Exhibit 10.3
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CIBC INC.,
PURCHASER,
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
SELLER
LOAN SALE AGREEMENT
Dated as of March 16, 2006
$93,000,000.00
Houston Galleria Note A-2B
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This Loan Sale Agreement (this "Agreement"), dated as of March 16,
2006, is between CIBC Inc., as purchaser (the "Purchaser"), and JPMorgan Chase
Bank, National Association, as seller (the "Seller").
Capitalized terms used in this Agreement not defined herein shall
have the meanings ascribed to them in the Pooling and Servicing Agreement, dated
as of March 16, 2006 (the "Pooling and Servicing Agreement"), among ▇.▇. ▇▇▇▇▇▇
▇▇▇▇▇ Commercial Mortgage Securities Corp, as depositor (the "Depositor"), GMAC
Commercial Mortgage Corporation, as master servicer ("Master Servicer"), Midland
Loan Services, Inc., as special servicer ("Special Servicer"), LaSalle Bank
National Association, as trustee (in such capacity, the "Trustee") and as paying
agent (in such capacity, the "Paying Agent"), pursuant to which the Depositor
will sell the Mortgage Loan (as defined herein) to a trust fund and certificates
representing ownership interests in the Mortgage Loan will be issued by the
trust fund. For purposes of this Agreement, the term "Mortgage Loan" refers to
the Houston Galleria A-2b Note of the Houston Galleria Whole Loan secured by the
Houston Galleria Mortgaged Property.
The Purchaser and the Seller wish to prescribe the manner of sale of
the Mortgage Loan from the Seller to the Purchaser and in consideration of the
premises and the mutual agreements hereinafter set forth, agree as follows:
SECTION 1. Sale and Conveyance of Mortgage; Possession of Mortgage
File. Effective as of the Closing Date and upon receipt of the purchase price
set forth in the immediately succeeding paragraph, the Seller does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse, all of
its right, title, and interest (subject to certain agreements regarding
servicing as provided in the Pooling and Servicing Agreement, subservicing
agreements permitted thereunder and that certain Servicing Rights Purchase and
Sale Agreement, dated as of the date hereof between the Master Servicer and the
Seller) in and to the Mortgage Loan, including all interest and principal
received on or with respect to the Mortgage Loan after the Cut-off Date (other
than payments of principal and interest first due on the Mortgage Loan on or
before the Cut-off Date). Upon the sale of the Mortgage Loan, the ownership of
the related Mortgage Note, the Mortgage and the other contents of the related
Mortgage File will be vested in the Purchaser and immediately thereafter the
Depositor and then the Trustee and the ownership of records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller (other than the records and documents described in the
proviso to Section 3(a) hereof) shall immediately vest in the Purchaser and
immediately thereafter the Depositor and then the Trustee. The Seller's records
will accurately reflect the sale of the Mortgage Loan to the Purchaser.
The Depositor will sell the Class A-1, Class A-2, Class ▇-▇▇, ▇▇▇▇▇
▇-▇, Class A-SB, Class A-1A, Class A-M, Class A-J, Class X-2, Class B, Class C
and Class D Certificates (the "Offered Certificates") to the underwriters
specified in the underwriting agreement dated March 3, 2006 (the "Underwriting
Agreement") between the Depositor and ▇.▇. ▇▇▇▇▇▇ Securities Inc. for itself and
as representative of CIBC World Markets Corp., Deutsche Bank Securities Inc. and
Nomura Securities International, Inc., the Depositor will sell the Class X-1,
Class A-3A, Class E, Class F, Class G and Class H, Class R and Class LR
Certificates (the "Privately Offered Certificates") to JPMSI, as the initial
purchaser specified in the certificate purchase agreement, dated March 3, 2006
(the "Certificate Purchase Agreement"), between the Depositor and JPMSI and the
Depositor will sell (with JPMSI as placement agent) the Class J, Class K, Class
L, Class M, Class N, Class P and Class NR Certificates (the "Privately Placed
Certificates" and together with the Privately Offered Certificates, the "Private
Certificates") to the initial purchasers thereof.
The sale and conveyance of the Mortgage Loan is being conducted on
an arms-length basis and upon commercially reasonable terms. As the purchase
price for the Mortgage Loan, the Purchaser shall pay to the Seller or at the
Seller's direction $93,000,000.00 in immediately available funds. The purchase
and sale of the Mortgage Loan 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 Loan to the Purchaser,
record title to the related Mortgage and the related Mortgage Note shall be
transferred to the Depositor and then the Trustee in accordance with the
Mortgage Loan Purchase and Sale Agreement (the "CIBC MLPA"), dated as of March
16, 2006, between CIBC Inc., as seller, and the Depositor, as purchaser. Any
funds due after the Cut-off Date in connection with the Mortgage Loan received
by the Seller shall be held in trust for the benefit of the Purchaser as the
owner of such Mortgage Loan and shall be transferred promptly to the Purchaser.
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 Loan due on or before the Cut-off Date and
principal prepayments thereon), shall belong to, and shall be promptly remitted
to, the Seller.
The transfer of the Mortgage Loan shall be reflected on the Seller's
balance sheets and other financial statements as a sale of the Mortgage Loan by
the Seller to the Purchaser. The Seller intends to treat the transfer of the
Mortgage Loan to the Purchaser as a sale for tax purposes.
The transfer of the Mortgage Loan shall be reflected on the
Purchaser's balance sheets and other financial statements as the purchase of the
Mortgage Loan by the Purchaser from the Seller. The Purchaser intends to treat
the transfer of the Mortgage Loan from the Seller as a purchase for tax
purposes.
SECTION 3. Delivery of Mortgage Loan Documents; Additional Costs and
Expenses. (a) The Purchaser hereby directs the Seller, and the Seller hereby
agrees, upon the transfer of the Mortgage Loan 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 Depositor
to the Trustee with respect to the Mortgage Loan under Sections 2.01(b) and (c)
of the Pooling and Servicing Agreement, and meeting all the requirements of such
Sections 2.01(b) and (c), and such other documents, instruments and agreements
as the Purchaser, the Depositor or the Trustee shall reasonably request and
which are in the Seller's possession or under the Seller's control. In addition,
the Seller agrees to deliver or cause to be delivered to the Master Servicer,
the Servicing File for each Mortgage Loan transferred pursuant to this
Agreement; provided that the Seller shall not be required to deliver any draft
documents, privileged or internal communications or credit underwriting or due
diligence analyses or data.
(b) With respect to the transfer described in Section 1 hereof, if
the Mortgage Loan documents do not require the related Mortgagor to pay any
costs and expenses relating to any modifications to a related letter of credit
which modifications are required to effectuate such transfer (the "Transfer
Modification Costs"), then the Seller shall pay the Transfer Modification Costs
required to transfer the letter of credit to the Depositor 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 Master Servicer has exercised all
remedies available under the applicable Mortgage Loan documents to collect such
Transfer Modification Costs from such Mortgagor, in which case the Master
Servicer shall give the Seller notice of such failure and the Seller shall pay
such Transfer Modification Costs.
SECTION 4. Treatment as a Security Agreement. The Seller,
concurrently with the execution and delivery hereof, has conveyed to the
Purchaser, all of its right, title and interest in and to the Mortgage Loan. The
parties intend that such conveyance of the Seller's right, title and interest in
and to the Mortgage Loan pursuant to this Agreement shall constitute a purchase
and sale and not a loan. If such conveyance is deemed to be a pledge and not a
sale, then the parties also intend and agree that the Seller shall be deemed to
have granted, and in such event does hereby grant, to the Purchaser, a first
priority security interest in all of its right, title and interest in, to and
under the Mortgage Loan, all payments of principal or interest on such Mortgage
Loan due after the Cut-off Date, all other payments made in respect of such
Mortgage Loan after the Cut-off Date (except to the extent such payments were
due on or before the Cut-off Date) and all proceeds thereof and that this
Agreement shall constitute a security agreement under applicable law. If such
conveyance is deemed to be a pledge and not a sale, the Seller consents to the
Purchaser hypothecating and transferring such security interest in favor of the
Trustee and transferring the obligation secured thereby to the Trustee.
SECTION 5. Covenants of the Seller. The Seller covenants with the
Purchaser as follows:
(a) it shall record or cause a third party to record in the
appropriate public recording office for real property the intermediate
assignments of the Mortgage Loan and the Assignments of Mortgage from the Seller
to the Trustee in connection with the Pooling and Servicing Agreement. All
recording fees relating to the initial recordation of such intermediate
assignments and Assignments of Mortgage shall be paid by the Seller;
(b) it shall take any action reasonably required by the Depositor,
the Purchaser, the Trustee or the Master Servicer, in order to assist and
facilitate in the transfer of the servicing of the Mortgage Loan to the Master
Servicer, including effectuating the transfer of any letters of credit with
respect to the Mortgage Loan to the Master Servicer on behalf of the Trustee for
the benefit of Certificateholders. Prior to the date that a letter of credit
with respect to the Mortgage Loan is transferred to the Master Servicer, the
Seller will cooperate with the reasonable requests of the 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; and
(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 Annex ▇-▇,
▇-▇ and A-3 thereto and the Diskette included therewith, with respect to any
information relating to the Mortgage Loan or the Seller, in order to make the
statements therein, in the light of the circumstances when the Prospectus
Supplement is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus Supplement, including Annex ▇-▇, ▇-▇ and A-3
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, to comply with applicable law, the
Seller shall do all things necessary to assist the Depositor to prepare and
furnish, at the expense of the Seller (to the extent that such amendment or
supplement relates to the Seller, the Mortgage Loan and/or any information
relating to the same, as provided by the Seller), to the Underwriters such
amendments or supplements to the Prospectus Supplement as may be necessary, so
that the statements in the Prospectus Supplement as so amended or supplemented,
including Annex ▇-▇, ▇-▇ and A-3 thereto and the Diskette included therewith,
with respect to any information relating to the Mortgage Loan or the Seller,
will not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus Supplement, including Annex
▇-▇, ▇-▇ and A-3 thereto and the Diskette included therewith, with respect to
any information relating to the Mortgage Loan or the Seller, will comply with
applicable law. All terms used in this clause (c) and not otherwise defined
herein shall have the meaning set forth in the Indemnification Agreement, dated
as of March 3, 2006 among the Depositor, the Seller and the Underwriters (the
"Indemnification Agreement").
SECTION 6. Representations and Warranties.
(a) The Seller represents and warrants to the Purchaser as of the
Closing Date that:
(i) it is a national banking association duly organized, validly
existing, and in good standing under the laws of the United States of
America;
(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 United
States of America. The Seller is in compliance with the laws of each state
in which any Mortgaged Property is located to the extent necessary so that
a subsequent holder of the Mortgage Loan (including, without limitation,
the Purchaser) that is in compliance with the laws of such state would not
be prohibited from enforcing the Mortgage Loan solely by reason of any
non-compliance by the Seller;
(v) the execution, delivery and performance of this Agreement by the
Seller has been duly authorized by all requisite action by the Seller's
board of directors and will not violate or breach any provision of its
organizational documents;
(vi) this Agreement has been duly executed and delivered by the
Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general
equitable principles regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vii) there are no legal or governmental proceedings pending to
which the Seller is a party or of which any property of the Seller is the
subject which, if determined adversely to the Seller, would reasonably be
expected to adversely affect (A) the transfer of the Mortgage Loan and the
Mortgage Loan documents, (B) the execution and delivery by the Seller or
enforceability against the Seller of the Mortgage Loan or this Agreement,
or (C) the performance of the Seller's obligations hereunder;
(viii) it has no actual knowledge that any statement, report,
officer's certificate or other document prepared and furnished or to be
furnished by the Seller in connection with the transactions contemplated
hereby (including, without limitation, any financial cash flow models and
underwriting file abstracts furnished by the Seller) contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading;
(ix) it is not, nor with the giving of notice or lapse of time or
both would be, in violation of or in default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which it is a party or by which it or any of its properties is bound,
except for violations and defaults which individually and in the aggregate
would not have a material adverse effect on the transactions contemplated
herein; the sale of the Mortgage Loan and the performance by the Seller of
all of its obligations under this Agreement and the consummation by the
Seller of the transactions herein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Seller is a party
or by which the Seller is bound or to which any of the property or assets
of the Seller is subject, nor will any such action result in any violation
of the provisions of any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Seller, or any of its properties, except for conflicts, breaches,
defaults and violations which individually and in the aggregate would not
have a material adverse effect on the transactions contemplated herein;
and no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Seller of the transactions
contemplated by this Agreement, other than any consent, approval,
authorization, order, license, registration or qualification that has been
obtained or made;
(x) it has either (A) not dealt with any Person (other than the
Depositor or the Underwriters) that may be entitled to any commission or
compensation in connection with the sale or purchase of the Mortgage Loan
or entering into this Agreement or (B) paid in full any such commission or
compensation; and
(xi) it is solvent and the sale of the Mortgage Loan hereunder will
not cause it to become insolvent; and the sale of the Mortgage Loan is not
undertaken with the intent to hinder, delay or defraud any of the Seller's
creditors.
(b) The Purchaser represents and warrants to the Seller as of the
Closing Date that:
(i) it is a corporation duly organized, validly existing, and in
good standing in the State of Delaware;
(ii) it is duly qualified as a foreign corporation in good standing
in all jurisdictions in which ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Purchaser, and the Purchaser is conducting its business so as to comply in
all material respects with the applicable statutes, ordinances, rules and
regulations of each jurisdiction in which it is conducting business;
(iii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iv) it has the power to execute, deliver and perform this
Agreement, and neither the execution and delivery by the Purchaser of this
Agreement, nor the consummation by the Purchaser of the transactions
herein contemplated, nor the compliance by the Purchaser with the
provisions hereof, will (A) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the certificate of
incorporation or by-laws of the Purchaser or any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Purchaser or any of its properties, or any indenture, mortgage,
contract or other instrument 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;
(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 governmental authorities or threatened by others;
(vii) it is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Purchaser or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(viii) it has not dealt with any broker, investment banker, agent or
other person, other than the Seller, the Underwriters and their respective
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loan 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) Subject to the exceptions set forth in Exhibit A hereto, the
Seller makes the representations and warranties that are set forth in Section
6(c), solely as they relate to the Mortgage Loan, of the Mortgage Loan Purchase
Agreement (the "JPMorgan MLPA"), dated March 16, 2006, between JPMorgan Chase
Bank, National Association, and the Depositor, as applicable to the Mortgage
Loan. Neither the delivery by the Seller of the Mortgage Files, Servicing Files,
or any other documents required to be delivered under Section 2.01 of the
Pooling and Servicing Agreement with respect to the Mortgage Loan, nor the
review thereof or any other due diligence by the Trustee, Master Servicer,
Special Servicer, a Certificate Owner or any other Person shall relieve the
Seller of any liability or obligation with respect to any representation or
warranty or otherwise under this Agreement or constitute notice to any Person of
a Breach or Defect.
(d) Pursuant to this Agreement or Section 2.03(b) of the Pooling and
Servicing Agreement, the Seller and the Purchaser shall be given notice of any
Breach or Defect that materially and adversely affects the value of the Mortgage
Loan, the related Mortgaged Property or the interests of the Trustee or any
Certificateholder therein.
(e) Upon notice pursuant to Section 6(d) above, the Seller shall,
not later than 90 days from the earlier of the Seller's receipt of the notice
or, in the case of a Defect or Breach relating to the Mortgage Loan not being a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, but
without regard to the rule of Treasury Regulation Section 1.860G-2(f)(2) that
causes a defective mortgage loan to be treated as a qualified mortgage, the
Seller's discovery of such Breach or Defect (the "Initial Resolution Period"),
(i) cure such Defect or Breach, as the case may be, in all material respects,
(ii) repurchase the Mortgage Loan at the applicable Repurchase Price (as defined
below) or (iii) substitute a Qualified Substitute Mortgage Loan (as defined
below) for the Mortgage Loan (provided that in no event shall any such
substitution occur later than the second anniversary of the Closing Date) and
pay the Master Servicer for deposit into the Certificate Account, any
Substitution Shortfall Amount (as defined below) in connection therewith;
provided, however, that, except with respect to a Defect resulting solely from
the failure by the Seller to deliver to the Trustee or Custodian the actual
policy of lender's title insurance required pursuant to clause (ix) of the
definition of Mortgage File by a date not later than 12 months following the
Closing Date, if such Breach or Defect is capable of being cured but not within
the Initial Resolution Period, and the Seller has commenced and is diligently
proceeding with the cure of such Breach or Defect within such the Initial
Resolution Period, the Seller shall have an additional 90 days commencing
immediately upon the expiration of the Initial Resolution Period (the "Extended
Resolution Period") to complete such cure (or, failing such cure, to repurchase
the Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as
described above); and provided, further, that with respect to the Extended
Resolution Period the Seller shall have delivered an officer's certificate to
the Trustee setting forth the reason such Breach or Defect is not capable of
being cured within the Initial Resolution Period and what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Breach or Defect will be cured within the Extended
Resolution Period. Notwithstanding the foregoing, any Defect or Breach which
causes the 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 the
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 Mortgage Loan is to be repurchased, the Seller
shall remit the Repurchase Price (defined below) in immediately available funds
to the Trustee.
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 the Mortgage Loan and to
be deemed to materially and adversely affect the interests of the
Certificateholders in and the value of the 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 copy of
a "marked up" written commitment or the pro forma or specimen title insurance
policy) 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; or (e) 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 a Defect previously described in clauses (a)
through (e) above) shall be considered to materially and adversely affect the
value of the Mortgage Loan, the related Mortgaged Property or the interests of
the Trustee or Certificateholders 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 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 the
Mortgage File if such actual policy is delivered to the Trustee or a Custodian
on its behalf not later than 12 months following the Closing Date.
If (i) the Mortgage Loan is required to be repurchased or
substituted for in the manner described in the first paragraph of this Section
6(e), (ii) the Mortgage Loan is a Crossed Loan, and (iii) the applicable Defect
or Breach does not constitute a Defect or Breach, as the case may be, as to any
other Crossed Loan in such Crossed Group (without regard to this paragraph),
then the applicable Defect or Breach, as the case may be, will be deemed to
constitute a Defect or Breach, as the case may be, as to each other Crossed Loan
in the Crossed Group for purposes of this paragraph, and the Seller will be
required to repurchase or substitute for all of the remaining Crossed Loans in
the related Crossed Group as provided in the first paragraph of this Section
6(e) unless such other Crossed Loans in such Crossed Group satisfy the Crossed
Loan Repurchase Criteria and satisfy all other criteria for substitution and
repurchase of Mortgage Loan set forth herein. In the event that the remaining
Crossed Loans satisfy the aforementioned criteria, the Seller may elect either
to repurchase or substitute for only the affected Crossed Loan as to which the
related Breach or Defect exists or to repurchase or substitute for all of the
Crossed Loans in the related Crossed Group. The Seller shall be responsible for
the cost of any Appraisal required to be obtained by the Master Servicer to
determine if the Crossed Loan Repurchase Criteria have been satisfied, so long
as the scope and cost of such Appraisal has been approved by the Seller (such
approval not to be unreasonably withheld).
The "Repurchase Price" with respect to the 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 the 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 the 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 the Mortgage
Loan contemplated hereby, (i) the Depositor shall execute and deliver, or cause
the execution and delivery of, such endorsements and assignments, without
recourse to the Trust, as shall be necessary to vest in the Seller the legal and
beneficial ownership of the repurchased Mortgage Loan or replaced Mortgage Loan,
as applicable, (ii) the Depositor shall deliver, or cause the delivery, to the
Seller of all portions of the Mortgage File and other documents pertaining to
the Mortgage Loan possessed by the Trustee, or on the Trustee's behalf, and
(iii) the Depositor shall release, or cause to be released, to the Seller any
escrow payments and reserve funds held by the Trustee, or on the Trustee's
behalf, in respect of such repurchased or replaced Mortgage Loan.
(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 Note or Assignment of
Mortgage or the examination of the Mortgage Files.
(g) Each party hereby agrees to promptly notify the other party of
any breach of a representation or warranty contained in this Section 6. The
Seller's obligation to cure any Breach or Defect or repurchase or substitute the
Mortgage Loan pursuant to Section 6(e) shall constitute the sole remedy
available to the Purchaser in connection with a Breach or Defect (subject to the
last sentence of the first paragraph of Section 6(e)). It is acknowledged and
agreed that the representations and warranties are being made for risk
allocation purposes; provided, however, that no limitation of remedy is implied
with respect to the Seller's breach of its obligation to cure, repurchase or
substitute in accordance with the terms and conditions of this Agreement.
SECTION 7. Conditions to Closing. The obligations of the Purchaser
to purchase the Mortgage Loan shall be subject to the satisfaction, on or prior
to the Closing Date, of the following conditions:
(a) Each of the obligations of the Seller required to be performed
by it at or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with and all of the representations
and warranties of the Seller under this Agreement shall be true and correct in
all material respects as of the Closing Date, and no event shall have occurred
as of the Closing Date which, with notice or passage of time, would constitute a
default under this Agreement.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of the Seller's articles of association and by-laws,
certified as of a recent date by the Assistant Secretary of the Seller;
(ii) a copy of a certificate of good standing of the Seller issued
by the Comptroller of the Currency dated not earlier than sixty days prior
to the Closing Date; and
(iii) an opinion of counsel of the Seller, in form and substance
satisfactory to the Purchaser and its counsel, substantially to the effect
that:
(A) the Seller is a national banking association duly
organized, validly existing and in good standing under the laws of
the United States;
(B) the Seller has the power to conduct its business as now
conducted and to incur and perform its obligations under this
Agreement and the Indemnification Agreement;
(C) all necessary action has been taken by the Seller to
authorize the execution, delivery and performance of this Agreement
and the Indemnification Agreement by the Seller and this Agreement
is a legal, valid and binding agreement of the Seller enforceable
against the Seller, whether such enforcement is sought in a
procedure at law or in equity, except to the extent such enforcement
may be limited by bankruptcy or other similar creditors' laws or
principles of equity and public policy considerations underlying the
securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of the
Agreement which purport to provide indemnification with respect to
securities law violations;
(D) the Seller's execution and delivery of, and the Seller's
performance of its obligations under, each of this Agreement and the
Indemnification Agreement do not and will not conflict with the
Seller's charter incorporation or by-laws or conflict with or result
in the breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the
Seller is a party or by which the Seller is bound, or to which any
of the property or assets of the Seller is subject or violate any
provisions of law or conflict with or result in the breach of any
order of any court or any governmental body binding on the Seller;
(E) there is no litigation, arbitration or mediation pending
before any court, arbitrator, mediator or administrative body, or to
such counsel's actual knowledge, threatened, against the Seller
which (i) questions, directly or indirectly, the validity or
enforceability of this Agreement or (ii) would, if decided adversely
to the Seller, either individually or in the aggregate, reasonably
be expected to have a material adverse effect on the ability of the
Seller to perform its obligations under this Agreement; 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, except
such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained.
(c) The Offered Certificates shall have been concurrently issued and
sold pursuant to the terms of the Underwriting Agreement. The Private
Certificates shall have been concurrently issued and sold pursuant to the terms
of the Certificate Purchase Agreement.
(d) The Seller shall furnish the Purchaser with such other
certificates of its officers or others and such other documents and opinions to
evidence fulfillment of the conditions set forth in this Agreement as the
Purchaser and its counsel may reasonably request.
SECTION 8. Closing. The closing for the purchase and sale of the
Mortgage Loan shall take place at the office of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, New York, New York, at 10:00 a.m., on the Closing Date or such other place
and time as the parties shall agree. The parties hereto agree that time is of
the essence with respect to this Agreement.
SECTION 9. Expenses. The Seller and the Purchaser will pay their own
costs and expenses in connection with the transactions contemplated herein,
including, but not limited to the costs and expenses under this Agreement in
connection with the purchase and sale of the Mortgage Loan.
SECTION 10. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement. Furthermore, the
parties shall in good faith endeavor to replace any provision held to be invalid
or unenforceable with a valid and enforceable provision which most closely
resembles, and which has the same economic effect as, the provision held to be
invalid or unenforceable.
SECTION 11. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to conflicts of
law principles and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
SECTION 12. No Third-Party Beneficiaries. The parties do not intend
the benefits of this Agreement to inure to any third party except as expressly
set forth in Section 13.
SECTION 13. Assignment. The Seller hereby acknowledges that the
Purchaser has, concurrently with the execution hereof, executed and delivered
the CIBC MLPA and that, in connection therewith, it has assigned its rights
hereunder to the Depositor and concurrently therewith, the Depositor will assign
such rights to the Trustee for the benefit of the Certificateholders to the
extent set forth in the Pooling and Servicing Agreement. The Seller hereby
acknowledges its obligations, including that of expense reimbursement, pursuant
to Sections 2.01, 2.02 and 2.03 of the Pooling and Servicing Agreement. This
Agreement shall bind and inure to the benefit of, and be enforceable by, the
Seller, the Purchaser and their permitted successors and permitted assigns. The
warranties and representations and the agreements made by the Seller herein
shall survive delivery of the Mortgage Loan 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, CIBC Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Real Estate Finance Group, telecopy
number: (▇▇▇) ▇▇▇-▇▇▇▇, (ii) in the case of the Seller, JPMorgan Chase Bank,
National Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Vice President, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇ and
(iii) in the case of any of the preceding parties, such other address as may
hereafter be furnished to the other party in writing by such parties.
SECTION 15. Amendment. This Agreement may be amended only by a
written instrument which specifically refers to this Agreement and is executed
by the Purchaser and the Seller; provided, however, that unless such amendment
is to cure an ambiguity, mistake or inconsistency in this Agreement, no
amendment shall be permitted unless each Rating Agency has delivered a written
confirmation that such amendment will not result in a downgrade, withdrawal or
qualification of the then current ratings of the Certificates and the cost of
obtaining any Rating Agency confirmation shall be borne by the party requesting
such amendment. This Agreement shall not be deemed to be amended orally or by
virtue of any continuing custom or practice. No amendment to the Pooling and
Servicing Agreement which relates to defined terms contained therein or any
obligations of the Seller whatsoever shall be effective against the Seller
unless the Seller shall have agreed to such amendment in writing.
SECTION 16. Counterparts. This Agreement may be executed in any
number of counterparts, and by the parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument.
SECTION 17. Exercise of Rights. No failure or delay on the part of
any party to exercise any right, power or privilege under this Agreement and no
course of dealing between the Seller and the Purchaser shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. Except as set forth in
Section 6 herein, the rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any party would
otherwise have pursuant to law or equity. No notice to or demand on any party in
any case shall entitle such party to any other or further notice or demand in
similar or other circumstances, or constitute a waiver of the right of either
party to any other or further action in any circumstances without notice or
demand.
SECTION 18. No Partnership. Nothing herein contained shall be deemed
or construed to create a partnership or joint venture between the parties
hereto. Nothing herein contained shall be deemed or construed as creating an
agency relationship between the Purchaser and the Seller and neither party shall
take any action which could reasonably lead a third party to assume that it has
the authority to bind the other party or make commitments on such party's
behalf.
SECTION 19. Miscellaneous. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
* * * * * *
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed hereto by their respective officers thereunto duly authorized
as of the day and year first above written.
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇
Title: ▇▇▇▇▇▇▇ ▇ ▇▇▇
CIBC INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Signatory
EXHIBIT A
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
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Rep. No. Description of Exception
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(4) The representation is true and accurate, except as follows:
The Mortgaged Property secures the Mortgage Loan (consisting of
an A-2b note), an A-2a note (which is pari passu with the
Mortgage Loan and is not included in the CIBC14 trust fund), an
A-1 note (which is pari passu with the Mortgage Loan and is not
included in the CIBC14 trust fund), a B note (which is
subordinate to the Mortgage Loan, the A-2a note and the A-1
note and is not included in the CIBC14 trust fund) and a C note
(which is subordinate to the Mortgage Loan, the A-1 note, the
A-2a note and the B note and is not included in the CIBC14
trust fund).
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(6) The representation is true and accurate, except as follows:
The Mortgaged Property secures the Mortgage Loan (consisting of
an A-2b note), an A-2a note (which is pari passu with the
Mortgage Loan and is not included in the CIBC14 trust fund), an
A-1 note (which is pari passu with the Mortgage Loan and is not
included in the CIBC14 trust fund), a B note (which is
subordinate to the Mortgage Loan, the A-2a note and the A-1
note and is not included in the CIBC trust fund) and a C note
(which is subordinate to the Mortgage Loan, the A-1 note, the
A-2a note and the B note and is not included in the CIBC14
trust fund)
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(10(a)) The representation is true and accurate, except as follows:
There is no individual or entity (other than the Mortgagor)
liable for breach of the fraud, actual waste and environmental
non-recourse carveouts. The non-recourse carveout for material
misrepresentation has been limited to "intentional
misrepresentation".
The non-recourse carveout does not cover "actual waste".
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(12) The representation is true and accurate, except as follows:
The related Mortgage Loan documents contain certain rights to
release various portions of the collateral without
consideration, including the current Macy's parcel and certain
adjacent in-line space, future vacant anchors that are
transferred to another anchor user, all or a portion of one
parking garage and certain other minor transfers to owners of
the commercial condominium units.
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(19(a)) The representation is true and accurate, except as follows:
The mortgagee waived escrows for immediate repairs in the
amount of $23,500 recommended by the property condition report.
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(22) The representation is true and accurate, except as follows:
Depending on the number of insurance companies issuing the
Insurance Policies and the number of rating agencies rating the
certificates, the related Mortgage Loan documents permit a
sliding scale of ratings requirements for the insurance
companies issuing the policies from "A" to "BBB".
The related Mortgage Loan documents permit a $100,000
deductible for casualty insurance.
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(32) The representation is true and accurate, except as follows:
Pursuant to the Mortgage Loan documents, the members of
Mortgagor are permitted to pledge all or any portion of their
membership interest(s) in Mortgagor to secure a mezzanine loan,
subject to satisfaction of certain conditions set forth
therein.
The related Mortgage Loan documents contain certain rights to
release various portions of the collateral without
consideration, including the current Macy's parcel and certain
adjacent in-line space, future vacant anchors that are
transferred to another anchor user, all or a portion of one
parking garage and certain other minor transfers to owners of
the commercial condominium units.
Certain other transfers to affiliates and other entities are
permitted pursuant to the Mortgage Loan documents.
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(34) The representation is true and accurate, except as follows:
In addition to "governmental securities" within the meaning of
Treasury Regulations Section 1.860G-2(a)(8)(i), the Mortgagor
instead may deliver other "governmental securities" described
in the Mortgage Loan documents to the extent approved by the
Rating Agencies.
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(35) The representation is true and accurate, except as follows:
The related Mortgage Loan documents contain certain rights to
release various portions of the collateral without
consideration, including the current Macy's parcel and certain
adjacent in-line space, future vacant anchors that are
transferred to another anchor user, all or a portion of one
parking garage and certain other minor transfers to owners of
the commercial condominium units.
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(41) The representation is true and accurate, except as follows:
Terrorism insurance premiums are capped at $450,000 per year.
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