EXECUTION COPY
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement (this "Agreement"), is dated and effective
as of July 6, 2001 between GMAC Commercial Mortgage Corporation as seller (the
"Seller") and Xxxxxxx Xxxxx Mortgage Company 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 December 28,
2000 and a certain Mortgage Loan Purchase Agreement, dated as of March 29, 2001
(each a "GSMC Purchase Agreement" and collectively the "GSMC Purchase
Agreements").
WHEREAS, the Purchaser intends to sell the mortgage loans as shown on
Exhibit A hereto (the "Mortgage Loans") to GMAC Commercial Mortgage Securities,
Inc. as Depositor, (the "Depositor") pursuant to a certain Mortgage Loan
Purchase Agreement, dated as of July 6, 2001 (the "Mortgage Loan Purchase
Agreement") and the Depositor intends to transfer the Mortgage Loans, together
with other multifamily and commercial mortgage loans, to a trust fund (the
"Trust Fund") to be formed by the Depositor, beneficial ownership of which will
be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Fitch,
Inc. and Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. (together, the "Rating Agencies"). Certain classes of the
Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust Fund will
be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of July 1, 2001 (the "Pooling and Servicing
Agreement"), among the Depositor as depositor, GMAC Commercial Mortgage
Corporation as master servicer (in such capacity, the "Master Servicer") and
special servicer, LaSalle Bank National Association, as trustee (in such
capacity, the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent. Capitalized
terms not otherwise defined herein have the meanings assigned to them in the
Pooling and Servicing Agreement as in effect on the Closing Date (as defined
below).
WHEREAS, the Depositor intends to sell the Class A-1, Class A-2, Class
B, Class C, Class D and Class E Certificates to Xxxxxxx, Sachs & Co. and
Deutsche Banc Alex. Xxxxx Inc. (together, the "Underwriters"), pursuant to an
underwriting agreement dated the date hereof (the "Underwriting Agreement"). The
Depositor intends to sell the Class X-1, Class X-2, Class F, Class G and Class H
Certificates to Xxxxxxx, Sachs & Co. and Deutsche Banc Alex. Xxxxx Inc. (in such
capacity, each an "Initial Purchaser"), portions of the Class J and portions of
the Class K Certificates to Xxxxxxx, Sachs & Co. (in such capacity, an "Initial
Purchaser") and portions of the Class J, portions of the Class K, Class L, Class
M, Class N, Class O, Class P and Class Q Certificates to G3 Strategic
Investments LP (in such capacity, an "Initial Purchaser") pursuant to two
certificate purchase agreements, each dated the date hereof (the "Certificate
Purchase Agreements"). The Depositor intends to sell the Class R-I, Class R-II
and Class R-III Certificates to Xxxxxxx, Xxxxx & Co. (in such capacity, an
"Initial Purchaser").
WHEREAS, each of the Seller and the Purchaser, in connection with the
transaction described above, desires to amend and supplement certain of the
provisions of the GSMC Purchase Agreements as they relate 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 GSMC Purchase Agreements.
The parties hereto agree that, with respect to the Mortgage Loans only,
the GSMC Purchase Agreements are hereby amended to the extent that the
provisions of such GSMC Purchase Agreements are inconsistent with this
Agreement.
SECTION 2. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of July 12, 2001 (the "Closing Date")
(or as of such other date specifically provided in the particular representation
or warranty), to and for the benefit of the Purchaser, and its successors and
assigns (including, without limitation, the Depositor, the Trustee and the
holders of the Certificates), each of the representations and warranties set
forth in Exhibit B, with such changes or modifications as may be permitted or
required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents
and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of
California, and is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this
Agreement by the Seller, will not violate the Seller's organizational
documents or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it
is a party or which is applicable to it or any of its assets, in each
case which materially and adversely affect the ability of the Seller to
carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the
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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.
(ix) 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 each of the
GSMC Purchase Agreements 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 limited partnership duly organized,
validly existing and in good standing under the laws of State of New
York.
(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 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.
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(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.
(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 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,
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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 a document has been sent for
recording or filing.
(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 4, the then owner(s) thereof shall tender or
cause to be tendered promptly to the Seller, upon delivery of a receipt executed
by the Seller, the related Mortgage File and Servicing File, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Purchaser or the Trustee shall be endorsed or assigned, as the case may be,
to the Seller or its designee in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) This Section 4 provides the sole remedies available to the
Purchaser, and its successors and assigns (including, without limitation, the
Depositor, the Trustee and the holders of the Certificates) respecting any
Defect in a Mortgage File or any breach of any representation or warranty made
pursuant to Section 2(a) and set forth in Exhibit B, or in connection with the
circumstances described in Section 4(b). If the Seller defaults on its
obligations to repurchase or replace any Mortgage Loan in accordance with
Section 4(a) or 4(b) or disputes its obligation to repurchase or replace any
Mortgage Loan in accordance with either such subsection, the Purchaser or its
successors and assigns may take such action as is appropriate to enforce such
payment or performance, including, without limitation, the institution and
prosecution of appropriate proceedings. The Seller shall reimburse the Purchaser
for all necessary and reasonable costs and expenses incurred in connection with
such enforcement. The remedies provided in this Section 4 shall replace and
amend and restate in their entirety the provisions of Section 4.3 of each of the
GSMC Purchase Agreements with respect to the Mortgage Loans.
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(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.
(a) In connection with the Purchaser's assignment of the Mortgage Loans
to the Depositor pursuant to the Mortgage Loan Purchase Agreement, the Purchaser
hereby covenants with the Seller that, at least five (5) Business Days before
the Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B to the Mortgage Loan Purchase
Agreement) for each Mortgage Loan so assigned to the extent that such Mortgage
File was delivered to the Purchaser. In the event the Purchaser fails to so
deliver each such Mortgage File to the Trustee, the Seller and its successors
and assigns shall be entitled to pursue any rights or remedies in respect of
such failure as may be available under applicable law.
(b) For the benefit of the Purchaser and its successors and assigns,
the Seller acknowledges and agrees that the Depositor intends to cause the
Trustee to perform a limited review of the Mortgage Files relating to the
Mortgage Loans to enable the Trustee to confirm to the Depositor on or before
the Closing Date that the Mortgage Note referred to in clause (i) of Exhibit B
of the Mortgage Loan Purchase Agreement has been delivered to the Trustee with
respect to each such Mortgage File. If the Seller cannot deliver, or cause to be
delivered as to any Mortgage Loan, the original Mortgage Note, the Seller shall
deliver a copy or duplicate original of such Mortgage Note, together with an
affidavit certifying that the original thereof has been lost or destroyed. If
the Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan,
the original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iv), (viii), (xi)(A) and (xii) of Exhibit B of the Mortgage Loan
Purchase Agreement, with evidence of recording thereon, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, or because such
original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of this Section 5 shall be deemed to have been satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that a copy of such document or instrument
(without evidence of recording or filing thereon, but certified (which
certificate may relate to multiple documents and/or instruments) by the Seller
to be a true and complete copy of the original thereof submitted for recording
or filing, as the case may be) has been delivered to the Trustee on or before
the Closing Date, and either the original of such missing document or
instrument, or a copy thereof, with evidence of recording or filing, as the case
may be, thereon, is delivered to or at the direction of the Depositor or Trustee
within 180 days of the Closing Date (or within such longer period after the
Closing Date as the Trustee (or such subsequent owner) may consent to, which
consent shall not be unreasonably withheld so long as the Seller has provided
the Depositor or Trustee with evidence of such recording or filing, as the case
may be, or has certified to the Depositor or Trustee as to the occurrence of
such recording or filing, as the
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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.
SECTION 7. Costs.
Costs relating to the transactions contemplated hereby and in the
Mortgage Loan Purchase Agreement shall be borne by the Seller.
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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.
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.
10
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.
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
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York Limited Partnership
By: Xxxxxxx Sachs Real Estate Funding Corp.,
its General Partner
By: /s/ Xxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
GMACCM - XXXXXXX XXXXX REPURCHASE FACILITY
LOAN NUMBER LOAN NAME ADDRESS CITY STATE
---------------------------------------------------------------------------------------------------------------------------------
30368 Corporate Xxxxx Office Building 111-125 Corporate Office Drive Earth City Missouri
31509 Princeton Park Corporate Center 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxxxxx Xxx Xxxxxx
00000 Courtyard by Marriott 0000 Xxxxxx Xxxxx Xxxxxxxx Xxxxxxxxxx
00000 GMC Portfolio
00000-X Xxxxxxxxx Xxxxxxxxxx 0000 Xxxx Xxxxxx Xxxxxxxxxxxx Xxxxxxx
00000-X Xxxxxxx Xxxxx Apartments 0000 Xxxxxx Xxxx Xxxxxxxxxxxx Xxxxxxx
00000-X Xxxxxxxx Xxxxx Apartments 000 Xxxx Xxxxxx Xxxxxx Xxxx Xxxxxxx
00000 Harbor Park Apartments 0000 Xxxxxxxxx Xxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxxx
---------------------------------------------------------------------------------------------------------------------------------
29595 Fairfield Inn by Marriott 000 Xxxxx 000 Xxxx Xxxxxxxxxx Xxx Xxxxxx
00000 Cardinal Square and Autumn Cove
30815-A Autumn Cove Apartments 0000 Xxxxxx Xxxxxxx Xxxxxxxx Xxxxx
00000-X Cardinal Square Apartments 0000 Xxxx Xxxxxx Xxxxxxxx Xxxxx
---------------------------------------------------------------------------------------------------------------------------------
00000 Xxxxxxxx Xxxxx Xxxxxx Xxxx 000-000 Xxxxxxxxxx Xxxx Xxxxxxxx Xxxxxxx Xxxxxxxxxxxx
00000 000 Xxxxxxx Xxxx 000 Xxxxxxx Xxxx Xxxxxxxxx Xxx Xxxxxx
00000 Courtyard by Marriott (Harlingen) 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxx
00000 Arlington Plaza 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxxx
00000 Pecan Plaza 0000-0000 Xxxxxx Xxxxxx Xxxxxxxx Xxxx Xxxxx
991091658 Franklin Plaza 000-000 Xxx Xxxx Xxxx Xxxx Xxxxxxxxx Xxx Xxxx
991091629 Springfield Boulevard Retail 0000-0000 Xxxxxxxxxxx Xxxxxxxxx Xxxxxxx Xxx Xxxx
---------------------------------------------------------------------------------------------------------------------------------
31176 Hunter's Pointe Apartments 000 Xxxxxxxxx Xxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxxx
00000 Southlake Retail Center 0000 Xxxxx Xxxx Xxxx Xxxxxx Xxxxxxx
00000 Somerset Apartments 0000 Xxxxxx Xxxxxx Xxxxxxxx Xxxxx
00000 0000 Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxx Xxxxx Xxxxxxx
00000 Allenhurst Apartments 0000 Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxx
INTEREST REMAINING ANTICIPATED
RATE ORIGINAL CUT-OFF DATE TERM TO MATURITY DATE REPAYMENT
LOAN NUMBER ZIP CODE (%) RATE TYPE BALANCE ($) BALANCE ($) MATURITY (MOS.) OR ARD DATE
----------------------------------------------------------------------------------------------------------------------------------
30368 63045 7.64000 Fixed 32,250,000 32,226,729 119 6/5/2011
31509 08852 7.88000 Fixed 19,500,000 19,486,594 119 6/5/2011
29658 95035 8.00000 Fixed 16,000,000 15,900,921 114 1/1/2026 1/1/2011
29740 8.09000 Fixed 10,000,000 10,000,000 113 12/5/2010
29740-A 33218
29740-B 33216
29740-C 32073
30880 95691 7.38000 Fixed 10,000,000 9,955,738 114 1/5/2011
----------------------------------------------------------------------------------------------------------------------------------
29595 07073 7.50000 Fixed 7,250,000 7,226,570 117 4/1/2011
30815 7.45000 Fixed 5,812,000 5,786,657 114 1/5/2011
30815-A 77703
30815-B 77705
----------------------------------------------------------------------------------------------------------------------------------
28478 19462 8.18000 Fixed 5,600,000 5,566,585 110 9/5/2010
29508 07724 7.80000 Fixed 5,250,000 5,243,785 118 5/5/2011
31429 78552 8.50000 Fixed 4,850,000 4,845,301 119 6/1/2011
30468 76010 7.80000 Fixed 3,500,000 3,491,658 116 3/5/2011
31319 77459 7.99000 Fixed 3,420,000 3,417,701 119 6/5/2011
991091658 11040 8.33000 Fixed 3,183,000 3,156,211 105 4/1/2010
991091629 11364 8.50000 Fixed 3,200,000 3,137,384 99 10/1/2009
----------------------------------------------------------------------------------------------------------------------------------
31176 95605 7.21000 Fixed 2,320,000 2,313,577 116 3/5/2011
31101 30260 7.86000 Fixed 1,800,000 1,796,511 118 5/5/2011
30965 75149 7.79000 Fixed 1,200,000 1,198,695 119 6/5/2011
31062 33409 7.45000 Fixed 1,180,000 1,177,575 117 4/5/2011
31011 75149 7.79000 Fixed 895,000 894,026 119 6/5/2011
136,822,215.58
BROKER
DAY PAYMENT MONTHLY CREDIT LEASE STRIP
LOAN NUMBER DUE PAYMENT ARD LOAN LOAN PREPAYMENT PROVISION LOAN
------------------------------------------------------------------------------------------------------------------------------
30368 5 228,596 Lockout/25_Defeasance/92_0%/3
31509 5 141,456 Lockout/25_Defeasance/91_0%/4
29658 1 123,491 Yes Lockout/47_Defeasance/71_0%/2
29740 5 74,005 Lockout/31_Defeasance/88_0%/1
29740-A
29740-B
29740-C
30880 5 69,102 Lockout/30_Defeasance/89_0%/1
------------------------------------------------------------------------------------------------------------------------------
29595 1 53,577 Lockout/47_Defeasance/69_0%/4
30815 5 40,440 Lockout/30_Defeasance/88_0%/2
30815-A
30815-B
------------------------------------------------------------------------------------------------------------------------------
28478 5 41,796 Lockout/34_Defeasance/79_0%/7
29508 5 37,793 Lockout/26_Defeasance/92_0%/2
31429 1 39,054 Lockout/47_Defeasance/69_0%/4
30468 5 25,195 Lockout/28_Defeasance/90_0%/2
31319 5 25,071 Lockout/25_Defeasance/92_0%/3
991091658 1 24,092 Lockout/39_Defeasance/77_0%/4
991091629 1 25,767 Lockout/45_Defeasance/71_0%/4
------------------------------------------------------------------------------------------------------------------------------
31176 5 15,764 Lockout/28_Defeasance/91_0%/1
31101 5 13,726 Lockout/26_Defeasance/92_0%/2
30965 5 9,095 Lockout/25_Defeasance/93_0%/2
31062 5 8,210 Lockout/27_Defeasance/91_0%/2
31011 5 6,784 Lockout/25_Defeasance/93_0%/2
ADDITIONAL ENVIRONMENTAL
SERVICING CROSSED INSURANCE LETTER OF SERVICING
LOAN NUMBER FEE LOAN LOAN LOAN CREDIT LEASEHOLD FEE RATE (%)
-----------------------------------------------------------------------------------------------------------------------------------
30368 0.06274
31509 0.12774
29658 0.12774
29740 0.12774
29740-A
29740-B
29740-C
30880 0.12774
-----------------------------------------------------------------------------------------------------------------------------------
29595 0.12774
30815 0.12774
30815-A
30815-B
-----------------------------------------------------------------------------------------------------------------------------------
28478 0.12774
29508 0.12774
31429 Yes 0.12774
30468 Yes 0.12774
31319 0.12774
991091658 Both Fee Simple and Leasehold 0.08774
991091629 0.08774
-----------------------------------------------------------------------------------------------------------------------------------
31176 0.12774
31101 Yes 0.12774
30965 0.12774
31062 0.12774
31011 0.12774
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date herein below specified or, if no such date is
specified, as of the Closing Date, except as set forth on Schedule B-1 hereto,
that:
(i) Ownership of Mortgage Loans. Immediately prior to the
transfer thereof to the Purchaser, the Seller had good and marketable
title to, and was the sole owner and holder of, such Mortgage Loan,
free and clear of any and all liens, encumbrances and other interests
on, in or to such Mortgage Loan (other than, in certain cases, the
right of a subservicer to directly service such Mortgage Loan). Such
transfer validly assigns ownership of such Mortgage Loan to the
Purchaser free and clear of any pledge, lien, encumbrance or security
interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full
right and authority to sell, assign and transfer such Mortgage Loan to
the Purchaser. No provision of the Mortgage Note, Mortgage or other
loan document relating to such Mortgage Loan prohibits or restricts the
Seller's right to assign or transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to
such Mortgage Loan set forth in the Mortgage Loan Schedule was true and
correct in all material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the
Cut-off Date for such Mortgage Loan, and has not been during the
twelve-month period prior thereto, 30 days or more delinquent in
respect of any debt service payment required thereunder, without giving
effect to any applicable grace period.
(v) Permitted Encumbrances. The Permitted Encumbrances (as
defined in the Mortgage Loan Purchase Agreement of which this Exhibit B
forms a part) do not materially interfere with the security intended to
be provided by the related Mortgage, the current use or operation of
the related Mortgaged Property or the current ability of the Mortgaged
Property to generate net operating income sufficient to service the
Mortgage Loan. If the Mortgaged Property is operated as a nursing
facility, a hospitality property or a multifamily property, the
Mortgage, together with any separate security agreement, similar
agreement and UCC financing statement, if any, establishes and creates
a first priority, perfected security interest (subject only to any
prior purchase money security interest), to the extent such security
interest can be perfected by the recordation of a Mortgage or the
filing of a UCC financing statement, in all personal property owned by
the Mortgagor that is used in, and is reasonably necessary to, the
operation of the related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is
insured by an ALTA lender's title insurance policy ("Title Policy"), or
its equivalent as adopted in the applicable jurisdiction, issued by a
nationally recognized title insurance company, insuring the originator
of such Mortgage Loan, its successors and assigns, as to the first
priority lien of the Mortgage in the
B-1
original principal amount of the Mortgage Loan after all advances of
principal, subject only to Permitted Encumbrances (or, if a title
insurance policy has not yet been issued in respect of the Mortgage
Loan, a policy meeting the foregoing description is evidenced by a
commitment for title insurance "marked-up" at the closing of such
loan). Each Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material
claims have been made thereunder and no claims have been paid
thereunder. The Seller has not, by act or omission, done anything that
would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet to
be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the
insurer.
(vii) No Waivers by Seller of Material Defaults. The Seller
has not waived any material default, breach, violation or event of
acceleration existing under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no
valid offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth
in any engineering report prepared in connection with the origination
of (or obtained in connection with or otherwise following the Seller's
acquisition of) such Mortgage Loan, the related Mortgaged Property is,
to the Seller's knowledge, free and clear of any damage that would
materially and adversely affect its value as security for such Mortgage
Loan. The Seller has no actual notice of the commencement of a
proceeding for the condemnation of all or any material portion of the
related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied
with all applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan 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
B-2
the improvements located on such Mortgaged Property, which policy
contains appropriate endorsements to avoid the application of
coinsurance and does not permit reduction in insurance proceeds for
depreciation. If any portion of the improvements upon the related
Mortgaged Property was, at the time of the origination of such
Mortgage Loan, in a flood zone area as identified in the Federal
Register by the Federal Emergency Management Agency as a 100 year
flood zone or special hazard area, and flood insurance was available,
a flood insurance policy meeting any requirements of the then current
guidelines of the Federal Insurance Administration is in effect with a
generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (1) the outstanding principal
balance of such Mortgage Loan, (2) the full insurable value of such
Mortgaged Property, (3) the maximum amount of insurance available
under the National Flood Insurance Act of 1968, as amended, or (4)
100% of the replacement cost of the improvements located on such
Mortgaged Property. In addition, the Mortgage requires the Mortgagor
to maintain in respect of the Mortgaged Property workers' compensation
insurance (if applicable), comprehensive general liability insurance
in amounts generally required by the Seller, and at least twelve
months rental or business interruption insurance, and all such
insurance required by the Mortgage to be maintained is in full force
and effect. Each such insurance policy names the holder of the
Mortgage as an additional insured or contains a mortgagee endorsement
naming the holder of the Mortgage as loss payee and requires prior
notice to the holder of the Mortgage of termination or cancellation,
and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property
was subject to one or more environmental site assessments (or an update
of a previously conducted assessment), which was (were) performed on
behalf of the Seller, or as to which the related report was delivered
to the Seller in connection with its origination or acquisition of such
Mortgage Loan; and the Seller, having made no independent inquiry other
than reviewing the resulting report(s) and/or employing an
environmental consultant to perform the assessment(s) referenced
herein, has no knowledge of any material and adverse environmental
conditions or circumstance affecting such Mortgaged Property that was
not disclosed in the related report(s). The Seller has not taken any
action with respect to such Mortgage Loan or the related Mortgaged
Property that could subject the Purchaser, or its successors and
assigns in respect of the Mortgage Loan, to any liability under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA") or any other applicable federal, state or
local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal,
state or local environmental law with respect to the related Mortgaged
Property that was not disclosed in the related report. The related
Mortgage or loan documents in the related Mortgage File require the
Mortgagor to comply with all applicable federal, state and local
environmental laws and regulations. To the extent an environmental
insurance policy has been obtained with respect to a Mortgage Loan, (i)
the related environmental insurance policy is in full force and effect,
(ii) on the effective date of such environmental insurance policy, the
Seller, as originator, had no knowledge of any material and adverse
environmental condition or circumstance affecting the Mortgage Property
that was not disclosed to the policy issuer in one or more of the
following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the policy issuer or (c) an
environmental assessment, engineering or other report provided to the
policy issuer and (iii) the premiums on the environmental insurance
policy have been paid in full or the related loan documents provide for
payment of such premiums by the related Mortgagor or other responsible
party as the same shall be payable.
B-3
(xv) No Cross-Collateralization with Other Mortgage Loans.
Such Mortgage Loan is not cross-collateralized with any mortgage loan
that will not be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related
Mortgage and the Mortgage Note have not been impaired, waived, altered
or modified in any material respect, except as specifically set forth
in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes,
ground rents, assessments for improvements or other similar outstanding
charges affecting the related Mortgaged Property which are or may
become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty,
real property taxes and assessments shall not be considered unpaid
until the date on which interest and/or penalties would be payable
thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. The
interest of the related Mortgagor in the related Mortgaged Property
consists of a fee simple interest in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage
referred to in clause (iii) of Exhibit B of the Mortgage Loan Purchase
Agreement between Xxxxxxx Xxxxx Mortgage Company, as seller and GMAC
Commercial Mortgage Securities, Inc., as purchaser, dated July 6, 2001,
constitutes the legal, valid and binding assignment of such Mortgage
from the relevant assignor to the Trustee. The Assignment of Leases set
forth in the Mortgage or separate from the related Mortgage and related
to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject only to Permitted
Encumbrances, enforceable first priority lien and first priority
security interest in the related Mortgagor's interest in all leases,
subleases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real
property subject to the related Mortgage, and each assignor thereunder
has the full right to assign the same. The related assignment of any
Assignment of Leases, not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form and constitutes
a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest
in, to and under such Assignment of Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage
Loan that are, as of the Closing Date, required to be deposited with
the mortgagee or its agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the actual knowledge of the
Seller, as of the Closing Date, the related Mortgaged Property was and
is free and clear of any mechanics' and materialmen's liens or liens in
the nature thereof which create a lien prior to that created by the
related Mortgage, except those which are insured against by the Title
Policy referred to in (vi) above.
B-4
(xxiii) No Material Encroachments. To the Seller's knowledge
(based on surveys and/or title insurance obtained in connection with
the origination of such Mortgage Loan), as of the date of such
origination, no improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property at
the time of origination of such Mortgage Loan lay outside the
boundaries and building restriction lines of such property to any
material extent (unless affirmatively covered by the title insurance
referred to in paragraph (vi) above), and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material
extent. To the Seller's knowledge, based upon opinions of counsel
and/or other due diligence customarily performed by the Seller, the
improvements located on or forming part of such Mortgaged Property
comply in all material respects with applicable zoning laws and
ordinances (except to the extent that they may constitute legal
non-conforming uses).
(xxiv) Originator Authorized. To the extent required under
applicable law as of the Closing Date, the originator of such Mortgage
Loan was authorized to do business in the jurisdiction in which the
related Mortgaged Property is located at all times when it held the
Mortgage Loan to the extent necessary to ensure the enforceability of
such Mortgage Loan.
(xxv) No Material Default. (A) To the Seller's knowledge,
there exists no material default, breach or event of acceleration under
the related Mortgage or Mortgage Note, and (B) the Seller has not
received actual notice of any event (other than payments due but not
yet delinquent) that, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute such a
material default, breach or event of acceleration; provided, however,
that this representation and warranty does not cover any default,
breach or event of acceleration that specifically pertains to any
matter otherwise covered or addressed by any other representation and
warranty made by the Seller herein.
(xxvi) Inspection. In connection with the origination or
acquisition of each Mortgage Loan, the Seller inspected or caused to be
inspected the Mortgaged Property.
(xxvii) No Equity Participation or Contingent Interest. The
Mortgage Loan contains no equity participation by the lender, and does
not provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property, or
for negative amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan
has, to the Seller's knowledge, advanced funds or induced, solicited or
knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property, directly or indirectly, for
the payment of any amount required by the Mortgage Loan (other than
amounts paid by the tenant as specifically provided under the related
lease).
(xxix) Licenses, Permits, Etc. To the Seller's knowledge,
based on due diligence customarily performed in the origination of
comparable mortgage loans by the Seller, as of the date of origination
of the Mortgage Loan, the related Mortgagor or operator of the related
Mortgaged Property was in possession of all material licenses, permits
and authorizations required by applicable laws for the ownership and
operation of the related Mortgaged Property as it was then operated.
B-5
(xxx) Servicing. The servicing and collection practices used
with respect to the Mortgage Loan have complied with applicable law in
all material respects and are consistent with the servicing standard
set forth in Section 3.01(a) of the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. The related Mortgage or Mortgage
Note, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in
paragraph (xii)) such as to render the rights and remedies of the
holders thereof adequate for the practical realization against the
related Mortgaged Property of the principal benefits of the security
intended to be provided thereby.
(xxxii) Insurance and Condemnation Proceeds. The related
Mortgage provides that insurance proceeds and condemnation proceeds
will be applied for one of the following purposes: either to restore or
repair the Mortgaged Property, or to repay the principal of the
Mortgage Loan, or otherwise at the option of the holder of the
Mortgage.
(xxxiii) LTV. The gross proceeds of such Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent
principal amount of the Mortgage Loan and either: (A) such Mortgage
Loan is secured by an interest in real property having a fair market
value (1) at the date the Mortgage Loan was originated at least equal
to 80 percent of the original principal balance of the Mortgage Loan or
(2) at the Closing Date at least equal to 80 percent of the principal
balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first
be reduced by (X) the amount of any lien on the real property interest
that is senior to the Mortgage Loan and (Y) a proportionate amount of
any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation described in clauses (1)
and (2) of this paragraph (xxxiii) shall be made on a pro rata basis in
accordance with the fair market values of the Mortgaged Properties
securing such cross-collateralized Mortgage Loans; or (B) substantially
all the proceeds of such Mortgage Loan were used to acquire, improve or
protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party
credit enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage
Loan was "significantly modified" prior to the Closing Date so as to
result in a taxable exchange under Section 1001 of the Code, it either
(A) was modified as a result of the default or reasonably foreseeable
default of such Mortgage Loan or (B) satisfies the provisions of either
clause (A)(1) of paragraph (xxxiii) (substituting the date of the last
such modification for the date the Mortgage Loan was originated) or
clause (A)(2) of paragraph (xxxiii), including the proviso thereto.
(xxxv) Reserved.
(xxxvi) Litigation. To the Seller's actual knowledge, there
are no pending actions, suits or proceedings by or before any court or
governmental authority against or affecting the related Mortgagor or
the related Mortgaged Property that, if determined adversely to such
Mortgagor or Mortgaged Property, would materially and adversely affect
the value of the
B-6
Mortgaged Property or the ability of the Mortgagor to pay principal,
interest or any other amounts due under such Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of
the related Mortgagor's fee simple interest in real estate or the
related Mortgage Loan is secured in whole or in part by the interest of
the Mortgagor as a lessee under a ground lease of the Mortgaged
Property (a "Ground Lease"). Any Mortgage Loan that is secured by the
interest of the Mortgagor under a Ground Lease may or may not be
secured by the related fee interest in such Mortgaged Property (the
"Fee Interest"). If a Mortgage Loan is secured in whole or in part by a
Ground Lease, either (1) the ground lessor's Fee Interest is
subordinated to the lien of the Mortgage, (2) such Mortgage Loan is
also secured by the related fee interest or (3) the following apply to
such Ground Lease:
(A) To the actual knowledge of the Seller, based on due diligence
customarily performed in the origination of comparable mortgage
loans by the Seller, such Ground Lease or a memorandum thereof
has been or will be duly recorded; such Ground Lease (or the
related estoppel letter or lender protection agreement between
the Seller and related lessor) permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there
has been no material change in the payment terms of such Ground
Lease since the origination of the related Mortgage Loan, with
the exception of material changes reflected in written
instruments that are a part of the related Mortgage File;
(B) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the ground lessor's related fee
interest and Permitted Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor;
(D) Such Ground Lease is in full force and effect, and the Seller has
received no notice that an event of default has occurred
thereunder, and, to the Seller's actual knowledge, there exists
no condition that, but for the passage of time or the giving of
notice, or both, would result in an event of default under the
terms of such Ground Lease;
(E) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the mortgagee under such Mortgage Loan,
provided that the mortgagee under such Mortgage Loan has provided
the lessor with notice of its lien
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in accordance with the provisions of such Ground Lease, and such
Ground Lease, or an estoppel letter or other agreement, further
provides that no notice of termination given under such Ground
Lease is effective against the mortgagee unless a copy has been
delivered to the mortgagee;
(F) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground Lease)
to cure any default under such Ground Lease, which is curable
after the receipt of notice of any such default, before the
lessor thereunder may terminate such Ground Lease;
(G) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than ten years
beyond the Stated Maturity Date of the related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds will be applied
either to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee under such Mortgage Loan
or a trustee appointed by it having the right to hold and
disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party
to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage
lender), or to the payment of the outstanding principal balance
of the Mortgage Loan together with any accrued interest thereon;
(I) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the
related Mortgage Loan, as commercially unreasonable by the
Seller; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of any subtenant of the lessee, or in any manner, which would
materially adversely affect the security provided by the related
Mortgage; and
(J) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor to enter into a new lease in the event of a
termination of the Ground Lease by reason of a default by the
Mortgagor under the Ground Lease, including, rejection of the
ground lease in a bankruptcy proceeding.
(xxxviii) Deed of Trust. If the related Mortgage is a deed of
trust, a trustee, duly qualified under applicable law to serve as such,
is properly designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a
release of a portion of the Mortgaged Property was contemplated at
origination of the Mortgage Loan and such portion
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was not considered material for purposes of underwriting the Mortgage
Loan, (b) release is conditioned upon the satisfaction of certain
underwriting and legal requirements or the payment of a release price,
or (c) a defeasance is effected in accordance with the Mortgage Loan
Documents, the related Mortgage Note or Mortgage does not require the
holder thereof to release all or any portion of the Mortgaged Property
from the lien of the related Mortgage except upon payment in full of
all amounts due under such Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the
related Mortgaged Property to be encumbered by any lien junior to or of
equal priority with the lien of the related Mortgage (excluding any
lien relating to another Mortgage Loan that is cross-collateralized
with such Mortgage Loan) without the prior written consent of the
holder thereof or the satisfaction of debt service coverage or similar
conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the
Mortgagor is not a debtor in any state or federal bankruptcy or
insolvency proceeding.
(xlii) Due Organization of Mortgagors. As of the date of
origination of each Mortgage, each related Mortgagor which is not a
natural person was duly organized and validly existing under the laws
of the state of its jurisdiction.
(xliii) Due-On-Sale. The Mortgage Loan contains provisions for
the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without complying with the requirements of such
Mortgage Loan, the related Mortgaged Property, or any controlling
interest therein, is directly or indirectly transferred or sold.
(xliv) Single Purpose Entity. As of the date of the
origination of the relevant Mortgage Loan, the related Mortgagor is an
entity, other than an individual, whose organizational documents or the
related Mortgage Loan Documents provide substantially to the effect
that the Mortgagor: (A) is formed or organized solely for the purpose
of owning and operating one or more of the Mortgaged Properties
securing the Mortgage Loans, (B) may not engage in any business
unrelated to such Mortgaged Property or Mortgaged Properties, (C) does
not have any material assets other than those related to its interest
in and operation of such Mortgage Property or Mortgaged Properties, (D)
may not incur indebtedness other than as permitted by the related
Mortgage or other Mortgage Loan Documents, (E) has its own books and
records separate and apart from any other person, and (F) holds itself
out as a legal entity, separate and apart from any other person.
(xlv) Defeasance Provisions. Any Mortgage Loan which contains
a provision for any defeasance of mortgage collateral by the Mortgagor,
either (A) requires the consent of the holder of the Mortgage Loan to
any defeasance, or (B) permits defeasance (i) no earlier than two years
after the Closing Date (as defined in the Pooling and Servicing
Agreement, dated as of July 1, 2001), (ii) only with substitute
collateral constituting "government securities" within the meaning of
Treas. Reg. ss. 1.860G-2(a)(8)(i), and (iii) only to facilitate the
disposition of mortgage real property and not as a part of an
arrangement to collateralize a REMIC offering with obligations that are
not real estate mortgages.
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(xlvi) Defeasance Costs. If the Mortgage Loan permits
defeasance, then the mortgage loan documents related to such Mortgage
Loan require (a) the borrower to pay all rating agency fees associated
with defeasance and all other out-of-pocket expenses associated with
defeasance such as accountant's fees and opinions of counsel, or (b)
that the borrower provide a REMIC opinion, an opinion regarding the
first priority perfected security interest in the defeasance
collateral, rating agency letters certifying no rating qualification or
downgrade on any securities, and accountant certification that all
payments from the defeasance collateral are sufficient to make monthly
principal and interest payments on such Mortgage Loan through maturity.
(xlvii) Rating Agency Fees for Assumptions. In the case of
each Mortgage Loan that entitles the Mortgagor to cause an assumption
of such Mortgage Loan by a third party, the holder of each Mortgage
Loan is entitled to require the payment by the related Mortgagor of any
related rating agency fees if a Rating Agency Confirmation is required
under the Pooling and Servicing Agreement in connection with such
assumption.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser, the Depositor and/or the Trustee and shall inure to the
benefit of the Purchaser, and its successors and assigns (including without
limitation the Depositor, the Trustee and the holders of the Certificates),
notwithstanding any restrictive or qualified endorsement or assignment.
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SCHEDULE B-1 TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
(xviii) Mortgagor's Interest in Mortgaged Property.
Loan Number Property Name Issue
----------- ------------- -----
00000 Xxxxxxxx Xxxxx The Mortgage Loan is secured in part by the interest of the
borrower as a lessee under a Ground Lease.
