EXHIBIT 99.9
EXECUTION COPY
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement (this "Agreement"), is dated and effective as
of August 26, 1999, between GMAC Commercial Mortgage Corporation as seller (the
"Seller") and Column Financial, Inc. as purchaser (the "Purchaser").
WHEREAS, the Seller sold certain mortgage loans to the Purchaser pursuant
to a certain Mortgage Loan Purchase Agreement (the "Column Purchase Agreement"),
dated as of June 30, 1999.
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 August 26, 1999 (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 Xxxxx'x
Investors Services, Inc. and Fitch IBCA, 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 September 1, 1999 (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 Norwest Bank Minnesota, National Association, 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-a, Class A-1-b, Class
A-2 (collectively, the "Class A Certificates"), Class B, Class C, Class D, Class
E, Class F, and Class X Certificates to Deutsche Bank Securities Inc. and
Xxxxxxx, Xxxxx & Co. (together, the "Underwriters") pursuant to an Underwriting
Agreement dated as of the date hereof (the "Underwriting Agreement"). The
Depositor intends to sell the Class G, Class H, Class J, Class K, Class L, Class
M, Class N, Class R-I, Class R-II and Class R-III Certificates to the
Underwriters and G2 Opportunity Fund LP (in such capacity, an "Initial
Purchasers") pursuant to two Certificate Purchase Agreements dated as of the
date hereof (the "Certificate Purchase Agreements").
WHEREAS, each of the Seller and the Purchaser, in connection with the
transactions described above, desires to amend and supplement certain of the
provisions of the Column Purchase Agreement as they relate to the Mortgage Loans
in order to facilitate such transactions
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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 Column Purchase Agreement.
The parties hereto agree that, with respect to the Mortgage Loans only, the
Column Purchase Agreement is hereby amended to the extent that the provisions of
the Column Purchase Agreement are inconsistent with this Agreement.
SECTION 2. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of September 14, 1999 (the "Closing Date")
(or as of such other date specifically provided in the particular representation
or warranty), to and for the benefit of the Purchaser, and its successors and
assigns (including, without limitation, the Depositor, the Trustee and the
holders of the Certificates), each of the representations and warranties set
forth in Exhibit B, with such changes or modifications as may be permitted or
required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing and in
good standing under the laws of the State of California, and is in
compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and the
performance and compliance with the terms of this Agreement by the
Seller, will not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is
a party or which is applicable to it or any of its assets, in each
case which materially and adversely affect the ability of the Seller
to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
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(iv) This Agreement, assuming due authorization, execution and delivery
by the Purchaser, constitutes a valid, legal and binding obligation
of the Seller, enforceable against the Seller in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement
of creditors' rights generally, (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding
in equity or at law, and (C) public policy considerations underlying
the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities
laws liabilities.
(v) The Seller is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under
this Agreement or the financial condition of the Seller.
(vi) No litigation is pending with regard to which Seller has received
service of process or, to the best of the Seller's knowledge,
threatened against the Seller the outcome of which, in the Seller's
good faith and reasonable judgment, could reasonably be expected to
prohibit the Seller from entering into this Agreement or materially
and adversely affect 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,
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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
Column Purchase Agreement to the extent they relate to the Mortgage Loans.
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 Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser, and
the performance and compliance with the terms of this Agreement by
the Purchaser, will not violate the Purchaser's organizational
documents or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result
in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its
assets, in each case which materially and adversely affect the
ability of the Purchaser to carry out the transactions contemplated
by this Agreement.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by the Seller, constitutes a valid, legal and binding obligation of
the Purchaser, enforceable against the Purchaser in accordance with
the terms
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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 the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance
by the Purchaser under this Agreement.
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(b) 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.
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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 Mortgaged Property is
located, and in either case such failure materially and
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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.
(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
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provided in this Section 4 shall replace and amend and restate in their entirety
the provisions of Section 4.3 of the Column Purchase Agreement with respect to
the Mortgage Loans.
SECTION 5. Conveyance of Mortgage Files.
(a) In connection with the Purchaser's assignment of the Mortgage Loans to
the Depositor pursuant to the Mortgage Loan Purchase Agreement, the Purchaser
hereby covenants with the Seller that, at least five (5) Business Days before
the Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B to the Mortgage Loan Purchase
Agreement) for each Mortgage Loan so assigned to the extent that such Mortgage
File was delivered to the Purchaser. In the event 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, 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 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.
SECTION 7. Costs.
Costs relating to the transactions contemplated hereby and in the Mortgage
Loan Purchase Agreement shall be borne by the Seller.
SECTION 8. Indemnification.
(a) The Purchaser (the "Indemnifying Party") agrees to indemnify and hold
harmless the Seller against any and all losses, claims, damages or liabilities,
joint or several, to which it
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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.
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.
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SECTION 13. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser and its assignee has the right to assign its
interest under this Agreement, in whole or in part. Subject to the foregoing,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser, and their permitted successors and assigns.
SECTION 14. Amendments.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced.
12
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
COLUMN FINANCIAL, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President & Treasurer
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
DLJ June sale Loans
Loan Loan
Number Name Group Address
------ ---- ----- -------
18842 Xxxxx Xxxx Xxxxxxxxxx 0 00-00 Xxxxxxx Xxx Xxxxxx
19644 000 Xxxxxx Xxxxxx 1 100 Xxxxxx Avenue
20869 The Jewelry Building 0 000-000 Fifth Avenue
21159 The Commodore Apartments 2 000 Xxxx Xxxxx Xxxx
00000 Xxxxx Development Investors Apartment Portfolio 2
21584-A Willow Creek Apartments 2 7575 Office Center Drive
21584-B Bellfort Southwest IV and V Apartments 2 0000 Xxxx Xxxxxxxx Xxxxxx
00000-X Xxxxxxxxx Village Apartments 2 11726 West Xxxxxxxx Xxxxxx
00000-X Xxxxxxxx Xxxxxxxxx III 2 6400 West Xxxxxxxx Xxxxxx
00000 Xxxxxxx Xxxxxxx Condominiums 2 0000-0000 Xxxxxxxx Xxxxxx and 0-00 Xxxxxxxxx Xxxxx
00000 Xxxxxx-Xxxxxx Apartments 0 Xxxxxxxxxxx Xxxx & Xxxxxxxxxx 00/00
00000 Xxxxxxxx R&D Buildings 1 720-740 Milpitas Blvd. & 000-000 Xxxxxxxx Xxxx.
00000 Xxxxx Xxxx Apartments 2 15801 Xxxxx Xxxx Boulevard
22156 Xxxxx Xxxxx 0 0000 Xxxxxxxxxx Xxxx
00000 Xxxxx Mirage Apartments 2 43223 & 00000 Xxxxxxx Xxxxxx
22272 Carriage Center Retail 1 12845 Poway Road
22686 One Colorado 1 Xxx Xxxxxxxx Xxxxxxxxx
00000 Xxxxxx Apartment Portfolio 2
00000-X Xxxxxx Xxxx Apartments 2 000-000 Xxxxxx Xxxx Xxxxx
00000-X Xxxxxx Xxxx Apartments 2 0000-000 Xxxxxxxxxx Xxxxx
00000-X Xxxxxx Springs Apartments 0 000-000 Bridleridge Drive
14 Loans 130,489,633
Stated
Loan Original Current Remaining
Number City State Zip Rate Balance Balance Term
------ ---- ----- --- ---- ------- ------- ----
18842 Xxxxxxxxxx Xxxxxxxxxxx 00000 Fixed 2,050,000.00 2,046,061.85 117
19644 Xxxxxxxxxxx Xxx Xxxxxx 00000 Fixed 2,460,000.00 2,457,695.90 118
20869 Xxx Xxxx Xxx Xxxx 00000 Fixed 7,400,000.00 7,386,954.53 117
21159 Xxxxxxxxx Xxxxxxxxxxx 00000 Fixed 2,080,000.00 2,077,599.53 118
21584 Xxxxxxx Xxxxx 00000 Fixed 27,000,000.00 26,926,700.71 116
21584-A Xxxxxxx Xxxxx 00000 NAP 116
21584-B Xxxxxxx Xxxxx 00000 NAP 116
21584-C Xxxxxxx Xxxxx 00000 NAP 116
21584-D Xxxxxxx Xxxxx 00000 NAP 116
00000 Xxxx Xxxxxxxx Xxxxxxxxxxx 00000 Fixed 2,080,000.00 2,077,860.08 118
21956 Xxxxxxx Xxxxxxx 00000 Fixed 2,600,000.00 2,595,005.24 117
22040 Xxxxxxxx Xxxxxxxxxx 00000 Fixed 8,800,000.00 8,783,055.87 117
22124 Xxx Xxxxxxx Xxxxx 00000 Fixed 5,000,000.00 4,986,042.16 116
22156 Xxxxxxx Xxxxxxxxxx 00000 Fixed 2,375,000.00 2,369,764.60 117
22252 Xxxxxxxxx Xxxxxxxxxx 00000 Fixed 5,000,000.00 4,913,515.37 106
22272 Xxxxx Xxxxxxxxxx 00000 Fixed 3,300,000.00 3,290,953.43 114
22686 Xxxxxxxx Xxxxxxxxxx 00000 Fixed 42,670,000.00 42,628,093.07 118
22748 Fixed 18,000,000.00 17,950,330.98 116
22748-A Xxxxxxxxx Xxxxx Xxxxxxxx 00000 NAP 116
22748-B Xxxxxxx Xxxxx Xxxxxxxx 00000 NAP 116
22748-C Xxxxxxx Xxxxx Xxxxxxxx 00000 NAP 116
14 130,489,633.32
Day Broker
Loan Maturity Payment ARD CTL Strip Credit
Number ARD Date Date Due Payment Loan Loan Defeasance Loan Tenants
------ -------- ---- --- ------- ---- ---- ---------- ---- -------
18842 6/10/09 10 14,907 No Lock/27_Defeasance/93
19644 7/10/09 10 19,048 No Lock/26_Defeasance/87_0%/7
20869 6/10/09 10 55,752 No Lock/27_Defeasance/89_0%/4
21159 7/10/09 10 15,024 No Lock/26_Defeasance/90_0%/4
21584 5/10/09 10 189,731 No Lock/28_Defeasance/90_0%/2
21584-A 131,933 NAP NAP
21584-B 28,108 NAP NAP
21584-C 21,784 NAP NAP
21584-D 7,905 NAP NAP
21775 7/10/09 10 15,628 No Lock/26_Defeasance/87_0%/7
21956 6/10/09 10 18,906 No Lock/27_Defeasance/89_0%/4
22040 6/10/09 10 63,927 No Lock/27_Defeasance/89_0%/4
22124 5/10/09 10 34,719 No Lock/28_Defeasance/88_0%/4
22156 6/10/09 10 16,260 No Lock/27_Defeasance/89_0%/4
22252 7/1/08 1 34,546 No Lock/60_>1% or YM/53_0%/7
22272 3/1/09 1 25,374 No Lock/36_Defeasance/80_0%/4
22686 7/10/09 7/10/29 10 325,483 Yes Lock/26_Defeasance/90_0%/4
22748 5/10/09 10 125,611 No Lock/28_Defeasance/88_0%/4
22748-A 28,960 NAP NAP
22748-B 52,512 NAP NAP
22748-C 44,138 NAP NAP
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.
B-1
(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee without the consent of or notice to the insurer.
(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
B-2
rights of creditors generally and by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged Property are
insured under an "all risk" insurance policy against loss by hazards of extended
coverage in an amount (subject to a customary deductible) at least equal to the
full insurable replacement cost of the improvements located on such Mortgaged
Property, which policy contains appropriate endorsements to avoid the
application of coinsurance and does not permit reduction in insurance proceeds
for depreciation. If any portion of the improvements upon the related Mortgaged
Property was, at the time of the origination of such Mortgage Loan, in a flood
zone area as identified in the Federal Register by the Federal Emergency
Management Agency as a 100 year flood zone or special hazard area, and flood
insurance was available, a flood insurance policy meeting any requirements of
the then current guidelines of the Federal Insurance Administration is in effect
with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (1) the outstanding principal balance of
such Mortgage Loan, (2) the full insurable value of such Mortgaged Property, (3)
the maximum amount of insurance available under the National Flood Insurance Act
of 1968, as amended, or (4) 100% of the replacement cost of the improvements
located on such Mortgaged Property. In addition, the Mortgage requires the
Mortgagor to maintain in respect of the Mortgaged Property workers' compensation
insurance (if applicable), comprehensive general liability insurance in amounts
generally required by the Seller, and at least twelve months rental or business
interruption insurance, and all such insurance required by the Mortgage to be
maintained is in full force and effect. Each such insurance policy names the
holder of the Mortgage as an additional insured or contains a mortgagee
endorsement naming the holder of the Mortgage as loss payee and requires prior
notice to the holder of the Mortgage of termination or cancellation, and no such
notice has been received, including any notice of nonpayment of premiums, that
has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property was subject
to one or more environmental site assessments (or an update of a previously
conducted assessment), which was (were) performed on behalf of the Seller, or as
to which the related report was delivered to the Seller in connection with its
origination or acquisition of such Mortgage Loan; and the Seller, having made no
independent inquiry other than reviewing the resulting report(s) and/or
employing an environmental consultant to perform the assessment(s) referenced
herein, has no knowledge of any material and adverse environmental conditions or
circumstance affecting such Mortgaged Property that was not disclosed in the
related report(s). The Seller has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to any
liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage or loan documents in
the related Mortgage File requires the Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations.
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. Except in the case of 1
Mortgage Loan as to which the interest of the related Mortgagor in the related
Mortgaged Property is in whole or in part a leasehold estate, the interest of
the related Mortgagor in the related Mortgaged Property consists of a fee simple
estate 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
Column Financial, Inc., as seller and GMAC Commercial Mortgage Securities, Inc.,
as purchaser, dated August 26, 1999, 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
B-4
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).
B-5
(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 and if a related Mortgaged Property is improved by a skilled nursing,
congregate care or assisted living facility, the most recent inspection or
survey by governmental authorities having jurisdiction in connection with such
licenses, permits and authorizations did not cite such Mortgaged Property for
material violations (which shall include only "Level A" (or equivalent)
violations in the case of skilled nursing facilities) that had not been cured or
as to which a plan of correction had not been submitted to and accepted by such
governmental authorities. To the extent such facility participates in Medicaid
or Medicare, such facility is in compliance in all material respects with the
requirements of such program.
(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
B-6
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) Credit Lease Loans. With respect to each Mortgage Loan which is a
Credit Lease Loan:
(A) To the Seller's knowledge, each credit lease ("Credit Lease") contains
customary and enforceable provisions which render the rights and
remedies of the lessor thereunder adequate for the enforcement and
satisfaction of the lessor's rights thereunder;
(B) To the Seller's knowledge, in reliance on a tenant estoppel
certificate and representation made by the tenant under the Credit
Lease or representations made by the related borrower under the
Mortgage Loan Documents, as of the closing date of each Credit Lease
Loan (1) each Credit Lease was in full force and effect, and no
default by the borrower or the tenant has occurred under the Credit
Lease, nor is there any existing condition which, but for the passage
of time or the giving of notice, or both, would result in a default
under the terms of the Credit Lease, (2) none of the terms of the
Credit Lease have been impaired, waived, altered or modified in any
respect (except as described in the related tenant estoppel), (3) no
tenant has been released, in whole or in part, from its obligations
under the Credit Leases, (4) there is no right of rescission, offset,
abatement, diminution, defense or counterclaim to any Credit Lease,
nor will the operation of any of the terms of the Credit Leases, or
the exercise of any rights thereunder, render the Credit Lease
unenforceable, in whole or in part, or subject to any right of
rescission, offset, abatement, diminution, defense or counterclaim,
and no such right of rescission, offset, abatement, diminution,
defense or counterclaim has been asserted with respect thereto, and
(5) each Credit Lease has a term ending on or after the final maturity
of the related Credit Lease Loan;
(C) The Mortgaged Property is not subject to any lease other than the
related Credit Lease, no Person has any possessory interest in, or
right to occupy, the Mortgaged Property except under and pursuant to
such Credit Lease and the tenant under the related Credit Lease is in
occupancy of the Mortgaged Property;
(D) The lease payments under the related Credit Lease are sufficient to
pay the entire amount of scheduled interest and principal on the
Credit Lease Loan, subject to
B-7
the rights of the Tenant to terminate the Credit Lease or offset,
xxxxx, suspend or otherwise diminish any amounts payable by the tenant
under the Credit Lease. Each Credit Lease Loan either (i) fully
amortizes over its original term and has no "balloon" payment of rent
due under the related Credit Lease or (ii) is a Balloon Loan, for
which a residual value insurance policy has been obtained that
requires the payment of an amount at least equal to the Balloon
Payment due on the related Maturity Date;
(E) Under the terms of the Credit Leases, the lessee is not permitted to
assign its interest or obligations under the Credit Lease unless such
lessee remains fully liable thereunder;
(F) The mortgagee is entitled to notice of any event of default from the
tenant under Credit Leases;
(G) Each tenant under a Credit Lease is required to make all rental
payments directly to the mortgagee, its successors and assigns under
the related Credit Lease Loan;
(H) Each Credit Lease Loan provides that the related Credit Lease cannot
be modified without the consent of the mortgagees under the related
Credit Lease Loan;
(I) For each Credit Lease Loan under which a Credit Lease may be
terminated upon the occurrence of a casualty or condemnation, a lease
enhancement insurance policy has been obtained that requires upon such
termination the payment in full of: (a) the principal balance of the
loan and (b) all accrued and unpaid interest on the Mortgage Loan.
Under the Credit Lease for each Credit Lease Loan, upon the occurrence
of a casualty or condemnation, the tenant has no right of rent
abatement, except to the extent of coverage provided by the related
lease enhancement insurance policy; and
(J) The terms of any guaranty of the payment and performance obligations
of the tenant under any Credit Lease are unconditional and provide for
guaranty of payment and not of collection.
(xxxvi) Litigation. To the Seller's actual knowledge, there are no pending
actions, suits or proceedings by or before any court or governmental authority
against or affecting the related Mortgagor or the related Mortgaged Property
that, if determined adversely to such Mortgagor or Mortgaged Property, would
materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple interest in real estate or the related Mortgage Loan is
secured in whole or in part by the interest of the Mortgagor as a lessee under a
ground lease of the Mortgaged Property (a
B-8
"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 or (2) 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 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
B-9
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 was not considered material for purposes of
underwriting the Mortgage Loan, (b) release is conditioned upon the satisfaction
of certain underwriting and legal requirements and 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.
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(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 September 1, 1999), (ii) only
with substitute collateral constituting "government securities" within the
meaning of Treas. Reg. ss. 1.860G-2(a)(8)(i), and (iii) only to facilitate the
disposition of mortgage real property and not as a part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
(xlvi) [Reserved]
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
B-11
(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
(xiii) Insurance
Loan Number Property Issue
----------- -------- -----
22156 Delta Villa Mobile Insurance covers clubhouse
Home Park improvements only.
22252 Villa Mirage Apartments A flood insurance policy is not in
place for a portion of the
improvements located in an area
identified as having special flood
hazards.
(xliv) Single Purpose Entity
Borrowers on the following loan(s) are not single purpose entities.
Loan Number Property Issue
----------- -------- -----
22272 Carriage Center Retail Borrower is an individual.
22156 Delta Villa Mobile Borrower is a limited partnership
Home Park and does not meet criteria set forth in
representations and warranties
except for subletter (d).
B-1-1
