be sold in
the future to a willing buyer or the replacement cost of the Mortgaged
Properties.
The term "Anticipated Repayment Date" shall mean the date on which all
or substantially all of any Excess Cash Flow is required to be applied toward
prepayment of the related Mortgage Loan and on which any such Mortgage Loan
begins accruing Excess Interest.
The term "ARD Loan" shall have the meaning assigned thereto in the
Pooling and Servicing Agreement.
The term "Environmental Site Assessment" shall mean a Phase I
environmental report meeting the requirements of the American Society for
Testing and Materials, and, if in accordance with customary industry standards a
reasonable lender would require it, a Phase II environmental report, each
prepared by a licensed third party professional experienced in environmental
matters.
The term "Excess Cash Flow" shall mean the cash flow from the Mortgaged
Property securing an ARD Loan after payments of interest (at the Mortgage
Interest Rate) and principal (based on the amortization schedule), and (a)
required payments for the tax and insurance fund and ground lease escrows fund,
(b) required payments for the monthly debt service escrows, if any, (c) payments
to any other required escrow funds and (d) payment of operating expenses
pursuant to the terms of an annual budget approved by the applicable Master
Servicer and discretionary (lender approved) capital expenditures.
The term "Excess Interest" shall mean any accrued and deferred interest
on an ARD Loan in accordance with the following terms. Commencing on the
respective Anticipated Repayment Date each ARD Loan (pursuant to its existing
terms or a unilateral option, as defined in Treasury Regulations under Section
1001 of the Code, in the Mortgage Loans exercisable during the term of the
Mortgage Loan) generally will bear interest at a fixed rate (the "Revised Rate")
per annum equal to the Mortgage Interest Rate plus a percentage specified in the
related Mortgage Loan documents. Until the principal balance of each such
Mortgage Loan has been reduced to zero (pursuant to its existing terms or a
unilateral option, as defined in Treasury Regulations under Section 1001 of the
Code, in the Mortgage Loans exercisable during the term of the Mortgage Loan),
such Mortgage Loan will only be required to pay interest at the Mortgage
Interest Rate and the interest accrued at the excess of the related Revised Rate
over the related Mortgage Interest Rate will be deferred (such accrued and
deferred interest and interest thereon, if any, is "Excess Interest").
The term "in reliance on" shall mean that:
(a) the Seller has examined and relied in whole or in part upon
one or more of the specified documents or other information in connection
with a given representation or warranty;
(b) that the information contained in such document or otherwise
obtained by the Seller appears on its face to be consistent in all material
respects with the substance of such representation or warranty;
(c) the Seller's reliance on such document or other information is
consistent with the standard of care exercised by prudent lending
institutions originating commercial mortgage loans; and
(d) although the Seller is under no obligation to verify
independently the information contained in any document specified as being
relied upon by it, the Seller believes the information contained therein to
be true, accurate and complete in all material respects and has no actual
knowledge of any facts or circumstances which would render reliance thereon
unjustified without further inquiry.
The term "Mortgage Interest Rate" shall mean the fixed rate of interest
per annum that each Mortgage Loan bears as of the Cut-off Date.
The term "Permitted Encumbrances" shall mean:
(a) the lien of current real property taxes, water charges, sewer
rents and assessments not yet delinquent or accruing interest or penalties;
(b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record acceptable to mortgage lending
institutions generally and referred to in the related mortgagee's title
insurance policy;
(c) other matters to which like properties are commonly subject,
and
(d) the rights of tenants, as tenants only, whether under ground
leases or space leases at the Mortgaged Property.
which together do not materially and adversely affect the related
Mortgagor's ability to timely make payments on the related Mortgage Loan,
which do not materially interfere with the benefits of the security
intended to be provided by the related Mortgage or the use, for the use
currently being made, the operation as currently being operated, enjoyment,
value or marketability of such Mortgaged Property, provided, however, that,
for the avoidance of doubt, Permitted Encumbrances shall exclude all pari
passu, second, junior and subordinated mortgages but shall not exclude
mortgages that secure other Mortgage Loans or Companion Loans that are
cross-collateralized with the related Mortgage Loan.
Other. For purposes of these representations and warranties, the term
"to the Seller's knowledge" shall mean that no officer, employee or agent of the
Seller responsible for the underwriting, origination or sale of the Mortgage
Loans or of any servicer responsible for servicing the Mortgage Loan on behalf
of the Seller, believes that a given representation or warranty is not true or
is inaccurate based upon the Seller's reasonable inquiry and during the course
of such inquiry, no such officer, employee or agent of the Seller has obtained
any actual knowledge of any facts or circumstances that would cause such person
to believe that such representation or warranty was inaccurate. Furthermore, all
information contained in documents which are part of or required to be part of a
Mortgage File shall be deemed to be within the Seller's knowledge. For purposes
of these representations and warranties, the term "to the Seller's actual
knowledge" shall mean that an officer, employee or agent of the Seller
responsible for the underwriting, origination and sale of the Mortgage Loans
does not actually know of any facts or circumstances that would cause such
person to believe that such representation or warranty was inaccurate.
EXHIBIT C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
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 Clause (10)(a):
With respect to the following Mortgage Loans, the Mortgagor, but no other
individual or entity, is liable in the event of (i) fraud or intentional
material misrepresentation, (ii) misapplication or misappropriation of rents,
insurance proceeds or condemnation awards, (iii) acts of actual waste or damage
or destruction to the Mortgaged Property caused by the acts or omissions of the
Mortgagor, its agents, employees or contractors and (iv) breaches of
environmental covenants contained in the related Mortgage Loan documents:
940953236 Broadway Plaza East
940953074 Remington Apartments
9409530287 Sanctuary at Avondale
Exceptions to Clause (12):
940953362 College Green Executive Plaza - The related Mortgage Loan documents
permit the release of a 4,967 square foot building and surrounding land upon the
prepayment of principal in the amount of $1,100,000 and the payment of other
prepayment consideration but do not specify an Allocated Loan Amount with
respect to the released property.
Exceptions to Clause (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:
940953262 Chiquita Cold Storage Bldg
940953082 Faurecia Automotive Seating
940953396 WesBanco Bank Branch
Exceptions to Clause (20)(c):
940953081 Hilton Garden Inn-Savannah Airport - After foreclosure of the
Mortgagor's interest in the related Ground Lease, such interest is not further
assignable without the prior consent of the lessor under such Ground Lease.
Exceptions to Clause (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.
940953262 Chiquita Cold Storage Bldg - The related Mortgage permits (i) a
transfer of the Mortgaged Property to an entity which is owned by at least one
of the four individuals who are currently the managers of the related Mortgagor
(the "Current Managers") and (ii) certain transfers of ownership interests in
the Mortgagor, such as transfers to family members, transfers by devise,
descent, death or incapacity and transfers in connection with the resignation of
a manager, provided that in any such case one of the Current Managers remains a
manager of the Mortgagor.
With respect to the following Mortgage Loans, the related Mortgage does not
prohibit a pledge or encumbrance of a controlling interest in the Mortgagor:
940953262 Chiquita Cold Storage Bldg
940953362 College Green Executive Plaza
940952932 Hampton Inn - Painted Post
940953298 Hampton Inn & Suites - Montgomery
940953418 Metrocenter Business Park
940953302 Palm Ridge Shopping Center- San Diego
940953363 Watt-Fair Professional Centre
Exceptions to Clause (35):
940953362 College Green Executive Plaza - The related Mortgage Loan documents
permit the release of a 4,967 square foot building and surrounding land upon the
prepayment of principal in the amount of $1,100,000 and the payment of other
prepayment consideration but do not specify an Allocated Loan Amount with
respect to the released property.
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
I, [______], a duly appointed, qualified and acting [______] of
[___________], a [________] [______] (the "Company"), hereby certify on behalf
of the Company as follows:
1. I have examined the Mortgage Loan Purchase Agreement, dated as of
March 1, 2007 (the "Agreement"), between the Company and 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 March 9, 2007, as supplemented by the Prospectus
Supplement, dated March 26, 2007 (collectively, the "Prospectus"), relating to
the offering of the Class A-1, Class A-1S, Class A-2, Class A-2S, Class A-2SFL,
Class A-3, Class A-3S, Class A-1A, Class X, Class A-M, Class A-MS, Class A-J,
Class A-JFL, Class A-JS, Class B-S, Class C-S and Class D-S Certificates, the
Private Placement Memorandum, dated March 26, 2007 (the "Privately Offered
Certificate Private Placement Memorandum"), relating to the offering of the
Class B, Class C, Class D, Class E, Class E-S, Class F, Class F-S, Class G,
Class G-S, Class H, Class H-S, Class J, Class K, Class L, Class M, Class N,
Class P and Class NR Certificates, and the Residual Private Placement
Memorandum, dated March 26, 2007 (together with the Privately Offered
Certificate Private Placement Memorandum, the "Private Placement Memoranda"),
relating to the offering of the Class R, Class MR and Class LR Certificates, and
nothing has come to my attention that would lead me to believe that the
Prospectus, as of the date of the Prospectus Supplement or as of the date
hereof, or the Private Placement Memoranda, as of the date of the Private
Placement Memoranda or as of the date hereof, included or includes any untrue
statement of a material fact 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. I have
also examined the Free Writing Prospectus (as defined in the Indemnification
Agreement) and confirm that the Company's representations and warranties with
respect to the Free Writing Prospectus are true and correct as of the date
hereof.
Capitalized terms used herein without definition have the meanings
given them in the Agreement.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, I have signed my name this ___ day of March,
2007.
By:
Name:
Title:
SCHEDULE I
MORTGAGE LOANS FOR WHICH A LENDER'S ENVIRONMENTAL
POLICY WAS OBTAINED IN LIEU OF AN
ENVIRONMENTAL SITE ASSESSMENT
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph number set forth below.
Paragraph 21(a) and (e):
None.
SCHEDULE II
MORTGAGED PROPERTY FOR WHICH 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
AIG MORTGAGE CAPITAL, LLC AND SOME II, LLC,
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of March 1, 2007
Fixed Rate Mortgage Loans
Series 2007-LDP10
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of March 1, 2007, is among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as purchaser (the "Purchaser"), and AIG Mortgage Capital, LLC ("AIGMC"),
as seller of the loan identified on Exhibit A-1 (the "AIGMC Loans") and SOME II,
LLC ("SOME II" and together with AIGMC, the "Sellers" and each individually, a
"Seller"), as seller of the loans identified on Exhibit A-2 (the "SOME II
Loans").
Capitalized terms used in this Agreement not defined herein shall
have the meanings ascribed to them in the Pooling and Servicing Agreement dated
as of March 1, 2007 (the "Pooling and Servicing Agreement") among the Purchaser,
as depositor (the "Depositor"), Midland Loan Services, Inc. and Wachovia Bank,
National Association, as master servicers (each, a "Master Servicer"), J.E.
Robert Company, Inc., as special servicer (the "Special Servicer"), Wells Fargo
Bank, N.A., as trustee (the "Trustee") and LaSalle Bank National Association, as
co-trustee (the "Co-Trustee"), pursuant to which the Purchaser will sell the
Mortgage Loans (as defined herein) to a trust fund and certificates representing
ownership interests in the Mortgage Loans will be issued by the trust fund. For
purposes of this Agreement, the term "Mortgage Loans" refers to the mortgage
loans listed on Exhibit A-1 and Exhibit A-2 and the term "Mortgaged Properties"
refers to the properties securing such Mortgage Loans.
The Purchaser and the Sellers wish to prescribe the manner of sale
of the Mortgage Loans from the Sellers to the Purchaser and in consideration of
the premises and the mutual agreements hereinafter set forth, agree as follows:
SECTION 1. Sale and Conveyance of Mortgages; Possession of Mortgage
File. Effective as of the Closing Date and upon receipt of the purchase price
set forth in the immediately succeeding paragraph, each Seller does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse
(subject to certain agreements regarding servicing as provided in the Pooling
and Servicing Agreement, subservicing agreements permitted thereunder and that
certain Servicing Rights Purchase Agreement, dated as of the Closing Date
between the applicable Master Servicer and the Sellers) all of its right, title,
and interest in and to the related Mortgage Loans described in Exhibit A-1 or
Exhibit A-2, as applicable, including all interest and principal received on or
with respect to the Mortgage Loans after the Cut-off Date (other than payments
of principal and interest first due on the Mortgage Loans on or before the
Cut-off Date). Upon the sale of the related Mortgage Loans, the ownership of
each related Mortgage Note, the Mortgage and the other contents of the related
Mortgage File will be vested in the Purchaser and immediately thereafter the
Trustee and the ownership of records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the applicable
Seller (other than the records and documents described in the proviso to Section
3(a) hereof) shall immediately vest in the Purchaser and immediately thereafter
the Trustee. The Sellers' records will accurately reflect the sale of each
Mortgage Loan sold by such Seller to the Purchaser. The Depositor will sell the
Class A-1, Class A-1S, Class A-2, Class A-2S, Class A-2SFL, Class A-3, Class
A-3S, Class A-1A, Class X, Class A-M, Class A-MS, Class A-J, Class A-JFL, Class
A-JS, Class B-S, Class C-S and Class D-S Certificates (the "Offered
Certificates") to the underwriters (the "Underwriters") specified in the
underwriting agreement dated March 26, 2007 (the "Underwriting Agreement")
between the Depositor and J.P. Morgan Securities Inc. ("JPMSI") for itself and
as representative of the several underwriters identified therein, and the
Depositor will sell the Class B, Class C, Class D, Class E, Class E-S, Class F,
Class F-S, Class G, Class G-S, Class H, Class H-S, Class J, Class K, Class L,
Class M, Class N, Class P and Class NR Certificates (the "Private Certificates")
to JPMSI and UBS Securities LLC, the initial purchasers (together with the
Underwriters, the "Dealers") specified in the certificate purchase agreement
dated March 26, 2007 (the "Certificate Purchase Agreement"), between the
Depositor and JPMSI for itself and as representative of the initial purchasers
identified therein.
The sale and conveyance of the AIGMC Loans and the SOME II Loans are
being conducted on an arms length basis and upon commercially reasonable terms.
As the purchase price for the AIGMC Loans and the SOME II Loans, the Purchaser
shall pay to the Sellers or at the Sellers' direction in immediately available
funds the sum of $81,453,704.78 (which amount is inclusive of accrued interest
and exclusive of AIGMC's and SOME II's pro rata share of the costs set forth in
Section 9 hereof). The purchase and sale of the AIGMC Loans and the SOME II
Loans shall take place on the Closing Date.
SECTION 2. Books and Records; Certain Funds Received After the
Cut-off Date. From and after the sale of the Mortgage Loans to the Purchaser,
record title to each Mortgage and the related Mortgage Note shall be transferred
to the Trustee in accordance with this Agreement. Any funds due after the
Cut-off Date in connection with a Mortgage Loan received by each Seller shall be
held in trust for the benefit of the Trustee as the owner of such Mortgage Loan
and shall be transferred promptly to the applicable Master Servicer. All
scheduled payments of principal and interest due on or before the Cut-off Date
but collected after the Cut-off Date, and recoveries of principal and interest
collected on or before the Cut-off Date (only in respect of principal and
interest on the Mortgage Loans due on or before the Cut-off Date and principal
prepayments thereon), shall belong to, and shall be promptly remitted to, the
related Seller.
The transfer of each Mortgage Loan shall be reflected on the related
Seller's balance sheets and other financial statements as a sale of such
Mortgage Loan by such Seller to the Purchaser. The Sellers intend to treat the
transfer of each Mortgage Loan to the Purchaser as a sale for tax purposes.
The transfer of each Mortgage Loan shall be reflected on the
Purchaser's balance sheets and other financial statements as a purchase of such
Mortgage Loan by the Purchaser from the applicable Seller. The Purchaser intends
to treat the transfer of each Mortgage Loan from the Sellers as a purchase for
tax purposes.
SECTION 3. Delivery of Mortgage Loan Documents; Additional Costs and
Expenses. (a) The Purchaser hereby directs the Sellers, and the Sellers hereby
agree, upon the transfer of the Mortgage Loans contemplated herein, to deliver
on the Closing Date to the Trustee or a Custodian appointed thereby, all
documents, instruments and agreements required to be delivered by the Purchaser
to the Trustee with respect to the Mortgage Loans sold by such Seller under
Sections 2.01(b) and 2.01(c) of the Pooling and Servicing Agreement, and meeting
all the requirements of such Sections 2.01(b) and 2.01(c), and such other
documents, instruments and agreements as the Purchaser or the Trustee shall
reasonably request. In addition, each Seller agrees to deliver or cause to be
delivered to the applicable Master Servicer, the Servicing File for each
Mortgage Loan transferred by it pursuant to this Agreement; provided that the
Sellers shall not be required to deliver any draft documents, or any attorney
client communications which are privileged communications or constitute legal or
other due diligence analyses, or internal communications of a Seller or its
affiliates, or credit underwriting or other analyses or data.
(b) With respect to the transfer described in Section 1 hereof, if
the Mortgage Loan documents do not require the related Mortgagor to pay any
costs and expenses relating to any modifications to a related letter of credit
which modifications are required to effectuate such transfer (the "Transfer
Modification Costs"), then the related Seller shall pay the Transfer
Modification Costs required to transfer the letter of credit to the Trustee as
described in such Section 1; provided that if the Mortgage Loan documents
require the related Mortgagor to pay any Transfer Modification Costs, such
Transfer Modification Costs shall be an expense of the Mortgagor unless such
Mortgagor fails to pay such Transfer Modification Costs after the applicable
Master Servicer has exercised all remedies available under the applicable
Mortgage Loan documents to collect such Transfer Modification Costs from such
Mortgagor, in which case applicable Master Servicer shall give the related
Seller notice of such failure and the amount of such Transfer Modification costs
and the related Seller shall pay such Transfer Modification Costs.
SECTION 4. Treatment as a Security Agreement. Each Seller,
concurrently with the execution and delivery hereof, has conveyed to the
Purchaser, all of its right, title and interest in and to the related Mortgage
Loans. The parties intend that such conveyance of each Seller's right, title and
interest in and to the related Mortgage Loans pursuant to this Agreement shall
constitute a purchase and sale and not a loan. If such conveyance is deemed to
be a pledge and not a sale, then the parties also intend and agree that each
Seller shall be deemed to have granted, and in such event does hereby grant, to
the Purchaser, a first priority security interest in all of its right, title and
interest in, to and under the related Mortgage Loans, all payments of principal
or interest on such Mortgage Loans due after the Cut-off Date, all other
payments made in respect of such Mortgage Loans after the Cut-off Date (except
to the extent such payments were due on or before the Cut-off Date) and all
proceeds thereof and that this Agreement shall constitute a security agreement
under applicable law. If such conveyance is deemed to be a pledge and not a
sale, each Seller consents to the Purchaser hypothecating and transferring such
security interest in favor of the Trustee and transferring the obligation
secured thereby to the Trustee.
SECTION 5. Covenants of the Seller. Each Seller covenants with the
Purchaser as follows:
(a) it shall record or cause a third party to record in the
appropriate public recording office for real property the intermediate
assignments of the applicable Mortgage Loans and the Assignments of Mortgage
from such Seller to the Trustee in connection with the Pooling and Servicing
Agreement. All recording fees relating to the initial recordation of such
intermediate assignments and Assignments of Mortgage shall be paid by the
related Seller;
(b) it shall take any action reasonably required by the Purchaser,
the Trustee or the applicable Master Servicer, in order to assist and facilitate
in the transfer of the servicing of the Mortgage Loans to the applicable Master
Servicer, including effectuating the transfer of any letters of credit with
respect to any Mortgage Loan to the Trustee (in care of the applicable Master
Servicer) for the benefit of Certificateholders. Prior to the date that a letter
of credit, if any, with respect to any Mortgage Loan is transferred to the
Trustee (in care of the applicable Master Servicer), the related Seller will
cooperate with the reasonable requests of the applicable Master Servicer or
Special Servicer, as applicable, in connection with effectuating a draw under
such letter of credit as required under the terms of the related Mortgage Loan
documents;
(c) if, during such period of time after the first date of the
public offering of the Offered Certificates as in the opinion of counsel for the
Underwriters, a prospectus relating to the Offered Certificates is required by
applicable law to be delivered in connection with sales thereof by an
Underwriter or a Dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus Supplement, including Annexes
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 March 26, 2007 between the Purchaser and the AIGMC (the
"Indemnification Agreement"); and
(d) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any Companion Loan related to a Serviced Whole Loan or any
Serviced Securitized Companion Loan that is deposited into an Other
Securitization or a Regulation AB Companion Loan Securitization, the depositor
in such Other Securitization or Regulation AB Companion Loan Securitization) and
the Trustee with any Additional Form 10-D Disclosure and any Additional Form
10-K Disclosure set forth next to the Purchaser's name on Schedule X and
Schedule Y of the Pooling and Servicing Agreement within the time periods set
forth in the Pooling and Servicing Agreement.
SECTION 6. Representations and Warranties.
(a) Each Seller represents and warrants to the Purchaser as of the Closing
Date that:
(i) it is a limited liability company organized, validly existing,
and in good standing under the laws of Delaware;
(ii) it has the power and authority to own its property and to carry
on its business as now conducted;
(iii) it has the power to execute, deliver and perform this
Agreement;
(iv) it is legally authorized to transact business in the State of
New York. Such Seller is in compliance with the laws of each state in
which any related Mortgaged Property is located to the extent necessary so
that a subsequent holder of the related Mortgage Loan (including, without
limitation, the Purchaser) that is in compliance with the laws of such
state would not be prohibited from enforcing such Mortgage Loan solely by
reason of any non-compliance by such Seller;
(v) the execution, delivery and performance of this Agreement by
such Seller have been duly authorized by all requisite action by such
Seller's board of directors and will not violate or breach any provision
of its organizational documents;
(vi) this Agreement has been duly executed and delivered by such
Seller and constitutes a legal, valid and binding obligation of such
Seller, enforceable against it in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general
equitable principles regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vii) there are no legal or governmental proceedings pending to
which such Seller is a party or of which any property of such Seller is
the subject which, if determined adversely to such Seller, would
reasonably be expected to adversely affect (A) the transfer of the
applicable Mortgage Loans and the Mortgage Loan documents as contemplated
herein, (B) the execution and delivery by such Seller or enforceability
against such Seller of the applicable Mortgage Loans or this Agreement, or
(C) the performance of such Seller's obligations hereunder;
(viii) it has no actual knowledge that any statement, report,
officer's certificate or other document prepared and furnished or to be
furnished by such Seller in connection with the transactions contemplated
hereby (including, without limitation, any financial cash flow models and
underwriting file abstracts furnished by such Seller) contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading;
(ix) it is not, nor with the giving of notice or lapse of time or
both would be, in violation of or in default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which it is a party or by which it or any of its properties is bound,
except for violations and defaults which individually and in the aggregate
would not have a material adverse effect on the transactions contemplated
herein; the sale of the applicable Mortgage Loans and the performance by
such Seller of all of its obligations under this Agreement and the
consummation by such Seller of the transactions herein contemplated do not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Seller
is a party or by which such Seller is bound or to which any of the
property or assets of such Seller is subject, nor will any such action
result in any violation of the provisions of any applicable law or statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over such Seller, or any of its properties,
except for conflicts, breaches, defaults and violations which individually
and in the aggregate would not have a material adverse effect on the
transactions contemplated herein; and no consent, approval, authorization,
order, license, registration or qualification of or with any such court or
governmental agency or body is required for the consummation by such
Seller of the transactions contemplated by this Agreement, other than any
consent, approval, authorization, order, license, registration or
qualification that has been obtained or made;
(x) it has either (A) not dealt with any Person (other than the
Purchaser or the Dealers or their respective affiliates or any servicer of
a Mortgage Loan) that may be entitled to any commission or compensation in
connection with the sale or purchase of the Mortgage Loans or entering
into this Agreement or (B) paid in full any such commission or
compensation (except with respect to any servicer of a Mortgage Loan, any
commission or compensation that may be due and payable to such servicer if
such servicer is terminated and does not continue to act as a servicer);
and
(xi) it is solvent and the sale of its Mortgage Loans hereunder will
not cause it to become insolvent; and the sale of its Mortgage Loans is
not undertaken with the intent to hinder, delay or defraud any of such
Seller's creditors.
(b) The Purchaser represents and warrants to each Seller as of the
Closing Date that:
(i) it is a corporation duly organized, validly existing, and in
good standing in the State of Delaware;
(ii) it is duly qualified as a foreign corporation in good standing
in all jurisdictions in which ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Purchaser, and the Purchaser is conducting its business so as to comply in
all material respects with the applicable statutes, ordinances, rules and
regulations of each jurisdiction in which it is conducting business;
(iii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iv) it has the power to execute, deliver and perform this
Agreement, and neither the execution and delivery by the Purchaser of this
Agreement, nor the consummation by the Purchaser of the transactions
herein contemplated, nor the compliance by the Purchaser with the
provisions hereof, will (A) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the certificate of
incorporation or by-laws of the Purchaser or any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Purchaser or any of its properties, or any indenture, mortgage,
contract or other instrument or agreement to which the Purchaser is a
party or by which it is bound, or (B) result in the creation or imposition
of any lien, charge or encumbrance upon any of the Purchaser's property
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or agreement;
(v) this Agreement constitutes a legal, valid and binding obligation
of the Purchaser enforceable against it in accordance with its terms
(except as enforcement thereof may be limited by (a) bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or
other laws affecting the enforcement of creditors' rights generally and
(b) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or law));
(vi) there are no legal or governmental proceedings pending to which
the Purchaser is a party or of which any property of the Purchaser is the
subject which, if determined adversely to the Purchaser, might interfere
with or adversely affect the consummation of the transactions contemplated
herein and in the Pooling and Servicing Agreement; to the best of the
Purchaser's knowledge, no such proceedings are threatened or contemplated
by any governmental authorities or threatened by others;
(vii) it is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Purchaser or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(viii) it has not dealt with any broker, investment banker, agent or
other person, other than the Sellers, the Dealers and their respective
affiliates, that may be entitled to any commission or compensation in
connection with the purchase and sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby;
(ix) all consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for the
execution, delivery and performance of this Agreement by the Purchaser
have been obtained or made; and
(x) it has not intentionally violated any provisions of the United
States Secrecy Act, the United States Money Laundering Control Act of 1986
or the United States International Money Laundering Abatement and
Anti-Terrorism Financing Act of 2001.
(c) AIGMC and SOME II each hereby make the representations and
warranties set forth in Exhibit B as to the SOME II Loans and as of the Closing
Date (or as of such other date if specifically provided in the particular
representation or warranty), which representations and warranties are subject to
the exceptions thereto set forth in Exhibit C. AIGMC further makes the
representations and warranties set forth in Exhibit B as to the AIGMC Loans and
as of the Closing Date (or as of such other date if specifically provided in the
particular representation or warranty), which representations and warranties are
subject to the exceptions thereto set forth in Exhibit C. Neither the delivery
by the related Seller of the related Mortgage Files, Servicing Files, or any
other documents required to be delivered under Section 2.01 of the Pooling and
Servicing Agreement, nor the review thereof or any other due diligence by the
Trustee, any Master Servicer, the Special Servicer, a Certificate Owner or any
other Person shall relieve such Seller of any liability or obligation with
respect to any representation or warranty or otherwise under this Agreement or
constitute notice to any Person of a Breach or Defect.
(d) Pursuant to this Agreement or Section 2.03(b) of the Pooling and
Servicing Agreement, SOME II (only with respect to the SOME II Loans), AIGMC
(with respect to any Mortgage Loan) and the Purchaser shall be given notice of
any Breach or Defect that materially and adversely affects the value of any
Mortgage Loan, the value of the related Mortgaged Property or the interests of
the Trustee or any Certificateholder therein.
(e) Upon notice pursuant to Section 6(d) above, AIGMC shall, not
later than 90 days from the earlier of AIGMC's receipt of the notice or, in the
case of a Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, but without
regard to the rule of Treasury Regulation Section 1.860G-2(f)(2) that causes a
defective mortgage loan to be treated as a qualified mortgage, the AIGMC's
discovery of such Breach or Defect (the "Initial Resolution Period"), (i) cure
such Defect or Breach, as the case may be, in all material respects, (ii)
repurchase the affected Mortgage Loan at the applicable Repurchase Price (as
defined below) or (iii) substitute a Qualified Substitute Mortgage Loan (as
defined below) for such affected Mortgage Loan (provided that in no event shall
any such substitution occur later than the second anniversary of the Closing
Date) and pay the applicable Master Servicer for deposit into the Certificate
Account, any Substitution Shortfall Amount (as defined below) in connection
therewith; provided, however, that except with respect to a Defect resulting
solely from the failure by AIGMC to deliver to the Trustee or Custodian the
actual policy of lender's title insurance required pursuant to clause (ix) of
the definition of Mortgage File by a date not later than 18 months following the
Closing Date, if such Breach or Defect is capable of being cured but is not
cured within the Initial Resolution Period, and AIGMC has commenced and is
diligently proceeding with the cure of such Breach or Defect within the Initial
Resolution Period, AIGMC shall have an additional 90 days commencing immediately
upon the expiration of the Initial Resolution Period (the "Extended Resolution
Period") to complete such cure (or, failing such cure, to repurchase the related
Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as described
above); and provided, further, that with respect to the Extended Resolution
Period AIGMC shall have delivered an officer's certificate to the Rating
Agencies, the applicable Master Servicer, the Special Servicer, the Trustee and
the Directing Certificateholder setting forth the reason such Breach or Defect
is not capable of being cured within the Initial Resolution Period and what
actions AIGMC is pursuing in connection with the cure thereof and stating that
the Seller anticipates that such Breach or Defect will be cured within the
Extended Resolution Period. Notwithstanding anything else in this Agreement to
the contrary, all of the obligations with respect to a Breach or Defect relating
to the SOME II Loans shall be solely the obligations of AIGMC, and the Purchaser
shall have no right to require SOME II to take any action following a Breach or
Default with respect to the SOME II Loans. Any Defect or Breach which causes any
Mortgage Loan not to be a "qualified mortgage" (within the meaning of Section
860G(a)(3) of the Code, without regard to the rule of Treasury Regulations
Section 1.860G-2(f)(2) which causes a defective mortgage loan to be treated as a
qualified mortgage) shall be deemed to materially and adversely affect the
interests of the holders of the Certificates therein, and such Mortgage Loan
shall be repurchased or a Qualified Substitute Mortgage Loan substituted in lieu
thereof without regard to the extended cure period described in the preceding
sentence. If the affected Mortgage Loan is to be repurchased, AIGMC shall remit
the Repurchase Price (defined below) in immediately available funds to the
Trustee.
If any Breach pertains to a representation or warranty that the
related Mortgage Loan documents or any particular Mortgage Loan document
requires the related Mortgagor to bear the costs and expenses associated with
any particular action or matter under such Mortgage Loan document(s), then AIGMC
shall cure such Breach within the applicable cure period (as the same may be
extended) by reimbursing the Trust Fund (by wire transfer of immediately
available funds) the reasonable amount of any such costs and expenses incurred
by the applicable Master Servicer, the Special Servicer, the Trustee or the
Trust Fund that are the basis of such Breach and have not been reimbursed by the
related Mortgagor; provided, however, that in the event any such costs and
expenses exceed $10,000, AIGMC shall have the option to either repurchase or
substitute for the related Mortgage Loan as provided above or pay such costs and
expenses. Except as provided in the proviso to the immediately preceding
sentence, AIGMC shall remit the amount of such costs and expenses and upon its
making such remittance, AIGMC shall be deemed to have cured such Breach in all
respects. To the extent any fees or expenses that are the subject of a cure by
AIGMC are subsequently obtained from the related Mortgagor, the portion of the
cure payment equal to such fees or expenses obtained from the Mortgagor shall be
returned to AIGMC pursuant to Section 2.03(f) of the Pooling and Servicing
Agreement. Notwithstanding the foregoing, the sole remedy with respect to any
breach of the representation set forth in the second to last sentence of clause
(32) of Exhibit B hereto shall be payment by AIGMC of such costs and expenses
without respect to the materiality of such breach.
Any of the following will cause a document in the Mortgage File to
be deemed to have a Defect and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interests of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity with a copy of the Mortgage
Note that appears to be regular on its face; (b) the absence from the Mortgage
File of the original signed Mortgage that appears to be regular on its face,
unless there is included in the Mortgage File a certified copy of the Mortgage
and a certificate stating that the original signed Mortgage was sent for
recordation; (c) the absence from the Mortgage File of the lender's title
insurance policy (or if the policy has not yet been issued, an original or copy
of a "marked up" written commitment or the pro-forma or specimen title insurance
policy or a commitment to issue the same pursuant to written escrow instructions
signed by the title insurance company) called for by clause (ix) of the
definition of "Mortgage File" in the Pooling and Servicing Agreement; (d) the
absence from the Mortgage File of any required letter of credit; (e) with
respect to any leasehold mortgage loan, the absence from the related Mortgage
File of a copy (or an original, if available) of the related Ground Lease; or
(f) the absence from the Mortgage File of any intervening assignments required
to create a complete chain of assignments to the Trustee on behalf of the Trust,
unless there is included in the Mortgage File a certified copy of the
intervening assignment and a certificate stating that the original intervening
assignments were sent for recordation; provided, however, that no Defect (except
the Defects previously described in clauses (a) through (f)) shall be considered
to materially and adversely affect the value of any Mortgage Loan, the value of
the related Mortgaged Property or the interests of the Trustee or any
Certificateholder therein unless the document with respect to which the Defect
exists is required in connection with an imminent enforcement of the Mortgagee's
rights or remedies under the related Mortgage Loan, defending any claim asserted
by any borrower or third party with respect to the Mortgage Loan, establishing
the validity or priority of any lien on any collateral securing the Mortgage
Loan or for any immediate significant servicing obligation. Notwithstanding the
foregoing, the delivery of executed escrow instructions or a commitment to issue
a lender's title insurance policy, as provided in clause (ix) of the definition
of "Mortgage File" in the Pooling and Servicing Agreement, in lieu of the
delivery of the actual policy of lender's title insurance, shall not be
considered a Defect or Breach with respect to any Mortgage File if such actual
policy is delivered to the Trustee or its Custodian within 18 months after the
Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in the first paragraph of this Section
6(e), (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Defect
or Breach does not constitute a Defect or Breach, as the case may be, as to any
other Crossed Loan in such Crossed Group (without regard to this paragraph),
then the applicable Defect or Breach, as the case may be, will be deemed to
constitute a Defect or Breach, as the case may be, as to each other Crossed Loan
in the Crossed Group for purposes of this paragraph, and AIGMC will be required
to repurchase or substitute for all of the remaining Crossed Loans in the
related Crossed Group as provided in the first paragraph of this Section 6(e)
unless such other Crossed Loans in such Crossed Group satisfy the Crossed Loan
Repurchase Criteria, and the Mortgage Loan affected by the applicable Defect or
Breach and the Qualified Substitute Mortgage Loan, if any, satisfy all other
criteria for repurchase or substitution, as applicable, of Mortgage Loans set
forth herein. In the event that the remaining Crossed Loans satisfy the
aforementioned criteria, AIGMC may elect either to repurchase or substitute for
only the affected Crossed Loan as to which the related Breach or Defect exists
or to repurchase or substitute for all of the Crossed Loans in the related
Crossed Group. AIGMC shall be responsible for the cost of any Appraisal required
to be obtained by the applicable Master Servicer to determine if the Crossed
Loan Repurchase Criteria have been satisfied, so long as the scope and cost of
such Appraisal has been approved by AIGMC (such approval not to be unreasonably
withheld).
To the extent that AIGMC is required to repurchase or substitute for
a Crossed Loan hereunder in the manner prescribed above while the Trustee
continues to hold any other Crossed Loans in such Crossed Group, neither AIGMC
nor the Trustee shall enforce any remedies against the other's Primary
Collateral, but each is permitted to exercise remedies against the Primary
Collateral securing its respective Crossed Loans, including with respect to the
Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then AIGMC and the
Trustee shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner that removes the threat of material impairment as a result of the
exercise of remedies or some other accommodation can be reached. Any reserve or
other cash collateral or letters of credit securing the Crossed Loans shall be
allocated between such Crossed Loans in accordance with the Mortgage Loan
documents, or otherwise on a pro rata basis based upon their outstanding Stated
Principal Balances. Notwithstanding the foregoing, if a Crossed Loan that
remains in the Trust Fund is modified to terminate the related cross
collateralization and/or cross default provisions, as a condition to such
modification, AIGMC shall furnish to the Trustee an Opinion of Counsel that any
modification shall not cause an Adverse REMIC Event. Any expenses incurred by
the Purchaser in connection with such modification or accommodation (including
but not limited to recoverable attorney fees) shall be paid by AIGMC.
The "Repurchase Price" with respect to any Mortgage Loan or REO Loan
to be repurchased pursuant to this Agreement and Section 2.03 of the Pooling and
Servicing Agreement, shall have the meaning given to the term "Purchase Price"
in the Pooling and Servicing Agreement.
A "Qualified Substitute Mortgage Loan" with respect to any Mortgage
Loan or REO Loan to be substituted pursuant to this Agreement and Section 2.03
of the Pooling and Servicing Agreement, shall have the meaning given to such
term in the Pooling and Servicing Agreement.
A "Substitution Shortfall Amount" with respect to any Mortgage Loan
or REO Loan to be substituted pursuant to this Agreement and Section 2.03 of the
Pooling and Servicing Agreement, shall have the meaning given to such term in
the Pooling and Servicing Agreement.
In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated hereby, (i) the Purchaser shall execute and deliver,
or cause the execution and delivery of, such endorsements and assignments,
without recourse, as shall be necessary to vest in AIGMC the legal and
beneficial ownership of each repurchased Mortgage Loan or replaced Mortgage
Loan, as applicable, (ii) the Purchaser shall deliver, or cause the delivery, to
AIGMC of all portions of the Mortgage File and other documents (including the
Servicing File) pertaining to such Mortgage Loan possessed by the Trustee, or on
the Trustee's behalf, and (iii) the Purchaser shall release, or cause to be
released, to AIGMC any escrow payments and reserve funds held by the Trustee, or
on the Trustee's behalf, in respect of such repurchased or replaced Mortgage
Loans.
(f) The representations and warranties of the parties hereto shall
survive the execution and delivery and any termination of this Agreement and
shall inure to the benefit of the respective parties, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes or assignment of
Mortgage or the examination of the Mortgage Files.
(g) Each party hereby agrees to promptly notify the other party of
any Breach of a representation or warranty contained in this Section 6. AIGMC's
obligation to cure any Breach or Defect or repurchase or substitute for the
affected Mortgage Loan pursuant to Section 6(e) herein shall constitute the sole
remedy available to the Purchaser in connection with a breach of any of AIGMC's
or SOME II's representations or warranties contained in this Section 6 and it is
acknowledged and agreed that the representations and warranties are being made
for risk allocation purposes only; provided, however, that no limitation of
remedy is implied with respect to AIGMC's breach of its obligation to cure,
repurchase or substitute in accordance with the terms and conditions of this
Agreement.
SECTION 7. Conditions to Closing. The obligations of the Purchaser
to purchase the Mortgage Loans shall be subject to the satisfaction, on or prior
to the Closing Date, of the following conditions:
(a) Each of the obligations of the Sellers required to be performed
by it at or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with and all of the representations
and warranties of the Sellers under this Agreement shall be true and correct in
all material respects as of the Closing Date, and no event shall have occurred
as of the Closing Date which, with notice or passage of time, would constitute a
default under this Agreement, and the Purchaser shall have received a
certificate to the foregoing effect signed by an authorized officer of each
Seller substantially in the form of Exhibit D.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of each Seller's limited liability company agreement and
by-laws, certified as of a recent date by the Secretary or Assistant
Secretary of such Seller;
(ii) an original or copy of a certificate of corporate existence of
each Seller issued by the Secretary of State of the State of Delaware
dated not earlier than sixty days prior to the Closing Date;
(iii) an opinion of counsel of the Sellers, in form and substance
satisfactory to the Purchaser and its counsel, substantially to the effect
that:
(A) each Seller is a limited liability company organized,
validly existing, and in good standing under the laws of Delaware;
(B) each Seller has the power to conduct its business as now
conducted and to incur and perform its obligations under this
Agreement and the Indemnification Agreement;
(C) all necessary corporate or other action has been taken by
each Seller to authorize the execution, delivery and performance of
this Agreement and the Indemnification Agreement by such Seller and
this Agreement is a legal, valid and binding agreement of such
Seller enforceable against such Seller, whether such enforcement is
sought in a procedure at law or in equity, except to the extent such
enforcement may be limited by bankruptcy or other similar creditors'
laws or principles of equity and public policy considerations
underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of
the Agreement which purport to provide indemnification with respect
to securities law violations;
(D) each Seller's execution and delivery of, and such Seller's
performance of its obligations under, each of this Agreement and the
Indemnification Agreement do not and will not conflict with such
Seller's articles of association or by-laws or conflict with or
result in the breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which
such Seller is a party or by which such Seller is bound, or to which
any of the property or assets of such Seller is subject or violate
any provisions of law or conflict with or result in the breach of
any order of any court or any governmental body binding on such
Seller;
(E) there is no litigation, arbitration or mediation pending
before any court, arbitrator, mediator or administrative body, or to
such counsel's actual knowledge, threatened, against either Seller
which (i) questions, directly or indirectly, the validity or
enforceability of this Agreement or the Indemnification Agreement or
(ii) would, if decided adversely to such Seller, either individually
or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of such Seller to perform its
obligations under this Agreement or the Indemnification Agreement;
and
(F) no consent, approval, authorization, order, license,
registration or qualification of or with any federal court or
governmental agency or body is required for the consummation by the
Seller of the transactions contemplated by this Agreement and the
Indemnification Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained; and
(iv) a letter from counsel of the Sellers to the effect that nothing
has come to such counsel's attention that would lead such counsel to
believe that the Prospectus Supplement as of the date thereof or as of the
Closing Date contains, with respect to the Sellers or the Mortgage Loans,
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein relating to the Sellers
or the Mortgage Loans, in the light of the circumstances under which they
were made, not misleading.
(c) The Offered Certificates shall have been concurrently issued and
sold pursuant to the terms of the Underwriting Agreement. The Private
Certificates shall have been concurrently issued and sold pursuant to the terms
of the Certificate Purchase Agreement.
(d) AIGMC shall have executed and delivered concurrently herewith
the Indemnification Agreement.
(e) The Sellers shall furnish the Purchaser with such other
certificates of their officers or others and such other documents and opinions
to evidence fulfillment of the conditions set forth in this Agreement as the
Purchaser and its counsel may reasonably request.
SECTION 8. Closing. The closing for the purchase and sale of the
Mortgage Loans shall take place at the office of Cadwalader, 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 the Term Sheet (as defined in the Indemnification
Agreement), or items similar to the Term Sheet, including the cost of obtaining
any "comfort letters" with respect to such items; (v) the costs and expenses in
connection with the qualification or exemption of the Certificates under state
securities or blue sky laws, including filing fees and reasonable fees and
disbursements of counsel in connection therewith; (vi) the costs and expenses in
connection with any determination of the eligibility of the Certificates for
investment by institutional investors in any jurisdiction and the preparation of
any legal investment survey, including reasonable fees and disbursements of
counsel in connection therewith; (vii) the costs and expenses in connection with
printing (or otherwise reproducing) and delivering the Registration Statement,
Prospectus and Memoranda, and the reproduction and delivery of this Agreement
and the furnishing to the Underwriters of such copies of the Registration
Statement, Prospectus, Memoranda and this Agreement as the Underwriters may
reasonably request; (viii) the fees of the rating agency or agencies requested
to rate the Certificates and (ix) the reasonable fees and expenses of 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/ Dennis Schuh
------------------------------------
Name: Dennis Schuh
Title: Executive Director
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-1
MORTGAGE LOAN SCHEDULE (AIGMC LOANS)
JPMCC 2007-LDP10
Mortgage Loan Schedule (AIG)
Loan Zip
Loan # Seller Mortgagor Name Property Address City State Code County Property Name Size
------ ------ ------------------------ ------------------- ----------- ----- ----- ------- -------------- -----
130 AIG 7200 Fullerton Road, LLC 7200 Fullerton Road Springfield VA 22150 Fairfax 7200 Fullerton 78539
Net
Interest Mortgage Maturity/ Monthly
Rate Interest Original Cutoff Rem. ARD Amort. Rem. Debt
Loan # Measure (%) Rate Balance Balance Term Term Date Term Amort. Service
------ ----------- -------- -------- ---------- ------------- ---- ---- --------- ------ ------- -------
130 Square Feet 5.85000 5.82961 10,000,000 10,000,000 84 84 03/01/14 360 360 58,994
ARD
Servicing Step Originator/ Letter Upfront Upfront
Fee Accrual ARD Up Title Crossed Loan of CapEx Eng.
Loan # Rate Type (Y/N) (%) Type Loan Seller Guarantor Credit Reserve Reserve
------ --------- ---------- ----- ---- ----- ------- ----------- --------------- ------ ------- -------
130 0.02000 Actual/360 No Fee AIG CEI Realty, Inc No 0.00 0.00
Upfront Monthly
Upfront Upfront RE Upfront Upfront Monthly Monthly Monthly RE Monthly Monthly
Envir. TI/LC Tax Ins. Other Capex Envir. TI/LC Tax Ins. Other
Loan # Reserve Reserve Reserve Reserve Reserve Reserve Reserve Reserve Reserve Reserve Reserve
------ ------- ------- --------- ------- ------- ------- ------- ------- ------- ------- -------
130 0.00 0.00 21,767.13 0.00 0.00 654.49 0.00 1308.98 4353.43 0.00 0.00
Remaining
Interest Final Amortization
Grace Lockbox Property Defeasance Accrual Loan Maturity Term for
Loan # Period In-place Type Permitted Period Group Date Balloon Loans
------ ------ -------- ---------- ---------- ---------- ----- -------- -------------
130 0 No Industrial Yes Actual/360 3 360
EXHIBIT A-2
MORTGAGE LOAN SCHEDULE (SOME II LOANS)
JPMCC 2007-LDP10
Mortgage Loan Schedule (SOME II)
Loan
Loan # Seller Mortgagor Name
------ ------ --------------
52 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
52.01 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
52.02 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
52.03 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
52.04 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
52.05 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
52.06 SOME II Westmarket Associates 2006 LLC, Little River Associates 2006 LLC, Clinton Associates 2006 LLC,
Newmarket Associates 2006 LLC, Apopka Associates 2006 LLC, Westgate Associates 2006 LLC
85 SOME II Temecula Creek Commercial Center, LLC
Loan # Property Address City State Zip Code County Property Name
------ --------------------------- ---------- ------- -------- --------- -----------------------------------
52 Vairous Various Various Various Various Ross Retail Portfolio
52.01 719 S. Orange Blossom Trail Apopka FL 32703 Orange Apopka Regional Shopping Center
52.02 2625 N. Hiawassee Road Orlando FL 32818 Orange Westgate Square Shopping Center
52.03 4600 West Market Street Greensboro NC 27407 Guilford West Market Shopping Center
52.04 5100 Clinton Highway Knoxville TN 37912 Knox Clinton Plaza
52.05 1312 West Grantham Street Goldsboro NC 27530 Wayne Little River Square Shopping Center
52.06 1339 East Memorial Drive Ahoskie NC 27910 Hertford Newmarket Shopping Center
85 31021 - 31141 Hwy 79 Temecula CA 92592 Riverside Temecula Creek Plaza
Net
Interest Mortgage Maturity/ Monthly
Rate Interest Original Cutoff Rem. ARD Amort. Rem. Debt
Loan # Size Measure (%) Rate Balance Balance Term Term Date Term Amort. Service
------ ------ ----------- -------- -------- ---------- ---------- ---- ---- --------- ------ ------ -------
52 817497 Square Feet 5.86600 5.84561 49,600,000 49,600,000 120 118 01/01/17 360 360 293,117
52.01 171557 Square Feet 5.86600 5.86600 13,422,578 13,422,578 120 120 01/01/17 360 360
52.02 136188 Square Feet 5.86600 5.86600 9,927,942 9,927,942 120 120 01/01/17 360 360
52.03 153428 Square Feet 5.86600 5.86600 9,491,113 9,491,113 120 120 01/01/17 360 360
52.04 133345 Square Feet 5.86600 5.86600 8,418,895 8,418,895 120 120 01/01/17 360 360
52.05 118120 Square Feet 5.86600 5.86600 4,527,142 4,527,142 120 120 01/01/17 360 360
52.06 104859 Square Feet 5.86600 5.86600 3,812,330 3,812,330 120 120 01/01/17 360 360
85 67076 Square Feet 5.87000 5.84961 19,500,000 19,500,000 120 120 03/01/17 360 360 115,288
Servicing ARD Originator/
Fee Accrual ARD Step Title Crossed Loan
Loan # Rate Type (Y/N) Up (%) Type Loan Seller Guarantor
------ --------- ---------- ----- ------ ----- ------- ----------- --------------------------------------
52 0.02000 Actual/360 No Fee AIG Ronald D. Strawn, Stephen J. Garchik
52.01 0.00000 No Fee AIG
52.02 0.00000 No Fee AIG
52.03 0.00000 No Fee AIG
52.04 0.00000 No Fee AIG
52.05 0.00000 No Fee AIG
52.06 0.00000 No Fee AIG
85 0.02000 Actual/360 No Fee AIG David W. Wakefield , Thomas W. Coulson
Letter Upfront Upfront Upfront Upfront Upfront Upfront Upfront Monthly Monthly
of CapEx Eng. Envir. TI/LC RE Tax Ins. Other Capex Envir.
Loan # Credit Reserve Reserve Reserve Reserve Reserve Reserve Reserve Reserve Reserve
------ ------ ------- ---------- ------- ---------- ---------- --------- ------------ -------- --------
52 No 0.00 968,715.00 0.00 500,000.00 249,717.65 0.00 931,285.00 13500.00 0.00
52.01 No
52.02 No
52.03 No
52.04 No
52.05 No
52.06 No
85 No 0.00 0.00 0.00 450,000.00 56,881.22 22,722.96 2,050,000.00 0.00 0.00
Monthly Monthly Monthly Monthly Interest Final
TI/LC RE Tax Ins. Other Grace Lockbox Property Defeasance Accrual Loan Maturity
Loan # Reserve Reserve Reserve Reserve Period In-place Type Permitted Period Group Date
------ ------- -------- ------- ------- ------ -------- -------- ---------- ---------- ----- --------
52 0.00 50419.64 4097.17 0.00 0 Yes Retail Yes Actual/360 1
52.01 0 Retail 1
52.02 0 Retail 1
52.03 0 Retail 1
52.04 0 Retail 1
52.05 0 Retail 1
52.06 0 Retail 1
85 5589.67 8264.79 1893.58 0.00 0 No Retail Yes Actual/360 1
Remaining
Amortization
Term for
Balloon
Loan # Loans
------ ------------
52 360
52.01 360
52.02 360
52.03 360
52.04 360
52.05 360
52.06 360
85 360
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
(1) No Mortgage Loan is 30 days or more delinquent in payment of
principal and interest (without giving effect to any applicable grace period in
the related Mortgage Note) and no Mortgage Loan has been 30 days or more
(without giving effect to any applicable grace period in the related Mortgage
Note) past due.
(2) Except with respect to the ARD Loans, which provide that the rate
at which interest accrues thereon increases after the Anticipated Repayment
Date, the Mortgage Loans (exclusive of any default interest, late charges or
prepayment premiums) are fixed rate mortgage loans with terms to maturity, at
origination or as of the most recent modification, as set forth in the Mortgage
Loan Schedule.
(3) The information pertaining to each Mortgage Loan set forth on the
Mortgage Loan Schedule is true and correct in all material respects as of the
Cut-off Date.
(4) At the time of the assignment of the Mortgage Loans to the
Purchaser, the Seller had good and marketable title to and was the sole owner
and holder of, each Mortgage Loan, free and clear of any pledge, lien,
encumbrance or security interest (subject to certain agreements regarding
servicing as provided in the Pooling and Servicing Agreement, subservicing
agreements permitted thereunder and that certain Servicing Rights Purchase
Agreement, dated as of the Closing Date between the applicable Master Servicer
and Seller) and such assignment validly and effectively transfers and conveys
all legal and beneficial ownership of the Mortgage Loans to the Purchaser free
and clear of any pledge, lien, encumbrance or security interest (subject to
certain agreements regarding servicing as provided in the Pooling and Servicing
Agreement, subservicing agreements permitted thereunder and that certain
Servicing Rights Purchase Agreement, dated as of the Closing Date between the
applicable Master Servicer and Seller).
(5) In respect of each Mortgage Loan, (A) in reliance on public
documents or certified copies of the incorporation or partnership or other
entity documents, as applicable, delivered in connection with the origination of
such Mortgage Loan, the related Mortgagor is an entity organized under the laws
of a state of the United States of America, the District of Columbia or the
Commonwealth of Puerto Rico and (B) as of the origination date, the Seller
(based on customary due diligence) had no knowledge, and since the origination
date, the Seller has no actual knowledge, that the related Mortgagor is a debtor
in any bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or similar proceeding.
(6) Each Mortgage Loan is secured by the related Mortgage which
establishes and creates a valid and subsisting first priority lien on the
related Mortgaged Property, or leasehold interest therein, comprising real
estate, free and clear of any liens, claims, encumbrances, participation
interests, pledges, charges or security interests subject only to Permitted
Encumbrances. Such Mortgage, together with any separate security agreement, UCC
Financing Statement or similar agreement, if any, establishes and creates a
first priority security interest in favor of the Seller in all personal property
owned by the Mortgagor that is used in, and is reasonably necessary to, the
operation of the related Mortgaged Property and, to the extent a security
interest may be created therein and perfected by the filing of a UCC Financing
Statement under the Uniform Commercial Code as in effect in the relevant
jurisdiction, the proceeds arising from the Mortgaged Property and other
collateral securing such Mortgage Loan, subject only to Permitted Encumbrances.
There exists with respect to such Mortgaged Property an assignment of leases and
rents provision, either as part of the related Mortgage or as a separate
document or instrument, which establishes and creates a first priority security
interest in and to leases and rents arising in respect of the related Mortgaged
Property, subject only to Permitted Encumbrances. Except for the holder of the
Companion Loan with respect to the AB Mortgage Loans, to the Seller's knowledge,
no person other than the related Mortgagor and the mortgagee own any interest in
any payments due under the related leases. The related Mortgage or such
assignment of leases and rents provision provides for the appointment of a
receiver for rents or allows the holder of the related Mortgage to enter into
possession of the related Mortgaged Property to collect rent or provides for
rents to be paid directly to the holder of the related Mortgage in the event of
a default beyond applicable notice and grace periods, if any, under the related
Mortgage Loan documents. As of the origination date, there were, and, to the
Seller's actual knowledge as of the Closing Date, there are, no mechanics' or
other similar liens or claims which have been filed for work, labor or materials
affecting the related Mortgaged Property which are or may be prior or equal to
the lien of the Mortgage, except those that are bonded or escrowed for or which
are insured against pursuant to the applicable Title Insurance Policy (as
defined below) and except for Permitted Encumbrances. No (a) Mortgaged Property
secures any mortgage loan not represented on the Mortgage Loan Schedule other
than a Companion Loan, (b) Mortgage Loan is cross-collateralized or
cross-defaulted with any other mortgage loan, other than a Mortgage Loan listed
on the Mortgage Loan Schedule or a Companion Loan, or (c) Mortgage Loan is
secured by property that is not a Mortgaged Property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rent, operating revenues or other personal property to the extent
that possession or control of such items or actions other than the recordation
of the Mortgage or the Assignment of Leases and Rents or the filing of UCC
Financing Statements are required in order to effect such perfection.
(7) The related Mortgagor under each Mortgage Loan has good and
indefeasible fee simple or, with respect to those Mortgage Loans described in
clause (20) hereof, leasehold title to the related Mortgaged Property comprising
real estate subject to any Permitted Encumbrances.
(8) The Seller has received an American Land Title Association (ALTA)
lender's title insurance policy or a comparable form of lender's title insurance
policy (or escrow instructions binding on the Title Insurer (as defined below)
and irrevocably obligating the Title Insurer to issue such title insurance
policy or a title policy commitment or pro-forma "marked up" at the closing of
the related Mortgage Loan and countersigned or otherwise approved by the Title
Insurer or its authorized agent) as adopted in the applicable jurisdiction (the
"Title Insurance Policy"), which was issued by a nationally recognized title
insurance company (the "Title Insurer") qualified to do business in the
jurisdiction where the applicable Mortgaged Property is located (unless such
jurisdiction is the State of Iowa), covering the portion of each Mortgaged
Property comprised of real estate and insuring that the related Mortgage is a
valid first lien in the original principal amount of the related Mortgage Loan
on the Mortgagor's fee simple interest (or, if applicable, leasehold interest)
in such Mortgaged Property comprised of real estate, subject only to Permitted
Encumbrances. Such Title Insurance Policy was issued in connection with the
origination of the related Mortgage Loan. No claims have been made under such
Title Insurance Policy. Such Title Insurance Policy is in full force and effect
and all premiums thereon have been paid and will provide that the insured
includes the owner of the Mortgage Loan and its successors and/or assigns. No
holder of the related Mortgage has done, by act or omission, anything that
would, and the Seller has no actual knowledge of any other circumstance that
would, impair the coverage under such Title Insurance Policy.
(9) The related Assignment of Mortgage and the related assignment of
the Assignment of Leases and Rents executed in connection with each Mortgage, if
any, have been recorded in the applicable jurisdiction (or, if not recorded,
have been submitted for recording or are in recordable form (but for the
insertion of the name and address of the assignee and any related recording
information which is not yet available to the Seller)) and constitute the legal,
valid and binding assignment of such Mortgage and the related Assignment of
Leases and Rents from the Seller to the Purchaser. The endorsement of the
related Mortgage Note by the Seller constitutes the legal, valid, binding and
enforceable (except as such enforcement may be limited by anti-deficiency laws
or bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law)) assignment of
such Mortgage Note, and together with such Assignment of Mortgage and the
related assignment of Assignment of Leases and Rents, legally and validly
conveys all right, title and interest in such Mortgage Loan and Mortgage Loan
documents to the Purchaser.
(10) (a) The Mortgage Loan documents for each Mortgage Loan provide
that such Mortgage Loan is non-recourse to the related parties thereto except
that the related Mortgagor and at least one individual or entity shall be fully
liable for actual losses, liabilities, costs and damages arising from certain
acts of the related Mortgagor and/or its principals specified in the related
Mortgage Loan documents, which acts generally include the following: (i) fraud
or intentional material misrepresentation, (ii) misapplication or
misappropriation of rents, insurance proceeds or condemnation awards, (iii)
either (x) any act of actual waste by or (y) damage or destruction to the
Mortgaged Property caused by the acts or omissions of the borrower, its agents,
employees or contractors, and (iv) any breach of the environmental covenants
contained in the related Mortgage Loan documents.
(b) The Mortgage Loan documents for each Mortgage Loan contain
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the practical realization against the Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including realization by judicial or, if applicable, non judicial
foreclosure, and there is no exemption available to the related Mortgagor
which would interfere with such right of foreclosure except any statutory
right of redemption or as may be limited by anti-deficiency or one form of
action laws or by bankruptcy, receivership, conservatorship,
reorganization, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) Each of the related Mortgage Notes and Mortgages are the
legal, valid and binding obligations of the related Mortgagor named on the
Mortgage Loan Schedule and each of the other related Mortgage Loan
documents is the legal, valid and binding obligation of the parties thereto
(subject to any non recourse provisions therein), enforceable in accordance
with its terms, except as such enforcement may be limited by
anti-deficiency or one form of action laws or bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions of such Mortgage Loan documents are or may be unenforceable in
whole or in part under applicable state or federal laws, but the inclusion
of such provisions does not render any of the Mortgage Loan documents
invalid as a whole, and such Mortgage Loan documents taken as a whole are
enforceable to the extent necessary and customary for the practical
realization of the principal rights and benefits afforded thereby.
(d) The terms of the Mortgage Loans or the related Mortgage Loan
documents, have not been altered, impaired, modified or waived in any
material respect, except prior to the Cut-off Date by written instrument
duly submitted for recordation, to the extent required, and as specifically
set forth in the related Mortgage File.
(e) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently so
serves and is named in the deed of trust or may be substituted in
accordance with applicable law, and no fees or expenses are or will become
payable to the trustee under the deed of trust, except in connection with a
trustee's sale after default by the Mortgagor and de minimis fees paid in
connection with the release of the related Mortgaged Property or related
security for such Mortgage Loan following payment of such Mortgage Loan in
full.
(11) Except by a written instrument that has been delivered to the
Purchaser as a part of the related Mortgage File with respect to any immaterial
releases of the Mortgaged Property, no Mortgage Loan has been satisfied,
canceled, subordinated, released or rescinded, in whole or in part, and the
related Mortgagor has not been released, in whole or in part, from its
obligations under any related Mortgage Loan document.
(12) Except with respect to the enforceability of any provisions
requiring the payment of default interest, late fees, additional interest,
prepayment premiums or yield maintenance charges, neither the Mortgage Loan nor
any of the related Mortgage Loan documents is subject to any right of
rescission, set off, abatement, diminution, valid counterclaim or defense,
including the defense of usury, nor will the operation of any of the terms of
any such Mortgage Loan documents, or the exercise (in compliance with procedures
permitted under applicable law) of any right thereunder, render any Mortgage
Loan documents subject to any right of rescission, set off, abatement,
diminution, valid counterclaim or defense, including the defense of usury
(subject to anti-deficiency or one form of action laws and to bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or other
similar laws affecting the enforcement of creditor's rights generally and to
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law)), and no such right of
rescission, set off, abatement, diminution, valid counterclaim or defense has
been asserted with respect thereto. None of the Mortgage Loan documents provides
for a release of a portion of the Mortgaged Property from the lien of the
Mortgage except upon payment or defeasance in full of all obligations under the
Mortgage, provided that, notwithstanding the foregoing, certain of the Mortgage
Loans may allow partial release (a) upon payment or defeasance of an Allocated
Loan Amount which may be formula based, but in no event less than 125% of the
Allocated Loan Amount, or (b) in the event the portion of the Mortgaged Property
being released was not given any material value in connection with the
underwriting or appraisal of the related Mortgage Loan.
(13) As of the Closing Date, there is no payment default, after giving
effect to any applicable notice and/or grace period, and, to the Seller's
knowledge, as of the Closing Date, there is no other material default under any
of the related Mortgage Loan documents, after giving effect to any applicable
notice and/or grace period; no such material default or breach has been waived
by the Seller or on its behalf or, to the Seller's knowledge, by the Seller's
predecessors in interest with respect to the Mortgage Loans; and, to the
Seller's actual knowledge, no event has occurred which, with the passing of time
or giving of notice would constitute a material default or breach; provided,
however, that the representations and warranties set forth in this sentence do
not cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of any subject matter otherwise covered
by any other representation or warranty made by the Seller in this Exhibit B. No
Mortgage Loan has been accelerated and no foreclosure proceeding or power of
sale proceeding has been initiated under the terms of the related Mortgage Loan
documents. The Seller has not waived any material claims against the related
Mortgagor under any non-recourse exceptions contained in the Mortgage Note.
(14) (a) The principal amount of the Mortgage Loan stated on the
Mortgage Loan Schedule has been fully disbursed as of the Closing Date (except
for certain amounts that were fully disbursed by the mortgagee, but were
escrowed pursuant to the terms of the related Mortgage Loan documents) and there
are no future advances required to be made by the mortgagee under any of the
related Mortgage Loan documents. Any requirements under the related Mortgage
Loan documents regarding the completion of any on-site or off-site improvements
and to disbursements of any escrow funds therefor have been or are being
complied with or such escrow funds are still being held. The value of the
Mortgaged Property relative to the value reflected in the most recent appraisal
thereof is not materially impaired by any improvements which have not been
completed. The Seller has not, nor, to the Seller's knowledge, have any of its
agents or predecessors in interest with respect to the Mortgage Loan, in respect
of payments due on the related Mortgage Note or Mortgage, directly or
indirectly, advanced funds or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor other than (a) interest
accruing on such Mortgage Loan from the date of such disbursement of such
Mortgage Loan to the date which preceded by thirty (30) days the first payment
date under the related Mortgage Note and (b) application and commitment fees,
escrow funds, points and reimbursements for fees and expenses, incurred in
connection with the origination and funding of the Mortgage Loan.
(b) No Mortgage Loan has capitalized interest included in its
principal balance, or provides for any shared appreciation rights or other
equity participation therein and no contingent or additional interest
contingent on cash flow or negative amortization (other than with respect
to the deferment of payment with respect to ARD Loans) is due thereon.
(c) Each Mortgage Loan identified in the Mortgage Loan Schedule as
an ARD Loan starts to amortize no later than the Due Date of the calendar
month immediately after the calendar month in which such ARD Loan closed
and substantially fully amortizes over its stated term, which term is at
least 60 months after the related Anticipated Repayment Date. Each ARD Loan
has an Anticipated Repayment Date not less than seven years following the
origination of such Mortgage Loan. If the related Mortgagor elects not to
prepay its ARD Loan in full on or prior to the Anticipated Repayment Date
pursuant to the existing terms of the Mortgage Loan or a unilateral option
(as defined in Treasury Regulations under Section 1001 of the Code) in the
Mortgage Loan exercisable during the term of the Mortgage Loan, (i) the
Mortgage Loan's interest rate will step up to an interest rate per annum as
specified in the related Mortgage Loan documents; provided, however, that
payment of such Excess Interest shall be deferred until the principal of
such ARD Loan has been paid in full; (ii) all or a substantial portion of
the Excess Cash Flow (which is net of certain costs associated with owning,
managing and operating the related Mortgaged Property) collected after the
Anticipated Repayment Date shall be applied towards the prepayment of such
ARD Loan and once the principal balance of an ARD Loan has been reduced to
zero all Excess Cash Flow will be applied to the payment of accrued Excess
Interest; and (iii) if the property manager for the related Mortgaged
Property can be removed by or at the direction of the mortgagee on the
basis of a debt service coverage test, the subject debt service coverage
ratio shall be calculated without taking account of any increase in the
related Mortgage Interest Rate on such Mortgage Loan's Anticipated
Repayment Date. No ARD Loan provides that the property manager for the
related Mortgaged Property can be removed by or at the direction of the
mortgagee solely because of the passage of the related Anticipated
Repayment Date.
(d) Each Mortgage Loan identified in the Mortgage Loan Schedule as
an ARD Loan with a hard lockbox requires that tenants at the related
Mortgaged Property shall (and each Mortgage Loan identified in the Mortgage
Loan Schedule as an ARD Loan with a springing lockbox requires that tenants
at the related Mortgaged Property shall, upon the occurrence of a specified
trigger event, including, but not limited to, the occurrence of the related
Anticipated Repayment Date) make rent payments into a lockbox controlled by
the holder of the Mortgage Loan and to which the holder of the Mortgage
Loan has a first perfected security interest; provided, however, with
respect to each ARD Loan which is secured by a multi-family property with a
hard lockbox, or with respect to each ARD Loan which is secured by a
multi-family property with a springing lockbox, upon the occurrence of a
specified trigger event, including, but not limited to, the occurrence of
the related Anticipated Repayment Date, tenants either pay rents to a
lockbox controlled by the holder of the Mortgage Loan or deposit rents with
the property manager who will then deposit the rents into a lockbox
controlled by the holder of the Mortgage Loan.
(15) The terms of the Mortgage Loan documents evidencing such Mortgage
Loan comply in all material respects with all applicable local, state and
federal laws and regulations, and the Seller has complied with all material
requirements pertaining to the origination of the Mortgage Loans, including but
not limited to, usury and any and all other material requirements of any
federal, state or local law to the extent non-compliance would have a material
adverse effect on the Mortgage Loan.
(16) To the Seller's knowledge and subject to clause (37) hereof, as of
the date of origination of the Mortgage Loan, based on inquiry customary in the
industry, the related Mortgaged Property was, and to the Seller's actual
knowledge and subject to clause (37) hereof, as of the Closing Date, the related
Mortgaged Property is, in all material respects, in compliance with, and is used
and occupied in accordance with, all restrictive covenants of record applicable
to such Mortgaged Property and applicable zoning laws and all inspections,
licenses, permits and certificates of occupancy required by law, ordinance or
regulation to be made or issued with regard to the Mortgaged Property have been
obtained and are in full force and effect, except to the extent (a) any material
non-compliance with applicable zoning laws is insured by an ALTA lender's title
insurance policy (or binding commitment therefor), or the equivalent as adopted
in the applicable jurisdiction, or a law and ordinance insurance policy, or (b)
the failure to obtain or maintain such inspections, licenses, permits or
certificates of occupancy does not materially impair or materially and adversely
affect the use and/or operation of the Mortgaged Property as it was used and
operated as of the date of origination of the Mortgage Loan or the rights of a
holder of the related Mortgage Loan.
(17) All (a) taxes, water charges, sewer rents, assessments or other
similar outstanding governmental charges and governmental assessments which
became due and owing prior to the Closing Date in respect of the related
Mortgaged Property (excluding any related personal property), and if left
unpaid, would be, or might become, a lien on such Mortgaged Property having
priority over the related Mortgage and (b) insurance premiums or ground rents
which became due and owing prior to the Closing Date in respect of the related
Mortgaged Property (excluding any related personal property), have been paid, or
if disputed, or if such amounts are not delinquent prior to the Closing Date, an
escrow of funds in an amount sufficient (together with escrow payments required
to be made prior to delinquency) to cover such taxes and assessments and any
late charges due in connection therewith has been established. As of the date of
origination, the related Mortgaged Property was one or more separate and
complete tax parcels. For purposes of this representation and warranty, the
items identified herein shall not be considered due and owing until the date on
which interest or penalties would be first payable thereon.
(18) To the Seller's knowledge based on surveys or the Title Insurance
Policy, (i) none of the material improvements that were included for the purpose
of determining the appraised value of the related Mortgaged Property at the time
of the origination of such Mortgage Loan lies outside the boundaries and
building restriction lines of such Mortgaged Property, except to the extent they
are legally nonconforming as contemplated by representation (37) below, and (ii)
no improvements on adjoining properties encroach upon such Mortgaged Property,
except in the case of either (i) or (ii) for (a) immaterial encroachments which
do not materially adversely affect the security intended to be provided by the
related Mortgage or the use, enjoyment, value or marketability of such Mortgaged
Property or (b) encroachments affirmatively covered by the related Title
Insurance Policy. With respect to each Mortgage Loan, the property legally
described in the survey, if any, obtained for the related Mortgaged Property for
purposes of the origination thereof is the same as the property legally
described in the Mortgage.
(19) (a) As of the date of the applicable engineering report (which was
performed within 12 months prior to the Cut-off Date) related to the Mortgaged
Property and, to Seller's knowledge as of the Closing Date, the related
Mortgaged Property is either (i) in good repair, free and clear of any damage
that would materially adversely affect the value of such Mortgaged Property as
security for such Mortgage Loan or the use and operation of the Mortgaged
Property as it was being used or operated as of the origination date or (ii)
escrows in an amount consistent with the standard utilized by the Seller with
respect to similar loans it holds for its own account have been established,
which escrows will in all events be not less than 100% of the estimated cost of
the required repairs. Since the origination date, to the Seller's actual
knowledge, such Mortgaged Property has not been damaged by fire, wind or other
casualty or physical condition that would materially and adversely affect its
value as security for the related Mortgage Loan (including, without limitation,
any soil erosion or subsidence or geological condition), which damage has not
been fully repaired or fully insured, or for which escrows in an amount
consistent with the standard utilized by the Seller with respect to loans it
holds for its own account have not been established.
(b) As of the origination date of such Mortgage Loan and to the
Seller's actual knowledge, as of the Closing Date, there are no proceedings
pending or, to the Seller's actual knowledge, threatened, for the partial
or total condemnation of the relevant Mortgaged Property.
(20) The Mortgage Loans that are identified on Exhibit A as being
secured in whole or in part by a leasehold estate (a "Ground Lease") (except
with respect to any Mortgage Loan also secured by the related fee interest in
the Mortgaged Property) satisfy the following conditions:
(a) such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease or other agreement received by the
originator of the Mortgage Loan from the ground lessor, provides that the
interest of the lessee thereunder may be encumbered by the related Mortgage
and does not restrict the use of the related Mortgaged Property by such
lessee, its successors or assigns, in a manner that would materially and
adversely affect the security provided by the Mortgage; as of the date of
origination of the Mortgage Loan, there was no material change of record in
the terms of such Ground Lease with the exception of written instruments
which are part of the related Mortgage File and Seller has no knowledge of
any material change in the terms of such Ground Lease since the recordation
of the related Mortgage, with the exception of written instruments which
are part of the related Mortgage File;
(b) such Ground Lease or such other agreement received by the
originator of the Mortgage Loan from the ground lessor is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related fee interest and Permitted
Encumbrances and such Ground Lease or such other agreement received by the
originator of the Mortgage Loan from the ground lessor is, and shall
remain, prior to any mortgage or other lien upon the related fee interest
(other than the Permitted Encumbrances) unless a nondisturbance agreement
is obtained from the holder of any mortgage on the fee interest which is
assignable to or for the benefit of the related lessee and the related
mortgagee;
(c) such Ground Lease or other agreement provides that upon
foreclosure of the related Mortgage or assignment of the Mortgagor's
interest in such Ground Lease in lieu thereof, the mortgagee under such
Mortgage is entitled to become the owner of such interest upon notice to,
but without the consent of, the lessor thereunder and, in the event that
such mortgagee (or any of its successors and assigns under the Mortgage)
becomes the owner of such interest, such interest is further assignable by
such mortgagee (or any of its successors and assigns under the Mortgage)
upon notice to such lessor, but without a need to obtain the consent of
such lessor;
(d) such Ground Lease is in full force and effect and no default
of tenant or ground lessor was in existence at origination, or to the
Seller's knowledge, is in existence as of the Closing Date, under such
Ground Lease, nor at origination was, or to the Seller's knowledge, is
there any condition which, but for the passage of time or the giving of
notice, would result in a default under the terms of such Ground Lease;
either such Ground Lease or a separate agreement contains the ground
lessor's covenant that it shall not amend, modify, cancel or terminate such
Ground Lease without the prior written consent of the mortgagee under such
Mortgage and any amendment, modification, cancellation or termination of
the Ground Lease without the prior written consent of the related
mortgagee, or its successors or assigns is not binding on such mortgagee,
or its successor or assigns;
(e) such Ground Lease or other agreement requires the lessor
thereunder to give written notice of any material default by the lessee to
the mortgagee under the related Mortgage, provided that such mortgagee has
provided the lessor with notice of its lien in accordance with the
provisions of such Ground Lease; and such Ground Lease or other agreement
provides that no such notice of default and no termination of the Ground
Lease in connection with such notice of default shall be effective against
such mortgagee unless such notice of default has been given to such
mortgagee and any related Ground Lease or other agreement contains the
ground lessor's covenant that it will give to the related mortgagee, or its
successors or assigns, any notices it sends to the Mortgagor;
(f) either (i) the related ground lessor has subordinated its
interest in the related Mortgaged Property to the interest of the holder of
the Mortgage Loan or (ii) such Ground Lease or other agreement provides
that (A) the mortgagee under the related Mortgage is permitted a reasonable
opportunity to cure any default under such Ground Lease which is curable,
including reasonable time to gain possession of the interest of the lessee
under the Ground Lease, after the receipt of notice of any such default
before the lessor thereunder may terminate such Ground Lease; (B) in the
case of any such default which is not curable by such mortgagee, or in the
event of the bankruptcy or insolvency of the lessee under such Ground
Lease, such mortgagee has the right, following termination of the existing
Ground Lease or rejection thereof by a bankruptcy trustee or similar party,
to enter into a new ground lease with the lessor on substantially the same
terms as the existing Ground Lease; and (C) all rights of the Mortgagor
under such Ground Lease (insofar as it relates to the Ground Lease) may be
exercised by or on behalf of such mortgagee under the related Mortgage upon
foreclosure or assignment in lieu of foreclosure;
(g) such Ground Lease has an original term (or an original term
plus one or more optional renewal terms that under all circumstances may be
exercised, and will be enforceable, by the mortgagee or its assignee) which
extends not less than 20 years beyond the stated maturity date of the
related Mortgage Loan;
(h) under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds will be applied either to
the repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee under such Mortgage or a financially responsible
institution acting as trustee appointed by it, or consented to by it, or by
the lessor having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender), or to the payment in whole or in part of the outstanding principal
balance of such Mortgage Loan together with any accrued and unpaid interest
thereon; and
(i) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by the
Seller; such Ground Lease contains a covenant (or applicable laws provide)
that the lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment of any
lessee in the relevant portion of such Mortgaged Property subject to such
Ground Lease for any reason, or in any manner, which would materially
adversely affect the security provided by the related Mortgage.
(21) (a) Except for those Mortgage Loans set forth on Schedule I hereto
for which a lender's environmental insurance policy was obtained in lieu of an
Environmental Site Assessment, an Environmental Site Assessment relating to each
Mortgaged Property and prepared no earlier than 12 months prior to the Closing
Date was obtained and reviewed by the Seller in connection with the origination
of such Mortgage Loan and a copy is included in the Servicing File.
(b) Such Environmental Site Assessment does not identify, and the
Seller has no actual knowledge of, any adverse circumstances or conditions
with respect to or affecting the Mortgaged Property that would constitute
or result in a material violation of any Environmental Laws, other than
with respect to a Mortgaged Property (i) for which environmental insurance
(as set forth on Schedule II hereto) is maintained, or (ii) which would
require any expenditure greater than 5% of the outstanding principal
balance of such Mortgage Loan to achieve or maintain compliance in all
material respects with any Environmental Laws for which adequate sums, but
in no event less than 125% of the estimated cost as set forth in the
Environmental Site Assessment, were reserved in connection with the
origination of the Mortgage Loan and for which the related Mortgagor has
covenanted to perform, or (iii) as to which the related Mortgagor or one of
its affiliates is currently taking or required to take such actions (which
may be the implementation of an operations and maintenance plan), if any,
with respect to such conditions or circumstances as have been recommended
by the Environmental Site Assessment or required by the applicable
governmental authority, or (iv) as to which another responsible party not
related to the Mortgagor with assets reasonably estimated by the Seller at
the time of origination to be sufficient to effect all necessary or
required remediation identified in a notice or other action from the
applicable governmental authority is currently taking or required to take
such actions, if any, with respect to such regulatory authority's order or
directive, or (v) as to which such conditions or circumstances identified
in the Environmental Site Assessment were investigated further and based
upon such additional investigation, an environmental consultant recommended
no further investigation or remediation, or (vi) as to which a party with
financial resources reasonably estimated to be adequate to cure the
condition or circumstance provided a guaranty or indemnity to the related
Mortgagor or to the mortgagee to cover the costs of any required
investigation, testing, monitoring or remediation, or (vii) as to which the
related Mortgagor or other responsible party obtained a "No Further Action"
letter or other evidence reasonably acceptable to a prudent commercial
mortgage lender that applicable federal, state, or local governmental
authorities had no current intention of taking any action, and are not
requiring any action, in respect of such condition or circumstance, or
(viii) which would not require substantial cleanup, remedial action or
other extraordinary response under any Environmental Laws reasonably
estimated to cost in excess of 5% of the outstanding principal balance of
such Mortgage Loan.
(c) To the Seller's actual knowledge and in reliance upon the
Environmental Site Assessment, except for any Hazardous Materials being
handled in accordance with applicable Environmental Laws and except for any
Hazardous Materials present at such Mortgaged Property for which, to the
extent that an Environmental Site Assessment recommends remediation or
other action, (A) there exists either (i) environmental insurance with
respect to such Mortgaged Property (as set forth on Schedule II hereto) or
(ii) an amount in an escrow account pledged as security for such Mortgage
Loan under the relevant Mortgage Loan documents equal to no less than 125%
of the amount estimated in such Environmental Site Assessment as sufficient
to pay the cost of such remediation or other action in accordance with such
Environmental Site Assessment or (B) one of the statements set forth in
clause (b) above is true, (1) such Mortgaged Property is not being used for
the treatment or disposal of Hazardous Materials; (2) no Hazardous
Materials are being used or stored or generated for off-site disposal or
otherwise present at such Mortgaged Property other than Hazardous Materials
of such types and in such quantities as are customarily used or stored or
generated for off-site disposal or otherwise present in or at properties of
the relevant property type; and (3) such Mortgaged Property is not subject
to any environmental hazard (including, without limitation, any situation
involving Hazardous Materials) which under the Environmental Laws would
have to be eliminated before the sale of, or which could otherwise
reasonably be expected to adversely affect in more than a de minimis manner
the value or marketability of, such Mortgaged Property.
(d) The related Mortgage or other Mortgage Loan documents contain
covenants on the part of the related Mortgagor requiring its compliance
with any present or future federal, state and local Environmental Laws and
regulations in connection with the Mortgaged Property. The related
Mortgagor (or an affiliate thereof) has agreed to indemnify, defend and
hold the Seller, and its successors and assigns, harmless from and against
any and all losses, liabilities, damages, penalties, fines, expenses and
claims of whatever kind or nature (including attorneys' fees and costs)
imposed upon or incurred by or asserted against any such party resulting
from a breach of the environmental representations, warranties or covenants
given by the related Mortgagor in connection with such Mortgage Loan.
(e) Each of the Mortgage Loans which is covered by a lender's
environmental insurance policy obtained in lieu of an Environmental Site
Assessment ("In Lieu of Policy") is identified on Schedule I, and each In
Lieu of Policy is in an amount equal to 125% of the outstanding principal
balance of the related Mortgage Loan and has a term ending no sooner than
the maturity date (or, in the case of an ARD Loan, the final maturity date)
of the related Mortgage Loan. All environmental assessments or updates that
were in the possession of the Seller and that relate to a Mortgaged
Property identified on Schedule I as being insured by an In Lieu of Policy
have been delivered to or disclosed to the In Lieu of Policy carrier
issuing such policy prior to the issuance of such policy.
(22) As of the date of origination of the related Mortgage Loan, and,
as of the Closing Date, the Mortgaged Property is covered by insurance policies
providing the coverage described below and the Mortgage Loan documents permit
the mortgagee to require the coverage described below. All premiums with respect
to the Insurance Policies insuring each Mortgaged Property have been paid in a
timely manner or escrowed to the extent required by the Mortgage Loan documents,
and the Seller has not received (1) any notice of non payment of premiums that
has not been cured in a timely manner by the related Mortgagor or (2) any notice
of cancellation or termination of such Insurance Policies. The relevant
Servicing File contains the Insurance Policy required for such Mortgage Loan or
a certificate of insurance for such Insurance Policy. Each Mortgage requires
that the related Mortgaged Property and all improvements thereon are covered by
Insurance Policies providing (a) coverage in the amount of the lesser of full
replacement cost of such Mortgaged Property and the outstanding principal
balance of the related Mortgage Loan (subject to customary deductibles) for
losses sustained by fire and against loss or damage by other risks and hazards
covered by a standard extended coverage insurance policy providing "special"
form coverage in an amount sufficient to prevent the Mortgagor from being deemed
a co-insurer and to provide coverage on a full replacement cost basis of such
Mortgaged Property (in some cases exclusive of excavations, underground
utilities, foundations and footings) with an agreed amount endorsement to avoid
application of any coinsurance provision; such policies contain a standard
mortgage clause naming mortgagee and its successor in interest as additional
insureds or loss payee, as applicable; (b) business interruption or rental loss
insurance in an amount at least equal to (i) 12 months of operations or (ii) in
some cases all rents and other amounts customarily insured under this type of
insurance of the Mortgaged Property; (c) flood insurance (if any portion of the
improvements on the Mortgaged Property is located in an area identified by the
Federal Emergency Management Agency ("FEMA"), with respect to certain Mortgage
Loans and the Secretary of Housing and Urban Development with respect to
other Mortgage Loans, as having special flood hazards) in an amount not less
than amounts prescribed by FEMA; (d) workers' compensation, if required by law;
(e) comprehensive general liability insurance in an amount consistent with the
standard utilized by the Seller with respect to loans it holds for its own
account, but not less than $1 million; all such Insurance Policies contain
clauses providing they are not terminable and may not be terminated without
thirty (30) days prior written notice to the mortgagee (except where applicable
law requires a shorter period or except for nonpayment of premiums, in which
case not less than ten (10) days prior written notice to the mortgagee is
required). In addition, each Mortgage permits the related mortgagee to make
premium payments to prevent the cancellation thereof and shall entitle such
mortgagee to reimbursement therefor. Any insurance proceeds in respect of a
casualty loss or taking will be applied either to the repair or restoration of
all or part of the related Mortgaged Property or the payment of the outstanding
principal balance of the related Mortgage Loan together with any accrued
interest thereon. The related Mortgaged Property is insured by an Insurance
Policy, issued by an insurer meeting the requirements of such Mortgage Loan and
having a claims-paying or financial strength rating of at least "A-:V" from A.M.
Best Company or "A-" (or the equivalent) from Standard & Poor's Ratings
Services, Fitch, Inc. or 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.
(44) Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, (b) to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent with
its capital markets conduit lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property, in each case in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the
improvements located at the Mortgaged Property, and not less than the amount
necessary to avoid the operation of any co-insurance provisions with respect to
the Mortgaged Property, and the policy contains no provisions for a deduction
for depreciation.
Defined Terms:
The term "Allocated Loan Amount" shall mean, for each Mortgaged
Property, the portion of principal of the related Mortgage Loan allocated to
such Mortgaged Property for certain purposes (including determining the release
prices of properties, if permitted) under such Mortgage Loan as set forth in the
related loan documents. There can be no assurance, and it is unlikely, that the
Allocated Loan Amounts represent the current values of individual Mortgaged
Properties, the price at which an individual Mortgaged Property could be sold in
the future to a willing buyer or the replacement cost of the Mortgaged
Properties.
The term "Anticipated Repayment Date" shall mean the date on which all
or substantially all of any Excess Cash Flow is required to be applied toward
prepayment of the related Mortgage Loan and on which any such Mortgage Loan
begins accruing Excess Interest.
The term "ARD Loan" shall have the meaning assigned thereto in the
Pooling and Servicing Agreement.
The term "Environmental Site Assessment" shall mean a Phase I
environmental report meeting the requirements of the American Society for
Testing and Materials, and, if in accordance with customary industry standards a
reasonable lender would require it, a Phase II environmental report, each
prepared by a licensed third party professional experienced in environmental
matters.
The term "Excess Cash Flow" shall mean the cash flow from the Mortgaged
Property securing an ARD Loan after payments of interest (at the Mortgage
Interest Rate) and principal (based on the amortization schedule), and (a)
required payments for the tax and insurance fund and ground lease escrows fund,
(b) required payments for the monthly debt service escrows, if any, (c) payments
to any other required escrow funds and (d) payment of operating expenses
pursuant to the terms of an annual budget approved by the applicable Master
Servicer and discretionary (lender approved) capital expenditures.
The term "Excess Interest" shall mean any accrued and deferred interest
on an ARD Loan in accordance with the following terms. Commencing on the
respective Anticipated Repayment Date each ARD Loan (pursuant to its existing
terms or a unilateral option, as defined in Treasury Regulations under Section
1001 of the Code, in the Mortgage Loans exercisable during the term of the
Mortgage Loan) generally will bear interest at a fixed rate (the "Revised Rate")
per annum equal to the Mortgage Interest Rate plus a percentage specified in the
related Mortgage Loan documents. Until the principal balance of each such
Mortgage Loan has been reduced to zero (pursuant to its existing terms or a
unilateral option, as defined in Treasury Regulations under Section 1001 of the
Code, in the Mortgage Loans exercisable during the term of the Mortgage Loan),
such Mortgage Loan will only be required to pay interest at the Mortgage
Interest Rate and the interest accrued at the excess of the related Revised Rate
over the related Mortgage Interest Rate will be deferred (such accrued and
deferred interest and interest thereon, if any, is "Excess Interest").
The term "in reliance on" shall mean that:
(a) the Seller has examined and relied in whole or in part upon
one or more of the specified documents or other information in connection
with a given representation or warranty;
(b) that the information contained in such document or otherwise
obtained by the Seller appears on its face to be consistent in all material
respects with the substance of such representation or warranty;
(c) the Seller's reliance on such document or other information is
consistent with the standard of care exercised by prudent lending
institutions originating commercial mortgage loans; and
(d) although the Seller is under no obligation to verify
independently the information contained in any document specified as being
relied upon by it, the Seller believes the information contained therein to
be true, accurate and complete in all material respects and has no actual
knowledge of any facts or circumstances which would render reliance thereon
unjustified without further inquiry.
The term "Mortgage Interest Rate" shall mean the fixed rate of interest
per annum that each Mortgage Loan bears as of the Cut-off Date.
The term "Permitted Encumbrances" shall mean:
(a) the lien of current real property taxes, water charges, sewer
rents and assessments not yet delinquent or accruing interest or penalties;
(b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record acceptable to mortgage lending
institutions generally and referred to in the related mortgagee's title
insurance policy;
(c) other matters to which like properties are commonly subject,
and
(d) the rights of tenants, as tenants only, whether under ground
leases or space leases at the Mortgaged Property.
which together do not materially and adversely affect the related
Mortgagor's ability to timely make payments on the related Mortgage Loan,
which do not materially interfere with the benefits of the security
intended to be provided by the related Mortgage or the use, for the use
currently being made, the operation as currently being operated, enjoyment,
value or marketability of such Mortgaged Property, provided, however, that,
for the avoidance of doubt, Permitted Encumbrances shall exclude all pari
passu, second, junior and subordinated mortgages but shall not exclude
mortgages that secure other Mortgage Loans or Companion Loans that are
cross-collateralized with the related Mortgage Loan.
Other. For purposes of these representations and warranties, the term
"to the Seller's knowledge" shall mean that no officer, employee or agent of the
Seller responsible for the underwriting, origination or sale of the Mortgage
Loans or of any servicer responsible for servicing the Mortgage Loan on behalf
of the Seller, believes that a given representation or warranty is not true or
is inaccurate based upon the Seller's reasonable inquiry and during the course
of such inquiry, no such officer, employee or agent of the Seller has obtained
any actual knowledge of any facts or circumstances that would cause such person
to believe that such representation or warranty was inaccurate. Furthermore, all
information contained in documents which are part of or required to be part of a
Mortgage File shall be deemed to be within the Seller's knowledge. For purposes
of these representations and warranties, the term "to the Seller's actual
knowledge" shall mean that an officer, employee or agent of the Seller
responsible for the underwriting, origination and sale of the Mortgage Loans
does not actually know of any facts or circumstances that would cause such
person to believe that such representation or warranty was inaccurate.
EXHIBIT C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Exceptions to Representation 12
Mortgage Loan Exception
------------- ---------
Ross Retail Portfolio The Mortgage Loan documents permit the release of
an individual Mortgaged Property at a release price
of 115%, rather than 125%, of the allocated loan
amount.
Exceptions to Representation 18
Mortgage Loan Exception
------------- ---------
Ross Retail Portfolio Although the parcel identified in the loan
documents as the Bank parcel (identified as Tract
2-Parcel 12.01) was shown in the survey of the
Mortgaged Property, it was not included in the
collateral at origination as it was an additional
parcel that was given no material value by the
lender in the underwriting of the Mortgage Loan;
the parcel was sold by the borrower prior to
origination and is no longer owned by the borrower.
Exceptions to Representation 32
Mortgage Loan Exception
------------- ---------
Ross Retail Portfolio An equity owner of the borrower pledged its
ownership interest in the borrower as security for
an $8,000,000 mezzanine loan. An intercreditor
agreement between the Seller and the holder of the
mezzanine loan was executed.
7200 Fullerton The Mortgage Loan documents permit the principals
of the borrower to incur mezzanine debt, secured
by a pledge of their equity interests in the
borrower, subject to conditions including, but not
limited to, a combined DSCR of not less than
1.15x, a combined LTV ratio of not more than 85%,
lender consent to the identity of the mezzanine
lender and delivery of an intercreditor agreement
acceptable to the lender.
Exceptions to Representation 35
Mortgage Loan Exception
------------- ---------
Ross Retail Portfolio The Mortgage Loan documents permit the release of
an individual Mortgaged Property at a release price
of 115%, rather than 125%, of the allocated loan
amount.
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
I, [______], a duly appointed, qualified and acting [______] of
[___________], a [________] [______] (the "Company"), hereby certify on behalf
of the Company as follows:
1. I have examined the Mortgage Loan Purchase Agreement, dated as of
March 1, 2007 (the "Agreement"), between the Company and 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 March 9, 2007, as supplemented by the Prospectus
Supplement, dated March 26, 2007 (collectively, the "Prospectus"), relating to
the offering of the Class A-1, Class A-1S, Class A-2, Class A-2S, Class A-2SFL,
Class A-3, Class A-3S, Class A-1A, Class X, Class A-M, Class A-MS, Class A-J,
Class A-JFL, Class A-JS, Class B-S, Class C-S and Class D-S Certificates, the
Private Placement Memorandum, dated March 26, 2007 (the "Privately Offered
Certificate Private Placement Memorandum"), relating to the offering of the
Class B, Class C, Class D, Class E, Class E-S, Class F, Class F-S, Class G,
Class G-S, Class H, Class H-S, Class J, Class K, Class L, Class M, Class N,
Class P and Class NR Certificates, and the Residual Private Placement
Memorandum, dated March 26, 2007 (together with the Privately Offered
Certificate Private Placement Memorandum, the "Private Placement Memoranda"),
relating to the offering of the Class R, Class MR and Class LR Certificates, and
nothing has come to my attention that would lead me to believe that the
Prospectus, as of the date of the Prospectus Supplement or as of the date
hereof, or the Private Placement Memoranda, as of the date of the Private
Placement Memoranda or as of the date hereof, included or includes any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omits
to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading.
Capitalized terms used herein without definition have the meanings
given them in the Agreement.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, I have signed my name this ___ day of March,
2007.
By:____________________________________
Name:
Title:
SCHEDULE I
MORTGAGE LOANS FOR WHICH A LENDER'S ENVIRONMENTAL POLICY WAS
OBTAINED IN LIEU OF AN ENVIRONMENTAL SITE ASSESSMENT
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph number set forth below.
Paragraph 21(a) and (e):
None.
SCHEDULE II
MORTGAGED PROPERTY FOR WHICH
ENVIRONMENTAL INSURANCE IS MAINTAINED
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph numbers set forth below:
Paragraph 21(b) and (c):
None.
EXHIBIT 10.7
(Multicurrency - Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of March 29, 2007
JPMORGAN CHASE BANK, N.A. and J.P. MORGAN CHASE COMMERCIAL
MORTGAGE SECURITIES TRUST 2007-LDP10
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 2007-LDP10
--------------------------------------- ---------------------------------------
(Name of Party) (Name of Party)
By: Wells Fargo Bank, N.A.
not in its individual capacity, but
solely as Trustee
By: /s/ Andrew B. Taylor By: /s/ Ruth Fussell
------------------------------------ ------------------------------------
Name: Andrew B. Taylor Name: Ruth Fussell
Title: Vice President Title: Vice President
Date: Date:
EXHIBIT 10.8
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
SCHEDULE
to the
Master Agreement
dated as of March 29, 2007
between JPMORGAN CHASE BANK, N.A. and J.P. MORGAN CHASE COMMERCIAL MORTGAGE
SECURITIES TRUST 2007-LDP10
("Party A") ("Party B")
PART 1: Termination Provisions
(a) (i) "Trust Agreement" means the Pooling and Servicing Agreement dated as
of March 1, 2007, among J.P. Morgan Chase Commercial Mortgage Securities
Corp., as depositor, Midland Loan Services, Inc., as master servicer No.
1, Wachovia Bank, National Association, as master servicer No. 2, J.E.
Robert Company, Inc., as special servicer, Wells Fargo Bank, N.A., as
trustee, and LaSalle Bank National Association, as co-trustee, as amended,
modified, supplemented, restated or replaced from time to time.
(ii) "Class A-2SFL Certificates" means the Commercial Mortgage
Pass-Through Certificates, Series 2007-LDP10, 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 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;
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 (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") or at least "A-" by
Fitch, Inc., or any successor thereto ("Fitch"), to the extent such
obligations are rated by Moody's.
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 document Form/Document/Certificate Date by which to be 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:-
Date
by which Covered by
Party required to to be Section 3(d)
deliver document Form/Document/Certificate 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 2007-LDP10
c/o Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Corporate Trust Services-J.P. Morgan 2007-LDP10
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 Trustee 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 Wells
Fargo Bank, N.A. ("Wells Fargo"), 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 Wells Fargo
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
Wells Fargo, 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 Wells Fargo 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 2007-LDP10
By: /s/ Andrew B. Taylor By:
---------------------------
Name: Andrew B. Taylor Wells Fargo Bank, N.A., not in its
Title: Vice President individual capacity, but solely as Trustee
By: /s/ Ruth Fussell
------------------------------------------
Name: Ruth Fussell
Title: Vice President
EXHIBIT A
PARAGRAPH 13 TO
CREDIT SUPPORT ANNEX
to the Schedule to the
Master Agreement
dated as of March 29, 2007
between
------------------------------- -------- ---------------------------------------
JPMorgan Chase Bank, N.A. and J.P. Morgan Chase Commercial Mortgage
("Morgan") Securities Trust 2007-LDP10
("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":
------ ------------------------------------------------- ------ --------------
Morgan "Valuation
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 P1 by X 97%
Moody's, 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) 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.
(5) 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).
(6) "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
(Moody's/Fitch) Morgan
------------------------------------- -------------------------
Moody's: A3 or above Infinity
Fitch: A- or above
------------------------------------- -------------------------
Moody's: Below A3 US$0
Fitch: Below A-
------------------------------------- -------------------------
As used herein:
"Credit Rating" means, with respect to (a) Moody's, the rating
assigned by Moody's to the short-term and long-term senior unsecured
deposits of Morgan, or (B) 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
2007-LDP10
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 Moody's and the original maturity of the
Transaction and determined by the Valuation Agent by reference to the
following table:
Counterparty Rating Maturities up Maturities up Maturities
(Moody's) to 5 years (%) to 10 years (%) up to 30
years (%)
------------------- ---------------- --------------- ---------------
P-2 3.25 4.00 4.75
------------------- ---------------- --------------- ---------------
P-3 4.00 5.00 6.25
------------------- ---------------- --------------- ---------------
Ba1 or lower 4.50 6.75 7.50
------------------- ---------------- --------------- ---------------
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 2007-LDP10
By: Wells Fargo Bank, N.A., not in its individual
capacity, but solely as Trustee
CONFIRMATION FOR U.S. DOLLAR INTEREST RATE SWAP
TRANSACTION UNDER 1992 MASTER AGREEMENT
Date: March 29, 2007 Our ref: 99501148
To: J.P. Morgan Chase Commercial Mortgage From: JPMorgan Chase Bank, N.A.
Securities Trust 2007-LDP10 270 Park Avenue
c/o Wells Fargo Bank, N.A. 6th Floor
9062 Old Annapolis Road New York, New York 10017
Columbia, Maryland 21045
Attn: Corporate Trust Services-J.P. Morgan Contact: Andrew Taylor
2007-LDP10
Telecopy Fax No: (212) 834-6598
No: (410) 715-2380
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 2007-LDP10 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 March 29,
2007, 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
2007-LDP10 (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 2007-LDP10, 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 2007-LDP10, Class A-2SFL Regular
Interest. For the avoidance of doubt, on the Effective Date, the Notional Amount is equal
to $150,000,000.
Trade Date: March 29, 2007
Effective Date: March 29, 2007
Termination Date: The earlier of: (a) the Rated Final Distribution Date (as defined in the Trust Agreement) in
January of 2049; 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
Party B: $605,150.00, to be paid on the Effective Date.
Initial Up-front Payment by
Party B to Party A: $3,045.00, to be paid on the Effective Date.
Fixed Amounts:
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Dates: The related Distribution Date, beginning on April 16, 2007 and ending on the Termination
Date.
Fixed Rate: 5.1870% per annum
Fixed Rate Day Count Fraction: 30/360 (without regard to the date of the first day or last day of the Calculation Period).
Initial Fixed Rate From and including March 1, 2007, through and including March 31, 2007.
Calculation Period:
Fixed Amount: For each Payment Date in respect of a Fixed 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 Fixed 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 Period End Dates: The first day of each calendar month (with no adjustments).
Fixed Rate Payer Delayed Payment: For each Payment Date, the period from and including the immediately preceding Period End
Date to, but excluding, such Payment Date.
Fixed Rate Calculation Period: For each Payment Date, the calendar month preceding such Payment Date during the Term of
this Swap Transaction.
Additional Fixed Amount: For any Payment Date, the amount of any 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 Payment Dates: The Business Day prior to the related Distribution Date, beginning on April 13, 2007 and
ending on the Termination Date.
Floating Rate for Initial LIBOR plus the Spread.
Calculation Period:
Floating Rate Option: LIBOR, as defined and calculated under the Trust Agreement; provided that for the Initial
Floating Rate Calculation Period, the Floating Rate Option should be 5.3200%.
Spread: 0.1300%
Floating Rate Day Count Fraction: Actual/360
Floating Rate Calculation Period: For each Payment Date, the period from and including the Distribution Date in the 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 Rate From and including the Closing Date to, but excluding, April 16, 2007.
Calculation Period:
Floating Amount: For each Payment Date in respect of a Floating 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 Floating 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 Documents: With respect to Party B, the Pooling and Servicing Agreement, dated as of March 1, 2007,
among J.P. Morgan Chase Commercial Mortgage Securities Corp., as depositor, Midland Loan
Services, Inc., as master servicer No. 1, Wachovia Bank, National Association, as master
servicer No. 2, J.E. Robert Company, Inc., as special servicer, Wells Fargo Bank, N.A.,
as trustee, and LaSalle Bank National Association, as co-trustee, as amended, modified,
supplemented, restated or replaced from time to time (the "Trust Agreement").
Account Details:
Account for payments to Name: JPMorgan Chase Bank, N.A.
Party A: City: New York
ABA: 021-000-021
Acct #: 999-97-341
Attn: Balance Guaranty
Account for payments to Name: Wells Fargo Bank, N.A.
Party B: ABA: 121-000-248
for credit to SAS Clearing 3970771416,
for further credit to A/C # 53136800
JPM 2007-LDP10 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: Columbia, MD
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.
Accepted and confirmed as of the date first
written:
J.P. Morgan Chase Commercial Mortgage
Securities Trust 2007-LDP10
JPMorgan Chase Bank, N.A.
By: Wells Fargo Bank, N.A., not in its
individual capacity, but solely as
Trustee
By: /s/ Andrew B. Taylor By: /s/ Ruth Fussell
----------------------------------- ------------------------------------
Name: Andrew B. Taylor Name: Ruth Fussell
Title: Vice President Title: Vice President
EXHIBIT 10.10
(Multicurrency - Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of March 29, 2007
JPMORGAN CHASE BANK, N.A. and J.P. MORGAN CHASE COMMERCIAL
MORTGAGE SECURITIES TRUST 2007-LDP10
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, i
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