EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of January 25, 2002, between Xxxxxxx Xxxxx Mortgage Company as
seller (the "Seller") and GMAC Commercial Mortgage Securities, Inc. as purchaser
(the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans
(collectively, 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) German American Capital Corporation ("GACC"), pursuant to,
and for the consideration described in, the Mortgage Loan Purchase Agreement,
dated as of January 25, 2002 (the "GACC Warehouse Mortgage Loan Purchase
Agreement"), between the Purchaser and GACC (the mortgage loans purchased by the
Purchaser under the GACC Warehouse Mortgage Loan Purchase Agreement, the
"Warehouse Mortgage Loans"), and (ii) GACC, pursuant to, and for the
consideration described in, the Mortgage Loan Purchase Agreement, dated as of
January 25, 2002 (the "GACC Mortgage Loan Purchase Agreement"), between the
Purchaser and GACC. The Seller and GACC are collectively referred to as the
"Mortgage Loan Sellers."
It is expected that the Mortgage Loans will be transferred, together
with the Other Mortgage Loans, to a trust fund (the "Trust Fund") to be formed
by the Purchaser, beneficial ownership of which will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Xxxxx'x Investor Services, Inc. and Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust Fund will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of February 1, 2002 (the "Pooling and Servicing Agreement"), among the
Purchaser as depositor, GMAC Commercial Mortgage Corporation as master servicer
(in such capacity, the "Master Servicer") and special servicer, Xxxxx Fargo Bank
Minnesota, N.A., as trustee (in such capacity, the "Trustee"). Capitalized terms
not otherwise defined herein have the meanings assigned to them in the Pooling
and Servicing Agreement as in effect on the Closing Date.
The Purchaser intends to sell the Class A-1, Class A-2, Class B, Class
C, Class D and Class E Certificates to Xxxxxxx, Xxxxx & Co. and Deutsche Banc
Alex. Xxxxx Inc. (together, the "Underwriters"), pursuant to an underwriting
agreement dated the date hereof (the "Underwriting Agreement"). The Purchaser
intends to sell the Class X-1, Class X-2, Class F, Class G and Class H
Certificates to Xxxxxxx, Sachs & Co. and Deutsche Banc Alex. Xxxxx Inc. (in such
capacity, each an "Initial Purchaser") and Class J, Class K, Class L, Class M,
Class
N, Class O and Class P Certificates to Deutsche Banc Alex. Xxxxx Inc. (in such
capacity, an "Initial Purchaser") pursuant to two certificate purchase
agreements, each dated the date hereof (the "Certificate Purchase Agreements").
The Purchaser intends to sell the Class R-I, Class R-II and Class R-III
Certificates to First Union National Bank (in such capacity, an "Initial
Purchaser"). The Class X-1, Class X-2, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class R-I, Class R-II and Class
R-III Certificates are collectively referred to as the "Non-Registered
Certificates."
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1 Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on February 5, 2002 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 February 2002. 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
$225,461,185, 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 Seller of the purchase price referred to in Section 1 hereof (exclusive
of any applicable holdback for transaction expenses), the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the Mortgage
Loans identified on the Mortgage Loan Schedule as of such date, including all
interest and principal received or receivable by the Seller on or with respect
to the Mortgage Loans after the Cut-off Date for such Mortgage Loan, together
with all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard, or other insurance policies and any escrow, reserve or
other comparable accounts related to the Mortgage Loans. The Purchaser shall be
entitled to (and, to the extent received by or on behalf of the Seller, the
Seller shall deliver or cause to be delivered to or at the direction of the
Purchaser) all scheduled payments of principal and interest due on the Mortgage
Loans after the Cut-off Date for each Mortgage Loan, and all other recoveries of
principal and interest collected thereon after such Cut-off Date. All scheduled
payments of principal and interest due thereon on or before the Cut-off Date for
each Mortgage Loan and collected after such Cut-off Date shall belong to the
Seller.
(b) In connection with the Seller's assignment pursuant to
subsection (a) above, the Seller hereby agrees that, at least five (5) Business
Days before the Closing Date, it shall have delivered to and deposited with the
Trustee, the Mortgage File (as described on Exhibit B hereto) for each Mortgage
Loan so assigned. It is further acknowledged and agreed by the Seller that the
Purchaser intends to cause the Trustee to perform a limited review of such
Mortgage Files to enable the Trustee to confirm to the Purchaser on or before
the Closing Date that the Mortgage Note referred to in clause (i) of Exhibit B
has been delivered by the Seller with respect to each such Mortgage File. In the
event Seller fails to so deliver each such Mortgage File to the Trustee, the
Purchaser and its successors and assigns shall be entitled to pursue any rights
or remedies in respect of such failure as may be available under applicable law.
If the Seller cannot
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deliver, or cause to be delivered as to any Mortgage Loan, the original Mortgage
Note, the Seller shall deliver a copy or duplicate original of such Mortgage
Note, together with an affidavit certifying that the original thereof has been
lost or destroyed. If the Seller cannot deliver, or cause to be delivered, as to
any Mortgage Loan, the original or a copy of any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi)(A) and (xii) of
Exhibit B, with evidence of recording or filing thereof, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, or because such
original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of this Section 2(b) shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Trustee, and
either the original of such missing document or instrument, or a copy thereof,
with evidence of recording or filing, as the case may be, thereon, is delivered
to or at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee) within 180 days of the
Closing Date (or within such longer period after the Closing Date as the
Purchaser (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Seller has provided the Purchaser (or such
subsequent owner) with evidence of such recording or filing, as the case may be,
or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or filing, as the case may be, and is, as certified
to the Purchaser (or such subsequent owner) no less often than quarterly, in
good faith attempting to obtain from the appropriate county recorder's or filing
office such original or copy). If the Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of the related
lender's title insurance policy referred to in clause (ix) of Exhibit B solely
because such policy has not yet been issued, the delivery requirements of this
Section 2(b) shall be deemed to be satisfied as to such missing item, and such
missing item shall be deemed to have been included in the related Mortgage File,
provided that the Seller has delivered to the Trustee a commitment for title
insurance "marked-up" at the closing of such Mortgage Loan, and the Seller shall
deliver to or at the direction of the Purchaser (or any subsequent owner of the
affected Mortgage Loan, including without limitation the Trustee), promptly
following the receipt thereof, the original related lender's title insurance
policy (or a copy thereof). In addition, notwithstanding anything to the
contrary contained herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan. On the Closing Date, upon
notification from the Seller that the purchase price referred to in Section 1
(exclusive of any applicable holdback for transaction expenses) has been
received by the Seller, the Trustee shall be authorized to release to the
Purchaser or its designee all of the Mortgage Files in the Trustee's possession
relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller, at its own expense, shall be
responsible for (i) the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of Exhibit B and
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(ii) the delivery of a copy of any such document or instrument to the Master
Servicer promptly following its return to the Trustee or its designee after such
recording or filing. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause the preparation of a substitute therefor
or cure or cause the curing of such defect, as the case may be, and shall
thereafter deliver the substitute or corrected document to or at the direction
of the Purchaser (or any subsequent owner of the affected Mortgage Loan,
including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B (all such other documents and records
as to any Mortgage Loan, including, without limitation, and if applicable, a
copy of the Mortgage Note, a copy of the Mortgage, a copy of the Security
Agreement, property insurance information, property inspections, financial
statements (subject to and in accordance with any applicable confidentiality
agreements), escrow analysis, tax bills, appraisals, environmental reports,
engineering reports, the asset summary, financial information on the borrower,
sponsor and guarantor, a copy of letters of credit and a copy of environmental
insurance policies, the "Servicing File"), together with all escrow payments,
reserve funds and other comparable funds in the possession of the Seller (or
under its control) with respect to the Mortgage Loans, shall (unless they are
held by a sub-servicer that shall, as of the Closing Date, begin acting on
behalf of the Master Servicer pursuant to a written agreement between such
parties) be delivered by the Seller (or its agent) to the Purchaser (or its
designee) no later than the Closing Date. If a sub-servicer shall, as of the
Closing Date, begin acting on behalf of the Master Servicer with respect to any
Mortgage Loan pursuant to a written agreement between such parties, the Seller
shall deliver a copy of the related Servicing File to the Master Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage
Loans to the Purchaser as a sale.
SECTION 3 Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4 Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit
C, with such changes or modifications as may be permitted or required by the
Rating Agencies.
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(b) In addition, the Seller, as of the date hereof, hereby represents
and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State of
New York, and is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to ensure
the enforceability of each Mortgage Loan and to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this
Agreement by the Seller, will not violate the Seller's organizational
documents or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result
in the breach of, any material agreement or other instrument to which
it is a party or which is applicable to it or any of its assets, in
each case which materially and adversely affect the ability of the
Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(vi) No litigation is pending with regard to which Seller
has received service of process or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, could reasonably be
expected to prohibit the Seller from entering into this Agreement or
materially and adversely affect the ability of the Seller to perform
its obligations under this Agreement.
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(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its behalf
has (A) offered, pledged, sold, disposed of or otherwise transferred
any Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (B) solicited any offer to buy
or to accept a pledge, disposition or other transfer of any
Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (C) otherwise approached or
negotiated with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any
manner, (D) made any general solicitation by means of general
advertising or in any other manner with respect to any Certificate,
any interest in any Certificate or any similar security, or (E) taken
any other action, that (in the case of any of the acts described in
clauses (A) through (E) above) would constitute or result in a
violation of the Securities Act or any state securities law relating
to or in connection with the issuance of the Certificates or any such
similar security or require registration or qualification pursuant to
the Securities Act or any state securities law of any Certificate or
any such similar security not otherwise intended to be a Registered
Certificate. In addition, the 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 any such similar security or interests therein. For
purposes of this paragraph 4(b)(viii), the term "similar security"
shall be deemed to include, without limitation, any Mortgage Loan or
Mortgage Loans or any security evidencing or, upon issuance, that
would have evidenced an interest in the Mortgage Loans or the Other
Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the
information set forth on pages A-10 through A-11, inclusive, of Annex
A to the Prospectus Supplement (as defined in Section 9) (the "Loan
Detail") and, to the extent consistent therewith, the information set
forth on the diskette attached to the Prospectus Supplement and the
accompanying prospectus (the "Diskette"), is true and correct in all
material respects. Insofar as it relates to the Mortgage Loans and/or
the Seller and does not represent a restatement or aggregation of the
information on the Loan Detail, the information set forth in the
Prospectus Supplement and the Memorandum (as defined in Section 9)
under the headings "Summary of Series 2002-C1 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.
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(x) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law (including, with
respect to any bulk sale laws), for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby,
other than (1) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with Seller's sale of the Mortgage Loans to the Purchaser,
(2) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and
(3) where the lack of such consent, approval, authorization,
qualification, registration, filing or notice would not have a
material adverse effect on the performance by the Seller under this
Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties made pursuant to and set forth in subsection
(b) above which materially and adversely affects the interests of the Purchaser
or a breach of any of the representations and warranties made pursuant to
subsection (a) above and set forth in Exhibit C which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the Purchaser
or its successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5 Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) The Purchaser has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by the 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.
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(v) The Purchaser is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would
prohibit the Purchaser from entering into this Agreement or, in the
Purchaser's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Purchaser to
perform its obligations under this Agreement or the financial
condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker,
investment banker, agent or other person, other than the Seller, the
Underwriters, the Initial Purchasers and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
transactions contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6 Repurchases.
(a) Within 90 days of the earlier of discovery or receipt of notice by
the Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement as in effect on the
Closing Date) in respect of the Mortgage File for any Mortgage Loan or a breach
of any representation or warranty made pursuant to Section 4(a) and set forth in
Exhibit C (a "Breach"), which Defect or Breach, as the case may be, materially
and adversely affects the value of any Mortgage Loan or the interests therein of
the Purchaser or its successors and assigns (including, without limitation, the
Trustee and the holders of the Certificates), the Seller shall cure such Defect
or Breach, as the case may be, in all material respects or repurchase the
affected Mortgage Loan from the then owner(s) thereof at the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement as in effect on the
Closing Date) by payment of such Purchase Price by wire transfer of immediately
available
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funds to the account designated by such owner(s); provided, however, that in
lieu of effecting any such repurchase, the Seller will be permitted to deliver a
Qualifying Substitute Mortgage Loan and to pay a cash amount equal to the
applicable Substitution Shortfall Amount, subject to the terms and conditions of
the Pooling and Servicing Agreement as in effect on the Closing Date.
If the Seller is notified of a Defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such Defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes.
(b) Notwithstanding Section 6(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
If any such Breach is not corrected or cured in all material respects
within the applicable Permitted Cure Period, the Seller shall, not later than
the last day of such Permitted Cure Period, (i) repurchase the affected Mortgage
Loan from the Purchaser or its assignee at the applicable Purchase Price or (ii)
if within the three-month period commencing on the Closing Date (or within the
two-year period commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G-2(f)), at its option, replace such
Mortgage Loan with a Qualifying Substitute Mortgage Loan and pay any
corresponding Substitution Shortfall Amount. The Seller agrees that any such
repurchase or substitution shall be completed in accordance with and subject to
the terms and conditions of the Pooling and Servicing Agreement.
For purposes of the preceding paragraph only, the "Permitted Cure
Period" applicable to any Breach in respect of any Mortgage Loan shall be the
90-day period immediately following the earlier of the discovery by the Seller
or receipt by the Seller of notice of such Breach; provided that if such Breach
cannot be corrected or cured in all material respects within such 90-day period,
but is reasonably likely that such Breach could be corrected or cured within 180
days of the earlier of discovery by the Seller and receipt by the Seller of
notice of such Breach and the Seller is diligently attempting to effect such
correction or cure, then the applicable Permitted Cure Period shall, with the
consent of the Purchaser or its assignee (which consent shall not be
unreasonably withheld), be extended for an additional 90 days, unless (i) the
affected Mortgage Loan is in default and (ii) the applicable Breach constitutes
a Material Document Defect (as defined in the Pooling and Servicing Agreement)
other than a Material Document Defect resulting solely from a delay caused by
the public recording or filing office where a document has been sent for
recording or filing.
(c) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 6, the then owner(s) thereof shall
tender or cause to be tendered promptly to the Seller, upon delivery of a
receipt executed by the Seller, the related Mortgage
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File and Servicing File, and each document that constitutes a part of the
Mortgage File that was endorsed or assigned to the Purchaser or the Trustee
shall be endorsed or assigned, as the case may be, to the Seller or its designee
in the same manner. The form and sufficiency of all such instruments and
certificates shall be the responsibility of the Seller.
(d) Except as provided in Section 2(b), this Section 6 provides the
sole remedies available to the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the Certificates)
respecting any Defect in a Mortgage File or any breach of any representation or
warranty made pursuant to Section 4(a) and set forth in Exhibit C, or in
connection with the circumstances described in Section 6(b). If the Seller
defaults on its obligations to repurchase any Mortgage Loan in accordance with
Section 6(a) or 6(b) or disputes its obligation to repurchase any Mortgage Loan
in accordance with either such subsection, the Purchaser or its successors and
assigns may take such action as is appropriate to enforce such payment or
performance, including, without limitation, the institution and prosecution of
appropriate proceedings. The Seller shall reimburse the Purchaser for all
necessary and reasonable costs and expenses incurred in connection with such
enforcement.
(e) In the event that (i) any Mortgage Loan that is a
Cross-Collateralized Mortgage Loan (as defined in the Pooling and Servicing
Agreement) is required to be repurchased pursuant to this Section 6 as a result
of a Breach, Defect or other event, and (ii) the cross-collateralization
provisions of the related Cross-Collateralized Mortgage Loans cannot be released
to the extent required by Section 2.03 of the Pooling and Servicing Agreement to
permit repurchase of the affected Mortgage Loan within the time period specified
in this Agreement for such repurchase, the Seller shall repurchase the affected
Mortgage Loan and all of the related Cross-Collateralized Mortgage Loans not so
released.
SECTION 7 Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Xxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
specified herein shall be true and correct as of the Closing Date, and
the Aggregate Cut-off Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee, the Purchaser or the Purchaser's designee, as the case may
be, all documents and funds required to be so delivered pursuant to
Section 2;
10
(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 Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees,
costs and expenses payable by it to the Purchaser pursuant to this
Agreement;
(vii) The Seller shall have caused the Trust Fund to execute
the Co-Lender Agreement in form and substance reasonably acceptable to
the Seller; and
(viii) Neither the Underwriting Agreement nor either of the
Certificate Purchase Agreements shall have been terminated in
accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8 Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and
the Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser and each Underwriter may
rely, attaching thereto as exhibits the organizational documents of the Seller;
(c) A certificate of good standing regarding the Seller from the
Secretary of State for the State of New York, dated not earlier than 30 days
prior to the Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer or authorized signatory of the
Seller and dated the Closing Date, and upon which the Purchaser and each
Underwriter may rely;
(e) Written opinions of counsel for the Seller, 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 Seller and
acceptable to counsel for the Purchaser, dated the Closing Date and addressed to
the Purchaser and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested
by the Rating Agencies in connection with the issuance of the Certificates, each
of which shall include the Purchaser and each Underwriter as an addressee; and
11
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9 Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
its officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; but only if and to the extent that (i) any such untrue
statement or alleged untrue statement is with respect to information regarding
the Mortgage Loans contained in the Loan Detail or, to the extent consistent
therewith, the Diskette or contained in the Term Sheet Diskette, to the extent
consistent with the Term Sheet Master Tape, or (ii) any such untrue statement or
alleged untrue statement or omission or alleged omission is with respect to
information regarding the Seller or the Mortgage Loans contained in the
Prospectus Supplement or the Memorandum under the headings "Summary of Series
2002-C1 Transaction--The Mortgage Pool," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection
Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk
Factors" and/or "Description of the Mortgage Pool" or contained on Annex A to
the Prospectus Supplement (exclusive of the Loan Detail), and such information
does not represent a restatement or aggregation of information contained in the
Loan Detail; or (iii) such untrue statement, alleged untrue statement, omission
or alleged omission arises out of or is based upon a breach of the
representations and warranties of the Seller set forth in or made pursuant to
Section 4; provided, that the indemnification provided by this Section 9 shall
not apply to the extent that such untrue statement of a material fact or
omission of a material fact necessary to make the statements made, in light of
the circumstances in which they were made, not misleading, was made as a result
of an error in the manipulation of, or calculations based upon, the Loan Detail.
The Seller also 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
12
the breach or alleged breach by the Seller of any of its representations,
warranties and covenants set forth in Section 4(b)(viii). This indemnity
agreement will be in addition to any liability which the Seller may otherwise
have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-60030 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 June 26,
2001, as supplemented by the prospectus supplement dated January 25, 2002 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated January 25, 2002, relating to
the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx
& Co. Incorporated, and Xxxxxx Structured Asset Corporation and the no-action
letter dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Xxxxxx
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Xxxxxx Letters, the "No-Action Letters"). The mortgage
loan information and related information contained on the diskette attached to
any ABS Term Sheets or Computational Materials is referred to herein as the
"Term Sheet Diskette" and the tape provided by the Seller that was used to
create the Term Sheet Diskette is referred to herein as the "Term Sheet Master
Tape." References herein to ABS Term Sheets or Computational Materials shall
include any Term Sheet Diskette provided therewith.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Seller (the "indemnifying party") under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election to assume the defense of such action
and approval by the indemnified party of counsel, which approval will not be
unreasonably withheld, the indemnifying party will not be liable for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
13
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 Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 9, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 9 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by any
indemnified party, and (iii) acceptance of and payment for any of the
Certificates.
SECTION 10 Costs.
Costs relating to the transactions contemplated hereby shall be borne
by the respective parties hereto.
14
SECTION 11 Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at
000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance
Manager, facsimile no. (000) 000-0000, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter be furnished to the Seller in writing by the Purchaser; and if to
the Seller, addressed to Xxxxxxx Sachs Mortgage Company, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxx Xxxxxxx, facsimile no. (000) 000-0000, or
to such other address or facsimile number as the Seller may designate in writing
to the Purchaser.
SECTION 12 Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it was a party hereto.
SECTION 13 Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 14 Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
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.
15
SECTION 16 GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17 Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18 Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19 Amendments.
No term or provision of this Agreement may be amended, waived, modified
or in any way altered, unless such amendment, waiver, modification or alteration
is in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
16
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
XXXXXXX SACHS MORTGAGE COMPANY,
a New York Limited Partnership
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
its General Partner
By: _____________________________
Name:
Title:
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: _____________________________
Name: Xxxxx Xxxxxxx
Title: Vice President
17
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the originator, without recourse, either in
blank or to the order of the Trustee in the following form: "Pay to the order of
Xxxxx Fargo Bank Minnesota, N.A., as trustee for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
2002-C1, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the originator, either in blank or in favor of the Trustee (in such
capacity);
(iv) the original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the originator, either in blank or in favor of the Trustee (in such
capacity), which assignment may be included as part of the corresponding
assignment of Mortgage referred to in clause (iii) above;
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if applicable, the originals
or copies of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the originator,
either in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage referred to
in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon if
appropriate, in those instances
B-1
where the terms or provisions of the Mortgage, Mortgage Note or any related
security document have been modified or the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy,
together with all endorsements or riders (or copies thereof) that were issued
with or subsequent to the issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgaged Property;
(x) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan together with (A) if applicable, the original
or copies of any intervening assignments of such guaranty showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee thereof prior to the Trustee, if any, and (B) an original assignment of
such guaranty executed by the most recent assignee thereof prior to the Trustee
or, if none, by the originator;
(xi) (A) file or certified copies of any UCC financing statements and
continuation statements which were filed in order to perfect (and maintain the
perfection of) any security interest held by the originator of the Mortgage Loan
(and each assignee of record prior to the Trustee) in and to the personalty of
the Mortgagor at the Mortgaged Property (in each case with evidence of filing
thereon) and which were in the possession of the Seller (or its agent) at the
time the Mortgage Files were delivered to the Trustee and (B) if any such
security interest is perfected and the earlier UCC financing statements and
continuation statements were in the possession of the Seller, a UCC financing
statement executed by the most recent assignee of record prior to the Trustee
or, if none, by the originator, evidencing the transfer of such security
interest, either in blank or in favor of the Trustee;
(xii) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the Mortgagor if the Mortgage,
Mortgage Note or other document or instrument referred to above was signed on
behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
(xiv) if the Mortgage Loan is a Credit Lease Loan, an original of the
credit lease enhancement insurance policy, if any, obtained with respect to such
Mortgage Loan and an original of the residual value insurance policy, if any,
obtained with respect to such Mortgage Loan;
(xv) the original or a copy of any lockbox agreement or deposit
account or similar agreement;
(xvi) the original or a copy of any environmental insurance policy;
(xvii) the original or a copy of any intercreditor or co-lender
agreement with respect to the Mortgage Loan;
(xviii) the original or a copy of any letter of credit; and
B-2
(xix) any additional documents required to be added to the Mortgage
File pursuant to this 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. The original assignments referred to in clauses
(iii), (v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
B-3
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date herein below specified or, if no such date is
specified, as of the Closing Date, except as set forth on Schedule C-1 hereto,
that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer
thereof to the Purchaser, the Seller had good and marketable title to, and was
the sole owner and holder of, such Mortgage Loan, free and clear of any and all
liens, encumbrances and other interests on, in or to such Mortgage Loan (other
than, in certain cases, the right of a subservicer to directly service such
Mortgage Loan). Such transfer validly assigns ownership of such Mortgage Loan to
the Purchaser free and clear of any pledge, lien, encumbrance or security
interest (other than the rights of any sub-servicer to subservice such Mortgage
Loans).
(ii) Authority to Transfer Mortgage Loans. The Seller has full right
and authority to sell, assign and transfer such Mortgage Loan. No provision of
the Mortgage Note, Mortgage or other loan document relating to such Mortgage
Loan prohibits or restricts the Seller's right to assign or transfer such
Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct in
all material respects as of the Cut-off Date; provided, however, that this
representation or warranty shall be deemed not to include any representation or
warranty with respect to the subject matter of any other representation or
warranty set forth herein.
(iv) Payment Record. Such Mortgage Loan was not as of the Cut-off Date
for such Mortgage Loan, and has not been during the twelve-month period prior
thereto, 30 days or more delinquent in respect of any debt service payment
required thereunder, without giving effect to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes a valid
first lien upon the related Mortgaged Property, including all buildings located
thereon and all fixtures attached thereto, such lien being subject only to (A)
the lien of current real property taxes and assessments not yet due and payable,
(B) covenants, conditions and restrictions, rights of way, easements and other
matters of public record, and (C) exceptions and exclusions specifically
referred to in the lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such Mortgage Loan (the
exceptions set forth in the foregoing clauses (A), (B) and (C) collectively,
"Permitted Encumbrances"). The Permitted Encumbrances do not materially
interfere with the security intended to be provided by the related Mortgage, the
current use or operation of the related Mortgaged Property or the current
ability of the Mortgaged Property to generate net operating income sufficient to
service the Mortgage Loan. If the Mortgaged Property is operated as a nursing
facility, a hospitality property or a multifamily property, the Mortgage,
together with any separate security agreement, similar agreement and
C-1
UCC financing statement, if any, establishes and creates a first priority,
perfected security interest (subject only to any prior purchase money security
interest), to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in all
personal property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by
an ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee without the consent of or notice to the insurer. To the Seller's
actual knowledge, the insurer that issued such Title Policy is qualified to do
business in the state in which the related Mortgaged Property is located.
(vii) No Waivers by Seller of Material Defaults. The Seller has not
waived any material default, breach, violation or event of acceleration existing
under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid
offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan (except in such case where an escrow of
funds exists sufficient to effect the necessary repairs and maintenance). The
Seller has no actual notice of the commencement of a proceeding for the
condemnation of all or any material portion of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied in all
material respects with all applicable usury laws in effect at its date of
origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
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(xii) Enforceability. The related Mortgage Note and Mortgage and all
other documents and instruments evidencing, guaranteeing, insuring or otherwise
securing such Mortgage Loan have been duly and properly executed by the parties
thereto, and each is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, redemption, fraudulent
conveyance, receivership, moratorium or other laws relating to or affecting the
rights of creditors generally and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged Property
are insured under an "all risk" insurance policy against loss by hazards of
extended coverage in an amount (subject to a customary deductible) at least
equal to the full insurable replacement cost of the improvements located on such
Mortgaged Property, which policy contains appropriate endorsements to avoid the
application of coinsurance and does not permit reduction in insurance proceeds
for depreciation. If any portion of the improvements upon the related Mortgaged
Property was, at the time of the origination of such Mortgage Loan, in a flood
zone area as identified in the Federal Register by the Federal Emergency
Management Agency as a 100 year flood zone or special hazard area, and flood
insurance was available, a flood insurance policy meeting any requirements of
the then current guidelines of the Federal Insurance Administration is in effect
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (1) the outstanding principal balance of
such Mortgage Loan, (2) the full insurable value of such Mortgaged Property, (3)
the maximum amount of insurance available under the National Flood Insurance Act
of 1968, as amended, or (4) 100% of the replacement cost of the improvements
located on such Mortgaged Property. In addition, the Mortgage requires the
Mortgagor to maintain in respect of the Mortgaged Property workers' compensation
insurance (if applicable), comprehensive general liability insurance in amounts
generally required by the Seller, and at least twelve months rental or business
interruption insurance, and all such insurance required by the Mortgage to be
maintained is in full force and effect. Each such insurance policy names the
holder of the Mortgage as an additional insured or contains a mortgagee
endorsement naming the holder of the Mortgage as loss payee and requires prior
notice to the holder of the Mortgage of termination or cancellation, and no such
notice has been received, including any notice of nonpayment of premiums, that
has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property was
subject to one or more environmental site assessments (or an update of a
previously conducted assessment), which was (were) performed on behalf of the
Seller, or as to which the related report was delivered to the Seller in
connection with its origination or acquisition of such Mortgage Loan; and the
Seller, having made no independent inquiry other than reviewing the resulting
report(s) and/or employing an environmental consultant to perform the
assessment(s) referenced herein, has no knowledge of any material and adverse
environmental conditions or circumstance affecting such Mortgaged Property that
was not disclosed in the related report(s). The Seller has not taken any action
with respect to such Mortgage Loan or the related Mortgaged Property that could
subject the Purchaser, or its successors and assigns in respect of the Mortgage
Loan, to any liability under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA") or any other
applicable federal, state or local environmental law, and the
C-3
Seller has not received any actual notice of a material violation of CERCLA or
any applicable federal, state or local environmental law with respect to the
related Mortgaged Property that was not disclosed in the related report. The
related Mortgage or loan documents in the related Mortgage File requires the
Mortgagor to comply with all applicable federal, state and local environmental
laws and regulations. To the extent an environmental insurance policy has been
obtained with respect to a Mortgage Loan, (i) the related environmental
insurance policy is in full force and effect, (ii) on the effective date of such
environmental insurance policy, the Seller, as originator, had no knowledge of
any material and adverse environmental condition or circumstance affecting the
Mortgage Property that was not disclosed to the policy issuer in one or more of
the following: (a) the application for insurance, (b) a borrower questionnaire
that was provided to the policy issuer or (c) an environmental assessment,
engineering or other report provided to the policy issuer and (iii) the premiums
on the environmental insurance policy have been paid in full or the related loan
documents provide for payment of such premiums by the related Mortgagor or other
responsible party as the same shall be payable.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will not
be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and
the Mortgage Note have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties would
be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. The interest of
the related Mortgagor in the related Mortgaged Property consists of a fee simple
interest in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage referred
to in clause (iii) of Exhibit B constitutes the legal, valid and binding
assignment of such Mortgage from the relevant assignor to the Trustee. The
Assignment of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and, subject only to Permitted
Encumbrances, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, subleases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related Mortgage,
and each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases, not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form and constitutes a legal,
valid and binding assignment, sufficient to
C-4
convey to the assignee named therein all of the assignor's right, title and
interest in, to and under such Assignment of Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that
are, as of the Closing Date, required to be deposited with the mortgagee or its
agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the actual knowledge of the Seller, as
of the Closing Date, the related Mortgaged Property was and is free and clear of
any mechanics' and materialmen's liens or liens in the nature thereof which
create a lien prior to that created by the related Mortgage, except those which
are insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent (unless affirmatively covered by the title insurance referred to in
paragraph (vi) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel and/or other due diligence customarily performed
by the Seller, the improvements located on or forming part of such Mortgaged
Property do not in any material respects violate any applicable zoning laws and
ordinances (except to the extent that they may constitute legal non-conforming
uses).
(xxiv) Originator Authorized. To the extent required under applicable
law as of the Closing Date, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent necessary to
ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. (A) To the Seller's knowledge, there exists
no material default, breach or event of acceleration under the related Mortgage
or Mortgage Note, and (B) the Seller has not received actual notice of any event
(other than payments due but not yet delinquent) that, with the passage of time
or with notice and the expiration of any grace or cure period, would constitute
such a material default, breach or event of acceleration; provided, however,
that this representation and warranty does not cover any default, breach or
event of acceleration that specifically pertains to any matter otherwise covered
or addressed by any other representation and warranty made by the Seller herein.
(xxvi) Inspection. In connection with the origination or acquisition
of each Mortgage Loan, the Seller inspected or caused to be inspected the
Mortgaged Property.
(xxvii) No Equity Participation or Contingent Interest. The Mortgage
Loan contains no equity participation by the lender, and does not provide for
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property, or for negative amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan has, to
the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds
C-5
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by the Mortgage Loan (other
than amounts paid by the tenant as specifically provided under the related
lease).
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor or operator of the related Mortgaged Property was in possession of all
material licenses, permits and authorizations required by applicable laws for
the ownership and operation of the related Mortgaged Property as it was then
operated.
(xxx) Servicing. The servicing and collection practices used with
respect to the Mortgage Loan have complied with applicable law in all material
respects and are consistent with generally accepted servicing standards for
similar multifamily and commercial loans.
(xxxi) Customary Remedies. The related Mortgage or Mortgage Note,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph (xii)) such as to
render the rights and remedies of the holders thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage
provides that insurance proceeds and condemnation proceeds will be applied for
one of the following purposes: either to restore or repair the Mortgaged
Property, or to repay the principal of the Mortgage Loan, or otherwise at the
option of the holder of the Mortgage.
(xxxiii) LTV. The gross proceeds of such Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of the
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxxiii) shall be
made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treas. Reg. ss. 1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
C-6
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Reserved.
(xxxvi) Litigation. To the Seller's actual knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the related Mortgagor or the related Mortgaged
Property that, if determined adversely to such Mortgagor or Mortgaged Property,
would materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple interest in real estate or the related Mortgage
Loan is secured in whole or in part by the interest of the Mortgagor as a lessee
under a ground lease of the Mortgaged Property (a "Ground Lease"). Any Mortgage
Loan that is secured by the interest of the Mortgagor under a Ground Lease may
or may not be secured by the related fee interest in such Mortgaged Property
(the "Fee Interest"). If a Mortgage Loan is secured in whole or in part by a
Ground Lease, either (1) the ground lessor's Fee Interest is subordinated to the
lien of the Mortgage, (2) such Mortgage Loan is also secured by the related fee
interest, or (3) the following apply to such Ground Lease:
(A) To the actual knowledge of the Seller, based on due
diligence customarily performed in the origination of
comparable mortgage loans by the Seller, such Ground Lease
or a memorandum thereof has been or will be duly recorded;
such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor)
permits the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no
material change in the payment terms of such Ground Lease
since the origination of the related Mortgage Loan, with the
exception of material changes reflected in written
instruments that are a part of the related Mortgage File;
(B) The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than the ground lessor's
related fee interest and Permitted Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is assignable
to the Purchaser and its successors and assigns upon notice
to, but without the consent of, the lessor thereunder (or,
if such consent is required, it has been obtained prior to
the Closing Date) and, in the event that it is so assigned,
is further assignable by the Purchaser and its successors
and assigns upon notice to, but without the need to obtain
the consent of, such lessor;
(D) Such Ground Lease is in full force and effect, and the
Seller has received no notice that an event of default has
occurred thereunder, and, to the Seller's actual knowledge,
there exists no condition that, but for the passage of time
or the giving
C-7
of notice, or both, would result in an event of default
under the terms of such Ground Lease;
(E) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice
of any default by the lessee to the mortgagee under such
Mortgage Loan, provided that the mortgagee under such
Mortgage Loan has provided the lessor with notice of its
lien in accordance with the provisions of such Ground Lease,
and such Ground Lease, or an estoppel letter or other
agreement, further provides that no notice of termination
given under such Ground Lease is effective against the
mortgagee unless a copy has been delivered to the mortgagee;
(F) The mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under
such Ground Lease, which is curable after the receipt of
notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(G) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less
than ten years beyond the Stated Maturity Date of the
related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds
will be applied either to the repair or restoration of all
or part of the related Mortgaged Property, with the
mortgagee under such Mortgage Loan or a trustee appointed by
it having the right to hold and disburse such proceeds as
the repair or restoration progresses (except in such cases
where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or to
the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon;
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed, as of the date of
origination of the related Mortgage Loan, as commercially
unreasonable by the Seller; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any subtenant of the lessee,
or in any manner, which would materially adversely affect
the security provided by the related Mortgage; and
(J) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor to enter into a new lease in the event
of a termination of the Ground Lease by reason of a default
by the Mortgagor under the Ground Lease, including,
rejection of the ground lease in a bankruptcy proceeding.
C-8
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated in the Mortgage Loan
Documents and such portion was not considered material for purposes of
underwriting the Mortgage Loan, (b) release is conditioned upon the satisfaction
of certain underwriting and legal requirements or the payment of a release
price, or (c) a defeasance is effected in accordance with the Mortgage Loan
Documents, the related Mortgage Note or Mortgage does not require the holder
thereof to release all or any portion of the Mortgaged Property from the lien of
the related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal priority
with the lien of the related Mortgage (excluding any lien relating to another
Mortgage Loan that is cross-collateralized with such Mortgage Loan) without the
prior written consent of the holder thereof or the satisfaction of debt service
coverage or similar conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor
is not a debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) Due Organization of Mortgagors. As of the date of origination
of each Mortgage, each related Mortgagor which is not a natural person was duly
organized and validly existing under the laws of the state of its jurisdiction.
(xliii) Due-On-Sale. The Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of such Mortgage Loan, the
related Mortgaged Property, or any controlling interest therein, is directly or
indirectly transferred or sold.
(xliv) Single Purpose Entity. As of the date of the origination of the
relevant Mortgage Loan, the related Mortgagor is an entity, other than an
individual, whose organizational documents or the related Mortgage Loan
Documents provide substantially to the effect that the Mortgagor: (A) is formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans, (B) may not engage in any
business unrelated to such Mortgaged Property or Mortgaged Properties, (C) does
not have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Mortgaged Properties, (D) may not incur
indebtedness other than as permitted by the related Mortgage or other Mortgage
Loan Documents, (E) has its own books and records separate and apart from any
other person, and (F) holds itself out as a legal entity, separate and apart
from any other person.
(xlv) Defeasance Provisions. Any Mortgage Loan which contains a
provision for any defeasance of mortgage collateral by the Mortgagor, either (A)
requires the consent of the holder of the Mortgage Loan to any defeasance, or
(B) permits defeasance (i) no earlier than two years after the Closing Date (as
defined in the Pooling and Servicing Agreement, dated as of February
C-9
1, 2002), (ii) only with substitute collateral constituting "government
securities" within the meaning of Treas. Reg. ss. 1.860G-2(a)(8)(i), and (iii)
only to facilitate the disposition of mortgage real property and not as a part
of an arrangement to collateralize a REMIC offering with obligations that are
not real estate mortgages.
(xlvi) Defeasance Costs. If the Mortgage Loan permits defeasance, then the
mortgage loan documents related to such Mortgage Loan require (a) the borrower
to pay all rating agency fees associated with defeasance and all other
out-of-pocket expenses associated with defeasance such as accountant's fees and
opinions of counsel, or (b) that the borrower provide a REMIC opinion, an
opinion regarding the first priority perfected security interest in the
defeasance collateral, rating agency letters certifying no rating qualification
or downgrade on any securities, and accountant certification that all payments
from the defeasance collateral are sufficient to make monthly principal and
interest payments on such Mortgage Loan through maturity.
(xlvii) Rating Agency Fees for Assumptions. In the case of each Mortgage Loan
that entitles the Mortgagor to cause an assumption of such Mortgage Loan by a
third party, the holder of each Mortgage Loan is entitled to require the payment
by the related Mortgagor of any related rating agency fees if a Rating Agency
Confirmation is required under the Pooling and Servicing Agreement in connection
with such assumption.
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
C-10
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
(XV) NO CROSS-COLLATERALIZATION WITH OTHER MORTGAGE LOANS
----------------------------------------------------
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
112940205 Mesa Grand and Mesa Spectrum The Mortgage Loan and another mortgage note in an
Shopping Centers equivalent principal amount are ratably secured by a
single Mortgage on the Mortgaged Properties. Both notes
are subject to a Co-Lender Agreement.
-------------------------- -------------------------------- ----------------------------------------------------------
(XVIII) MORTGAGOR'S INTEREST IN MORTGAGED PROPERTY.
-------------------------------------------
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
122853245 Xxxxx Industrial Portfolio Transaction is structured as a Marlyand Indemnity Deed
of Trust, whereby an affiliate of the borrower, Xxxxx
Limited Partnership, is the owner in fee simple of the
Mortgaged Property and has executed the Mortgage to
secure the Mortgage Loan.
-------------------------- -------------------------------- ----------------------------------------------------------
106191988 Oakcrest Estates The Mortgagor has a leasehold interest in the Mortgaged
Property.
-------------------------- -------------------------------- ----------------------------------------------------------
(XXIII) NO MATERIAL ENCROACHMENTS.
--------------------------
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
106583890 Sterling Business Park There are several encroachments on the Mortgaged
Property for which the Title Company provided
affirmative coverage.
-------------------------- -------------------------------- ----------------------------------------------------------
107982978 King Xxxxx Xxxx XX There is a material encroachment of the building over
the setback requirements for which the Title Company
provided affirmative coverage.
-------------------------- -------------------------------- ----------------------------------------------------------
(XXIX) LICENSES, PERMITS, ETC.
-----------------------
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
112940205 Mesa Grand and Mesa Spectrum A number of Certificates of Occupancy covering certain
Shopping Centers tenant spaces were not obtained as of the date of
origination but were delivered within 60 days after
closing.
-------------------------- -------------------------------- ----------------------------------------------------------
C-1-1
(XLIV) SINGLE PURPOSE ENTITY.
----------------------
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
120150196 Gallery Place Apartments The Lender waived the requirement that the Mortgagor
must be a single purpose entity. This is an exception to
clause (A) of the single purpose entity representation
and warranty. The Lender waived the customary
single-asset covenants in the Mortgage Loan Documents.
This is an exception to clause (C) of the single purpose
entity representation and warranty.
-------------------------- -------------------------------- ----------------------------------------------------------
100941307 Oviedo Crossroads The Mortgagor is not a single purpose entity. The
Mortgagor owns and leases out a parcel separate from the
Mortgaged Property. This is an exception to clause (A)
of the single purpose entity representation and
warranty. Although Mortgagor is prohibited from
acquiring property not currently owned by the Mortgagor,
standard single-asset covenants are excluded from the
Mortgage Loan Documents. This is an exception to clause
(C) of the single purpose entity representation and
warranty.
-------------------------- -------------------------------- ----------------------------------------------------------
106700111 Highland Towers Apartments The Mortgagor is not a single purpose entity, and the
Lender waived the requirement that the Mortgagor must be
a single purpose entity. This is an exception to clause
(A) of the single purpose entity representation and
warranty. The Lender waived the customary single-asset
covenants in the Mortgage Loan Documents. This is an
exception to clause (C) of the single purpose entity
representation and warranty.
-------------------------- -------------------------------- ----------------------------------------------------------
(XXXIX) LIEN RELEASES.
--------------
-------------------------- -------------------------------- ----------------------------------------------------------
LOAN NUMBER PROPERTY NAME ISSUE
-------------------------- -------------------------------- ----------------------------------------------------------
122853245 Xxxxx Industrial Mortgagor may voluntarily defease a portion of the
Mortgage Loan and obtain release of the Mortgaged
Property.
-------------------------- -------------------------------- ----------------------------------------------------------
104793199 Franklin Centre Partial release of undeveloped outparcels is permitted
when subdivided into separate tax parcels. No value was
attributed to outparcels in underwriting the Mortgage
Loan.
-------------------------- -------------------------------- ----------------------------------------------------------
100941307 Oviedo Crossroads During first 6 months, undeveloped land may be released
for a nominal fee. No value was attributed to
undeveloped land in underwriting the Mortgage Loan.
-------------------------- -------------------------------- ----------------------------------------------------------
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF AN OFFICER OF THE SELLER
Certificate of Officer of Xxxxxxx Xxxxx Mortgage Company ("Seller")
-------------------------------------------------------------------
I, __________________, a _____________ of the Seller, hereby certify as follows:
The Seller is limited partnership duly organized and validly existing under the
laws of the State of New York.
Attached hereto as Exhibit I are true and correct copies of the organizational
documents of the Seller, which organizational documents are on the date hereof,
and have been at all times in full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified officer
or authorized signatory of the Seller and his genuine signature is set forth
opposite his name:
NAME OFFICE SIGNATURE
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of January 25, 2002
(the "Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Seller of the Mortgage Loans, was, at the respective
times of such signing and delivery, duly authorized or appointed to execute such
documents in such capacity, and the signatures of such persons or facsimiles
thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
D-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of ______________, 2002
.
By:______________________________
Name:
Title:
I, __________________, __________________, hereby certify that ________________
is a duly elected or appointed, as the case may be, qualified and acting
_____________________ of the Seller and that the signature appearing above is
his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
____________, 2002.
By:______________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SELLER
Certificate of Xxxxxxx Sachs Mortgage Company
---------------------------------------------
In connection with the execution and delivery by Xxxxxxx Xxxxx Mortgage
Company (the "Seller") of, and the consummation of the transaction contemplated
by, that certain Mortgage Loan Purchase Agreement, dated as of January 25, 2002
(the "Purchase Agreement"), between GMAC Commercial Mortgage Securities, Inc.
and the Seller, the Seller hereby certifies that (i) the representations and
warranties of the Seller in the Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, and (ii) the Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date hereof. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.
Certified this day of 2002.
XXXXXXX SACHS MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
its general partner
______________________________
Name:
Title:
D-2-1
