[EXECUTION COPY]
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of December 21, 2004 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.,
as Mortgage Loan Seller (the "Mortgage Loan Seller" or "MSMC"), and GMAC
Commercial Mortgage Securities, Inc., as purchaser (the "Purchaser").
The Mortgage Loan Seller desires to sell, assign, transfer and
otherwise convey to the Purchaser, and the Purchaser desires to purchase,
subject to the terms and conditions set forth below, the multifamily and
commercial mortgage loans (the "Mortgage Loans") identified on the schedule
annexed hereto as Exhibit A (the "Mortgage Loan Schedule"). Certain other
multifamily and commercial mortgage loans (the "Other Mortgage Loans") will be
purchased by the Purchaser from (i) GMAC Commercial Mortgage Corporation
("GMACCM"), pursuant to, and for the consideration described in, the Mortgage
Loan Purchase Agreement, dated as of December 21, 2004 , between the Purchaser
and GMACCM, and (ii) German American Capital Corporation ("GACC"), pursuant to,
and for the consideration described in, the Mortgage Loan Purchase Agreement,
dated as of December 21, 2004, between the Purchaser and GACC. The Mortgage Loan
Seller, GMACCM and GACC, are collectively referred to as the "Mortgage Loan
Sellers."
The Mortgage Loan Seller will purchase one of the Mortgage Loans, the
Univision Tower Loan identified as Control No. 3 on the Mortgage Loan Schedule
(the "Univision Tower Loan") from Countrywide Commercial Real Estate Finance,
Inc. ("Countrywide") pursuant to a Mortgage Loan Purchase Agreement, dated as of
December 21, 2004 between the Mortgage Loan Seller and Countrywide (the
"Countrywide Mortgage Loan Purchase Agreement").
It is expected that the Mortgage Loans will be transferred, together
with the Other Mortgage Loans, to a trust fund (the "Trust Fund") to be formed
by the Purchaser, beneficial ownership of which will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Fitch Ratings, Inc. and Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of December 1, 2004
(the "Pooling and Servicing Agreement"), among the Purchaser, as depositor, GMAC
Commercial Mortgage Corporation, as master servicer (in such capacity, the
"Master Servicer") and serviced whole loan paying agent, GMAC Commercial
Mortgage Corporation, as special servicer (in such capacity, the "Special
Servicer") and ▇▇▇▇▇ Fargo, N.A., as trustee (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, Class A-1A, Class A-2,
Class A-3, Class A-4, Class A-AB, Class A-5, Class X-2, Class A-J, Class B,
Class C and Class D Certificates to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Deutsche
Bank Securities Inc., GMAC Commercial
Holding Capital Markets Corp. and ▇▇▇▇▇▇▇, Sachs & Co. (together, the
"Underwriters"), pursuant to an underwriting agreement dated the date hereof
(the "Underwriting Agreement"). The Purchaser intends to sell the Class X-1,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P and Class Q Certificates to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
and Deutsche Bank Securities Inc. (in such capacity, each an "Initial
Purchaser"), pursuant to a certificate purchase agreement, dated the date hereof
(the "Certificate Purchase Agreement"). The Purchaser intends to sell the Class
R-I, Class R-II and Class R-III Certificates to a Qualified Institutional Buyer
(in such capacity, an "Initial Purchaser"). The Class X-1, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class Q, Class R-I, Class R-II and Class R-III Certificates are collectively
referred to as the "Non-Registered Certificates."
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Mortgage Loan Seller agrees to sell, assign, transfer and otherwise
convey to the Purchaser, and the Purchaser agrees to purchase, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on December
21, 2004 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 December 2004. As of the close of
business on their respective Cut-off Dates, 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 $405,853,894.77, subject to a variance of plus or
minus 5%. The purchase price for the Mortgage Loans shall be determined by the
parties pursuant to an agreed upon term sheet.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the
Mortgage Loan Seller of the purchase price referred to in Section 1 hereof
(exclusive of any applicable holdback for transaction expenses), the Mortgage
Loan Seller does hereby sell, transfer, assign, set over, and otherwise convey
to the Purchaser, without recourse, all the right, title and interest of the
Mortgage Loan Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including all interest and principal received or
receivable by the Mortgage Loan Seller on or with respect to the Mortgage Loans
after the Cut-off Date for each such Mortgage Loan, together with all of the
Mortgage Loan Seller's right, title and interest in and to the proceeds of any
related title, hazard or other insurance policies and any escrow, 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 Mortgage Loan
Seller, the Mortgage Loan Seller shall deliver or cause to be delivered to or at
the direction of the Purchaser) all scheduled payments of principal and interest
due on the Mortgage Loans after the Cut-off Date for such 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 Mortgage Loan Seller.
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In addition, the Mortgage Loan Seller assigns to the Purchaser the enforcement
right that it has under Section 6 of the Countrywide Mortgage Loan Purchase
Agreement.
(b) In connection with the Mortgage Loan Seller's assignment pursuant
to subsection (a) above, the Mortgage Loan Seller acknowledges that the
Depositor has directed the Mortgage Loan Seller, and the Mortgage Loan Seller
hereby agrees, to deliver the Mortgage File (as such term is defined in the
Pooling and Servicing Agreement) to the Trustee, and otherwise comply with the
requirements of Sections 2.01(b), 2.01(c) and 2.01(d) of the Pooling and
Servicing Agreement, provided that whenever the term Mortgage File is used to
refer to documents actually received by the Purchaser or the Trustee, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received; provided, that with
respect to the Univision Tower Loan, pursuant to Section 2(b) of the Countrywide
Mortgage Loan Purchase Agreement, Countrywide and not the Mortgage Loan Seller
shall be required to deliver the documents in the Mortgage File related to such
Mortgage Loan to the Trustee and to otherwise comply with the requirements of
Sections 2.01(b), 2.01(c) and 2.01(d) of the Pooling and Servicing Agreement.
(c) The Mortgage Loan 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 Mortgage Loan Seller shall reasonably cooperate with any
examination of the Mortgage Files and Servicing Files that may be undertaken by
or on behalf of the Purchaser. The fact that the Purchaser has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
and/or Servicing Files shall not affect the Purchaser's right to pursue any
remedy available in equity or at law for a breach of the Mortgage Loan Seller's
representations, warranties and covenants set forth in or contemplated by
Section 4.
SECTION 4. Representations, Warranties and Covenants of the Mortgage
Loan Seller.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date (or
as of such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser and its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit B
with respect to the Mortgage Loans (other than the Univision Tower Loan), with
such changes or modifications as may be permitted or required by the Rating
Agencies. With respect to the Univision Tower Loan, Countrywide has made each of
the representations and warranties set forth in Exhibit B to the Countrywide
Mortgage Loan Purchase Agreement, all of which are hereby assigned by the
Mortgage Loan Seller to the Purchaser.
(b) In addition, the Mortgage Loan Seller, as of the date hereof,
hereby represents and warrants to, and covenants with, the Purchaser that:
(i) The Mortgage Loan Seller is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
New York, and is in compliance with the laws of each State in which any
Mortgaged Property is located to the
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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
Mortgage Loan Seller, and the performance and compliance with the terms
of this Agreement by the Mortgage Loan Seller, will not violate the
Mortgage Loan Seller's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, in each case which materially
and adversely affect the ability of the Mortgage Loan Seller to carry
out the transactions contemplated by this Agreement.
(iii) The Mortgage Loan Seller has the full power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the
Mortgage Loan Seller in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally,
(B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law, and (C)
public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of this Agreement that purport to provide
indemnification for securities laws liabilities.
(v) The Mortgage Loan Seller is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Mortgage
Loan Seller's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Mortgage Loan Seller
to perform its obligations under this Agreement or the financial
condition of the Mortgage Loan Seller.
(vi) No litigation is pending with regard to which the
Mortgage Loan Seller has received service of process or, to the best of
the Mortgage Loan Seller's knowledge, threatened against the Mortgage
Loan Seller the outcome of which, in the Mortgage Loan Seller's good
faith and reasonable judgment, could reasonably be expected to prohibit
the Mortgage Loan Seller from entering into this Agreement or
materially and adversely affect the ability of the Mortgage Loan Seller
to perform its obligations under this Agreement.
(vii) The Mortgage Loan Seller has not dealt with any broker,
investment banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers and their respective affiliates,
that may be entitled to any commission or
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compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the other transactions contemplated hereby.
(viii) Neither the Mortgage Loan 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 Mortgage Loan Seller will not act, nor
has it authorized or will it authorize any person to act, in any manner
set forth in the foregoing sentence with respect to any of the
Certificates or interests therein. For purposes of this paragraph
4(b)(viii), the term "similar security" shall be deemed to include,
without limitation, any security evidencing or, upon issuance, that
would have evidenced an interest in the Mortgage Loans or the Other
Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the
information set forth on the pages between A-20 and A-24, 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 (other
than the Houston Center Whole Loan (as defined in the Prospectus
Supplement)), the Mortgaged Properties related thereto and/or the
Mortgage Loan 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 of Series 2004-C3
Transaction--The Mortgage Pool," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment or Call
Protection Provided by the Mortgage Loans," "--Payment Terms of the
Mortgage Loans," "Risk Factors" and "Description of the Mortgage Pool,"
set forth on Annex A to the Prospectus Supplement and (to the extent it
contains information consistent with that on such Annex A) set forth on
the Diskette, does not contain any untrue statement of a material fact
or (in the case of the Memorandum, when read together with the other
information specified therein as being available for review by
investors) omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. Insofar as it relates to the Houston Center Whole
Loan and the Mortgaged Property related thereto and does not represent
a restatement or aggregation of the information on the Loan Detail, the
information set forth in the Prospectus Supplement and the Memorandum
under the headings "Summary of Series
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2004-C3 Transaction--The Mortgage Pool," "--Geographic Concentrations
of the Mortgaged Properties," "--Property Types," "--Prepayment or Call
Protection Provided by the Mortgage Loans," "--Payment Terms of the
Mortgage Loans," "Risk Factors," "Description of the Mortgage Pool,"
the second sentence of the third paragraph in "--Sale of Defaulted
Mortgage Loans," the tenth paragraph in "Description of the
Certificates--Subordination; Allocation of Losses and Expenses," the
last sentence of the fifteenth paragraph in "Description of the
Certificates--P&I and Servicing Advances" and the ninth paragraph in
"--Appraisal Reductions" or as set forth in Annex A and/or under the
heading "Houston Center" in Annex B to the Prospectus Supplement
(provided, that with respect to the information set forth in the second
sentence of the third paragraph in "--Sale of Defaulted Mortgage
Loans," the tenth paragraph in "Description of the
Certificates--Subordination; Allocation of Losses and Expenses," the
last sentence of the fifteenth paragraph in "Description of the
Certificates--P&I and Servicing Advances" and the ninth paragraph in
"--Appraisal Reductions," only such portions that solely relate to the
intercreditor agreement of the Houston Center Whole Loan) and (to the
extent it contains information consistent with that on such Annex A) 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 Mortgage Loan Seller with this Agreement, or the
consummation by the Mortgage Loan Seller of any transaction
contemplated hereby, other than (1) the filing or recording of
financing statements, instruments of assignment and other similar
documents necessary in connection with Mortgage Loan Seller's sale of
the Mortgage 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
Mortgage Loan Seller under this Agreement.
(xi) Upon discovery by any of the parties hereto of a breach
of any of the representations and warranties made pursuant to and set
forth in subsection (b) above which materially and adversely affects
the interests of the Purchaser or a breach of any of the
representations and warranties made pursuant to subsection (a) above
and set forth in Exhibit B which materially and adversely affects the
value of any Mortgage Loan (other than the Univision Tower Loan) or the
interests therein of the Purchaser or its successors and assigns
(including, without limitation the Trustee and the holders of the
Certificates), the party discovering such breach shall give prompt
written notice to the other party hereto.
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SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Mortgage Loan Seller, constitutes a valid, legal and
binding obligation of the Purchaser, enforceable against the Purchaser
in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would
prohibit the Purchaser from entering into this Agreement or, in the
Purchaser's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the
Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Mortgage Loan Seller, the
Underwriters, the Initial Purchasers and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
transactions contemplated hereby.
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(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Mortgage Loan Seller, the party
discovering such breach shall give prompt written notice to the other party
hereto.
SECTION 6. Repurchases.
Other than with respect to the Univision Tower Loan, the Mortgage Loan
Seller hereby agrees to comply with Sections 2.02 and 2.03 of the Pooling and
Servicing Agreement, including, but not limited to, any obligation to repurchase
or substitute Mortgage Loans in respect of any Material Breach or Material
Document Defect. With respect to the Univision Tower Loan, pursuant to Section 6
of the Countrywide Mortgage Loan Purchase Agreement, Countrywide and not the
Mortgage Loan Seller shall be required to comply with Sections 2.02 and 2.03 of
the Pooling and Servicing Agreement as it relates to the Univision Tower Loan,
including, but not limited to, any obligation to repurchase or substitute the
Univision Tower Loan in respect of any Material Breach or Material Document
Defect. Pursuant to Section 2(a), the Mortgage Loan Seller assigns its right to
enforce Countrywide's obligation under Section 6 of the Countrywide Mortgage
Loan Purchase Agreement to the Purchaser, who may assign such rights to the
Trust Fund.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage
Loan Seller specified herein shall be true and correct as of the
Closing Date and the Aggregate Cut-off Date Balance shall be within the
range permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and reasonably acceptable
to the Purchaser, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
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(iii) The Mortgage Loan Seller shall have delivered and
released to the Trustee, the Purchaser or the Purchaser's designee, as
the case may be, all documents and funds required to be so delivered
pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its sole
determination;
(v) All other terms and conditions of this Agreement required
to be complied with on or before the Closing Date shall have been
complied with, and the Mortgage Loan Seller shall have the ability to
comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the Closing
Date;
(vi) The Mortgage Loan Seller shall have paid or agreed to pay
all fees, costs and expenses payable by it to the Purchaser pursuant to
this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage 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 Mortgage Loan Seller;
(b) An Officer's Certificate substantially in the form of
Exhibit C-1 hereto, executed by the Secretary or an assistant secretary
of the Mortgage Loan Seller, and dated the Closing Date, and upon which
the Purchaser and each Underwriter may rely, attaching thereto as
exhibits the organizational documents of the Mortgage Loan Seller;
(c) A certificate of good standing regarding the Mortgage Loan
Seller from the Secretary of State for the State of New York, dated not
earlier than 30 days prior to the Closing Date;
(d) A certificate of the Mortgage Loan Seller substantially in
the form of Exhibit C-2 hereto, executed by an executive officer or
authorized signatory of the Mortgage Loan Seller and dated the Closing
Date, and upon which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan Seller,
in a form reasonably acceptable to counsel for the Purchaser and
subject to such reasonable assumptions and qualifications as may be
requested by counsel for the Mortgage Loan
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Seller and acceptable to counsel for the Purchaser, dated the Closing
Date and addressed to the Purchaser and each Underwriter;
(f) Any other opinions of counsel for the Mortgage Loan Seller
reasonably requested by the Rating Agencies in connection with the
issuance of the Certificates, each of which shall include the Purchaser
and each Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Indemnification.
(a) The Mortgage Loan Seller agrees to indemnify and hold harmless the
Purchaser, its officers and directors and each person, if any, who controls the
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus Supplement, the Memorandum, the Diskette, any Asset Summary (as
defined hereinafter) 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, ABS Term Sheets or any Asset Summary, 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 contained in the Loan Detail
or, to the extent consistent therewith, the Diskette or contained in the Term
Sheet Diskette, to the extent consistent with the Term Sheet Master Tape; or
(ii) any such untrue statement or alleged untrue statement or omission or
alleged omission is with respect to information regarding the Mortgage Loan
Seller, the Mortgage Loans (other than the Houston Center Whole Loan (as defined
in the Prospectus Supplement)) or the Mortgaged Properties related thereto
contained in the Prospectus Supplement or the Memorandum under the headings
"Summary of Series 2004-C3 Transaction--The Mortgage Pool," "--Geographic
Concentrations of the Mortgaged Properties," "--Property Types," "--Prepayment
or Call Protection Provided by the Mortgage Loans," "--Payment Terms of the
Mortgage Loans," "Risk Factors" and/or "Description of the Mortgage Pool" or
contained on Annex A and/or Annex B 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) any such
untrue statement or alleged untrue statement or omission or alleged omission is
with respect to information regarding the Houston Center Whole Loan (as defined
in the Prospectus Supplement) and the Mortgaged Properties related thereto
contained in the Prospectus Supplement or the Memorandum under the
-10-
headings "Summary of Series 2004-C3 Transaction--The Mortgage Pool,"
"--Geographic Concentrations of the Mortgaged Properties," "--Property Types,"
"--Prepayment or Call Protection Provided by the Mortgage Loans," "--Payment
Terms of the Mortgage Loans," "Risk Factors," "Description of the Mortgage
Pool," the second sentence of the third paragraph in "--Sale of Defaulted
Mortgage Loans," the tenth paragraph in "Description of the
Certificates--Subordination; Allocation of Losses and Expenses," the last
sentence of the fifteenth paragraph in "Description of the Certificates--P&I and
Servicing Advances" and the ninth paragraph in "--Appraisal Reductions" or
contained on Annex A and/or Annex B to the Prospectus Supplement (exclusive of
the Loan Detail) (provided, that with respect to the information in provided,
that with respect to the information set forth in the second sentence of the
third paragraph in "--Sale of Defaulted Mortgage Loans," the tenth paragraph in
"Description of the Certificates--Subordination; Allocation of Losses and
Expenses," the last sentence of the fifteenth paragraph in "Description of the
Certificates--P&I and Servicing Advances" and the ninth paragraph in
"--Appraisal Reductions," only such portions that solely relate to the
intercreditor agreement of the Houston Center Whole Loan) and such information
does not represent a restatement or aggregation of information contained in the
Loan Detail; (iv) such untrue statement, alleged untrue statement, omission or
alleged omission arises out of or is based upon a breach of the representations
and warranties of the Mortgage Loan Seller set forth in or made pursuant to
Section 4; or (v) any untrue statement or alleged untrue statement arises out of
or is with respect to any Asset Summary and such untrue statement or alleged
untrue statement does not relate to information from a Third Party Report,
except to the extent that any such information provided in reliance upon a Third
Party Report is misstated in such Asset Summary; provided, that the
indemnification provided by this Section 9 shall not apply to the extent that
such untrue statement of a material fact or omission of a material fact
necessary to make the statements made, in light of the circumstances in which
they were made, not misleading, was made as a result of an error in the
manipulation of, or calculations based upon, the Loan Detail. This indemnity
agreement will be in addition to any liability which the Mortgage Loan Seller
may otherwise have.
"Registration Statement" shall mean the registration statement No.
333-115244 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 May 26, 2004, as supplemented by the prospectus
supplement dated December 7, 2004 (the "Prospectus Supplement"), relating to the
Registered Certificates; "Memorandum" shall mean the private placement
memorandum dated December 7, 2004, 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 ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated and ▇▇▇▇▇▇
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 "▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
Letters, the "No-Action Letters"). The mortgage loan information and information
related thereto contained on the diskette attached to any ABS Term Sheets or
Computational Materials is referred to herein as the "Term Sheet Diskette" and
the tape provided by the Mortgage Loan Seller that was used to create the Term
Sheet Diskette is
-11-
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. As used herein "Asset Summary" shall mean any summary of
features of such Mortgage Loan and the related Mortgaged Property prepared by or
on behalf of the Mortgage Loan Seller that were delivered to any investor of the
Private Certificates; "Third Party Report" shall mean appraisals, market
studies, environmental, accounting, engineering and other reports, studies or
surveys concerning any of the Mortgage Loans or related Mortgaged Properties.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Mortgage Loan Seller (the "indemnifying
party") under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission to notify the indemnifying party will not
relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 9. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election to assume the
defense of such action and approval by the indemnified party of counsel, which
approval will not be unreasonably withheld, the indemnifying party will not be
liable for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof, unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Purchaser and the
indemnifying party, representing all the indemnified parties under Section 9(a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of
the action, or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall only be
in respect of the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or
-12-
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 Mortgage Loan Seller agree that it would not
be just and equitable if contribution pursuant to Section 9(c) were determined
by pro rata allocation or by any other method of allocation that does not take
account of the considerations referred to in Section 9(c) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in this Section 9 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 9, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party will be ultimately
obligated to pay such expenses. If any expenses so paid by the indemnifying
party are subsequently determined to not be required to be borne by the
indemnifying party hereunder, the party that received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
9 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne
by the respective parties hereto.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Structured Finance
Manager, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter be furnished to the Mortgage Loan Seller in writing by the
Purchaser; and if to the Mortgage Loan Seller, addressed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., 1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇ and a copy to
▇▇▇▇▇▇▇ ▇.
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Quinn, Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇ or to such
other address or facsimile number as the Mortgage Loan Seller may designate in
writing to the Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Mortgage Loan Seller set forth in Section 9 of this
Agreement. It is acknowledged and agreed that such covenants and indemnities may
be enforced by or on behalf of any such person or entity against the Mortgage
Loan Seller to the same extent as if it was a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Mortgage Loan Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
-14-
SECTION 17. Further Assurances.
The Mortgage Loan Seller and the Purchaser agree to execute and deliver
such instruments and take such further actions as the other party may, from time
to time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Mortgage Loan Seller under this
Agreement shall not be assigned by the Mortgage Loan Seller without the prior
written consent of the Purchaser, except that any person into which the Mortgage
Loan Seller may be merged or consolidated, or any corporation or other entity
resulting from any merger, conversion or consolidation to which the Mortgage
Loan Seller is a party, or any person succeeding to all or substantially all of
the business of the Mortgage Loan Seller, shall be the successor to the Mortgage
Loan Seller hereunder. The Purchaser has the right to assign its interest under
this Agreement, in whole or in part, as may be required to effect the purposes
of the Pooling and Servicing Agreement, and the assignee shall, to the extent of
such assignment, succeed to the rights and obligations hereunder of the
Purchaser. Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser and
their permitted successors and assigns and the indemnified parties referred to
in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified
or in any way altered, unless such amendment, waiver, modification or alteration
is in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
-15-
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have
caused their names to be signed hereto by their respective duly authorized
officers as of the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE
CAPITAL INC.
By:
------------------------------------
Name:
Title:
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By:
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
See attached spreadsheet.
A-1
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Mortgage Loan Seller hereby
represents and warrants, as of the date hereinbelow specified or, if no such
date is specified, as of the Closing Date, except as set forth on Schedule B-1
hereto, that:
1) Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule is complete, true and correct in all material
respects as of the date of this Agreement and as of the Cut-off Date.
2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan
is a whole loan and not a participation interest in a mortgage loan.
Immediately prior to the transfer to the Purchaser of the Mortgage
Loans, the Seller had good title to, and was the sole owner of, each
Mortgage Loan. The Seller has full right, power and authority to
transfer and assign each of the Mortgage Loans to or at the direction
of the Purchaser and has validly and effectively conveyed (or caused to
be conveyed) to the Purchaser or its designee all of the Seller's legal
and beneficial interest in and to the Mortgage Loans free and clear of
any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its
designee does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained.
3) Payment Record. No scheduled payment of principal and
interest under any Mortgage Loan was 30 days or more past due as of the
Cut-off Date, and no Mortgage Loan was 30 days or more delinquent in
the twelve-month period immediately preceding the Cut-off Date.
4) Lien; Valid Assignment. The Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid
and, subject to the exceptions set forth in paragraph 13 below,
enforceable first priority lien upon the related Mortgaged Property,
prior to all other liens and encumbrances, except for (a) the lien for
current real estate taxes and assessments not yet due and payable, (b)
covenants, conditions and restrictions, rights of way, easements and
other matters that are of public record and/or are referred to in the
related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d)
other matters to which like properties are commonly subject, none of
which matters referred to in clauses (b), (c) or (d), individually or
in the aggregate, materially interferes with the security intended to
be provided by such Mortgage, the marketability or current use of the
Mortgaged Property or the current ability of the Mortgaged Property to
generate operating income sufficient to service the Mortgage Loan debt,
and (e) if such Mortgage Loan is cross-collateralized with any other
Mortgage Loan, the lien of the Mortgage for such other Mortgage Loan
(the foregoing items (a) through (e) being herein referred to as the
"Permitted Encumbrances"). The related assignment of such Mortgage
executed and
B-1
delivered in favor of the Trustee is in recordable form and constitutes
a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any
separate security agreements, chattel mortgages or equivalent
instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security
interest in favor of the holder thereof in all of the related
Mortgagor's personal property used in, and reasonably necessary to
operate, the related Mortgaged Property. In the case of a Mortgaged
Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a
prudent mortgage lender making a similar Mortgage Loan would deem
reasonably necessary to operate the related Mortgaged Property as it is
currently being operated. A Uniform Commercial Code financing statement
has been filed and/or recorded in all places necessary to perfect a
valid security interest in such personal property, to the extent a
security interest may be so created therein, and such security interest
is a first priority security interest, subject to any prior purchase
money security interest in such personal property and any personal
property leases applicable to such personal property. Notwithstanding
the foregoing, no representation is made as to the perfection of any
security interest in rents or other personal property to the extent
that possession or control of such items or actions other than the
filing of Uniform Commercial Code financing statements are required in
order to effect such perfection.
5) Assignment of Leases and Rents. The Assignment of Leases
related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority
lien and first priority security interest in the related Mortgagor's
interest in all leases, sub-leases, licenses or other agreements
pursuant to which any person is entitled to occupy, use or possess all
or any portion of the real property subject to the related Mortgage,
and each assignor thereunder has the full right to assign the same. The
related assignment of any Assignment of Leases not included in a
Mortgage has been executed and delivered in favor of the Trustee and is
in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of
the assignor's right, title and interest in, to and under such
Assignment of Leases.
6) Mortgage Status; Waivers and Modifications. No Mortgage has
been satisfied, cancelled, rescinded or subordinated in whole or in
part, and the related Mortgaged Property has not been released from the
lien of such Mortgage, in whole or in part (except for partial
reconveyances of real property that are set forth on Schedule B-1 to
this Exhibit B), nor has any instrument been executed that would effect
any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects
the value of the related Mortgaged Property. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired,
waived, altered or modified in any respect, except by written
instruments, all of which are included in the related Mortgage File.
7) Condition of Property; Condemnation. (i) With respect to
the Mortgaged Properties securing the Mortgage Loans that were the
subject of an engineering report within 18 months prior to the Cut-off
Date as set forth on Schedule B-1 to this Exhibit B,
B-2
each Mortgaged Property is, to the Seller's knowledge, free and clear
of any damage (or adequate reserves therefor have been established)
that would materially and adversely affect its value as security for
the related Mortgage Loan, and (ii) with respect to the Mortgaged
Properties securing the Mortgage Loans that were not the subject of an
engineering report within 18 months prior to the Cut-off Date as set
forth on Schedule B-1 to this Exhibit B, each Mortgaged Property is in
good repair and condition and all building systems contained therein
are in good working order (or adequate reserves therefor have been
established) and each Mortgaged Property is free of structural defects,
in each case, that would materially and adversely affect its value as
security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for
the condemnation of all or any material portion of any Mortgaged
Property. To the Seller's knowledge (based on surveys and/or title
insurance obtained in connection with the origination of the Mortgage
Loans), as of the date of the origination of each Mortgage Loan, all of
the material improvements on the related Mortgaged Property that were
considered in determining the appraised value of the Mortgaged Property
lay wholly within the boundaries and building restriction lines of such
property, except for encroachments that are insured against by the
lender's title insurance policy referred to herein or that do not
materially and adversely affect the value or marketability of such
Mortgaged Property, and no improvements on adjoining properties
materially encroached upon such Mortgaged Property so as to materially
and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the
Title Policy referred to herein.
8) Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's
title insurance policy or a marked-up title insurance commitment (on
which the required premium has been paid) which evidences such title
insurance policy (the "Title Policy") in the original principal amount
of the related Mortgage Loan after all advances of principal. Each
Title Policy insures that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all
premiums thereon have been paid, and no material claims have been made
thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, 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 without the consent of or notice to the insurer. To the
Seller's knowledge, the insurer issuing such Title Policy is qualified
to do business in the jurisdiction in which the related Mortgaged
Property is located.
9) No Holdbacks. The proceeds of each Mortgage Loan have been
fully disbursed and there is no obligation for future advances with
respect thereto. With respect to each Mortgage Loan, any and all
requirements as to completion of any on-site or off-site improvement
and as to disbursements of any funds escrowed for such purpose that
were to have been complied with on or before the Closing Date have been
complied with, or any such funds so escrowed have not been released.
B-3
10) Mortgage Provisions. The Mortgage Note or Mortgage for
each Mortgage Loan, together with applicable state law, contains
customary and enforceable provisions (subject to the exceptions set
forth in paragraph 13) such as to render the rights and remedies of the
holder thereof adequate for the practical realization against the
related Mortgaged Property of the principal benefits of the security
intended to be provided thereby.
11) Trustee under Deed of Trust. If any Mortgage is a deed of
trust, (i) a trustee, duly qualified under applicable law to serve as
such, is properly designated and serving under such Mortgage, and (ii)
no fees or expenses are payable to such trustee by the Seller, the
Purchaser or any transferee thereof except in connection with a
trustee's sale after default by the related Mortgagor or in connection
with any full or partial release of the related Mortgaged Property or
related security for the related Mortgage Loan.
12) Environmental Conditions.
i) With respect to the Mortgaged Properties securing
the Mortgage Loans that were the subject of an environmental
site assessment within 18 months prior to the Cut-off Date as
set forth on Schedule B-1 to this Exhibit B, an environmental
site assessment or an update of a previous such report, was
performed with respect to each Mortgaged Property in
connection with the origination or the sale of the related
Mortgage Loan, a report of each such assessment (or the most
recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser,
and the Seller has no knowledge of any material and adverse
environmental condition or circumstance affecting any
Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all
applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of
a material and adverse environmental condition or circumstance
affecting any Mortgaged Property, (i) a party not related to
the Mortgagor was identified as the responsible party for such
condition or circumstance, or (ii) environmental insurance
covering such condition was obtained or must be maintained
until the condition is remediated, or (iii) the related
Mortgagor was required either to provide additional security
that was deemed to be sufficient by the originator in light of
the circumstances and/or to establish an operations and
maintenance plan. In the case of each Mortgage Loan set forth
on Schedule B-1 to this Exhibit B, (i) such Mortgage Loan is
the subject of a Secured Creditor Impaired Property Policy,
issued by the issuer set forth on Schedule B-1 (the "Policy
Issuer") and effective as of the date thereof (the
"Environmental Insurance Policy"), (ii) the Environmental
Insurance Policy is in full force and effect, (iii)(a) a
property condition or engineering report was prepared with
respect to lead based paint ("LBP"), asbestos containing
materials ("ACM") and radon gas ("RG") at each related
Mortgaged Property, and (b) if such report disclosed the
existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting the related
Mortgaged Property, the related Mortgagor (A) was required to
remediate the identified condition prior to closing the
Mortgage Loan or provide additional security, or
B-4
establish with the lender a reserve from loan proceeds, in an
amount deemed to be sufficient by the Seller for the
remediation of the problem and/or (B) agreed in the Mortgage
Loan documents to establish an operations and maintenance plan
after the closing of the Mortgage Loan, (iv) on the effective
date of the Environmental Insurance Policy, Seller as
originator had no knowledge of any material and adverse
environmental condition or circumstance affecting the
Mortgaged Property (other than the existence of LBP, ACM or
RG) that was not disclosed to the Policy Issuer in one or more
of the following: (a) the application for insurance, (b) a
borrower questionnaire that was provided to the Policy Issuer
or (c) an engineering or other report provided to the Policy
Issuer, and (v) the premium of any Environmental Insurance
Policy has been paid through the maturity of the policy's term
and the term of such policy extends at least five years beyond
the maturity of the Mortgage Loan.
ii) With respect to the Mortgaged Properties securing
the Mortgage Loans that were not the subject of an
environmental site assessment within 18 months prior to the
Cut-off Date as set forth on Schedule B-1 to this Exhibit B,
(i) no Hazardous Material is present on such Mortgaged
Property such that (1) the value of such Mortgaged Property is
materially and adversely affected or (2) under applicable
federal, state or local law, (a) such Hazardous Material could
be required to be eliminated at a cost materially and
adversely affecting the value of the Mortgaged Property before
such Mortgaged Property could be altered, renovated,
demolished or transferred, or (b) the presence of such
Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material
or the hazard created thereby at a cost materially and
adversely affecting the value of the Mortgaged Property, and
(ii) such Mortgaged Property is in material compliance with
all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse
effect on the value of such Mortgaged Property, and neither
Seller nor, to Seller's knowledge, the related Mortgagor or
any current tenant thereon, has received any notice of
violation or potential violation of any such law.
iii) "Hazardous Materials" means gasoline, petroleum
products, explosives, radioactive materials, polychlorinated
biphenyls or related or similar materials and any other
substance or material as may be defined as a hazardous or
toxic substance by any federal, state or local environmental
law, ordinance, rule, regulation or order, including without
limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C.
▇▇.▇▇. 9601 et seq.), the Hazardous Materials Transportation
Act as amended (42 U.S.C. ▇▇.▇▇. 6901 et seq.), the Federal
Water Pollution Control Act as amended (33 U.S.C. ▇▇.▇▇. 1251
et seq.), the Clean Air Act (42 U.S.C. ▇▇.▇▇. 1251 et seq.)
and any regulations promulgated pursuant thereto.
B-5
13) Loan Document Status. Each Mortgage Note, Mortgage and
other agreement that evidences or secures such Mortgage Loan and was
executed by or on behalf of the related Mortgagor is the legal, valid
and binding obligation of the maker thereof (subject to any
non-recourse provisions contained in any of the foregoing agreements
and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding
in equity or at law) and there is no valid defense, counterclaim or
right of offset or rescission available to the related Mortgagor with
respect to such Mortgage Note, Mortgage or other agreement.
14) Insurance. Each Mortgaged Property is, and is required
pursuant to the related Mortgage to be, insured by (a) a fire and
extended perils insurance policy providing coverage against loss or
damage sustained by reason of fire, lightning, windstorm, hail,
explosion, riot, riot attending a strike, civil commotion, aircraft,
vehicles and smoke, and, to the extent required as of the date of
origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks
insured against by persons operating like properties in the locality of
the Mortgaged Property in an amount not less than the lesser of the
principal balance of the related Mortgage Loan and the replacement cost
of the Mortgaged Property, and contains no provisions for a deduction
for depreciation, and not less than the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged
Property; (b) a business interruption or rental loss insurance policy,
in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of
buildings or other structures on the Mortgaged Property are located in
an area identified by the Federal Emergency Management Agency as having
special flood hazards and the Federal Emergency Management Agency
requires flood insurance to be maintained); and (d) a comprehensive
general liability insurance policy in amounts as are generally required
by commercial mortgage lenders, and in any event not less than $1
million per occurrence. Such insurance policy contains a standard
mortgagee clause that names the mortgagee as an additional insured in
the case of liability insurance policies and as a loss payee in the
case of property insurance policies and requires prior notice to the
holder of the Mortgage of termination or cancellation. No such notice
has been received, including any notice of nonpayment of premiums, that
has not been cured. Each Mortgage obligates the related Mortgagor to
maintain all such insurance and, upon such Mortgagor's failure to do
so, authorizes the holder of the Mortgage to maintain such insurance at
the Mortgagor's cost and expense and to seek reimbursement therefor
from such Mortgagor. Each Mortgage provides that casualty insurance
proceeds will be applied (a) to the restoration or repair of the
related Mortgaged Property, (b) to the restoration or repair of the
related Mortgaged Property, with any excess insurance proceeds after
restoration or repair being paid to the Mortgagor, or (c) to the
reduction of the principal amount of the Mortgage Loan.
15) Taxes and Assessments. As of the Closing Date, there are
no delinquent or unpaid taxes, assessments (including assessments
payable in future installments) or other outstanding charges affecting
any Mortgaged Property that are or may become a
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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 or penalties would be first payable thereon.
16) Mortgagor Bankruptcy. No Mortgaged Property, nor any
portion thereof is the subject of, and no Mortgagor under a Mortgage
loan is, a debtor in any state or federal bankruptcy or insolvency or
similar proceeding.
17) Leasehold Estate. Each Mortgaged Property consists of a
fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee
under a ground lease of a Mortgaged Property (a "Ground Lease"), by the
related Mortgagor's interest in the Ground Lease but not by the related
fee interest in such Mortgaged Property (the "Fee Interest"), and as to
such Ground Leases:
i) 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) does not prohibit the current use
of the Mortgaged Property and does not prohibit 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;
ii) 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 Permitted
Encumbrances;
iii) 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 or if such lessor's consent
is required it cannot be unreasonably withheld;
iv) Such Ground Lease is in full force and effect,
and the Ground Lease provides that no material amendment to
such Ground Lease is binding on a mortgagee unless the
mortgagee has consented thereto, and the Seller has received
no notice that an event of default has occurred thereunder,
and, to the Seller's 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;
v) Such Ground Lease or an estoppel letter or other
agreement, (A) requires the lessor under such Ground Lease to
give notice of any default by the
B-7
lessee to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is
effective against the holder of the Mortgage unless a copy of
such notice has been delivered to such holder and the lessor
has offered or is required to enter into a new lease with such
holder on terms that do not materially vary from the economic
terms of the Ground Lease.
vi) A mortgagee 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;
vii) Such Ground Lease has an original term
(including any extension options set forth therein) which
extends not less than twenty years beyond the Stated Maturity
Date of the related Mortgage Loan;
viii) Under the terms of such Ground Lease and the
related Mortgage, taken together, any related insurance
proceeds or condemnation award awarded to the holder of the
ground lease interest will be applied either (A) to the repair
or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by the
related Mortgage having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in
such cases where a provision entitling a third party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (B)
to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon;
ix) Such Ground Lease does not impose any
restrictions on subletting which would be viewed as
commercially unreasonable by prudent commercial mortgage
lenders lending on a similar Mortgaged Property in the lending
area where the Mortgaged Property is located; 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 the lessee
thereunder for any reason, or in any manner, which would
materially adversely affect the security provided by the
related Mortgage; and
x) Such Ground Lease requires the Lessor to enter
into a new lease upon termination of such Ground Lease if the
Ground Lease is rejected in a bankruptcy proceeding.
18) Escrow Deposits. All escrow deposits and payments relating
to each Mortgage Loan that are, as of the Closing Date, required to be
deposited or paid have been so deposited or paid.
19) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and
Treasury regulation section 1.860G-2(a), and the related Mortgaged
Property, if acquired in connection with the
B-8
default or imminent default of such Mortgage Loan, would constitute
"foreclosure property" within the meaning of Section 860G(a)(8)
(without regard to Section 856(e)(4) of the Code).
20) [Reserved]
21) Advancement of Funds by the Seller. No holder of a
Mortgage Loan has advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of
any amount required by such Mortgage Loan.
22) No Mechanics' Liens. Each Mortgaged Property is free and
clear of any and all mechanics' and materialmen's liens that are prior
or equal to the lien of the related Mortgage, and no rights are
outstanding that under law could give rise to any such lien that would
be prior or equal to the lien of the related Mortgage except, in each
case, for liens insured against by the Title Policy referred to herein.
23) Compliance with Usury Laws. Each Mortgage Loan complied
with all applicable usury laws in effect at its date of origination.
24) Cross-collateralization. Except as set forth on Schedule
B-1 to this Exhibit B, no Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage
Loans.
25) Releases of Mortgaged Property. Except as described in the
next sentence, no Mortgage Note or Mortgage requires the mortgagee to
release all or any material portion of the related Mortgaged Property
that was included in the appraisal for such Mortgaged Property, and/or
generates income from the lien of the related Mortgage except upon
payment in full of all amounts due under the related Mortgage Loan or
in connection with the defeasance provisions of the related Note and
Mortgage. The Mortgages relating to those Mortgage Loans identified on
Schedule B-1 hereto require the mortgagee to grant releases of portions
of the related Mortgaged Properties upon (a) the satisfaction of
certain legal and underwriting requirements and/or (b) the payment of a
release price and prepayment consideration in connection therewith.
Except as described in the first sentence hereof and for those Mortgage
Loans identified on Schedule B-1 hereto, no Mortgage Loan permits the
full or partial release or substitution of collateral unless the
mortgagee or servicer can require the Borrower to provide an opinion of
tax counsel to the effect that such release or substitution of
collateral (a) would not constitute a "significant modification" of
such Mortgage Loan within the meaning of Treas. Reg. ss.1.1001-3 and
(b) would not cause such Mortgage Loan to fail to be a "qualified
mortgage" within the meaning of Section 860G(a)(3)(A) of the Code.
26) No Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the lender or
provides for negative amortization (except that the ARD Loan may
provide for the accrual of interest at an increased rate after the
Anticipated Repayment Date) or for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property.
B-9
27) No Material Default. There exists no material Event of
Default, breach, violation or event of acceleration (and, to the
Seller's actual knowledge, no event which, with the passage of time or
the giving of notice, or both, would constitute any of the foregoing)
under the documents evidencing or securing the Mortgage Loan, in any
such case to the extent the same materially and adversely affects the
value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not
address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise covered
by any other representation and warranty made by the Seller in any of
paragraphs 3, 7, 12, 14, 15, 16 and 17 of this Exhibit B.
28) Inspections. The Seller (or if the Seller is not the
originator, the originator of the Mortgage Loan) has inspected or
caused to be inspected each Mortgaged Property in connection with the
origination of the related Mortgage Loan.
29) Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area
where the Mortgaged Property is located, the improvements located on or
forming part of each Mortgaged Property comply with applicable zoning
laws and ordinances, or constitute a legal non-conforming use or
structure or, if any such improvement does not so comply, such
non-compliance does not materially and adversely affect the value of
the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of
the related Mortgage Loan by the Seller hereunder.
30) Junior Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any lien (other than a
Permitted Encumbrance) junior to or of equal priority with the lien of
the related Mortgage without the prior written consent of the holder
thereof or the satisfaction of debt service coverage or similar
criteria specified therein. The Seller has no knowledge that any of the
Mortgaged Properties is encumbered by any lien junior to the lien of
the related Mortgage.
31) Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan,
Mortgagor or related Mortgaged Property that might adversely affect
title to the Mortgaged Property or the validity or enforceability of
the related Mortgage that might materially and adversely affect the
value of the Mortgaged Property as security for the Mortgage Loan or
the use for which the premises were intended.
32) Servicing. The servicing and collection practices used by
the Seller or any prior holder or servicer of each Mortgage Loan have
been in all material respects legal, proper and prudent and have met
customary industry standards.
33) Licenses and Permits. To the Seller's knowledge, based on
due diligence that it customarily performs in the origination of
comparable mortgage loans, as of the date of origination of each
Mortgage Loan or as of the date of the sale of the related Mortgage
Loan by the Seller hereunder, the related Mortgagor was in possession
of all
B-10
material licenses, permits and franchises required by applicable law
for the ownership and operation of the related Mortgaged Property as it
was then operated.
34) Assisted Living Facility Regulation. If the Mortgaged
Property is operated as an assisted living facility, to the Seller's
knowledge (a) the related Mortgagor is in compliance in all material
respects with all federal and state laws applicable to the use and
operation of the related Mortgaged Property, and (b) if the operator of
the Mortgaged Property participates in Medicare or Medicaid programs,
the facility is in compliance in all material respects with the
requirements for participation in such programs.
35) Collateral in Trust. The Mortgage Note for each Mortgage
Loan is not secured by a pledge of any collateral that has not been
assigned to the Purchaser.
36) Due on Sale. Each Mortgage Loan contains a "due on sale"
clause, which provides for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan if, without prior written
consent of the holder of the Mortgage, the property subject to the
Mortgage or any material portion thereof, or a controlling interest in
the related Mortgagor, is transferred, sold or encumbered; provided,
however, that certain Mortgage Loans provide a mechanism for the
assumption of the loan by a third party upon the Mortgagor's
satisfaction of certain conditions precedent, and upon payment of a
transfer fee, if any, or transfer of interests in the Mortgagor or
constituent entities of the Mortgagor to a third party or parties
related to the Mortgagor upon the Mortgagor's satisfaction of certain
conditions precedent.
37) Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-off Date Principal Balance in excess of $10 million, was, as
of the origination of the Mortgage Loan, a Single Purpose Entity. For
this purpose, a "Single Purpose Entity" shall mean an entity, other
than an individual, whose organizational documents provide
substantially to the effect that it was formed or organized solely for
the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in
any business unrelated to such Mortgaged Property or Properties and
whose organizational documents further provide, or which entity
represented in the related Mortgage Loan documents, substantially to
the effect that it does not have any assets other than those related to
its interest in and operation of such Mortgaged Property or Properties,
or any indebtedness other than as permitted by the related Mortgage(s)
or the other related Mortgage Loan documents, that it has its own books
and records and accounts separate and apart from any other person
(other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage
Loan), and that it holds itself out as a legal entity, separate and
apart from any other person.
38) Non-Recourse Exceptions. The Mortgage Loan documents for
each Mortgage Loan provide that such Mortgage Loan constitutes either
(a) the recourse obligations of at least one natural person or (b) the
non-recourse obligations of the related Mortgagor, provided that at
least one natural person (and the Mortgagor if the Mortgagor is not a
natural person) is liable to the holder of the Mortgage Loan for
damages arising
B-11
in the case of fraud or willful misrepresentation by the Mortgagor,
misappropriation of rents, insurance proceeds or condemnation awards
and breaches of the environmental covenants in the Mortgage Loan
documents.
39) Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the
payment of all reasonable costs and expenses of the lender incurred in
connection with the defeasance of such Mortgage Loan and the release of
the related Mortgaged Property, and the borrower is required to pay all
reasonable costs and expenses of the lender associated with the
approval of an assumption of such Mortgage Loan.
40) Defeasance. No Mortgage Loan provides that it can be
defeased until the date that is more than two years after the Closing
Date or provides that it can be defeased with any property other than
government securities (as defined in Section 2(a)(16) of the Investment
Company Act of 1940, as amended) or any direct non-callable security
issued or guaranteed as to principal or interest by the United States.
41) Prepayment Premiums. As of the applicable date of
origination of each such Mortgage Loan, any prepayment premiums and
yield maintenance charges payable under the terms of the Mortgage
Loans, in respect of voluntary prepayments, constituted customary
prepayment premiums and yield maintenance charges for commercial
mortgage loans.
42) [Reserved]
For purposes of these representations and warranties, the phrases "to
the knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan Seller's
knowledge" shall mean (except where otherwise expressly set forth below) the
actual state of knowledge of the Mortgage Loan Seller (i) after the Mortgage
Loan Seller's having conducted such inquiry and due diligence into such matters
as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Mortgage Loan Seller's underwriting standards, at the time of the Mortgage
Loan Seller's origination or acquisition of the particular Mortgage Loan; and
(ii) subsequent to such origination, utilizing the monitoring practices
customarily utilized by prudent commercial or multifamily, as applicable,
mortgage lenders with respect to securitizable commercial or multifamily, as
applicable, mortgage loans, including inquiry with a representative of the loan
servicer designated as the party responsible for the knowledge of the servicer
pertaining to the Mortgage Loans. Also for purposes of these representations and
warranties, the phrases "to the actual knowledge of the Mortgage Loan Seller" or
"to the Mortgage Loan Seller's actual knowledge" shall mean (except where
otherwise expressly set forth below) the actual state of knowledge of the
Mortgage Loan Seller without any express or implied obligation to make inquiry.
All information contained in the documents included in the definition of
Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Mortgage Loan Seller, to
the extent that the Mortgage Loan Seller or its closing counsel or custodian, if
any, has reviewed or had possession of such document at any time. For purposes
of these representations and warranties, to the extent that any representation
or warranty is qualified by the Mortgage Loan Seller's knowledge with respect to
the contents of the Mortgage Note,
B-12
Mortgage, lender's title policy and any letters of credit or Ground Leases, if
such document is not included in the Mortgage File, the Mortgage Loan Seller
shall make such representation or warranty without any such qualification.
Wherever there is a reference in a representation or warranty to receipt by, or
possession of, the Mortgage Loan Seller of any information or documents, or to
any action taken by the Mortgage Loan Seller or to any action which has not been
taken by the Mortgage Loan Seller or its agents or employees, such reference
shall include the receipt or possession of such information or documents by, or
the taking of such action or the not taking such action by, the Mortgage Loan
Seller. For purposes of these representations and warranties, when referring to
the conduct of "reasonable prudent institutional commercial or multifamily, as
applicable mortgage lenders" (or similar such phrases and terms), such conduct
shall be measured by reference to the industry standards generally in effect as
of the date the related representation or warranty relates to or is made.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
B-13
SCHEDULE B-1 TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
REP. 5 ASSIGNMENT OF LEASES AND RENTS
With respect to Loan No. 89, Sun Valley Resort, the related property is a
recreational vehicle resort/campground, and as such seasonal leases exist, which
are not expressly subordinate to the mortgage and the lessees have not expressly
agreed to attorn to the lender.
REP 14. INSURANCE.
With respect to Loan No. 2, Union Station, comprehensive all risk insurance is
required in an amount equal to 100% of the "Full Replacement Cost" which means
actual replacement value in order to restore the property to the level required
by borrower under Article 18 of the Ground Lease. borrower agrees that such
level will be no less than the level of a functionally equivalent building
though not necessarily a building of the same design, appearance or uniqueness,
or at such higher level as may be required under Section 18.3 of the Ground
Lease.
With respect to Loan No. 41, Sand Creek ▇▇▇▇▇ Apartments, the loan documents do
not specify what insurance coverage the borrower must maintain. Rather, borrower
must maintain "such insurance coverage and endorsements in form and substance
and in amounts as lender may require in its sole discretion, from time to time."
REP. 15. TAXES AND ASSESSMENTS.
With respect to Loan No. 66, Buckingham Plaza, pro-forma title policy has
exception for property taxes which are due and payable; although the taxes are
due and payable, the amount is not ascertainable because authorities have not
generated statements yet; borrower was required to escrow more than last year's
tax amount to protect lender.
REP. 17. LEASEHOLD ESTATE
(iii) With respect to Loan No. 2, Union Station, the borrower's interest in the
ground lease may be mortgaged and assigned to a mortgagee, without the consent
of the lessor; however, any subsequent assignee needs the consent of the lessor,
which is not to be unreasonably withheld.
(x) With respect to Loan No. 2, Union Station, such ground lease, as taken
together with the estoppel certificates, requires the lessor to enter into a new
lease upon termination of such Ground Lease if the Ground Lease is rejected in a
bankruptcy proceeding.
REP. 25. RELEASES OF MORTGAGED PROPERTY.
B-14
With respect to Loan No. 2, Union Station, borrower has the right to release a
certain non-income producing part of the property (identified on Exhibit to Loan
Agreement and which is used for access to the long haul trains) in connection
with the development of the air rights space above such released parcel,
provided that borrower meets certain conditions in the Loan Agreement,
including, without limitation, obtaining easement rights to use the released
parcel for the same purpose as was being used at the time of the release.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ House, the borrower may obtain the
release of a certain unimproved portion of the property, provided that the
borrower meet certain conditions in the loan agreement.
REP. 29 LOCAL LAW COMPLIANCE
With respect to Loan No. 87, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, the borrower is required to
deliver within 6 months of the origination date, September 14, 2004, a
certification statement from the City of Philadelphia Department of Licenses and
Inspections certifying that there are no notices of uncorrected code violations
on the property.
With respect to Loan No. 66, Buckingham Plaza, several tenant certificates of
occupancy are unavailable or do not exist. Also, although a permanent
certificate of occupancy is not available for the property a letter from the
city indicates that a permanent certificate of occupancy was issued.
With respect to Loan No. 29, University City Apartments Portfolio, one of the
properties has 5 units over what is permitted by applicable zoning laws and
ordinances.
REP. 31 ACTIONS CONCERNING MORTGAGE LOANS.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Apartments, there is a civil law suit
in approximate amount of $300,000 against the sponsor of the borrower and
affiliates of the borrower. The suit was filed on June 30, 2003.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Apartments, there is a civil law
suit in approximate amount of $300,000 against the sponsor of the borrower and
affiliates of the borrower. The suit was filed on June 30, 2003.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, there is litigation against ▇-▇
Corporation, a member of the borrower, seeking $900,000 in damages. ▇-▇
Corporation's financial status indicates it that should have sufficient funds to
satisfy its obligation if found to be at fault. The borrower is liable for
losses the lender incurs due to the pending litigation.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ House, there are five cases
pending, ranging from $1 million to $6.5 million, due to personal injury and
small claims from food suppliers. However, the borrower has stated that some of
the cases are without merit and the cases are being handled by its insurance
company.
REP. 36. DUE-ON-SALE.
B-15
With respect to Loan No. 1, Houston Center, the Loan Documents permit the direct
or indirect parents of the borrower to incur mezzanine debt, subject to a rating
agency confirmation and satisfaction of certain underwriting standards.
With respect to Loan No. 2, Union Station, the Loan Documents permit the direct
or indirect parents of the borrower to incur mezzanine debt, subject to
satisfaction of certain underwriting standards.
With respect to Loan No. 89, Sun Valley Resort, the standard "due on sale"
clause has been modified to allow for (1) 49% ownership interest transfers and
(2) any sale, conveyance or transfer of the property, or any membership interest
in any borrower, to give entity owned or controlled by Diversified
Investments--Cactus Gardens, LLC, an Arizona limited liability company ("DI") or
any entity owned or controlled by MHC Operating Limited Partnership, an Illinois
limited partnership and sole member of MHC Sun Valley, L.L.C., a Delaware
limited liability company ("MHC") provided that (A) no interest of MHC in the
property, or direct or indirect membership interest in MHC may be sold, conveyed
or transferred to Sun Valley, LLC, a Florida limited liability company, DI, or
any entity owned or controlled by DI and (B) if such sale, conveyance or
transfer relates to the property rather than a membership interest in borrower,
any such transferee (i) is bound by, and expressly assumes in writing, the terms
of the Security Instrument, the Note, and the Other Security Documents (which
written assumption shall be delivered to Lender) and (ii) is not otherwise in
violation of the Security Instrument, the note and the Other Security Documents
upon and after the consummation of such sale, conveyance or transfer.
With respect to Loan No. 66, Buckingham Plaza, the borrower is permitted certain
types of indirect transfers for estate planning purposes. A one time transfer is
also permitted.
With respect to Loan No. 45, Storage Etc., the standard "due on sale" clause has
been modified to allow for a one-time right to consummate a transfer of the
property in its entirety to that certain tenancy-in-common created pursuant to a
tenancy-in-common agreement, provided that certain terms and conditions be
satisfied to the lender's reasonable satisfaction.
REP. 37. SINGLE PURPOSE ENTITY.
With respect to Loan No. 41, Sand Creek ▇▇▇▇▇ Apartments, the mortgagor of such
Mortgage Loan is not a Single Purpose Entity.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the borrower
is not a newly formed single purpose entity and was not organized solely for the
purpose of owning and operating the mortgaged property securing the University
City Apartments Portfolio loan, rather the borrower is an preexisting single
purpose entity.
REP 38. NON-RECOURSE EXCEPTIONS.
With respect to Loan No. 89, Sun Valley Resort, the guaranty provided by ▇▇▇▇▇
▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ does not include a guaranty of the environmental
matters set forth in Article 12 of the Mortgage as referenced in Article 11 of
the Note. However, such guaranty is provided by the borrower. Borrower has also
provided environmental insurance.
B-16
With respect to Loan No. 2, Union Station, no natural person is liable for
damages arising in the case of fraud or willful misrepresentation by the related
borrower, misappropriation of rents, insurance proceeds or condemnation awards
and breaches of the environmental covenants in the Mortgage Loan documents.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, the
non-recourse curve outs do not cover misappropriating of rents, insurance
proceeds and condemnation awards.
With respect to Loan Nos. 1, 26 and 15, Houston Center, USAirport Parking and
Lake Pointe Shopping Center, respectively, the guarantor is not a "natural
person".
With respect to Loan No. 41, Sand Creek ▇▇▇▇▇ Apartments, there is no
non-recourse curve out guaranty.
B-17
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
Certificate of Officer of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (the
"Mortgage Loan Seller")
I, _______________________, a __________________ of the Mortgage Loan
Seller, hereby certify as follows:
The Mortgage Loan Seller is a corporation duly organized and validly
existing under the laws of the State of New York.
Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Mortgage Loan 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 Mortgage Loan Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Mortgage Loan 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 December 21, 2004
(the "Purchase Agreement"), between the Mortgage Loan Seller and GMAC Commercial
Mortgage Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Mortgage Loan 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.
S-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
December ___, 2004.
By:
-----------------------------------
Name:
Title:
I, _____________________________, _______________________________,
hereby certify that ____________________________ is a duly elected or appointed,
as the case may be, qualified and acting _________________________ of the
Mortgage Loan Seller and that the signature appearing above is his or her
genuine signature.
B-2
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
December ___, 2004.
By:
-----------------------------------
Name:
Title:
B-3
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
---------------------------------------------------
In connection with the execution and delivery by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc. (the "Mortgage Loan Seller") of, and the consummation of
the transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated as of December 21, 2004 (the "Purchase Agreement"), between GMAC
Commercial Mortgage Securities, Inc. and the Mortgage Loan Seller, the Mortgage
Loan Seller hereby certifies that (i) the representations and warranties of the
Mortgage Loan Seller in the Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, and (ii) the Mortgage Loan Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the date hereof.
Certified this day of December, 2004.
-------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL
INC.
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
C-2-1
