MORTGAGE LOAN PURCHASE AGREEMENT
--------------------------------
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of May 16, 2003, between Xxxxxxx Xxxxx Mortgage Company as Mortgage
Loan Seller (the "Mortgage Loan Seller") and GMAC Commercial Mortgage
Securities, Inc. as purchaser (the "Purchaser").
Subject to the terms and conditions hereof, the Mortgage Loan Seller
desires to sell, assign, transfer and otherwise convey to the Purchaser, and the
Purchaser desires to purchase, the multifamily and commercial mortgage loans
(the "Mortgage Loans") identified on the schedule annexed hereto as Exhibit A
(the "Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together
with other multifamily and commercial 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 May 1, 2003 (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, LaSalle Bank National Association, as trustee
(in such capacity, the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Pooling and Servicing Agreement as in effect on the Closing Date.
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., Xxxxxx Xxxxxxx &
Co. Incorporated and Deutsche Bank Securities 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 A-1A, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N-1, Class N-2, Class O, Class P and Class Q Certificates to
Xxxxxxx, Sachs & Co., Xxxxxx Xxxxxxx & Co. Incorporated and Deutsche Bank
Securities Inc. (in such capacity, each an "Initial Purchaser") pursuant to a
certificate purchase agreement, dated the date hereof (the "Certificate Purchase
Agreement"). The Purchaser intends to sell the Class R-I, Class R-II and Class
R-III Certificates to a Qualified Institutional Buyer (in such capacity, an
"Initial Purchaser"). The Class X-1, Class X-2, Class A-1A, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N-1, Class N-2, Class O,
Class P, Class Q, 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.
---------------------
Subject to the terms and conditions hereof, the Mortgage Loan 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 May 29, 2003 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 May 2003. 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 $49,667,968, 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 schedule.
SECTION 2. Conveyance of Mortgage Loans.
----------------------------
(a) Effective as of the Closing Date, subject only to receipt by the
Mortgage Loan Seller of the purchase price referred to in Section 1 hereof
(exclusive of any applicable holdback for transaction expenses), the Mortgage
Loan Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, without recourse, all the right, title and interest of the
Mortgage Loan 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 Mortgage Loan Seller on or with respect to the Mortgage Loans
after the Cut-off Date for each such Mortgage Loan, together with all of the
Mortgage Loan 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 Mortgage Loan
Seller, the Mortgage Loan 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 such 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 Mortgage Loan Seller.
(b) In connection with the Mortgage Loan Seller's assignment pursuant
to subsection (a) above, the Mortgage Loan 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 to the extent that such Mortgage File was
delivered to the Mortgage Loan Seller by GMAC Commercial Mortgage Corporation.
On the Closing Date, upon notification from the Mortgage Loan Seller that the
purchase price referred to in Section 1 (exclusive of any applicable holdback
for transaction expenses) has been received by the Mortgage Loan 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) All documents and records in the Mortgage Loan 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
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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 Mortgage Loan 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 Mortgage Loan 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 Mortgage Loan Seller shall deliver a copy of the related Servicing
File to the Master Servicer.
(d) The Mortgage Loan Seller and the Purchaser intend the transfer of
the Mortgage Loans hereunder to be a true sale by the Mortgage Loan Seller to
the Purchaser that is absolute and irrevocable and that provides the Purchaser
with full control of the Mortgage Loans.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
-----------------------------------------------------------
The Mortgage Loan 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 Mortgage Loan Seller's
representations, warranties and covenants set forth in or contemplated by
Section 4.
SECTION 4. Representations, Warranties and Covenants of the Mortgage
Loan Seller.
---------------------------------------------------------
(a) [Reserved]
(b) The Mortgage Loan Seller, as of the date hereof, hereby represents
and warrants to, and covenants with, the Purchaser that:
(i) The Mortgage Loan Seller is a limited partnership, duly
organized, validly existing and in good standing under the laws of the
State of New York, and is in compliance with the laws of each State to
the extent necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Mortgage Loan Seller, and the performance and compliance with the terms
of this Agreement by the Mortgage Loan Seller, will not violate the
Mortgage Loan 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
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each case which materially and adversely affects the ability of the
Mortgage Loan Seller to carry out the transactions contemplated by this
Agreement.
(iii) The Mortgage Loan 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 Mortgage Loan Seller, enforceable against the
Mortgage Loan 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 Mortgage Loan 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 Mortgage
Loan Seller's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Mortgage Loan Seller
to perform its obligations under this Agreement or the financial
condition of the Mortgage Loan Seller.
(vi) No litigation is pending with regard to which the
Mortgage Loan Seller has received service of process or, to the best of
the Mortgage Loan Seller's knowledge, threatened against the Mortgage
Loan Seller the outcome of which, in the Mortgage Loan Seller's good
faith and reasonable judgment, could reasonably be expected to prohibit
the Mortgage Loan Seller from entering into this Agreement or
materially and adversely affect the ability of the Mortgage Loan Seller
to perform its obligations under this Agreement or the financial
condition of the Mortgage Loan Seller.
(vii) The Mortgage Loan 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 by the Mortgage Loan Seller to the
Purchaser or the consummation of any of the other transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law (including, with
respect to any bulk sale laws), for the execution, delivery and
performance of or compliance by the Mortgage Loan Seller with this
Agreement, or the consummation by the Mortgage Loan Seller of any
transaction contemplated hereby,
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other than (1) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with Mortgage Loan 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 Mortgage Loan
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,
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 Mortgage Loan 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, in each case which materially and adversely affects the
ability of the Purchaser to carry out the transactions contemplated by
this Agreement.
(iii) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Mortgage Loan Seller, constitutes a valid, legal and
binding obligation of the Purchaser, enforceable against the Purchaser
in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, (B) general
principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and (C) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions
of this Agreement that purport to provide indemnification for
securities laws liabilities.
(v) The Purchaser is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory
5
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 Mortgage Loan 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 Mortgage Loan Seller, the party
discovering such breach shall give prompt written notice to the other party
hereto.
SECTION 6. [Reserved]
SECTION 7. Closing.
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(a) The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Mayer, Brown, Xxxx and Maw, 0000 Xxxxxxxx, 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 Mortgage
Loan Seller and the Purchaser specified herein shall be true and
correct as of the Closing Date;
(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;
6
(iii) The Mortgage Loan 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;
(iv) 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 Mortgage Loan 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; and
(v) The Underwriting Agreement shall not 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:
(i) this Agreement duly executed and delivered by the
Purchaser and the Mortgage Loan Seller;
(ii) an Officer's Certificate substantially in the form of
Exhibit C-1 hereto, executed by the Secretary or an assistant secretary
of the Mortgage Loan Seller, and dated the Closing Date, and upon which
the Purchaser, each Underwriter and each Initial Purchaser may rely,
attaching thereto as exhibits the organizational documents of the
Mortgage Loan Seller;
(iii) a certificate of good standing regarding the Mortgage
Loan Seller from the Secretary of State for the State of New York,
dated not earlier than 30 days prior to the Closing Date;
(iv) a certificate of the Mortgage Loan Seller substantially
in the form of Exhibit C-2 hereto, executed by an executive officer or
authorized signatory of the Mortgage Loan Seller and dated the Closing
Date, and upon which the Purchaser, each Underwriter and each Initial
Purchaser may rely;
(v) in a form reasonably acceptable to counsel for the
Purchaser, a written opinion of counsel for the Mortgage Loan Seller,
subject to such reasonable assumptions and qualifications as may be
requested by counsel for the Mortgage Loan Seller and acceptable to
counsel for the Purchaser, dated the Closing Date and addressed to the
Purchaser, each Underwriter and each Initial Purchaser;
(vi) to the extent required by any of the Rating Agencies, a
written opinion of counsel for the Purchaser regarding the
characterization of the transfer of the Mortgage Loans to the Purchaser
as a "true sale", subject to such reasonable assumptions and
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qualifications as may be requested by counsel for the Purchaser, dated
the Closing Date and addressed to the Rating Agencies, the Purchaser,
each Underwriter and the Trustee;
(vii) the Supplemental Agreement, dated as of the date hereof,
between GMAC Commercial Mortgage Corporation ("GMACCM") and the
Mortgage Loan Seller (the "Supplemental Agreement"), duly executed and
delivered by GMACCM and the Mortgage Loan Seller; and
(viii) such further certificates, opinions and documents as
the Purchaser may reasonably request.
SECTION 9. [Reserved]
SECTION 10. Assignment of Supplemental Agreement.
------------------------------------
In connection with the transfer of the Mortgage Loans hereunder, the
Mortgage Loan Seller hereby assigns to the Purchaser all of the Mortgage Loan
Seller's right, title and interest in and to the Supplemental Agreement.
SECTION 11. Notices.
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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 be furnished to the Mortgage Loan Seller in writing by the
Purchaser; and if to the Mortgage Loan Seller, addressed to Xxxxxxx Sachs
Mortgage Company, at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
Xxxxxxx, facsimile no. (000) 000-0000, or to such other address or facsimile
number as the Mortgage Loan Seller may designate in writing to the Purchaser.
SECTION 12. [Reserved]
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 Mortgage Loan Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser or its designee.
8
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 BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 17. Further Assurances.
------------------
The Mortgage Loan 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 Mortgage Loan Seller under this
Agreement shall not be assigned by the Mortgage Loan Seller without the prior
written consent of the Purchaser, except that any person into which the Mortgage
Loan Seller may be merged or consolidated, or any corporation or other entity
resulting from any merger, conversion or consolidation to which the Mortgage
Loan Seller is a party, or any person succeeding to all or substantially all of
the business of the Mortgage Loan Seller, shall be the successor to the Mortgage
Loan 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 Mortgage Loan Seller and the Purchaser, and
their permitted successors and assigns.
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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.
10
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.
XXXXXXX SACHS MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
its General Partner
By: /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
Acknowledged and Agreed with respect to Section 10:
GMAC COMMERCIAL MORTGAGE
CORPORATION
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
LOAN NUMBER PROPERTY NAME XXXXXXX XXXX XXXXX XXX XXXX
------------------------------------------------------------------------------------------------------------------------------------
00000 Chatsworth Business Center 21540-21622 Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxxx 00000
37469 Autumn Ridge Apartments 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx Xxxxxxxxxx 00000
38908 Riverwalk Medical Office Building 9300 and 0000 Xxxxxxxxx Xxxxxxx Xxxxxxxxxxx Xxxxxxxxxx 00000
00000 Xxxxxxxx Xxxxxxx 0000 Xxxx Xxxxxxxxxxxx Xxxxxxx Xxxxxxxxx Xxxx Xxxxxxx 00000
37881 One Park Ten 0000 Xxxx Xxx Xxxxxxxxx Xxx Xxxxxxx Xxxxx 00000
38466 Fallstaff Shopping Center 0000-0000 Xxxxxxxxxxxx Xxxx and 0000 Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx 00000
00000 Xxxxxxxx Xxxxxx 35450-35584 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxx Xxxxx Xxxxxxxx 00000
39358 Avanti East Apartments 000 Xxxxxxxxx 0xx Xxxxxx Xxx'x Xxxxxx Xxxxxxxx 00000
39801 TriAtria Shopping Center 00000-00000 Xxxxxxxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxxx 00000
MORTGAGE REMAINING ANTICIPATED DATE
RATE RATE ORIGINAL CUT-OFF DATE TERM TO MATURITY DATE REPAYMENT PAYMENT MONTHLY ARD
LOAN NUMBER (%) TYPE BALANCE ($) BALANCE ($) MATURITY (MOS.) OR ARD DATE DUE PAYMENT LOAN
---------------------------------------------------------------------------------------------------------------------------------
39912 5.78000 Fixed 11,000,000 10,988,581 119 4/1/2013 1 64,402.80
37469 5.92000 Fixed 7,100,000 7,071,079 116 1/1/2013 1 42,203.60
38908 5.55000 Fixed 6,948,000 6,917,655 116 1/1/2013 1 39,668.22
39093 5.99000 Fixed 6,500,000 6,500,000 116 1/1/2013 1 38,929.00
37881 5.75000 Fixed 5,300,000 5,272,390 56 1/1/2008 1 32,248.86
38466 6.10000 Fixed 4,750,000 4,726,660 116 1/1/2013 1 29,936.52
39800 6.13000 Fixed 3,200,000 3,196,893 119 4/1/2013 1 19,453.89
39358 5.40000 Fixed 3,000,000 2,996,654 119 4/1/2013 1 16,845.92
39801 6.13000 Fixed 2,000,000 1,998,058 119 4/1/2013 1 12,158.68
ANNUAL ADDITIONAL
CREDIT LEASE CROSS COLLATERALIZED DEBT BROKER STRIP SERVICING ENVIRONMENTAL
LOAN NUMBER LOAN PREPAYMENT PROVISION GROUPS SERVICE ($) LOAN FEE LOAN INSURANCE LOAN
------------------------------------------------------------------------------------------------------------------------------------
39912 Lockout/25_Defeasance/92_0%/3 772,834
37469 Lockout/28_Defeasance/89_0%/3 506,443
38908 Lockout/28_Defeasance/89_0%/3 476,019
39093 Lockout/28_Defeasance/90_0%/2 467,148
37881 Lockout/28_Defeasance/29_0%/3 386,986
38466 Lockout/28_Defeasance/90_0%/2 359,238
39800 Lockout/25_Defeasance/91_0%/4 233,447
39358 Lockout/25_Defeasance/93_0%/2 202,151
39801 Lockout/25_Defeasance/91_0%/4 145,904
LETTER OF SERVICING
LOAN NUMBER CREDIT LOAN LEASEHOLD FEE RATE (%) LOAN SELLER
------------------------------------------------------------------------------------------------------------
39912 0.12730 GMACCM
37469 0.12730 GMACCM
38908 0.12730 GMACCM
39093 0.12730 GMACCM
37881 0.12730 GMACCM
38466 0.12730 GMACCM
39800 0.12730 GMACCM
39358 0.12730 GMACCM
39801 0.12730 GMACCM
A-1
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall collectively consist of
the following documents:
(1) the original Mortgage Note, endorsed by the most recent
endorsee prior to the Trustee or, if none, by the originator, without recourse,
in blank or to the order of the Trustee in the following form: "Pay to the order
of LaSalle Bank, National Association, as trustee for the registered holders of
GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series 2003-C1, without recourse";
(2) 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;
(3) the original or a copy of the 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);
(4) an original or 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;
(5) 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 (3) above;
(6) an original or a 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;
(7) 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 (3) above;
(8) originals or copies of all assumption, modification,
written assurance and substitution agreements, with evidence of recording
thereon, where appropriate, in those
B-1
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;
(9) 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;
(10) the original or a copy of any guaranty of the obligations
of the Mortgagor under the Mortgage Loan which was in the possession of the
Mortgage Loan Seller at the time the Mortgage Files were delivered to the
Trustee 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;
(11) (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
personality of the Mortgagor at the Mortgaged Property (in each case with
evidence of filing thereon) and which were in the possession of the Mortgage
Loan Seller (or its agent) at the time the Mortgage Files were delivered and (B)
if any such security interest is perfected and the earlier UCC financing
statements and continuation statements were in the possession of the Mortgage
Loan 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;
(12) 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
not signed by the Mortgagor;
(13) the related Ground Lease or a copy thereof, if any;
(14) 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 Loan and an original of the residual value insurance policy, if
any, obtained with respect to such Mortgage Loan;
(15) the original or a copy of any lockbox agreement or
deposit account or similar agreement;
(16) the original or a copy of any intercreditor agreement
with respect to the Mortgage Loan;
(17) the original or a copy of any Environmental Policy;
(18) the original or a copy (if the original is held by the
Master Servicer) of any letter of credit and any related transfer documents;
B-2
(19) for a hospitality property, copies of franchise
agreements, if any, and franchisor comfort letters, if any;
(20) a checklist of all documents included in the Mortgage
File; and
(21) 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 (3), (5), (7)
and (10)(B), may be in the form of one or more instruments in recordable form in
any applicable filing offices.
B-3
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
Certificate of Officer of Xxxxxxx Xxxxx Mortgage Company (the "Mortgage
Loan Seller")
I, __________________________ , a __________________________of the
Mortgage Loan Seller, hereby certify as follows:
The Mortgage Loan Seller is a limited partnership duly organized and
validly existing under the laws of the State of New York.
Attached hereto as Exhibit I are true and correct copies of the
organizational documents of the Mortgage Loan Seller which organizational
documents 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 Mortgage Loan Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Mortgage Loan 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 Supplemental Agreement, dated May 16, 2003 (the "Supplemental
Agreement") between GMAC Commercial Mortgage Corporation and the Mortgage Loan
Seller, and/or the Mortgage Loan Purchase Agreement, dated May 16, 2003 (the
"Mortgage Loan Purchase Agreement"), between the Mortgage Loan Seller and GMAC
Commercial Mortgage Securities, Inc. providing for the purchase by GMAC
Commercial Mortgage Securities, Inc. from the Mortgage Loan 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 Mortgage Loan Purchase Agreement.
C-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
______________, 2003.
By:
---------------------------------------
Name:
Title:
I, [name], [title], hereby certify that ______________________ is a
duly elected or appointed, as the case may be, qualified and acting that
______________________ of the Mortgage Loan Seller and that the signature
appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
________________, 2003.
By:
---------------------------------------
Name:
Title:
C-1-2
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of Xxxxxxx Sachs Mortgage Company
In connection with the execution and delivery by Xxxxxxx Xxxxx Mortgage
Company (the "Mortgage Loan Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of May
16, 2003 (the "Mortgage Loan Purchase Agreement"), between GMAC Commercial
Mortgage Securities, Inc. and the Mortgage Loan Seller, the Mortgage Loan Seller
hereby certifies that (i) the representations and warranties of the Mortgage
Loan Seller in the Mortgage Loan 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 Mortgage Loan Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part set forth in the Mortgage Loan Purchase Agreement to be performed or
satisfied at or prior to the date hereof. Capitalized terms not otherwise
defined herein have the meanings assigned to them in the Mortgage Loan Purchase
Agreement.
Certified this day of May, 2003.
XXXXXXX SACHS MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
its General Partner
By:
-----------------------------------
Name:
Title:
C-2-1
