EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of January 25, 2002, between German American Capital Corporation as
seller (the "Seller" or "GACC") and GMAC Commercial Mortgage Securities, Inc. as
purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule"). Certain other multifamily and commercial mortgage
loans (the "Other Mortgage Loans") will be purchased by the Purchaser from (i)
German American Capital Corporation ("GACC"), pursuant to, and for the
consideration described in, the Mortgage Loan Purchase Agreement, dated as of
January 25, 2002 (the "GACC Warehouse Mortgage Loan Purchase Agreement"),
between the Purchaser and GACC, (the mortgage loans purchased by the Purchaser
under the GACC Warehouse Mortgage Loan Purchase Agreement, the "Warehouse
Mortgage Loans") and (ii) GSMC, pursuant to, and for the consideration described
in, the Mortgage Loan Purchase Agreement, dated as of January 25, 2002 (the
"GSMC Mortgage Loan Purchase Agreement"), between the Purchaser and GSMC. The
Seller and GSMC are collectively referred to as the "Mortgage Loan Sellers."
It is expected that the Mortgage Loans will be transferred, together
with the Other Mortgage Loans, to a trust fund (the "Trust Fund") to be formed
by the Purchaser, beneficial ownership of which will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Xxxxx'x Investors Service, Inc. and Standard &
Poor's Ratings Services, a division of the XxXxxx-Xxxx Companies, Inc.
(together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust Fund will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of February 1, 2002 (the "Pooling and Servicing Agreement"), among the
Purchaser as depositor, GMAC Commercial Mortgage Corporation as master servicer
(in such capacity, the "Master Servicer") and special servicer, and Xxxxx Fargo
Bank Minnesota, N.A., as trustee (in such capacity, the "Trustee"). Capitalized
terms not otherwise defined herein have the meanings assigned to them in the
Pooling and Servicing Agreement as in effect on the Closing Date.
The Purchaser 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 Purchaser
intends to sell the Class X-1, Class X-2, Class F, Class G and Class H
Certificates to Xxxxxxx, Sachs & Co. and Deutsche Banc Alex. Xxxxx Inc. (in such
capacity, each an "Initial Purchaser") and the Class J, Class K, Class L,
Class M, Class N, Class O and Class P Certificates to Deutsche Banc Alex. Xxxxx
Inc. (in such capacity, an "Initial Purchaser") pursuant to two certificate
purchase agreements, each dated the date hereof (the "Certificate Purchase
Agreements"). The Purchaser intends to sell the Class R-I, Class R-II and Class
R-III Certificates to First Union National Bank (in such capacity, an "Initial
Purchaser"). The Class X-1, Class X-2, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class R-I, Class R-II and Class
R-III Certificates are collectively referred to as the "Non-Registered
Certificates."
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on February 5, 2002 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). The "Cut-off Date" with respect to any Mortgage Loan is the Due
Date for such Mortgage Loan in February 2002. As of the close of business on
their respective Cut-off Dates (which Cut-off Dates may occur after the Closing
Date), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$186,127,426, subject to a variance of plus or minus 5%. The purchase price for
the Mortgage Loans shall be determined by the parties pursuant to an agreed upon
term sheet.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the Seller of
the purchase price referred to in Section 1 hereof (exclusive of any applicable
holdback for transaction expenses), the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse, all
the right, title and interest of the Seller in and to the Mortgage Loans
identified on the Mortgage Loan Schedule as of such date, including all interest
and principal received or receivable by the Seller on or with respect to the
Mortgage Loans after the Cut-off Date for such Mortgage Loan, together with all
of the Seller's right, title and interest in and to the proceeds of any related
title, hazard, or other insurance policies and any escrow, reserve or other
comparable accounts related to the Mortgage Loans. The Purchaser shall be
entitled to (and, to the extent received by or on behalf of the Seller, the
Seller shall deliver or cause to be delivered to or at the direction of the
Purchaser) all scheduled payments of principal and interest due on the Mortgage
Loans after the Cut-off Date for each Mortgage Loan, and all other recoveries of
principal and interest collected thereon after such Cut-off Date. All scheduled
payments of principal and interest due thereon on or before the Cut-off Date for
each Mortgage Loan and collected after such Cut-off Date shall belong to the
Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a) above,
the Seller hereby agrees that, at least five (5) Business Days before the
Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B hereto) for each Mortgage Loan so
assigned. It is further acknowledged and agreed by the Seller that the Purchaser
intends to cause the Trustee to perform a limited review of such Mortgage Files
to enable the Trustee to confirm to the Purchaser on or before the Closing Date
that the Mortgage Note referred to in clause (i) of Exhibit B has been delivered
by the Seller with respect to each such Mortgage File. In the event Seller fails
to so deliver each such Mortgage File to the Trustee, the Purchaser and its
successors and assigns shall be entitled to pursue any rights or remedies in
respect of such failure as may be available under applicable law. If the Seller
cannot
2
deliver, or cause to be delivered as to any Mortgage Loan, the original
Mortgage Note, the Seller shall deliver a copy or duplicate original of such
Mortgage Note, together with an affidavit certifying that the original thereof
has been lost or destroyed. If the Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of any of the
documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi)(A)
and (xii) of Exhibit B, with evidence of recording or filing thereof, solely
because of a delay caused by the public recording or filing office where such
document or instrument has been delivered for recordation or filing, or because
such original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of this Section 2(b) shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Trustee, and
either the original of such missing document or instrument, or a copy thereof,
with evidence of recording or filing, as the case may be, thereon, is delivered
to or at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee) within 180 days of the
Closing Date (or within such longer period after the Closing Date as the
Purchaser (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Seller has provided the Purchaser (or such
subsequent owner) with evidence of such recording or filing, as the case may be,
or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or filing, as the case may be, and is, as certified
to the Purchaser (or such subsequent owner) no less often than quarterly, in
good faith attempting to obtain from the appropriate county recorder's or filing
office such original or copy). If the Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of the related
lender's title insurance policy referred to in clause (ix) of Exhibit B solely
because such policy has not yet been issued, the delivery requirements of this
Section 2(b) shall be deemed to be satisfied as to such missing item, and such
missing item shall be deemed to have been included in the related Mortgage File,
provided that the Seller has delivered to the Trustee a commitment for title
insurance "marked-up" at the closing of such Mortgage Loan, and the Seller shall
deliver to or at the direction of the Purchaser (or any subsequent owner of the
affected Mortgage Loan, including without limitation the Trustee), promptly
following the receipt thereof, the original related lender's title insurance
policy (or a copy thereof). In addition, notwithstanding anything to the
contrary contained herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan. On the Closing Date, upon
notification from the Seller that the purchase price referred to in Section 1
(exclusive of any applicable holdback for transaction expenses) has been
received by the Seller, the Trustee shall be authorized to release to the
Purchaser or its designee all of the Mortgage Files in the Trustee's possession
relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller, at its own cost, shall be responsible
for (i) the recording or filing, as the case may be, of each assignment referred
to in clauses (iii) and (v)
3
of Exhibit B and each UCC-2 and UCC-3, if any, referred to in clause (xi)(B) of
Exhibit B 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. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Seller shall promptly prepare or cause the preparation of a substitute
therefor or cure or cause the curing of such defect, as the case may be, and
shall thereafter deliver the substitute or corrected document to or at the
direction of the Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under its control)
relating to the Mortgage Loans that are not required to be a part of a Mortgage
File in accordance with Exhibit B (all such other documents and records as to
any Mortgage Loan, including, without limitation, and if applicable, a copy of
the Mortgage Note, a copy of the Mortgage, a copy of the Security Agreement,
property insurance information, property inspections, financial statements
(subject to and in accordance with any applicable confidentiality agreements),
escrow analysis, tax bills, appraisals, environmental reports, engineering
reports, the asset summary, financial information on the borrower, sponsor and
guarantor, a copy of letters of credit and a copy of environmental insurance
policies, the "Servicing File"), together with all escrow payments, reserve
funds and other comparable funds in the possession of the Seller (or under its
control) with respect to the Mortgage Loans, shall (unless they are held by a
sub-servicer that shall, as of the Closing Date, begin acting on behalf of the
Master Servicer pursuant to a written agreement between such parties) be
delivered by the Seller (or its agent) to the Purchaser (or its designee) no
later than the Closing Date. If a sub-servicer shall, as of the Closing Date,
begin acting on behalf of the Master Servicer with respect to any Mortgage Loan
pursuant to a written agreement between such parties, the Seller shall deliver a
copy of the related Servicing File to the Master Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage Loans to the
Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed to conduct
any partial or complete examination of the Mortgage Files and/or Servicing Files
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Seller's representations, warranties and covenants
set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit
C, with such changes or modifications as may be permitted or required by the
Rating Agencies.
4
(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 Maryland,
and is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this
Agreement by the Seller, will not violate the Seller's organizational
documents or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result
in the breach of, any material agreement or other instrument to which
it is a party or which is applicable to it or any of its assets, in
each case which materially and adversely affect the ability of the
Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(vi) No litigation is pending with regard to which Seller
has received service of process or, to the best of the Seller's
knowledge, threatened against the Seller the outcome of which, in the
Seller's good faith and reasonable judgment, could reasonably be
expected to prohibit the Seller from entering into this Agreement or
materially and adversely affect the ability of the Seller to perform
its obligations under this Agreement.
5
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its behalf
has (A) offered, pledged, sold, disposed of or otherwise transferred
any Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (B) solicited any offer to buy
or to accept a pledge, disposition or other transfer of any
Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (C) otherwise approached or
negotiated with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any
manner, (D) made any general solicitation by means of general
advertising or in any other manner with respect to any Certificate,
any interest in any Certificate or any similar security, or (E) taken
any other action, that (in the case of any of the acts described in
clauses (A) through (E) above) would constitute or result in a
violation of the Securities Act or any state securities law relating
to or in connection with the issuance of the Certificates or require
registration or qualification pursuant to the Securities Act or any
state securities law of any Certificate not otherwise intended to be a
Registered Certificate. In addition, the Seller will not act, nor has
it authorized or will it authorize any person to act, in any manner
set forth in the foregoing sentence with respect to any of the
Certificates or interests therein. For purposes of this paragraph
4(b)(viii), the term "similar security" shall be deemed to include,
without limitation, any security evidencing or, upon issuance, that
would have evidenced an interest in the Mortgage Loans or the Other
Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the
information set forth on pages A-10 through A-11, inclusive, of Annex
A to the Prospectus Supplement (as defined in Section 9) (the "Loan
Detail") and, to the extent consistent therewith, the information set
forth on the diskette attached to the Prospectus Supplement and the
accompanying prospectus (the "Diskette"), is true and correct in all
material respects. Insofar as it relates to the Mortgage Loans and/or
the Seller and does not represent a restatement or aggregation of the
information on the Loan Detail, the information set forth in the
Prospectus Supplement and the Memorandum (as defined in Section 9)
under the headings "Summary of Series 2002-C1 Transaction--The
Mortgage Pool," "--Geographic Concentrations of the Mortgaged
Properties," "--Property Types," "--Prepayment or Call Protection
Provided by the Mortgage Loans," "--Payment Terms of the Mortgage
Loans," "Risk Factors" and "Description of the Mortgage Pool," set
forth on Annex A to the Prospectus Supplement and (to the extent it
contains information consistent with that on such Annex A) set forth
on the Diskette, does not contain any untrue statement of a material
fact or (in the case of the Memorandum, when read together with the
other information specified therein as being available for review by
investors) omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
6
(x) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law (including, with
respect to any bulk sale laws), for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby,
other than (1) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with Seller's sale of the Mortgage Loans to the Purchaser,
(2) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and
(3) where the lack of such consent, approval, authorization,
qualification, registration, filing or notice would not have a
material adverse effect on the performance by the Seller under this
Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) The Purchaser has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and delivery by the Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law.
7
(v) The Purchaser is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would
prohibit the Purchaser from entering into this Agreement or, in the
Purchaser's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Purchaser to
perform its obligations under this Agreement or the financial
condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker,
investment banker, agent or other person, other than the Seller, the
Underwriters, the Initial Purchasers and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
transactions contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
(a) Within 90 days of the earlier of discovery or receipt of notice by
the Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement as in effect on the
Closing Date) in respect of the Mortgage File for any Mortgage Loan or a breach
of any representation or warranty made pursuant to Section 4(a) and set forth in
Exhibit C (a "Breach"), which Defect or Breach, as the case may be, materially
and adversely affects the value of any Mortgage Loan or the interests therein of
the Purchaser or its successors and assigns (including, without limitation, the
Trustee and the holders of the Certificates), the Seller shall cure such Defect
or Breach, as the case may be, in all material respects or repurchase the
affected Mortgage Loan from the then owner(s) thereof at the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement as in effect on the
8
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, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes.
(b) Notwithstanding Section 6(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
If any such Breach is not corrected or cured in all material respects
within the applicable Permitted Cure Period, the Seller shall, not later than
the last day of such Permitted Cure Period, (i) repurchase the affected Mortgage
Loan from the Purchaser or its assignee at the applicable Purchase Price or (ii)
if within the three-month period commencing on the Closing Date (or within the
two-year period commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G-2(f)), at its option, replace such
Mortgage Loan with a Qualifying Substitute Mortgage Loan and pay any
corresponding Substitution Shortfall Amount. The Seller agrees that any such
repurchase or substitution shall be completed in accordance with and subject to
the terms and conditions of the Pooling and Servicing Agreement.
For purposes of the preceding paragraph only, the "Permitted Cure
Period" applicable to any Breach in respect of any Mortgage Loan shall be the
90-day period immediately following the earlier of the discovery by the Seller
or receipt by the Seller of notice of such Breach; provided that if such Breach
cannot be corrected or cured in all material respects within such 90-day period,
but is reasonably likely that such Breach could be corrected or cured within 180
days of the earlier of discovery by the Seller and receipt by the Seller of
notice of such Breach and the Seller is diligently attempting to effect such
correction or cure, then the applicable Permitted Cure Period shall, with the
consent of the Purchaser or its assignee (which consent shall not be
unreasonably withheld), be extended for an additional 90 days, unless (i) the
affected Mortgage Loan is in default and (ii) the applicable Breach constitutes
a Material Document Defect (as defined in the Pooling and Servicing Agreement)
other than a Material Document Defect resulting solely from a delay caused by
the public recording or filing office where a document has been sent for
recording or filing.
(c) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 6, the then owner(s) thereof shall
tender or cause to be tendered
9
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) Except as provided in Section 2(b), this Section 6 provides the
sole remedies available to the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the Certificates)
respecting any Defect in a Mortgage File or any breach of any representation or
warranty made pursuant to Section 4(a) and set forth in Exhibit C, or in
connection with the circumstances described in Section 6(b). If the Seller
defaults on its obligations to repurchase any Mortgage Loan in accordance with
Section 6(a) or 6(b) or disputes its obligation to repurchase any Mortgage Loan
in accordance with either such subsection, the Purchaser or its successors and
assigns may take such action as is appropriate to enforce such payment or
performance, including, without limitation, the institution and prosecution of
appropriate proceedings. The Seller shall reimburse the Purchaser for all
necessary and reasonable costs and expenses incurred in connection with such
enforcement.
(e) In the event that (i) any Mortgage Loan that is a
Cross-Collateralized Mortgage Loan (as defined in the Pooling and Servicing
Agreement) is required to be repurchased pursuant to this Section 6 as a result
of a Breach, Defect or other event, and (ii) the cross-collateralization
provisions of the related Cross-Collateralized Mortgage Loans cannot be released
to the extent required by Section 2.03 of the Pooling and Servicing Agreement to
permit repurchase of the affected Mortgage Loan within the time period specified
in this Agreement for such repurchase, the Seller shall repurchase the affected
Mortgage Loan and all of the related Cross-Collateralized Mortgage Loans not so
released.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
specified herein shall be true and correct as of the Closing Date, and
the Aggregate Cut-off Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee, the Purchaser or the Purchaser's designee, as the case may
be, all documents and funds required to be so delivered pursuant to
Section 2;
10
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its sole
determination;
(v) All other terms and conditions of this Agreement
required to be complied with on or before the Closing Date shall have
been complied with, and the Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees,
costs and expenses payable by it to the Purchaser pursuant to this
Agreement; and
(vii) Neither the Underwriting Agreement nor either of the
Certificate Purchase Agreements shall have been terminated in
accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and
the Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser and each Underwriter may
rely, attaching thereto as exhibits the organizational documents of the Seller;
(c) A certificate of good standing regarding the Seller from the
Secretary of State for the State of Maryland, dated not earlier than 30 days
prior to the Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer or authorized signatory of the
Seller and dated the Closing Date, and upon which the Purchaser and each
Underwriter may rely;
(e) Written opinions of counsel for the Seller, in a form reasonably
acceptable to counsel for the Purchaser and subject to such reasonable
assumptions and qualifications as may be requested by counsel for the Seller and
acceptable to counsel for the Purchaser, dated the Closing Date and addressed to
the Purchaser and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested
by the Rating Agencies in connection with the issuance of the Certificates, each
of which shall include the Purchaser and each Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
11
SECTION 9. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, its officers
and directors, and each person, if any, who controls the Purchaser within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Securities Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; but only if and to the extent that (i) any such untrue
statement or alleged untrue statement is with respect to information regarding
the Mortgage Loans contained in the Loan Detail or, to the extent consistent
therewith, the Diskette or contained in the Term Sheet Diskette, to the extent
consistent with the Term Sheet Master Tape, or (ii) any such untrue statement or
alleged untrue statement or omission or alleged omission is with respect to
information regarding the Seller or the Mortgage Loans contained in the
Prospectus Supplement or the Memorandum under the headings "Summary of Series
2002-C1 Transaction -- The Mortgage Pool," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection
Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk
Factors" and/or "Description of the Mortgage Pool" or contained on Annex A to
the Prospectus Supplement (exclusive of the Loan Detail), and such information
does not represent a restatement or aggregation of information contained in the
Loan Detail; or (iii) such untrue statement, alleged untrue statement, omission
or alleged omission arises out of or is based upon a breach of the
representations and warranties of the Seller set forth in or made pursuant to
Section 4; provided, that the indemnification provided by this Section 9 shall
not apply to the extent that such untrue statement of a material fact or
omission of a material fact necessary to make the statements made, in light of
the circumstances in which they were made, not misleading, was made as a result
of an error in the manipulation of, or calculations based upon, the Loan Detail.
This indemnity agreement will be in addition to any liability which the Seller
may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-60030 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated June 26,
2001, as supplemented by the prospectus supplement dated January 25, 2002 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated January 25, 2002, relating to
the Non-
12
Registered Certificates; "Computational Materials" shall have the meaning
assigned thereto in the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Securities and Exchange Commission (the
"Commission") to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co.
Incorporated, and Xxxxxx Structured Asset Corporation and the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Xxxxxx
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Xxxxxx Letters, the "No-Action Letters"). The mortgage
loan information and information related thereto contained on the diskette
attached to any ABS Term Sheets or Computational Materials is referred to herein
as the "Term Sheet Diskette" and the tape provided by the Seller that was used
to create the Term Sheet Diskette is referred to herein as the "Term Sheet
Master Tape." References herein to ABS Term Sheets or Computational Materials
shall include any Term Sheet Diskette provided therewith.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Seller (the "indemnifying party") under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election to assume the defense of such action
and approval by the indemnified party of counsel, which approval will not be
unreasonably withheld, the indemnifying party will not be liable for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the indemnifying
party, representing all the indemnified parties under Section 9(a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii).
13
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 9, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 9 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by any
indemnified party, and (iii) acceptance of and payment for any of the
Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne
by the respective parties hereto.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at
000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance
Manager, facsimile no. (000) 000-0000, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter
14
be furnished to the Seller in writing by the Purchaser; and if to the Seller,
addressed to German American Capital Corporation, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, facsimile no. (000) 000-0000, with
a copy to Xxxxx Xxxxxx, Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, facsimile no. (000) 000-0000 or to such other address or facsimile number
as the Seller may designate in writing to the Purchaser.
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it was a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5
15
-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified
or in any way altered, unless such amendment, waiver, modification or alteration
is in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
16
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
GERMAN AMERICAN CAPITAL
CORPORATION
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By:______________________________
Name: Xxxxx Xxxxxxx
Title: Vice President
17
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consists of the following documents:
(i) the original Mortgage Note, endorsed by the most recent
endorsee prior to the Trustee or, if none, by the originator, without
recourse, either in blank or to the order of the Trustee in the
following form: "Pay to the order of Xxxxx Fargo Bank Minnesota,
National Association, as trustee for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 2002-C1, without recourse";
(ii) the original or a copy of the Mortgage and, if
applicable, the originals or copies of any intervening assignments
thereof showing a complete chain of assignment from the originator of
the Mortgage Loan to the most recent assignee of record thereof prior
to the Trustee, if any, in each case with evidence of recording
indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form, executed by the most recent assignee of record thereof prior to
the Trustee or, if none, by the originator, either in blank or in
favor of the Trustee (in such capacity);
(iv) the original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments
thereof showing a complete chain of assignment from the originator of
the Mortgage Loan to the most recent assignee of record thereof prior
to the Trustee, if any, in each case with evidence of recording
thereon;
(v) an original assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage), in
recordable form, executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the originator, either in
blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above;
(vi) an original or copy of any related Security Agreement
(if such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments
thereof showing a complete chain of assignment from the originator of
the Mortgage Loan to the most recent assignee of record thereof prior
to the Trustee, if any;
(vii) an original assignment of any related Security
Agreement (if such item is a document separate from the Mortgage)
executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, either in blank or in favor of
the Trustee (in such capacity), which assignment may be included as
part of the corresponding assignment of Mortgage referred to in clause
(iii) above;
B-1
(viii) originals or copies of all assumption, modification,
written assurance and substitution agreements, with evidence of
recording thereon if appropriate, in those instances where the terms
or provisions of the Mortgage, Mortgage Note or any related security
document have been modified or the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance
policy, together with all endorsements or riders (or copies thereof)
that were issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a first lien on the Mortgaged
Property;
(x) the original or a copy of any guaranty of the
obligations of the Mortgagor under the Mortgage Loan together with (A)
if applicable, the original or copies of any intervening assignments
of such guaranty showing a complete chain of assignment from the
originator of the Mortgage Loan to the most recent assignee thereof
prior to the Trustee, if any, and (B) an original assignment of such
guaranty executed by the most recent assignee thereof prior to the
Trustee or, if none, by the originator;
(xi) (A) file or certified copies of any UCC financing
statements and continuation statements which were filed in order to
perfect (and maintain the perfection of) any security interest held by
the originator of the Mortgage Loan (and each assignee of record prior
to the Trustee) in and to the personalty of the Mortgagor at the
Mortgaged Property (in each case with evidence of filing thereon) and
which were in the possession of the Seller (or its agent) at the time
the Mortgage Files were delivered to the Trustee and (B) if any such
security interest is perfected and the earlier UCC financing
statements and continuation statements were in the possession of the
Seller, a UCC financing statement executed by the most recent assignee
of record prior to the Trustee or, if none, by the originator,
evidencing the transfer of such security interest, either in blank or
in favor of the Trustee;
(xii) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate) granted by the
Mortgagor if the Mortgage, Mortgage Note or other document or
instrument referred to above was signed on behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the
related Mortgaged Property, the original ground lease or a copy
thereof;
(xiv) if the Mortgage Loan is a Credit Lease Loan, an
original of the credit lease enhancement insurance policy, if any,
obtained with respect to such Mortgage and an original of the residual
value insurance policy, if any, obtained with respect to such Mortgage
Loan;
(xv) the original or a copy of any lockbox agreement or
deposit account or similar agreement;
(xvi) an original or a copy of any environmental insurance
policy;
B-2
(xvii) the original or a copy of any intercreditor agreement
with respect to the Mortgage Loan;
(xviii) the original or a copy of any letter of credit; and
(xix) any additional documents required to be added to the
Mortgage File pursuant to this Agreement; provided that whenever the
term "Mortgage File" is used to refer to documents actually received
by the Purchaser or the Trustee, such term shall not be deemed to
include such documents and instruments required to be included therein
unless they are actually so received. The original assignments
referred to in clauses (iii), (v), (vii) and (x)(B), may be in the
form of one or more instruments in recordable form in any applicable
filing offices.
B-3
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, except as set forth on Schedule C-1 hereto, that:
(i) Ownership of Mortgage Loans. Immediately prior to the
transfer thereof to the Purchaser, the Seller had good and marketable
title to, and was the sole owner and holder of, such Mortgage Loan,
free and clear of any and all liens, encumbrances and other interests
on, in or to such Mortgage Loan (other than, in certain cases, the
right of a subservicer to directly service such Mortgage Loan). Such
transfer validly assigns ownership of such Mortgage Loan to the
Purchaser free and clear of any pledge, lien, encumbrance or security
interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has
full right and authority to sell, assign and transfer such Mortgage
Loan. No provision of the Mortgage Note, Mortgage or other loan
document relating to such Mortgage Loan prohibits or restricts the
Seller's right to assign or transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to
such Mortgage Loan set forth in the Mortgage Loan Schedule was true
and correct in all material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the
Cut-off Date for such Mortgage Loan, and has not been during the
twelve-month period prior thereto, 30 days or more delinquent in
respect of any debt service payment required thereunder, without
giving effect to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes
a valid first lien upon the related Mortgaged Property, including all
buildings located thereon and all fixtures attached thereto, such lien
being subject only to (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record, and (C) exceptions and exclusions specifically referred to in
the lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such Mortgage Loan
(the exceptions set forth in the foregoing clauses (A), (B) and (C)
collectively, "Permitted Encumbrances"). The Permitted Encumbrances do
not materially interfere with the security intended to be provided by
the related Mortgage, the current use or operation of the related
Mortgaged Property or the current ability of the Mortgaged Property to
generate net operating income sufficient to service the Mortgage Loan.
If the Mortgaged Property is operated as a nursing facility, a
hospitality property or a multifamily property, the Mortgage, together
with any separate security agreement,
C-1
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 original principal
amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has
not yet been issued in respect of the Mortgage Loan, a policy meeting
the foregoing description is evidenced by a commitment for title
insurance "marked-up" at the closing of such loan). Each Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby)
is in full force and effect, all premiums thereon have been paid and,
to the Seller's knowledge, no material claims have been made
thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair
the coverage under such Title Policy. Immediately following the
transfer and assignment of the related Mortgage Loan to the Trustee,
such Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's actual knowledge,
the insurer that issued such Title Policy is qualified to do business
in the state in which the related Mortgaged Property is located.
(vii) No Waivers by Seller of Material Defaults. The Seller
has not waived any material default, breach, violation or event of
acceleration existing under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no
valid offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set
forth in any engineering report prepared in connection with the
origination of (or obtained in connection with or otherwise following
the Seller's acquisition of) such Mortgage Loan, the related Mortgaged
Property is, to the Seller's knowledge, free and clear of any damage
that would materially and adversely affect its value as security for
such Mortgage Loan. 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.
C-2
(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 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
C-3
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. 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 Mortgaged
Property that was not disclosed to the policy issuer in one or more of
the following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the policy issuer or (c) an
environmental assessment, engineering or other report provided to the
policy issuer and (iii) the premiums on the environmental insurance
policy have been paid in full or the related loan documents provide
for payment of such premiums by the related Mortgagor or other
responsible party as the same shall be payable.
(xv) No Cross-Collateralization with Other Mortgage Loans.
Such Mortgage Loan is not cross-collateralized with any mortgage loan
that will not be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related
Mortgage and the Mortgage Note have not been impaired, waived, altered
or modified in any material respect, except as specifically set forth
in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes,
ground rents, assessments for improvements or other similar
outstanding charges affecting the related Mortgaged Property which are
or may become a lien of priority equal to or higher than the lien of
the related Mortgage. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered
unpaid until the date on which interest and/or penalties would be
payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. The
interest of the related Mortgagor in the related property consists of
a fee-simple interest in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not
a participation interest.
(xx) Valid Assignment. The assignment of the related
Mortgage referred to in clause (iii) of Exhibit B constitutes the
legal, valid and binding assignment of such Mortgage from the relevant
assignor to the Trustee. The Assignment of Leases set forth in the
Mortgage or separate from the related Mortgage and related to and
delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject only to Permitted
Encumbrances, enforceable first priority lien and first priority
C-4
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.
(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
C-5
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 (except for hyper-amortization loans with
respect to unpaid interest accruing after the anticipated repayment
date).
(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.
(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
C-6
property interest that is senior to the Mortgage Loan and (Y) a
proportionate amount of any lien that is in parity with the Mortgage
Loan (unless such other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph
(xxxiii) shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such
cross-collateralized Mortgage Loans; or (B) substantially all the
proceeds of such Mortgage Loan were used to acquire, improve or
protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party
credit enhancement within the meaning of Treas. Reg. ss.
1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage
Loan was "significantly modified" prior to the Closing Date so as to
result in a taxable exchange under Section 1001 of the Code, it either
(A) was modified as a result of the default or reasonably foreseeable
default of such Mortgage Loan or (B) satisfies the provisions of
either clause (A)(1) of paragraph (xxxiii) (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 Loan Numbers
DBM14397, DBM14755 and DBM14850 only, which are Credit Lease Loans:
(A) To the Seller's knowledge, such 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) 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 such Credit Lease Loan (1)
such 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 Lease, (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 Lease,
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) such Credit Lease has a term
ending on or after the final maturity of the
related Credit Lease Loan;
C-7
(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 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. Such Credit
Lease Loan fully amortizes over its original term,
and, there is no "balloon" payment of rent due
under the Credit Lease;
(E) Under the terms of the Credit Lease, 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 the Credit Lease;
(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) Such Credit Lease Loan provides that the related
Credit Lease cannot be modified without the
consent of the mortgagee under the related Credit
Lease Loan; and
(I) Under the Credit Lease for such Credit Lease Loan,
where the tenant has the right of termination or
rent abatement upon the occurrence of a casualty
or condemnation, there exists a related lease
enhancement insurance policy.
(J) The terms of any guaranty of the payment and
performance obligations of the tenant under the
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
C-8
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 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;
C-9
(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 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
C-10
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 February 1, 2002), (ii)
only with substitute collateral constituting "government securities"
within the meaning of Treas. Reg. ss. 1.860G-2(a)(8)(i), and (iii)
only to facilitate the disposition of mortgage real property and not
as a part of an arrangement to collateralize a REMIC offering with
obligations that are not real estate mortgages.
(xlvi) Defeasance Costs. If the Mortgage Loan permits
defeasance, then the mortgage loan documents related to such Mortgage
Loan require (a) the borrower to pay all rating agency fees associated
with defeasance and all other out-of-pocket expenses associated with
defeasance such as accountant's fees and opinions of counsel, or
(b) that
C-11
the borrower provide a REMIC opinion, an opinion regarding the first
priority perfected security interest in the defeasance collateral,
rating agency letters certifying no rating qualification or downgrade
on any securities, and accountant certification that all payments from
the defeasance collateral are sufficient to make monthly principal and
interest payments on such Mortgage Loan through maturity.
(xlvii) Rating Agency Fees for Assumptions. In the case of
each Mortgage Loan that entitles the Mortgagor to cause an assumption
of such Mortgage Loan by a third party, the holder of each Mortgage
Loan is entitled to require the payment by the related Mortgagor of
any related rating agency fees if a Rating Agency Confirmation is
required under the Pooling and Servicing Agreement in connection with
such assumption.
It is understood and agreed that the representations and warranties
set forth in this Exhibit C shall survive delivery of the respective Mortgage
Files to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
C-12
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
1. Representation (xxxv)(B)(4): Walgreens Lafayette loan and Walgreen Oklahoma
City loan - If the landlord under the respective Credit Lease fails to pay any
sums due the tenant and such failure continues beyond the applicable grace
period, then the tenant shall have the right to deduct such sums from fixed and
percentage rent and other sums due the landlord, together with interest thereon
at the so-called prime rate charged from time to time by First Chicago/NBD, plus
two percent until fully reimbursed. In addition, if the landlord fails to
perform any acts required of the landlord under the lease beyond the applicable
grace period, then the tenant shall have the right to perform such acts and the
right to deduct the cost and expense incurred thereby from fixed and percentage
rent and other sums due the landlord, together with interest thereon.
2. Representation (xxxv)(B)(4): Safeway Gaithersburg loan - If the landlord
under the Credit Lease fails to fulfill certain obligations, including those
obligations relating to the restrictions and exclusive use of the parcel
adjacent to the Leased Premises and environmental covenants, the tenant under
the Credit Lease shall be entitled to offset from rent expenses incurred in
connection with such landlord default or to terminate the Credit Lease.
3. Representation (xxxv)(E): Walgreens Lafayette loan - The tenant under the
Credit Lease does remain liable following any assignment provided that the lease
has not been modified or amended in any respect without the prior approval of
the tenant.
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF AN OFFICER OF THE SELLER
Certificate of Officer of German American Capital Corporation (the "Seller")
I, _______________________, a __________________ of the Seller, hereby
certify as follows:
The Seller is a corporation duly organized and validly existing under
the laws of the State of Maryland.
Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times in
full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation
or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Seller and his genuine signature is set
forth opposite his name:
Name Office Signature
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of January 25, 2002
(the "Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Seller of the Mortgage Loans, was, at the respective
times of such signing and delivery, duly authorized or appointed to execute such
documents in such capacity, and the signatures of such persons or facsimiles
thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
D-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
_______________, 2002.
By: _______________________________
Name:
Title:
I, _____________________________, _______________________________,
hereby certify that ____________________________ is a duly elected or appointed,
as the case may be, qualified and acting _________________________ of the Seller
and that the signature appearing above is his or her genuine signature.
D-1-2
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
_______________, 2002.
By:_____________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SELLER
Certificate of German American Capital Corporation
In connection with the execution and delivery by German American
Capital Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
January 25, 2002 (the "Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. and the Seller, the Seller hereby certifies that (i) the
representations and warranties of the Seller in the Purchase Agreement are true
and correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the date hereof.
Certified this __________ day of _____________ 2002.
GERMAN AMERICAN CAPITAL CORPORATION
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
D-2-1
