EXHIBIT 99.4
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement (this "Agreement"), is dated and effective
as of March 29, 2001, between GMAC Commercial Mortgage Corporation as seller
(the "Seller") and 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 March 29, 2001 (the "Mortgage Loan Purchase
Agreement") and the Depositor intends to transfer the Mortgage Loans, together
with other multifamily and commercial mortgage loans, to a trust fund (the
"Trust Fund") to be formed by the Depositor, beneficial ownership of which will
be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Fitch,
Inc. and Standard & Poor's Ratings Services, a Division of the XxXxxx-Xxxx
Companies (together, the "Rating Agencies"). Certain classes of the Certificates
(the "Registered Certificates") will be registered under the Securities Act of
1933, as amended (the "Securities Act"). The Trust Fund will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of April 1, 2001 (the "Pooling and Servicing Agreement"), among the
Depositor as depositor, GMAC Commercial Mortgage Corporation as master servicer
(in such capacity, the "Master Servicer") and special servicer (in such
capacity, the "Special Servicer") and Xxxxx Fargo Bank Minnesota, N.A., as
trustee (in such capacity, the "Trustee"). Capitalized terms not otherwise
defined herein have the meanings assigned to them in the Pooling and Servicing
Agreement as in effect on the Closing Date (as defined below).
WHEREAS, the Depositor intends to sell the Class A-1, Class A-2, Class
B, Class C and Class D Certificates to Xxxxxxx, Xxxxx & Co. and Deutsche Banc
Alex. Xxxxx Inc. (together, the "Underwriters"), pursuant to an underwriting
agreement dated the date hereof (the "Underwriting Agreement"). The Depositor
intends to sell the Class X-1, Class X-2, Class E, Class F and Class G
Certificates to Xxxxxxx, Sachs & Co. and Deutsche Banc Alex. Xxxxx Inc. (in such
capacity, each an "Initial Purchaser") and the Class H, Class J, Class K, Class
L, Class M, Class N, Class O and Class P Certificates to Commercial Asset
Trading, Inc. (in such capacity, an "Initial Purchaser") pursuant to two
certificate purchase agreements, each dated the date hereof (the "Certificate
Purchase Agreements"). The Depositor intends to sell the Class R-I, Class R-II
and Class R-III Certificates to Xxxxxxx, Sachs & Co. (in such capacity, an
"Initial Purchaser").
WHEREAS, each of the Seller and the Purchaser, in connection with the
transaction described above, desires to amend and supplement certain of the
provisions of the 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.
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.
(a) The Seller hereby makes, as of April 5, 2001 (the "Closing Date") (or
as of such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser, and its successors and
assigns (including, without limitation, the Depositor, the Trustee and the
holders of the Certificates), each of the representations and warranties set
forth in Exhibit B, with such changes or modifications as may be permitted or
required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing and
in good standing under the laws of the State of California, and is in compliance
with the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance and compliance with the terms of this Agreement by the Seller,
will not violate the Seller's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of its
assets, in each case which materially and adversely 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
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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 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(b) of the GACC
Purchase Agreement to the extent they relate to the Mortgage Loans.
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SECTION 3. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a 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
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affiliates, that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
transactions contemplated hereby.
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by the Purchaser with this Agreement, or the consummation by the
Purchaser of any transaction contemplated hereby, other than (1) such consents,
approvals, authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not have a
material adverse effect on the performance by the Purchaser under this
Agreement.
(b) The Purchaser hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Seller, and its successors and assigns, with respect to
each Mortgage Loan each of the representations and warranties set forth below:
(i) Immediately prior to the transfer thereof to the Depositor, the
Purchaser had whatever title to such Mortgage Loan as was conveyed to it by
Seller, free and clear of any and all liens, encumbrances and other interests
on, in or to such Mortgage Loan (other than, in certain cases, the right of a
third party servicer to directly service such Mortgage Loan) created by the
Purchaser. Such transfer validly assigns such title to such Mortgage Loan to the
Depositor free and clear of any pledge, lien, encumbrance or security interest
created by the Purchaser;
(ii) The Purchaser has full right and authority to sell, assign and
transfer its interest in such Mortgage Loan; (iii) The Purchaser has not done
anything that would materially impair the coverage under the lender's title
insurance policy that insures the lien of the related Mortgage;
(iv) The Purchaser has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage or
Mortgage Note;
(v) To the Purchaser's actual knowledge, without independent inquiry
as to the provisions of the Mortgage Loans, there is no valid offset, defense or
counterclaim to such Mortgage Loan arising out of the Purchaser's actions or
holding of the Mortgage Loans; and
(vi) The terms of the related Mortgage and the Mortgage Note have not
been impaired, waived, altered or modified by the Purchaser in any material
respect, except as specifically set forth in the related Mortgage File;
provided that, with respect to the representations and warranties in clauses
(iii), (iv), (v) and (vi) above, such representations and warranties cover only
actions taken directly by the Purchaser and its Affiliates or taken by the
Seller at the direction of the Purchaser.
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(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 4. Repurchases.
(a) Within 90 days of the earlier of discovery or receipt of notice by the
Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement as in effect on the
Closing Date) in respect of the Mortgage File for any Mortgage Loan or a breach
of any representation or warranty made pursuant to Section 2(a) and set forth in
Exhibit B (a "Breach"), which Defect or Breach, as the case may be, materially
and adversely affects the value of any Mortgage Loan or the interests therein of
the Purchaser or its successors and assigns (including, without limitation, the
Depositor, the Trustee and the holders of the Certificates), the Seller shall
cure such Defect or Breach, as the case may be, in all material respects or
repurchase the affected Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price (as defined in the Pooling and Servicing Agreement as
in effect on the Closing Date) by payment of such Purchase Price by wire
transfer of immediately available funds to the account designated by such
owner(s); provided, however, that in lieu of effecting any such repurchase, the
Seller will be permitted to deliver a Qualifying Substitute Mortgage Loan and to
pay a cash amount equal to the applicable Substitution Shortfall Amount, subject
to the terms and conditions of the Pooling and Servicing Agreement as in effect
on the Closing Date.
If the Seller is notified of a Defect in any Mortgage File that corresponds
to information set forth in the Mortgage Loan Schedule, the Seller shall
promptly correct such Defect and provide a new, corrected Mortgage Loan Schedule
to the Purchaser or any successor or assign thereof, which corrected Mortgage
Loan Schedule shall be deemed to amend and replace the existing Mortgage Loan
Schedule for all purposes.
(b) Notwithstanding Section 4(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
In addition, if, as of the Closing Date, any Mortgage Loan is secured by a
Mortgage that does not constitute a valid first lien upon the related Mortgaged
Property, including all buildings located thereon and all fixtures attached
thereto, or if a Mortgage is subject to something other than (A) the lien of
current real property taxes and assessments not yet due and payable, (B)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, (C) exceptions and exclusions specifically referred to
in the lender's title insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan and (D) those
exceptions set forth on Schedule B-1 to Exhibit B hereto (the exceptions set
forth in the foregoing clauses (A), (B), (C) and (D) collectively, "Permitted
Encumbrances"), or if the insurer that issued the Title Policy referred to in
clause (vi) of Exhibit B hereto in respect of any Mortgage Loan was not
qualified to do business in the state in which the related
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Mortgaged Property is located, and in either case such failure materially and
adversely affects the interests of holders of Certificates (any such failure
that materially and adversely affects the interests of holders of Certificates,
also a "Breach"), the Seller shall be required, at its option, to either (i)
cure such Breach in all material respects or (ii) repurchase the affected
Mortgage Loan, in each case, within the applicable Permitted Cure Period. If any
such Breach is not corrected or cured in all material respects within the
applicable Permitted Cure Period, the Seller shall, not later than the last day
of such Permitted Cure Period, (i) repurchase the affected Mortgage Loan from
the Purchaser or its assignee at the applicable Purchase Price or (ii) if within
the three-month period commencing on the Closing Date (or within the two-year
period commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G-2(f)), at its option, replace such
Mortgage Loan with a Qualifying Substitute Mortgage Loan and pay any
corresponding Substitution Shortfall Amount. The Seller agrees that any such
repurchase or substitution shall be completed in accordance with and subject to
the terms and conditions of the Pooling and Servicing Agreement.
For purposes of the preceding paragraph only, the "Permitted Cure Period"
applicable to any Breach in respect of any Mortgage Loan shall be the 90-day
period immediately following the earlier of the discovery by the Seller or
receipt by the Seller of notice of such Breach; provided that if such Breach
cannot be corrected or cured in all material respects within such 90-day period,
but it is reasonably likely that such Breach could be corrected or cured within
180 days of the earlier of discovery by the Seller and receipt by the Seller of
notice of such Breach, and the Seller is diligently attempting to effect such
correction or cure, then the applicable Permitted Cure Period shall, with the
consent of the Purchaser or its assignee (which consent shall not be
unreasonably withheld), be extended for an additional 90 days, unless (i) the
affected Mortgage Loan is in default and (ii) the applicable Breach constitutes
a Material Document Defect (as defined in the Pooling and Servicing Agreement)
other than a Material Document Defect resulting solely from a delay caused by
the public recording or filing office where 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
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appropriate proceedings. The Seller shall reimburse the Purchaser for all
necessary and reasonable costs and expenses incurred in connection with such
enforcement. The remedies provided in this Section 4 shall replace and amend and
restate in their entirety the provisions of Section 4(c) 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 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
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delivered to or at the direction of the Depositor or Trustee within 180 days of
the Closing Date (or within such longer period after the Closing Date as the
Trustee (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Seller has provided the Depositor or
Trustee with evidence of such recording or filing, as the case may be, or has
certified to the Depositor or Trustee as to the occurrence of such recording or
filing, as the case may be, and is, as certified to the Trustee no less often
than quarterly, in good faith attempting to obtain from the appropriate county
recorder's or filing office such original or copy).
(c) If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (ix) of Exhibit B of the Mortgage Loan Purchase
Agreement solely because such policy has not yet been issued, the delivery
requirements of this Section 5 shall be deemed to be satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that the Seller has delivered to the Trustee, on
or before the Closing Date, a commitment for title insurance "marked-up" at the
closing of such Mortgage Loan, and the Seller shall deliver to or at the
direction of the Depositor or Trustee, promptly following the receipt thereof,
the original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage Loans
only one original of any document referred to in Exhibit B of the Mortgage Loan
Purchase Agreement covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan.
(d) As to each Mortgage Loan, the Seller shall be responsible for all costs
associated with (i) the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B to the Mortgage
Loan Agreement and each UCC-2 and UCC-3, if any, referred to in clause (xi)(B)
of Exhibit B to the Mortgage Loan Purchase Agreement and (ii) the delivery of a
copy of any such document or instrument to the Master Servicer promptly
following its return to the Trustee or its designee after such recording or
filing; provided that the Seller shall not be responsible for actually recording
or filing any such document or instrument. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Seller shall promptly prepare or cause the preparation of a
substitute therefor or cure or cause the curing of such defect, as the case may
be, and shall thereafter deliver the substitute or corrected document to or at
the direction of the Depositor or the Trustee for recording or filing, as
appropriate, at the Seller's expense.
SECTION 6. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the Mortgage Loans by the Seller to the
Purchaser or its designee.
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SECTION 7. Costs.
(a) Costs relating to the transactions contemplated hereby and in the
Mortgage Loan Purchase Agreement shall be borne by the Seller.
SECTION 8. Indemnification.
(a) The Purchaser (the "Indemnifying Party") agrees to indemnify and hold
harmless the Seller against any and all losses, claims, damages or liabilities,
joint or several, to which it may become subject insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are based
upon the breach of any of the Purchaser's representations or warranties
contained in Section 3(b) of this Agreement. This indemnity will be in addition
to any liability which the Purchaser may otherwise have.
(b) The indemnity agreement contained in this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, or (ii) any investigation made by any indemnified party.
SECTION 9. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 10. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
SECTION 11. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF
THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
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SECTION 12. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 13. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser and its assignee 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/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President - GACC
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
INTEREST
RATE RATE ORIGINAL
LOAN NUMBER LOAN NAME ADDRESS CITY STATE ZIP CODE (%) TYPE BALANCE ($)
---------------- ------------------------- ----------------------- ------------ ------------- -------- -------- ------ ----------
30024 Liberty Central 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxxxx 00000 7.60000 Fixed
Industrial Park 14,760,000
00000 Xxxxxxxx Xxxxxxx 0000 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxxxx 00000 7.50000 Fixed 6,000,000
Beach
27945 TownePlace Suites by 00000 00xx Xxxxxx Xxxxx Xxxxxxxx Xxxx Xxxxxxx 00000 8.93750 Fixed 5,500,000
Xxxxxxxx
00000 Xxxxxx Xxxxxxxxxx Commons 0000 X. Xxxxxxxx Xxx. Xxxxxxxxxx Xxxxxxxx 00000 7.50000 Fixed 4,960,000
30448 Self-Storage City 0000 Xxxx Xxxxxxxx Xxxx Xxx Xxxxx Xxxxxx 00000 7.92000 Fixed 2,500,000
30240 Cardinal-Eagle Lake Apts. 0000 Xxxxx Xxxx Xxxxx Xxxx Xxxxxx Xxxxxxx 00000 7.51000 Fixed 1,900,000
REMAINING
TERM TO
CUT-OFF DATE MATURITY MATURITY
BALANCE ($) (MOS.) DATE
------------ ----------- --------
14,746,559 119 3/5/11
6,000,000 118 2/5/11
5,463,538 112 8/1/25
4,960,000 118 2/5/11
2,498,845 119 3/5/11
1,895,260 118 2/5/11
ANTICIPATED DAY
REPAYMENT PAYMENT MONTHLY ARD CREDIT LEASE
LOAN NUMBER LOAN NAME DATE DUE PAYMENT LOAN LOAN DEFEASANCE
----------------- ------------------------ ----------- -------- --------- -------- ----------- -------------------------------
30024 Liberty Central 5 110,037 No No Lockout/25_Defeasance/93_0%/2
Industrial Park
00000 Xxxxxxxx Xxxxxxx 5 41,953 No No Lockout/26_Defeasance/92_0%/2
27945 TownePlace Suites by 8/1/10 1 45,921 Yes No Lockout/35_Defeasance/83_0%/2
Marriott
30534 Xxxxxx Xxxxxxxxxx Commons 5 35,748 No No Lockout/26_Defeasance/92_0%/2
30448 Self-Storage City 5 18,205 No No Lockout/25_Defeasance/93_0%/2
30240 Cardinal-Eagle Lake Apts. 5 14,053 No No Lockout/26_Defeasance/92_0%/2
ADDITIONAL SERVICING
BROKER SERVICING FEE RATE
STRIP LOAN FEE LOAN (%)
------------- ---------- ----------
0.1276
0.1276
0.1276
0.1276
0.1276
0.1276
A-2
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 hereinbelow 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
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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 Proceeds. The
proceeds of such Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage
and all other documents and instruments evidencing, guaranteeing, insuring or
otherwise securing such Mortgage Loan have been duly and properly executed by
the parties thereto, and each is the legal, valid and binding obligation of the
maker thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged
Property are insured under an "all risk" insurance policy against loss by
hazards of extended coverage in an amount (subject to a customary deductible) at
least equal to the full insurable replacement cost of
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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
B-3
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 of the Mortgage Loan Purchase Agreement
between German American Capital Corporation, as seller and GMAC Commercial
Mortgage Securities, Inc., as purchaser, dated March 29, 2001, constitutes the
legal, valid and binding assignment of such Mortgage from the relevant assignor
to the Trustee. The Assignment of Leases set forth in the Mortgage or separate
from the related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and, subject only to
Permitted Encumbrances, enforceable first priority lien and first priority
security interest in the related Mortgagor's interest in all leases, subleases,
licenses or other agreements pursuant to which any person is entitled to occupy,
use or possess all or any portion of the real property subject to the related
Mortgage, and each assignor thereunder has the full right to assign the same.
The related assignment of any Assignment of Leases, not included in a Mortgage,
executed and delivered in favor of the Trustee is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage
Loan that are, as of the Closing Date, required to be deposited with the
mortgagee or its agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the actual knowledge of the Seller, as
of the Closing Date, the related Mortgaged Property was and is free and clear of
any mechanics' and materialmen's liens
B-4
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 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
B-5
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 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
B-6
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
0 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
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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.
(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.
B-8
(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 was not considered material for purposes
of underwriting the Mortgage Loan, (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements or the payment of a
release price, or (c) a defeasance is affected in accordance with the Mortgage
Loan Documents, the related Mortgage Note or Mortgage does not require the
holder thereof to release all or any portion of the Mortgaged Property from the
lien of the related Mortgage except upon payment in full of all amounts due
under such Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the
related Mortgaged Property to be encumbered by any lien junior to or of equal
priority with the lien of the related Mortgage (excluding any lien relating to
another Mortgage Loan that is cross-collateralized with such Mortgage Loan)
without the prior written consent of the holder thereof or the satisfaction of
debt service coverage or similar conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the
Mortgagor is not a debtor in any state or federal bankruptcy or insolvency
proceeding.
(xlii) Due Organization of Mortgagors. As of the date of
origination of each Mortgage, each related Mortgagor which is not a natural
person was duly organized and validly existing under the laws of the state of
its jurisdiction.
(xliii) Due-On-Sale. The Mortgage Loan contains provisions for
the acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of such Mortgage Loan, the
related Mortgaged Property, or any controlling interest therein, is directly or
indirectly transferred or sold.
(xliv) Single Purpose Entity. As of the date of the
origination of the relevant Mortgage Loan, the related Mortgagor is an entity,
other than an individual, whose organizational documents or the related Mortgage
Loan Documents provide substantially to the effect that the Mortgagor: (A) is
formed or organized solely for the purpose of owning and operating one or more
of the Mortgaged Properties securing the Mortgage Loans, (B) may not engage in
any business unrelated to such Mortgaged Property or Mortgaged Properties, (C)
does not have any material assets other than those related to its interest in
and operation of such Mortgage Property or Mortgaged Properties, (D) may not
incur indebtedness other than as permitted by the related Mortgage or other
Mortgage Loan Documents, (E) has its own books and records separate and apart
from any other person, and (F) holds itself out as a legal entity, separate and
apart from any other person.
(xlv) Defeasance Provisions. Any Mortgage Loan which contains
a provision for any defeasance of mortgage collateral by the Mortgagor, either
(A) requires the consent of the holder of the Mortgage Loan to any defeasance,
or (B) permits defeasance (i) no earlier than two years after the Closing Date
(as defined in the Pooling and Servicing Agreement, dated as of April 1, 2001),
(ii) only with substitute collateral constituting "government securities" within
the meaning of Treas. Reg. ss. 1.860G-2(a)(8)(i), and (iii) only to facilitate
the disposition of mortgage real property and not as a part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
B-9
(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.
B-10
SCHEDULE B-1 TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
NONE
B-1-1
