EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of December 18, 2003, between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.,
as Mortgage Loan Seller (the "Mortgage Loan Seller" or "MSMC") and GMAC
Commercial Mortgage Securities, Inc., as purchaser (the "Purchaser").
The Mortgage Loan Seller desires to sell, assign, transfer and otherwise
convey to the Purchaser, and the Purchaser desires to purchase, subject to the
terms and conditions set forth below, the multifamily and commercial mortgage
loans (the "Mortgage Loans") identified on the schedule annexed hereto as
Exhibit A (the "Mortgage Loan Schedule"). Certain other multifamily and
commercial mortgage loans (the "Other Mortgage Loans") will be purchased by the
Purchaser from (i) GMAC Commercial Mortgage Corporation ("GMACCM"), pursuant to,
and for the consideration described in, the Mortgage Loan Purchase Agreement,
dated as of December 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) ▇▇▇▇▇▇▇ Sachs
Mortgage Company ("GSMC"), pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of December 18, 2003 (the "GSMC
Mortgage Loan Purchase Agreement"), between the Purchaser and GSMC 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, GSMC 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 ▇▇▇▇▇'▇ Investors Service, Inc., Standard & Poor's
Ratings Services, a division of the ▇▇▇▇▇▇-▇▇▇▇ 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 loan companion
paying agent, Lennar Partners, Inc., as special servicer of the Mortgage Loans
(other than the AFR/Bank of America Portfolio Loan) and the Other Mortgage Loans
(in such capacity, as applicable, the "Special Servicer"), Midland Loan
Services, Inc., as special servicer of the AFR/Bank of America Portfolio Whole
Loan (the "AFR/Bank of America Special Servicer"), LaSalle Bank National
Association, as trustee (in such capacity, 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., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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., ▇▇▇▇▇▇▇, Sachs & Co. and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & 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 (including all the Mortgage Loan Seller's rights under the ▇▇▇▇▇ Fargo
Whole Loan Interim Servicing Agreement). 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 $347,719,623, 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
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deliver or cause to be delivered to or at the direction of the Purchaser) all
scheduled payments of principal and interest due on the Mortgage Loans after the
Cut-off Date for each such Mortgage Loan, and all other recoveries of principal
and interest collected thereon after such Cut-off Date. All scheduled payments
of principal and interest due thereon on or before the Cut-off Date for each
Mortgage Loan and collected after such Cut-off Date shall belong to the Mortgage
Loan Seller.
(b) In connection with the Mortgage Loan Seller's assignment pursuant to
subsection (a) above, the Mortgage Loan Seller acknowledges that the Depositor
has directed the Mortgage Loan Seller, and the Mortgage Loan Seller hereby
agrees, to deliver the Mortgage File (as such term is defined in the Pooling and
Servicing Agreement) to the Trustee, and otherwise comply with the requirements
of Sections 2.01(b), 2.01(c) and 2.01(d) of the Pooling and Servicing Agreement,
provided that whenever the term Mortgage File is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received.
(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 corporation, duly organized, validly
existing and in good standing under the laws of the State of New York, and
is in compliance with the laws of each State in which any Mortgaged
Property is located to the 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
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Mortgage Loan Seller, will not violate the Mortgage Loan Seller's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets, in
each case which materially and adversely affect the ability of the Mortgage
Loan Seller to carry out the transactions contemplated by this Agreement.
(iii) The Mortgage Loan Seller has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by the Purchaser, constitutes a valid, legal and binding obligation of the
Mortgage Loan Seller, enforceable against the Mortgage Loan Seller in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
that purport to provide indemnification for securities laws liabilities.
(v) The Mortgage Loan Seller is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Mortgage Loan Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Mortgage Loan Seller to perform its obligations under this Agreement
or the financial condition of the Mortgage Loan Seller.
(vi) No litigation is pending with regard to which the Mortgage Loan
Seller has received service of process or, to the best of the Mortgage Loan
Seller's knowledge, threatened against the Mortgage Loan Seller the outcome
of which, in the Mortgage Loan Seller's good faith and reasonable judgment,
could reasonably be expected to prohibit the Mortgage Loan Seller from
entering into this Agreement or materially and adversely affect the ability
of the Mortgage Loan Seller to perform its obligations under this
Agreement.
(vii) The Mortgage Loan Seller has not dealt with any broker,
investment banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers and their respective affiliates, that
may be entitled to any commission or 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
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any Certificate or any other similar security to any person in any manner,
(B) solicited any offer to buy or to accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (C) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate
or any other similar security with any person in any manner, (D) made any
general solicitation by means of general advertising or in any other manner
with respect to any Certificate, any interest in any Certificate or any
similar security, or (E) taken any other action, that (in the case of any
of the acts described in clauses (A) through (E) above) would constitute or
result in a violation of the Securities Act or any state securities law
relating to or in connection with the issuance of the Certificates or
require registration or qualification pursuant to the Securities Act or any
state securities law of any Certificate not otherwise intended to be a
Registered Certificate. In addition, the Mortgage Loan Seller will not act,
nor has it authorized or will it authorize any person to act, in any manner
set forth in the foregoing sentence with respect to any of the Certificates
or interests therein. For purposes of this paragraph 4(b)(viii), the term
"similar security" shall be deemed to include, without limitation, any
security evidencing or, upon issuance, that would have evidenced an
interest in the Mortgage Loans or the Other Mortgage Loans or any
substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans (other than the Mall
at Millenia Loan and the ▇▇▇▇▇ Fargo Tower Loan (as defined in the
Prospectus Supplement)), 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 Mall at Millenia Loan and the ▇▇▇▇▇ Fargo Tower Loan (as defined
in the Prospectus Supplement)), the Mortgaged Properties related thereto
and/or the Mortgage Loan Seller and does not represent a restatement or
aggregation of the information on the Loan Detail, the information set
forth in the Prospectus Supplement and the Memorandum (as defined in
Section 9) under the headings "Summary of Series 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
Mall at Millenia Whole Loan and the ▇▇▇▇▇ Fargo Tower Whole Loan (as
defined in the Prospectus Supplement) and the Mortgaged Properties 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
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of the Mortgage Loans," "Risk Factors," "Description of the Mortgage Pool,"
"Servicing of the Mortgage Loans," and "The Pooling and Servicing
Agreement," 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," and "The Pooling and Servicing
Agreement," only such portions that solely relate to the Mall at Millenia
Whole Loan and the ▇▇▇▇▇ Fargo Tower 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.
(xi) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties made pursuant to and set forth in
subsection (b) above which materially and adversely affects the interests
of the Purchaser or a breach of any of the representations and warranties
made pursuant to subsection (a) above and set forth in Exhibit B which
materially and adversely affects the value of any Mortgage Loan 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
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the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by the Mortgage Loan Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Purchaser's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Purchaser to
perform its obligations under this Agreement or the financial condition of
the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Mortgage Loan Seller, the
Underwriters, the Initial Purchasers and their respective affiliates, that
may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(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.
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(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Mortgage Loan Seller, the party discovering such
breach shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
The Mortgage Loan Seller hereby agrees to comply with Sections 2.02 and
2.03 of the Pooling and Servicing Agreement, including, but not limited to, any
obligation to repurchase or substitute Mortgage 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, ▇▇▇▇ & Maw LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage Loan
Seller specified herein shall be true and correct as of the Closing Date
and the Aggregate Cut-off Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing Documents"), in
such forms as are agreed upon and reasonably acceptable to the Purchaser,
shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(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.
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Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Mortgage Loan Seller;
(b) An Officer's Certificate substantially in the form of Exhibit C-1
hereto, executed by the Secretary or an assistant secretary of the Mortgage
Loan Seller, and dated the Closing Date, and upon which the Purchaser and
each Underwriter may rely, attaching thereto as exhibits the organizational
documents of the Mortgage Loan Seller;
(c) A certificate of good standing regarding the Mortgage Loan Seller
from the Secretary of State for the State of New York, dated not earlier
than 30 days prior to the Closing Date;
(d) A certificate of the Mortgage Loan Seller substantially in the form
of Exhibit C-2 hereto, executed by an executive officer or authorized
signatory of the Mortgage Loan Seller and dated the Closing Date, and upon
which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan Seller, in a form
reasonably acceptable to counsel for the Purchaser and subject to such
reasonable assumptions and qualifications as may be requested by counsel
for the Mortgage Loan 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
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the Prospectus Supplement, the Memorandum, the Diskette or, insofar as they are
required to be filed as part of the Registration Statement pursuant to the
No-Action Letters, any Computational Materials or ABS Term Sheets with respect
to the Registered Certificates, or in any revision or amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission (in the case of any such Computational Materials or ABS Term Sheets,
when read in conjunction with the Prospectus and, in the case of the Memorandum,
when read together with the other information specified therein as being
available for review by investors) to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; but only if and to the
extent that (i) any such untrue statement or alleged untrue statement is with
respect to information regarding the Mortgage Loans (other than the Mall at
Millenia Loan and the ▇▇▇▇▇ Fargo Tower Loan (as defined in the Prospectus
Supplement)) contained in the Loan Detail or, to the extent consistent
therewith, the Diskette or contained in the Term Sheet Diskette, to the extent
consistent with the Term Sheet Master Tape; or (ii) any such untrue statement or
alleged untrue statement or omission or alleged omission is with respect to
information regarding the Mortgage Loan Seller, the Mortgage Loans (other than
the Mall at Millenia Loan and the ▇▇▇▇▇ Fargo Tower Loan (as defined in the
Prospectus Supplement)) or the Mortgaged Properties related thereto contained in
the Prospectus Supplement or the Memorandum under the headings "Summary of
Series 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" or contained on Annex A and/or
Annex B to the Prospectus Supplement (exclusive of the Loan Detail), and such
information does not represent a restatement or aggregation of information
contained in the Loan Detail; or (iii) any such untrue statement or alleged
untrue statement or omission or alleged omission is with respect to information
regarding the Mall at Millenia Whole Loan and the ▇▇▇▇▇ Fargo Tower Whole Loan
(as defined in the Prospectus Supplement) and 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," "Description of the Mortgage
Pool," "Servicing of the Mortgage Loans," "The Pooling and Servicing Agreement,"
and/or "Description of the Certificates--Subordination; Allocation of Losses and
Expenses," "--P & I Servicing Advances" and "--Appraisal Reductions" or
contained on Annex A and/or Annex B to the Prospectus Supplement (exclusive of
the Loan Detail) (provided, that with respect to the information in Annex B,
"Servicing of the Mortgage Loans," "The Pooling and Servicing Agreement,"
"Description of the Certificate--Subordination; Allocation of Losses and
Expenses," "--P & I Servicing Advances" and "--Appraisal Reductions" only such
portions that solely relate to the Mall at Millenia Whole Loan and the ▇▇▇▇▇
Fargo Tower Whole Loan (as defined in the Prospectus Supplement)) 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
10
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.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-107510 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated July 31,
2003, as supplemented by the prospectus supplement dated December 10, 2003 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated December 10, 2003, relating to
the Non-Registered Certificates (other than the Class S-AFR Certificates);
"Computational Materials" shall have the meaning assigned thereto in the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to ▇▇▇▇▇▇,
Peabody Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "▇▇▇▇▇▇ Letters"); and "ABS Term Sheets"
shall have the meaning assigned thereto in the no-action letter dated February
17, 1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the ▇▇▇▇▇▇
Letters, the "No-Action Letters"). The mortgage loan information and information
related thereto contained on the diskette attached to any ABS Term Sheets or
Computational Materials is referred to herein as the "Term Sheet Diskette" and
the tape provided by the Mortgage Loan Seller that was used to create the Term
Sheet Diskette is 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 withheld, the indemnifying party will not be liable for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the
11
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 ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Structured Finance Manager,
facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter be furnished to the Mortgage Loan Seller in writing by the
Purchaser; and if to the Mortgage Loan Seller, addressed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., 1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇ and a copy to
▇▇▇▇▇▇▇ ▇. Quinn, Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇ or
to such other address or facsimile number as the Mortgage Loan Seller may
designate in writing to the Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Mortgage Loan Seller set forth in Section 9 of this
Agreement. It is acknowledged and agreed that such covenants and indemnities may
be enforced by or on behalf of any such person or entity against the Mortgage
Loan Seller to the same extent as if it was a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Mortgage Loan Seller submitted pursuant hereto, shall remain operative and
in full force and effect and shall survive delivery of the Mortgage Loans by the
Mortgage Loan Seller to the Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other
13
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
The Mortgage Loan Seller and the Purchaser agree to execute and deliver
such instruments and take such further actions as the other party may, from time
to time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. Successors and Assigns.
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.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE
CAPITAL INC.
By: /s/ ▇▇▇▇▇▇ ▇. Friend
---------------------------
Name: ▇▇▇▇▇▇ ▇. Friend
Title: Vice President
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CONTROL LOAN LOAN LOAN
NUMBER GROUP NUMBER ORIGINATOR PROPERTY NAME
--------------------------------------------------------------------------------------
3 1 1 MSMC Mall at Millenia
4 1 2 MSMC ▇▇▇▇▇ Fargo Tower
6 1 3 MSMC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (2)
11 1 03-14467 MSMC ▇▇▇▇▇▇▇▇ Mall
12 1 4 MSMC FGSR Portfolio (3)
Embassy Suites Palm Beach Gardens
12.1 4-1 MSMC & Office (4)
12.2 ▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
12.3 ▇-▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
12.4 ▇-▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
20 2 03-13945 MSMC The Reserve at Forest Hills
42 1 02-12629 MSMC Versailles Court
44 2 03-13923 MSMC Black Mountain Apartments
49 2 03-14559 MSMC Lakeview Terrace Apartments
52 2 03-13626 MSMC ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Apartments (5)
58 2 03-14332 MSMC ▇▇▇▇▇▇▇▇ Apartments
60 2 03-13752 MSMC Ontario Village Apartments
62 1 02-12000 MSMC Visual Display
67 2 03-13898 MSMC Villa Court Apartments
70 1 02-11657 MSMC Sky ▇▇▇▇▇ ▇▇▇▇▇ ▇
▇▇ ▇ ▇▇-▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ Portfolio
76 2 03-13682 MSMC ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
79 1 03-13841 MSMC ▇▇▇▇▇▇▇▇ Self Storage
80 1 03-13478 MSMC Budget Self-Storage
CONTROL ZIP
NUMBER ADDRESS CITY STATE CODE
---------------------------------------------------------------------------------------------
3 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
4 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
6 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
11 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
12 Various Various Various Various
12.1 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
12.2 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
12.3 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
12.4 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
North
20 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
42 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
44 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
49 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
52 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
58 ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
60 ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
62 ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
67 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
70 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.; ▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇.; 1309 & ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇.; 202 & ▇▇▇ ▇. ▇▇▇▇▇,
▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
76 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
79 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
80 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
A-1
MORTGAGE LOAN SCHEDULE
CONTROL RELATED ORIGINAL CURRENT INTEREST ADMIN.
NUMBER COUNTY GROUPS BALANCE ($) BALANCE ($) RATE % FEE %
-----------------------------------------------------------------------------------------------------
3 Orange 67,500,000 67,500,000 5.50000 0.0618
4 Los Angeles 65,000,000 65,000,000 4.68000 0.0118
6 New York 64,000,000 64,000,000 5.85000 0.0198
11 Erie 38,800,000 38,636,060 5.94000 0.0318
12 Various 32,000,000 32,000,000 6.72700 0.0318
12.1 Palm Beach
12.2 Pinellas
12.3 Suffolk
12.4 Nassau
20 New Hanover 21,000,000 20,939,851 5.95000 0.0318
42 Nassau 9,500,000 9,440,024 5.40000 0.0318
44 ▇▇▇▇▇ 8,400,000 8,373,633 5.51000 0.0318
49 Tarrant 7,500,000 7,500,000 5.91000 0.0318
52 Norfolk 6,400,000 6,400,000 5.78000 0.0318
58 El Paso 5,120,000 5,100,373 5.81000 0.0318
60 Jefferson 4,800,000 4,790,683 5.73000 0.0318
62 Queens 4,000,000 3,971,067 6.12000 0.0318
67 Los Angeles 3,600,000 3,583,698 5.03000 0.0318
70 ▇▇▇▇▇▇▇▇▇▇ 2,900,000 2,865,877 6.28000 0.0318
72 Baltimore City 2,720,000 2,702,915 4.48000 0.0318
76 Los Angeles 1,833,289 1,826,655 6.07000 0.0318
79 Bronx 1,600,000 1,592,599 5.19000 0.0318
80 Essex 1,500,000 1,496,188 6.40000 0.0318
CONTROL
NUMBER ACTUAL TYPE AMORTIZATION TYPE NOTE DATE
---------------------------------------------------------------------------------------------------
3 Actual/360 Interest Only, then Amortizing Balloon 03/28/2003
4 Actual/360 Interest Only, then Amortizing Balloon 06/26/2003
6 Actual/360 Anticipated Repayment Date 09/30/2003
11 Actual/360 Amortizing Balloon 08/22/2003
12 Actual/360 Amortizing Balloon 11/19/2003
12.1
12.2
12.3
12.4
20 Actual/360 Amortizing Balloon 08/27/2003
42 Actual/360 Amortizing Balloon 05/14/2003
44 Actual/360 Amortizing Balloon 08/14/2003
49 Actual/360 Amortizing Balloon 11/25/2003
52 Actual/360 Amortizing Balloon 11/21/2003
58 Actual/360 Amortizing Balloon 07/31/2003
60 Actual/360 Amortizing Balloon 09/08/2003
62 Actual/360 Amortizing Balloon 03/21/2003
67 Actual/360 Amortizing Balloon 07/16/2003
70 Actual/360 Amortizing Balloon 11/01/2002
72 Actual/360 Amortizing Balloon 06/11/2003
76 Actual/360 Amortizing Balloon 07/31/2003
79 Actual/360 Amortizing Balloon 09/29/2003
80 Actual/360 Amortizing Balloon 09/05/2003
A-2
MORTGAGE LOAN SCHEDULE
ORIGINAL REMAINING
FIRST INTEREST INTEREST
CONTROL PAYMENT ONLY ONLY ORIGINAL TERM REMAINING TERM
NUMBER DATE PERIOD PERIOD SEASONING TO MATURITY TO MATURITY
------------------------------------------------------------------------------------------------------
3 05/09/2003 60 52 8 120 112
4 08/01/2003 35 30 5 84 79
6 11/07/2003 36 34 2 120 118
11 10/01/2003 3 84 81
12 01/07/2004 0 84 84
12.1
12.2
12.3
12.4
20 10/01/2003 3 120 117
42 07/01/2003 6 120 114
44 10/01/2003 3 120 117
49 01/01/2004 0 120 120
52 01/01/2004 0 120 120
58 09/01/2003 4 120 116
60 11/01/2003 2 120 118
62 05/01/2003 8 120 112
67 09/01/2003 4 120 116
70 12/01/2002 13 120 107
72 08/01/2003 5 60 55
76 09/01/2003 4 120 116
79 11/01/2003 2 60 58
80 11/01/2003 2 120 118
CONTROL REMAINING
NUMBER AMORTIZATION TERM PAYMENT DUE DATE
-------------------------------------------------------------------------------------------
3 360 360 9
4 360 360 1
6 360 360 7
11 360 297 1
12 360 300 7
12.1 360
12.2
12.3
12.4
20 360 357 1
42 360 354 1
44 360 357 1
49 360 360 1
52 360 360 1
58 360 356 1
60 360 358 1
62 360 352 1
67 360 356 1
70 360 347 1
72 360 355 1
76 360 356 1
79 360 238 1
80 360 298 1
A-3
MORTGAGE LOAN SCHEDULE
SCHEDULED MATURITY
CONTROL GRACE DEFAULT MATURITY OR
NUMBER PERIOD DATE OR ARD ARD BALANCE ($) PREPAYMENT PROVISION ANNUAL DEBT SERVICE
--------------------------------------------------------------------------------------------------------------------
3 0 04/09/2013 62,673,939 Lock/32_Defeasance/84_0%/4 4,605,783
4 0 07/01/2010 60,727,497 Lock/29_Defeasance/51_0%/4 4,036,004
6 0 10/07/2013 57,668,337 Lock/26_Defeasance/90_0%/4 4,530,747
11 0 09/01/2010 33,206,228 Lock/27_Defeasance/52_0%/5 2,982,814
12 0 12/07/2010 27,858,183 Lock/24_Defeasance/53_0%/7 2,647,526
12.1
12.2
12.3
12.4
20 0 09/01/2013 17,784,841 Lock/27_Defeasance/89_0%/4 1,502,776
42 5 06/01/2013 7,912,593 Lock/30_Defeasance/86_0%/4 640,145
44 5 09/01/2013 7,019,688 Lock/27_Defeasance/89_0%/4 572,964
49 7 12/01/2013 6,344,579 Lock/24_Defeasance/89_0%/7 534,399
52 7 12/01/2013 5,392,991 Lock/24_Defeasance/92_0%/4 449,649
58 5 08/01/2013 4,318,478 Lock/28_Defeasance/88_0%/4 360,892
60 5 10/01/2013 4,038,716 Lock/26_Defeasance/90_0%/4 335,406
62 5 04/01/2013 3,405,069 Lock/32_Defeasance/84_0%/4 291,498
67 5 08/01/2013 2,963,108 Lock/28_Defeasance/88_0%/4 232,700
70 5 11/01/2012 2,479,491 Lock/37_Defeasance/76_0%/7 214,949
72 5 07/01/2008 2,488,647 Lock/29_Defeasance/27_0%/4 164,994
76 5 08/01/2013 1,558,272 Lock/28_Defeasance/88_0%/4 132,890
79 5 10/01/2008 1,346,369 Lock/26_Defeasance/30_0%/4 128,735
80 5 10/01/2013 1,177,357 Lock/26_Defeasance/90_0%/4 120,415
SCHEDULED MATURITY TOTAL SQ.
CONTROL CUT-OFF DATE OR FT./UNITS/PADS/
NUMBER LTV (%) ARD DATE LTV (%) ROOMS
---------------------------------------------------------------------------
3 63.27 58.75 518,153
4 69.44 64.88 1,380,674
6 75.00 67.58 147,958
11 72.22 62.07 692,362
12 59.48 51.78 682
12.1 160 / 82,381
12.2 333
12.3 109
12.4 80
20 77.56 65.87 372
42 77.38 64.86 43
44 76.82 64.40 108
49 79.79 67.50 224
52 79.01 69.86 49
58 79.08 66.95 176
60 79.84 67.31 208
62 51.57 44.22 105,795
67 74.66 61.73 32
70 71.65 61.99 56,551
72 67.57 62.22 61
76 68.41 58.36 8
79 61.25 51.78 280
80 44.66 35.14 623
A-4
MORTGAGE LOAN SCHEDULE
CONTROL CUT-OFF DATE BALANCE PER SQ.
NUMBER UNIT DESCRIPTION FT./UNIT/PAD/ROOM OWNERSHIP INTEREST LOCKBOX
--------------------------------------------------------------------------------------------------------------------
3 Sq Ft 376 Fee Simple Hard
4 Sq Ft 181 Fee Simple Hard
6 Sq Ft 689 Fee Simple Hard
11 Sq Ft 56 Fee Simple Hard
12 Rooms 46,921 Fee Simple Hard
12.1 Rooms / Sq Ft Fee Simple
12.2 Rooms Fee Simple
12.3 Rooms Fee Simple
12.4 Rooms Fee Simple
20 Units 56,290 Fee Simple
42 Units 219,535 Fee Simple
44 Units 77,534 Fee Simple
49 Units 33,482 Fee Simple
52 Units 106,175 Fee Simple Hard
58 Units 28,979 Fee Simple
60 Units 23,032 Fee Simple
62 Sq Ft 38 Fee Simple
67 Units 111,991 Fee Simple
70 Sq Ft 51 Fee Simple
72 Units 44,310 Fee Simple
76 Units 228,332 Fee Simple
79 Units 5,688 Fee Simple
80 Units 2,402 Fee Simple
A-5
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Mortgage Loan Seller hereby
represents and warrants, as of the date hereinbelow specified or, if no such
date is specified, as of the Closing Date, except as set forth on Schedule B-1
hereto, that:
1) Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of
the date of this Agreement and as of the Cut-off Date.
2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller
had good title to, and was the sole owner of, each Mortgage Loan. The
Seller has full right, power and authority to transfer and assign each of
the Mortgage Loans to or at the direction of the Purchaser and has validly
and effectively conveyed (or caused to be conveyed) to the Purchaser or its
designee all of the Seller's legal and beneficial interest in and to the
Mortgage Loans free and clear of any and all pledges, liens, charges,
security interests and/or other encumbrances. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained.
3) Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-off Date.
4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien
upon the related Mortgaged Property, prior to all other liens and
encumbrances, except for (a) the lien for current real estate taxes and
assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance
policy, (c) exceptions and exclusions specifically referred to in such
lender's title insurance policy, (d) other matters to which like properties
are commonly subject, none of which matters referred to in clauses (b), (c)
or (d), individually or in the aggregate, materially interferes with the
security intended to be provided by such Mortgage, the marketability or
current use of the Mortgaged Property or the current ability of the
Mortgaged Property to generate operating income sufficient to service the
Mortgage Loan debt, and (e) if such Mortgage Loan is cross-collateralized
with any other Mortgage Loan, the lien of the Mortgage for such other
Mortgage Loan (the foregoing items (a) through (e) being herein referred to
as the "Permitted Encumbrances"). The related assignment of such Mortgage
executed and
B-1
delivered in favor of the Trustee is in recordable form and constitutes a
legal, valid and binding assignment, sufficient to convey to the assignee
named therein all of the assignor's right, title and interest in, to and
under such Mortgage. Such Mortgage, together with any separate security
agreements, chattel mortgages or equivalent instruments, establishes and
creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder thereof in all
of the related Mortgagor's personal property used in, and reasonably
necessary to operate, the related Mortgaged Property. In the case of a
Mortgaged Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a prudent
mortgage lender making a similar Mortgage Loan would deem reasonably
necessary to operate the related Mortgaged Property as it is currently
being operated. A Uniform Commercial Code financing statement has been
filed and/or recorded in all places necessary to perfect a valid security
interest in such personal property, to the extent a security interest may
be so created therein, and such security interest is a first priority
security interest, subject to any prior purchase money security interest in
such personal property and any personal property leases applicable to such
personal property. Notwithstanding the foregoing, no representation is made
as to the perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or actions
other than the filing of Uniform Commercial Code financing statements are
required in order to effect such perfection.
5) Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates
a valid, subsisting and, subject to the exceptions set forth in paragraph
13 below, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, sub-leases,
licenses or other agreements pursuant to which any person is entitled to
occupy, use or possess all or any portion of the real property subject to
the related Mortgage, and each assignor thereunder has the full right to
assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage has been executed and delivered in favor of the
Trustee and is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all
of the assignor's right, title and interest in, to and under such
Assignment of Leases.
6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and
the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part (except for partial reconveyances of real
property that are set forth on Schedule B-1 to Exhibit B), nor has any
instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release, in any manner that, in
each case, materially adversely affects the value of the related Mortgaged
Property. None of the terms of any Mortgage Note, Mortgage or Assignment of
Leases has been impaired, waived, altered or modified in any respect,
except by written instruments, all of which are included in the related
Mortgage File.
7) Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of
an engineering report within 18 months prior to the Cut-off Date as set
forth on Schedule B-1 to this Exhibit B,
B-2
each Mortgaged Property is, to the Seller's knowledge, free and clear of
any damage (or adequate reserves therefor have been established) that would
materially and adversely affect its value as security for the related
Mortgage Loan, and (ii) with respect to the Mortgaged Properties securing
the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-off Date as set forth on Schedule B-1 to
this Exhibit B, each Mortgaged Property is in good repair and condition and
all building systems contained therein are in good working order (or
adequate reserves therefor have been established) and each Mortgaged
Property is free of structural defects, in each case, that would materially
and adversely affect its value as security for the related Mortgage Loan as
of the date hereof. The Seller has received no notice of the commencement
of any proceeding for the condemnation of all or any material portion of
any Mortgaged Property. To the Seller's knowledge (based on surveys and/or
title insurance obtained in connection with the origination of the Mortgage
Loans), as of the date of the origination of each Mortgage Loan, all of the
material improvements on the related Mortgaged Property that were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such
property, except for encroachments that are insured against by the lender's
title insurance policy referred to herein or that do not materially and
adversely affect the value or marketability of such Mortgaged Property, and
no improvements on adjoining properties materially encroached upon such
Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that
are insured against by the Title Policy referred to herein.
8) Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a marked-up title insurance commitment (on which the required
premium has been paid) which evidences such title insurance policy (the
"Title Policy") in the original principal amount of the related Mortgage
Loan after all advances of principal. Each Title Policy insures that the
related Mortgage is a valid first priority lien on such Mortgaged Property,
subject only to Permitted Encumbrances. Each Title Policy (or, if it has
yet to be issued, the coverage to be provided thereby) is in full force and
effect, all premiums thereon have been paid, and no material claims have
been made thereunder and no claims have been paid thereunder. No holder of
the related Mortgage has done, by act or omission, anything that would
materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Mortgage Loan to the
Trustee, such Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction
in which the related Mortgaged Property is located.
9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements
of any funds escrowed for such purpose that were to have been complied with
on or before the Closing Date have been complied with, or any such funds so
escrowed have not been released.
B-3
10) Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph
13) such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby.
11) Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(i) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (ii) no fees or
expenses are payable to such trustee by the Seller, the Purchaser or any
transferee thereof except in connection with a trustee's sale after default
by the related Mortgagor or in connection with any full or partial release
of the related Mortgaged Property or related security for the related
Mortgage Loan.
12) Environmental Conditions.
i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment within
18 months prior to the Cut-off Date as set forth on Schedule B-1 to
this Exhibit B, an environmental site assessment or an update of a
previous such report, was performed with respect to each Mortgaged
Property in connection with the origination or the sale of the related
Mortgage Loan, a report of each such assessment (or the most recent
assessment with respect to each Mortgaged Property) (an "Environmental
Report") has been delivered to the Purchaser, and the Seller has no
knowledge of any material and adverse environmental condition or
circumstance affecting any Mortgaged Property that was not disclosed in
such report. Each Mortgage requires the related Mortgagor to comply
with all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a
material and adverse environmental condition or circumstance affecting
any Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or circumstance,
or (ii) environmental insurance covering such condition was obtained or
must be maintained until the condition is remediated, or (iii) the
related Mortgagor was required either to provide additional security
that was deemed to be sufficient by the originator in light of the
circumstances and/or to establish an operations and maintenance plan.
In the case of each Mortgage Loan set forth on Schedule B-1 to this
Exhibit B, (i) such Mortgage Loan is the subject of a Secured Creditor
Impaired Property Policy, issued by the issuer set forth on Schedule
B-1 (the "Policy Issuer") and effective as of the date thereof (the
"Environmental Insurance Policy"), (ii) the Environmental Insurance
Policy is in full force and effect, (iii)(a) a property condition or
engineering report was prepared with respect to lead based paint
("LBP"), asbestos containing materials ("ACM") and radon gas ("RG") at
each related Mortgaged Property, and (b) if such report disclosed the
existence of a material and adverse LBP, ACM or RG environmental
condition or circumstance affecting the related Mortgaged Property, the
related Mortgagor (A) was required to remediate the identified
condition prior to closing the Mortgage Loan or provide additional
security, or
B-4
establish with the lender a reserve from loan proceeds, in an amount
deemed to be sufficient by the Seller for the remediation of the
problem and/or (B) agreed in the Mortgage Loan documents to establish
an operations and maintenance plan after the closing of the Mortgage
Loan, (iv) on the effective date of the Environmental Insurance Policy,
Seller as originator had no knowledge of any material and adverse
environmental condition or circumstance affecting the Mortgaged
Property (other than the existence of LBP, ACM or RG) that was not
disclosed to the Policy Issuer in one or more of the following: (a) the
application for insurance, (b) a borrower questionnaire that was
provided to the Policy Issuer or (c) an engineering or other report
provided to the Policy Issuer, and (v) the premium of any Environmental
Insurance Policy has been paid through the maturity of the policy's
term and the term of such policy extends at least five years beyond the
maturity of the Mortgage Loan.
ii) With respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an environmental site
assessment within 18 months prior to the Cut-off Date as set forth on
Schedule B-1 to this Exhibit B, (i) no Hazardous Material is present on
such Mortgaged Property such that (1) the value of such Mortgaged
Property is materially and adversely affected or (2) under applicable
federal, state or local law, (a) such Hazardous Material could be
required to be eliminated at a cost materially and adversely affecting
the value of the Mortgaged Property before such Mortgaged Property
could be altered, renovated, demolished or transferred, or (b) the
presence of such Hazardous Material could (upon action by the
appropriate governmental authorities) subject the owner of such
Mortgaged Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting the
value of the Mortgaged Property, and (ii) such Mortgaged Property is in
material compliance with all applicable federal, state and local laws
pertaining to Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse effect on
the value of such Mortgaged Property, and neither Seller nor, to
Seller's knowledge, the related Mortgagor or any current tenant
thereon, has received any notice of violation or potential violation of
any such law.
iii) "Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or related
or similar materials and any other substance or material as may be
defined as a hazardous or toxic substance by any federal, state or
local environmental law, ordinance, rule, regulation or order,
including without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42
U.S.C.(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 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.
B-5
13) Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by
or on behalf of the related Mortgagor is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and there is no valid defense, counterclaim
or right of offset or rescission available to the related Mortgagor with
respect to such Mortgage Note, Mortgage or other agreement.
14) Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot attending
a strike, civil commotion, aircraft, vehicles and smoke, and, to the extent
required as of the date of origination by the originator of such Mortgage
Loan consistent with its normal commercial mortgage lending practices,
against other risks insured against by persons operating like properties in
the locality of the Mortgaged Property in an amount not less than the
lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the Mortgaged Property, and contains no provisions for
a deduction for depreciation, and not less than the amount necessary to
avoid the operation of any co-insurance provisions with respect to the
Mortgaged Property; (b) a business interruption or rental loss insurance
policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of
buildings or other structures on the Mortgaged Property are located in an
area identified by the Federal Emergency Management Agency as having
special flood hazards and the Federal Emergency Management Agency requires
flood insurance to be maintained); and (d) a comprehensive general
liability insurance policy in amounts as are generally required by
commercial mortgage lenders, and in any event not less than $1 million per
occurrence. Such insurance policy contains a standard mortgagee clause that
names the mortgagee as an additional insured in the case of liability
insurance policies and as a loss payee in the case of property insurance
policies and requires prior notice to the holder of the Mortgage of
termination or cancellation. No such notice has been received, including
any notice of nonpayment of premiums, that has not been cured. Each
Mortgage obligates the related Mortgagor to maintain all such insurance
and, upon such Mortgagor's failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at the Mortgagor's cost and expense and
to seek reimbursement therefor from such Mortgagor. Each Mortgage provides
that casualty insurance proceeds will be applied (a) to the restoration or
repair of the related Mortgaged Property, (b) to the restoration or repair
of the related Mortgaged Property, with any excess insurance proceeds after
restoration or repair being paid to the Mortgagor, or (c) to the reduction
of the principal amount of the Mortgage Loan.
15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in
future installments) or other outstanding charges affecting any Mortgaged
Property that are or may become a
B-6
lien of priority equal to or higher than the lien of the related Mortgage.
For purposes of this representation and warranty, real property taxes and
assessments shall not be considered unpaid until the date on which interest
or penalties would be first payable thereon.
16) Mortgagor Bankruptcy. No Mortgaged Property, nor any portion
thereof is the subject of, and no Mortgagor under a Mortgage loan is, a
debtor in any state or federal bankruptcy or insolvency or similar
proceeding.
17) Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole
or in part by the interest of a Mortgagor as a lessee under a ground lease
of a Mortgaged Property (a "Ground Lease"), by the related Mortgagor's
interest in the Ground Lease but not by the related fee interest in such
Mortgaged Property (the "Fee Interest"), and as to such Ground Leases:
i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between the Seller and related lessor) does
not prohibit the current use of the Mortgaged Property and does not
prohibit the interest of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected in
written instruments that are a part of the related Mortgage File;
ii) The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
iii) The Mortgagor's interest in such Ground Lease is assignable
to the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by the Purchaser
and its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor or if such lessor's consent is
required it cannot be unreasonably withheld;
iv) Such Ground Lease is in full force and effect, and the Ground
Lease provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented thereto, and
the Seller has received no notice that an event of default has occurred
thereunder, and, to the Seller's knowledge, there exists no condition
that, but for the passage of time or the giving of notice, or both,
would result in an event of default under the terms of such Ground
Lease;
v) Such Ground Lease or an estoppel letter or other agreement,
(A) requires the lessor under such Ground Lease to give notice of any
default by the
B-7
lessee to the holder of the Mortgage; and (B) provides that no notice
of termination given under such Ground Lease is effective against the
holder of the Mortgage unless a copy of such notice has been delivered
to such holder and the lessor has offered or is required to enter into
a new lease with such holder on terms that do not materially vary from
the economic terms of the Ground Lease.
vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of
the lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
vii) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less than twenty
years beyond the Stated Maturity Date of the related Mortgage Loan;
viii) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease interest
will be applied either (A) to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and disburse
such proceeds as the repair or restoration progresses (except in such
cases where a provision entitling a third party to hold and disburse
such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or (B) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon;
ix) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is located;
and such Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of the lessee thereunder for
any reason, or in any manner, which would materially adversely affect
the security provided by the related Mortgage; and
x) Such Ground Lease requires the Lessor to enter into a new
lease upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding.
18) Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or
paid have been so deposited or paid.
19) Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury
regulation section 1.860G-2(a), and the related Mortgaged Property, if
acquired in connection with the
B-8
default or imminent default of such Mortgage Loan, would constitute
"foreclosure property" within the meaning of Section 860G(a)(8) (without
regard to Section 856(e)(4) of the Code).
20) [Reserved]
21) Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by
such Mortgage Loan.
22) No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to
the lien of the related Mortgage, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the
lien of the related Mortgage except, in each case, for liens insured
against by the Title Policy referred to herein.
23) Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
24) Cross-collateralization. Except as set forth on Schedule B-1 to
this Exhibit B, no Mortgage Loan is cross-collateralized or cross-defaulted
with any loan other than one or more other Mortgage Loans.
25) Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property that was
included in the appraisal for such Mortgaged Property, and/or generates
income from the lien of the related Mortgage except upon payment in full of
all amounts due under the related Mortgage Loan or in connection with the
defeasance provisions of the related Note and Mortgage. The Mortgages
relating to those Mortgage Loans identified on Schedule B-1 hereto require
the mortgagee to grant releases of portions of the related Mortgaged
Properties upon (a) the satisfaction of certain legal and underwriting
requirements and/or (b) the payment of a release price and prepayment
consideration in connection therewith. Except as described in the first
sentence hereof and for those Mortgage Loans identified on Schedule B-1
hereto, no Mortgage Loan permits the full or partial release or
substitution of collateral unless the mortgagee or servicer can require the
Borrower to provide an opinion of tax counsel to the effect that such
release or substitution of collateral (a) would not constitute a
"significant modification" of such Mortgage Loan within the meaning of
Treas. Reg. (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 after the Anticipated Repayment Date) or for
any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property.
B-9
27) No Material Default. There exists no material Event of Default,
breach, violation or event of acceleration (and, to the Seller's actual
knowledge, no event which, with the passage of time or the giving of
notice, or both, would constitute any of the foregoing) under the documents
evidencing or securing the Mortgage Loan, in any such case to the extent
the same materially and adversely affects the value of the Mortgage Loan
and the related Mortgaged Property; provided, however, that this
representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any of paragraphs 3, 7, 12, 14, 15, 16 and
17 of this Exhibit B.
28) Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of the
related Mortgage Loan.
29) Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part
of each Mortgaged Property comply with applicable zoning laws and
ordinances, or constitute a legal non-conforming use or structure or, if
any such improvement does not so comply, such non-compliance does not
materially and adversely affect the value of the related Mortgaged
Property, such value as determined by the appraisal performed at
origination or in connection with the sale of the related Mortgage Loan by
the Seller hereunder.
30) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified
therein. The Seller has no knowledge that any of the Mortgaged Properties
is encumbered by any lien junior to the lien of the related Mortgage.
31) Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged
Property or the validity or enforceability of the related Mortgage that
might materially and adversely affect the value of the Mortgaged Property
as security for the Mortgage Loan or the use for which the premises were
intended.
32) Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in
all material respects legal, proper and prudent and have met customary
industry standards.
33) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage Loan or as
of the date of the sale of the related Mortgage Loan by the Seller
hereunder, the related Mortgagor was in possession of all
B-10
material licenses, permits and franchises required by applicable law for
the ownership and operation of the related Mortgaged Property as it was
then operated.
34) Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to the Seller's knowledge (a) the
related Mortgagor is in compliance in all material respects with all
federal and state laws applicable to the use and operation of the related
Mortgaged Property, and (b) if the operator of the Mortgaged Property
participates in Medicare or Medicaid programs, the facility is in
compliance in all material respects with the requirements for participation
in such programs.
35) Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to the
Purchaser.
36) Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any
material portion thereof, or a controlling interest in the related
Mortgagor, is transferred, sold or encumbered; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Mortgagor or constituent entities of the Mortgagor to a
third party or parties related to the Mortgagor upon the Mortgagor's
satisfaction of certain conditions precedent.
37) Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this
purpose, a "Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents provide substantially to the
effect that it was formed or organized solely for the purpose of owning and
operating one or more of the Mortgaged Properties securing the Mortgage
Loans and prohibit it from engaging in any business unrelated to such
Mortgaged Property or Properties and whose organizational documents further
provide, or which entity represented in the related Mortgage Loan
documents, substantially to the effect that it does not have any assets
other than those related to its interest in and operation of such Mortgaged
Property or Properties, or any indebtedness other than as permitted by the
related Mortgage(s) or the other related Mortgage Loan documents, that it
has its own books and records and accounts separate and apart from any
other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan),
and that it holds itself out as a legal entity, separate and apart from any
other person.
38) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural
person (and the Mortgagor if the Mortgagor is not a natural person) is
liable to the holder of the Mortgage Loan for damages arising
B-11
in the case of fraud or willful misrepresentation by the Mortgagor,
misappropriation of rents, insurance proceeds or condemnation awards and
breaches of the environmental covenants in the Mortgage Loan documents.
39) Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the payment
of all reasonable costs and expenses of the lender incurred in connection
with the defeasance of such Mortgage Loan and the release of the related
Mortgaged Property, and the borrower is required to pay all reasonable
costs and expenses of the lender associated with the approval of an
assumption of such Mortgage Loan.
40) Defeasance. No Mortgage Loan provides that it can be defeased until
the date that is more than two years after the Closing Date or provides
that it can be defeased with any property other than government securities
(as defined in Section 2(a)(16) of the Investment Company Act of 1940, as
amended) or any direct non-callable security issued or guaranteed as to
principal or interest by the United States.
41) Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance
charges payable under the terms of the Mortgage Loans, in respect of
voluntary prepayments, constituted customary prepayment premiums and yield
maintenance charges for commercial mortgage loans.
42) [Reserved]
For purposes of these representations and warranties, the phrases "to the
knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan Seller's
knowledge" shall mean (except where otherwise expressly set forth below) the
actual state of knowledge of the Mortgage Loan Seller (i) after the Mortgage
Loan Seller's having conducted such inquiry and due diligence into such matters
as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Mortgage Loan Seller's underwriting standards, at the time of the Mortgage
Loan Seller's origination or acquisition of the particular Mortgage Loan; and
(ii) subsequent to such origination, utilizing the monitoring practices
customarily utilized by prudent commercial or multifamily, as applicable,
mortgage lenders with respect to securitizable commercial or multifamily, as
applicable, mortgage loans, including inquiry with a representative of the loan
servicer designated as the party responsible for the knowledge of the servicer
pertaining to the Mortgage Loans. Also for purposes of these representations and
warranties, the phrases "to the actual knowledge of the Mortgage Loan Seller" or
"to the Mortgage Loan Seller's actual knowledge" shall mean (except where
otherwise expressly set forth below) the actual state of knowledge of the
Mortgage Loan Seller without any express or implied obligation to make inquiry.
All information contained in the documents included in the definition of
Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Mortgage Loan Seller, to
the extent that the Mortgage Loan Seller or its closing counsel or custodian, if
any, has reviewed or had possession of such document at any time. For purposes
of these representations and warranties, to the extent that any representation
or warranty is qualified by the Mortgage Loan Seller's knowledge with respect to
the contents of the Mortgage Note,
B-12
Mortgage, lender's title policy and any letters of credit or Ground Leases, if
such document is not included in the Mortgage File, the Mortgage Loan Seller
shall make such representation or warranty without any such qualification.
Wherever there is a reference in a representation or warranty to receipt by, or
possession of, the Mortgage Loan Seller of any information or documents, or to
any action taken by the Mortgage Loan Seller or to any action which has not been
taken by the Mortgage Loan Seller or its agents or employees, such reference
shall include the receipt or possession of such information or documents by, or
the taking of such action or the not taking such action by, the Mortgage Loan
Seller. For purposes of these representations and warranties, when referring to
the conduct of "reasonable prudent institutional commercial or multifamily, as
applicable mortgage lenders" (or similar such phrases and terms), such conduct
shall be measured by reference to the industry standards generally in effect as
of the date the related representation or warranty relates to or is made.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
B-13
SCHEDULE TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
REP. 4. LIEN; VALID ASSIGNMENT.
With respect to Loan No. ___, Mall at Millenia, the related assignment of
mortgage is not executed and delivered in favor of the trustee, but rather such
assignment is executed and delivered in favor of the trustee under the 2003-IQ4
Pooling and Servicing Agreement, which as of the date hereof is ▇▇▇▇▇ Fargo Bank
Minnesota, N.A.
[With respect to Loan No. ___, ▇▇▇▇▇ Fargo Office Building, the related
assignment of mortgage is not executed and delivered in favor of the trustee,
but rather such assignment is executed and delivered in favor of the trustee
under the 2003-C2 Pooling and Servicing Agreement, which as of the date hereof
is [_______________].]
REP 5. ASSIGNMENT OF LEASES AND RENTS.
With respect to Loan No. ___, Mall at Millenia, the related Assignment of Leases
is not executed and delivered in favor of the trustee, but rather such
assignment is executed and delivered in favor of the trustee under the 2003-IQ4
Pooling and Servicing Agreement, which as of the date hereof is ▇▇▇▇▇ Fargo Bank
Minnesota, N.A.
[With respect to Loan No. ___, ▇▇▇▇▇ Fargo Office Building, the related
Assignment of Leases is not executed and delivered in favor of the trustee, but
rather such assignment is executed and delivered in favor of the trustee under
the 2003-C2 Pooling and Servicing Agreement, which as of the date hereof is
[_______________].]
REP. 8. TITLE INSURANCE.
With respect to Loan No. ___, Mall at Millenia, the seller has not done, by act
or omission, anything that would materially impair the coverage under the title
policy, but no representation can be made with respect to the acts or omissions
of the holder of the mortgage (the trustee under the 2003-IQ4 Pooling and
Servicing Agreement, which as of the date hereof is ▇▇▇▇▇ Fargo Bank Minnesota,
N.A.) that would materially impair the coverage under the title policy.
[With respect to Loan No. ___, ▇▇▇▇▇ Fargo Office Building, the seller has not
done, by act or omission, anything that would materially impair the coverage
under the title policy, but no representation can be made with respect to the
acts or omissions of the holder of the mortgage (the trustee under the 2003-C2
Pooling and Servicing Agreement, which as of the date hereof is
[_______________]) that would materially impair the coverage under the title
policy.]
B-14
REP 12. ENVIRONMENTAL CONDITIONS.
With respect to Mortgage Loan No. ___, Marlboro Industrial Park, a No Further
Action Letter was issued by the Department of Environmental Protection of the
State of New Jersey, which did not require remediation so long as the property
owner complied with certain conditions. Borrower's failure to comply with the
conditions of the No Further Action Letter will constitute an event of default.
The borrower is also required to complete environmental work (including
improvement of environmental "housekeeping" and removal of debris) within 60
days of closing, as required by section 12.2(k) of the related mortgage.
REP. 17. LEASEHOLD ESTATE.
With respect to Mortgage Loan No. ___, FGSR Portfolio, the borrower owns a fee
simple interest in, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ property, but ground leases the
property to a third party, that is not the borrower. The third-party sub-leases
its interest back to the borrower. The sub-lease between the borrower and the
third-party does not contain the protections set forth in Rep. 17 clauses (v),
(vi), (vii), (viii), (x) and with respect to clause (ix) the third-party lessor
is not restricted from disturbing the possession, interest or quiet enjoyment of
the lessee thereunder.
REP. 25. RELEASES OF MORTGAGED PROPERTY.
With respect to Mortgage Loan No. ___, Mall At Millenia, Section 10.27 of the
related Loan Agreement allows the borrower to obtain a release of the lien of
the Mortgage as to an "Expansion Parcel" which is identified on Schedule IV to
the Loan Agreement subject to the satisfaction of certain legal and underwriting
requirements.
With respect to Mortgage Loan No. ___, Sky Ridge II, loan documents allow for
release of certain portions of the property (the "Specified Release Tracts"),
subject to satisfaction of certain terms and conditions, including but not
limited to the following: (a) a certificate from the transferee certifying that
the Specified Released Tract is not necessary for the operation or use of the
property for its then current use, the Specified Released Tract may be
subdivided from the property without diminution in the pro-rata value of the
property and the subdivision in connection with the release shall not adversely
affect the utility or operation for the remaining property; (b) no event of
default has occurred; (c) the meter and boundary description and actual
dimensions of the proposed parcel shown by proposed plat sealed by a registered
surveyor and dated within 6 months of the proposed release date shall conform in
all material respects to the Specified Release Tract; and (d) sole expense and
cost of the borrower to provide the lender with a survey of the property as it
remains without the Specified Release Tract. In addition, the borrower may
obtain a release of a parcel other than the Specified Release Tracts, provided
that (a) the borrower satisfies the conditions set forth in clause (a) of the
preceding, (b) the borrower provides lender with a rating agency confirmation
that such release with not result in a withdrawal, qualification or downgrade of
the certificates issued in connection with the securitization of this loan and
(c) borrower shall pay lender an amount equal to 125% of the amount of the debt
allocable to the released parcel.
With respect to Mortgage Loan No. ___, Marlboro Industrial Park, borrower may
release an undeveloped portion of the property (about 11 acres) located at the
rear of the industrial park
B-15
upon satisfaction of conditions set forth in Section 20.1 of the Mortgage
(including, but not limited to, (i) no event of default exists, (ii) subdivision
of the release parcel from the property, (iii) delivery of endorsements to
lender's title policy, (iv) municipal confirmation of release parcel's (and
property's) compliance with zoning and applicable laws and (v) borrower's
certification that there will be no adverse impact on property as a result of
release and development of release parcel. The borrower is not required to make
a partial prepayment, however, the property that may be released was part of the
appraised value.
REP 29. LOCAL LAW COMPLIANCE.
With respect to Mortgage Loan No. ___, Marlboro Industrial Park, borrower failed
to deliver all certificates of occupancy which were issued by the municipality
for each tenant at the property. Losses incurred by lender as a result of the
failure of the borrower to provide all certificates is recourse carve-out.
Blanket certificate of occupancy was issued and municipal zoning letter
indicates that there are no outstanding zoning violations at the property.
REP. 33. LICENSES AND PERMITS.
With respect to Mortgage Loan No. ___, Marlboro Industrial Park, see Rep. 29.
REP. 38. NON-RECOURSE EXCEPTIONS.
With respect to Mortgage Loan No. ___, Mall At Millenia, there is an Indemnity
Agreement from ▇▇▇▇▇▇ ▇▇▇▇▇▇ and there are carve-outs to the non-recourse
provisions of the Loan Document which, in each case, indemnify the lender for
losses incurred as a result of actions similar to those listed in representation
#38, however, (a) instead of willful misrepresentation by Borrower, the lender
is indemnified for losses due to intentional misrepresentation by Borrower and
(b) instead of misappropriation of rents, insurance proceeds or condemnation
awards, the lender is indemnified for losses due to the failure of Borrower to
(i) apply Insurance Proceeds paid by reason of any Casualty in accordance with
the terms of the Loan Agreement and the other Loan Documents, (ii) apply Awards
or other amounts received in connection with a Condemnation of all or a portion
of the Property in accordance with the terms of the Loan Agreement and the other
Loan Documents, or (iii) apply Rents received after the occurrence and during
the continuance of an event of default to debt service, operating expenses
and/or reserve funds (provided, however, if such event of default did not
require lender to provide written notice to Borrower, recourse liability to
lender shall not accrue until lender has given five (5) days written notice).
With respect to Mortgage Loan No. ___, FGSR Portfolio, the guarantor is not
liable in case of fraud or willful misrepresentation by the borrower,
misappropriation of rents, insurance proceeds or condemnation awards and
breaches of environmental covenants in the Mortgage Loan documents. The
guarantor is only liable for any misrepresentation with respect to the "backward
looking" representations made by the borrower relating to the borrower being a
Special Purpose Entity and for any losses which result from termination of the
sub-lease on the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ property (for explanation of the
sub-lease structure see the exception to rep. 17).
B-16
Schedule A below lists loans without warm-body guarantor.
SCHEDULE A
▇▇▇▇▇ Fargo Tower
FGSR Portfolio
▇▇▇▇▇▇▇▇ Mall
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ does not have warm-body guarantors, except for breaches of the
environmental covenants.
B-17
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
Certificate of Officer of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (the
"Mortgage Loan Seller")
I, _______________________, a __________________ of the Mortgage Loan
Seller, hereby certify as follows:
The Mortgage Loan Seller is a corporation duly organized and validly
existing under the laws of the State of New York.
Attached hereto as Exhibit I are true and correct copies of the Certificate
of Incorporation and By-Laws of the Mortgage Loan Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times in
full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Mortgage Loan Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Mortgage Loan Seller and his genuine
signature is set forth opposite his name:
Name Office Signature
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of December 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
---------------------------------------------------
In connection with the execution and delivery by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc. (the "Mortgage Loan Seller") of, and the consummation of the
transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated as of December 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.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
C-2-1