EXHIBIT 99.7
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement (this "Agreement"), is dated and effective
as of March 29, 2001 between GMAC Commercial Mortgage Corporation as seller (the
"Seller") and Xxxxxxx Xxxxx Mortgage Company as purchaser (the "Purchaser").
WHEREAS, the Seller sold certain mortgage loans to the Purchaser
pursuant to a certain Mortgage Loan Purchase Agreement dated September 28, 2000,
a certain Mortgage Loan Purchase Agreement, dated as of December 28, 2000 and a
certain Mortgage Loan Purchase Agreement, dated as of March 29, 2001 (each a
"GSMC Purchase Agreement" and collectively the "GSMC Purchase Agreements").
WHEREAS, the Purchaser intends to sell the mortgage loans as shown on
Exhibit A hereto (the "Mortgage Loans") to GMAC Commercial Mortgage Securities,
Inc. as Depositor, (the "Depositor") pursuant to a certain Mortgage Loan
Purchase Agreement, dated as of March 29, 2001 (the "Mortgage Loan Purchase
Agreement") and the Depositor intends to transfer the Mortgage Loans, together
with other multifamily and commercial mortgage loans, to a trust fund (the
"Trust Fund") to be formed by the Depositor, beneficial ownership of which will
be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Fitch,
Inc. Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. (together, the "Rating Agencies"). Certain classes of the
Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust Fund will
be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of April 1, 2001 (the "Pooling and Servicing
Agreement"), among the Depositor as depositor, GMAC Commercial Mortgage
Corporation as master servicer (in such capacity, the "Master Servicer") and
special servicer (in such capacity, the "Special Servicer") and Xxxxx Fargo Bank
Minnesota, N.A., as trustee (in such capacity, the "Trustee"). Capitalized terms
not otherwise defined herein have the meanings assigned to them in the Pooling
and Servicing Agreement as in effect on the Closing Date (as defined below).
WHEREAS, the Depositor intends to sell the Class A-1, Class A-2, Class
B, Class C and Class D Certificates to Xxxxxxx, Xxxxx & Co. and Deutsche Banc
Alex. Xxxxx Inc. (together, the "Underwriters"), pursuant to an underwriting
agreement dated the date hereof (the "Underwriting Agreement"). The Depositor
intends to sell the Class X-1, Class X-2, Class E, Class F and Class G
Certificates to Xxxxxxx, Sachs & Co. and Deutsche Banc Alex. Xxxxx Inc. (in such
capacity, each an "Initial Purchaser") and the Class H, Class J, Class K, Class
L, Class M, Class N, Class O and Class P Certificates to Commercial Asset
Trading, Inc. (in such capacity, an "Initial Purchaser") pursuant to two
certificate purchase agreements, each dated the date hereof (the "Certificate
Purchase Agreements"). The Depositor intends to sell the Class R-I, Class R-II
and Class R-III Certificates to Xxxxxxx, Sachs & Co. (in such capacity, an
"Initial Purchaser").
WHEREAS, each of the Seller and the Purchaser, in connection with the
transaction described above, desires to amend and supplement certain of the
provisions of the GSMC
Purchase Agreements as they relate to the Mortgage Loans in order to facilitate
such transaction and in contemplation of the assignment by the Purchaser to the
Depositor of all of its right, title and interest in and to this Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Amendment of GSMC Purchase Agreements.
The parties hereto agree that, with respect to the Mortgage Loans only,
the GSMC Purchase Agreements are hereby amended to the extent that the
provisions of such GSMC Purchase Agreements are inconsistent with this
Agreement.
SECTION 2. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of April 5, 2001 (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 Depositor, the Trustee and the
holders of the Certificates), each of the representations and warranties set
forth in Exhibit B, with such changes or modifications as may be permitted or
required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing and
in good standing under the laws of the State of California, and is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance and compliance with the terms of this Agreement by the
Seller, will not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, in each case which materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (B) general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law, and (C) public policy considerations underlying the securities
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laws, to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement that purport to provide
indemnification for securities laws liabilities.
(v) The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in
the Seller's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vi) No litigation is pending with regard to which Seller has received
service of process or, to the best of the Seller's knowledge, threatened
against the Seller the outcome of which, in the Seller's good faith and
reasonable judgment, could reasonably be expected to prohibit the Seller
from entering into this Agreement or materially and adversely affect either
the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the
Initial Purchasers and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the other transactions contemplated
hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any bulk
sale laws), for the execution, delivery and performance of or compliance by
the Seller with this Agreement, or the consummation by the Seller of any
transaction contemplated hereby, other than (1) 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 Seller under this
Agreement.
(ix) 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 its successors or assigns 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 Depositor, the
Trustee and the holders of the Certificates), the party discovering such
breach shall give prompt written notice to the other party hereto or if
this Agreement has been assigned by the Purchaser, to such assignee. The
representations, warranties and covenants set forth in Section 2(a) shall,
as between the Seller and the Purchaser, supplement, and as between the
Seller and any successors or assigns of the Purchaser, replace and amend
and restate in their entirety, the representations, warranties and
covenants of the Seller made pursuant to Section 4.1(a) of each of the GSMC
Purchase Agreements to the extent they relate to the Mortgage Loans.
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SECTION 3. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a limited partnership duly organized, validly
existing and in good standing under the laws of State of New York.
(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, in each case which materially and
adversely affect the ability of the Purchaser to carry out the transactions
contemplated by this Agreement.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (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 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 Seller, the Underwriters, the Initial
Purchasers and their respective
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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) The Purchaser 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 Seller, and its successors and assigns, with respect to
each Mortgage Loan each of the representations and warranties set forth below:
(i) Immediately prior to the transfer thereof to the Depositor, the
Purchaser had whatever title to such Mortgage Loan as was conveyed to it by
Seller, free and clear of any and all liens, encumbrances and other
interests on, in or to such Mortgage Loan (other than, in certain cases,
the right of a third party servicer to directly service such Mortgage Loan)
created by the Purchaser. Such transfer validly assigns such title to such
Mortgage Loan to the Depositor free and clear of any pledge, lien,
encumbrance or security interest created by the Purchaser;
(ii) The Purchaser has full right and authority to sell, assign and
transfer its interest in such Mortgage Loan;
(iii) The Purchaser has not done anything that would materially impair
the coverage under the lender's title insurance policy that insures the
lien of the related Mortgage;
(iv) The Purchaser has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage or
Mortgage Note;
(v) To the Purchaser's actual knowledge, without independent inquiry
as to the provisions of the Mortgage Loans, there is no valid offset,
defense or counterclaim to such Mortgage Loan arising out of the
Purchaser's actions or holding of the Mortgage Loans; and
(vi) The terms of the related Mortgage and the Mortgage Note have not
been impaired, waived, altered or modified by the Purchaser in any material
respect, except as specifically set forth in the related Mortgage File;
provided that, with respect to the representations and warranties in clauses
(iii), (iv), (v) and (vi) above, such representations and warranties cover only
actions taken directly by the Purchaser and its Affiliates or taken by the
Seller at the direction of the Purchaser.
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(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 4. Repurchases.
(a) Within 90 days of the earlier of discovery or receipt of notice by the
Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement as in effect on the
Closing Date) in respect of the Mortgage File for any Mortgage Loan or a breach
of any representation or warranty made pursuant to Section 2(a) and set forth in
Exhibit B (a "Breach"), which Defect or Breach, as the case may be, materially
and adversely affects the value of any Mortgage Loan or the interests therein of
the Purchaser or its successors and assigns (including, without limitation, the
Depositor, the Trustee and the holders of the Certificates), the Seller shall
cure such Defect or Breach, as the case may be, in all material respects or
repurchase the affected Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price (as defined in the Pooling and Servicing Agreement as
in effect on the Closing Date) by payment of such Purchase Price by wire
transfer of immediately available funds to the account designated by such
owner(s); provided, however, that in lieu of effecting any such repurchase, the
Seller will be permitted to deliver a Qualifying Substitute Mortgage Loan and to
pay a cash amount equal to the applicable Substitution Shortfall Amount, subject
to the terms and conditions of the Pooling and Servicing Agreement as in effect
on the Closing Date.
If the Seller is notified of a Defect in any Mortgage File that corresponds
to information set forth in the Mortgage Loan Schedule, the Seller shall
promptly correct such Defect and provide a new, corrected Mortgage Loan Schedule
to the Purchaser or any successor or assign thereof, which corrected Mortgage
Loan Schedule shall be deemed to amend and replace the existing Mortgage Loan
Schedule for all purposes.
(b) Notwithstanding Section 4(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
In addition, if, as of the Closing Date, any Mortgage Loan is secured by a
Mortgage that does not constitute a valid first lien upon the related Mortgaged
Property, including all buildings located thereon and all fixtures attached
thereto, or if a Mortgage is subject to something other than (A) the lien of
current real property taxes and assessments not yet due and payable, (B)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, (C) exceptions and exclusions specifically referred to
in the lender's title insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan and (D) those
exceptions set forth on Schedule B-1 to Exhibit B hereto (the exceptions set
forth in the foregoing clauses (A), (B), (C) and (D) collectively, "Permitted
Encumbrances"), or if the insurer that issued the Title Policy referred to in
clause (vi) of Exhibit B hereto in respect of any Mortgage Loan was not
qualified to do business in the state in which the related
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Mortgaged Property is located, and in either case such failure materially and
adversely affects the interests of holders of Certificates (any such failure
that materially and adversely affects the interests of holders of Certificates,
also a "Breach"), the Seller shall be required, at its option, to either (i)
cure such Breach in all material respects or (ii) repurchase the affected
Mortgage Loan, in each case, within the applicable Permitted Cure Period. If any
such Breach is not corrected or cured in all material respects within the
applicable Permitted Cure Period, the Seller shall, not later than the last day
of such Permitted Cure Period, (i) repurchase the affected Mortgage Loan from
the Purchaser or its assignee at the applicable Purchase Price or (ii) if within
the three-month period commencing on the Closing Date (or within the two-year
period commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G-2(f)), at its option, replace such
Mortgage Loan with a Qualifying Substitute Mortgage Loan and pay any
corresponding Substitution Shortfall Amount. The Seller agrees that any such
repurchase or substitution shall be completed in accordance with and subject to
the terms and conditions of the Pooling and Servicing Agreement.
For purposes of the preceding paragraph only, the "Permitted Cure Period"
applicable to any Breach in respect of any Mortgage Loan shall be the 90-day
period immediately following the earlier of the discovery by the Seller or
receipt by the Seller of notice of such Breach; provided that if such Breach
cannot be corrected or cured in all material respects within such 90-day period,
but it is reasonably likely that such Breach could be corrected or cured within
180 days of the earlier of discovery by the Seller and receipt by the Seller of
notice of such Breach, and the Seller is diligently attempting to effect such
correction or cure, then the applicable Permitted Cure Period shall, with the
consent of the Purchaser or its assignee (which consent shall not be
unreasonably withheld), be extended for an additional 90 days, unless (i) the
affected Mortgage Loan is in default and (ii) the applicable Breach constitutes
a Material Document Defect (as defined in the Pooling and Servicing Agreement)
other than a Material Document Defect resulting solely from a delay caused by
the public recording or filing office where a document has been sent for
recording or filing.
(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 4, the then owner(s) thereof shall tender or
cause to be tendered promptly to the Seller, upon delivery of a receipt executed
by the Seller, the related Mortgage File and Servicing File, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Purchaser or the Trustee shall be endorsed or assigned, as the case may be,
to the Seller or its designee in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) This Section 4 provides the sole remedies available to the Purchaser,
and its successors and assigns (including, without limitation, the Depositor,
the Trustee and the holders of the Certificates) respecting any Defect in a
Mortgage File or any breach of any representation or warranty made pursuant to
Section 2(a) and set forth in Exhibit B, or in connection with the circumstances
described in Section 4(b). If the Seller defaults on its obligations to
repurchase or replace any Mortgage Loan in accordance with Section 4(a) or 4(b)
or disputes its obligation to repurchase or replace any Mortgage Loan in
accordance with either such subsection, the Purchaser or its successors and
assigns may take such action as is appropriate to enforce such payment or
performance, including, without limitation, the institution and prosecution of
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appropriate proceedings. The Seller shall reimburse the Purchaser for all
necessary and reasonable costs and expenses incurred in connection with such
enforcement. The remedies provided in this Section 4 shall replace and amend and
restate in their entirety the provisions of Section 4.3 of each of the GSMC
Purchase Agreements with respect to the Mortgage Loans.
(e) In the event that (i) any Mortgage Loan that is a Cross-Collateralized
Mortgage Loan (as defined in the Pooling and Servicing Agreement) is required to
be repurchased pursuant to this Section 4 as a result of a Breach, Defect or
other event, and (ii) the cross-collateralization provisions of the related
Cross-Collateralized Mortgage Loans cannot be released to the extent required by
Section 2.03 of the Pooling and Servicing Agreement to permit repurchase of the
affected Mortgage Loan within the time period specified in this Agreement for
such repurchase, the Seller shall repurchase the affected Mortgage Loan and all
of the related Cross-Collateralized Mortgage Loans not so released.
SECTION 5. Conveyance of Mortgage Files.
(a) In connection with the Purchaser's assignment of the Mortgage Loans to
the Depositor pursuant to the Mortgage Loan Purchase Agreement, the Purchaser
hereby covenants with the Seller that, at least five (5) Business Days before
the Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B to the Mortgage Loan Purchase
Agreement) for each Mortgage Loan so assigned to the extent that such Mortgage
File was delivered to the Purchaser. In the event the Purchaser fails to so
deliver each such Mortgage File to the Trustee, the Seller and its successors
and assigns shall be entitled to pursue any rights or remedies in respect of
such failure as may be available under applicable law.
(b) For the benefit of the Purchaser and its successors and assigns, the
Seller acknowledges and agrees that the Depositor intends to cause the Trustee
to perform a limited review of the Mortgage Files relating to the Mortgage Loans
to enable the Trustee to confirm to the Depositor on or before the Closing Date
that the Mortgage Note referred to in clause (i) of Exhibit B of the Mortgage
Loan Purchase Agreement has been delivered to the Trustee with respect to each
such Mortgage File. If the Seller cannot deliver, or cause to be delivered as to
any Mortgage Loan, the original Mortgage Note, the Seller shall deliver a copy
or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed. If the Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, the original
or a copy of any of the documents and/or instruments referred to in clauses
(ii), (iv), (viii), (xi)(A) and (xii) of Exhibit B of the Mortgage Loan Purchase
Agreement, with evidence of recording thereon, solely because of a delay caused
by the public recording or filing office where such document or instrument has
been delivered for recordation or filing, or because such original recorded
document has been lost or returned from the recording or filing office and
subsequently lost, as the case may be, the delivery requirements of this Section
5 shall be deemed to have been satisfied as to such missing item, and such
missing item shall be deemed to have been included in the related Mortgage File,
provided that a copy of such document or instrument (without evidence of
recording or filing thereon, but certified (which certificate may relate to
multiple documents and/or instruments) by the Seller to be a true and complete
copy of the original thereof submitted for recording or filing, as the case may
be) has been delivered to the Trustee on or before the Closing Date, and either
the original of such missing document or instrument, or a copy thereof, with
evidence of recording or filing, as the case may be, thereon, is
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delivered to or at the direction of the Depositor or Trustee within 180 days of
the Closing Date (or within such longer period after the Closing Date as the
Trustee (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Seller has provided the Depositor or
Trustee with evidence of such recording or filing, as the case may be, or has
certified to the Depositor or Trustee as to the occurrence of such recording or
filing, as the case may be, and is, as certified to the Trustee no less often
than quarterly, in good faith attempting to obtain from the appropriate county
recorder's or filing office such original or copy).
(c) If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (ix) of Exhibit B of the Mortgage Loan Purchase
Agreement solely because such policy has not yet been issued, the delivery
requirements of this Section 5 shall be deemed to be satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that the Seller has delivered to the Trustee, on
or before the Closing Date, a commitment for title insurance "marked-up" at the
closing of such Mortgage Loan, and the Seller shall deliver to or at the
direction of the Depositor or Trustee, promptly following the receipt thereof,
the original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage Loans
only one original of any document referred to in Exhibit B of the Mortgage Loan
Purchase Agreement covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan.
(d) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with (i) the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B to the Mortgage
Loan Agreement and each UCC-2 and UCC-3, if any, referred to in clause (xi)(B)
of Exhibit B to the Mortgage Loan Purchase Agreement and (ii) the delivery of a
copy of any such document or instrument to the Master Servicer promptly
following its return to the Trustee or its designee after such recording or
filing; provided that the Seller shall not be responsible for actually recording
or filing any such document or instrument. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Seller shall promptly prepare or cause the preparation of a
substitute therefor or cure or cause the curing of such defect, as the case may
be, and shall thereafter deliver the substitute or corrected document to or at
the direction of the Depositor or the Trustee for recording or filing, as
appropriate, at the Seller's expense.
SECTION 6. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
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SECTION 7. Costs.
Costs relating to the transactions contemplated hereby and in the
Mortgage Loan Purchase Agreement shall be borne by the Seller.
SECTION 8. Indemnification.
(a) The Purchaser (the "Indemnifying Party") agrees to indemnify and hold
harmless the Seller against any and all losses, claims, damages or liabilities,
joint or several, to which it may become subject insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are based
upon the breach of any of the Purchaser's representations or warranties
contained in Section 3(b) of this Agreement. This indemnity will be in addition
to any liability which the Purchaser may otherwise have.
(b) The indemnity agreement contained in this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, or (ii) any investigation made by any indemnified party.
SECTION 9. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 10. 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 11. 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.
10
SECTION 12. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such instruments
and take such further actions as the other party may, from time to time,
reasonably request in order to effectuate the purposes and to carry out the
terms of this Agreement.
SECTION 13. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser and its assignee has the right to assign its
interest under this Agreement, in whole or in part. Subject to the foregoing,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser, and their permitted successors and assigns.
SECTION 14. 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.
11
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York Limited Partnership
By: Xxxxxxx Sachs Real Estate Funding Corp.,
its General Partner
By: /s/ Xxx Xxxxxx
-----------------------------------
Name: Xxx Xxxxxx
Title: Vice President
12
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
GMACCM - Xxxxxxx Xxxxx Repurchase Facility
INTEREST
RATE
LOAN NUMBER LOAN NAME ADDRESS CITY STATE ZIP CODE (%) RATE TYPE
---------------- ----------------- ------------- ------------- ------------- -------- ---------- ---------
29129 Mount Pleasant 0000 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx 00000 7.58000 Fixed
Xxxxx Xxxxxx Xxxxxx Xxxxx
00000 Xxxx Xxxxxx 7.82000 Fixed
Industrial
Portfolio
30696-A 000 00xx Xxxxxx 000 00xx Xxxxxxxxxx Xxx Xxxx 00000
Avenue
------------------------------------------------------------------------------------------------------------------
30696-B 000 00xx Xxxxxx 000 00xx Xxxxxxxxxx Xxx Xxxx 00000
Avenue
30696-C 0 Xxxxx Xxxx 0 Xxxxx Xxxx Xxxxxxxxxx Xxx Xxxx 00000
30696-D 00 00xx Xxxxxx 00 00xx Xxxxxx Xxxxxxxxxx Xxx Xxxx 00000
30696-E 00 00xx Xxxxxx 00 00xx Xxxxxx Xxxxxxxxxx Xxx Xxxx 00000
30696-F 33 Comac Xxxx 00 Xxxxx Xxxx Xxxxxxxxxx Xxx Xxxx 00000
------------------------------------------------------------------------------------------------------------------
30696-G 101-125 Comac 101-125 Comac Ronkonkoma New York 11779
Street Street
30696-H 2905 Veterans 2905 Veterans Ronkonkoma New York 00000
Xxxxxxx Xxxxxxx
00000-X 00 Xxxxxxxxx Xxxxx 00 Xxxxxxxxx Xxxxxxx Xxx Xxxx 00000
Drive
30196 Marketplace at 00000 Xxxxx Xxxxxx Xxxxx Xxxxxxx 00000 7.88000 Fixed
Delray Military Trail
09-0001428 Avalon Peak 0000 Xxxx Xxxxx Xxxxxxxx 00000 7.39000 Fixed
Apartments Xxxxxxxxx Xxxx
------------------------------------------------------------------------------------------------------------------
00000 Xxxxx Xxxxxxxxx 9701 and 9703 Xxxxxx Xxxxxxxxxx 00000 7.55000 Fixed
Xxxxxxxx Xxxx
00000 XxxxxXxxxx Suites 1426 Falcon Xxxxxxxx Xxxxxxxxxx 00000 8.18750 Fixed
by Xxxxxxxx Xxxxx
00000 Xxxxxxxxx Freezer 0000 Xxxx Xxx Xxxxxxx Xxxxxxxxxx 00000 8.25000 Fixed
Services, Inc. Washington
Street
30388 Courtyard 000 Xxxxxxxx Xxxxxxxx Xxxxx 00000 7.31000 Fixed
Apartments Village Drive
------------------------------------------------------------------------------------------------------------------
28778 Ontario Xxxxx 4380,4421,4449 Xxxxxxx Xxxxxxxxxx 00000 8.01000 Fixed
,4485,4543,455
& 0000 Xxxxx
Xxxxxx
30440 Xxxxxxxxx Xxx Xxxxx Xxxxxxxx Xxxxxxxxx 00000 7.90000 Fixed
Galleria
Boulevard
REMAINING
ORIGINAL CUT-OFF DATE TERM TO
LOAN NUMBER BALANCE ($) BALANCE ($) MATURITY (MOS.) MATURITY DATE
--------------------------------------------------------------------------------
29129 46,400,000 46,297,687 117 1/5/11
30696 36,483,000 36,388,527 115 11/5/10
30696-A
--------------------------------------------------------------------------------
30696-B
30696-C
30696-D
30696-E
30696-F
--------------------------------------------------------------------------------
30696-G
30696-H
30696-I
30196 18,100,000 18,062,421 117 1/5/11
09-0001428 17,500,000 17,469,725 118 2/1/11
--------------------------------------------------------------------------------
29874 17,000,000 16,991,075 119 3/5/11
29656 13,600,000 13,558,103 117 1/1/26
27111 11,250,000 11,206,732 116 12/5/10
30388 10,880,000 10,854,685 117 1/5/11
--------------------------------------------------------------------------------
28778 10,500,000 10,478,764 93 1/5/09
30440 9,000,000 8,992,357 119 3/1/11
A-2
INTEREST
RATE
LOAN NUMBER LOAN NAME ADDRESS CITY STATE ZIP CODE (%) RATE TYPE
--------------------------------------------------------------------------------------------------------------------
29799 The Shops at 000 X. X. Xxxxxxxx Xxxxx 00000 7.62000 Fixed
Xxxxxxxx Xxxxxxx Xxxxx 0
00000 Residence Inn by 11651 Xxxxxxx Xxxxxxx 00000 8.12500 Fixed
Xxxxxxxx Xxxxxxxxxx
Xxxxxxxxx
00000 Xxxxxx Xxxxx 00000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx 00000 7.65000 Fixed
Extra Space Parkway
--------------------------------------------------------------------------------------------------------------------
30418 Xxxxxx Xxxxx 0000 Xxxx Xxx Xxxxx Xxxxxx 00000 7.72000 Fixed
Apartments Xxxxxxxxxx
Xxxxxxxxx
00000 Xxxxxxx Xxx 000 Xxxxxxx Xxxxxxx Xxxxxxxxx 00000 7.62500 Fixed
Orleans Xxxxxxxxx Xxxxxx
00000 Xxxxxxx Inn 0000 Xxx Xxxx Xxxxxxxxxxxx 00000 8.31250 Fixed
Xxxxxx Road
--------------------------------------------------------------------------------------------------------------------
30518 Carmel Mountain 14331-14391 Xxx Xxxxx Xxxxxxxxxx 00000 7.25000 Fixed
Xxxx Xxxxxxxx Xxxxxxxxxxx
Xxxxxx Xxxxx
00000 Xxxxxxxx Village 0000 Xxxxxx Xxxx Xxx Xxxx 00000 7.85000 Fixed
Xxxxxx Xxxx
00000 Xxxxxxxx/Xxxxxxxxx 7.70000 Fixed
00000-X Xxxxxxxx Xxxxx 00 Xxxxx Xxxxx Xxxxx Xxxxxxxxxxxx 00000 Fixed
Apartments Xxxxx Xxxx Xxxxxxxx
00000-X Xxxxxxxxx Xxxxx 00-00 Xxxxx Xxxxxxxxx Xxxxxxxxxxxx 00000 Fixed
Apartments Lansdowne
Avenue
--------------------------------------------------------------------------------------------------------------------
30769 Cedar Creek 00000 Xxxxxxx Xxxxxxx Xxxxxxxxxx 00000 7.37000 Fixed
Apartments 00 Xxxxx
00000 Xxxx Xxxxxx Lodge Xxxxxxxxx Xxx Xxxx Xxxxxx Xxx Xxxx 00000 8.37500 Fixed
Road
00000 Xxxxxxxxx 0000 Xxxx Xxxxxxxxx Xxxxx Xxxxxxxx 00000 7.71000 Fixed
Xxxxxxxxxx Xxxxxxxxx
00000 Xxxxx Xxxxxx 1200 Tyler Xxxxxxx Xxxxxxxx 00000 7.97000 Fixed
Shopping Center Avenue
--------------------------------------------------------------------------------------------------------------------
29188 Xxxxxxx Xxxxxx 000 Xxxxx Xxx Xxxxx Xxxxxx 00000 8.10000 Fixed
Shopping Center Eastern Avenue
27757 Stony Brook Xxxx Xxxx Xxxxx & Xxxxxxxxxxxx 00000 7.70000 Fixed
Circle Xxxxx 000 Xxxxxx
Xxxxx xx Xxxxxxxxx
Xxxxx Xxxx
00000 The Summit 0000 XxXxx Xxxxxxxxxx Xxxxxxxx 00000 7.20000 Fixed
Apartments Avenue
REMAINING
ORIGINAL CUT-OFF DATE TERM TO
LOAN NUMBER BALANCE ($) BALANCE ($) MATURITY (MOS.) MATURITY DATE
-----------------------------------------------------------------------------
29799 8,000,000 7,982,500 117 1/5/11
29920 7,100,000 7,077,904 117 1/1/26
30074 6,325,000 6,321,789 119 3/5/11
-----------------------------------------------------------------------------
30418 6,140,000 6,126,835 117 1/5/11
30459 5,720,000 5,707,500 117 1/5/11
29731 5,250,000 5,230,034 116 12/1/25
-----------------------------------------------------------------------------
30518 5,100,000 5,097,050 119 3/5/11
27694 4,900,000 4,892,116 118 2/5/11
29408 4,000,000 3,983,040 116 12/5/10
29408-A
29408-B
-----------------------------------------------------------------------------
30769 3,850,000 3,843,318 118 2/5/11
29481 3,800,000 3,785,711 116 12/1/25
30545 3,400,000 3,394,408 118 2/5/11
30278 3,390,000 3,381,519 116 12/5/10
-----------------------------------------------------------------------------
29188 3,372,000 3,361,537 115 11/5/10
27757 3,270,000 3,259,101 117 1/5/11
30878 3,150,000 3,148,148 119 3/5/11
A-3
INTEREST
RATE
LOAN NUMBER LOAN NAME ADDRESS CITY STATE ZIP CODE (%) RATE TYPE
-------------------------------------------------------------------------------------------------------------------
30681 Cardinal-Pineview 4731 Xxxxx Xxxxxxx Xxxxxxx 00000 7.51000 Fixed
Apts. Xxxx Xxxxx
Xxxx
-------------------------------------------------------------------------------------------------------------------
00000 Asmann & Westwood 8.00000 Fixed
Apartments
00000-X Xxxxxx Xxxxxxxxxx 0000-0000 Xxxxxxxxxx Xxxx 00000 Fixed
Xxxxxx Xxxxxx
00000-X Xxxxxxxx 2503-2505 Xxxxxxxxxx Xxxx 00000 Fixed
Apartments Xxxxxxxx Ave
and 2930-2934
Xxxxxxxxx
Xxxxxx
00000 Xxxxx Landing 0000 Xxxxx Xxxxx Xxxxx Xxxxxxx 00000 7.90000 Fixed
Office Park Landing Beach
Parkway
00000 Xxxxxxx Xxxxx 000-000 Xxxxxxx Xxxx 00000 7.30000 Fixed
Apartments Mohawk Trail
-------------------------------------------------------------------------------------------------------------------
30982 Office Max on 00 Xxxxx Xxxxxx Xxxxx 00000 7.44000 Fixed
Xxxxx Xxxxxx Xxxxxx
00000 Xxxxx Nine 5234, 5244 Xxxxxxxx Xxxxxxxxxx 00000 7.52000 Fixed
Apartments and 0000
Xxxxx Xxxxxx
28304 1127 1127 Xxxxxxxx Xxxxxxxx 00000 8.12000 Fixed
International Xxxxxxxxxxxxx
Xxxxxxx Xxxxxxx
00000 Xxxxxxxx Xxxxxxx 000 Xxxx Xxxxxxxx Xxxxx 00000 8.10000 Fixed
Apartments Xxxxxx Xxxxxx
00000 Xxxxxxxx- 0000-X Xxxxxxxxx Xxxxxxx 00000 7.51000 Fixed
Heatherwood Apts. Xxxxxxxx
Boulevard
-------------------------------------------------------------------------------------------------------------------
29267 XxXxxxxxx Court 0000-0000 X. Xxx Xxxxxxx Xxxxx 00000 8.36000 Fixed
Shopping Center Xxxxxxxxxx
Xxxxxxxxx
00000 326-338 326-338 Xxxx Xxxx Xxxxxxxxxx 00000 7.62500 Fixed
Xxxxxxxxxx Xxxxxx Xxxxxxxxxx
Xxxxxx
00000 Xxxxxx Xxxx 4708 Xxxxxxxx Xxxx Xxxxxxxx 00000 7.35000 Fixed
Apartments Xxxxxxxxx
00xx Xxxxxx
00000 After Six 4114-4190 G Xxxxxxxxxxxx Xxxxxxxxxxxx 00000 7.71000 Fixed
Shopping Street
Center-Phase II
REMAINING
ORIGINAL CUT-OFF DATE TERM TO
LOAN NUMBER BALANCE ($) BALANCE ($) MATURITY (MOS.) MATURITY DATE
--------------------------------------------------------------------------------
30681 2,700,000 2,693,264 118 2/5/11
--------------------------------------------------------------------------------
29218 2,625,000 2,606,483 113 9/1/10
29218-A
29218-B
21815 2,460,000 2,454,913 117 1/5/11
28690 2,365,000 2,363,653 119 3/5/11
--------------------------------------------------------------------------------
30982 2,200,000 2,196,224 118 2/5/11
29566 2,100,000 2,092,796 117 1/5/11
28304 2,100,000 2,091,149 113 9/5/10
29522 1,941,000 1,933,332 116 12/5/10
30238 1,900,000 1,896,775 118 2/5/11
--------------------------------------------------------------------------------
29267 1,755,000 1,748,383 116 12/5/10
30449 1,500,000 1,499,232 119 3/5/11
30357 1,350,000 1,347,650 118 2/5/11
29131 1,260,000 1,257,293 117 1/5/11
A-4
23305 Xxxxx Xxxxx 000 Xxxxx Xxxxxxxxxx Xxxxxxxxx 00000 8.10000 Fixed
Xxxxxxxxxx Xxxxx Xxxxxx
00000 836,000 830,528 116 12/5/10
A-5
ANTICIPATED
REPAYMENT DAY MONTHLY CREDIT LEASE
LOAN NUMBER LOAN NAME DATE PAYMENT DUE PAYMENT ARD LOAN LOAN DEFEASANCE
------------------------------------------------------------------------------------------------------------------------------
29129 Mount Pleasant 5 326,981 No No Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
Xxxxx Xxxxxx
00000 Xxxx Xxxxxx 5 263,136 No No Lockout/28_Defeasance/89_0%/2
Industrial
Portfolio
30696-A 000 00xx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------
30696-B 000 00xx Xxxxxx
00000-X 1 Comac Loop
30696-D 00 00xx Xxxxxx
00000-X 00 00xx Xxxxxx
00000-X 33 Comac Loop
------------------------------------------------------------------------------------------------------------------------------
30696-G 000-000 Xxxxx
Xxxxxx
30696-H 0000 Xxxxxxxx
Xxxxxxx
00000-X 99 Lafayette Drive
30196 Marketplace at 5 131,300 No No Lockout/27_Defeasance/89_0%/4
Delray
09-0001428 Avalon Peak 1 121,047 No No Lockout/26_Defeasance/90_0%/4
Apartments
------------------------------------------------------------------------------------------------------------------------------
29874 Fluor Buildings 5 119,449 No No Lockout/25_Defeasance/91_0%/4
29656 TownePlace Suites 1/1/11 1 106,662 Yes No Lockout/47_Defeasance/71_0%/2
by Marriott
27111 Preferred Freezer 5 88,701 No No Lockout/28_Defeasance/90_0%/2
Services, Inc.
30388 Courtyard 5 74,664 No No Lockout/27_Defeasance/91_0%/2
Apartments
------------------------------------------------------------------------------------------------------------------------------
28778 Ontario Xxxxx 5 77,118 No No Lockout/27_Defeasance/65_0%/4
30440 Residence Inn 1 68,868 No No Lockout/47_Defeasance/69_0%/4
29799 The Shops at 5 56,596 No No Lockout/27_Defeasance/91_0%/2
Xxxxxxxx Xxxxxxx
00000 Residence Inn by 1/1/11 1 55,388 Yes No Lockout/35_Defeasance/83_0%/2
Marriott
30074 Laguna Hills 5 44,877 No No Lockout/25_Defeasance/94_0%/1
Extra Space
------------------------------------------------------------------------------------------------------------------------------
30418 Xxxxxx Xxxxx 5 43,860 No No Lockout/27_Defeasance/89_0%/4
Apartments
30459 Greater New 5 40,486 No No Lockout/27_Defeasance/91_0%/2
Orleans Warehouse
29731 Hampton Inn 12/1/10 1 41,613 Yes No Lockout/35_Defeasance/82_0%/3
------------------------------------------------------------------------------------------------------------------------------
ADDITIONAL SERVICING
BROKER SERVICING FEE RATE
LOAN NUMBER STRIP LOAN FEE LOAN (%)
------------------------------------------------------
29129 0.0776
30696 0.1276
30696-A
------------------------------------------------------
30696-B
30696-C
30696-D
30696-E
30696-F
------------------------------------------------------
30696-G
30696-H
30696-I
30196 0.0526
09-0001428 0.0326
------------------------------------------------------
29874 0.1276
29656 0.1276
27111 0.1276
30388 0.1276
------------------------------------------------------
28778 0.1276
30440 0.1276
29799 0.1276
29920 0.1276
30074 0.1276
------------------------------------------------------
30418 0.1276
30459 0.1276
29731 0.1276
------------------------------------------------------
A-6
ANTICIPATED
REPAYMENT DAY MONTHLY CREDIT LEASE
LOAN NUMBER LOAN NAME DATE PAYMENT DUE PAYMENT ARD LOAN LOAN DEFEASANCE
-----------------------------------------------------------------------------------------------------------------------------
30518 Carmel Mountain 5 34,790 Xx Xx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
Xxxx Xxxxxxxx
Xxxxxx
00000 Xxxxxxxx Village 5 35,443 No No Lockout/26_Defeasance/93_0%/1
Square
29408 Parkwood/Stratford 5 30,082 No No Lockout/28_Defeasance/91_0%/1
29408-A Parkwood Manor
Apartments
00000-X Xxxxxxxxx Xxxxx
Apartments
-----------------------------------------------------------------------------------------------------------------------------
30769 Cedar Creek 5 26,578 Xx Xx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
Xxxxxxxxxx
00000 Xxxx Xxxxxx Lodge 12/1/10 1 30,279 No No Lockout/47_Defeasance/71_0%/2
30545 Sandhurst 5 24,264 Xx Xx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
Xxxxxxxxxx
00000 Xxxxx Xxxxxx 5 24,804 No No Lockout/28_Defeasance/90_0%/2
Shopping Center
-----------------------------------------------------------------------------------------------------------------------------
00000 Xxxxxxx Xxxxxx 5 24,978 No No Lockout/29_Defeasance/89_0%/2
Shopping Center
27757 Stony Brook 5 24,592 No No Lockout/27_Defeasance/92_0%/1
Circle
30878 The Summit 5 21,382 No No Lockout/25_Defeasance/92_0%/3
Apartments
30681 Cardinal-Pineview 5 19,970 No No Lockout/26_Defeasance/92_0%/2
Apts.
-----------------------------------------------------------------------------------------------------------------------------
29218 Xxxxxx & Westwood 1 20,260 No No Lockout/31_Defeasance/85_0%/4
Apartments
29218-A Xxxxxx Apartments
29218-B Westwood
Apartments
21815 Xxxxx Landing 5 17,879 Xx Xx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
Xxxxxx Xxxx
00000 Xxxxxxx Xxxxx 5 16,214 No No Lockout/25_Defeasance/93_0%/2
Apartments
-----------------------------------------------------------------------------------------------------------------------------
30982 Office Max on 5 15,292 Xx Xx Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
Xxxxx Xxxxxx
00000 Xxxxx Nine 5 15,546 No No Lockout/27_Defeasance/91_0%/2
Apartments
28304 1127 5 15,585 No No Lockout/31_Defeasance/87_0%/2
International
Parkway
ADDITIONAL SERVICING
BROKER SERVICING FEE RATE
LOAN NUMBER STRIP LOAN FEE LOAN (%)
------------------------------------------------------
30518 0.1276
27694 0.1276
29408 0.1276
29408-A
29408-B
------------------------------------------------------
30769 0.1276
29481 0.1276
30545 0.1276
30278 0.1276
------------------------------------------------------
29188 0.1276
27757 0.1276
30878 0.1276
30681 0.1276
------------------------------------------------------
29218 0.0876
29218-A
29218-B
21815 0.1276
28690 0.1276
------------------------------------------------------
30982 0.1276
29566 0.1276
28304 0.1276
A-7
ANTICIPATED
REPAYMENT DAY MONTHLY CREDIT LEASE
LOAN NUMBER LOAN NAME DATE PAYMENT DUE PAYMENT ARD LOAN LOAN DEFEASANCE
---------------- ----------------- ---------- ------------- --------- ---------- ------------ ------------------------------
29522 Hillside Village 5 15,110 No No Lockout/28_Defeasance/89_0%/3
Apartments
30238 Cardinal-Heatherwood 5 13,298 No No Lockout/26_Defeasance/92_0%/2
Apts.
---------------- ----------------- ---------- ------------- ---------- ---------- ------------ ------------------------------
29267 XxXxxxxxx Court 5 13,967 No No Lockout/28_Defeasance/90_0%/2
Shopping Center
30449 326-338 5 10,617 No No Xxxxxxx/00_Xxxxxxxxxx/00_0%/0
Xxxxxxxxxx Xxxxxx
00000 Xxxxxx Xxxx 5 9,301 No No Lockout/26_Defeasance/92_0%/2
Apartments
29131 After Six 5 8,992 No No Lockout/27_Defeasance/90_0%/3
Shopping
Center-Phase II
---------------- ----------------- ---------- ------------- ---------- ---------- ------------ ------------------------------
23305 Xxxxx Xxxxx 5 7,045 No No Lockout/28_Defeasance/89_0%/3
Apartments
ADDITIONAL SERVICING
BROKER SERVICING FEE RATE
LOAN NUMBER STRIP LOAN FEE LOAN (%)
------------------------------------------------------
[S] [C] [C] [C]
29522 0.1276
30238 0.1276
------------------------------------------------------
29267 0.1276
30449 0.1276
30357 0.1276
29131 0.1276
------------------------------------------------------
23305 0.1276
A-8
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date herein below specified or, if no such date is
specified, as of the Closing Date, except as set forth on Schedule B-1 hereto,
that:
(i) Ownership of Mortgage Loans. Immediately prior to the
transfer thereof to the Purchaser, the Seller had good and marketable title to,
and was the sole owner and holder of, such Mortgage Loan, free and clear of any
and all liens, encumbrances and other interests on, in or to such Mortgage Loan
(other than, in certain cases, the right of a subservicer to directly service
such Mortgage Loan). Such transfer validly assigns ownership of such Mortgage
Loan to the Purchaser free and clear of any pledge, lien, encumbrance or
security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full
right and authority to sell, assign and transfer such Mortgage Loan to the
Purchaser. No provision of the Mortgage Note, Mortgage or other loan document
relating to such Mortgage Loan prohibits or restricts the Seller's right to
assign or transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to
such Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct
in all material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the
Cut-off Date for such Mortgage Loan, and has not been during the twelve-month
period prior thereto, 30 days or more delinquent in respect of any debt service
payment required thereunder, without giving effect to any applicable grace
period.
(v) Permitted Encumbrances. The Permitted Encumbrances (as
defined in the Mortgage Loan Purchase Agreement of which this Exhibit B forms a
part) do not materially interfere with the security intended to be provided by
the related Mortgage, the current use or operation of the related Mortgaged
Property or the current ability of the Mortgaged Property to generate net
operating income sufficient to service the Mortgage Loan. If the Mortgaged
Property is operated as a nursing facility, a hospitality property or a
multifamily property, the Mortgage, together with any separate security
agreement, similar agreement and UCC financing statement, if any, establishes
and creates a first priority, perfected security interest (subject only to any
prior purchase money security interest), to the extent such security interest
can be perfected by the recordation of a Mortgage or the filing of a UCC
financing statement, in all personal property owned by the Mortgagor that is
used in, and is reasonably necessary to, the operation of the related Mortgaged
Property.
(vi) Title Insurance. The lien of the related Mortgage is
insured by an ALTA lender's title insurance policy ("Title Policy"), or its
equivalent as adopted in the applicable jurisdiction, issued by a nationally
recognized title insurance company, insuring the originator of such Mortgage
Loan, its successors and assigns, as to the first priority lien of the Mortgage
in the original principal amount of the Mortgage Loan after all advances of
principal, subject only to
B-1
Permitted Encumbrances (or, if a title insurance policy has not yet been issued
in respect of the Mortgage Loan, a policy meeting the foregoing description is
evidenced by a commitment for title insurance "marked-up" at the closing of such
loan). Each Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) is in full force and effect, all premiums thereon have been
paid and, to the Seller's knowledge, no material claims have been made
thereunder and no claims have been paid thereunder. The Seller has not, by act
or omission, done anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer.
(vii) No Waivers by Seller of Material Defaults. The Seller
has not waived any material default, breach, violation or event of acceleration
existing under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no
valid offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth
in any engineering report prepared in connection with the origination of (or
obtained in connection with or otherwise following the Seller's acquisition of)
such Mortgage Loan, the related Mortgaged Property is, to the Seller's
knowledge, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. The Seller has no actual
notice of the commencement of a proceeding for the condemnation of all or any
material portion of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied
with all applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds
of such Mortgage Loan have been fully disbursed and there is no requirement for
future advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage
and all other documents and instruments evidencing, guaranteeing, insuring or
otherwise securing such Mortgage Loan have been duly and properly executed by
the parties thereto, and each is the legal, valid and binding obligation of the
maker thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged
Property are insured under an "all risk" insurance policy against loss by
hazards of extended coverage in an amount (subject to a customary deductible) at
least equal to the full insurable replacement cost of the improvements located
on such Mortgaged Property, which policy contains appropriate
B-2
endorsements to avoid the application of coinsurance and does not permit
reduction in insurance proceeds for depreciation. If any portion of the
improvements upon the related Mortgaged Property was, at the time of the
origination of such Mortgage Loan, in a flood zone area as identified in the
Federal Register by the Federal Emergency Management Agency as a 100 year flood
zone or special hazard area, and flood insurance was available, a flood
insurance policy meeting any requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally acceptable
insurance carrier, in an amount representing coverage not less than the least of
(1) the outstanding principal balance of such Mortgage Loan, (2) the full
insurable value of such Mortgaged Property, (3) the maximum amount of insurance
available under the National Flood Insurance Act of 1968, as amended, or (4)
100% of the replacement cost of the improvements located on such Mortgaged
Property. In addition, the Mortgage requires the Mortgagor to maintain in
respect of the Mortgaged Property workers' compensation insurance (if
applicable), comprehensive general liability insurance in amounts generally
required by the Seller, and at least twelve months rental or business
interruption insurance, and all such insurance required by the Mortgage to be
maintained is in full force and effect. Each such insurance policy names the
holder of the Mortgage as an additional insured or contains a mortgagee
endorsement naming the holder of the Mortgage as loss payee and requires prior
notice to the holder of the Mortgage of termination or cancellation, and no such
notice has been received, including any notice of nonpayment of premiums, that
has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property
was subject to one or more environmental site assessments (or an update of a
previously conducted assessment), which was (were) performed on behalf of the
Seller, or as to which the related report was delivered to the Seller in
connection with its origination or acquisition of such Mortgage Loan; and the
Seller, having made no independent inquiry other than reviewing the resulting
report(s) and/or employing an environmental consultant to perform the
assessment(s) referenced herein, has no knowledge of any material and adverse
environmental conditions or circumstance affecting such Mortgaged Property that
was not disclosed in the related report(s). The Seller has not taken any action
with respect to such Mortgage Loan or the related Mortgaged Property that could
subject the Purchaser, or its successors and assigns in respect of the Mortgage
Loan, to any liability under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA") or any other
applicable federal, state or local environmental law, and the Seller has not
received any actual notice of a material violation of CERCLA or any applicable
federal, state or local environmental law with respect to the related Mortgaged
Property that was not disclosed in the related report. The related Mortgage or
loan documents in the related Mortgage File requires the Mortgagor to comply
with all applicable federal, state and local environmental laws and regulations.
To the extent an environmental insurance policy has been obtained with respect
to a Mortgage Loan, (i) the related environmental insurance policy is in full
force and effect, (ii) on the effective date of such environmental insurance
policy, the Seller, as originator, had no knowledge of any material and adverse
environmental condition or circumstance affecting the Mortgage Property 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 environmental assessment, engineering or other report
provided to the policy issuer and (iii) the premiums on the environmental
insurance policy have been paid in full or the related loan documents provide
for payment of such premiums by the related Mortgagor or other responsible party
as the same shall be payable.
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(xv) No Cross-Collateralization with Other Mortgage Loans.
Such Mortgage Loan is not cross-collateralized with any mortgage loan that will
not be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related
Mortgage and the Mortgage Note have not been impaired, waived, altered or
modified in any material respect, except as specifically set forth in the
related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes,
ground rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties would
be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. The
interest of the related Mortgagor in the related Mortgaged Property consists of
a fee simple interest in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage
referred to in clause (iii) of Exhibit B of the Mortgage Loan Purchase Agreement
between Xxxxxxx Xxxxx Mortgage Company, as seller and GMAC Commercial Mortgage
Securities, Inc., as purchaser, dated March 29, 2001, constitutes the legal,
valid and binding assignment of such Mortgage from the relevant assignor to the
Trustee. The Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each Mortgage
Loan establishes and creates a valid, subsisting and, subject only to Permitted
Encumbrances, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, subleases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related Mortgage,
and each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases, not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form and constitutes a legal,
valid and binding assignment, sufficient to convey to the assignee named therein
all of the assignor's right, title and interest in, to and under such Assignment
of Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage
Loan that are, as of the Closing Date, required to be deposited with the
mortgagee or its agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the actual knowledge of the Seller, as
of the Closing Date, the related Mortgaged Property was and is free and clear of
any mechanics' and materialmen's liens or liens in the nature thereof which
create a lien prior to that created by the related Mortgage, except those which
are insured against by the Title Policy referred to in (vi) above.
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(xxiii) No Material Encroachments. To the Seller's knowledge
(based on surveys and/or title insurance obtained in connection with the
origination of such Mortgage Loan), as of the date of such origination, no
improvement that was included for the purpose of determining the appraised value
of the related Mortgaged Property at the time of origination of such Mortgage
Loan lay outside the boundaries and building restriction lines of such property
to any material extent (unless affirmatively covered by the title insurance
referred to in paragraph (vi) above), and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent. To
the Seller's knowledge, based upon opinions of counsel and/or other due
diligence customarily performed by the Seller, the improvements located on or
forming part of such Mortgaged Property comply in all material respects with
applicable zoning laws and ordinances (except to the extent that they may
constitute legal non-conforming uses).
(xxiv) Originator Authorized. To the extent required under
applicable law as of the Closing Date, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it held the Mortgage Loan to the extent
necessary to ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. (A) To the Seller's knowledge,
there exists no material default, breach or event of acceleration under the
related Mortgage or Mortgage Note, and (B) the Seller has not received actual
notice of any event (other than payments due but not yet delinquent) that, with
the passage of time or with notice and the expiration of any grace or cure
period, would constitute such a material default, breach or event of
acceleration; provided, however, that this representation and warranty does not
cover any default, breach or event of acceleration that specifically pertains to
any matter otherwise covered or addressed by any other representation and
warranty made by the Seller herein.
(xxvi) Inspection. In connection with the origination or
acquisition of each Mortgage Loan, the Seller inspected or caused to be
inspected the Mortgaged Property.
(xxvii) No Equity Participation or Contingent Interest. The
Mortgage Loan contains no equity participation by the lender, and does not
provide for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property, or for negative
amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan
has, to the Seller's knowledge, advanced funds or induced, solicited or
knowingly received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Loan (other than amounts paid by the tenant as
specifically provided under the related lease).
(xxix) Licenses, Permits, Etc. To the Seller's knowledge,
based on due diligence customarily performed in the origination of comparable
mortgage loans by the Seller, as of the date of origination of the Mortgage
Loan, the related Mortgagor or operator of the related Mortgaged Property was in
possession of all material licenses, permits and authorizations required by
applicable laws for the ownership and operation of the related Mortgaged
Property as it was then operated.
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(xxx) Servicing. The servicing and collection practices used
with respect to the Mortgage Loan have complied with applicable law in all
material respects and are consistent with the servicing standard set forth in
Section 3.01(a) of the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. The related Mortgage or Mortgage
Note, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph (xii)) such as to
render the rights and remedies of the holders thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(xxxii) Insurance and Condemnation Proceeds. The related
Mortgage provides that insurance proceeds and condemnation proceeds will be
applied for one of the following purposes: either to restore or repair the
Mortgaged Property, or to repay the principal of the Mortgage Loan, or otherwise
at the option of the holder of the Mortgage.
(xxxiii) LTV. The gross proceeds of such Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (A) such Mortgage Loan is secured by an
interest in real property having a fair market value (1) at the date the
Mortgage Loan was originated at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (2) at the Closing Date at least equal
to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (X) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (Y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (1) and (2) of this
paragraph (xxxiii) shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans; or (B) substantially all the proceeds of such Mortgage Loan were
used to acquire, improve or protect the real property which served as the only
security for such Mortgage Loan (other than a recourse feature or other third
party credit enhancement within the meaning of Treas. Reg. ss.
1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage
Loan was "significantly modified" prior to the Closing Date so as to result in a
taxable exchange under Section 1001 of the Code, it either (A) was modified as a
result of the default or reasonably foreseeable default of such Mortgage Loan or
(B) satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Reserved.
(xxxvi) Litigation. To the Seller's actual knowledge, there
are no pending actions, suits or proceedings by or before any court or
governmental authority against or affecting the related Mortgagor or the related
Mortgaged Property that, if determined adversely to such Mortgagor or Mortgaged
Property, would materially and adversely affect the value of the
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Mortgaged Property or the ability of the Mortgagor to pay principal, interest or
any other amounts due under such Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of
the related Mortgagor's fee simple interest in real estate or the related
Mortgage Loan is secured in whole or in part by the interest of the Mortgagor as
a lessee under a ground lease of the Mortgaged Property (a "Ground Lease"). Any
Mortgage Loan that is secured by the interest of the Mortgagor under a Ground
Lease may or may not be secured by the related fee interest in such Mortgaged
Property (the "Fee Interest"). If a Mortgage Loan is secured in whole or in part
by a Ground Lease, either (1) the ground lessor's Fee Interest is subordinated
to the lien of the Mortgage, (2) such Mortgage Loan is also secured by the
related fee interest or (3) the following apply to such Ground Lease:
(A) To the actual knowledge of the Seller, based on due
diligence customarily performed in the origination of
comparable mortgage loans by the Seller, such Ground
Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related
estoppel letter or lender protection agreement
between the Seller and related lessor) permits the
interest of the lessee thereunder to be encumbered by
the related Mortgage; and there has been no material
change in the payment terms of such Ground Lease
since the origination of the related Mortgage Loan,
with the exception of material changes reflected in
written instruments that are a part of the related
Mortgage File;
(B) The lessee's interest in such Ground Lease is not
subject to any liens or encumbrances superior to, or
of equal priority with, the related Mortgage, other
than the ground lessor's related fee interest and
Permitted Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and
assigns upon notice to, but without the consent of,
the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is
further assignable by the Purchaser and its
successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor;
(D) Such Ground Lease is in full force and effect, and
the Seller has received no notice that an event of
default has occurred thereunder, and, to the Seller's
actual knowledge, there exists no condition that, but
for the passage of time or the giving of notice, or
both, would result in an event of default under the
terms of such Ground Lease;
(E) Such Ground Lease, or an estoppel letter or other
agreement, requires the lessor under such Ground
Lease to give notice of any default by the lessee to
the mortgagee under such Mortgage Loan, provided that
the mortgagee under such Mortgage Loan has provided
the lessor with notice of its lien
B-7
in accordance with the provisions of such Ground
Lease, and such Ground Lease, or an estoppel letter
or other agreement, further provides that no notice
of termination given under such Ground Lease is
effective against the mortgagee unless a copy has
been delivered to the mortgagee;
(F) The mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of
the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable
after the receipt of notice of any such default,
before the lessor thereunder may terminate such
Ground Lease;
(G) Such Ground Lease has an original term (including any
extension options set forth therein) which extends
not less than ten years beyond the Stated Maturity
Date of the related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance
proceeds will be applied either to the repair or
restoration of all or part of the related Mortgaged
Property, with the mortgagee under such Mortgage Loan
or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or
restoration progresses (except in such cases where a
provision entitling another party to hold and
disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial
mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon;
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed, as of the date of
origination of the related Mortgage Loan, as
commercially unreasonable by the Seller; and such
Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an
uncured default, to disturb the possession, interest
or quiet enjoyment of any subtenant of the lessee, or
in any manner, which would materially adversely
affect the security provided by the related Mortgage;
and
(J) Such Ground Lease, or an estoppel letter or other
agreement, requires the lessor to enter into a new
lease in the event of a termination of the Ground
Lease by reason of a default by the Mortgagor under
the Ground Lease, including, rejection of the ground
lease in a bankruptcy proceeding.
(xxxviii) Deed of Trust. If the related Mortgage is a deed of
trust, a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a
release of a portion of the Mortgaged Property was contemplated at origination
of the Mortgage Loan and such portion
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was not considered material for purposes of underwriting the Mortgage Loan, (b)
release is conditioned upon the satisfaction of certain underwriting and legal
requirements or the payment of a release price, or (c) a defeasance is affected
in accordance with the Mortgage Loan Documents, the related Mortgage Note or
Mortgage does not require the holder thereof to release all or any portion of
the Mortgaged Property from the lien of the related Mortgage except upon payment
in full of all amounts due under such Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the
related Mortgaged Property to be encumbered by any lien junior to or of equal
priority with the lien of the related Mortgage (excluding any lien relating to
another Mortgage Loan that is cross-collateralized with such Mortgage Loan)
without the prior written consent of the holder thereof or the satisfaction of
debt service coverage or similar conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the
Mortgagor is not a debtor in any state or federal bankruptcy or insolvency
proceeding.
(xlii) Due Organization of Mortgagors. As of the date of
origination of each Mortgage, each related Mortgagor which is not a natural
person was duly organized and validly existing under the laws of the state of
its jurisdiction.
(xliii) Due-On-Sale. The Mortgage Loan contains provisions for
the acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of such Mortgage Loan, the
related Mortgaged Property, or any controlling interest therein, is directly or
indirectly transferred or sold.
(xliv) Single Purpose Entity. As of the date of the
origination of the relevant Mortgage Loan, the related Mortgagor is an entity,
other than an individual, whose organizational documents or the related Mortgage
Loan Documents provide substantially to the effect that the Mortgagor: (A) is
formed or organized solely for the purpose of owning and operating one or more
of the Mortgaged Properties securing the Mortgage Loans, (B) may not engage in
any business unrelated to such Mortgaged Property or Mortgaged Properties, (C)
does not have any material assets other than those related to its interest in
and operation of such Mortgage Property or Mortgaged Properties, (D) may not
incur indebtedness other than as permitted by the related Mortgage or other
Mortgage Loan Documents, (E) has its own books and records separate and apart
from any other person, and (F) holds itself out as a legal entity, separate and
apart from any other person.
(xlv) Defeasance Provisions. Any Mortgage Loan which contains
a provision for any defeasance of mortgage collateral by the Mortgagor, either
(A) requires the consent of the holder of the Mortgage Loan to any defeasance,
or (B) permits defeasance (i) no earlier than two years after the Closing Date
(as defined in the Pooling and Servicing Agreement, dated as of April 1, 2001),
(ii) only with substitute collateral constituting "government securities" within
the meaning of Treas. Reg. ss. 1.860G-2(a)(8)(i), and (iii) only to facilitate
the disposition of mortgage real property and not as a part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
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(xlvi) Defeasance Costs. If the Mortgage Loan permits
defeasance, then the mortgage loan documents related to such Mortgage Loan
require (a) the borrower to pay all rating agency fees associated with
defeasance and all other out-of-pocket expenses associated with defeasance such
as accountant's fees and opinions of counsel, or (b) that the borrower provide a
REMIC opinion, an opinion regarding the first priority perfected security
interest in the defeasance collateral, rating agency letters certifying no
rating qualification or downgrade on any securities, and accountant
certification that all payments from the defeasance collateral are sufficient to
make monthly principal and interest payments on such Mortgage Loan through
maturity.
(xlvii) Rating Agency Fees for Assumptions. In the case of
each Mortgage Loan that entitles the Mortgagor to cause an assumption of such
Mortgage Loan by a third party, the holder of each Mortgage Loan is entitled to
require the payment by the related Mortgagor of any related rating agency fees
if a Rating Agency Confirmation is required under the Pooling and Servicing
Agreement in connection with such assumption.
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, the Depositor and/or the Trustee and shall inure to the
benefit of the Purchaser, and its successors and assigns (including without
limitation the Depositor, the Trustee and the holders of the Certificates),
notwithstanding any restrictive or qualified endorsement or assignment.
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SCHEDULE B-1 TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
(XXXVII) LEASEHOLD ESTATE
The following Mortgage loan(s) are secured in whole or in part by the
interest of the borrower as a lessee under a Ground Lease.
(G) Ground Lease has an original term which extends not less than
ten (10) years beyond the Stated Maturity Date.
Loan Number Property Issue
----------- -------- -----
29129 Mt. Pleasant Town Center Original term of Ground Lease
expires four (4) years after loan
maturity.
(XLIV) SINGLE PURPOSE ENTITY
Borrowers on the following loan(s) are not single purpose entities.
Loan Number Property Issue
----------- -------- -----
00000 Xxxxxx Xxxxx Xxxxxx Borrower is not a SPE. Borrower
owns more than Mobile Home Park
one property. Borrower is an
owner that functions as an
ongoing construction company.
