EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of December 18, 2003, between Xxxxxxx Xxxxx Mortgage Company, as
Mortgage Loan Seller (the "Mortgage Loan Seller" or "GSMC") 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, including GSMC's 50% pari passu interest in a certain
commercial mortgage loan (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 18, 2003 (the "GMACCM Mortgage
Loan Purchase Agreement"), between the Purchaser and GMACCM, (ii) German
American Capital Corporation ("GACC"), pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of December 18,
2003 (the "GACC Mortgage Loan Purchase Agreement"), between the Purchaser and
GACC, (iii) Xxxxxx Xxxxxxx Mortgage Capital, Inc., pursuant to, and for the
consideration described in, the Mortgage Loan Purchase Agreement, dated as of
December 18, 2003 (the "MSMC Mortgage Loan Purchase Agreement"), between the
Purchaser and MSMC and (iv) Commerzbank AG, New York Branch ("COMBANK"),
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of December 18, 2003 (the "COMBANK Mortgage Loan Purchase
Agreement"), between the Purchaser and COMBANK. The Mortgage Loan Seller,
GMACCM, GACC, MSMC and COMBANK are collectively referred to as the "Mortgage
Loan Sellers."
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 Xxxxx'x Investors Service, Inc., Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and Fitch, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust Fund will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of December 1, 2003 (the "Pooling and Servicing Agreement"), among the
Purchaser, as depositor, GMAC Commercial Mortgage Corporation, as master
servicer (in such capacity, the "Master Servicer") and serviced companion loan
paying agent, Lennar Partners, Inc., as special servicer of the Mortgage Loans
(other than the AFR/Bank of America Portfolio Loan) and the Other Mortgage Loans
(in such capacity, as applicable, the "Special Servicer"), Midland Loan
Services, Inc., as special servicer of theAFR/Bank of America Portfolio Whole
Loan (the "AFR/Bank of America Special Servicer"), LaSalle Bank National
Association, as trustee (the "Trustee") and ABN AMRO Bank N.V. as fiscal agent.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Pooling and Servicing Agreement as in effect on the Closing Date.
The Purchaser intends to sell the Class A-1, Class A-2, Class A-3,
Class A-4, Class B, Class C, Class D and Class E Certificates to Deutsche Bank
Securities Inc., Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx & Co. Incorporated
(together, the "Underwriters"), pursuant to an underwriting agreement dated the
date hereof (the "Underwriting Agreement"). The Purchaser intends to sell the
Class S-AFR1, Class S-AFR2, Class S-AFR3 and Class S-AFR4 (collectively, the
"Class S-AFR Certificates") and the Class X-1, Class X-2, Class A-1A, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O and Class
P Certificates to Deutsche Bank Securities Inc., Xxxxxxx, Sachs & Co. and Xxxxxx
Xxxxxxx & Co. Incorporated (in such capacity, each an "Initial Purchaser")
pursuant to a certificate purchase agreement, dated the date hereof (the
"Certificate Purchase Agreement"). The Purchaser intends to sell the Class R-I,
Class R-II and Class R-III Certificates to a Qualified Institutional Buyer (in
such capacity, an "Initial Purchaser"). The Class X-1, Class X-2, Class A-1A,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class S-AFR1, Class S-AFR2, Class S-AFR3, Class S-AFR4, Class R-I,
Class R-II and Class R-III Certificates are collectively referred to as the
"Non-Registered Certificates."
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Mortgage Loan Seller agrees to sell, assign, transfer and otherwise
convey to the Purchaser, and the Purchaser agrees to purchase, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on December
18, 2003 or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The "Cut-off Date" with respect to any Mortgage
Loan is the Due Date for such Mortgage Loan in December 2003. As of the close of
business on their respective Cut-off Dates (which Cut-off Dates may occur after
the Closing Date), the Mortgage Loans will have an aggregate principal balance
(the "Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$254,361,761 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
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principal and interest due on the Mortgage Loans after the Cut-off Date for such
Mortgage Loans, 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.
(b) In connection with the Mortgage Loan Seller's assignment pursuant
to subsection (a) above, the Mortgage Loan Seller acknowledges that the
Purchaser 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.
(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, with such changes or modifications as may be
permitted or required by the Rating Agencies.
(b) In addition, the Mortgage Loan Seller, as of the date hereof,
hereby represents and warrants to, and covenants with, the Purchaser that:
(i) The Mortgage Loan Seller is a limited partnership, 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 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
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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 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
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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 Other
Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information
set forth on pages A-14 through A-17 inclusive of Annex A to the
Prospectus Supplement (as defined in Section 9) (the "Loan Detail")
and, to the extent consistent therewith, the information set forth on
the diskette attached to the Prospectus Supplement and the
accompanying prospectus (the "Diskette"), is true and correct in all
material respects. Insofar as it relates to the Mortgage Loans (other
than the Water Tower Place Whole Loan and the 5 Houston Center Whole
Loan, as defined in the Prospectus Supplement) or 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 2003-C3 Transaction--The Mortgage Pool,"
"--Geographic Concentrations of the Mortgaged Properties," "--Property
Types," "--Prepayment or Call Protection Provided by the Mortgage
Loans," "Payment Terms of the Mortgage Loans," "Risk Factors" and
"Description of the Mortgage Pool," set forth on Annex A to the
Prospectus Supplement and (to the extent it contains information
consistent with that on such Annex A) set forth on the Diskette, does
not contain any untrue statement of a material fact or (in the case of
the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to
state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Insofar as it relates to the Water Tower Place Whole Loan and the 5
Houston Center Whole Loan (as defined in the Prospectus Supplement)
and the Mortgaged Property related thereto and does not represent a
restatement or aggregation of the information on the Loan Detail, the
information set forth in the Prospectus Supplement and the Memorandum
(as defined in Section 9) under the headings "Summary of Series
2003-C3 Transaction--The Mortgage Pool," "--Geographic Concentrations
of the Mortgaged Properties," "--Property Types," "--Prepayment or
Call Protection Provided by the Mortgage Loans," "--Payment Terms of
the Mortgage Loans," "Risk Factors," "Description of the Mortgage
Pool," "Servicing of the Mortgage Loans," "The Pooling and Servicing
Agreement" and "Description of the
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Certificates," set forth on Annex A and/or Annex B to the Prospectus
Supplement (provided, that with respect to the information in Annex B,
"Servicing of the Mortgage Loans," "The Pooling and Servicing
Agreement" and "Description of the Certificates," only such portions
that solely relate to the Water Tower Place Whole Loan and the 5
Houston Center Whole Loan) and (to the extent it contains information
consistent with that on such Annex A) set forth on the Diskette, does
not contain any untrue statement of a material fact or (in the case of
the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to
state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration
or filing with or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any
bulk sale laws), for the execution, delivery and performance of or
compliance by the 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.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties made pursuant to and set forth in subsection
(b) above which materially and adversely affects the interests of the Purchaser
or a breach of any of the representations and warranties made pursuant to
subsection (a) above and set forth in Exhibit B which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the Purchaser
or its successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
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(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.
(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.
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SECTION 6. Repurchases.
The Mortgage Loan Seller hereby agrees to comply with Sections 2.02 and
2.03 of the Pooling and Servicing Agreement, including, but not limited to, any
obligation to repurchase or substitute Mortgage Loans in respect of any Material
Breach or Material Document Defect.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Mayer, Brown, Xxxx & Maw LLP, 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage
Loan Seller and the Purchaser 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;
(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.
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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 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 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
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alleged omission (in the case of any such Computational Materials or ABS Term
Sheets, when read in conjunction with the Prospectus and, in the case of the
Memorandum, when read together with the other information specified therein as
being available for review by investors) to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; but only
if and to the extent that (i) any such untrue statement or alleged untrue
statement is with respect to information regarding the Mortgage Loans (other
than the Water Tower Place Whole Loan and the 5 Houston Center Whole Loan)
contained in the Loan Detail or, to the extent consistent therewith, the
Diskette or contained in the Term Sheet Diskette, to the extent consistent with
the Term Sheet Master Tape, or (ii) any such untrue statement or alleged untrue
statement or omission or alleged omission is with respect to information
regarding the Mortgage Loan Seller, the Mortgage Loans or the Mortgaged
Properties related thereto contained in the Prospectus Supplement, or the
Memorandum under the headings "Summary of Series 2003-C3 Transaction--The
Mortgage Pool," "--Geographic Concentrations of the Mortgaged 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 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; (iii) any such untrue statement or alleged untrue statement or omission
or alleged omission is with respect to information regarding the Water Tower
Place Whole Loan and the 5 Houston Center Whole Loan or the Mortgaged Property
related thereto contained in the Prospectus Supplement or the Memorandum under
the headings "Summary of Series 2003-C3 Transaction--The Mortgage Pool,"
"--Geographic Concentrations of the Mortgaged 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," "Servicing of the Mortgage Loans," "The Pooling and Servicing Agreement"
and/or "Description of the Certificates" 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 Annex B, "Servicing of the Mortgage Loans," "The
Pooling and Servicing Agreement," and "Description of the Certificates," only
such portions that solely relate to the Water Tower Place Whole Loan and the 5
Houston Center Whole Loan), and such information does not represent a
restatement or aggregation of information contained in the Loan Detail; or (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; provided,
that the indemnification provided by this Section 9 shall not apply to the
extent that such untrue statement of a material fact or omission of a material
fact necessary to make the statements made, in light of the circumstances in
which they were made, not misleading, was made as a result of an error in the
manipulation of, or calculations based upon, the Loan Detail. This indemnity
agreement will be in addition to any liability which the Mortgage Loan Seller
may otherwise have. Notwithstanding anything to the contrary contained herein,
the parties agree that Mortgage Loan Seller shall only be obligated to indemnify
the Persons entitled to indemnification pursuant to this Section 9 for a maximum
of 50% of the indemnified liabilities (the "Maximum Percentage") incurred by any
such Person with respect to the Mortgage Loan that represents 50% of the total
portion of the Water Tower Mortgage Loan being conveyed to the Trust with the
remaining 50% being conveyed to the Trust by COMBANK. COMBANK will execute and
deliver a separate mortgage loan purchase
10
agreement with respect to, among other things, its interest in the Water Tower
Mortgage Loan that it is transferring to the Trust. The failure of COMBANK to
honor its obligations under the separate mortgage loan purchase agreement
indemnification provisions shall in no event increase the liability or
obligations of Mortgage Loan Seller hereunder, and any indemnified liabilities
shall be payable on a pro rata basis by Seller (up to the Maximum Percentage)
and COMBANK.
"Registration Statement" shall mean the registration statement No.
333-107510 filed by the Purchaser on Form S-3, including without limitation
exhibits thereto and information incorporated therein by reference; "Prospectus"
shall mean the prospectus dated July 31, 2003, as supplemented by the prospectus
supplement dated December 10, 2003 (the "Prospectus Supplement"), relating to
the Registered Certificates; "Memorandum" shall mean the private placement
memorandum dated December 10, 2003, relating to the Non-Registered Certificates
(other than the Class S-AFR Certificates); "Computational Materials" shall have
the meaning assigned thereto in the no-action letter dated May 20, 1994 issued
by the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody
& Co. Incorporated and Xxxxxx Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Xxxxxx
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Xxxxxx Letters, the "No-Action Letters"). The mortgage
loan information and 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 referred to herein as the
"Term Sheet Master Tape." References herein to ABS Term Sheets or Computational
Materials shall include any Term Sheet Diskette provided therewith.
(b) Promptly after receipt by any person entitled to indemnification under this
Section 9 (each, an "indemnified party") of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against the 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
11
withheld, the indemnifying party will not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Purchaser and the indemnifying party,
representing all the indemnified parties under Section 9(a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action, or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(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.
12
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne
by the respective parties hereto.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at
000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance
Manager, facsimile no. (000) 000-0000, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter be furnished to the Mortgage Loan Seller in writing by the
Purchaser; and if to the Mortgage Loan Seller, addressed to Xxxxxxx Xxxxx
Mortgage Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxx, facsimile no. (000) 000-0000, with a copy to Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxx & Xxxx, facsimile no. (000) 000-0000 or to such other address or
facsimile number as the Mortgage Loan Seller may designate in writing to the
Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Mortgage Loan Seller set 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.
13
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
The Mortgage Loan Seller and the Purchaser agree to execute and deliver
such instruments and take such further actions as the other party may, from time
to time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Mortgage Loan Seller under this
Agreement shall not be assigned by the Mortgage Loan Seller without the prior
written consent of the Purchaser, except that any person into which the Mortgage
Loan Seller may be merged or consolidated, or any corporation or other entity
resulting from any merger, conversion or consolidation to which the Mortgage
Loan Seller is a party, or any person succeeding to all or substantially all of
the business of the Mortgage Loan Seller, shall be the successor to the Mortgage
Loan Seller hereunder. The Purchaser has the right to assign its interest under
this Agreement, in whole or in part, as may be required to effect the purposes
of the Pooling and Servicing Agreement, and the assignee shall, to the extent of
such assignment, succeed to the rights and obligations hereunder of the
Purchaser. Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser, and
their permitted successors and assigns and the indemnified parties referred to
in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified
or in any way altered, unless such amendment, waiver, modification or alteration
is in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner, which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
14
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have
caused their names to be signed hereto by their respective duly authorized
officers as of the date first above written.
XXXXXXX SACHS MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
its General Partner
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
S-1
MORTGAGE LOAN SCHEDULE
CONTROL LOAN
NUMBER GROUP LOAN NUMBER LOAN ORIGINATOR PROPERTY NAME ADDRESS
7 1 09-1001100 Archon Financial 5 Houston Center 0000 XxXxxxxx Xxxxxx
14 1 09-0001735 Archon Financial Geneva Commons 200-500 Commons Drive
16 2 09-0001801 Archon Financial Xxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxxx Xxxx
00 1 09-0001821 Archon Financial Poinsettia Ridge Apartments 0000 Xxxxxx Xxxx Xxxx
21 1 09-0001782 Archon Financial XXXX Xxxxxxxxxx Xxxxxxxx 000 Xxxxxxx Xxxx
00 0 09-0001787 Archon Financial The Oxford Apartments 10909 Gulf Freeway
32 1 09-0001790 Archon Financial Carnegie Office Building 0000 Xxxxxxxx Xxxxxxxxx
38 1 09-0001730 Xxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxx 0000-0000 Xxx Xxxxxxxxx Avenue
53 1 09-0001763 Archon Financial Xxxxxx II Medical Office Building 0000 00xx Xxxxxx
2 1 09-1001099 Archon/Commerzbank Water Tower Place 000 Xxxxx Xxxxxxxx Xxxxxx
CONTROL
XXXXXX XXXX XXXXX XXX XXXX
0 Xxxxxxx Xxxxx 00000
14 Xxxxxx Xxxxxxxx 00000
16 Xxx Xxxxx Xxxxxx 00000
19 Xxxxxxxxx Xxxxxxxxxx 00000
21 Xxxxxxxx Xxxxxxxx 00000
25 Xxxxxxx Xxxxx 00000
32 Xxxxxxxxx Xxxxx Xxxxxxxx 00000
38 Xxxxxxxxxxxx Xxx Xxxxxx 00000
53 Xxxxxxxxxx Xxxxxxxxxx 00000
2 Xxxxxxx Xxxxxxxx 00000
CONTROL RELATED ORIGINAL BALANCE CURRENT BALANCE INTEREST DMIN. FEE
NUMBER COUNTY GROUPS ($) ($) RATE % % ACCRUAL TYPE AMORTIZATION TYPE
7 Xxxxxx 45,000,000 45,000,000 5.00100 0.0218 Actual/360 Interest Only
14 Xxxx 28,000,000 27,806,309 5.65000 0.0718 Actual/360 Amortizing Balloon
16 Xxxxx 24,000,000 24,000,000 4.87000 0.0818 Actual/360 Interest Only
19 San Diego 21,000,000 20,979,333 6.06000 0.0818 Actual/360 Amortizing Balloon
21 Xxxxx 17,200,000 17,128,714 5.45000 0.0618 Actual/360 Amortizing Balloon
25 Xxxxxx 15,610,000 15,610,000 5.03500 0.0318 Actual/360 Interest Only
32 Mecklenburg 12,000,000 12,000,000 5.24000 0.0818 Actual/360 Interest Only
38 Xxxxxx 10,900,000 10,900,000 5.07000 0.1018 Actual/360 Interest Only
53 Sacramento 6,200,000 6,200,000 4.90000 0.0318 Actual/360 Interest Only
2 Xxxx 75,000,000 74,737,405 4.97000 0.0218 Actual/360 Amortizing Balloon
FIRST ORIGINAL
CONTROL PAYMENT INTEREST ONLY
NUMBER NOTE DATE DATE PERIOD
7 09/08/2003 11/03/2003 60
14 04/14/2003 06/01/2003
16 08/28/2003 10/01/2003 60
19 10/16/2003 12/01/2003
21 07/15/2003 09/01/2003
25 07/31/2003 09/01/2003 60
32 08/28/2003 10/01/2003 60
38 05/15/2003 07/01/2003 60
53 05/27/2003 07/01/2003 60
2 08/21/2003 10/01/2003
A-1
MORTGAGE LOAN SCHEDULE
REMAINING ORIGINAL ORIGINAL REMAINING
CONTROL INTEREST ONLY TERM TO REMAINING TERM TO AMORTIZATION AMORTIZATION PAYMENT DUE
NUMBER PERIOD SEASONING MATURITY MATURITY TERM TERM DATE
7 58 2 60 58 1
14 7 120 113 360 353 1
16 57 3 60 57 1
19 1 120 119 360 359 1
21 4 120 116 360 356 1
25 56 4 60 56 1
32 57 3 60 57 1
38 54 6 60 54 1
53 54 6 60 54 1
2 3 84 81 360 357 1
CONTROL GRACE DEFAULT MATURITY DATE SCHEDULED MATURITY
NUMBER PERIOD OR ARD OR ARD BALANCE ($)
7 0 10/01/2008 45,000,000
14 5 05/01/2013 23,505,035
16 5 09/01/2008 24,000,000
19 5 11/01/2013 17,842,134
21 5 08/01/2013 14,348,152
25 5 08/01/2008 15,610,000
32 5 09/01/2008 12,000,000
38 5 06/01/2008 10,900,000
53 5 06/01/2008 6,200,000
2 0 09/01/2010 66,468,432
SCHEDULED
CUT-OFF MATURITY OR
CONTROL ANNUAL DEBT DATE LTV ARD DATE LTV TOTAL SQ. UNIT
NUMBER PREPAYMENT PROVISION SERVICE (%) (%) FT./UNITS/PADS/ROOMS DESCRIPTION
7 Lock/26_YM/29_0%/5 2,281,706 79.65 79.65 580,875 Sq Ft
14 Lock/31_Defeasance/85_0%/4 1,939,512 78.99 68.31 409,911 Sq Ft
16 Lock/27_Defeasance/29_0%/4 1,185,033 79.76 79.76 368 Units
19 Lock/25_Defeasance/91_0%/4 1,520,602 79.92 67.97 120 Units
21 Lock/28_Defeasance/88_0%/4 1,165,450 79.67 66.74 518,840 Sq Ft
25 Lock/28_Defeasance/28_0%/4 796,880 80.05 80.05 544 Units
32 Lock/27_Defeasance/29_0%/4 637,533 80.54 80.54 106,246 Sq Ft
38 Lock/30_Defeasance/26_0%/4 560,305 77.86 77.86 109,901 Sq Ft
53 Lock/30_Defeasance/26_0%/4 308,019 80.00 80.00 39,745 Sq Ft
2 Lock/27_Defeasance/53_0%/4 4,814,907 55.92 49.74 821,742 Sq Ft
CUT-OFF DATE BALANCE
CONTROL BALANCE PER SQ. OWNERSHIP
NUMBER FT./UNIT/PAD/ROOM INTEREST LOCKBOX
7 155 Fee Simple Hard
14 184 Fee Simple Springing
16 65,217 Fee Simple
19 174,828 Fee Simple
21 33 Fee Simple Springing
25 28,695 Fee Simple
00 000 Xxx Xxxxxx
00 00 Fee Simple
53 156 Fee Simple
2 228 Fee Simple Hard
A-2
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
B-1
Mortgage Loan (the foregoing items (a) through (e) being herein
referred to as the "Permitted Encumbrances"). The related assignment
of such Mortgage executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such 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
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.
B-2
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, 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
B-3
that were to have been complied with on or before the Closing Date
have been complied with, or any such funds so escrowed have not been
released.
10) Mortgage Provisions. The Mortgage Note or Mortgage for 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
B-4
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 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.(Sections)9601 et seq.), the
Hazardous Materials Transportation Act as amended (42
U.S.C.(Sections) 6901 et seq.), the Federal Water Pollution
Control Act as
B-5
amended (33 U.S.C.(Sections)1251 et seq.), the Clean Air Act (42
U.S.C.(Sections)1251 et seq.) and any regulations promulgated
pursuant thereto.
13) Loan Document Status. 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.
B-6
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 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;
B-7
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 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.
B-8
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 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. 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. (Section)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
B-9
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.
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 or that
might materially and adversely affect the value of the Mortgaged Property
as security for the Mortgage Loan or the use for which the premises were
intended.
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.
B-10
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 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.
B-11
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 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
B-12
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, 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 TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
XXXXXXX XXXXX MORTGAGE COMPANY
(2) WHOLE LOAN; OWNERSHIP OF MORTGAGE LOANS
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place The mortgage loan is jointly owned by GSMC and Commerzbank
AG.
-------------------------- -------------------------------- ----------------------------------------------------------
(7) CONDITION OF PROPERTY; CONDEMNATION
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place No reserves were established instead a guaranty was given
by The Xxxxx Company covering the obligation of the
borrower to repair such damage.
-------------------------- -------------------------------- ----------------------------------------------------------
09-0001782 REDI Industrial Park As of the closing date, an eminent domain proceeding was
pending by Xxxxx County to acquire easement rights over
a portion of the property to relocate, establish, open
and/or improve a public road that abuts the property,
Xxxxxxx Road.
-------------------------- -------------------------------- ----------------------------------------------------------
09-0001790 Carnegie Office Building The property depends on a cross-easement over an
adjacent parking deck to satisfy the parking
requirements of the local zoning code. The lien of the
security instrument encumbers all right, title and
interest of the borrower with respect to such easement
and parking rights.
-------------------------- -------------------------------- ----------------------------------------------------------
09-0001763 Xxxxxx II Medical Office The property relies upon easement (which is an insured
Building estate in lender's title policy) to use the parking
structure located on adjacent property and also relies on
a lease of up to 140 off-site parking spaces.
-------------------------- -------------------------------- ----------------------------------------------------------
(14) INSURANCE
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-001730 Greenwich Center Business interruption insurance is required to cover a
period consisting of the "period of restoration" of the
property following a casualty plus 4 months.
-------------------------- -------------------------------- ----------------------------------------------------------
(16) MORTGAGOR BANKRUPTCY
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place Certain tenants are debtors in bankruptcy matters.
-------------------------- -------------------------------- ----------------------------------------------------------
B-14
(22) NO MECHANICS' LIENS
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place There is a single mechanics lien in the amount of $5505
that was filed after the issuance of the title insurance
policy.
-------------------------- -------------------------------- ----------------------------------------------------------
(25) RELEASES OF MORTGAGED PROPERTY
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-0001735 Geneva Commons The Mortgage allows for the partial release of a portion
of Mortgaged Property that was not included in the
appraisal of the Mortgaged Property.
-------------------------- -------------------------------- ----------------------------------------------------------
(24) CROSS-COLLATERALIZATION
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-0001735 Geneva Commons The Mortgage Note is one of two pari passu notes secured
by the Mortgaged Property
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place The Mortgage Note is one of six pari passu notes secured
by the Mortgaged Property
-------------------------- -------------------------------- ----------------------------------------------------------
09-1001100 5 Houston Center The Mortgage Note is one of two pari passu notes secured
by the Mortgaged Property
-------------------------- -------------------------------- ----------------------------------------------------------
(30) JUNIOR LIENS
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-0001821 Poinsettia Ridge Apartments There is debt of approximately $600,000 held by the City
of Encinitas, California, secured by the real property
and reflects a loan advanced by the City under a
government housing program to assure the availability of
apartment units for low- and lower-income persons. No
payments of interest or principal are required on the
debt and a portion of the debt is forgiven annually.
The City has executed for the benefit of Lender an
Intercreditor and Standstill Agreement that subordinates
the City's lien to the Lender's lien.
-------------------------- -------------------------------- ----------------------------------------------------------
(31) ACTIONS CONCERNING MORTGAGE LOANS
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place There is one uninsured suit pending relating to a
mechanic's lien for work performed for a tenant.
-------------------------- -------------------------------- ----------------------------------------------------------
(33) LICENSES AND PERMITS
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-0001735 Geneva Commons There is one certificate of occupancy outstanding due to
an issue with a tenant's storefront.
-------------------------- -------------------------------- ----------------------------------------------------------
B-15
(36) DUE ON SALE
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-001730 Greenwich Center The loan documents permit the exercise of the forced
Buy-Sell provisions contained in the organizational
documents of the Guarantor (the sole owner of the
Borrower). This could result in a change of control of
the Borrower with out Lender consent.
-------------------------- -------------------------------- ----------------------------------------------------------
(38) NON-RECOURSE EXCEPTIONS
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
09-10001099 Water Tower Place Only the Borrower, which is a Delaware
limited liability company, is liable for nonrecourse
carve outs. There are no "natural persons" liable for
any of the obligations under the loan.
-------------------------- -------------------------------- ----------------------------------------------------------
09-1001100 5 Houston Center The Borrower, Crescent Real Estate Equities Limited
Partnership, and 5 Houston Center Member LLC are each
liable for nonrecouse carve outs. There are no "natural
persons" liable for any of the obligations under the
loan.
-------------------------- -------------------------------- ----------------------------------------------------------
09-0001735 Geneva Commons The natural person guarantor is not liable to the lender
for damages arising from breaches of environmental
covenants in the Mortgage Loan documents. The Guaranty
signed by Xxxxxxx X. Xxxxxxxx does not cover
environmental concerns. However, the guaranty from
Xxxxxxx X. Xxxxxxxx Real Estate Inc. does cover these
items.
-------------------------- -------------------------------- ----------------------------------------------------------
09-0001782 REDI Industrial The guarantors are not natural people. The guarantors
are Xxxxxxx Family Limited Partnership and Xxxxx X.Xxxxx
Investment Company LLC.
-------------------------- -------------------------------- ----------------------------------------------------------
09-001730 Greenwich Center The guarantor is not a natural person. The guarantor is
Starwood Xxxxxxx LLC.
-------------------------- -------------------------------- ----------------------------------------------------------
B-16
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
Certificate of Officer of Xxxxxxx Xxxxx Mortgage Company (the "Mortgage
Loan Seller")
I, _______________________, a __________________ of the Mortgage Loan
Seller, hereby certify as follows:
The Mortgage Loan Seller is a limited partnership 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 18, 2003
(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.
C-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
[_______], 2003.
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.
C-1-2
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
[_______], 2003.
By:
-----------------------------------
Name:
Title:
C-1-3
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of Xxxxxxx Sachs Mortgage Company
In connection with the execution and delivery by Xxxxxxx Xxxxx Mortgage
Company (the "Mortgage Loan Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
December 18, 2003 (the "Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. and the Mortgage Loan Seller, the Mortgage Loan Seller hereby
certifies that (i) the representations and warranties of the Mortgage Loan
Seller in the Purchase Agreement are true and correct in all material respects
at and as of the date hereof with the same effect as if made on the date hereof,
and (ii) the Mortgage Loan Seller has, in all material respects, complied with
all the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the date hereof.
Certified this _____________ day of [_______], 2003.
Xxxxxxx Sachs Mortgage Company
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
its General Partner
By:
-------------------------------------
Name:
Title:
C-2-1
