EXHIBIT 10.6
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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 March 1, 2007
Fixed Rate Mortgage Loans
Series 2007-LDP10
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This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as
of March 1, 2007, is among 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
termi
