Exhibit 99.1
Execution Copy
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of August 26, 1999, between GMAC Commercial Mortgage Corporation as
seller (the "Seller") and GMAC Commercial Mortgage Securities, Inc. as purchaser
(the "Purchaser").
The 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, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule"). It is hereby acknowledged and agreed that the Equity
Inns Mortgage Loan (the "Participation Loan") is subject to a participation
agreement (a "Participation Agreement") and represented by a 50% participation
interest (a "Participation Interest") created under the Participation Agreement.
Certain other multifamily and commercial mortgage loans will be purchased by the
Purchaser from (i) Column Financial, Inc. ("Column") pursuant to, and for the
consideration described in, the Mortgage Loan Purchase Agreement, dated as of
August 26, 1999 (the "Column Warehouse Mortgage Loan Purchase Agreement")
between the Purchaser and Column, (ii) German American Capital Corporation
("GACC"), pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of August 26, 1999 (the "GACC Warehouse Mortgage
Loan Purchase Agreement"), between the Purchaser and GACC, (iii) Xxxxxxx Xxxxx
Mortgage Company ("GSMC") pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of August 26, 1999 (the "GSMC
Warehouse Mortgage Loan Purchase Agreement") between the Purchaser and GSMC (the
mortgage loans purchased by the Purchaser under the Column Warehouse Mortgage
Loan Purchase Agreement, the GACC Warehouse Mortgage Loan Purchase Agreement and
the GSMC Warehouse Mortgage Loan Purchase Agreement, the "Warehouse Mortgage
Loans"), (iv) GACC, pursuant to, and for the consideration described in, the
Mortgage Loan Purchase Agreement, dated as of August 26, 1999 (the "GACC
Mortgage Loan Purchase Agreement"), between the Purchaser and GACC, and (v)
GSMC, pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of August 26, 1999 (the "GSMC Mortgage Loan
Purchase Agreement"), between the Purchaser and GSMC. The Seller, Column, GACC
and GSMC are collectively referred to as the "Mortgage Loan Sellers."
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial 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. and Fitch IBCA, 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 September 1, 1999 (the
"Pooling and Servicing Agreement"), among the Purchaser as depositor, GMAC
Commercial Mortgage Corporation as master servicer (in such capacity, the
"Master Servicer") and special servicer (in such capacity, the "Special
Servicer") and Norwest Bank Minnesota, National Association, as trustee (in such
capacity, the "Trustee"). 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-a, Class A-1-b, Class A-2,
Class B, Class C, Class D, Class E, Class F and Class X Certificates to Deutsche
Bank Securities Inc. and Xxxxxxx, Xxxxx & Co. (together, the "Underwriters"),
pursuant to an underwriting agreement dated the date hereof (the "Underwriting
Agreement"). The Purchaser intends to sell the Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class R-I, Class R-II and Class R-III Certificates
to the Underwriters and the G2 Opportunity Fund LP (in such capacity, the
"Initial Purchasers") pursuant to two certificate purchase agreements dated the
date hereof (the "Certificate Purchase Agreements"). The Class G, Class H, Class
J, Class K, Class L, Class M, 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 Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on September 14, 1999
or such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). The "Cut-off Date" with respect to any Mortgage Loan is the Due
Date for such Mortgage Loan in September, 1999. As of the close of business on
their respective Cut-off Dates (which Cut-off Dates may occur after the Closing
Date), the Mortgage Loans 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
$262,978,965 subject to a variance of plus or minus 5%. The purchase price for
the Mortgage Loans shall be $270,831,653.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the Seller
of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdback for transaction expenses), the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the Mortgage
Loans identified on the Mortgage Loan Schedule as of such date, including all
interest and principal received or receivable by the Seller on or with respect
to the Mortgage Loans after the Cut-off Date for such Mortgage Loan, together
with all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard, or other insurance policies and any escrow,
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reserve or other comparable accounts related to the Mortgage Loans. The
Purchaser shall be entitled to (and, to the extent received by or on behalf of
the Seller, the 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 Loans after the Cut-off Date for each Mortgage Loan, 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 each Mortgage Loan and collected after such Cut-off Date
shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller hereby agrees that, at least five (5) Business Days before the
Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B hereto) for each Mortgage Loan so
assigned. It is further acknowledged and agreed by the Seller that the Purchaser
intends to cause the Trustee to perform a limited review of such Mortgage Files
to enable the Trustee to confirm to the Purchaser on or before the Closing Date
that the Mortgage Note referred to in clause (i) of Exhibit B has been delivered
by the Seller with respect to each such Mortgage File. In the event Seller fails
to so deliver each such Mortgage File to the Trustee, the Purchaser and its
successors and assigns shall be entitled to pursue any rights or remedies in
respect of such failure as may be available under applicable law. If the Seller
cannot deliver, or cause to be delivered as to any Mortgage Loan, the original
Mortgage Note, the Seller shall deliver a copy or duplicate original of such
Mortgage Note, together with an affidavit certifying that the original thereof
has been lost or destroyed. If the Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of any of the
documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi)(A)
and (xii) of Exhibit B, with evidence of recording thereon, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, or because such
original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of this Section 2(b) shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Trustee, and
either the original of such missing document or instrument, or a copy thereof,
with evidence of recording or filing, as the case may be, thereon, is delivered
to or at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee) within 180 days of the
Closing Date (or within such longer period after the Closing Date as the
Purchaser (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Seller has provided the Purchaser (or such
subsequent owner) with evidence of such recording or filing, as the case may be,
or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or filing, as the case may be, and is, as certified
to the Purchaser (or such subsequent owner) no less often than quarterly, in
good faith attempting to obtain from the appropriate county recorder's or filing
office such original or copy). If the Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of the related
lender's title insurance policy referred
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to in clause (ix) of Exhibit B solely because such policy has not yet been
issued, the delivery requirements of this Section 2(b) shall be deemed to be
satisfied as to such missing item, and such missing item shall be deemed to have
been included in the related Mortgage File, provided that the Seller has
delivered to the Trustee a commitment for title insurance "marked-up" at the
closing of such Mortgage Loan, and the Seller shall deliver to or at the
direction of the Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee), promptly following the receipt
thereof, the original related lender's title insurance policy (or a copy
thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan. Also notwithstanding the
foregoing, the Mortgage File for the Participation Loan will consist solely of
an original executed counterpart of the Participation Agreement. On the Closing
Date, upon notification from the Seller that the purchase price referred to in
Section 1 (exclusive of any applicable holdback for transaction expenses) has
been received by the Seller, the Trustee shall be authorized to release to the
Purchaser or its designee all of the Mortgage Files in the Trustee's possession
relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with (i) the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of Exhibit B or the re-registration
or assignment of the Participation Interest and (ii) the delivery of a copy of
any such document or instrument to the Master Servicer promptly following its
return to the Trustee or its designee after such recording or filing; provided
that the Seller shall not be responsible for actually recording or filing any
such document or instrument. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Seller shall promptly prepare or cause the preparation of a substitute
therefor or cure or cause the curing of such defect, as the case may be, and
shall thereafter deliver the substitute or corrected document to or at the
direction of the Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together with all
escrow payments, reserve funds and other comparable funds in the possession of
the Seller (or under its control) with respect to the Mortgage Loans, shall
(unless they are held by a sub-servicer that shall, as of the Closing Date,
begin acting on behalf of the Master Servicer pursuant to a written agreement
between such parties) be delivered by the Seller (or its agent) to the Purchaser
(or its designee) no later than the Closing Date. If a sub-servicer shall, as of
the Closing Date, begin acting on behalf of the Master Servicer with respect to
any Mortgage Loan pursuant to a written agreement between such parties, the
Seller shall deliver a copy of the related Servicing File to the Master
Servicer.
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(e) The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The 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 Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The 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 C, with such changes or
modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing and
in good standing under the laws of the State of California, and is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance and compliance with the terms of this Agreement by the
Seller, will not violate the 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 Seller to carry out the transactions
contemplated by this Agreement.
(iii) The 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.
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(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the 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 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 Seller's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vi) No litigation is pending with regard to which Seller has received
service of process or, to the best of the Seller's knowledge, threatened
against the Seller the outcome of which, in the Seller's good faith and
reasonable judgment, could reasonably be expected to prohibit the Seller
from entering into this Agreement or materially and adversely affect the
ability of the Seller to perform its obligations under this Agreement.
(vii) The 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
Loans or the consummation of any of the other transactions contemplated
hereby.
(viii) Neither the Seller nor anyone acting on its behalf 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 Seller will not act,
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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 Loans or the Warehouse Mortgage Loans or any
substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans and the Warehouse
Mortgage Loans, the information set forth on pages A-7 through A-9,
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 Loans and the
Warehouse Mortgage Loans and/or the Seller 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--The Mortgage Pool,"
"--Geographic Concentration," "--Property Type," "--Call Protection,"
"--Payment Terms," "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.
(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 Seller
with this Agreement, or the consummation by the 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 Seller's sale of the Mortgage Loans 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 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 C 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
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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 Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of 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 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 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.
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(vii) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the 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
Loans 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 Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
(a) Within 90 days of the earlier of discovery or receipt of notice by the
Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement as in effect on the
Closing Date) in respect of the Mortgage File for any Mortgage Loan or a breach
of any representation or warranty made pursuant to Section 4(a) and set forth in
Exhibit C (a "Breach"), which Defect or Breach, as the case may be, 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 Seller shall cure such Defect
or Breach, as the case may be, in all material respects or repurchase the
affected Mortgage Loan from the then owner(s) thereof at the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement as in effect on the
Closing Date) by payment of such Purchase Price by wire transfer of immediately
available funds to the account designated by such owner(s); provided, however,
that in lieu of effecting any such repurchase, the Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement as in effect on the Closing
Date.
If the Seller is notified of a Defect in any Mortgage File that corresponds
to information set forth in the Mortgage Loan Schedule, the Seller shall
promptly correct such Defect and provide a new, corrected Mortgage Loan Schedule
to the Purchaser, which corrected Mortgage Loan Schedule shall be deemed to
amend and replace the existing Mortgage Loan Schedule for all purposes.
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(b) Notwithstanding Section 6(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
In addition, if, as of the Closing Date, any Mortgage Loan is secured by a
Mortgage that does not constitute a valid first lien upon the related Mortgaged
Property, including all buildings located thereon and all fixtures attached
thereto, or if a Mortgage is subject to something other than (A) the lien of
current real property taxes and assessments not yet due and payable, (B)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, (C) exceptions and exclusions specifically referred to
in the lender's title insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan and (D) those
exceptions set forth on Schedule C-1 to Exhibit C hereto (the exceptions set
forth in the foregoing clauses (A), (B), (C) and (D) collectively, "Permitted
Encumbrances"), or if the insurer that issued the Title Policy referred to in
clause (vi) of Exhibit C hereto in respect of any Mortgage Loan was not
qualified to do business in the state in which the related Mortgaged Property is
located, and in either case such failure materially and adversely affects the
interests of holders of Certificates, (any such failure that materially and
adversely affects the interests of holders of Certificates, also a "Breach"),
the Seller shall be required, at its option, to either (i) cure such Breach in
all material respects or (ii) repurchase the affected Mortgage Loan, in each
case, within the applicable Permitted Cure Period (as defined below). If any
such Breach is not corrected or cured in all material respects within the
applicable Permitted Cure Period, the Seller shall, not later than the last day
of such Permitted Cure Period, (i) repurchase the affected Mortgage Loan from
the Purchaser or its assignee at the applicable Purchase Price or (ii) if within
the three-month period commencing on the closing date (or within the two-year
period commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G-2(f)), at its option, replace such
Mortgage Loan with a Qualifying Substitute Mortgage Loan and pay any
corresponding Substitution Shortfall Amount. The Seller agrees that any such
repurchase or substitution shall be completed in accordance with and subject to
the terms and conditions of the Pooling and Servicing Agreement.
For purposes of the preceding paragraph only, the "Permitted Cure Period"
applicable to any Breach in respect of any Mortgage Loan shall be the 90-day
period immediately following the earlier of the discovery by the Seller or
receipt by the Seller of notice of such Breach; provided that if such Breach
cannot be corrected or cured in all material respects within such 90-day period,
but is reasonably likely that such Breach could be corrected or cured within 180
days of the earlier of discovery by the Seller and receipt by the Seller of
notice of such Breach and the Seller is diligently attempting to effect such
correction or cure, then the applicable Permitted Cure Period shall, with the
consent of the Purchaser or its assignee (which consent shall not be
unreasonably withheld), be extended for an additional 90 days.
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(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 6, the then owner(s) thereof shall tender or
cause to be tendered promptly to the Seller, upon delivery of a receipt executed
by the Seller, the related Mortgage File and Servicing File, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Purchaser or the Trustee shall be endorsed or assigned, as the case may be,
to the Seller or its designee in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) Except as provided in Section 2(b), this Section 6 provides the sole
remedies available to the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates) respecting
any Defect in a Mortgage File or any breach of any representation or warranty
made pursuant to Section 4(a) and set forth in Exhibit C, or in connection with
the circumstances described in Section 6(b). If the Seller defaults on its
obligations to repurchase any Mortgage Loan in accordance with Section 6(a) or
6(b) or disputes its obligation to repurchase any Mortgage Loan in accordance
with either such subsection, the Purchaser or its successors and assigns may
take such action as is appropriate to enforce such payment or performance,
including, without limitation, the institution and prosecution of appropriate
proceedings. The Seller shall reimburse the Purchaser for all necessary and
reasonable costs and expenses incurred in connection with such enforcement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Xxxxx, Xxxxx & Xxxxx, 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 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 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;
11
(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 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 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 Loans 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
Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the 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 Seller;
(c) A certificate of good standing regarding the Seller from the Secretary
of State for the State of California, dated not earlier than 30 days prior to
the Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit D-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Purchaser and each Underwriter
may rely;
(e) Written opinions of counsel for the Seller, substantially in the form
of Exhibits D-3A and D-3B hereto and subject to such reasonable assumptions and
qualifications as may be requested by counsel for the 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 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.
12
SECTION 9. Indemnification.
(a) The 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, 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 Loans or the Warehouse Mortgage Loans 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 Seller or the
Mortgage Loans or the Warehouse Mortgage Loans contained in the Prospectus
Supplement or the Memorandum under the headings "Summary --The Mortgage Pool,"
"--Geographic Concentration," "--Property Type," "--Call Protection," "--Payment
Terms," "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 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 Seller may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-64963 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 November 5,
1998, as supplemented by the prospectus supplement dated
13
August 26, 1999 (the "Prospectus Supplement"), relating to the Registered
Certificates; "Memorandum" shall mean the private placement memorandum dated
August 26, 1999, relating to the Non-Registered 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, Peabody Acceptance Corporation
I, Xxxxxx, Xxxxxxx & 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 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 Seller that
was used to create the Term Sheet Diskette is referred to herein 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 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
14
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.
(d) The Purchaser and the 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.
15
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 Xxxxxxx
Xxxx, X.X. Xxx 0000, 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 Seller in writing by the
Purchaser; and if to the Seller, addressed to GMAC Commercial Mortgage
Corporation, at 000 Xxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxxxx
00000-0000, Attention: Structured Finance Manager, facsimile no. (000) 000-0000,
with a copy to GMAC Commercial Mortgage Corporation, or to such other address or
facsimile number as the 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 Seller set 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 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 Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the 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.
16
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 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.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
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 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.
17
IN WITNESS WHEREOF, the 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.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES,
INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
18
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
GMACCM Non June Sale Loans
Loan Loan
Number Name Group Address City
------ ---- ----- ------- ----
19020 The Shops at Pennsville Shopping Center 1 000 Xxxxx Xxxxxxxx Xxxxxxxxxx
00000 St. Augustine Hills Apartments 2 0000 Xxx Xx. Xxxxxxxxx Xxxx Xxxxxxxxxxx
00000 Pacific East Oriental ShoppingMall 1 0000 Xxxxxx Xxxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxx 0 0000 Xxxx Xxx Xxxxxxxxx Xxxxx Xxxxxxxx
00000 Courtyard by Marriott - Charleston 1 00 Xxxxxxxx Xxxxx Xxxxxxxxxx
00000 Preferred Freezer II 1 231 Elm Street Perth Amboy
00000 Xxxxxxxx Xxxxx 1 00 Xxxxxxxx Xxxx Xxxxx Xxxxxxxxxx
00000 Santee Plaza 1 0000-0000 Xxxxxx Xxxxxx Xxx Xxxxxxx
00000 Equity Inns - AmeriSuites (Indianapolis) 1 0000 Xxxxxxxx Xxxxxxxx Xxxxxxxxxxxx
00000 Equity Inns Portfolio 1
22103-A Equity Inns - AmeriSuites (Overland Park) 1 0000 Xxxx 000xx Xxxxxx Xxxxxxxx Xxxx
00000-X Equity Inns - AmeriSuites (Columbus) 1 0000 Xxxxxxx Xxxxx Xxxxxxxx
00000-X Equity Inns - AmeriSuites (Memphis) 1 7905 Giacosa Place Memphis
22103-D Equity Inns - AmeriSuites (Xxxx Xxxxx) 1 0000 Xxx Xxxx Xxxx Xxxxx
00000-X Equity Inns - Hampton Inn (Overland Park) 1 00000 Xxxx Xxxxxxx Xxxxxxxx Xxxx Xxxxxxxx Xxxx
00000-X Equity Inns - Hampton Inn (Kansas City) 1 00000 Xxxxx Xxxxxx Xxxxxx Xxxxxx Xxxx
00000-X Equity Inns - Hampton Inn (Memphis) 1 0000 Xxxxxx Xxxxxx Xxxxxxx
00000-X Equity Inns - Hampton Inn (Xxxxxxxxxx) 1 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxx
00000-X Equity Inns - Hampton Inn (Morgantown) 1 1053 Van Xxxxxxx Road Morgantown
22103-J Equity Inns - Homewood Suites (Phoenix) 1 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxx
00000-X Equity Inns - Homewood Suites (Sharonville) 1 0000 Xxxx Xxxxxx Xxxx Xxxxxxxxxxx
00000-X Equity Inns - Homewood Suites (San Antonio) 1 4323 Spectrum One San Antonio
22103-M Equity Inns - Residence Inn (Tucson) 1 0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxx
00000-X Equity Inns - Residence Inn (Eagan) 1 0000 Xxxxxxxxx Xxxxx Xxxxx
00000-X Equity Inns - Residence Inn (Tinton Falls) 1 00 Xxxx Xxxx Xxxxxx Xxxxx
00000-X Equity Inns - Residence Inn (Portland) 1 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx Portland
22103-Q Equity Inns - Hampton Inn (Northville) 1 00000 Xxxxxxxx Xxxx Xxxxxxxxxx
00000-X Equity Inns - Residence Inn (Princeton) 1 4225 Xxxxx 0 Xxxxxxxxx
00000 14th & Xxxx Street Parking Deck 0 0000-0000 Xxxx Xxxx Xxxxxx Xxxxxxxx
00000 40 Corporate Center 1 40 Corporate Center Xx. Xxxxx
00000 Xxxxx Xxxxx Shopping Center 1 00000 X.X. Xxxxxxx 00 Xxxx Xxxxxx
00000 Capital Title Building 1 0000 Xxxx Xxxxxxxxx Xxxx Xxxxxxx
00000 Xxx Xxxxxx Apartments 2 2801 Westridge Circle Xxxxx-College Station
22649 For Eyes Optical 1 0000 Xxxx Xxxxxxxx Xxxxx Xxxxxxx
00000 Xxxxx Company of California 1 00000 Xxxxx Xxx Xxxxx Xxxxxx Gardena
22671 Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxx 0 00000 and 00000 Xxxxxxx Xxx Xxx Xxxx
00000 Sheraton Cerritos 1 00000 Xxxxxx Xxxxx Xxxxx Xxxxxxxx
00000 Xxxxx Xxxxxxxxxx 0 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxxxx
00000 Golden Books Industrial Building 1 107 Xxx Xxxxxxxx Road Fayetteville
22941 Xxxxxxxx Xxxxxx Xxxxxxxx 0 00 Xxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxx
00000 InteSys Technologies, Inc. 1 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxx
00000 Air Touch Building 1 5165 Emerald Parkway Dublin
23290 AmeriSuites - Irving 1 0000 Xxxx Xxxxxxx Xxxxxxx Irving
23294 Park West I Apartments 2 3751 Xxxxxx Xxxxxx Xxxx Xx. Drive Atlanta
23338 Xxxxx Xxxxx Xxxxxxxxxx 0 0000 Xxxxxxxxxxx Xxxxxx Xxxxxxxxx
00000 Xxx Xxxxxxxxx Xxxxx 0 0000 Xxx Xxxx Xxxxxxxxx Xxxxx Xxxx
00000 Columbus Park Apartments 2 5999 Bear Creek Drive Bedford
23908 Tivoli Lakes Club Apartments 2 000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxx
00000 Residence Inn - Foxborough 1 000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx
Loan Original
Number Name State Zip Rate Balance
------ ---- ----- --- ---- --------
19020 The Shops at Xxxxxxxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxx 0000 Fixed 4,800,000.00
00000 Xx. Xxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxx 00000 Fixed 7,000,000.00
00000 Xxxxxxx Xxxx Xxxxxxxx XxxxxxxxXxxx Xxxxxxxxxx 00000 Fixed 9,300,000.00
00000 Xxxxxxxx Xxxxx Xxxxx 00000 Fixed 1,050,000.00
20656 Courtyard by Marriott - Xxxxxxxxxx Xxxxx Xxxxxxxx 00000 Fixed 11,200,000.00
21517 Preferred Freezer II New Jersey 8861 Fixed 7,000,000.00
00000 Xxxxxxxx Xxxxx Xxx Xxxxxx 0000 Fixed 7,500,000.00
00000 Xxxxxx Xxxxx Xxxxxxxxxx 00000 Fixed 1,650,000.00
00000 Xxxxxx Xxxx - XxxxxXxxxxx (Xxxxxxxxxxxx) Xxxxxxx 00000 Fixed 1,920,000.00
22103 Equity Inns Portfolio Fixed 46,590,000.00
22103-A Equity Inns - AmeriSuites (Overland Park) Kansas 66211 NAP
00000-X Xxxxxx Xxxx - XxxxxXxxxxx (Xxxxxxxx) Xxxx 00000 NAP
00000-X Xxxxxx Xxxx - XxxxxXxxxxx (Xxxxxxx) Xxxxxxxxx 00000 NAP
22103-D Equity Inns - AmeriSuites (Xxxx Xxxxx) Virginia 23060 NAP
22103-E Equity Inns - Hampton Inn (Overland Park) Kansas 66212 NAP
22103-F Equity Inns - Xxxxxxx Xxx (Xxxxxx Xxxx) Xxxxxxxx 00000 NAP
22103-G Equity Inns - Xxxxxxx Xxx (Xxxxxxx) Xxxxxxxxx 00000 NAP
22103-H Equity Inns - Xxxxxxx Xxx (Xxxxxxxxxx) Xxxxx 00000 NAP
22103-I Equity Inns - Hampton Inn (Morgantown) Xxxx Xxxxxxxx 00000 NAP
22103-J Equity Inns - Homewood Suites (Phoenix) Arizona 85026 NAP
00000-X Xxxxxx Xxxx - Xxxxxxxx Xxxxxx (Xxxxxxxxxxx) Xxxx 00000 NAP
22103-L Equity Inns - Homewood Suites (San Xxxxxxx) Xxxxx 00000 NAP
22103-M Equity Inns - Residence Inn (Tucson) Arizona 85710 NAP
22103-N Equity Inns - Xxxxxxxxx Xxx (Xxxxx) Xxxxxxxxx 00000 NAP
22103-O Equity Inns - Xxxxxxxxx Xxx (Xxxxxx Xxxxx) Xxx Xxxxxx 0000 NAP
22103-P Equity Inns - Xxxxxxxxx Xxx (Xxxxxxxx) Xxxxxx 00000 NAP
22103-Q Equity Inns - Xxxxxxx Xxx (Xxxxxxxxxx) Xxxxxxxx 00000 NAP
22103-R Equity Inns - Residence Inn (Princeton) New Jersey 8543 NAP
00000 00xx & Xxxx Xxxxxx Xxxxxxx Xxxx Xxxxxxxx 00000 Fixed 3,900,000.00
22232 40 Xxxxxxxxx Xxxxxx Xxxxxxxx 00000 Fixed 8,850,000.00
00000 Xxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx 00000 Fixed 3,255,000.00
00000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxxx 00000 Fixed 3,130,000.00
00000 Xxx Xxxxxx Xxxxxxxxxx Xxxxx 00000 Fixed 1,670,000.00
22649 For Eyes Optical Florida 32818 Fixed 1,800,000.00
22669 Xxxxx Company of Xxxxxxxxxx Xxxxxxxxxx 00000 Fixed 3,000,000.00
00000 Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxx Xxxxxxxxxx 00000 Fixed 26,000,000.00
22760 Xxxxxxxx Xxxxxxxx Xxxxxxxxxx 00000 Fixed 10,000,000.00
00000 Xxxxx Xxxxxxxxxx Xxxxxxx 00000 Fixed 5,200,000.00
00000 Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx Xxxxx Xxxxxxxx 00000 Fixed 14,500,000.00
00000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx 00000 Fixed 7,425,000.00
23007 InteSys Technologies, Inc. Arizona 85233 Fixed 13,130,000.00
23226 Air Xxxxx Xxxxxxxx Xxxx 00000 Fixed 14,000,000.00
23290 AmeriSuites - Xxxxxx Xxxxx 00000 Fixed 6,100,000.00
00000 Xxxx Xxxx X Xxxxxxxxxx Xxxxxxx 00000 Fixed 1,325,000.00
00000 Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxx 00000 Fixed 1,960,000.00
23492 Xxx Xxxxxxxxx Xxxxx Xxxxx 00000 Fixed 6,000,000.00
00000 Xxxxxxxx Xxxx Xxxxxxxxxx Xxxx 00000 Fixed 12,250,000.00
00000 Xxxxxx Xxxxx Xxxx Xxxxxxxxxx Xxxxxxx 00000 Fixed 13,600,000.00
24117 Xxxxxxxxx Xxx - Xxxxxxxxxx Xxxxxxxxxxxxx 0000 Fixed 8,100,000.00
Stated Day
Loan Remaining ARD Maturity Payment
Number Name Current Balance Term Date Date Due
------ ---- --------------- --------- ---- -------- -------
19020 The Shops at Pennsville Shopping Center 4,793,769.85 118 7/5/09 5
00000 Xx. Xxxxxxxxx Xxxxx Apartments 6,986,655.33 118 7/10/09 10
19282 Pacific East Oriental ShoppingMall 9,296,026.75 179 8/10/14 10
00000 Xxxxxxxx Xxxxx 1,049,145.30 119 8/10/09 10
20656 Courtyard by Marriott - Charleston 11,191,324.60 83 8/1/06 8/1/24 1
21517 Preferred Freezer II 6,994,301.99 119 8/10/09 10
00000 Xxxxxxxx Xxxxx 7,496,173.57 119 8/10/09 10
00000 Xxxxxx Xxxxx 1,648,440.64 118 7/10/09 10
22102 Equity Inns - AmeriSuites (Indianapolis) 1,916,757.43 118 7/1/09 7/1/24 1
22103 Equity Inns Portfolio 46,511,316.90 118 7/1/09 7/1/24 1
22103-A Equity Inns - AmeriSuites (Overland Park) 118
22103-B Equity Inns - AmeriSuites (Columbus) 118
22103-C Equity Inns - AmeriSuites (Memphis) 118
22103-D Equity Inns - AmeriSuites (Xxxx Xxxxx) 118
22103-E Equity Inns - Hampton Inn (Overland Park) 118
22103-F Equity Inns - Hampton Inn (Kansas City) 118
22103-G Equity Inns - Hampton Inn (Memphis) 118
22103-H Equity Inns - Hampton Inn (Xxxxxxxxxx) 118
22103-I Equity Inns - Xxxxxxx Xxx (Xxxxxxxxxx) 000
00000-X Equity Inns - Homewood Suites (Phoenix) 118
22103-K Equity Inns - Homewood Suites (Sharonville) 118
22103-L Equity Inns - Homewood Suites (San Antonio) 118
22103-M Equity Inns - Residence Inn (Tucson) 118
22103-N Equity Inns - Residence Inn (Eagan) 118
22103-O Equity Inns - Residence Inn (Tinton Falls) 118
22103-P Equity Inns - Residence Inn (Portland) 118
22103-Q Equity Inns - Xxxxxxx Xxx (Xxxxxxxxxx) 000
00000-X Equity Inns - Residence Inn (Princeton) 118
22149 14th & Xxxx Street Parking Deck 3,896,784.53 119 8/10/09 10
22232 40 Corporate Center 8,850,000.00 119 8/10/09 10
22369 Delta Plaza Shopping Center 3,251,877.73 118 7/10/09 10
22393 Capital Title Building 3,128,484.98 119 8/10/09 10
00000 Xxx Xxxxxx Apartments 1,669,174.83 119 8/10/09 10
22649 For Eyes Optical 1,799,077.67 131 8/10/10 10
22669 Xxxxx Company of California 2,998,500.23 119 8/10/09 10
00000 Xxxxxxx Xxxxx Xxxx & Xxxx Tower 25,984,904.48 119 8/10/09 10
22760 Sheraton Cerritos 9,992,304.65 119 8/1/09 8/1/24 1
22788 Plaza Apartments 5,197,261.92 119 8/10/09 10
22868 Golden Books Industrial Building 14,493,349.93 119 8/10/09 10
22941 Heritage Office Building 7,425,000.00 119 8/10/09 10
23007 InteSys Technologies, Inc. 13,123,184.47 119 8/10/09 10
23226 Air Touch Building 13,992,522.73 119 8/10/09 10
23290 AmeriSuites - Irving 6,095,275.01 119 8/1/09 8/1/24 1
23294 Park West I Apartments 1,324,345.30 119 8/10/09 10
00000 Xxxxx Xxxxx Apartments 1,958,976.76 119 8/10/09 10
23492 One Corporate Plaza 5,997,104.40 119 8/10/09 10
23650 Columbus Park Apartments 12,231,790.33 179 8/10/14 10
23908 Tivoli Lakes Club Apartments 13,591,753.95 119 8/10/09 10
24117 Residence Inn - Foxborough 8,093,378.37 119 8/1/09 8/1/24 1
Loan ARD CTL
Number Name Payment Loan Loan Defeasance
------ ---- ------- ---- ----- ----------
19020 The Shops at Pennsville Shopping Center 33,196 No Lock/26_Defeasance/90_0%/4
00000 Xx. Xxxxxxxxx Xxxxx Apartments 53,546 No Lock/26_Defeasance/92_0%/2
19282 Pacific East Oriental ShoppingMall 73,886 No Lock/25_Defeasance/148_0%/7
00000 Xxxxxxxx Xxxxx 8,558 No Lock/25_Defeasance/91_0%/4
20656 Courtyard by Marriott - Charleston 93,064 Yes Lock/26_Defeasance/56_0%/2
21517 Preferred Freezer II 57,055 No Lock/25_Defeasance/91_0%/4
00000 Xxxxxxxx Xxxxx 56,397 No Lock/25_Defeasance/90_0%/7
00000 Xxxxxx Xxxxx 12,740 No Lock/26_Defeasance/90_0%/4
22102 Equity Inns - AmeriSuites (Indianapolis) 15,454 Yes Lock/35_Defeasance/81_0%/4
22103 Equity Inns Portfolio 374,998 Yes Lock/35_Defeasance/81_0%/4
22103-A Equity Inns - AmeriSuites (Overland Park) 14,448 NAP NAP
22103-B Equity Inns - AmeriSuites (Columbus) 18,714 NAP NAP
22103-C Equity Inns - AmeriSuites (Memphis) 13,925 NAP NAP
22103-D Equity Inns - AmeriSuites (Xxxx Xxxxx) 21,772 NAP NAP
22103-E Equity Inns - Hampton Inn (Overland Park) 17,748 NAP NAP
22103-F Equity Inns - Hampton Inn (Kansas City) 14,568 NAP NAP
22103-G Equity Inns - Hampton Inn (Memphis) 19,116 NAP NAP
22103-H Equity Inns - Hampton Inn (Xxxxxxxxxx) 12,556 NAP NAP
22103-I Equity Inns - Hampton Inn (Morgantown) 16,299 NAP NAP
22103-J Equity Inns - Homewood Suites (Phoenix) 28,694 NAP NAP
22103-K Equity Inns - Homewood Suites (Sharonville) 13,361 NAP NAP
22103-L Equity Inns - Homewood Suites (San Antonio) 16,661 NAP NAP
22103-M Equity Inns - Residence Inn (Tucson) 21,450 NAP NAP
22103-N Equity Inns - Residence Inn (Eagan) 26,159 NAP NAP
22103-O Equity Inns - Residence Inn (Tinton Falls) 18,915 NAP NAP
22103-P Equity Inns - Residence Inn (Portland) 42,619 NAP NAP
22103-Q Equity Inns - Hampton Inn (Northville) 17,869 NAP NAP
22103-R Equity Inns - Residence Inn (Princeton) 40,124 NAP NAP
22149 14th & Xxxx Street Parking Deck 31,627 No Lock/25_Defeasance/93_0%/2
22232 40 Corporate Center 65,408 No Lock/25_Defeasance/91_0%/4
22369 Delta Plaza Shopping Center 25,016 No Lock/26_Defeasance/87_0%/7
22393 Capital Title Building 23,940 No Lock/25_Defeasance/91_0%/4
00000 Xxx Xxxxxx Xxxxxxxxxx 12,689 No Lock/25_Defeasance/93_0%2
22649 For Eyes Optical 13,516 No Lock/25_Defeasance/103_0%/4
22669 Xxxxx Company of California 22,709 No Lock/25_Defeasance/91_0%/4
00000 Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxx 187,042 No Lock/25_Defeasance/91_0%/4
22760 Sheraton Cerritos 83,301 Yes Lock/47_Defeasance/71_0%/2
22788 Plaza Apartments 38,695 No Lock/25_Defeasance/91_0%/4
22868 Golden Books Industrial Building 112,782 No Lock/25_Defeasance/95_0%/0
22941 Heritage Office Building 54,876 No Lock/25_Defeasance/91_0%/4
23007 InteSys Technologies, Inc. 98,171 No Lock/25_Defeasance/91_0%/4
23226 Air Touch Building 103,681 No Lock/25_Defeasance/93_0%/2
23290 AmeriSuites - Irving 50,687 Yes Lock/48_Defeasance/70_0%/2
23294 Park West I Apartments 10,068 No Lock/25_Defeasance/91_0%/4
00000 Xxxxx Xxxxx Apartments 14,627 No Lock/25_Defeasance/91_0%/4
23492 One Corporate Plaza 45,934 No Lock/25_Defeasance/91_0%/4
23650 Columbus Park Apartments 105,552 No Lock/25_Defeasance/151_0%/4
23908 Tivoli Lakes Club Apartments 96,314 No Lock/25_Defeasance/93_0%/2
24117 Residence Inn - Foxborough 65,909 Yes Lock/47_Defeasance/71_0%/2
Broker
Loan Strip Credit
Number Name Loan Tenants
------ ---- ----- -------
19020 The Shops at Xxxxxxxxxx Xxxxxxxx Xxxxxx
00000 Xx. Xxxxxxxxx Xxxxx Apartments
19282 Pacific East Oriental ShoppingMall
20245 Xxxxxxxx Plaza
20656 Courtyard by Xxxxxxxx - Xxxxxxxxxx
00000 Preferred Freezer II
00000 Xxxxxxxx Xxxxx
22038 Santee Plaza
22102 Equity Inns - AmeriSuites (Indianapolis)
22103 Equity Inns Portfolio
22103-A Equity Inns - AmeriSuites (Overland Park)
22103-B Equity Inns - AmeriSuites (Columbus)
22103-C Equity Inns - AmeriSuites (Memphis)
22103-D Equity Inns - AmeriSuites (Xxxx Xxxxx)
22103-E Equity Inns - Hampton Inn (Overland Park)
22103-F Equity Inns - Hampton Inn (Kansas City)
22103-G Equity Inns - Hampton Inn (Memphis)
22103-H Equity Inns - Hampton Inn (Xxxxxxxxxx)
22103-I Equity Inns - Hampton Inn (Morgantown)
22103-J Equity Inns - Homewood Suites (Phoenix)
22103-K Equity Inns - Homewood Suites (Sharonville)
22103-L Equity Inns - Homewood Suites (San Antonio)
22103-M Equity Inns - Residence Inn (Tucson)
22103-N Equity Inns - Residence Inn (Eagan)
22103-O Equity Inns - Xxxxxxxxx Xxx (Xxxxxx Xxxxx)
00000-X Equity Inns - Residence Inn (Portland)
22103-Q Equity Inns - Xxxxxxx Xxx (Xxxxxxxxxx)
00000-X Equity Inns - Residence Inn (Princeton)
22149 14th & Xxxx Street Parking Deck
22232 40 Corporate Center
22369 Delta Plaza Shopping Center
22393 Capital Title Building
00000 Xxx Xxxxxx Xxxxxxxxxx
00000 For Eyes Optical
22669 Xxxxx Company of California
22671 Xxxxxxx Xxxxx Xxxx & Xxxx Xxxxx
00000 Xxxxxxxx Xxxxxxxx
22788 Plaza Apartments
22868 Golden Books Industrial Building
22941 Heritage Office Building
23007 InteSys Technologies, Inc.
23226 Air Touch Building
23290 AmeriSuites - Irving
23294 Park West I Apartments
23338 Xxxxx Point Apartments
23492 Xxx Xxxxxxxxx Xxxxx
00000 Xxxxxxxx Xxxx Apartments
23908 Tivoli Lakes Club Apartments
24117 Residence Inn - Foxborough
31 Loans 262,978,965
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the originator, without recourse,
either in blank or to the order of the Trustee in the following form: "Pay
to the order of Norwest Bank Minnesota, National Association, as trustee
for the registered holders of GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C3, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee
or, if none, by the originator, either in blank or in favor of the Trustee
(in such capacity);
(iv) the original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee
or, if none, by the originator, either in blank or in favor of the Trustee
(in such capacity), which assignment may be included as part of the
corresponding assignment of Mortgage referred to in clause (iii) above;
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to
the most recent assignee of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage) executed by the most
recent assignee of record thereof prior to the Trustee or, if none, by the
originator, either in blank or in favor of
B-1
the Trustee (in such capacity), which assignment may be included as part of
the corresponding assignment of Mortgage referred to in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon
if appropriate, in those instances where the terms or provisions of the
Mortgage, Mortgage Note or any related security document have been modified
or the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy,
together with all endorsements or riders (or copies thereof) that were
issued with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgaged Property;
(x) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan together with (A) if applicable, the
original or copies of any intervening assignments of such guaranty showing
a complete chain of assignment from the originator of the Mortgage Loan to
the most recent assignee thereof prior to the Trustee, if any, and (B) an
original assignment of such guaranty executed by the most recent assignee
thereof prior to the Trustee or, if none, by the originator;
(xi) (A) file or certified copies of any UCC financing statements and
continuation statements which were filed in order to perfect (and maintain
the perfection of) any security interest held by the originator of the
Mortgage Loan (and each assignee of record prior to the Trustee) in and to
the personalty of the mortgagor at the Mortgaged Property (in each case
with evidence of filing thereon) and which were in the possession of the
Seller (or its agent) at the time the Mortgage Files were delivered to the
Trustee and (B) if any such security interest is perfected and the earlier
UCC financing statements and continuation statements were in the possession
of the Seller, a UCC financing statement executed by the most recent
assignee of record prior to the Trustee or, if none, by the originator,
evidencing the transfer of such security interest, either in blank or in
favor of the Trustee;
(xii) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to above
was signed on behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
(xiv) if the Mortgage Loan is a Credit Lease Loan, an original of the
credit lease enhancement insurance policy, if any, obtained with respect to
such Mortgage Loan and an original of the residual value insurance policy,
if any, obtained with respect to such Mortgage Loan;
B-2
provided that, with respect to the Mortgage Loan subject to the Participation
Interest, the Mortgage File shall consist solely of an original executed
counterpart of the Participation Agreement which provides, inter alia, that the
Mortgage File shall be held by the custodian thereunder for the benefit of the
holders of the participation interests created thereunder; and provided,
further, 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. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B) may be in the form of one or more instruments in
recordable form in any applicable filing offices.
B-3
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the 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 C-1 hereto, that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer thereof
to the Purchaser, the Seller had good and marketable title to, and was the sole
owner and holder of, such Mortgage Loan (or, in the case of the Mortgage Loan
subject to a Participation Agreement, the related Participation Interest) free
and clear of any and all liens, encumbrances and other interests on, in or to
such Mortgage Loan or Participation Interest, (other than, in certain cases, the
right of a subservicer to directly service such Mortgage Loan). Such transfer
validly assigns ownership of such Mortgage Loan (or, in the case of the Mortgage
Loan subject to a Participation Agreement, the related Participation Interest)
to the Purchaser free and clear of any pledge, lien, encumbrance or security
interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right and
authority to sell, assign and transfer such Mortgage Loan. No provision of the
Mortgage Note, Mortgage or other loan document relating to such Mortgage Loan
prohibits or restricts the Seller's right to assign or transfer such Mortgage
Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such Mortgage
Loan set forth in the Mortgage Loan Schedule was true and correct in all
material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the Cut-off Date for
such Mortgage Loan, and has not been during the twelve-month period prior
thereto, 30 days or more delinquent in respect of any debt service payment
required thereunder, without giving effect to any applicable grace period.
(v) Permitted Encumbrances. The Permitted Encumbrances (as defined in the
Mortgage Loan Purchase Agreement of which this Exhibit C forms a part) do not
materially interfere with the security intended to be provided by the related
Mortgage, the current use or operation of the related Mortgaged Property or the
current ability of the Mortgaged Property to generate net operating income
sufficient to service the Mortgage Loan. If the Mortgaged Property is operated
as a nursing facility, a hospitality property or a multifamily property, the
Mortgage, together with any separate security agreement, similar agreement and
UCC financing statement, if any, establishes and creates a first priority,
perfected security interest (subject only to any prior purchase money security
interest), to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in all
personal property
C-1
owned by the Mortgagor that is used in, and is reasonably necessary to, the
operation of the related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). 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, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related 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 or, in the case of the Participation Loan, its holder, without the
consent of or notice to the insurer.
(vii) No Waivers by Seller of Material Defaults. The Seller has not waived
any material default, breach, violation or event of acceleration existing under
the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid offset,
defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of the
commencement of a proceeding for the condemnation of all or any material portion
of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage and all other
documents and instruments evidencing, guaranteeing, insuring or otherwise
securing such Mortgage Loan have been duly and properly executed by the parties
thereto, and each is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any
C-2
of the foregoing agreements and any applicable state anti-deficiency
legislation), enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws relating to or affecting the rights of
creditors generally and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged Property are
insured under an "all risk" insurance policy against loss by hazards of extended
coverage in an amount (subject to a customary deductible) at least equal to the
full insurable replacement cost of the improvements located on such Mortgaged
Property, which policy contains appropriate endorsements to avoid the
application of coinsurance and does not permit reduction in insurance proceeds
for depreciation. If any portion of the improvements upon the related Mortgaged
Property was, at the time of the origination of such Mortgage Loan, in a flood
zone area as identified in the Federal Register by the Federal Emergency
Management Agency as a 100 year flood zone or special hazard area, and flood
insurance was available, a flood insurance policy meeting any requirements of
the then current guidelines of the Federal Insurance Administration is in effect
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (1) the outstanding principal balance of
such Mortgage Loan, (2) the full insurable value of such Mortgaged Property, (3)
the maximum amount of insurance available under the National Flood Insurance Act
of 1968, as amended, or (4) 100% of the replacement cost of the improvements
located on such Mortgaged Property. In addition, the Mortgage requires the
Mortgagor to maintain in respect of the Mortgaged Property workers' compensation
insurance (if applicable), comprehensive general liability insurance in amounts
generally required by the Seller, and at least twelve months rental or business
interruption insurance, and all such insurance required by the Mortgage to be
maintained is in full force and effect. Each such insurance policy names the
holder of the Mortgage as an additional insured or contains a mortgagee
endorsement naming the holder of the Mortgage as loss payee and requires prior
notice to the holder of the Mortgage of termination or cancellation, and no such
notice has been received, including any notice of nonpayment of premiums, that
has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property was subject
to one or more environmental site assessments (or an update of a previously
conducted assessment), which was (were) performed on behalf of the Seller, or as
to which the related report was delivered to the Seller in connection with its
origination or acquisition of such Mortgage Loan; and the Seller, having made no
independent inquiry other than reviewing the resulting report(s) and/or
employing an environmental consultant to perform the assessment(s) referenced
herein, has no knowledge of any material and adverse environmental conditions or
circumstance affecting such Mortgaged Property that was not disclosed in the
related report(s). The Seller has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to any
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
C-3
not disclosed in the related report. The related Mortgage or loan documents in
the related Mortgage File requires the Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such Mortgage
Loan is not cross-collateralized with any mortgage loan that will not be
included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and the
Mortgage Note have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground rents,
assessments for improvements or other similar outstanding charges affecting the
related Mortgaged Property which are or may become a lien of priority equal to
or higher than the lien of the related Mortgage. For purposes of this
representation and warranty, real property taxes and assessments shall not be
considered unpaid until the date on which interest and/or penalties would be
payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except in the case of 4
Mortgage Loans as to which the interest of the related Mortgagor in the related
Mortgaged Property is in whole or in part a leasehold estate, the interest of
the related Mortgagor in the related Mortgaged Property consists of a fee simple
estate in real property.
(xix) Whole Loan. Except for the Participation Interest, each Mortgage Loan
is a whole loan and not a participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage referred to
in clause (iii) of Exhibit B constitutes the legal, valid and binding assignment
of such Mortgage from the relevant assignor to the Trustee. The Assignment of
Leases set forth in the Mortgage or separate from the related Mortgage and
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject only to Permitted Encumbrances,
enforceable first priority lien and first priority security interest in the
related Mortgagor's interest in all leases, subleases, 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, executed and
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 Assignment
of Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that are,
as of the Closing Date, required to be deposited with the mortgagee or its agent
have been so deposited.
C-4
(xxii) No Mechanics' or Materialmen's Liens. As of the date of origination
of such Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, the related Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens in the nature thereof which create a
lien prior to that created by the related Mortgage, except those which are
insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent (unless affirmatively covered by the title insurance referred to in
paragraph (vi) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel and/or other due diligence customarily performed
by the Seller, the improvements located on or forming part of such Mortgaged
Property comply in all material respects with applicable zoning laws and
ordinances (except to the extent that they may constitute legal non-conforming
uses).
(xxiv) Originator Authorized. To the extent required under applicable law
as of the Closing Date, the originator of such Mortgage Loan was authorized to
do business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent necessary to
ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. (A) To the Seller's knowledge, there exists no
material default, breach or event of acceleration under the related Mortgage or
Mortgage Note, and (B) the Seller has not received actual notice of any event
(other than payments due but not yet delinquent) that, with the passage of time
or with notice and the expiration of any grace or cure period, would constitute
such a material default, breach or event of acceleration; provided, however,
that this representation and warranty does not cover any default, breach or
event of acceleration that specifically pertains to any matter otherwise covered
or addressed by any other representation and warranty made by the Seller herein.
(xxvi) Inspection. In connection with the origination or acquisition of
each Mortgage Loan, the Seller inspected or caused to be inspected the Mortgaged
Property.
(xxvii) No Equity Participation or Contingent Interest. The Mortgage Loan
contains no equity participation by the lender, and does not provide for any
contingent or additional interest in the form of participation in the cash flow
of the related Mortgaged Property, or for negative amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan has, to the
Seller's knowledge, advanced funds or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for
C-5
the payment of any amount required by the Mortgage Loan (other than amounts paid
by the tenant as specifically provided under the related lease).
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor or operator of the related Mortgaged Property was in possession of all
material licenses, permits and authorizations required by applicable laws for
the ownership and operation of the related Mortgaged Property as it was then
operated.
(xxx) Servicing. The servicing and collection practices used with respect
to the Mortgage Loan have complied with applicable law in all material respects
and are consistent with the servicing standard set forth in Section 3.01(a) of
the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. The related Mortgage or Mortgage Note, together
with applicable state law, contains customary and enforceable provisions
(subject to the exceptions set forth in paragraph (xii)) such as to render the
rights and remedies of the holders thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage provides
that insurance proceeds and condemnation proceeds will be applied for one of the
following purposes: either to restore or repair the Mortgaged Property, or to
repay the principal of the Mortgage Loan, or otherwise at the option of the
holder of the Mortgage.
(xxxiii) LTV. The gross proceeds of such Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of the
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxxiii) shall be
made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of
C-6
the Code, it either (A) was modified as a result of the default or reasonably
foreseeable default of such Mortgage Loan or (B) satisfies the provisions of
either clause (A)(1) of paragraph (xxxiii) (substituting the date of the last
such modification for the date the Mortgage Loan was originated) or clause
(A)(2) of paragraph (xxxiii), including the proviso thereto.
(xxxv) Credit Lease Loans. With respect to each Mortgage Loan which is a
Credit Lease Loan:
(A) To the Seller's knowledge, each credit lease ("Credit Lease") contains
customary and enforceable provisions which render the rights and
remedies of the lessor thereunder adequate for the enforcement and
satisfaction of the lessor's rights thereunder;
(B) To the Seller's knowledge, in reliance on a tenant estoppel
certificate and representation made by the tenant under the Credit
Lease or representations made by the related borrower under the
Mortgage Loan Documents, as of the closing date of each Credit Lease
Loan (1) each Credit Lease was in full force and effect, and no
default by the borrower or the tenant has occurred under the Credit
Lease, nor is there any existing condition which, but for the passage
of time or the giving of notice, or both, would result in a default
under the terms of the Credit Lease, (2) none of the terms of the
Credit Lease have been impaired, waived, altered or modified in any
respect (except as described in the related tenant estoppel), (3) no
tenant has been released, in whole or in part, from its obligations
under the Credit Leases, (4) there is no right of rescission, offset,
abatement, diminution, defense or counterclaim to any Credit Lease,
nor will the operation of any of the terms of the Credit Leases, or
the exercise of any rights thereunder, render the Credit Lease
unenforceable, in whole or in part, or subject to any right of
rescission, offset, abatement, diminution, defense or counterclaim,
and no such right of rescission, offset, abatement, diminution,
defense or counterclaim has been asserted with respect thereto, and
(5) each Credit Lease has a term ending on or after the final maturity
of the related Credit Lease Loan;
(C) The Mortgaged Property is not subject to any lease other than the
related Credit Lease, no Person has any possessory interest in, or
right to occupy, the Mortgaged Property except under and pursuant to
such Credit Lease and the tenant under the related Credit Lease is in
occupancy of the Mortgaged Property;
(D) The lease payments under the related Credit Lease are sufficient to
pay the entire amount of scheduled interest and principal on the
Credit Lease Loan, subject to the rights of the Tenant to terminate
the Credit Lease or offset, xxxxx, suspend or otherwise diminish any
amounts payable by the tenant under the Credit Lease. Each Credit
Lease Loan either (i) fully amortizes over its original term and has
no "balloon" payment of rent due under the related Credit Lease or
(ii) is a Balloon Loan, for which a residual value insurance policy
has been obtained that
C-7
requires the payment of an amount at least equal to the Balloon
Payment due on the related Maturity Date;
(E) Under the terms of the Credit Leases, the lessee is not permitted to
assign its interest or obligations under the Credit Lease unless such
lessee remains fully liable thereunder;
(F) The mortgagee is entitled to notice of any event of default from the
tenant under Credit Leases;
(G) Each tenant under a Credit Lease is required to make all rental
payments directly to the mortgagee, its successors and assigns under
the related Credit Lease Loan;
(H) Each Credit Lease Loan provides that the related Credit Lease cannot
be modified without the consent of the mortgagees under the related
Credit Lease Loan;
(I) For each Credit Lease Loan under which a Credit Lease may be
terminated upon the occurrence of a casualty or condemnation, a lease
enhancement insurance policy has been obtained that requires upon such
termination the payment in full of: (a) the principal balance of the
loan and (b) all accrued and unpaid interest on the Mortgage Loan.
Under the Credit Lease for each Credit Lease Loan, upon the occurrence
of a casualty or condemnation, the tenant has no right of rent
abatement, except to the extent of coverage provided by the related
lease enhancement insurance policy; and
(J) The terms of any guaranty of the payment and performance obligations
of the tenant under any Credit Lease are unconditional and provide for
guaranty of payment and not of collection.
(xxxvi) Litigation. To the Seller's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the related Mortgagor or the related Mortgaged Property
that, if determined adversely to such Mortgagor or Mortgaged Property, would
materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple interest in real estate or the related Mortgage Loan is
secured in whole or in part by the interest of the Mortgagor as a lessee under a
ground lease of the Mortgaged Property (a "Ground Lease"). Any Mortgage Loan
that is secured by the interest of the Mortgagor under a Ground Lease may or may
not be secured by the related fee interest in such Mortgaged Property (the "Fee
Interest"). If a Mortgage Loan is secured in whole or in part by a Ground Lease,
either (1) the ground lessor's Fee Interest is subordinated to the lien of the
Mortgage or (2) the following apply to such Ground Lease:
C-8
(A) To the actual knowledge of the Seller, based on due diligence
customarily performed in the origination of comparable mortgage loans
by the Seller, such Ground Lease or a memorandum thereof has been or
will be duly recorded; such Ground Lease (or the related estoppel
letter or lender protection agreement between the Seller and related
lessor) permits the interest of the lessee thereunder to be encumbered
by the related Mortgage; and there has been no material change in the
payment terms of such Ground Lease since the origination of the
related Mortgage Loan, with the exception of material changes
reflected in written instruments that are a part of the related
Mortgage File;
(B) The lessee's interest in such Ground Lease is not subject to any liens
or encumbrances superior to, or of equal priority with, the related
Mortgage, other than the ground lessor's related fee interest and
Permitted Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by the Purchaser
and its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
(D) Such Ground Lease is in full force and effect, and the Seller has
received no notice that an event of default has occurred thereunder,
and, to the Seller's actual knowledge, there exists no condition that,
but for the passage of time or the giving of notice, or both, would
result in an event of default under the terms of such Ground Lease;
(E) Such Ground Lease, or an estoppel letter or other agreement, requires
the lessor under such Ground Lease to give notice of any default by
the lessee to the mortgagee under such Mortgage Loan, provided that
the mortgagee under such Mortgage Loan has provided the lessor with
notice of its lien in accordance with the provisions of such Ground
Lease, and such Ground Lease, or an estoppel letter or other
agreement, further provides that no notice of termination given under
such Ground Lease is effective against the mortgagee unless a copy has
been delivered to the mortgagee;
(F) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder
may terminate such Ground Lease;
C-9
(G) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than ten years
beyond the Stated Maturity Date of the related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds will be applied either to the
repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee under such Mortgage Loan or a trustee
appointed by it having the right to hold and disburse such proceeds as
the repair or restoration progresses (except in such cases where a
provision entitling another party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued
interest thereon;
(I) Such Ground Lease does not impose any restrictions on subletting which
would be viewed, as of the date of origination of the related Mortgage
Loan, as commercially unreasonable by the Seller; and such Ground
Lease contains a covenant that the lessor thereunder is not permitted,
in the absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any subtenant of the lessee, or in any
manner, which would materially adversely affect the security provided
by the related Mortgage; and
(J) Such Ground Lease, or an estoppel letter or other agreement, requires
the lessor to enter into a new lease in the event of a termination of
the Ground Lease by reason of a default by the Mortgagor under the
Ground Lease, including, rejection of the ground lease in a bankruptcy
proceeding.
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan, (b) release is conditioned upon the satisfaction
of certain underwriting and legal requirements and the payment of a release
price, or (c) a defeasance is affected in accordance with the Mortgage Loan
Documents, the related Mortgage Note or Mortgage does not require the holder
thereof to release all or any portion of the Mortgaged Property from the lien of
the related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the related Mortgaged
Property to be encumbered by any lien junior to or of equal priority with the
lien of the related Mortgage (excluding any lien relating to another Mortgage
Loan that is cross-collateralized with such
C-10
Mortgage Loan) without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor is not
a debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) Due Organization of Mortgagors. As of the date of origination of
each Mortgage, each related Mortgagor which is not a natural person was duly
organized and validly existing under the laws of the state of its jurisdiction.
(xliii) Due-On-Sale. The Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of such Mortgage Loan, the
related Mortgaged Property, or any controlling interest therein, is directly or
indirectly transferred or sold.
(xliv) Single Purpose Entity. As of the date of the origination of the
relevant Mortgage Loan, the related Mortgagor is an entity, other than an
individual, whose organizational documents or the related Mortgage Loan
Documents provide substantially to the effect that the Mortgagor: (A) is formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans, (B) may not engage in any
business unrelated to such Mortgaged Property or Mortgaged Properties, (C) does
not have any material assets other than those related to its interest in and
operation of such Mortgage Property or Mortgaged Properties, (D) may not incur
indebtedness other than as permitted by the related Mortgage or other Mortgage
Loan Documents, (E) has its own books and records separate and apart from any
other person, and (F) holds itself out as a legal entity, separate and apart
from any other person.
(xlv) Defeasance Provisions. Any Mortgage Loan which contains a provision
for any defeasance of mortgage collateral by the Mortgagor, either (A) requires
the consent of the holder of the Mortgage Loan to any defeasance, or (B) permits
defeasance (i) no earlier than two years after the Closing Date (as defined in
the Pooling and Servicing Agreement, dated as of September 1, 1999), (ii) only
with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. ss. 1.860G-2(a)(8)(i), and (iii) only to facilitate the
disposition of mortgage real property and not as a part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
(xlvi) [Reserved]
It is understood and agreed that the representations and warranties set
forth in this Exhibit C 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.
C-11
SCHEDULE C-1 to EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
(xxxvii) Leasehold Estate
The following Mortgage loan(s) are secured in whole or in part by the
interest of the borrower as a lessee under a Ground Lease.
(H) The Ground Lease contains a covenant that the lessor is not
permitted in the absence of an uncured default to disturb the
quiet possession, interest or quiet enjoyment of any subtenant of
the lessee.
Loan Number Property Issue
----------- -------- -----
22127 Equity Inns- Homewood The ground lease does not
Phoenix address that the lessor may
not disturb the subtenant in
the absence of an uncured
default.
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF AN OFFICER OF THE SELLER
Certificate of Officer of GMAC Commercial Mortgage Corporation ("GMACCM")
I, ________________, a __________________ of GMACCM (the "Seller"), hereby
certify as follows:
The Seller is a corporation duly organized and validly existing under the
laws of the State of California.
Attached hereto as Exhibit I are true and correct copies of the Certificate
of Incorporation and By-Laws of the Seller, which Certificate of Incorporation
and By-Laws are on the date hereof, and have been at all times in full force and
effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Seller and his genuine signature is set
forth opposite his name:
Name Office Signature
---- ------ ---------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of August 26, 1999
(the "Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Seller of the Mortgage Loans, was, at the respective
times of such signing and delivery, duly authorized or appointed to execute such
documents in such capacity, and the signatures of such persons or facsimiles
thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
Exhibit D - Page 1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
____________, 1999.
By:
----------------------------------
Name:
Title:
I, [name], [title], hereby certify that ___________________________________
is a duly elected or appointed, as the case may be, qualified and acting
_________________________________ of the Seller and that the signature appearing
above is [his] genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
____________, 1999.
By:
----------------------------------
Name:
Title:
Exhibit D - Page 2
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of GMAC Commercial Mortgage Corporation
In connection with the execution and delivery by GMAC Commercial Mortgage
Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
August 26, 1999 (the "Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. and the Seller, the Seller hereby certifies that (i) the
representations and warranties of the 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 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 _________, 1999.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:
----------------------------------
Name:
Title:
Exhibit D-2 - Page 1
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
September 14, 1999
To: Persons on Annex A
Re: GMAC Commercial Mortgage Securities, Inc.
Mortgage Pass-Through Certificates, Series 1999-C3
Ladies and Gentlemen:
I am General Counsel to GMAC Commercial Mortgage Corporation (the "Seller"
or "GMACCM"). In that capacity, I am familiar with the issuance of certain
Mortgage Pass-Through Certificates, Series 1999-C3 (the "Certificates"),
evidencing undivided interests in a trust fund (the "Trust Fund") consisting
primarily of certain mortgage loans (the "Mortgage Loans"), pursuant to a
Pooling and Servicing Agreement, dated as of September 1, 1999 (the "Pooling and
Servicing Agreement"), among GMAC Commercial Mortgage Securities, Inc. (the
"Company") as depositor, the Seller as master servicer and special servicer, and
Norwest Bank Minnesota, National Association, as trustee (the "Trustee").
Certain of the Mortgage Loans were purchased by the Company from the
Seller, pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of August 26, 1999 (the "GMACCM Mortgage Loan
Purchase Agreement"), between the Company and the Seller. Certain of the
Mortgage Loans were purchased by the Company from Column Financial, Inc.
("Column") pursuant to, and for the consideration described in, the Mortgage
Loan Purchase Agreement, dated as of August 26, 1999 (the "Column Mortgage Loan
Purchase Agreement") between the Company and Column. Certain of the Mortgage
Loans will be purchased by the Company from German American Capital Corporation
("GACC"), pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of August 26, 1999 (the "GACC Mortgage Loan
Purchase Agreement"), between the Company and GACC. Certain of the Mortgage
Loans will be purchased by the Company from Xxxxxxx Xxxxx Mortgage Company
("GSMC"), pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of August 26, 1999 (the "GSMC Mortgage Loan
Purchase Agreement"), between the Company and GSMC. Certain of the Mortgage
Loans will be purchased by the Company from GACC, pursuant to, and for the
consideration described in, the Mortgage Loan Purchase Agreement, dated as of
August 26, 1999 (the "GACC Mortgage Loan Purchase Agreement"), between the
Company and GACC. Certain of the Mortgage Loans will be purchased by the Company
from GSMC, pursuant to, and for the consideration described in, the Mortgage
Loan Purchase Agreement, dated as of August 26, 1999 (the "GSMC Mortgage Loan
Purchase Agreement"), between the Company and GACC. The Pooling and Servicing
Agreement and the GMACCM Mortgage Loan Purchase Agreement are referred to herein
Exhibit D-3A - Page 1
together as the "Agreements." Capitalized terms not defined herein have the
meanings set forth in the Agreements. This opinion is rendered pursuant to
Section 8(e) of the GMACCM Mortgage Loan Purchase Agreement.
The Company has sold the Class A-1-a, Class A-1-b, Class A-2, Class B,
Class C, Class D, Class E and Class F Certificates to Deutsche Bank Securities
Inc. and Xxxxxxx, Sachs & Co., as the underwriters (the "Underwriters") named in
the Underwriting Agreement, dated as of August 26, 1999 (the "Underwriting
Agreement"), among the Company, the Seller, and the Underwriters. The Company
sold the Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class
R-I, Class R-II and Class R-III Certificates to the Underwriters and the G2
Opportunity Fund LP pursuant to two Certificate Purchase Agreements, each dated
as of August 26, 1999 (the "Certificate Purchase Agreements"), between the
Company and the Underwriters and the G2 Opportunity Fund LP.
In connection with rendering this opinion letter, I have examined or have
caused persons under my supervision to examine the Agreements and such other
records and other documents as I have deemed necessary. I have further assumed
that there is not and will not be any other agreement that materially
supplements or otherwise modifies the agreements expressed in the Agreements. As
to matters of fact, I have examined and relied upon representations of parties
contained in the Agreements and, where I have deemed appropriate,
representations and certifications of officers of the Company, the Seller, the
Trustee, other transaction participants or public officials. I have assumed the
authenticity of all documents submitted to me as originals, the genuineness of
all signatures other than officers of the Seller and the conformity to the
originals of all documents submitted to me as copies. I have assumed that all
parties, except for the Company and the Seller, had the corporate power and
authority to enter into and perform all obligations thereunder. As to such
parties, I also have assumed the due authorization by all requisite corporate
action, the due execution and delivery and the enforceability of such documents.
I have further assumed the conformity of the Mortgage Loans and related
documents to the requirements of the Agreements.
In rendering this opinion letter, I do not express any opinion concerning
any law other than the law of the Commonwealth of Pennsylvania, the General
Corporation Law of the State of Delaware and the federal law of the United
States, and I do not express any opinion concerning the application of the
"doing business" laws or the securities laws of any jurisdiction other than the
federal securities laws of the United States. To the extent that any of the
matters upon which I am opining herein are governed by laws ("Other Laws") other
than the laws identified in the preceding sentence, I have assumed with your
permission and without independent verification or investigation as to the
reasonableness of such assumption, that such Other Laws and judicial
interpretation thereof do not vary in any respect material to this opinion from
the corresponding laws of the Commonwealth of Pennsylvania and judicial
interpretations thereof. I do not express any opinion on any issue not expressly
addressed below.
Based upon the foregoing, I am of the opinion that:
Exhibit D-3A - Page 2
1. Each of the Agreements has been duly and validly authorized, executed
and delivered by the Seller and, upon due authorization, execution and delivery
by the other parties thereto, will constitute the valid, legal and binding
agreements of the Seller, enforceable against the Seller in accordance with
their terms, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the rights of creditors, (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law, and
(iii) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of the Agreements which purport to provide indemnification with
respect to securities law violations.
2. No consent, approval, authorization or order of a Commonwealth of
Pennsylvania or federal court or governmental agency or body is required for the
consummation by the Seller of the transactions contemplated by the terms of the
Agreements, except for those consents, approvals, authorizations or orders which
previously have been obtained.
3. Neither the consummation of any of the transactions contemplated by, nor
the fulfillment by the Seller of any other of the terms of, the Agreements, will
result in a material breach of any term or provision of the charter or bylaws of
the Seller or any Commonwealth of Pennsylvania or federal statute or regulation
or conflict with, result in a material breach, violation or acceleration of or
constitute a material default under the terms of any indenture or other material
agreement or instrument to which the Seller is a party or by which it is bound
or any order or regulation of any Commonwealth of Pennsylvania or federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Seller.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity, except Xxxxx, Xxxxx & Xxxxx, is entitled
to rely hereon without prior written consent. Copies of this opinion letter may
not be furnished to any other person or entity, nor may any portion of this
opinion letter be quoted, circulated or referred to in any other document
without my prior written consent.
Very truly yours,
Xxxxx Xxxxxxx-Xxxx
General Counsel
Exhibit D-3A - Page 3
Annex A
GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
Deutsche Bank Securities Inc.
Xxxxxxx, Xxxxx & Co.
Fitch IBCA, Inc.
Xxxxx'x Investors Services, Inc.
Norwest Bank Minnesota, National Association
Annex A-1
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
Form of Opinion of Xxxxx, Xxxxx & Xxxxx
September 14, 1999
GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
Deutsche Bank Securities Inc.
Xxxxxxx, Sachs & Co.
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 1999-C3
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as special
counsel to GMAC Commercial Mortgage Corporation ("GMACCM"), pursuant to Section
8(e) of the Mortgage Loan Purchase Agreement, dated August 26, 1999 (the "GMACCM
Mortgage Loan Purchase Agreement"), between GMAC Commercial Mortgage Securities,
Inc. (the "Purchaser") and GMACCM as the Seller, (in such capacity the
"Seller"), relating to the sale by the Seller of certain mortgage loans (the
"GMACCM Mortgage Loans"), and relating to the Certificates sold pursuant to the
Underwriting Agreement, dated as of August 26, 1999 (the "Underwriting
Agreement"), between the Purchaser and Deutsche Bank Securities Inc. and
Xxxxxxx, Xxxxx & Co, and issued under the Pooling and Servicing Agreement, dated
as of September 1, 1999, among GMACCM as special servicer and master servicer
(in such respective capacities, the "Special Servicer" and the "Master
Servicer"), the Purchaser, as depositor, and Norwest Bank Minnesota, National
Association, as trustee (the "Pooling and Servicing Agreement" and together with
the GMACCM Mortgage Loan Purchase Agreement, the "Agreements"). Capitalized
terms not otherwise defined herein have the meanings assigned to them in the
Agreements.
In connection with the transactions described above, certain mortgage loans
(the "GACC Warehouse Mortgage Loans") were sold to the Purchaser by German
American Capital Corporation ("GACC"), pursuant to the Mortgage Loan Purchase
Agreement, dated as of August 26, 1999 (the "GACC Warehouse Mortgage Loan
Purchase Agreement"), between the Purchaser and GACC, certain other mortgage
loans (the "GSMC Warehouse Mortgage
Exhibit D-3B - Page 1
Loans") were sold to the Purchaser by Xxxxxxx Sachs Mortgage Company("GSMC"),
pursuant to the Mortgage Loan Purchase Agreement, dated as of August 26, 1999
(the "GSMC Warehouse Mortgage Loan Purchase Agreement"), between the Purchaser
and GSMC, and certain other mortgage loans (the "Column Warehouse Mortgage
Loans") were sold to the Purchaser by Column Financial, Inc. ("Column"),
pursuant to the Mortgage Loan Purchase Agreement, dated as of August 26, 1999
(the "Column Warehouse Mortgage Loan Purchase Agreement"), between the Purchaser
and Column. Certain other mortgage loans (the "GACC Mortgage Loans") were sold
to the Purchaser by GACC, pursuant to the Mortgage Loan Purchase Agreement,
dated as of August 26, 1999 (the "GACC Mortgage Loan Purchase Agreement"),
between the Purchaser and GACC, and certain other mortgage loans (the "GSMC
Mortgage Loans") were sold to the Purchaser by GSMC, pursuant to the Mortgage
Loan Purchase Agreement, dated as of August 26, 1999 (the "GSMC Mortgage Loan
Purchaser Agreement"), between the Purchaser and GSMC.
In rendering this opinion, we have examined and relied upon executed copies
of the Agreements and originals or copies, certified or otherwise identified to
our satisfaction, of such certificates and other documents as we have deemed
appropriate for the purposes of rendering this opinion. We have examined and
relied upon, among other things, the documents and opinions delivered to you at
the closing being held today relating to the Certificates, as well as (a) the
Prospectus and the Memorandum, (b) an executed copy of each of the GACC
Warehouse Mortgage Loan Purchase Agreement, the GMACCM Mortgage Loan Purchase
Agreement, the GSMC Warehouse Mortgage Loan Purchase Agreement, the Column
Warehouse Mortgage Loan Purchase Agreement, the GACC Mortgage Loan Purchase
Agreement and the GSMC Mortgage Loan Purchase Agreement and (c) an executed copy
of the Pooling and Servicing Agreement.
In conducting our examination, we have assumed, without investigation, the
legal capacity of all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents. We have,
with your permission, also relied upon the opinions of even date herewith of
Xxxxx Xxxxxxx-Xxxx, Esq., General Counsel to GMACCM, and Xxxxxxxx & Werson,
special California counsel to GMACCM, addressed to you. As to any facts material
to the opinions expressed herein which were not independently established or
verified, we have relied upon oral or written statements and representations of
officers and other representatives of GMACCM and others.
We are members of the bar of the State of New York and do not purport to be
experts on or to express any opinion herein concerning any laws other than the
laws of the State of New York and the federal laws of the United States of
America. We express no opinion herein as to the laws of any other jurisdiction.
Based upon the matters stated herein and upon such investigation as we have
deemed necessary, we are of the opinion that the Agreements have been duly
authorized, executed and
Exhibit D-3B - Page 2
delivered by GMACCM and, upon due authorization, execution and delivery by the
Purchaser, will each constitute a valid, legal and binding agreement of GMACCM,
enforceable against GMACCM in accordance with its respective terms, except as
enforceability may be limited by (a) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws relating to or
affecting the enforcement of creditors rights generally and (b) general
principles of equity, whether enforcement is sought in a proceeding in equity or
at law.
In rendering the opinions expressed above, we express no opinion regarding
any severability provision in the Agreements or regarding the legal, valid and
binding effect or the enforceability of any indemnification provision in the
Agreements to the extent that any such provisions may be deemed to cover matters
under the federal securities laws. The opinions expressed above are subject to
the further qualification that certain of the remedial provisions in the
Agreements may be limited or rendered ineffective or unenforceable in whole or
in part under the laws of the State of New York (but the inclusion of such
provisions does not make the remedies provided by the Agreements inadequate for
the practical realization of the rights and benefits purported to be provided
thereby, except for the economic consequences of procedural or other delay).
We have not ourselves checked the accuracy or completeness of, or otherwise
independently verified, the information furnished with respect to the Prospectus
Supplement or the Memorandum. In addition, as you are aware, with limited
exception, we did not examine or review the Mortgage Files although we did
review the asset summaries (the "GMACCM Asset Summaries") furnished and prepared
by GMACCM with respect to the GMACCM Mortgage Loans sold under the GMACCM
Mortgage Loan Purchase Agreement, the GACC Warehouse Mortgage Loans sold under
the GACC Warehouse Mortgage Loan Purchase Agreement, the GSMC Warehouse Mortgage
Loans sold under the GSMC Warehouse Mortgage Loan Purchase Agreement and the
Column Warehouse Mortgage Loans sold under the Column Warehouse Mortgage Loan
Purchase Agreement (collectively, the "Mortgage Loans"). We did not, however,
check the accuracy or completeness of or otherwise independently verify the
information contained in the GMACCM Asset Summaries. Moreover, we note that we
were advised by GMACCM in connection with our review of the GMACCM Asset
Summaries that such GMACCM Asset Summaries were summaries only, and in certain
instances being continually updated and corrected and were not intended to be
relied on for a complete legal description of each GMACCM Mortgage Loan.
In the course of the preparation by the Purchaser of the Prospectus
Supplement and the Memorandum, we have participated in conferences with certain
officers of GMACCM, the Purchaser, counsel to the Purchaser and your
representatives, during which the contents of the Prospectus Supplement and the
Memorandum and related matters were discussed and, at your request we have
reviewed the information contained in the Prospectus Supplement (other than the
information presented in tabular form) under the headings "Summary -- The
Mortgage Pool," "--Geographic Concentration," "--Property Type," "--Call
Protection," "--Payment Terms," "Risk Factors" and/or "Description of the
Mortgage Pool" relating to GMACCM, the
Exhibit D-3B - Page 3
Purchaser and the Mortgage Loans (collectively, the "Selected Information"). On
the basis of the discussions and limited review referred to above, although we
are not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Prospectus
Supplement and the Memorandum, and without independent check or verification of
the Selected Information except as stated, no facts have come to our attention
that have caused us to believe that the Selected Information set forth in either
the Prospectus Supplement or the Memorandum (other than financial and
statistical data included or not included therein or incorporated by reference
therein, as to which we express no opinion), as of its issue date, contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Whenever our opinion with respect to the existence or absence of facts is
indicated to be based on our knowledge or awareness, we are referring to the
actual knowledge of the Xxxxx, Xxxxx & Xxxxx attorneys who have represented you
in connection with the transactions contemplated by the Agreements. Except as
expressly set forth herein, we have not undertaken any independent investigation
to determine the existence or absence of such facts and no inference as to our
knowledge concerning such facts should be drawn from the fact that such
representation has been undertaken by us.
This letter is limited to the specific issues addressed herein and the
opinion rendered above is limited in all respects to laws and facts existing on
the date hereof. By rendering this opinion, we do not undertake to advise you
with respect to any other matter or of any change in such laws or facts or in
the interpretations of such laws which may occur after the date hereof.
We are furnishing this opinion to you solely for your benefit. This opinion
is not to be used, circulated, quoted or otherwise referred to for any other
purpose, except that the persons listed on Exhibit A hereto may rely upon this
opinion in connection with their rating of the Certificates to the same extent
as if this opinion had been addressed to them.
Very truly yours,
Xxxxx, Xxxxx & Xxxxx
Exhibit D-3B - Page 4
