EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of December 18, 2003, between Commerzbank AG, New York Branch, a
company formed under the laws of the Federal Republic of Germany and licensed to
engage in the banking business under Article V of the Banking Law of the State
of New York, as seller (the "Mortgage Loan Seller"), and GMAC Commercial
Mortgage Securities, Inc., as purchaser (the "Purchaser").
The Mortgage Loan Seller desires to sell, assign, transfer and
otherwise convey to the Purchaser, and the Purchaser desires to purchase,
subject to the terms and conditions set forth below, Mortgage Loan Seller's A2
Note in the original principal amount of $37,500,000 (the "Mortgage Loan") which
represents a 19.94681% pari passu interest in the commercial mortgage loan
identified on the schedule annexed hereto as Exhibit A (the "Mortgage Loan
Schedule"). The Mortgage Loan is one of six pari passu notes secured by the
Mortgaged Property. Certain other multifamily and commercial mortgage loans (the
"Other Mortgage Loans") will be purchased by the Purchaser from (i) GMAC
Commercial Mortgage Corporation ("GMACCM"), pursuant to, and for the
consideration described in, the Mortgage Loan Purchase Agreement, dated as of
18, 2003 (the "GMACCM Mortgage Loan Purchase Agreement"), between the Purchaser
and GMACCM, (ii) German American Capital Corporation ("GACC"), pursuant to, and
for the consideration described in, the Mortgage Loan Purchase Agreement, dated
as of 18, 2003 (the "GACC Mortgage Loan Purchase Agreement"), between the
Purchaser and GACC, (iii) Xxxxxx Xxxxxxx Mortgage Capital, Inc., pursuant to,
and for the consideration described in, the Mortgage Loan Purchase Agreement,
dated as of 18, 2003 (the "MSMC Mortgage Loan Purchase Agreement"), between the
Purchaser and MSMC and (iv) Xxxxxxx Sachs Mortgage Company ("GSMC"), pursuant
to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of 18, 2003, (the "GSMC Mortgage Loan Purchase Agreement"),
between the Purchaser and GSMC. The Mortgage Seller, GMACCM, GACC, MSMC and GSMC
are collectively referred to as the "Mortgage Loan Sellers."
It is expected that the Mortgage Loan will be transferred,
together with the Other Mortgage Loans to a trust fund (the "Trust Fund") to be
formed by the Purchaser, beneficial ownership of which will be evidenced by a
series of mortgage pass-through certificates (the "Certificates"). Certain
classes of the Certificates will be rated by Xxxxx'x Investors Service, Inc.,
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. and Fitch, Inc. (together, the "Rating Agencies"). Certain classes of the
Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust Fund will
be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of December 1, 2003 (the "Pooling and
Servicing Agreement"), among the Purchaser, as depositor, GMAC Commercial
Mortgage Corporation, as master servicer (in such capacity, the "Master
Servicer") and serviced companion loan paying agent, Lennar Partners, Inc., as
special servicer of the Mortgage Loans (other than the AFR/Bank of America
Portfolio Loan) and the Other Mortgage Loans (in such capacity, as applicable,
the "Special Servicer"), Midland Loan Services, Inc., as special servicer of the
AFR/Bank of America Portfolio Whole Loan (the "AFR/Bank of America Special
Servicer"), LaSalle Bank
National Association, as trustee (the "Trustee") and ABN AMRO Bank N.V., as
fiscal agent. Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement as in effect on the
Closing Date.
The Purchaser intends to sell the Class A-1, Class A-2, Class A-3,
Class A-4, Class B, Class C, Class D and Class E Certificates to Deutsche Bank
Securities Inc., Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx & Co. Incorporated
(together, the "Underwriters"), pursuant to an underwriting agreement dated the
date hereof (the "Underwriting Agreement"). The Purchaser intends to sell the
Class S-AFR1, Class S-AFR2, Class S-AFR3 and Class S-AFR4 (collectively, the
"Class S-AFR Certificates") and the Class X-1, Class X-2, Class A-1A, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class
P Certificates to Deutsche Bank Securities Inc., Xxxxxxx, Sachs & Co. and Xxxxxx
Xxxxxxx & Co. Incorporated (in such capacity, each an "Initial Purchaser")
pursuant to a certificate purchase agreement, dated the date hereof (the
"Certificate Purchase Agreement"). The Purchaser intends to sell the Class R-I,
Class R-II and Class R-III Certificates to a Qualified Institutional Buyer (in
such capacity, an "Initial Purchaser"). The Class X-1, Class X-2, Class A-1A,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class S-AFR1, S-AFR2, S-AFR3, Class S-AFR4, Class R-I, Class R-II and
Class R-III Certificates are collectively referred to as the "Non-Registered
Certificates."
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Mortgage Loan Seller agrees to sell, assign, transfer and otherwise
convey to the Purchaser, and the Purchaser agrees to purchase, the Mortgage
Loan. The purchase and sale of the Mortgage Loan shall take place on December
18, 2003 or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The "Cut-off Date" with respect to each Mortgage
Loan is the Due Date for such Mortgage Loan in December 2003. As of the close of
business on the Cut-off Date (which Cut-off Date may occur after the Closing
Date), the Mortgage Loan will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$37,368,703 subject to a variance of plus or minus 5%. The purchase price for
the Mortgage Loan shall be determined by the parties pursuant to an agreed upon
term sheet.
SECTION 2. Conveyance of the Mortgage Loan.
(a) Effective as of the Closing Date, subject only to receipt by the Mortgage
Loan Seller of the purchase price referred to in Section 1 hereof (exclusive of
any applicable holdback for transaction expenses), the Mortgage Loan Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse, all the right, title and interest of the Mortgage Loan Seller
in and to the Mortgage Loan identified on the Mortgage Loan Schedule as of such
date, including all interest and principal received or receivable by the
Mortgage Loan Seller on or with respect to such Mortgage Loan after the Cut-off
Date, together with all of the Mortgage Loan Seller's right, title and interest
in and to the proceeds of any related title, hazard,
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or other insurance policies and any escrow, reserve or other comparable accounts
related to the Mortgage Loan. The Purchaser shall be entitled to (and, to the
extent received by or on behalf of the Mortgage Loan Seller, the Mortgage Loan
Seller shall deliver or cause to be delivered to or at the direction of the
Purchaser) all scheduled payments of principal and interest due on the Mortgage
Loan after the Cut-off Date, and all other recoveries of principal and interest
collected thereon after such Cut-off Date. All scheduled payments of principal
and interest due thereon on or before the Cut-off Date for the Mortgage Loan and
collected after the Cut-off Date shall belong to the Mortgage Loan Seller.
(b) In connection with the Mortgage Loan Seller's assignment pursuant
to subsection (a) above, the Mortgage Loan Seller acknowledges that the
Depositor has directed the Mortgage Loan Seller, and the Mortgage Loan Seller
hereby agrees, to deliver the Mortgage File (as such term is defined in the
Pooling and Servicing Agreement) to the Trustee, and otherwise comply with the
requirements of Sections 2.01(b), 2.01(c) and 2.01(d) of the Pooling and
Servicing Agreement; provided that whenever the term Mortgage File is used to
refer to documents actually received by the Purchaser or the Trustee, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received; provided further that the
delivery of the Mortgage Files and/or Servicing Files related to the Mortgage
Loan by GSMC shall satisfy the Mortgage Loan Seller's obligation to deliver such
documents.
(c) The Mortgage Loan Seller's records will reflect the transfer of the
Mortgage Loan to the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Mortgage Loan Seller shall reasonably cooperate with any
examination of the Mortgage Files and Servicing Files that may be undertaken by
or on behalf of the Purchaser. The fact that the Purchaser has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
and/or Servicing Files shall not affect the Purchaser's right to pursue any
remedy available in equity or at law for a breach of the Mortgage Loan Seller's
representations, warranties and covenants set forth in or contemplated by
Section 4.
SECTION 4. Representations, Warranties, and Covenants of the Mortgage
Loan Seller.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date (or
as of such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser, and its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit B
with respect to the Mortgage Loan, with such changes or modifications as may be
permitted or required by the Rating Agencies.
(b) In addition, the Mortgage Loan Seller, as of the date hereof,
hereby represents and warrants to, and covenants with, the Purchaser that:
(i) The Mortgage Loan Seller is a company formed under the laws of
the Federal Republic of Germany, is licensed to engage in the banking
business under Article V of the Banking Law of the State of New York
with full power and authority to own its
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assets and conduct its business and is duly qualified as a foreign
organization in good standing in all jurisdictions in which the
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 it ability to
perform its obligations hereunder.
(ii) The execution and delivery of this Agreement by the Mortgage
Loan Seller, and the performance and compliance with the terms of this
Agreement by the Mortgage Loan Seller, will not violate the Mortgage
Loan Seller's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, in each case which materially and adversely affect
the ability of the Mortgage Loan Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Mortgage Loan Seller has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the
Mortgage Loan Seller in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally,
(B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law, and (C)
public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of this Agreement that purport to provide
indemnification for securities laws liabilities.
(v) The Mortgage Loan Seller is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter, or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Mortgage
Loan Seller's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Mortgage Loan Seller
to perform its obligations under this Agreement or the financial
condition of the Mortgage Loan Seller.
(vi) No litigation is pending with regard to which Mortgage Loan
Seller has received service of process or, to the best of the Mortgage
Loan Seller's knowledge, threatened against the Mortgage Loan Seller
the outcome of which, in the Mortgage Loan Seller's good faith and
reasonable judgment, could reasonably be expected to prohibit the
Mortgage Loan Seller from entering into this Agreement or materially
and adversely affect the ability of the Mortgage Loan Seller to perform
its obligations under this Agreement.
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(vii) The Mortgage Loan Seller has not dealt with any broker,
investment banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers 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
other transactions contemplated hereby.
(viii) Neither the Mortgage Loan Seller nor anyone acting on its
behalf (except for GSMC and the Underwriters) has (A) offered, pledged,
sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person
in any manner, (B) solicited any offer to buy or to accept a pledge,
disposition or other transfer of any Certificate, any interest in any
Certificate or any other similar security from any person in any
manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate, or any other similar
security with any person in any manner, (D) made any general
solicitation by means of general advertising or in any other manner
with respect to any Certificate, any interest in any Certificate or any
similar security, or (E) taken any other action, that (in the case of
any of the acts described in clauses (A) through (E) above) would
constitute or result in a violation of the Securities Act or any state
securities law relating to or in connection with the issuance of the
Certificates or require registration or qualification pursuant to the
Securities Act or any state securities law of any Certificate not
otherwise intended to be a Registered Certificate. In addition, the
Mortgage Loan Seller will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any of the Certificates or interests therein.
For purposes of this paragraph 4(b)(viii), the term "similar security"
shall be deemed to include, without limitation, any security evidencing
or, upon issuance, that would have evidenced an interest in the
Mortgage Loan or the Other Mortgage Loans or a substantial number
thereof.
(ix) Insofar as it relates to the Mortgage Loan, the information
set forth on pages A-14 through A-17 inclusive of Annex A to the
Prospectus Supplement (as defined in Section 9) (the "Loan Detail")
and, to the extent consistent therewith, the information set forth on
the diskette attached to the Prospectus Supplement and the accompanying
prospectus (the "Diskette"), is true and correct in all material
respects. Insofar as it relates to the Mortgage Loan Seller, the
Mortgage Loan and the Mortgaged Property related thereto and does not
represent a restatement or aggregation of the information on the Loan
Detail, the information set forth in the Prospectus Supplement and the
Memorandum (as defined in Section 9) under the headings "Summary of
Series 2003-C3 Transaction--The Mortgage Pool," "--Geographic
Concentrations of the Mortgaged Properties," "--Property Types,"
"--Prepayment or Call Protection Provided by the Mortgage Loans,"
"--Payment Terms of the Mortgage Loans," "Risk Factors" and
"Description of the Mortgage Pool" set forth on Annex A to the
Prospectus Supplement and (to the extent it contains information
consistent with that on such Annex A) set forth on the Diskette, does
not contain any untrue statement of a material fact or (in the case of
the Memorandum, when read together with the other information specified
therein as being available for review by investors) omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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(x) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any
bulk sale laws), for the execution, delivery and performance of or
compliance by the Mortgage Loan Seller with this Agreement, or the
consummation by the Mortgage Loan Seller of any transaction
contemplated hereby, other than (1) the filing or recording of
financing statements, instruments of assignment and other similar
documents necessary in connection with Mortgage Loan Seller's sale of
the Mortgage Loan to the Purchaser, (2) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (3) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Mortgage Loan Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties made pursuant to and set forth in subsection
(b) above which materially and adversely affects the interests of the Purchaser
or a breach of any of the representations and warranties made pursuant to
subsection (a) above and set forth in Exhibit B which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the Purchaser
or its successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Mortgage Loan Seller, constitutes a valid, legal and
binding obligation of the Purchaser, enforceable against the Purchaser
in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B)
general principles of
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equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Mortgage Loan Seller, the
Underwriters, the Initial Purchasers 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.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Mortgage Loan Seller, the party
discovering such breach shall give prompt written notice to the other party
hereto.
SECTION 6. Repurchases.
The Mortgage Loan Seller hereby agrees to comply with Sections 2.02 and
2.03 of the Pooling and Servicing Agreement, including, but not limited to, any
obligation to repurchase or substitute Mortgage Loan in respect of any Material
Breach or Material Document Defect.
SECTION 7. Closing.
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The closing of the sale of the Mortgage Loan (the "Closing") shall be
held at the offices of Mayer, Brown, Xxxx & Maw LLP, 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage Loan
Seller specified herein shall be true and correct as of the Closing
Date, and the Aggregate Cut-off Date Balance shall be within the range
permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released
to the Trustee, the Purchaser or the Purchaser's designee, as the case
may be, all documents and funds required to be so delivered pursuant to
Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its sole
determination;
(v) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied
with, and the Mortgage Loan Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(vi) The Mortgage Loan Seller shall have paid or agreed to pay all
fees, costs and expenses payable by it to the Purchaser pursuant to
this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loan on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser
and the Mortgage Loan Seller;
(b) An Officer's Certificate substantially in the form of Exhibit
C-1 hereto, executed by the General Counsel of the Mortgage Loan
Seller, and dated the Closing Date, and upon which the Purchaser and
each Underwriter may rely, attaching thereto as exhibits the
organizational documents of the Mortgage Loan Seller;
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(c) A certificate as of a recent date of the Deputy Superintendent
of Banks of the State of New York Banking Department to the effect that
the Mortgage Loan Seller is validly existing as a foreign banking
organization under the laws of the State of New York;
(d) A certificate of the Mortgage Loan Seller substantially in the
form of Exhibit C-2 hereto, executed by an executive officer or
authorized signatory of the Mortgage Loan Seller and dated the Closing
Date, and upon which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan Seller, in a
form reasonably acceptable to counsel for the Purchaser, subject to
such reasonable assumptions and qualifications as may be requested by
counsel for the Mortgage Loan Seller and acceptable to counsel for the
Purchaser, dated the Closing Date and addressed to the Purchaser and
each Underwriter;
(f) Any other opinions of counsel for the Mortgage Loan Seller
reasonably requested by the Rating Agencies in connection with the
issuance of the Certificates, each of which shall include the Purchaser
and each Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Indemnification.
(a) The Mortgage Loan Seller agrees to indemnify and hold harmless the
Purchaser, its officers and directors, and each person, if any, who controls the
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus Supplement, the Memorandum or the Diskette, or insofar as they are
required to be filed as part of the Registration Statement pursuant to the
No-Action Letters, any Computational Materials or ABS Term Sheets with respect
to the Registered Certificates, or in any revision or amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission (in the case of any such Computational Materials or ABS Term Sheets,
when read in conjunction with the Prospectus and, in the case of the Memorandum,
when read together with the other information specified therein as being
available for review by investors) to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; but only if and to the
extent that (i) any such untrue statement or alleged untrue statement is with
respect to information regarding the Mortgage Loan contained in the Loan Detail
or, to the extent consistent therewith, the Diskette or contained in the Term
Sheet Diskette, to the extent consistent with the Term Sheet Master Tape; or
(ii) any such untrue statement or alleged untrue statement or omission or
alleged omission is with respect to information regarding the Mortgage
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Loan Seller, the Mortgage Loan and the Mortgaged Property related thereto
contained in the Prospectus Supplement or the Memorandum under the headings
"Summary of Series 2003-C3 Transaction--The Mortgage Pool," "--Geographic
Concentrations of the Mortgaged Property," "--Property Types," "--Prepayment or
Call Protection Provided by the Mortgage Loan," "--Payment Terms of the Mortgage
Loan," "Risk Factors" and/or "Description of the Mortgage Pool" or contained on
Annex A to the Prospectus Supplement (exclusive of the Loan Detail), and such
information does not represent a restatement or aggregation of information
contained in the Loan Detail; or (iii) such untrue statement, alleged untrue
statement, omission or alleged omission arises out of or is based upon a breach
of the representations and warranties of the Mortgage Loan Seller set forth in
or made pursuant to Section 4; provided, that the indemnification provided by
this Section 9 shall not apply to the extent that such untrue statement of a
material fact or omission of a material fact necessary to make the statements
made, in light of the circumstances in which they were made, not misleading, was
made as a result of an error in the manipulation of, or calculations based upon,
the Loan Detail. This indemnity agreement will be in addition to any liability
which the Mortgage Loan Seller may otherwise have. Notwithstanding anything to
the contrary contained herein, the parties agree that the Mortgage Loan Seller
shall only be obligated to indemnify the Persons entitled to indemnification
pursuant to this Section 9 for a maximum of 50% of the indemnified liabilities
(the "Maximum Percentage") incurred by any such Person, it being agreed and
understood that the Mortgage Loan represents 50% of the total portion of the
portion of the Water Tower Mortgage Loan being conveyed to the Trust with the
remaining 50% being conveyed to the Trust by GSMC. GSMC will execute and deliver
a separate mortgage loan purchase agreement with respect to, among other things,
its interest in the Water Tower Mortgage Loan that it is transferring to the
Trust. The failure of GSMC to honor its obligations under the separate mortgage
loan purchase agreement indemnification provisions shall in no event increase
the liability or obligations of Mortgage Loan Seller hereunder, and any
indemnified liabilities shall be payable on a pro rata basis by Seller (up to
the Maximum Percentage) and GSMC.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-107510 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated July 31,
2003, as supplemented by the prospectus supplement dated December 10, 2003 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated December 10, 2003, relating to
the Non-Registered Certificates (other than the Class S-AFR Certificates);
"Computational Materials" shall have the meaning assigned thereto in the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters"; and "ABS Term Sheets"
shall have the meaning assigned thereto in the no-action letter dated February
17, 1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the Xxxxxx
Letters, the "No-Action Letters"). The mortgage loan information and related
information contained on the diskette attached to any ABS Term Sheets or
Computational Materials is referred to herein as the "Term Sheet Diskette" and
the tape provided by the Mortgage Loan Seller that was used to create the Term
Sheet Diskette is referred to herein
10
as the "Term Sheet Master Tape." References herein to ABS Term Sheets or
Computational Materials shall include any Term Sheet Diskette provided
therewith.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Mortgage Loan Seller (the "indemnifying
party") under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission to notify the indemnifying party will not
relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 9. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election to assume the
defense of such action and approval by the indemnified party of counsel, which
approval will not be unreasonably withheld, the indemnifying party will not be
liable for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof, unless: (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Purchaser and the
indemnifying party, representing all the indemnified parties under Section 9(a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall only be
in respect of the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
11
(d) The Purchaser and the Mortgage Loan Seller agree that it would not
be just and equitable if contribution pursuant to Section 9(c) were determined
by pro rata allocation or by any other method of allocation that does not take
account of the considerations referred to in Section 9(c) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in this Section 9 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 9, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party will be ultimately
obligated to pay such expenses. If any expenses so paid by the indemnifying
party are subsequently determined to not be required to be borne by the
indemnifying party hereunder, the party that received such payment shall
promptly refund the amount so paid to the party, which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
9 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne
by the respective parties hereto.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at
000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance
Manager, facsimile no. (000) 000-0000, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter be furnished to the Mortgage Loan Seller in writing by the
Purchaser; and if to the Mortgage Loan Seller, addressed to Commerzbank AG, New
York Branch, 2 World Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx X. Xxxxx, facsimile no. (000) 000-0000, with a copy to
Dechert LLP, 0000 Xxxx Xxxxxx, 0000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, XX 00000,
Attn: Xxxxx X. Xxxxx, Esq., Facsimile (000) 000-0000 or to such other address or
facsimile number as the Mortgage Loan Seller may designate in writing to the
Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Mortgage Loan Seller set
12
forth in Section 9 of this Agreement. It is acknowledged and agreed that such
covenants and indemnities may be enforced by or on behalf of any such person or
entity against the Mortgage Loan Seller to the same extent as if it was a party
hereto.
SECTION 13. Representations Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Mortgage Loan Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loan by the Mortgage Loan Seller to the Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law, which prohibits or renders void
or unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
The Mortgage Loan Seller and the Purchaser agree to execute and deliver
such instruments and take such further actions as the other party may, from time
to time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. Successors and Assigns.
13
The rights and obligations of the Mortgage Loan Seller under this
Agreement shall not be assigned by the Mortgage Loan Seller without the prior
written consent of the Purchaser, except that any person into which the Mortgage
Loan Seller may be merged or consolidated, or any corporation or other entity
resulting from any merger, conversion or consolidation to which the Mortgage
Loan Seller is a party, or any person succeeding to all or substantially all of
the business of the Mortgage Loan Seller, shall be the successor to the Mortgage
Loan Seller hereunder. The Purchaser has the right to assign its interest under
this Agreement, in whole or in part, as may be required to effect the purposes
of the Pooling and Servicing Agreement, and the assignee shall, to the extent of
such assignment, succeed to the rights and obligations hereunder of the
Purchaser. Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser, and
their permitted successors and assigns, and the indemnified parties referred to
in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified
or in any way altered, unless such amendment, waiver, modification or alteration
is in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner, which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
14
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have
caused their names to be signed hereto by their respective duly authorized
officers as of the date first above written.
COMMERZBANK AG, NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
---------------------------------------------------------------------------------------------------------------------------
CONTROL LOAN
NUMBER GROUP LOAN NUMBER LOAN ORIGINATOR PROPERTY NAME ADDRESS
---------------------------------------------------------------------------------------------------------------------------
2 1 09-1001099 Archon/Commerzbank Water Tower Place 000 Xxxxx Xxxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------
----------------------------------------------
CITY STATE ZIP CODE COUNTY
----------------------------------------------
Xxxxxxx Xxxxxxxx 00000 Xxxx
----------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
CONTROL ORIGINAL CURRENT INTEREST ADMIN.
NUMBER RELATED GROUPS BALANCE ($) BALANCE ($) RATE % FEE % ACCRUAL TYPE AMORTIZATION TYPE NOTE DATE
---------------------------------------------------------------------------------------------------------------------------------
2 75,000,000 74,737,405 4.97000 0.0218 Actual/360 Amortizing Balloon 08/21/2003
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------
FIRST ORIGINAL REMAINING
PAYMENT INTEREST INTEREST
DATE ONLY PERIOD ONLY PERIOD
---------------------------------------
10/01/2003
---------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
CONTROL ORIGINAL TERM REMAINING TERM ORIGINAL REMAINING PAYMENT DUE GRACE DEFAULT
NUMBER SEASONING TO MATURITY TO MATURITY AMORTIZATION TERM AMORTIZATION TERM DATE PERIOD
-----------------------------------------------------------------------------------------------------------------------------------
2 3 84 81 360 357 1 0
-----------------------------------------------------------------------------------------------------------------------------------
-------------------------------------
MATURITY DATE SCHEDULED MATURITY
OR ARD OR ARD BALANCE ($)
-------------------------------------
09/01/2010 66,468,432
-------------------------------------
---------------------------------------------------------------------------------------------------------------------------
SCHEDULED
CUT-OFF MATURITY OR
CONTROL ANNUAL DEBT DATE LTV ARD DATE LTV TOTAL SQ. UNIT
NUMBER PREPAYMENT PROVISION SERVICE (%) (%) FT./UNITS/PADS/ROOMS DESCRIPTION
---------------------------------------------------------------------------------------------------------------------------
2 Lock/27_Defeasance/53_0%/4 4,814,907 55.92 49.74 821,742 Sq Ft
---------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------
CUT-OFF DATE
BALANCE PER SQ.
FT./UNIT/PAD/ROOM OWNERSHIP INTEREST LOCKBOX
----------------------------------------------------
228 Fee Simple Hard
----------------------------------------------------
A-1
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOAN
With respect to the Mortgage Loan, the Mortgage Loan Seller hereby
represents and warrants, as of the date hereinbelow specified or, if no such
date is specified, as of the Closing Date, except as set forth on Schedule B-1
hereto, that:
1) Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule is complete, true and correct in all material
respects as of the date of this Agreement and as of the Cut-off Date.
2) Whole Loan; Ownership of Mortgage Loan. The Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan.
Immediately prior to the transfer to the Purchaser of the Mortgage
Loan, the Seller had good title to, and was the sole owner of, the
Mortgage Loan. The Seller has full right, power and authority to
transfer and assign the Mortgage Loan to or at the direction of the
Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to the Purchaser or its designee all of the Seller's legal
and beneficial interest in and to the Mortgage Loan free and clear of
any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loan to the Purchaser or its
designee does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained.
3) Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-off
Date, and no Mortgage Loan was 30 days or more delinquent in the
twelve-month period immediately preceding the Cut-off Date.
4) Lien; Valid Assignment. The Mortgage related to and delivered
in connection with the Mortgage Loan constitutes a valid and, subject
to the exceptions set forth in paragraph 13 below, enforceable first
priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, except for (a) the lien for current real estate
taxes and assessments not yet due and payable, (b) covenants,
conditions and restrictions, rights of way, easements and other matters
that are of public record and/or are referred to in the related
lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d)
other matters to which like properties are commonly subject, none of
which matters referred to in clauses (b), (c) or (d), individually or
in the aggregate, materially interferes with the security intended to
be provided by such Mortgage, the marketability or current use of the
Mortgaged Property or the current ability of the Mortgaged Property to
generate operating income sufficient to service the Mortgage Loan debt
and (e) if such Mortgage Loan is cross-collateralized with any other
mortgage loan, the lien of the Mortgage for such other Mortgage Loan
(the foregoing items (a) through (e) being herein referred to as the
"Permitted Encumbrances"). The related assignment of such Mortgage
executed and
b-1
delivered in favor of the Trustee is in recordable form and constitutes
a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any
separate security agreements, chattel mortgages or equivalent
instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security
interest in favor of the holder thereof in all of the related
Mortgagor's personal property used in, and reasonably necessary to
operate, the related Mortgaged Property. In the case of a Mortgaged
Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a
prudent mortgage lender making a similar Mortgage Loan would deem
reasonably necessary to operate the related Mortgaged Property as it is
currently being operated. A Uniform Commercial Code financing statement
has been filed and/or recorded in all places necessary to perfect a
valid security interest in such personal property, to the extent a
security interest may be so created therein, and such security interest
is a first priority security interest, subject to any prior purchase
money security interest in such personal property and any personal
property leases applicable to such personal property. Notwithstanding
the foregoing, no representation is made as to the perfection of any
security interest in rents or other personal property to the extent
that possession or control of such items or actions other than the
filing of Uniform Commercial Code financing statements are required in
order to effect such perfection.
5) Assignment of Leases and Rents. The Assignment of Leases
related to and delivered in connection with the Mortgage Loan
establishes and creates a valid, subsisting and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority
lien and first priority security interest in the Mortgagor's interest
in all leases, sub-leases, licenses or other agreements pursuant to
which any person is entitled to occupy, use or possess all or any
portion of the real property subject to the related Mortgage, and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has
been executed and delivered in favor of the Trustee and is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Assignment
of Leases.
6) Mortgage Status; Waivers and Modifications. The Mortgage has
not been satisfied, cancelled, rescinded or subordinated in whole or in
part, and the Mortgaged Property has not been released from the lien of
such Mortgage, in whole or in part (except for partial reconveyances of
real property that are set forth on Schedule B-1 to this Exhibit B),
nor has any instrument been executed that would effect any such
satisfaction, cancellation, subordination, rescission or release, in
any manner that, in each case, materially adversely affects the value
of the Mortgaged Property. None of the terms of the Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or
modified in any respect, except by written instruments, all of which
are included in the related Mortgage File.
7) Condition of Property; Condemnation. The engineering report is
dated less than 18 months prior to the Cut-off Date. The Mortgaged
Property is, to the Seller's knowledge, free and clear of any damage
(or adequate reserves therefor have been
B-2
established) that would materially and adversely affect its value as
security for the Mortgage Loan. The Seller has received no notice of
the commencement of any proceeding for the condemnation of all or any
material portion of the Mortgaged Property. To the Seller's knowledge
(based on surveys and/or title insurance obtained in connection with
the origination of the Mortgage Loan), as of the date of the
origination of the Mortgage Loan, all of the material improvements on
the Mortgaged Property that were considered in determining the
appraised value of the Mortgaged Property lay wholly within the
boundaries and building restriction lines of such property, except for
encroachments that are insured against by the lender's title insurance
policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such
Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments
that are insured against by the Title Policy referred to herein.
8) Title Insurance. The Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's
title insurance policy or a marked-up title insurance commitment (on
which the required premium has been paid) which evidences such title
insurance policy (the "Title Policy") in the original principal amount
of the Mortgage Loan after all advances of principal. Each Title Policy
insures that the Mortgage is a valid first priority lien on the
Mortgaged Property, subject only to Permitted Encumbrances. Each Title
Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims
have been paid thereunder. No holder of the Mortgage has done, by act
or omission, anything that would materially impair the coverage under
the Title Policy. Immediately following the transfer and assignment of
the Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer.
To the Seller's knowledge, the insurer issuing such Title Policy is
qualified to do business in the jurisdiction in which the Mortgaged
Property is located.
9) No Holdbacks. The proceeds of the Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect
thereto. With respect to the Mortgage Loan, any and all requirements as
to completion of any on-site or off-site improvement and as to
disbursements of any funds escrowed for such purpose that were to have
been complied with on or before the Closing Date have been complied
with, or any such funds so escrowed have not been released.
10) Mortgage Provisions. The Mortgage Note or Mortgage for the
Mortgage Loan, together with applicable state law, contains customary
and enforceable provisions (subject to the exceptions set forth in
paragraph 13) such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related
Mortgaged Property of the principal benefits of the security intended
to be provided thereby.
B-3
11) Trustee under Deed of Trust. If the Mortgage is a deed of
trust, (i) a trustee, duly qualified under applicable law to serve as
such, is properly designated and serving under such Mortgage, and (ii)
no fees or expenses are payable to such trustee by the Seller, the
Purchaser or any transferee thereof except in connection with a
trustee's sale after default by the related Mortgagor or in connection
with any full or partial release of the Mortgaged Property or related
security for the Mortgage Loan.
12) Environmental Conditions.
i) The environmental site assessment is dated less than 18
months prior to the Cut-off Date. An environmental site
assessment, or an update of a previous such report, was performed
with respect to each Mortgaged Property in connection with the
origination or the sale of the Mortgage Loan, a report of each
such assessment (or the most recent assessment with respect to
each Mortgaged Property) (an "Environmental Report") has been
delivered to the Purchaser, and the Seller has no knowledge of any
material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such
report. The loan documents require the Mortgagor to comply with
all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a
material and adverse environmental condition or circumstance
affecting the Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such
condition or circumstance or (ii) environmental insurance covering
such condition was obtained or must be maintained until the
condition is remediated or (iii) the Mortgagor was required either
to provide additional security that was deemed to be sufficient by
the originator in light of the circumstances and/or to establish
an operations and maintenance plan. A property condition or
engineering report was prepared with respect to lead based paint
("LBP"), asbestos containing materials ("ACM") and radon gas
("RG") at each the Mortgaged Property and (b) if such report
disclosed the existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting the Mortgaged
Property, the Mortgagor (A) was required to remediate the
identified condition prior to closing the Mortgage Loan or provide
additional security, or establish with the lender a reserve from
loan proceeds, in an amount deemed to be sufficient by the Seller
for the remediation of the problem and/or (B) agreed in the
Mortgage Loan documents to establish an operations and maintenance
plan after the closing of the Mortgage Loan.
ii) "Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance or material
as may be defined as a hazardous or toxic substance by any
federal, state or local environmental law, ordinance, rule,
regulation or order, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C.(Sections)9601 et seq.), the
Hazardous Materials Transportation Act as amended (42
U.S.C.(Sections) 6901 et seq.), the Federal Water Pollution
Control Act as
B-4
amended (33 U.S.C.(Sections)1251 et seq.), the Clean Air Act (42
U.S.C.(Sections)1251 et seq.) and any regulations promulgated
pursuant thereto.
13) Loan Document Status. The Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed
by or on behalf of the Mortgagor is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation),
enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally,
and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and
there is no valid defense, counterclaim or right of offset or
rescission available to the Mortgagor with respect to such Mortgage
Note, Mortgage or other agreement.
14) Insurance. The Mortgaged Property is, and is required pursuant
to the Mortgage to be, insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot
attending a strike, civil commotion, aircraft, vehicles and smoke, and,
to the extent required as of the date of origination by the originator
of such Mortgage Loan consistent with its normal commercial mortgage
lending practices, against other risks insured against by persons
operating like properties in the locality of the Mortgaged Property in
an amount not less than the lesser of the principal balance of the
Mortgage Loan and the replacement cost of the Mortgaged Property, and
contains no provisions for a deduction for depreciation, and not less
than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property; (b) a business
interruption or rental loss insurance policy, in an amount at least
equal to six months of operations of the Mortgaged Property; (c) a
flood insurance policy (if any portion of buildings or other structures
on the Mortgaged Property are located in an area identified by the
Federal Emergency Management Agency as having special flood hazards and
the Federal Emergency Management Agency requires flood insurance to be
maintained); and (d) a comprehensive general liability insurance policy
in amounts as are generally required by commercial mortgage lenders,
and in any event not less than $1 million per occurrence. Such
insurance policy contains a standard mortgagee clause that names the
mortgagee as an additional insured in the case of liability insurance
policies and as a loss payee in the case of property insurance policies
and requires prior notice to the holder of the Mortgage of termination
or cancellation. No such notice has been received, including any notice
of nonpayment of premiums, that has not been cured. The Mortgage
obligates the Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from such Mortgagor. The Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or
repair of the related Mortgaged Property, (b) to the restoration or
repair of the related Mortgaged Property, with any excess insurance
proceeds after restoration or repair being paid to the Mortgagor, or
(c) to the reduction of the principal amount of the Mortgage Loan.
B-5
15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable
in future installments) or other outstanding charges affecting the
Mortgaged Property that are or may become a lien of priority equal to
or higher than the lien of the Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest or penalties
would be first payable thereon.
16) Mortgagor Bankruptcy. The Mortgaged Property, nor any portion
thereof is the subject of, and the Mortgagor under the Mortgage loan is
not a debtor in, any state or federal bankruptcy or insolvency or
similar proceeding.
17) Fee Estate. The Mortgaged Property consists of a fee simple
estate in real estate.
18) Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be
deposited or paid have been so deposited or paid.
19) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and
Treasury regulation section 1.860G-2(a), and the Mortgaged Property, if
acquired in connection with the default or imminent default of the
Mortgage Loan, would constitute "foreclosure property" within the
meaning of Section 860G(a)(8) (without regard to Section 856(e)(4) of
the Code).
20) [Reserved]
21) Advancement of Funds by the Seller. No holder of a Mortgage
Loan has advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the Mortgaged
Property, directly or indirectly, for the payment of any amount
required by the Mortgage Loan.
22) No Mechanics' Liens. The Mortgaged Property is free and clear
of any and all mechanics' and materialmen's liens that are prior or
equal to the lien of the Mortgage, and no rights are outstanding that
under law could give rise to any such lien that would be prior or equal
to the lien of the Mortgage except, in each case, for liens insured
against by the Title Policy referred to herein.
23) Compliance with Usury Laws. The Mortgage Loan complied with
all applicable usury laws in effect at its date of origination.
24) Cross-collateralization. Except as set forth on Schedule B-1
to this Exhibit B, the Mortgage Loan is not cross-collateralized or
cross-defaulted with any other loan.
25) Releases of Mortgaged Property. Neither the Mortgage Note or
the Mortgage requires the mortgagee to release all or any material
portion of the Mortgaged Property that was included in the appraisal
for such Mortgaged Property, and/or generates income from the lien of
the related Mortgage except upon payment in full of all amounts
B-6
due under the Mortgage Loan or in connection with the defeasance
provisions of the related Note and Mortgage.
26) No Equity Participation or Contingent Interest. The Mortgage
Loan does not contain any equity participation by the lender or
provides for negative amortization or for any contingent or additional
interest in the form of participation in the cash flow of the Mortgaged
Property.
27) No Material Default. There exists no material Event of
Default, breach, violation or event of acceleration (and, to the
Seller's actual knowledge, no event which, with the passage of time or
the giving of notice, or both, would constitute any of the foregoing)
under the documents evidencing or securing the Mortgage Loan, in any
such case to the extent the same materially and adversely affects the
value of the Mortgage Loan and the Mortgaged Property; provided,
however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration
that specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any of paragraphs 3,
7, 12, 14, 15, 16 and 17 of this Exhibit B.
28) Inspections. The Seller has inspected or caused to be
inspected the Mortgaged Property in connection with the origination of
the Mortgage Loan.
29) Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area
where the Mortgaged Property is located, the improvements located on or
forming part of each Mortgaged Property comply with applicable zoning
laws and ordinances, or constitute a legal non-conforming use or
structure or, if any such improvement does not so comply, such
non-compliance does not materially and adversely affect the value of
the Mortgaged Property, such value as determined by the appraisal
performed at origination or in connection with the sale of the Mortgage
Loan by the Seller hereunder.
30) Junior Liens. The Mortgage Loan does not permit the Mortgaged
Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the
related Mortgage without the prior written consent of the holder
thereof or the satisfaction of debt service coverage or similar
criteria specified therein. The Seller has no knowledge that the
Mortgaged Property is encumbered by any lien junior to the lien of the
Mortgage.
31) Actions Concerning Mortgage Loan. To the knowledge of the
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning the Mortgage Loan,
Mortgagor or the Mortgaged Property that might adversely affect title
to the Mortgaged Property or the validity or enforceability of the
related Mortgage or that might materially and adversely affect the
value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended.
B-7
32) Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of the Mortgage Loan have been
in all material respects legal, proper and prudent and have met
customary industry standards.
33) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable
mortgage loan, as of the date of origination of the Mortgage Loan or as
of the date of the sale of the Mortgage Loan by the Seller hereunder,
the Mortgagor was in possession of all material licenses, permits and
franchises required by applicable law for the ownership and operation
of the Mortgaged Property as it was then operated.
34) [Reserved]
35) Collateral in Trust. The Mortgage Note for the Mortgage Loan
is not secured by a pledge of any collateral that has not been assigned
to the Purchaser.
36) Due on Sale. The Mortgage Loan contains a "due on sale"
clause, which provides for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan if, without prior written
consent of the holder of the Mortgage, the property subject to the
Mortgage or any material portion thereof, or a controlling interest in
the related Mortgagor, is transferred, sold or encumbered; provided,
however, the Mortgage Loan provides a mechanism for the assumption of
the loan by a third party upon the Mortgagor's satisfaction of certain
conditions precedent, and upon payment of a transfer fee, if any, or
transfer of interests in the Mortgagor or constituent entities of the
Mortgagor to a third party or parties related to the Mortgagor upon the
Mortgagor's satisfaction of certain conditions precedent.
37) Single Purpose Entity. The Mortgagor on the Mortgage Loan,
was, as of the origination of the Mortgage Loan, a Single Purpose
Entity. For this purpose, a "Single Purpose Entity" shall mean an
entity, other than an individual, whose organizational documents
provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating the Mortgaged Property
securing the Mortgage Loan and prohibits it from engaging in any
business unrelated to such Mortgaged Property, and whose organizational
documents further provide, or which entity represented in the Mortgage
Loan documents, substantially to the effect that it does not have any
assets other than those related to its interest in and operation of
such Mortgaged Property, or any indebtedness other than as permitted by
the related Mortgage(s) or the other related Mortgage Loan documents,
that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that
is cross-collateralized and cross-defaulted with the Mortgage Loan),
and that it holds itself out as a legal entity, separate and apart from
any other person.
38) Non-Recourse Exceptions. The Mortgage Loan documents for the
Mortgage Loan provides that such Mortgage Loan constitutes either (a)
the recourse obligations of at least one natural person or (b) the
non-recourse obligations of the Mortgagor, provided that at least one
natural person (and the Mortgagor if the Mortgagor
B-8
is not a natural person) is liable to the holder of the Mortgage Loan
for damages arising in the case of fraud or willful misrepresentation
by the Mortgagor, misappropriation of rents, insurance proceeds or
condemnation awards and breaches of the environmental covenants in the
Mortgage Loan documents.
39) Defeasance and Assumption Costs. The Mortgage Loan Documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the lender incurred in connection with
the defeasance of such Mortgage Loan and the release of the Mortgaged
Property, and the borrower is required to pay all reasonable costs and
expenses of the lender associated with the approval of an assumption of
such Mortgage Loan.
40) Defeasance. The Mortgage Loan does not provide that it can be
defeased until the date that is more than two years after the Closing
Date or does not provide that it can be defeased with any property
other than government securities (as defined in Section 2(a)(16) of the
Investment Company Act of 1940, as amended) or any direct non-callable
security issued or guaranteed as to principal or interest by the United
States.
41) Prepayment Premiums. As of the applicable date of origination
of the Mortgage Loan, any prepayment premiums and yield maintenance
charges payable under the terms of the Mortgage Loan, in respect of
voluntary prepayments, constituted "customary prepayment premiums"
within the meaning of the Treasury Regs Sections 1.860G 1(b)(2)
42) [Reserved]
43) [Reserved]
For purposes of these representations and warranties, the phrases "to
the knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan Seller's
knowledge" shall mean (except where otherwise expressly set forth below) the
actual state of knowledge of the Mortgage Loan Seller (i) after the Mortgage
Loan Seller's having conducted such inquiry and due diligence into such matters
as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Mortgage Loan Seller's underwriting standards, at the time of the Mortgage
Loan Seller's origination or acquisition of the Mortgage Loan; and (ii)
subsequent to such origination, utilizing the monitoring practices customarily
utilized by prudent commercial mortgage lenders with respect to the
securitizable commercial Mortgage Loan, including inquiry with a representative
of the loan servicer designated as the party responsible for the knowledge of
the servicer pertaining to the Mortgage Loan. Also for purposes of these
representations and warranties, the phrases "to the actual knowledge of the
Mortgage Loan Seller" or "to the Mortgage Loan Seller's actual knowledge" shall
mean (except where otherwise expressly set forth below) the actual state of
knowledge of the Mortgage Loan Seller without any express or implied obligation
to make inquiry. All information contained in the documents included in the
definition of Mortgage File in the Pooling and Servicing Agreement shall be
deemed to be within the knowledge and the actual knowledge of the Mortgage Loan
Seller, to the extent that the Mortgage Loan Seller or its closing counsel or
custodian, if any, has reviewed or had possession of such document at any
B-9
time. For purposes of these representations and warranties, to the extent that
any representation or warranty is qualified by the Mortgage Loan Seller's
knowledge with respect to the contents of the Mortgage Note, Mortgage, lender's
title policy and any letters of credit or Ground Leases, if such document is not
included in the Mortgage File, the Mortgage Loan Seller shall make such
representation or warranty without any such qualification. Wherever there is a
reference in a representation or warranty to receipt by, or possession of, the
Mortgage Loan Seller of any information or documents, or to any action taken by
the Mortgage Loan Seller or to any action which has not been taken by the
Mortgage Loan Seller or its agents or employees, such reference shall include
the receipt or possession of such information or documents by, or the taking of
such action or the not taking such action by, the Mortgage Loan Seller. For
purposes of these representations and warranties, when referring to the conduct
of "reasonable prudent institutional commercial or multifamily, as applicable
mortgage lenders" (or similar such phrases and terms), such conduct shall be
measured by reference to the industry standards generally in effect as of the
date the related representation or warranty relates to or is made.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
B-10
SCHEDULE TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
COMMERZBANK AG, NEW YORK BRANCH
GMAC-C3 Exceptions to Representations and Warranties of the Seller
------------------------------------------------------------------
(2) WHOLE LOAN; OWNERSHIP OF MORTGAGE LOANS
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place The mortgage loan is jointly owned by GSMC and
Commerzbank AG.
-------------------------- -------------------------------- ----------------------------------------------------------
(7) CONDITION OF PROPERTY; CONDEMNATION
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place No reserves were established instead a guaranty was given
by The Xxxxx Company covering the obligation of the
borrower to repair such damage.
-------------------------- -------------------------------- ----------------------------------------------------------
(16) MORTGAGOR BANKRUPTCY
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place Certain tenants are debtors in bankruptcy matters.
-------------------------- -------------------------------- ----------------------------------------------------------
(22) NO MECHANICS' LIENS
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place There is a single mechanics lien in the amount of $5505
that was filed after the issuance of the title insurance
policy.
-------------------------- -------------------------------- ----------------------------------------------------------
(24) CROSS-COLLATERALIZATION
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place The Mortgage Note is one of six pari passu notes secured by
the Mortgaged Property
-------------------------- -------------------------------- ----------------------------------------------------------
(31) ACTIONS CONCERNING MORTGAGE LOANS
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place There is one uninsured suit pending relating to a
mechanic's lien for work performed for a tenant.
-------------------------- -------------------------------- ----------------------------------------------------------
(38) NON-RECOURSE EXCEPTIONS
B-11
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place Only the Borrower, which is a Delaware limited liability
company, is liable for nonrecourse carve outs. There are no
"natural persons" liable for any of the obligations under
the loan.
-------------------------- -------------------------------- ----------------------------------------------------------
B-12
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
COMMERZBANK AG, NEW YORK BRANCH
CERTIFICATE OF SECRETARY
I, Xxxxxxxx X. Xxxxxxx, General Counsel of Commerzbank AG, New York
Branch, a company formed under the laws of the Federal Republic of Germany and
licensed to engage in the banking business under Article V of the Banking Law of
the State of New York (the "Company"), do hereby certify that:
(1) I am the duly appointed, qualified and acting General Counsel
of the Company.
(2) Attached hereto as Exhibit A is a current, correct and
complete copy of the English translation of the Articles of Association
of the Company, including any amendments thereto, and such Articles of
Association are in full force and effect on the date hereof and have
not been amended except as attached hereto.
(3) Attached hereto as Exhibit B is a current, correct and
complete copy of the license from the Banking Department of the State
of New York that remains in full force and effect on the date hereof
and has not been amended, altered or repealed.
(4) Attached hereto as Exhibit C is a current, correct and
complete copy of the Company's good standing certificate from the State
of New York Banking Department.
(5) The persons named below are duly appointed to the offices set
opposite their respective names and the signatures appearing opposite
their respective names are their true signatures.
Name Office Signature
---- ------ ---------
Xxxxxxx X. Xxxxx Senior Vice President
-----------------------------------
Xxxxxxx Xxxxxxx Senior Vice President
-----------------------------------
Xxxxx Xxxxxxxxx Vice President
-----------------------------------
-----------------------------------
[Signature on the following page]
C-1-1
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of [ ___],
2003.
-----------------------------------------
Xxxxxxxx X. Xxxxxxx, not in his
individual capacity, but solely in his
capacity as General Counsel of the
Company
C-1-2
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of Commerzbank AG, New York Branch
In connection with the execution and delivery by Commerzbank AG, New
York Branch (the "Mortgage Loan Seller") of, and the consummation of the
transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated as of December 18, 2003 (the "Purchase Agreement"), between GMAC
Commercial Mortgage Securities, Inc. and the Mortgage Loan Seller, the Mortgage
Loan Seller hereby certifies that (i) the representations and warranties of the
Mortgage Loan Seller in the Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, and (ii) the Mortgage Loan Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the date hereof.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Purchase Agreement.
Certified this __ day of [________] 2003.
COMMERZBANK AG, NEW YORK BRANCH
By:
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
By:
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
C-2-1
