EXHIBIT 10.7
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J.P. MORGAN CHASE COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER
AIG MORTGAGE CAPITAL, LLC AND SOME II, LLC,
SELLER
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 1, 2006
Fixed Rate Mortgage Loans
Series 2006-LDP9
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This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as of December 1, 2006, is among J.P. Morgan Chase Commercial
Mortgage
Securities Corp., as purchaser (the "Purchaser"), and AIG Mortgage
Capital, LLC
("AIGMC"), as seller of the loans identified on Exhibit A-1 (the
"AIGMC Loans")
and SOME II, LLC ("SOME II" and together with AIGMC, the "Sellers"
and each
individually, a "Seller"), as seller of the loan identified on
Exhibit A-2 (the
"SOME II Loans")].
Capitalized terms used in this Agreement not defined herein
shall
have the meanings ascribed to them in the Pooling and Servicing
Agreement dated
as of December 1, 2006 (the "Pooling and Servicing Agreement")
among the
Purchaser, as depositor (the "Depositor"), Midland Loan Services,
Inc., Capmark
Finance Inc. and Wachovia Bank, National Association, as master
servicers (each,
a "Master Servicer"), LNR Partners, Inc., as special servicer (the
"Special
Servicer"), LaSalle Bank National Association, as trustee (the
"Trustee") and
Wells Fargo Bank, N.A., as paying agent (the "Paying Agent"),
pursuant to which
the Purchaser will sell the Mortgage Loans (as defined herein) to a
trust fund
and certificates representing ownership interests in the Mortgage
Loans will be
issued by the trust fund. For purposes of this Agreement, the term
"Mortgage
Loans" refers to the mortgage loans listed on Exhibit A-1 and
Exhibit A-2 and
the term "Mortgaged Properties" refers to the properties securing
such Mortgage
Loans.
The Purchaser and the Sellers wish to prescribe the manner of
sale of the Mortgage Loans from the Sellers to the Purchaser and
in
consideration of the premises and the mutual agreements hereinafter
set forth,
agree as follows:
SECTION 1. Sale and Conveyance of Mortgages; Possession of
Mortgage File. Effective as of the Closing Date and upon receipt of
the purchase
price set forth in the immediately succeeding paragraph, each
Seller does hereby
sell, transfer, assign, set over and convey to the Purchaser,
without recourse
(subject to certain agreements regarding servicing as provided in
the Pooling
and Servicing Agreement, subservicing agreements permitted
thereunder and that
certain Servicing Rights Purchase Agreement, dated as of the
Closing Date
between the applicable Master Servicer and the Sellers) all of its
right, title,
and interest in and to the related Mortgage Loans described in
Exhibit A-1 or
Exhibit A-2, as applicable, including all interest and principal
received on or
with respect to the Mortgage Loans after the Cut-off Date (other
than payments
of principal and interest first due on the Mortgage Loans on or
before the
Cut-off Date). Upon the sale of the related Mortgage Loans, the
ownership of
each related Mortgage Note, the Mortgage and the other contents of
the related
Mortgage File will be vested in the Purchaser and immediately
thereafter the
Trustee and the ownership of records and documents with respect to
the related
Mortgage Loan prepared by or which come into the possession of the
applicable
Seller (other than the records and documents described in the
proviso to Section
3(a) hereof) shall immediately vest in the Purchaser and
immediately thereafter
the Trustee. The Sellers' records will accurately reflect the sale
of each
Mortgage Loan sold by such Seller to the Purchaser. The Depositor
will sell the
Class A-1, Class A-1S, Class A-2, Class A-2S, Class A-2SFL, Class
A-3, Class
A-3SFL, Class A-1A, Class X, Class A-M, Class A-MS, Class A-J,
Class A-JS, Class
B, Class B-S, Class C, Class C-S, Class D and Class D-S
Certificates (the
"Offered Certificates") to the underwriters (the "Underwriters")
specified in
the underwriting agreement dated December 15, 2006 (the
"Underwriting
Agreement") between the Depositor and J.P. Morgan Securities Inc.
("JPMSI") for
itself and as representative of the several underwriters identified
therein, and
the Depositor will sell the Class E, Class E-S, Class F, Class F-S,
Class G,
Class G-S, Class H, Class H-S, Class J, Class K, Class L, Class M,
Class N,
Class P and Class NR Certificates (the "Private Certificates") to
JPMSI, the
initial purchaser (together with the Underwriters, the "Dealers")
specified in
the certificate purchase agreement dated December 15, 2006 (the
"Certificate
Purchase Agreement"), between the Depositor and JPMSI for itself
and as
representative of the initial purchasers identified therein.
The sale and conveyance of the AIGMC Loans and the SOME II
Loans
are being conducted on an arms length basis and upon commercially
reasonable
terms. As the purchase price for the AIGMC Loans and the SOME II
Loans, the
Purchaser shall pay to the Sellers or at the Sellers' direction in
immediately
available funds the sum of $125,524,410 (which amount is inclusive
of accrued
interest and exclusive of AIGMC's and SOME II's pro rata share of
the costs set
forth in Section 9 hereof). The purchase and sale of the AIGMC
Loans and the
SOME II Loans shall take place on the Closing Date.
SECTION 2. Books and Records; Certain Funds Received After the
Cut-off Date. From and after the sale of the Mortgage Loans to the
Purchaser,
record title to each Mortgage and the related Mortgage Note shall
be transferred
to the Trustee in accordance with this Agreement. Any funds due
after the
Cut-off Date in connection with a Mortgage Loan received by each
Seller shall be
held in trust for the benefit of the Trustee as the owner of such
Mortgage Loan
and shall be transferred promptly to the applicable Master
Servicer. All
scheduled payments of principal and interest due on or before the
Cut-off Date
but collected after the Cut-off Date, and recoveries of principal
and interest
collected on or before the Cut-off Date (only in respect of
principal and
interest on the Mortgage Loans due on or before the Cut-off Date
and principal
prepayments thereon), shall belong to, and shall be promptly
remitted to, the
related Seller.
The transfer of each Mortgage Loan shall be reflected on the
related Seller's balance sheets and other financial statements as a
sale of such
Mortgage Loan by such Seller to the Purchaser. The Sellers intend
to treat the
transfer of each Mortgage Loan to the Purchaser as a sale for tax
purposes.
The transfer of each Mortgage Loan shall be reflected on the
Purchaser's balance sheets and other financial statements as a
purchase of such
Mortgage Loan by the Purchaser from the applicable Seller. The
Purchaser intends
to treat the transfer of each Mortgage Loan from the Sellers as a
purchase for
tax purposes.
SECTION 3. Delivery of Mortgage Loan Documents; Additional
Costs
and Expenses. (a) The Purchaser hereby directs the Sellers, and the
Sellers
hereby agree, upon the transfer of the Mortgage Loans contemplated
herein, to
deliver on the Closing Date to the Trustee or a Custodian appointed
thereby, all
documents, instruments and agreements required to be delivered by
the Purchaser
to the Trustee with respect to the Mortgage Loans sold by such
Seller under
Sections 2.01(b) and 2.01(c) of the Pooling and Servicing
Agreement, and meeting
all the requirements of such Sections 2.01(b) and 2.01(c), and such
other
documents, instruments and agreements as the Purchaser or the
Trustee shall
reasonably request. In addition, each Seller agrees to deliver or
cause to be
delivered to the applicable Master Servicer, the Servicing File for
each
Mortgage Loan transferred by it pursuant to this Agreement;
provided that the
Sellers shall not be required to deliver any draft documents, or
any attorney
client communications which are privileged communications or
constitute legal or
other due diligence analyses, or internal communications of a
Seller or its
affiliates, or credit underwriting or other analyses or data.
(b) With respect to the transfer described in Section 1 hereof,
if the Mortgage Loan documents do not require the related Mortgagor
to pay any
costs and expenses relating to any modifications to a related
letter of credit
which modifications are required to effectuate such transfer (the
"Transfer
Modification Costs"), then the related Seller shall pay the
Transfer
Modification Costs required to transfer the letter of credit to the
Trustee as
described in such Section 1; provided that if the Mortgage Loan
documents
require the related Mortgagor to pay any Transfer Modification
Costs, such
Transfer Modification Costs shall be an expense of the Mortgagor
unless such
Mortgagor fails to pay such Transfer Modification Costs after the
applicable
Master Servicer has exercised all remedies available under the
applicable
Mortgage Loan documents to collect such Transfer Modification Costs
from such
Mortgagor, in which case applicable Master Servicer shall give the
related
Seller notice of such failure and the amount of such Transfer
Modification costs
and the related Seller shall pay such Transfer Modification
Costs.
SECTION 4. Treatment as a Security Agreement. Each Seller,
concurrently with the execution and delivery hereof, has conveyed
to the
Purchaser, all of its right, title and interest in and to the
related Mortgage
Loans. The parties intend that such conveyance of each Seller's
right, title and
interest in and to the related Mortgage Loans pursuant to this
Agreement shall
constitute a purchase and sale and not a loan. If such conveyance
is deemed to
be a pledge and not a sale, then the parties also intend and agree
that each
Seller shall be deemed to have granted, and in such event does
hereby grant, to
the Purchaser, a first priority security interest in all of its
right, title and
interest in, to and under the related Mortgage Loans, all payments
of principal
or interest on such Mortgage Loans due after the Cut-off Date, all
other
payments made in respect of such Mortgage Loans after the Cut-off
Date (except
to the extent such payments were due on or before the Cut-off Date)
and all
proceeds thereof and that this Agreement shall constitute a
security agreement
under applicable law. If such conveyance is deemed to be a pledge
and not a
sale, each Seller consents to the Purchaser hypothecating and
transferring such
security interest in favor of the Trustee and transferring the
obligation
secured thereby to the Trustee.
SECTION 5. Covenants of the Seller. Each Seller covenants with
the Purchaser as follows:
(a) it shall record or cause a third party to record in the
appropriate public recording office for real property the
intermediate
assignments of the applicable Mortgage Loans and the Assignments of
Mortgage
from such Seller to the Trustee in connection with the Pooling and
Servicing
Agreement. All recording fees relating to the initial recordation
of such
intermediate assignments and Assignments of Mortgage shall be paid
by the
related Seller;
(b) it shall take any action reasonably required by the
Purchaser, the Trustee or the applicable Master Servicer, in order
to assist and
facilitate in the transfer of the servicing of the Mortgage Loans
to the
applicable Master Servicer, including effectuating the transfer of
any letters
of credit with respect to any Mortgage Loan to the Trustee (in care
of the
applicable Master Servicer) for the benefit of Certificateholders.
Prior to the
date that a letter of credit, if any, with respect to any Mortgage
Loan is
transferred to the Trustee (in care of the applicable Master
Servicer), the
related Seller will cooperate with the reasonable requests of the
applicable
Master Servicer or Special Servicer, as applicable, in connection
with
effectuating a draw under such letter of credit as required under
the terms of
the related Mortgage Loan documents;
(c) if, during such period of time after the first date of the
public offering of the Offered Certificates as in the opinion of
counsel for the
Underwriters, a prospectus relating to the Offered Certificates is
required by
applicable law to be delivered in connection with sales thereof by
an
Underwriter or a Dealer, any event shall occur as a result of which
it is
necessary to amend or supplement the Prospectus Supplement,
including Annexes
A-1, A-2, A-3 and B thereto and the Diskette included therewith,
with respect to
any information relating to the Mortgage Loans or the related
Seller, in order
to make the statements therein, in the light of the circumstances
when the
Prospectus Supplement is delivered to a purchaser, not misleading,
or if it is
necessary to amend or supplement the Prospectus Supplement,
including Annexes
A-1, A-2, A-3 and B thereto and the Diskette included therewith,
with respect to
any information relating to the Mortgage Loans or the related
Seller, to comply
with applicable law, such Seller shall do all things necessary to
assist the
Depositor to prepare and furnish, at the expense of such Seller (to
the extent
that such amendment or supplement relates to such Seller, the
Mortgage Loans
sold by such Seller and/or any information relating to the same, as
provided by
the Sellers), to the Underwriters such amendments or supplements to
the
Prospectus Supplement as may be necessary, so that the statements
in the
Prospectus Supplement as so amended or supplemented, including
Annexes A-1, A-2,
A-3 and B thereto and the Diskette included therewith, with respect
to any
information relating to the Mortgage Loans or the related Seller,
will not, in
the light of the circumstances when the Prospectus is so amended
or
supplemented, be misleading or so that the Prospectus Supplement,
including
Annexes A-1, A-2, A-3 and B thereto and the Diskette included
therewith, with
respect to any information relating to the Mortgage Loans or the
related Seller,
will comply with applicable law. All terms used in this clause (c)
and not
otherwise defined herein shall have the meaning set forth in the
Indemnification
Agreement, dated as of December 15, 2006 between the Purchaser and
the AIGMC
(the "Indemnification Agreement"); and
(d) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the
Purchaser (or
with respect to any Companion Loan related to a Serviced Whole Loan
or any
Serviced Securitized Companion Loan that is deposited into an
Other
Securitization or a Regulation AB Companion Loan Securitization,
the depositor
in such Other Securitization or Regulation AB Companion Loan
Securitization) and
the Trustee with any Additional Form 10-D Disclosure and any
Additional Form
10-K Disclosure set forth next to the Purchaser's name on Schedule
X and
Schedule Y of the Pooling and Servicing Agreement within the time
periods set
forth in the Pooling and Servicing Agreement.
SECTION 6. Representations and Warranties.
(a) Each Seller represents and warrants to the Purchaser as of
the Closing Date that:
(i) it is a limited liability company organized, validly
existing, and in good standing under the laws of Delaware;
(ii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iii) it has the power to execute, deliver and perform this
Agreement;
(iv) it is legally authorized to transact business in the State
of New York. Such Seller is in compliance with the laws of each
state in
which any related Mortgaged Property is located to the extent
necessary
so that a subsequent holder of the related Mortgage Loan
(including,
without limitation, the Purchaser) that is in compliance with the
laws
of such state would not be prohibited from enforcing such Mortgage
Loan
solely by reason of any non-compliance by such Seller;
(v) the execution, delivery and performance of this Agreement
by
such Seller have been duly authorized by all requisite action by
such
Seller's board of directors and will not violate or breach any
provision
of its organizational documents;
(vi) this Agreement has been duly executed and delivered by
such
Seller and constitutes a legal, valid and binding obligation of
such
Seller, enforceable against it in accordance with its terms (except
as
enforcement thereof may be limited by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other
laws
affecting the enforcement of creditors' rights generally and by
general
equitable principles regardless of whether enforcement is
considered in
a proceeding in equity or at law);
(vii) there are no legal or governmental proceedings pending to
which such Seller is a party or of which any property of such
Seller is
the subject which, if determined adversely to such Seller,
would
reasonably be expected to adversely affect (A) the transfer of
the
applicable Mortgage Loans and the Mortgage Loan documents as
contemplated herein, (B) the execution and delivery by such Seller
or
enforceability against such Seller of the applicable Mortgage Loans
or
this Agreement, or (C) the performance of such Seller's
obligations
hereunder;
(viii) it has no actual knowledge that any statement, report,
officer's certificate or other document prepared and furnished or
to be
furnished by such Seller in connection with the transactions
contemplated hereby (including, without limitation, any financial
cash
flow models and underwriting file abstracts furnished by such
Seller)
contains any untrue statement of a material fact or omits to state
a
material fact necessary in order to make the statements
contained
therein, in the light of the circumstances under which they were
made,
not misleading;
(ix) it is not, nor with the giving of notice or lapse of time
or
both would be, in violation of or in default under any
indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument
to which it is a party or by which it or any of its properties is
bound,
except for violations and defaults which individually and in
the
aggregate would not have a material adverse effect on the
transactions
contemplated herein; the sale of the applicable Mortgage Loans and
the
performance by such Seller of all of its obligations under this
Agreement and the consummation by such Seller of the transactions
herein
contemplated do not conflict with or result in a breach of any of
the
terms or provisions of, or constitute a default under, any
material
indenture, mortgage, deed of trust, loan agreement or other
agreement or
instrument to which the Seller is a party or by which such Seller
is
bound or to which any of the property or assets of such Seller
is
subject, nor will any such action result in any violation of
the
provisions of any applicable law or statute or any order, rule
or
regulation of any court or governmental agency or body having
jurisdiction over such Seller, or any of its properties, except
for
conflicts, breaches, defaults and violations which individually and
in
the aggregate would not have a material adverse effect on the
transactions contemplated herein; and no consent, approval,
authorization, order, license, registration or qualification of or
with
any such court or governmental agency or body is required for
the
consummation by such Seller of the transactions contemplated by
this
Agreement, other than any consent, approval, authorization,
order,
license, registration or qualification that has been obtained or
made;
(x) it has either (A) not dealt with any Person (other than the
Purchaser or the Dealers or their respective affiliates or any
servicer
of a Mortgage Loan) that may be entitled to any commission or
compensation in connection with the sale or purchase of the
Mortgage
Loans or entering into this Agreement or (B) paid in full any
such
commission or compensation (except with respect to any servicer of
a
Mortgage Loan, any commission or compensation that may be due
and
payable to such servicer if such servicer is terminated and does
not
continue to act as a servicer); and
(xi) it is solvent and the sale of its Mortgage Loans hereunder
will not cause it to become insolvent; and the sale of its
Mortgage
Loans is not undertaken with the intent to hinder, delay or defraud
any
of such Seller's creditors.
(b) The Purchaser represents and warrants to each Seller as of
the Closing Date that:
(i) it is a corporation duly organized, validly existing, and
in
good standing in the State of Delaware;
(ii) it is duly qualified as a foreign corporation in good
standing in all jurisdictions in which ownership or lease of
its
property or the conduct of its business requires such
qualification,
except where the failure to be so qualified would not have a
material
adverse effect on the Purchaser, and the Purchaser is conducting
its
business so as to comply in all material respects with the
applicable
statutes, ordinances, rules and regulations of each jurisdiction
in
which it is conducting business;
(iii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iv) it has the power to execute, deliver and perform this
Agreement, and neither the execution and delivery by the Purchaser
of
this Agreement, nor the consummation by the Purchaser of the
transactions herein contemplated, nor the compliance by the
Purchaser
with the provisions hereof, will (A) conflict with or result in a
breach
of, or constitute a default under, any of the provisions of the
certificate of incorporation or by-laws of the Purchaser or any of
the
provisions of any law, governmental rule, regulation, judgment,
decree
or order binding on the Purchaser or any of its properties, or
any
indenture, mortgage, contract or other instrument or agreement to
which
the Purchaser is a party or by which it is bound, or (B) result in
the
creation or imposition of any lien, charge or encumbrance upon any
of
the Purchaser's property pursuant to the terms of any such
indenture,
mortgage, contract or other instrument or agreement;
(v) this Agreement constitutes a legal, valid and binding
obligation of the Purchaser enforceable against it in accordance
with
its terms (except as enforcement thereof may be limited by (a)
bankruptcy, receivership, conservatorship, reorganization,
insolvency,
moratorium or other laws affecting the enforcement of creditors'
rights
generally and (b) general equitable principles (regardless of
whether
enforcement is considered in a proceeding in equity or law));
(vi) there are no legal or governmental proceedings pending to
which the Purchaser is a party or of which any property of the
Purchaser
is the subject which, if determined adversely to the Purchaser,
might
interfere with or adversely affect the consummation of the
transactions
contemplated herein and in the Pooling and Servicing Agreement; to
the
best of the Purchaser's knowledge, no such proceedings are
threatened or
contemplated by any governmental authorities or threatened by
others;
(vii) it is not in default with respect to any order or decree
of
any court or any order, regulation or demand of any federal,
state
municipal or governmental agency, which default might have
consequences
that would materially and adversely affect the condition (financial
or
other) or operations of the Purchaser or its properties or might
have
consequences that would materially and adversely affect its
performance
hereunder;
(viii) it has not dealt with any broker, investment banker,
agent
or other person, other than the Sellers, the Dealers and their
respective affiliates, that may be entitled to any commission
or
compensation in connection with the purchase and sale of the
Mortgage
Loans or the consummation of any of the transactions
contemplated
hereby;
(ix) all consents, approvals, authorizations, orders or filings
of or with any court or governmental agency or body, if any,
required
for the execution, delivery and performance of this Agreement by
the
Purchaser have been obtained or made; and
(x) it has not intentionally violated any provisions of the
United States Secrecy Act, the United States Money Laundering
Control
Act of 1986 or the United States International Money Laundering
Abatement and Anti-Terrorism Financing Act of 2001.
(c) AIGMC and SOME II each hereby make the representations and
warranties set forth in Exhibit B as to the SOME II Loans and as of
the Closing
Date (or as of such other date if specifically provided in the
particular
representation or warranty), which representations and warranties
are subject to
the exceptions thereto set forth in Exhibit C. AIGMC further makes
the
representations and warranties set forth in Exhibit B as to the
AIGMC Loans and
as of the Closing Date (or as of such other date if specifically
provided in the
particular representation or warranty), which representations and
warranties are
subject to the exceptions thereto set forth in Exhibit C. Neither
the delivery
by the related Seller of the related Mortgage Files, Servicing
Files, or any
other documents required to be delivered under Section 2.01 of the
Pooling and
Servicing Agreement, nor the review thereof or any other due
diligence by the
Trustee, any Master Servicer, the Special Servicer, a Certificate
Owner or any
other Person shall relieve such Seller of any liability or
obligation with
respect to any representation or warranty or otherwise under this
Agreement or
constitute notice to any Person of a Breach or Defect.
(d) Pursuant to this Agreement or Section 2.03(b) of the
Pooling
and Servicing Agreement, SOME II (only with respect to the SOME II
Loans), AIGMC
(with respect to any Mortgage Loan) and the Purchaser shall be
given notice of
any Breach or Defect that materially and adversely affects the
value of any
Mortgage Loan, the value of the related Mortgaged Property or the
interests of
the Trustee or any Certificateholder therein.
(e) Upon notice pursuant to Section 6(d) above, AIGMC shall,
not
later than 90 days from the earlier of AIGMC's receipt of the
notice or, in the
case of a Defect or Breach relating to a Mortgage Loan not being a
"qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, but
without
regard to the rule of Treasury Regulation Section 1.860G-2(f)(2)
that causes a
defective mortgage loan to be treated as a qualified mortgage, the
AIGMC's
discovery of such Breach or Defect (the "Initial Resolution
Period"), (i) cure
such Defect or Breach, as the case may be, in all material
respects, (ii)
repurchase the affected Mortgage Loan at the applicable Repurchase
Price (as
defined below) or (iii) substitute a Qualified Substitute Mortgage
Loan (as
defined below) for such affected Mortgage Loan (provided that in no
event shall
any such substitution occur later than the second anniversary of
the Closing
Date) and pay the applicable Master Servicer for deposit into the
Certificate
Account, any Substitution Shortfall Amount (as defined below) in
connection
therewith; provided, however, that except with respect to a Defect
resulting
solely from the failure by AIGMC to deliver to the Trustee or
Custodian the
actual policy of lender's title insurance required pursuant to
clause (ix) of
the definition of Mortgage File by a date not later than 18 months
following the
Closing Date, if such Breach or Defect is capable of being cured
but is not
cured within the Initial Resolution Period, and AIGMC has commenced
and is
diligently proceeding with the cure of such Breach or Defect within
the Initial
Resolution Period, AIGMC shall have an additional 90 days
commencing immediately
upon the expiration of the Initial Resolution Period (the "Extended
Resolution
Period") to complete such cure (or, failing such cure, to
repurchase the related
Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as
described
above); and provided, further, that with respect to the Extended
Resolution
Period AIGMC shall have delivered an officer's certificate to the
Rating
Agencies, the applicable Master Servicer, the Special Servicer, the
Trustee and
the Directing Certificateholder setting forth the reason such
Breach or Defect
is not capable of being cured within the Initial Resolution Period
and what
actions AIGMC is pursuing in connection with the cure thereof and
stating that
the Seller anticipates that such Breach or Defect will be cured
within the
Extended Resolution Period. Notwithstanding anything else in this
Agreement to
the contrary, all of the obligations with respect to a Breach or
Defect relating
to the SOME II Loans shall be solely the obligations of AIGMC, and
the Purchaser
shall have no right to require SOME II to take any action following
a Breach or
Default with respect to the SOME II Loans. Any Defect or Breach
which causes any
Mortgage Loan not to be a "qualified mortgage" (within the meaning
of Section
860G(a)(3) of the Code, without regard to the rule of Treasury
Regulations
Section 1.860G-2(f)(2) which causes a defective mortgage loan to be
treated as a
qualified mortgage) shall be deemed to materially and adversely
affect the
interests of the holders of the Certificates therein, and such
Mortgage Loan
shall be repurchased or a Qualified Substitute Mortgage Loan
substituted in lieu
thereof without regard to the extended cure period described in the
preceding
sentence. If the affected Mortgage Loan is to be repurchased, AIGMC
shall remit
the Repurchase Price (defined below) in immediately available funds
to the
Trustee.
If any Breach pertains to a representation or warranty that the
related Mortgage Loan documents or any particular Mortgage Loan
document
requires the related Mortgagor to bear the costs and expenses
associated with
any particular action or matter under such Mortgage Loan
document(s), then AIGMC
shall cure such Breach within the applicable cure period (as the
same may be
extended) by reimbursing the Trust Fund (by wire transfer of
immediately
available funds) the reasonable amount of any such costs and
expenses incurred
by the applicable Master Servicer, the Special Servicer, the
Trustee or the
Trust Fund that are the basis of such Breach and have not been
reimbursed by the
related Mortgagor; provided, however, that in the event any such
costs and
expenses exceed $10,000, AIGMC shall have the option to either
repurchase or
substitute for the related Mortgage Loan as provided above or pay
such costs and
expenses. Except as provided in the proviso to the immediately
preceding
sentence, AIGMC shall remit the amount of such costs and expenses
and upon its
making such remittance, AIGMC shall be deemed to have cured such
Breach in all
respects. To the extent any fees or expenses that are the subject
of a cure by
AIGMC are subsequently obtained from the related Mortgagor, the
portion of the
cure payment equal to such fees or expenses obtained from the
Mortgagor shall be
returned to AIGMC pursuant to Section 2.03(f) of the Pooling and
Servicing
Agreement. Notwithstanding the foregoing, the sole remedy with
respect to any
breach of the representation set forth in the second to last
sentence of clause
(32) of Exhibit B hereto shall be payment by AIGMC of such costs
and expenses
without respect to the materiality of such breach.
Any of the following will cause a document in the Mortgage File
to be deemed to have a Defect and to be conclusively presumed to
materially and
adversely affect the interests of Certificateholders in a Mortgage
Loan and to
be deemed to materially and adversely affect the interests of
the
Certificateholders in and the value of a Mortgage Loan: (a) the
absence from the
Mortgage File of the original signed Mortgage Note, unless the
Mortgage File
contains a signed lost note affidavit and indemnity with a copy of
the Mortgage
Note that appears to be regular on its face; (b) the absence from
the Mortgage
File of the original signed Mortgage that appears to be regular on
its face,
unless there is included in the Mortgage File a certified copy of
the Mortgage
and a certificate stating that the original signed Mortgage was
sent for
recordation; (c) the absence from the Mortgage File of the lender's
title
insurance policy (or if the policy has not yet been issued, an
original or copy
of a "marked up" written commitment or the pro-forma or specimen
title insurance
policy or a commitment to issue the same pursuant to written escrow
instructions
signed by the title insurance company) called for by clause (ix) of
the
definition of "Mortgage File" in the Pooling and Servicing
Agreement; (d) the
absence from the Mortgage File of any required letter of credit;
(e) with
respect to any leasehold mortgage loan, the absence from the
related Mortgage
File of a copy (or an original, if available) of the related Ground
Lease; or
(f) the absence from the Mortgage File of any intervening
assignments required
to create a complete chain of assignments to the Trustee on behalf
of the Trust,
unless there is included in the Mortgage File a certified copy of
the
intervening assignment and a certificate stating that the original
intervening
assignments were sent for recordation; provided, however, that no
Defect (except
the Defects previously described in clauses (a) through (f)) shall
be considered
to materially and adversely affect the value of any Mortgage Loan,
the value of
the related Mortgaged Property or the interests of the Trustee or
any
Certificateholder therein unless the document with respect to which
the Defect
exists is required in connection with an imminent enforcement of
the Mortgagee's
rights or remedies under the related Mortgage Loan, defending any
claim asserted
by any borrower or third party with respect to the Mortgage Loan,
establishing
the validity or priority of any lien on any collateral securing the
Mortgage
Loan or for any immediate significant servicing obligation.
Notwithstanding the
foregoing, the delivery of executed escrow instructions or a
commitment to issue
a lender's title insurance policy, as provided in clause (ix) of
the definition
of "Mortgage File" in the Pooling and Servicing Agreement, in lieu
of the
delivery of the actual policy of lender's title insurance, shall
not be
considered a Defect or Breach with respect to any Mortgage File if
such actual
policy is delivered to the Trustee or its Custodian within 18
months after the
Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in the first paragraph of
this Section
6(e), (ii) such Mortgage Loan is a Crossed Loan, and (iii) the
applicable Defect
or Breach does not constitute a Defect or Breach, as the case may
be, as to any
other Crossed Loan in such Crossed Group (without regard to this
paragraph),
then the applicable Defect or Breach, as the case may be, will be
deemed to
constitute a Defect or Breach, as the case may be, as to each other
Crossed Loan
in the Crossed Group for purposes of this paragraph, and AIGMC will
be required
to repurchase or substitute for all of the remaining Crossed Loans
in the
related Crossed Group as provided in the first paragraph of this
Section 6(e)
unless such other Crossed Loans in such Crossed Group satisfy the
Crossed Loan
Repurchase Criteria, and the Mortgage Loan affected by the
applicable Defect or
Breach and the Qualified Substitute Mortgage Loan, if any, satisfy
all other
criteria for repurchase or substitution, as applicable, of Mortgage
Loans set
forth herein. In the event that the remaining Crossed Loans satisfy
the
aforementioned criteria, AIGMC may elect either to repurchase or
substitute for
only the affected Crossed Loan as to which the related Breach or
Defect exists
or to repurchase or substitute for all of the Crossed Loans in the
related
Crossed Group. AIGMC shall be responsible for the cost of any
Appraisal required
to be obtained by the applicable Master Servicer to determine if
the Crossed
Loan Repurchase Criteria have been satisfied, so long as the scope
and cost of
such Appraisal has been approved by AIGMC (such approval not to be
unreasonably
withheld).
To the extent that AIGMC is required to repurchase or
substitute
for a Crossed Loan hereunder in the manner prescribed above while
the Trustee
continues to hold any other Crossed Loans in such Crossed Group,
neither AIGMC
nor the Trustee shall enforce any remedies against the other's
Primary
Collateral, but each is permitted to exercise remedies against the
Primary
Collateral securing its respective Crossed Loans, including with
respect to the
Trustee, the Primary Collateral securing Crossed Loans still held
by the
Trustee.
If the exercise of remedies by one party would materially
impair
the ability of the other party to exercise its remedies with
respect to the
Primary Collateral securing the Crossed Loans held by such party,
then AIGMC and
the Trustee shall forbear from exercising such remedies until the
Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be
modified in
a manner that removes the threat of material impairment as a result
of the
exercise of remedies or some other accommodation can be reached.
Any reserve or
other cash collateral or letters of credit securing the Crossed
Loans shall be
allocated between such Crossed Loans in accordance with the
Mortgage Loan
documents, or otherwise on a pro rata basis based upon their
outstanding Stated
Principal Balances. Notwithstanding the foregoing, if a Crossed
Loan that
remains in the Trust Fund is modified to terminate the related
cross
collateralization and/or cross default provisions, as a condition
to such
modification, AIGMC shall furnish to the Trustee an Opinion of
Counsel that any
modification shall not cause an Adverse REMIC Event. Any expenses
incurred by
the Purchaser in connection with such modification or accommodation
(including
but not limited to recoverable attorney fees) shall be paid by
AIGMC.
The "Repurchase Price" with respect to any Mortgage Loan or REO
Loan to be repurchased pursuant to this Agreement and Section 2.03
of the
Pooling and Servicing Agreement, shall have the meaning given to
the term
"Purchase Price" in the Pooling and Servicing Agreement.
A "Qualified Substitute Mortgage Loan" with respect to any
Mortgage Loan or REO Loan to be substituted pursuant to this
Agreement and
Section 2.03 of the Pooling and Servicing Agreement, shall have the
meaning
given to such term in the Pooling and Servicing Agreement.
A "Substitution Shortfall Amount" with respect to any Mortgage
Loan or REO Loan to be substituted pursuant to this Agreement and
Section 2.03
of the Pooling and Servicing Agreement, shall have the meaning
given to such
term in the Pooling and Servicing Agreement.
In connection with any repurchase or substitution of one or
more
Mortgage Loans contemplated hereby, (i) the Purchaser shall execute
and deliver,
or cause the execution and delivery of, such endorsements and
assignments,
without recourse, as shall be necessary to vest in AIGMC the legal
and
beneficial ownership of each repurchased Mortgage Loan or replaced
Mortgage
Loan, as applicable, (ii) the Purchaser shall deliver, or cause the
delivery, to
AIGMC of all portions of the Mortgage File and other documents
(including the
Servicing File) pertaining to such Mortgage Loan possessed by the
Trustee, or on
the Trustee's behalf, and (iii) the Purchaser shall release, or
cause to be
released, to AIGMC any escrow payments and reserve funds held by
the Trustee, or
on the Trustee's behalf, in respect of such repurchased or replaced
Mortgage
Loans.
(f) The representations and warranties of the parties hereto
shall survive the execution and delivery and any termination of
this Agreement
and shall inure to the benefit of the respective parties,
notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes or
Assignment of
Mortgage or the examination of the Mortgage Files.
(g) Each party hereby agrees to promptly notify the other party
of any Breach of a representation or warranty contained in this
Section 6.
AIGMC's obligation to cure any Breach or Defect or repurchase or
substitute for
the affected Mortgage Loan pursuant to Section 6(e) herein shall
constitute the
sole remedy available to the Purchaser in connection with a breach
of any of
AIGMC's or SOME II's representations or warranties contained in
this Section 6
and it is acknowledged and agreed that the representations and
warranties are
being made for risk allocation purposes only; provided, however,
that no
limitation of remedy is implied with respect to AIGMC's breach of
its obligation
to cure, repurchase or substitute in accordance with the terms and
conditions of
this Agreement.
SECTION 7. Conditions to Closing. The obligations of the
Purchaser to purchase the Mortgage Loans shall be subject to the
satisfaction,
on or prior to the Closing Date, of the following conditions:
(a) Each of the obligations of the Sellers required to be
performed by it at or prior to the Closing Date pursuant to the
terms of this
Agreement shall have been duly performed and complied with and all
of the
representations and warranties of the Sellers under this Agreement
shall be true
and correct in all material respects as of the Closing Date, and no
event shall
have occurred as of the Closing Date which, with notice or passage
of time,
would constitute a default under this Agreement, and the Purchaser
shall have
received a certificate to the foregoing effect signed by an
authorized officer
of each Seller substantially in the form of Exhibit D.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of each Seller's limited liability company agreement
and by-laws, certified as of a recent date by the Secretary or
Assistant
Secretary of such Seller;
(ii) an original or copy of a certificate of corporate
existence
of each Seller issued by the Secretary of State of the State of
Delaware
dated not earlier than sixty days prior to the Closing Date;
(iii) an opinion of counsel of the Sellers, in form and
substance
satisfactory to the Purchaser and its counsel, substantially to
the
effect that:
(A) each Seller is a limited liability company organized,
validly existing, and in good standing under the laws of
Delaware;
(B) each Seller has the power to conduct its business as
now conducted and to incur and perform its obligations under
this
Agreement and the Indemnification Agreement;
(C) all necessary corporate or other action has been taken
by each Seller to authorize the execution, delivery and
performance of this Agreement and the Indemnification Agreement
by such Seller and this Agreement is a legal, valid and binding
agreement of such Seller enforceable against such Seller,
whether
such enforcement is sought in a procedure at law or in equity,
except to the extent such enforcement may be limited by
bankruptcy or other similar creditors' laws or principles of
equity and public policy considerations underlying the
securities
laws, to the extent that such public policy considerations
limit
the enforceability of the provisions of the Agreement which
purport to provide indemnification with respect to securities
law
violations;
(D) each Seller's execution and delivery of, and such
Seller's performance of its obligations under, each of this
Agreement and the Indemnification Agreement do not and will not
conflict with such Seller's articles of association or by-laws
or
conflict with or result in the breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument to which such Seller is a party or by
which such Seller is bound, or to which any of the property or
assets of such Seller is subject or violate any provisions of
law
or conflict with or result in the breach of any order of any
court or any governmental body binding on such Seller;
(E) there is no litigation, arbitration or mediation
pending before any court, arbitrator, mediator or
administrative
body, or
to such counsel's actual knowledge, threatened, against
either Seller which (i) questions, directly or indirectly, the
validity or enforceability of this Agreement or the
Indemnification Agreement or (ii) would, if decided adversely
to
such Seller, either individually or in the aggregate,
reasonably
be expected to have a material adverse effect on the ability of
such Seller to perform its obligations under this Agreement or
the Indemnification Agreement; and
(F) no consent, approval, authorization, order, license,
registration or qualification of or with any federal court or
governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by this Agreement
and
the Indemnification Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or
qualifications
as have been obtained; and
(iv) a letter from counsel of the Sellers to the effect that
nothing has come to such counsel's attention that would lead
such
counsel to believe that the Prospectus Supplement as of the date
thereof
or as of the Closing Date contains, with respect to the Sellers or
the
Mortgage Loans, any untrue statement of a material fact or omits
to
state a material fact necessary in order to make the statements
therein
relating to the Sellers or the Mortgage Loans, in the light of
the
circumstances under which they were made, not misleading.
(c) The Offered Certificates shall have been concurrently
issued
and sold pursuant to the terms of the Underwriting Agreement. The
Private
Certificates shall have been concurrently issued and sold pursuant
to the terms
of the Certificate Purchase Agreement.
(d) AIGMC shall have executed and delivered concurrently
herewith
the Indemnification Agreement.
(e) The Sellers shall furnish the Purchaser with such other
certificates of their officers or others and such other documents
and opinions
to evidence fulfillment of the conditions set forth in this
Agreement as the
Purchaser and its counsel may reasonably request.
SECTION 8. Closing. The closing for the purchase and sale of
the
Mortgage Loans shall take place at the office of Cadwalader,
Wickersham & Taft
LLP, Charlotte, North Carolina, at 10:00 a.m., on the Closing Date
or such other
place and time as the parties shall agree. The parties hereto agree
that time is
of the essence with respect to this Agreement.
SECTION 9. Expenses. Each Seller will pay its pro rata share
(such Seller's pro rata share to be determined according to the
percentage that
the aggregate principal balance as of the Cut-off Date of all the
Mortgage Loans
sold by such Seller represents in proportion to the aggregate
principal balance
as of the Cut-off Date of all the mortgage loans to be included in
the Trust
Fund) of all costs and expenses of the Purchaser in connection with
the
transactions contemplated herein, including (without duplication
thereof), but
not limited to: (i) the costs and expenses of the Purchaser in
connection with
the purchase of the Mortgage Loans and other mortgage loans; (ii)
the costs and
expenses of reproducing and delivering the Pooling and Servicing
Agreement and
printing (or otherwise reproducing) and delivering the
Certificates; (iii) the
reasonable and documented fees, costs and expenses of the Trustee
and its
counsel incurred in connection with the Trustee entering into the
Pooling and
Servicing Agreement; (iv) the fees and disbursements of a firm of
certified
public accountants selected by the Purchaser and the Sellers with
respect to
numerical information in respect of the Mortgage Loans, other
mortgage loans and
the Certificates included in the Prospectus, the Memoranda (as
defined in the
Indemnification Agreement) and any related 8-K Information (as
defined in the
Underwriting Agreement), or items similar to the 8-K Information,
including the
cost of obtaining any "comfort letters" with respect to such items;
(v) the
costs and expenses in connection with the qualification or
exemption of the
Certificates under state securities or blue sky laws, including
filing fees and
reasonable fees and disbursements of counsel in connection
therewith; (vi) the
costs and expenses in connection with any determination of the
eligibility of
the Certificates for investment by institutional investors in any
jurisdiction
and the preparation of any legal investment survey, including
reasonable fees
and disbursements of counsel in connection therewith; (vii) the
costs and
expenses in connection with printing (or otherwise reproducing) and
delivering
the Registration Statement, Prospectus and Memoranda, and the
reproduction and
delivery of this Agreement and the furnishing to the Underwriters
of such copies
of the Registration Statement, Prospectus, Memoranda and this
Agreement as the
Underwriters may reasonably request; (viii) the fees of the rating
agency or
agencies requested to rate the Certificates and (ix) the reasonable
fees and
expenses of Thacher Proffitt & Wood LLP, counsel to the
Underwriters, and
Cadwalader, Wickersham & Taft LLP, counsel to the
Depositor.
SECTION 10. Severability of Provisions. If any one or more of
the
covenants, agreements, provisions or terms of this Agreement shall
be for any
reason whatsoever held invalid, then such covenants, agreements,
provisions or
terms shall be deemed severable from the remaining covenants,
agreements,
provisions or terms of this Agreement and shall in no way affect
the validity or
enforceability of the other provisions of this Agreement.
Furthermore, the
parties shall in good faith endeavor to replace any provision held
to be invalid
or unenforceable with a valid and enforceable provision which most
closely
resembles, and which has the same economic effect as, the provision
held to be
invalid or unenforceable.
SECTION 11. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to
conflicts of
law principles and the obligations, rights and remedies of the
parties hereunder
shall be determined in accordance with such laws.
SECTION 12. No Third Party Beneficiaries. The parties do not
intend the benefits of this Agreement to inure to any third party
except as
expressly set forth in Section 13.
SECTION 13. Assignment. The Sellers hereby acknowledge that the
Purchaser has, concurrently with the execution hereof, executed and
delivered
the Pooling and Servicing Agreement and that, in connection
therewith, it has
assigned its rights hereunder to the Trustee for the benefit of
the
Certificateholders to the extent set forth in the Pooling and
Servicing
Agreement and that the rights so assigned may be further assigned
to, and shall
inure to the benefit of, any successor trustee under the Pooling
and Servicing
Agreement. The Sellers hereby acknowledge their obligations
(subject to the
provisions hereof), including that of expense reimbursement,
pursuant to
Sections 2.01, 2.02 and 2.03 of the Pooling and Servicing
Agreement. Except as
set forth hereinabove and in Sections 2.01, 2.02 and 2.03 of the
Pooling and
Servicing Agreement, the representations and warranties of the
Sellers made
hereunder and the remedies provided hereunder with respect to
Breaches or
Defects may not be further assigned by the Purchaser, the Trustee
or any
successor trustee. No owner of a Certificate issued pursuant to the
Pooling and
Servicing Agreement shall be deemed a successor or permitted assign
because of
such ownership. This Agreement shall bind and inure to the benefit
of, and be
enforceable by, the Sellers, the Purchaser and their permitted
successors and
permitted assigns. The warranties and representations and the
agreements made by
the Sellers herein shall survive delivery of the Mortgage Loans to
the Trustee
until the termination of the Pooling and Servicing Agreement.
SECTION 14. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly
given upon
receipt by the intended recipient if personally delivered at or
couriered, sent
by facsimile transmission or mailed by first class or registered
mail, postage
prepaid, to (i) in the case of the Purchaser, J.P. Morgan Chase
Commercial
Mortgage Securities Corp., 270 Park Avenue, New York, New York
10017, Attention:
Dennis Schuh, fax number (212) 834-6593 with a copy to Bianca
Russo, fax number
(212) 834-6593, (ii) in the case of the Sellers, AIG Mortgage
Capital, LLC, 1
SunAmerica Center, 38th Floor, Los Angeles, California 90067,
Attention: Alan
Nussenblatt, fax number: (310) 772-6584 and (iii) in the case of
any of the
preceding parties, such other address or fax number as may
hereafter be
furnished to the other party in writing by such party.
SECTION 15. Amendment. This Agreement may be amended only by a
written instrument which specifically refers to this Agreement and
is executed
by the Purchaser and the Seller; provided, however, that unless
such amendment
is to cure an ambiguity, mistake or inconsistency in this
Agreement, no
amendment shall be permitted unless each Rating Agency has
delivered a written
confirmation that such amendment will not result in a downgrade,
withdrawal or
qualification of the then current ratings of the Certificates and
the cost of
obtaining any Rating Agency confirmation shall be borne by the
party requesting
such amendment. This Agreement shall not be deemed to be amended
orally or by
virtue of any continuing custom or practice. No amendment to the
Pooling and
Servicing Agreement which relates to defined terms contained
therein or any
obligations of the Seller whatsoever shall be effective against the
Seller
unless the Seller shall have agreed to such amendment in
writing.
SECTION 16. Counterparts. This Agreement may be executed in any
number of counterparts, and by the parties hereto in separate
counterparts, each
of which when executed and delivered shall be deemed to be an
original and all
of which taken together shall constitute one and the same
instrument.
SECTION
17. Exercise of Rights. No failure or delay on the part
of any party to exercise any right, power or privilege under this
Agreement and
no course of dealing between the Sellers and the Purchaser shall
operate as a
waiver thereof, nor shall any single or partial exercise of any
right, power or
privilege under this Agreement preclude any other or further
exercise thereof or
the exercise of any other right, power or privilege. Except as set
forth in
Section 6 herein, the rights and remedies herein expressly provided
are
cumulative and not exclusive of any rights or remedies which any
party would
otherwise have pursuant to law or equity. Except as set forth in
Section 6
herein, no notice to or demand on any party in any case shall
entitle such party
to any other or further notice or demand in similar or other
circumstances, or
constitute a waiver of the right of either party to any other or
further action
in any circumstances without notice or demand.
SECTION 18. No Partnership. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture
between the parties
hereto. Nothing herein contained shall be deemed or construed as
creating an
agency relationship between the Purchaser and the Sellers and
neither party
shall take any action which could reasonably lead a third party to
assume that
it has the authority to bind the other party or make commitments on
such party's
behalf.
SECTION 19. Miscellaneous. This Agreement supersedes all prior
agreements and understandings relating to the subject matter
hereof. Neither
this Agreement nor any term hereof may be changed, waived,
discharged or
terminated orally, but only by an instrument in writing signed by
the party
against whom enforcement of the change, waiver
