EXECUTION COPY
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement (this "Agreement"), is dated and effective
as of July 6, 2001, between GMAC Commercial Mortgage Corporation as seller (the
"Seller") and German American Capital Corporation as purchaser (the
"Purchaser").
WHEREAS, the Seller sold certain mortgage loans to the Purchaser
pursuant to a certain Mortgage Loan Purchase Agreement, dated as of Xxxxx 00,
0000 (xxx "XXXX Purchase Agreement").
WHEREAS, the Purchaser intends to sell the mortgage loans as shown on
Exhibit A hereto (the "Mortgage Loans") to GMAC Commercial Mortgage Securities,
Inc. as Depositor, (the "Depositor") pursuant to a certain Mortgage Loan
Purchase Agreement, dated as of July 6, 2001 (the "Mortgage Loan Purchase
Agreement") and the Depositor intends to transfer the Mortgage Loans, together
with other multifamily and commercial mortgage loans, to a trust fund (the
"Trust Fund") to be formed by the Depositor, beneficial ownership of which will
be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Fitch,
Inc. 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 July 1, 2001 (the "Pooling and Servicing
Agreement"), among the Depositor as depositor, GMAC Commercial Mortgage
Corporation as master servicer (in such capacity, the "Master Servicer") and
special servicer, LaSalle Bank National Association, as trustee (in such
capacity, the "Trustee") and ABN AMRO Bank N.V., as fiscal agent. Capitalized
terms not otherwise defined herein have the meanings assigned to them in the
Pooling and Servicing Agreement as in effect on the Closing Date (as defined
below).
WHEREAS, the Depositor intends to sell the Class A-1, Class A-2, Class
B, Class C, Class D and Class E Certificates to Xxxxxxx, Sachs & Co. and
Deutsche Banc Alex. Xxxxx Inc. (together, the "Underwriters"), pursuant to an
underwriting agreement dated the date hereof (the "Underwriting Agreement"). The
Depositor intends to sell the Class X-1, Class X-2, Class F, Class G and Class H
Certificates to Xxxxxxx, Sachs & Co. and Deutsche Banc Alex. Xxxxx Inc. (in such
capacity, each an "Initial Purchaser"), portions of Class J and portions of
Class K to Xxxxxxx, Sachs & Co. (in such capacity, an "Initial Purchaser") and
portions of the Class J, portions of Class K, Class L, Class M, Class N, Class
O, Class P and Class Q Certificates to G3 Strategic Investments LP (in such
capacity, an "Initial Purchaser") pursuant to two certificate purchase
agreements, each dated the date hereof (the "Certificate Purchase Agreements").
The Depositor intends to sell the Class R-I, Class R-II and Class R-III
Certificates to Xxxxxxx, Xxxxx & Co. (in such capacity, an "Initial Purchaser").
WHEREAS, each of the Seller and the Purchaser, in connection with the
transaction described above, desires to amend and supplement certain of the
provisions of the GACC Purchase Agreement as it relates to the Mortgage Loans in
order to facilitate such transaction and in contemplation of the assignment by
the Purchaser to the Depositor of all of its right, title and interest in and to
this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Amendment of GACC Purchase Agreement.
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The parties hereto agree that, with respect to the Mortgage Loans only,
the GACC Purchase Agreement is hereby amended to the extent that the provisions
of such GACC Purchase Agreement are inconsistent with this Agreement.
SECTION 2. Representations, Warranties and Covenants of the Seller.
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(a) The Seller hereby makes, as of July 12, 2001 (the "Closing Date")
(or as of such other date specifically provided in the particular representation
or warranty), to and for the benefit of the Purchaser, and its successors and
assigns (including, without limitation, the Depositor, the Trustee and the
holders of the Certificates), each of the representations and warranties set
forth in Exhibit B, with such changes or modifications as may be permitted or
required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents
and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing
and in good standing under the laws of the State of California, and is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller,
and the performance and compliance with the terms of this Agreement by the
Seller, will not violate the Seller's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material agreement
or other instrument to which it is a party or which is applicable to it or any
of its assets, in each case which materially and adversely affects 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.
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(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 the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller the outcome of which, in the Seller's good faith
and reasonable judgment, could reasonably be expected to prohibit the Seller
from entering into this Agreement or materially and adversely affect either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the Initial
Purchasers and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans or
the consummation of any of the other transactions contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or court
is required, under federal or state law (including, with respect to any bulk
sale laws), for the execution, delivery and performance of or compliance by the
Seller with this Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been obtained or made
and (2) where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on the
performance by the Seller under this Agreement.
(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 its successors or assigns or a breach of any of the representations and
warranties made pursuant to subsection (a) above and set forth in Exhibit B
which materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Purchaser or its successors and assigns (including,
without limitation the Depositor, the Trustee and the holders of the
Certificates), the party discovering such breach shall give prompt written
notice to the other party hereto or if this Agreement has been assigned by the
Purchaser, to such assignee. The representations, warranties and covenants set
forth in Section 2(a) shall, as between the Seller and the Purchaser,
supplement, and as between the Seller and any successors or assigns of the
Purchaser, replace and amend and restate in their entirety, the representations,
warranties and covenants of the Seller made pursuant to Section 4.1(a) of the
GACC Purchase Agreement to the extent they relate to the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of the
Purchaser.
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(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
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(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Maryland.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this Agreement
by the Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable to
it or any of its assets, in each case which materially and adversely affects the
ability of the Purchaser to carry out the transactions contemplated by this
Agreement.
(iii) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law, and (C) public
policy considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the Purchaser
from entering into this Agreement or, in the Purchaser's good faith and
reasonable judgment, is likely to materially and adversely affect either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the Underwriters, the
Initial Purchasers and their respective 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
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the consummation by the Purchaser of any transaction contemplated hereby, other
than (1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (2) where
the lack of such consent, approval, authorization, qualification, registration,
filing or notice would not have a material adverse effect on the performance by
the Purchaser under this Agreement.
(b) The Purchaser hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Seller, and its successors and assigns, with
respect to each Mortgage Loan each of the representations and warranties set
forth below:
(i) Immediately prior to the transfer thereof to the Depositor,
the Purchaser had whatever title to such Mortgage Loan as was conveyed to it by
Seller, free and clear of any and all liens, encumbrances and other interests
on, in or to such Mortgage Loan (other than, in certain cases, the right of a
third party servicer to directly service such Mortgage Loan) created by the
Purchaser. Such transfer validly assigns such title to such Mortgage Loan to the
Depositor free and clear of any pledge, lien, encumbrance or security interest
created by the Purchaser;
(ii) The Purchaser has full right and authority to sell, assign
and transfer its interest in such Mortgage Loan;
(iii) The Purchaser has not done anything that would materially
impair the coverage under the lender's title insurance policy that insures the
lien of the related Mortgage;
(iv) The Purchaser has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage or
Mortgage Note;
(v) To the Purchaser's actual knowledge, without independent
inquiry as to the provisions of the Mortgage Loans, there is no valid offset,
defense or counterclaim to such Mortgage Loan arising out of the Purchaser's
actions or holding of the Mortgage Loans; and
(vi) The terms of the related Mortgage and the Mortgage Note have
not been impaired, waived, altered or modified by the Purchaser in any material
respect, except as specifically set forth in the related Mortgage File;
provided that, with respect to the representations and warranties in clauses
(iii), (iv), (v) and (vi) above, such representations and warranties cover only
actions taken directly by the Purchaser and its Affiliates or taken by the
Seller at the direction of the Purchaser.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 4. Repurchases.
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(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
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Servicing Agreement as in effect on the Closing Date) in respect of the Mortgage
File for any Mortgage Loan or a breach of any representation or warranty made
pursuant to Section 2(a) and set forth in Exhibit B (a "Breach"), which Defect
or Breach, as the case may be, materially and adversely affects the value of any
Mortgage Loan or the interests therein of the Purchaser or its successors and
assigns (including, without limitation, the Depositor, the Trustee and the
holders of the Certificates), the Seller shall cure such Defect or Breach, as
the case may be, in all material respects or repurchase the affected Mortgage
Loan from the then owner(s) thereof at the applicable Purchase Price (as defined
in the Pooling and Servicing Agreement as in effect on the Closing Date) by
payment of such Purchase Price by wire transfer of immediately available funds
to the account designated by such owner(s); provided, however, that in lieu of
effecting any such repurchase, the Seller will be permitted to deliver a
Qualifying Substitute Mortgage Loan and to pay a cash amount equal to the
applicable Substitution Shortfall Amount, subject to the terms and conditions of
the Pooling and Servicing Agreement as in effect on the Closing Date.
If the Seller is notified of a Defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such Defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser or any successor or assign thereof, which corrected
Mortgage Loan Schedule shall be deemed to amend and replace the existing
Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 4(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
In addition, if, as of the Closing Date, any Mortgage Loan is secured
by a Mortgage that does not constitute a valid first lien upon the related
Mortgaged Property, including all buildings located thereon and all fixtures
attached thereto, or if a Mortgage is subject to something other than (A) the
lien of current real property taxes and assessments not yet due and payable, (B)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, (C) exceptions and exclusions specifically referred to
in the lender's title insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan and (D) those
exceptions set forth on Schedule B-1 to Exhibit B hereto (the exceptions set
forth in the foregoing clauses (A), (B), (C) and (D) collectively, "Permitted
Encumbrances"), or if the insurer that issued the Title Policy referred to in
clause (vi) of Exhibit B hereto in respect of any Mortgage Loan was not
qualified to do business in the state in which the related Mortgaged Property is
located, and in either case such failure materially and adversely affects the
interests of holders of Certificates (any such failure that materially and
adversely affects the interests of holders of Certificates, also a "Breach"),
the Seller shall be required, at its option, to either (i) cure such Breach in
all material respects or (ii) repurchase the affected Mortgage Loan, in each
case, within the applicable Permitted Cure Period. If any such Breach is not
corrected or cured in all material respects within the applicable Permitted Cure
Period, the Seller shall, not later than the last day of such Permitted Cure
Period, (i) repurchase the affected Mortgage Loan from the Purchaser or its
assignee at the applicable Purchase Price or (ii) if within the three-
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month period commencing on the Closing Date (or within the two-year period
commencing on the Closing Date if the related Mortgage Loan is a "defective
obligation" within the meaning of Section 860(a)(4)(B)(ii) of the Code and
Treasury Regulation Section 1.860G-2(f)), at its option, replace such Mortgage
Loan with a Qualifying Substitute Mortgage Loan and pay any corresponding
Substitution Shortfall Amount. The Seller agrees that any such repurchase or
substitution shall be completed in accordance with and subject to the terms and
conditions of the Pooling and Servicing Agreement.
For purposes of the preceding paragraph only, the "Permitted Cure
Period" applicable to any Breach in respect of any Mortgage Loan shall be the
90-day period immediately following the earlier of the discovery by the Seller
or receipt by the Seller of notice of such Breach; provided that if such Breach
cannot be corrected or cured in all material respects within such 90-day period,
but it is reasonably likely that such Breach could be corrected or cured within
180 days of the earlier of discovery by the Seller and receipt by the Seller of
notice of such Breach, and the Seller is diligently attempting to effect such
correction or cure, then the applicable Permitted Cure Period shall, with the
consent of the Purchaser or its assignee (which consent shall not be
unreasonably withheld), be extended for an additional 90 days, unless (i) the
affected Mortgage Loan is in default and (ii) the applicable Breach constitutes
a Material Document Defect (as defined in the Pooling and Servicing Agreement)
other than a Material Document Defect resulting solely from a delay caused by
the public recording or filing office where documents have been sent for
recording or filing.
(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 4, the then owner(s) thereof shall tender or
cause to be tendered promptly to the Seller, upon delivery of a receipt executed
by the Seller, the related Mortgage File and Servicing File, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Purchaser or the Trustee shall be endorsed or assigned, as the case may be,
to the Seller or its designee in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) This Section 4 provides the sole remedies available to the
Purchaser, and its successors and assigns (including, without limitation, the
Depositor, the Trustee and the holders of the Certificates) respecting any
Defect in a Mortgage File or any breach of any representation or warranty made
pursuant to Section 2(a) and set forth in Exhibit B, or in connection with the
circumstances described in Section 4(b). If the Seller defaults on its
obligations to repurchase or replace any Mortgage Loan in accordance with
Section 4(a) or 4(b) or disputes its obligation to repurchase or replace any
Mortgage Loan in accordance with either such subsection, the Purchaser or its
successors and assigns may take such action as is appropriate to enforce such
payment or performance, including, without limitation, the institution and
prosecution of appropriate proceedings. The Seller shall reimburse the Purchaser
for all necessary and reasonable costs and expenses incurred in connection with
such enforcement. The remedies provided in this Section 4 shall replace and
amend and restate in their entirety the provisions of Section 4.3 of the GACC
Purchase Agreement with respect to the Mortgage Loans.
(e) In the event that (i) any Mortgage Loan that is a
Cross-Collateralized Mortgage Loan (as defined in the Pooling and Servicing
Agreement) is required to be repurchased pursuant to this Section 4 as a result
of a Breach, Defect or other event, and (ii) the cross-collateralization
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provisions of the related Cross-Collateralized Mortgage Loans cannot be released
to the extent required by Section 2.03 of the Pooling and Servicing Agreement to
permit repurchase of the affected Mortgage Loan within the time period specified
in this Agreement for such repurchase, the Seller shall repurchase the affected
Mortgage Loan and all of the related Cross-Collateralized Mortgage Loans not so
released.
SECTION 5. Conveyance of Mortgage Files.
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(a) In connection with the Purchaser's assignment of the Mortgage Loans
to the Depositor pursuant to the Mortgage Loan Purchase Agreement, the Purchaser
hereby covenants with the Seller that, at least five (5) Business Days before
the Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B to the Mortgage Loan Purchase
Agreement) for each Mortgage Loan so assigned to the extent that such Mortgage
File was delivered to the Purchaser. In the event the Purchaser fails to so
deliver each such Mortgage File to the Trustee, the Seller and its successors
and assigns shall be entitled to pursue any rights or remedies in respect of
such failure as may be available under applicable law.
(b) For the benefit of the Purchaser and its successors and assigns,
the Seller acknowledges and agrees that the Depositor intends to cause the
Trustee to perform a limited review of the Mortgage Files relating to the
Mortgage Loans to enable the Trustee to confirm to the Depositor on or before
the Closing Date that the Mortgage Note referred to in clause (i) of Exhibit B
of the Mortgage Loan Purchase Agreement has been delivered to the Trustee with
respect to each such Mortgage File. If the Seller cannot deliver, or cause to be
delivered as to any Mortgage Loan, the original Mortgage Note, the Seller shall
deliver a copy or duplicate original of such Mortgage Note, together with an
affidavit certifying that the original thereof has been lost or destroyed. If
the Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan,
the original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iv), (viii), (xi)(A) and (xii) of Exhibit B of the Mortgage Loan
Purchase Agreement, with evidence of recording thereon, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, or because such
original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of this Section 5 shall be deemed to have been satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that a copy of such document or instrument
(without evidence of recording or filing thereon, but certified (which
certificate may relate to multiple documents and/or instruments) by the Seller
to be a true and complete copy of the original thereof submitted for recording
or filing, as the case may be) has been delivered to the Trustee on or before
the Closing Date, and either the original of such missing document or
instrument, or a copy thereof, with evidence of recording or filing, as the case
may be, thereon, is delivered to or at the direction of the Depositor or Trustee
within 180 days of the Closing Date (or within such longer period after the
Closing Date as the Trustee (or such subsequent owner) may consent to, which
consent shall not be unreasonably withheld so long as the Seller has provided
the Depositor or Trustee with evidence of such recording or filing, as the case
may be, or has certified to the Depositor or Trustee as to the occurrence of
such recording or filing, as the case may be, and is, as certified to the
Trustee no less often than quarterly, in good faith attempting to obtain from
the appropriate county recorder's or filing office such original or copy).
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(c) If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (ix) of Exhibit B of the Mortgage Loan Purchase
Agreement solely because such policy has not yet been issued, the delivery
requirements of this Section 5 shall be deemed to be satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that the Seller has delivered to the Trustee, on
or before the Closing Date, a commitment for title insurance "marked-up" at the
closing of such Mortgage Loan, and the Seller shall deliver to or at the
direction of the Depositor or Trustee, promptly following the receipt thereof,
the original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage Loans
only one original of any document referred to in Exhibit B of the Mortgage Loan
Purchase Agreement covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan.
(d) As to each Mortgage Loan, the Seller shall be responsible for all
costs associated with (i) the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B to the Mortgage
Loan Agreement and each UCC-2 and UCC-3, if any, referred to in clause (xi)(B)
of Exhibit B to the Mortgage Loan Purchase Agreement and (ii) the delivery of a
copy of any such document or instrument to the Master Servicer promptly
following its return to the Trustee or its designee after such recording or
filing; provided that the Seller shall not be responsible for actually recording
or filing any such document or instrument. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Seller shall promptly prepare or cause the preparation of a
substitute therefor or cure or cause the curing of such defect, as the case may
be, and shall thereafter deliver the substitute or corrected document to or at
the direction of the Depositor or the Trustee for recording or filing, as
appropriate, at the Seller's expense.
SECTION 6. Representations, Warranties and Agreements to Survive
Delivery.
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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 7. Costs.
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Costs relating to the transactions contemplated hereby and in the
Mortgage Loan Purchase Agreement shall be borne by the Seller.
SECTION 8. Indemnification.
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(a) The Purchaser (the "Indemnifying Party") agrees to indemnify and
hold harmless the Seller against any and all losses, claims, damages or
liabilities, joint or several, to which it may become subject insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon the breach of any of the Purchaser's representations or
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warranties contained in Section 3(b) of this Agreement. This indemnity will be
in addition to any liability which the Purchaser may otherwise have.
(b) The indemnity agreement contained in this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, or (ii) any investigation made by any indemnified party.
SECTION 9. Severability of Provisions.
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Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 10. Counterparts.
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This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 11. GOVERNING LAW.
-------------
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 12. Further Assurances.
------------------
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 13. Successors and Assigns.
----------------------
The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder.
10
The Purchaser and its assignee have the right to assign its interest under this
Agreement, in whole or in part. Subject to the foregoing, this Agreement shall
bind and inure to the benefit of and be enforceable by the Seller and the
Purchaser, and their permitted successors and assigns.
SECTION 14. Amendments.
----------
No term or provision of this Agreement may be amended, waived, modified
or in any way altered, unless such amendment, waiver, modification or alteration
is in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced.
11
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
GMACCM - DEUTSCHE BANC REPURCHASE FACILITY
LOAN NUMBER LOAN NAME ADDRESS CITY
---------------------------------------------------------------------------------------------------------------------------------
30784 Xxxxxxxxxxxx Pennsylvania Office Portfolio
30784-A Winchester Corporate Center 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxx Xxxxxxxx
00000-X Winchester Plaza Corporate Center II 0000 Xxxx Xxxx Xxxxx Xxxxxxxxx Xxxxxxxx
00000-X Executive Park Center 0000 Xxxxx Xxxx Xxxx Xxxxxxxxxx
---------------------------------------------------------------------------------------------------------------------------------
30784-D Hillside Corporate Center 0000 Xxxxxx Xxxxx Xxxxxxxxxxxxx
00000 Grapevine Xxxxx 2501 and 0000 Xxxxxxxxx Xxxxx Xxxxxxx Grapevine
---------------------------------------------------------------------------------------------------------------------------------
29885 Demco Portfolio
29885-A Demco 32 00000 Xxxx Xxxx Xxxx Xxxxxxxx Xxxxxxxx
00000-X Demco 36 00000 Xxxx Xxxx Xxxx Xxxxxxxx Xxxxxxxx
00000-X Demco 37 00000 Xxxx Xxxx Xxxx Xxxxxxxx Xxxxxxxx
00000 Xxxxxxxxxxxx Florida Portfolio
---------------------------------------------------------------------------------------------------------------------------------
30783-A 0000 Xxxxxxx Xxx 0000 Xxxxxxx Xxx Xxxxxxxxxxxx
00000-X 0000-0000 Xxxxxx Xxxxx 0000-0000 Xxxxxx Xxxxx Xxxxxxxxxxxx
00000-X 6800-6850 Suemac Place 0000-0000 Xxxxxx Xxxxx Xxxxxxxxxxxx
00000-X 0000 Xxx Xxxxxx Xxxx 0000 Xxx Xxxxxx Xxxx Xxxxxxxxxxxx
00000-X 8011-8031 Xxxxxxxx Xxxxxxx 0000-0000 Xxxxxxxx Xxxxxxx Jacksonville
---------------------------------------------------------------------------------------------------------------------------------
30811 Xxxxxxxxxxxx Maryland Portfolio
00000-X Xxxxxxxx Xxxx Xxxxxxxxxx Xxxx. 0000 Xxxxxxxx Xxxx Xxxxxxxxx
00000-X Xxxxxx Court Industrial Building Xxx Xxxxxx Xxxxx Xxxx Xxxxxx
00000 Rose Garden Apartments 000 Xxxxxxxx Xxxxxx Xxxxxxxx
00000 Park Pavilion Shopping Center 0000 Xxxx Xxxx Xxxxx
---------------------------------------------------------------------------------------------------------------------------------
00000 0000 Xxxxx Xxx 000 Xxxxxx Xxxx and 0000 Xxxxx Xxx Xxxxxxx
28644 Center Point Shopping Center 0000-0000 Xxxxxx Xxxxx Xxxxxxx Xxxxxxxxxx
00000 Riverside Warehouse 0000 Xxxxxx Xxxxx Xxx Xxxxxxx
00000 The Highland Oaks Apartments 1019 Friendship Lane Fredericksburg
---------------------------------------------------------------------------------------------------------------------------------
00000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxx
00000-X 1155 Xxxxx Xxxxx Highway 1155 Xxxxx Xxxxx Highway Wethersfield
30314-B 1177-1185 Xxxxx Xxxxx Xxxxxxx 0000-0000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxxxxx
30314-C 1151, 1199 & 0000 Xxxxx Xxxxx Xxxxxxx 0000, 1199 & 0000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxxxxx
---------------------------------------------------------------------------------------------------------------------------------
00000 Fountainbleu Apartments 0000 Xxxx Xxxxx Xxxxxx Xxxxxxx Xxxx
00000 Holiday Inn Express (Prescott) 0000 Xxxxx Xxxxx Xxxxxxxx
00000 Casita Villa Apartments 0000 00xx Xxxxxx XX Xxxxxxxxxx
00000 Xxxxxx Apartments 00-00 Xxxxx Xxxxx Xxxx Xxxxx Xxxxx Xxxxxxxx
---------------------------------------------------------------------------------------------------------------------------------
00000 Danville Apartments 0000 Xxxxxxx Xxxx Xxxxxxxx
00000 Xxxxxxx Plaza Shopping Center 00000-00000 Xxxx Xxxxxx Xxxxxxxx Xxxxxxx
00000 Rice Creek Plaza 0000-0000 Xxxxxx Xxxx Xxxx New Brighton
---------------------------------------------------------------------------------------------------------------------------------
28919 Xxxxxx Xxxx Xxxxxxx Xxxxxxxxxx 000 Xxxxxx Xxxxxx Xxxx Xxxxxx
00000 00 Xxxxxxxxx Xxxxxxxxx 10 Xxxxxxxxx Boulevard Brick
INTEREST REMAINING
RATE ORIGINAL CUT-OFF DATE TERM TO MATURITY DATE
LOAN NUMBER STATE ZIP CODE (%) RATE TYPE BALANCE ($) BALANCE ($) MATURITY (MOS.) OR ARD
-----------------------------------------------------------------------------------------------------------------------------------
30784 7.67000 Fixed 33,000,000 32,879,923 115 2/5/2011
30784-A Pennsylvania 18104
30784-B Pennsylvania 18104
30784-C Pennsylvania 19610
-----------------------------------------------------------------------------------------------------------------------------------
30784-D Pennsylvania 17011
28368 Texas 76051 8.39000 Fixed 14,500,000 14,433,247 88 11/5/2008
-----------------------------------------------------------------------------------------------------------------------------------
29885 7.19000 Fixed 12,300,000 12,290,290 119 6/5/2011
29885-A Michigan 48170
29885-B Michigan 48170
29885-C Michigan 48170
30783 7.68000 Fixed 11,500,000 11,485,953 118 5/5/2011
-----------------------------------------------------------------------------------------------------------------------------------
00000-X Xxxxxxx 00000
30783-B Florida 32254
30783-C Florida 32254
30783-D Florida 32256
00000-X Xxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
30811 7.75000 Fixed 8,550,000 8,515,049 114 1/5/2011
30811-A Maryland 21221
30811-B Maryland 21030
29410 Xxx Xxxx 00000 7.91000 Fixed 8,000,000 7,994,533 119 6/5/2011
30495 Texas 75075 7.60000 Fixed 7,800,000 7,784,526 117 4/5/2011
-----------------------------------------------------------------------------------------------------------------------------------
00000 Xxxxxxxx 00000 7.30000 Fixed 7,600,000 7,583,832 117 4/5/2011
28644 Alabama 35215 7.80000 Fixed 5,680,000 5,673,276 118 5/5/2011
00000 Xxxxxxxxx 00000 7.50000 Fixed 5,600,000 5,584,376 118 5/5/2011
31163 Texas 78624 7.34000 Fixed 5,240,000 5,233,020 118 5/5/2011
-----------------------------------------------------------------------------------------------------------------------------------
30314 7.60000 Fixed 4,150,000 4,141,767 117 4/5/2011
30314-A Connecticut 06109
30314-B Connecticut 06109
00000-X Xxxxxxxxxxx 00000
-----------------------------------------------------------------------------------------------------------------------------------
00000 Xxxxxxxxx 00000 7.08000 Fixed 3,200,000 3,190,853 116 3/5/2011
30139 Arizona 86303 8.23000 Fixed 2,825,000 2,816,297 118 5/1/2011
31485 Washington 98270 7.33000 Fixed 1,820,000 1,816,096 118 5/5/2011
31816 Pennsylvania 19082 7.65000 Fixed 1,660,000 1,658,581 119 6/5/2011
-----------------------------------------------------------------------------------------------------------------------------------
00000 Xxxxxxxx 00000 7.40000 Fixed 1,520,000 1,514,999 117 4/5/2011
30113 California 91745 8.07000 Fixed 1,400,000 1,397,519 117 4/5/2011
00000 Xxxxxxxxx 00000 7.74500 Fixed 1,160,000 1,158,607 118 5/5/2011
-----------------------------------------------------------------------------------------------------------------------------------
00000 Xxxx 00000 7.69000 Fixed 1,100,000 1,097,955 141 4/5/2013
30753 Xxx Xxxxxx 00000 7.76000 Fixed 915,000 913,905 118 5/5/2011
139,164,606.73
ANTICIPATED
REPAYMENT DAY PAYMENT MONTHLY CREDIT LEASE
LOAN NUMBER DATE DUE PAYMENT ARD LOAN LOAN PREPAYMENT PROVISION
----------------------------------------------------------------------------------------------------------------------------------
30784 5 234,594 Lockout/29_Defeasance/89_0%/2
30784-A
30784-B
30784-C
----------------------------------------------------------------------------------------------------------------------------------
30784-D
28368 5 110,364 Lockout/32_Defeasance/60_0%/4
----------------------------------------------------------------------------------------------------------------------------------
29885 5 83,408 Lockout/25_Defeasence/91_0%/4
29885-A
29885-B
29885-C
30783 5 81,832 Lockout/26_Defeasance/92_0%/2
----------------------------------------------------------------------------------------------------------------------------------
30783-A
30783-B
30783-C
30783-D
30783-E
----------------------------------------------------------------------------------------------------------------------------------
30811 5 61,253 Lockout/30_Defeasance/88_0%/2
30811-A
30811-B
29410 5 58,200 Lockout/25_Defeasance/93_0%/2
30495 5 55,074 Lockout/27_Defeasance/91_0%/2
----------------------------------------------------------------------------------------------------------------------------------
31563 5 52,103 Lockout/27_Defeasance/89_0%/4
28644 5 40,889 Lockout/26_Defeasance/91_0%/3
31988 5 43,373 Lockout/26_Defeasance/92_0%/2
31163 5 36,066 Lockout/26_Defeasance/92_0%/2
----------------------------------------------------------------------------------------------------------------------------------
30314 5 29,302 Lockout/27_Defeasance/91_0%/2
30314-A
30314-B
30314-C
----------------------------------------------------------------------------------------------------------------------------------
30245 5 21,462 Lockout/28_Defeasance/90_0%/2
30139 1 24,035 Lockout/47_Defeasance/69_0%/4
31485 5 13,249 Lockout/26_Defeasance/92_0%/2
31816 5 12,001 Lockout/25_Defeasance/93_0%/2
----------------------------------------------------------------------------------------------------------------------------------
31046 5 11,134 Lockout/27_Defeasance/91_0%/2
30113 5 10,341 Lockout/27_Defeasance/91_0%/2
31349 5 8,306 Lockout/26_Defeasance/92_0%/2
----------------------------------------------------------------------------------------------------------------------------------
28919 5 7,805 Lockout/27_Defeasance/113_0%/4
30753 5 6,562 Lockout/26_Defeasance/90_0%/4
BROKER ADDITIONAL ENVIRONMENTAL
STRIP SERVICING CROSSED INSURANCE LETTER OF SERVICING
LOAN NUMBER LOAN FEE LOAN LOAN LOAN CREDIT LEASEHOLD FEE RATE (%)
----------------------------------------------------------------------------------------------------------------------------
30784 Group A 0.12774
30784-A
30784-B
30784-C
----------------------------------------------------------------------------------------------------------------------------
30784-D
28368 Both Fee Simple and Leasehold 0.12774
----------------------------------------------------------------------------------------------------------------------------
29885 Yes 0.12774
29885-A
29885-B
29885-C
30783 Group A 0.12774
----------------------------------------------------------------------------------------------------------------------------
30783-A
30783-B
30783-C
30783-D
30783-E
----------------------------------------------------------------------------------------------------------------------------
30811 Group A 0.12774
30811-A
30811-B
29410 0.12774
30495 Yes 0.12774
----------------------------------------------------------------------------------------------------------------------------
31563 Yes 0.12774
28644 Leasehold 0.12774
31988 Leasehold 0.12774
31163 Yes 0.12774
----------------------------------------------------------------------------------------------------------------------------
30314 0.12774
30314-A
30314-B
30314-C
----------------------------------------------------------------------------------------------------------------------------
30245 0.12774
30139 0.12774
31485 0.12774
31816 0.12774
----------------------------------------------------------------------------------------------------------------------------
31046 0.12774
30113 0.12774
31349 0.12774
----------------------------------------------------------------------------------------------------------------------------
28919 0.12774
30753 0.12774
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and warrants,
as of the date herein below specified or, if no such date is specified, as of
the Closing Date, except as set forth on Schedule B-1 hereto, that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer
thereof to the Purchaser, the Seller had good and marketable title to, and was
the sole owner and holder of, such Mortgage Loan free and clear of any and all
liens, encumbrances and other interests on, in or to such Mortgage Loan (other
than, in certain cases, the right of a subservicer to directly service such
Mortgage Loan). Such transfer validly assigns ownership of such Mortgage Loan to
the Purchaser free and clear of any pledge, lien, encumbrance or security
interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right
and authority to sell, assign and transfer such Mortgage Loan to the Purchaser.
No provision of the Mortgage Note, Mortgage or other loan document relating to
such Mortgage Loan prohibits or restricts the Seller's right to assign or
transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct in
all material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the Cut-off Date
for such Mortgage Loan, and has not been during the twelve-month period prior
thereto, 30 days or more delinquent in respect of any debt service payment
required thereunder, without giving effect to any applicable grace period.
(v) Permitted Encumbrances. The Permitted Encumbrances (as defined in
the Mortgage Loan Purchase Agreement of which this Exhibit B forms a part) do
not materially interfere with the security intended to be provided by the
related Mortgage, the current use or operation of the related Mortgaged Property
or the current ability of the Mortgaged Property to generate net operating
income sufficient to service the Mortgage Loan. If the Mortgaged Property is
operated as a nursing facility, a hospitality property or a multifamily
property, the Mortgage, together with any separate security agreement, similar
agreement and UCC financing statement, if any, establishes and creates a first
priority, perfected security interest (subject only to any prior purchase money
security interest), to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in all
personal property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the
B-1
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.
(vii) No Waivers by Seller of Material Defaults. The Seller has not
waived any material default, breach, violation or event of acceleration existing
under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid offset,
defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of the
commencement of a proceeding for the condemnation of all or any material portion
of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Poceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage and all
other documents and instruments evidencing, guaranteeing, insuring or otherwise
securing such Mortgage Loan have been duly and properly executed by the parties
thereto, and each is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged Property
are insured under an "all risk" insurance policy against loss by hazards of
extended coverage in an amount (subject to a customary deductible) at least
equal to the full insurable replacement cost of
B-2
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 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 require 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.
B-3
(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will not
be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and
the Mortgage Note have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties would
be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. The interest of the
related Mortgagor in the related Mortgaged Property consists of a fee simple
interest in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage referred
to in clause (iii) of Exhibit B of the Mortgage Loan Purchase Agreement between
German American Capital Corporation, as seller and GMAC Commercial Mortgage
Securities, Inc., as purchaser, dated July 6, 2001, constitutes the legal, valid
and binding assignment of such Mortgage from the relevant assignor to the
Trustee. The Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each Mortgage
Loan establishes and creates a valid, subsisting and, subject only to Permitted
Encumbrances, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, subleases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related Mortgage,
and each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases, not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form and constitutes a legal,
valid and binding assignment, sufficient to convey to the assignee named therein
all of the assignor's right, title and interest in, to and under such Assignment
of Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that
are, as of the Closing Date, required to be deposited with the mortgagee or its
agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the actual knowledge of the Seller, as
of the Closing Date, the related Mortgaged Property was and is free and clear of
any mechanics' and materialmen's liens or liens in the nature thereof which
create a lien prior to that created by the related Mortgage, except those which
are insured against by the Title Policy referred to in (vi) above.
B-4
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent (unless affirmatively covered by the title insurance referred to in
paragraph (vi) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel and/or other due diligence customarily performed
by the Seller, the improvements located on or forming part of such Mortgaged
Property comply in all material respects with applicable zoning laws and
ordinances (except to the extent that they may constitute legal non-conforming
uses).
(xxiv) Originator Authorized. To the extent required under applicable
law as of the Closing Date, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent necessary to
ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. (A) To the Seller's knowledge, there exists
no material default, breach or event of acceleration under the related Mortgage
or Mortgage Note, and (B) the Seller has not received actual notice of any event
(other than payments due but not yet delinquent) that, with the passage of time
or with notice and the expiration of any grace or cure period, would constitute
such a material default, breach or event of acceleration; provided, however,
that this representation and warranty does not cover any default, breach or
event of acceleration that specifically pertains to any matter otherwise covered
or addressed by any other representation and warranty made by the Seller herein.
(xxvi) Inspection. In connection with the origination or acquisition of
each Mortgage Loan, the Seller inspected or caused to be inspected the Mortgaged
Property.
(xxvii) No Equity Participation or Contingent Interest. The Mortgage
Loan contains no equity participation by the lender, and does not provide for
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property, or for negative amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan has, to
the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any amount
required by the Mortgage Loan (other than amounts paid by the tenant as
specifically provided under the related lease).
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor or operator of the related Mortgaged Property was in possession of all
material licenses, permits and authorizations required by applicable laws for
the ownership and operation of the related Mortgaged Property as it was then
operated.
B-5
(xxx) Servicing. The servicing and collection practices used with
respect to the Mortgage Loan have complied with applicable law in all material
respects and are consistent with the servicing standard set forth in Section
3.01(a) of the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. The related Mortgage or Mortgage Note,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph (xii)) such as to
render the rights and remedies of the holders thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage
provides that insurance proceeds and condemnation proceeds will be applied for
one of the following purposes: either to restore or repair the Mortgaged
Property, or to repay the principal of the Mortgage Loan, or otherwise at the
option of the holder of the Mortgage.
(xxxiii) LTV. The gross proceeds of such Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of the
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxxiii) shall be
made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Reserved.
(xxxvi) Litigation. To the Seller's actual knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the related Mortgagor or the related Mortgaged
Property that, if determined adversely to such Mortgagor or Mortgaged Property,
would materially and adversely affect the value of the
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Mortgaged Property or the ability of the Mortgagor to pay principal, interest or
any other amounts due under such Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple interest in real estate or the related Mortgage
Loan is secured in whole or in part by the interest of the Mortgagor as a lessee
under a ground lease of the Mortgaged Property (a "Ground Lease"). Any Mortgage
Loan that is secured by the interest of the Mortgagor under a Ground Lease may
or may not be secured by the related fee interest in such Mortgaged Property
(the "Fee Interest"). If a Mortgage Loan is secured in whole or in part by a
Ground Lease, either (1) the ground lessor's Fee Interest is subordinated to the
lien of the Mortgage, (2) such Mortgage Loan is also secured by the related fee
interest or (3) the following apply to such Ground Lease:
(A) To the actual knowledge of the Seller, based on due diligence
customarily performed in the origination of comparable mortgage
loans by the Seller, such Ground Lease or a memorandum thereof
has been or will be duly recorded; such Ground Lease (or the
related estoppel letter or lender protection agreement between
the Seller and related lessor) permits the interest of the
lessee thereunder to be encumbered by the related Mortgage; and
there has been no material change in the payment terms of such
Ground Lease since the origination of the related Mortgage Loan,
with the exception of material changes reflected in written
instruments that are a part of the related Mortgage File;
(B) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with,
the related Mortgage, other than the ground lessor's related fee
interest and Permitted Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor;
(D) Such Ground Lease is in full force and effect, and the Seller
has received no notice that an event of default has occurred
thereunder, and, to the Seller's actual knowledge, there exists
no condition that, but for the passage of time or the giving of
notice, or both, would result in an event of default under the
terms of such Ground Lease;
(E) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of
any default by the lessee to the mortgagee under such Mortgage
Loan, provided that the mortgagee under such Mortgage Loan has
provided the lessor with notice of its lien
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in accordance with the provisions of such Ground Lease, and such
Ground Lease, or an estoppel letter or other agreement, further
provides that no notice of termination given under such Ground
Lease is effective against the mortgagee unless a copy has been
delivered to the mortgagee;
(F) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground
Lease) to cure any default under such Ground Lease, which is
curable after the receipt of notice of any such default, before
the lessor thereunder may terminate such Ground Lease;
(G) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than ten years
beyond the Stated Maturity Date of the related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds will be applied
either to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee under such
Mortgage Loan or a trustee appointed by it having the right to
hold and disburse such proceeds as the repair or restoration
progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial
mortgage lender), or to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest
thereon;
(I) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the
related Mortgage Loan, as commercially unreasonable by the
Seller; and such Ground Lease contains a covenant that the
lessor thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of any subtenant of the lessee, or in any manner, which would
materially adversely affect the security provided by the related
Mortgage; and
(J) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor to enter into a new lease in the event of a
termination of the Ground Lease by reason of a default by the
Mortgagor under the Ground Lease, including, rejection of the
ground lease in a bankruptcy proceeding.
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion
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was not considered material for purposes of underwriting the Mortgage Loan, (b)
release is conditioned upon the satisfaction of certain underwriting and legal
requirements or the payment of a release price, or (c) a defeasance is 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 Mortgage Property or Mortgaged Properties, (D) may not incur
indebtedness other than as permitted by the related Mortgage or other Mortgage
Loan Documents, (E) has its own books and records separate and apart from any
other person, and (F) holds itself out as a legal entity, separate and apart
from any other person.
(xlv) Defeasance Provisions. Any Mortgage Loan which contains a
provision for any defeasance of mortgage collateral by the Mortgagor, either (A)
requires the consent of the holder of the Mortgage Loan to any defeasance, or
(B) permits defeasance (i) no earlier than two years after the Closing Date (as
defined in the Pooling and Servicing Agreement, dated as of July 1, 2001), (ii)
only with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. ss. 1.860G-2(a)(8)(i), and (iii) only to facilitate the
disposition of mortgage real property and not as a part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
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(xlvi) Defeasance Costs. If the Mortgage Loan permits defeasance, then
the mortgage loan documents related to such Mortgage Loan require (a) the
borrower to pay all rating agency fees associated with defeasance and all other
out-of-pocket expenses associated with defeasance such as accountant's fees and
opinions of counsel, or (b) that the borrower provide a REMIC opinion, an
opinion regarding the first priority perfected security interest in the
defeasance collateral, rating agency letters certifying no rating qualification
or downgrade on any securities, and accountant certification that all payments
from the defeasance collateral are sufficient to make monthly principal and
interest payments on such Mortgage Loan through maturity.
(xlvii) Rating Agency Fees for Assumptions. In the case of each
Mortgage Loan that entitles the Mortgagor to cause an assumption of such
Mortgage Loan by a third party, the holder of each Mortgage Loan is entitled to
require the payment by the related Mortgagor of any related rating agency fees
if a Rating Agency Confirmation is required under the Pooling and Servicing
Agreement in connection with such assumption.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser, the Depositor and/or the Trustee and shall inure to the
benefit of the Purchaser, and its successors and assigns (including without
limitation the Depositor, the Trustee and the holders of the Certificates),
notwithstanding any restrictive or qualified endorsement or assignment.
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SCHEDULE B-1 TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
(xviii) Mortgagor's Interest in Mortgaged Property.
Loan Number Property Name Issue
----------- ------------- -----
28368 Grapevine Xxxxx The Mortgage Loan is secured in part by the interest of the
borrower as a lessee under a Ground Lease.
28644 Center Point Shopping Center The Mortgage Loan is secured by the interest of the borrower
as a lessee under a Ground Lease.
30811 Xxxxxxxxxxxx Xxxxx The Mortgaged Property is located in Maryland. As a result,
the Mortgage Loan had to be structured so that the owner of
the Mortgaged Property is not the Mortgagor, but the
guarantor under the related guaranty.
31988 Riverside Warehouse The Mortgage Loan is secured by the interest of the borrower
as a lessee under a Ground Lease.
(xxxvi) Litigation.
Loan Number Property Name Issue
----------- ------------- -----
31046 Danville Apartments The property may be affected by litigation involving the
Miami of Oklahoma Indian tribe who are seeking to reclaim
over 2 million acres in Illinois, including the land on which
the subject parcel is situated. The Mortgagor has obtained
title insurance over the litigation, including costs and
expenses associated with defending title, protecting the
lender's ability to recover on the loan.
