EX-99.3
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of April 7, 2004 between Xxxxxx Xxxxxxx Mortgage Capital Inc., as
Mortgage Loan Seller (the "Mortgage Loan Seller" or "MSMC"), and GMAC Commercial
Mortgage Securities, Inc., as purchaser (the "Purchaser").
The Mortgage Loan 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) GMAC Commercial Mortgage Corporation
("GMACCM"), pursuant to, and for the consideration described in, the Mortgage
Loan Purchase Agreement, dated as of April 7, 2004 , between the Purchaser and
GMACCM, and (ii) German American Capital Corporation ("GACC"), pursuant to, and
for the consideration described in, the Mortgage Loan Purchase Agreement, dated
as of April 7, 2004, between the Purchaser and GACC. The Mortgage Loan Seller,
GMACCM and GACC, 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 Fitch, Inc. and Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of April 1, 2004
(the "Pooling and Servicing Agreement"), among the Purchaser, as depositor, GMAC
Commercial Mortgage Corporation, as master servicer (in such capacity, the
"Master Servicer") and serviced companion loan paying agent, Lennar Partners,
Inc., as special servicer (in such capacity, the "Special Servicer"), and Xxxxx
Fargo Bank, N.A., as trustee (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 A-3,
Class A-4, Class B, Class C, Class D and Class E Certificates to Xxxxxx Xxxxxxx
& Co. Incorporated, Deutsche Bank Securities Inc., GMAC Commercial Holding
Capital Corp. and Greenwich Capital Markets, 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, Class O and Class P Certificates to Xxxxxx Xxxxxxx & Co.
Incorporated, Deutsche Bank Securities Inc., GMAC Commercial Holding Capital
Corp. and Greenwich Capital Markets, 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, 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 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 April 21,
2004 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 April 2004. 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
$116,927,318, 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
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 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 acknowledges that the
Depositor has directed the Mortgage Loan Seller, and the Mortgage Loan Seller
hereby agrees, to deliver the Mortgage File (as such term is defined in the
Pooling and Servicing Agreement) to the Trustee, and otherwise comply with the
requirements of Sections 2.01(b), 2.01(c) and 2.01(d) of the Pooling and
Servicing 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.
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(c) The Mortgage Loan 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 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) The Mortgage Loan 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 B
with respect to the Mortgage Loans, with such changes or modifications as may be
permitted or required by the Rating Agencies.
(b) In addition, 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 corporation, 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 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
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 each case which
materially and adversely affect 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
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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.
(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 or the consummation of any of the other transactions contemplated
hereby.
(viii) Neither the Mortgage Loan 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 Mortgage Loan 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.
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(ix) Insofar as it relates to the Mortgage Loans, the
information set forth on pages A-13 through A-16 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, the Mortgaged Properties related thereto and/or the Mortgage
Loan 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 2004-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.
(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
Mortgage Loan Seller with this Agreement, or the consummation by the Mortgage
Loan 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 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.
(xi) 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 B which materially and
adversely affects the value of any Mortgage Loan or the interests therein of the
Purchaser or its successors and assigns (including, without limitation the
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 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.
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(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 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, and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law.
(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 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.
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(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. Repurchases.
The Mortgage Loan Seller hereby agrees to comply with Sections 2.02 and
2.03 of the Pooling and Servicing Agreement, including, but not limited to, any
obligation to repurchase or substitute Mortgage Loans in respect of any Material
Breach or Material Document Defect.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 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 Mortgage
Loan 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 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) 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 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;
(vi) The Mortgage Loan 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 the Certificate
Purchase Agreement shall have been terminated in accordance with its terms.
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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
Mortgage Loan Seller;
(b) 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 and each
Underwriter may rely, attaching thereto as exhibits the organizational documents
of the Mortgage Loan Seller;
(c) 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;
(d) 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 and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan 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
Mortgage Loan 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 Mortgage Loan 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.
SECTION 9. Indemnification.
(a) The Mortgage Loan 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
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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 Mortgage Loan Seller, the Mortgage Loans or
the Mortgaged Properties related thereto contained in the Prospectus Supplement
or the Memorandum under the headings "Summary of Series 2004-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 and/or Annex B 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 Mortgage Loan 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 Mortgage
Loan Seller may otherwise have.
"Registration Statement" shall mean the registration statement No.
333-107510 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 July 31, 2003, as supplemented by the prospectus
supplement dated April 7, 2004 (the "Prospectus Supplement"), relating to the
Registered Certificates; "Memorandum" shall mean the private placement
memorandum dated April 7, 2004, relating to the Non-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
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the tape provided by the Mortgage Loan 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 Mortgage Loan 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).
(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
-10-
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 Mortgage Loan 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 be furnished to the Mortgage Loan Seller in writing by the
Purchaser; and if to the Mortgage Loan Seller, addressed to Xxxxxx Xxxxxxx
Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxxx, facsimile no. (000) 000-0000, with a copy to Xxxxxxxx Xxxxx,
Esq., Xxxxxx Xxxxxxx Mortgage Capital Inc., 1221 Avenue of the Xxxxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile no. (000) 000-0000 and a copy to
Xxxxxxx X. Quinn, Cadwalader, Xxxxxxxxxx & Xxxx, 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.
-11-
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 Mortgage Loan 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 Mortgage
Loan 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 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.
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 5-1401 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.
-12-
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 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.
-13-
IN WITNESS WHEREOF, the Mortgage Loan 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.
XXXXXX XXXXXXX MORTGAGE
CAPITAL INC.
By:
---------------------------------
Name:
Title:
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By:
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
-14-
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Property Loan
Number Number Seller Project Name Property Address City
------------------------------------------------------------------------------------------------------------------------------------
5 02-12594 MSMC Johnstown Galleria N/E/C Xxxxx 000 & Xxxxxxxx Xxxxxxxx Xxxxxxxx
Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
15 Various MSMC Pacific Medical Portfolio Rollup Various Various
------------------------------------------------------------------------------------------------------------------------------------
15 03-14817 MSMC Pacific Medical Portfolio 2 - 14600 00000 Xxxxxxx Xxx Van Nuys
Xxxxxxx Way
15 03-14818 MSMC Pacific Medical Portfolio 2 - 14624 00000 Xxxxxxx Xxx Van Nuys
Xxxxxxx Way
15 03-14813 MSMC Xxxxxxx Xxxxxxx Xxxxxxxxx 0 - 0000 Xx. 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx
Xxxxxxx Ave
------------------------------------------------------------------------------------------------------------------------------------
18 04-15578 MSMC Randolph A&P 000 Xxxxxx Xxxxx Xxxx Xxxxxxxx
22 03-15219 MSMC 0000 Xxxxxxxx Xxxx. 0000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
28 04-15563 MSMC Blairstown A&P 000 Xxxxx Xxxxx 00 Blairstown
36 04-15612 MSMC Casa de Topaz Apartments 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxx Grande
37 04-15573 MSMC North Wildwood Super Fresh 26th & Delaware Avenue North Wildwood
40 03-14056 MSMC Xxxxxxx Village Apartments 000 Xxxxxxx Xxxxxx Xxxxxx City
42 03-15196 MSMC One Xxxxxxxx Center 3622-3680 Kirkwood Highway Wilmington
48 04-15577 MSMC Food Basics Paterson 000 Xxxxx Xxxxxx Paterson
------------------------------------------------------------------------------------------------------------------------------------
60 Various MSMC Schomac Portfolio - Rollup Various Various
------------------------------------------------------------------------------------------------------------------------------------
60 04-15767 MSMC Schomac Portfolio - Synott 0000 Xxxxxx Xxxx Xxxxxxx
60 04-15768 MSMC Schomac Portfolio - Budget 000 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
64 03-13575 MSMC 00-000 Xxxxxx Xxxxxx 00-000 Xxxxxx Xxxxxx Xxxxxxxx
Cut-Off Day
Property Zip Original Cut-Off Balance Loan Maturity Interest Payment
Number State Code Balance Balance Allocation Type Date Rate Due
------------------------------------------------------------------------------------------------------------------------------------
5 Pennsylvania 15904 37,400,000 37,298,226 37,298,226 Fixed 2/1/2014 6.400 1
------------------------------------------------------------------------------------------------------------------------------------
15 California Various 15,520,000 15,520,000 Fixed 11/1/2013 5.750 1
------------------------------------------------------------------------------------------------------------------------------------
15 California 91405 5,820,000
15 California 91405 5,036,000
15 California 91204 4,664,000
------------------------------------------------------------------------------------------------------------------------------------
18 Xxx Xxxxxx 00000 14,675,000 14,660,904 14,660,904 Fixed 3/1/2014 5.420 1
22 California 90057 12,200,000 12,164,463 12,164,463 Fixed 1/8/2014 5.870 8
28 Xxx Xxxxxx 00000 8,756,000 8,747,589 8,747,589 Fixed 3/1/2014 5.420 1
36 Arizona 85222 5,800,000 5,794,193 5,794,193 Fixed 3/1/2014 5.250 1
37 Xxx Xxxxxx 00000 5,528,000 5,522,690 5,522,690 Fixed 3/1/2014 5.420 1
40 Oregon 97045 5,400,000 5,362,340 5,362,340 Fixed 9/1/2013 5.720 1
42 Delaware 19808 4,800,000 4,796,167 4,796,167 Fixed 3/1/2014 6.140 1
48 Xxx Xxxxxx 00000 3,800,000 3,796,350 3,796,350 Fixed 3/1/2014 5.420 1
------------------------------------------------------------------------------------------------------------------------------------
60 Texas Various 1,800,000 1,797,712 Fixed 3/1/2014 6.020 1
------------------------------------------------------------------------------------------------------------------------------------
60 Texas 77083 1,117,496
60 Texas 77840 680,215
------------------------------------------------------------------------------------------------------------------------------------
64 Xxxxxxxxxxx 00000 1,477,600 1,466,685 1,466,685 Fixed 10/1/2013 6.640 1
Credit Ground Letter
Property Monthly Lease Cross Lease Remaining of
Number Payment ARD Prepayment Provision Loan Servicing Fee % Coll Flag Term Credit
------------------------------------------------------------------------------------------------------------------------------------
5 250,195 Lock/26_Defeasance/90_0%/4 No 0.0334 No No 118 No
------------------------------------------------------------------------------------------------------------------------------------
15 94,434 Lock/29_Defeasance/87_0%/4 No 0.0334 No Yes 115 No
------------------------------------------------------------------------------------------------------------------------------------
15 No Yes
15 No Yes
15 No Yes
------------------------------------------------------------------------------------------------------------------------------------
18 82,588 Lock/25_Defeasance/91_0%/4 No 0.0334 No No 119 No
22 72,129 Lock/27_Defeasance/89_0%/4 No 0.0334 No No 117 No
28 49,277 Lock/25_Defeasance/91_0%/4 No 0.0334 No No 119 No
36 32,028 Lock/25_Defeasance/91_0%/4 No 0.0334 No No 119 Yes
37 31,110 Lock/25_Defeasance/91_0%/4 No 0.0334 No No 119 No
40 31,410 Lock/31_Defeasance/85_0%/4 No 0.0334 No No 113 No
42 29,212 Lock/25_Defeasance/91_0%/4 No 0.0334 No No 119 No
48 21,386 Lock/25_Defeasance/91_0%/4 No 0.0334 No No 119 No
------------------------------------------------------------------------------------------------------------------------------------
60 11,619 Lock/25_Defeasance/91_0%/4 No 0.1334 No No 119 No
------------------------------------------------------------------------------------------------------------------------------------
60 No No No
60 No No No
------------------------------------------------------------------------------------------------------------------------------------
64 10,107 Lock/30_Defeasance/86_0%/4 No 0.0334 No Yes 114 No
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
For purposes of these representations and warranties, the phrases "to
the knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan Seller's
knowledge" shall mean, except where otherwise expressly set forth below, the
actual state of knowledge of the Mortgage Loan Seller or any servicer acting on
its behalf regarding the matters referred to, in each case: (i) after the
Mortgage Loan Seller's having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Mortgage Loan Seller's underwriting standards, at the time of the Mortgage
Loan Seller's origination or acquisition of the particular Mortgage Loan; and
(ii) subsequent to such origination, utilizing the servicing and monitoring
practices customarily utilized by prudent commercial mortgage loan servicers
with respect to securitizable commercial or multifamily, as applicable, mortgage
loans. Also for purposes of these representations and warranties, the phrases
"to the actual knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan
Seller's actual knowledge" shall mean, except where otherwise expressly set
forth below, the actual state of knowledge of the Mortgage Loan Seller or any
servicer acting on its behalf without any express or implied obligation to make
inquiry. All information contained in documents included in the definition of
Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Mortgage Loan Seller, to
the extent that the Mortgage Loan Seller or its closing counsel or custodian, if
any, have reviewed or had possession of such document at any time. For purposes
of these representations and warranties, to the extent that any representation
or warranty is qualified by the Mortgage Loan Seller's knowledge with respect to
the contents of the Note, Mortgage, lender's title policy and any letters of
credit or ground leases, if such document is not included in the Mortgage File,
the Mortgage Loan Seller shall make such representation or warranty without any
such qualification. Wherever there is a reference in a representation or
warranty to receipt by, or possession of, the Mortgage Loan Seller of any
information or documents, or to any action taken by the Mortgage Loan Seller or
to any action which has not been taken by the Mortgage Loan Seller or its agents
or employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or the not taking such
action by, either of the Mortgage Loan Seller or any servicer acting on its
behalf. For purposes of these representations and warranties, when referring to
the conduct of "reasonable prudent institutional commercial or multifamily, as
applicable mortgage lenders" (or similar such phrases and terms), such conduct
shall be measured by reference to the industry standards generally in effect as
of the date the related representation or warranty relates to or is made.
The Mortgage Loan Seller hereby represents and warrants with respect to
the Mortgage Loans that, as of the date herein below specified or, if no such
date is specified, as of the Closing Date, and subject to Section 18 of this
Agreement:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the Mortgage Loan Schedule to the Pooling and
Servicing Agreement was true
and accurate in all material respects as of the Cut-Off Date and contains all of
the information set forth in the definition of "Mortgage Loan Schedule" in the
Pooling and Servicing Agreement
(2) Ownership of Mortgage Loans. Immediately prior to the
transfer of the Mortgage Loans to the Purchaser, the Mortgage Loan Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Mortgage Loan
Seller has full right, power and authority to sell, transfer and assign each
Mortgage Loan to, or at the direction of, the Purchaser free and clear of any
and all pledges, liens, charges, security interests, participation interests
and/or other interests and encumbrances (other than the rights to servicing and
related compensation as reflected in the Mortgage Loan Schedule). Subject to the
completion of the names and addresses of the assignees and endorsees and any
missing recording information in all instruments of transfer or assignment and
endorsements and the completion of all recording and filing contemplated hereby
and by the Pooling and Servicing Agreement, the Mortgage Loan Seller will have
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance (except for certain servicing
rights described on Schedule B-41 hereto or otherwise contemplated by this
Agreement or the Pooling and Servicing Agreement). The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Mortgage Loan Seller
to obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, endorsed to
the Purchaser, or its designee, in conformity with the requirements of the
definition of "Mortgage File" in the Pooling and Servicing Agreement and each
such endorsement is genuine.
(3) 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.
(4) Lien; Valid Assignment. The Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a legal, valid and,
subject to the exceptions set forth in Paragraph 13 below, enforceable first
priority lien upon the related Mortgaged Property, except for the following
(collectively, the "Permitted Encumbrances"): (a) the lien for current real
estate taxes, water charges, sewer rents and assessments not yet due and
payable; (b) covenants, conditions and restrictions, rights of way, easements
and other matters that are of public record and are referred to in the related
lender's title insurance policy (or, if not yet issued, referred to in a pro
forma title policy or title policy commitment meeting the requirements described
in Paragraph 8 below); (c) exceptions and exclusions specifically referred to in
the related lender's title insurance policy (or, if not yet issued, referred to
in a pro forma title policy or title policy commitment meeting the requirements
described in Paragraph 8 below); (d) other matters to which like properties are
commonly subject; (e) the rights of tenants (as tenants only) under leases
(including subleases) pertaining to the related Mortgaged Property; (f)
condominium declarations of record and identified in the related lender's title
insurance policy (or, if not yet issued, identified in a pro forma title policy
or title policy commitment meeting the requirements described in Paragraph 8
below); and (g) if such Mortgage Loan constitutes a Cross-Collateralized
Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in
the same group of Cross-Collateralized Mortgage Loans. With respect to each
Mortgage Loan, such Permitted Encumbrances do not, individually or in the
aggregate,
-2-
materially interfere with the security intended to be provided by the related
Mortgage, the current principal use of the related Mortgaged Property, the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan or materially and adversely affect the value of
the Mortgage Loan . The related assignment of the Mortgage for each Mortgage
Loan, executed and delivered in favor of the Trustee, is in recordable form (but
for insertion of the name and address of the assignee and any related recording
information which is not yet available to the Mortgage Loan Seller) to validly
and effectively convey the assignor's interest therein and constitutes a legal,
valid, binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Mortgage from the relevant assignor to the
Trustee.
(5) Assignment of Leases. There exists as part of the related
Mortgage File an Assignment of Leases (an "Assignment of Leases") either as a
separate document or as part of the Mortgage. Each related Assignment of Leases
creates a valid, first priority collateral assignment of, or a valid perfected
first priority lien on or security interest in, certain rights under the related
lease or leases, including the right to receive all payment due under the
related Lease, subject only to a license granted to the related Mortgagor to
exercise certain rights and to perform certain obligations of the lessor under
such lease or leases, including the right to operate the related leased property
and none of the related leases contains any restriction on such collateral
assignment or creation of a security interest therein, as applicable. 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 (but for
insertion of the name and address of the assignee and any related recording
information which is not yet available to the Mortgage Loan Seller) to validly
and effectively convey the assignor's interest therein and constitutes a legal,
valid, binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee.
(6) Mortgage Status; Waivers and Modifications. The terms of
the Mortgage Loan have not been waived, modified, altered, satisfied, impaired,
canceled, subordinated or rescinded in any manner which materially interferes
with the security provided by such Mortgage Loan and the related Mortgaged
Property other than any material amendment or modification which has been
effected pursuant to a written instrument and has been duly submitted for
recordation to the extent necessary to protect the interests of the mortgagee,
and is a part of the related Mortgage File. Except as set forth on Schedule B-6,
no consents, waivers, modifications, alterations or assumptions of any kind with
respect to a Mortgage Loan have occurred since the date upon which the due
diligence file related to the applicable Mortgage Loan was delivered to Allied
Capital Corporation. The Mortgage Loan Seller has not taken any affirmative
action inconsistent with the Servicing Standard that would cause the
representations and warranties of the related Mortgagor under the Mortgage Loan
not to be true and correct in any material respect.
(7) Condition of Property; Condemnation. In the case of each
Mortgage Loan, one or more engineering reports were prepared in connection with
the origination of such Mortgage Loan by an independent third-party engineering
firm who inspected the Mortgaged Property, and except as set forth in such
engineering assessment(s) or on Schedule B-7A, the related Mortgaged Property
is, to the Mortgage Loan Seller's knowledge, free and clear of any damage that
would materially and adversely affect its value as security for such Mortgage
Loan
-3-
(except in cases set forth in clauses (a), (b) and (c) below). As of origination
of such Mortgage Loan there was no proceeding pending, and subsequent to such
date, the Mortgage Loan Seller has not received actual notice of, any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property. Except as set forth on Schedule B-7B, if any of the engineering
reports referred to above in this Paragraph 7 revealed any material damage or
material deferred maintenance, then one of the following is true: (a) the
repairs and/or maintenance necessary to correct such condition have been
completed in all material respects; (b) an escrow of funds is required or a
letter of credit was obtained in a percentage equal to 125% of the amount
reasonably estimated to be sufficient to complete the repairs and/or maintenance
necessary to correct such condition; or (c) the reasonable estimate of the cost
to complete the repairs and/or maintenance necessary to correct such condition
represented no more than (i) 2% of the value of the related Mortgaged Property
as reflected in an appraisal conducted in connection with the origination of the
subject Mortgage Loan or (ii) $50,000 whichever is less. As of the date of the
origination of each Mortgage Loan, except as set forth on Schedule B-7B: (x) all
of the material improvements on the related Mortgaged Property lay wholly within
the boundaries and, to the extent in effect at the time of construction,
building restriction lines of such property, except for encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below or that do not affect the value or current principal use of such
Mortgaged Property to any material extent, (y) no improvements on adjoining
properties encroached upon such Mortgaged Property so as to affect the value or
current principal use of such Mortgaged Property to any material extent, except
those encroachments that are insured against by the lender's title insurance
policy referred to in Paragraph 8 below and (z) the Mortgaged Property securing
each Mortgage Loan is located on or adjacent to a public road, or has access to
an irrevocable easement permitting ingress and egress.
(8) Title Insurance. The lien of each Mortgage securing a
Mortgage Loan is insured by an American Land Title Association (or an equivalent
form of) lender's title insurance policy (the "Title Policy") (except that if
such policy is yet to be issued, such insurance may be evidenced by a "marked
up" pro forma policy or title commitment in either case marked as binding and
countersigned by the title company or its authorized agent, either on its face
or by an acknowledged closing instruction or escrow letter) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
the originator of the related Mortgage Loan, its successors and assigns (as the
sole insured) that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to the Permitted Encumbrances. Such 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, the Mortgage Loan
Seller has made no claims thereunder and, to the Mortgage Loan Seller's
knowledge, no prior holder of the related Mortgage has made any claims
thereunder and no claims have been paid thereunder. The Mortgage Loan Seller has
not, and to the Mortgage Loan Seller's knowledge, no prior holder of the related
Mortgage has 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 (including endorsement and delivery of the related
Mortgage Note to the Purchaser or its designee and recording of the related
Assignment of Mortgage in favor of the Purchaser or its designee in the
applicable real estate records), 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. Such Title Policy
contains no exclusion for any of the following circumstances, or it
affirmatively insures (unless the related Mortgaged Property is located in a
-4-
jurisdiction where such affirmative insurance is not available), (a) that the
related Mortgaged Property has access to a public road, and (b) that the area
shown on the survey, if any, reviewed or prepared in connection with the
origination of the related Mortgage Loan is the same as the property legally
described in the related Mortgage. Such Title Policy contains no exclusion
regarding the encroachment upon any easements of any permanent improvements
located on the related Mortgaged Property for which the grantee of such easement
has the ability to force removal of such improvement, or such Title Policy
affirmatively insures against losses caused by forced removal of any material
permanent improvements on the related Mortgaged Property that encroach upon any
material easements.
(9) No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or reserve
accounts pending the satisfaction of certain conditions relating to leasing,
repairs or other matters with respect to the related Mortgaged Property), and
there is no obligation for future advances with respect thereto. If the related
Mortgage Loan documents include any requirements regarding (a) the completion of
any on-site or off-site improvements and (b) the disbursement of any funds
escrowed for such purpose, and if those requirements were to have been complied
with on or before the Closing Date, then such requirements have been complied
with in all material respects or such funds so escrowed have not been released
except to the extent specifically provided by the related Mortgage Loan
documents.
(10) Mortgage Provisions. The Mortgage Note, Mortgage (along
with any security agreement and UCC financing statement) and Assignment of
Leases for each Mortgage Loan, together with applicable state law, contain
customary and, subject to the exceptions set forth in Paragraph 13 below,
enforceable provisions for commercial Mortgage Loans such as to render the
rights and remedies of the holder thereof adequate for the practical realization
against the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby. The Mortgage Loan documents for each Mortgage
Loan, subject to applicable law, provide for the appointment of a receiver for
the collection of rents or for the related mortgagee to enter into possession to
collect the rents if there is an event of default under such Mortgage Loan.
(11) Trustee under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either (i) been properly designated, has
accepted such designation and currently so serves or (ii) may be substituted in
accordance with the Mortgage and applicable law, and (b) no fees or expenses are
payable to such trustee by the Mortgage Loan Seller, the Depositor or any
transferee thereof except for such fees and expenses (all of which are the
obligation of the related Mortgagor under the related Mortgage Loan documents)
as would be payable in connection with a trustee's sale after default by the
related Mortgagor or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
(12) Environmental Conditions. Except in the case of the
Mortgaged Properties identified on Schedule B-12A, (a) an environmental site
assessment meeting the requirements of the American Society for Testing and
Materials and covering all environmental hazards typically assessed for similar
properties including use, type and tenants of the Mortgaged
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Property ("Environmental Report"), or an update of such an assessment, was
performed by a licensed (to the extent required by applicable state law)
reputable, independent third-party environmental consulting firm with respect to
each Mortgaged Property in connection with the origination of such Mortgage Loan
and/or thereafter updated such that, except as set forth on Schedule B-12B, such
Environmental Report is dated no earlier than twelve months prior to the Closing
Date, (b) a copy of each such Environmental Report has been delivered to the
Purchaser, and (c) either: (i) no such Environmental Report provides that as of
the date of the report there is a material violation of any applicable
environmental laws with respect to any circumstances or conditions relating to
the related Mortgaged Property; or (ii) if any such Environmental Report does
reveal any such circumstances or conditions with respect to the related
Mortgaged Property and the same have not been subsequently remediated in all
material respects, then, except as described on Schedule B-12C, one or more of
the following are true: (A) one or more parties not related to or including the
related Mortgagor and collectively having financial resources reasonably
estimated by the Mortgage Loan Seller at the time of origination to be adequate
to cure the subject violation in all material respects, were identified as the
responsible party or parties for such condition or circumstance and such
condition or circumstance does not materially impair the value of the Mortgaged
Property, (B) the related Mortgagor was required to provide additional security
reasonably estimated by the Mortgage Loan Seller at the time of origination to
be adequate to cure the subject violation in all material respects, (C) if and
to the extent that such condition or circumstances can, based upon the
recommendation set forth in the subject Environmental Report, be remediated or
otherwise appropriately addressed in all material respects through the
implementation of an operations and maintenance plan, the related Mortgagor was
required to obtain and maintain an operations and maintenance plan, (D) the
related Mortgagor, or other responsible party, provided a "no further action"
letter or other evidence reasonably acceptable to a reasonably prudent
commercial mortgage lender that applicable federal, state or local governmental
authorities had no current intention of taking any action, and are not requiring
any action, in respect of such condition or circumstance, (E) such conditions or
circumstances were investigated further and based upon such additional
investigation, an independent third-party environmental consultant recommended
no further investigation or remediation, (F) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is not greater than the
lesser of 2% of the outstanding principal balance of the related Mortgage Loan
or $50,000, (G) there exists an escrow of funds reasonably estimated by the
Mortgage Loan Seller at origination to be sufficient for purposes of effecting
such remediation, (H) the related Mortgaged Property is identified on Schedule
B-12D and insured under a policy of insurance subject to per occurrence and
aggregate limits and a deductible, each as set forth on Schedule B-12D, against
certain losses arising from such circumstances and conditions or (I) a party
with financial resources reasonably estimated by the Mortgage Loan Seller at the
time of origination to be adequate to cure the subject violation in all material
respects provided a guaranty or indemnity to the related Mortgagor to cover the
costs of any required investigation, testing, monitoring or remediation. To the
Mortgage Loan Seller's actual knowledge, having made no independent inquiry
other than reviewing the Environmental Reports(s) and employing an environmental
consultant to perform the assessment(s) referenced herein, there are no material
circumstances or conditions with respect to any Mortgaged Property not revealed
in any such Environmental Report, where obtained, that render such Mortgaged
Property in material violation of any applicable environmental laws. The
Mortgage Loan documents for each Mortgage Loan require the related Mortgagor to
comply with all applicable
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federal, state and local environmental laws and regulations. The Mortgage Loan
Seller has not taken any affirmative action which would cause the Mortgaged
Property securing any Mortgage Loan not to be in compliance with all federal,
state and local laws pertaining to environmental hazards. Each Mortgagor
represents and warrants in the related Mortgage Loan documents substantially to
the effect that, except as set forth in certain specified environmental reports
and to the Mortgagor's knowledge, as of the date of origination, it has not
used, caused or permitted to exist and will not use, cause or permit to exist on
the related Mortgaged Property any hazardous materials which violate federal,
state or local laws, ordinances, regulations, orders, directives, or policies
governing the use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous materials. Unless the related
Mortgaged Property is identified on Schedule B-12D, the related Mortgagor (or an
affiliate thereof) has agreed to indemnify mortgagee against, or otherwise be
liable for, any and all losses resulting from a breach of environmental
representations, warranties or covenants given by the Mortgagor in connection
with such Mortgage Loan, generally including any and all losses, liabilities,
damages, injuries, penalties, fines, expenses and claims of any kind or nature
whatsoever (including without limitation, attorneys' fees and expenses) paid,
incurred or suffered by or asserted against, any such party resulting from such
breach.
(13) Loan Document Status. Each Mortgage Note, Mortgage, and
other agreement executed by or on behalf of the related Mortgagor, or any
guarantor of non-recourse exceptions and environmental liability, with respect
to each Mortgage Loan 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 or market value
limit deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, fraudulent transfer and conveyance or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and except that certain provisions in such loan
documents may be further limited or rendered unenforceable by applicable law.
There is no right of rescission, offset, abatement, diminution or valid defense
or counterclaim available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements that would deny the mortgagee the principal
benefits intended to be provided thereby. The Mortgage Loan Seller has no actual
knowledge of any such rights, defenses or counterclaims having been asserted.
(14) Insurance. Except as otherwise set forth on Schedule
B-14A, all improvements upon each Mortgaged Property are insured under a fire
and extended perils insurance policy included within the classification "All
Risk of Physical Loss" insurance (or the equivalent) policy in an amount
(subject to a customary and reasonable deductible) at least equal to the full
insurable replacement cost of the improvements located on such Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of coinsurance and does not
permit reduction in insurance proceeds for depreciation. Except in the case of
the Mortgaged Properties identified on Schedule B-14B hereto, each Mortgaged
Property is the subject of a business interruption, actual loss sustained or
rent loss insurance policy providing coverage for at least twelve (12) months
(or a specified dollar amount which is reasonably estimated to cover no less
than twelve (12) months of rental income). 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
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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. If any Mortgaged
Property is located in the state of California or in a "seismic zone" 3 or 4, a
seismic assessment was conducted (except in the case of mobile home parks) at
the time of originations and seismic insurance was obtained to the extent such
Mortgaged Property has a PML of greater than twenty percent (20%) calculated
using at least a 450 a year look back with a 10% probability of exceedance in a
50 year period. If the Mortgaged Property for any Mortgage Loan is located in
any of the locations set forth on Schedule B-12D, then such Mortgaged Property
is insured by windstorm insurance in an amount at least equal to the lesser of
(i) the outstanding principal balance of such Mortgage Loan and (ii) 100% of the
insurable replacement cost of the improvements located on the related Mortgaged
Property. All such hazard and flood insurance policies contain a standard
mortgagee clause for the benefit of the holder of the related Mortgage, its
successors and assigns, as mortgagee, and are not terminable (nor may the amount
of coverage provided thereunder be reduced) without thirty (30) days' (fifteen
(15) days for non-payment of premiums) prior written notice to the mortgagee;
and no such notice has been received, including any notice of nonpayment of
premiums, that has not been cured. Each Mortgaged Property and all improvements
thereon are also covered by comprehensive general liability insurance in such
amounts as are generally required by reasonably prudent commercial lenders or as
recommended by a reputable, independent insurance consultant. If any Mortgaged
Property is, to the Mortgage Loan Seller's knowledge, a materially
non-conforming use or structure under applicable zoning laws and ordinances,
then, in the event of a material casualty or destruction, one or more of the
following is true: (i) such Mortgaged Property may be restored or repaired to
materially the same extent of the use or structure at the time of such casualty;
(ii) such Mortgaged Property is covered by law and ordinance insurance in an
amount customarily required by reasonably prudent commercial mortgage lenders or
as recommended by a reputable, independent insurance consultant; or (iii) the
amount of hazard insurance currently in place and required by the related
Mortgage Loan documents would generate proceeds sufficient to pay off the
subject Mortgage Loan. Additionally, the insurer for all of the required
coverages set forth herein has a claims paying ability rating from Standard &
Poor's, Xxxxx'x or Xxxxx Ratings of not less than A-minus (or the equivalent),
or from A.M. Best of not less than "A:V" (or the equivalent) except that for any
Mortgage Loan having a Cut-off Date Principal Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability rating from Standard & Poor's, Xxxxx'x or Fitch of not
less than A (or the equivalent), or from A.M. Best of not less than "A:IX" (or
the equivalent). With respect to each Mortgage Loan, the related Mortgage Loan
documents require that the related Mortgagor or a tenant of such Mortgagor
maintain insurance as described above or permit the Mortgagee to require
insurance as described above. Except under circumstances set forth in the
related Mortgage Loan documents that would be reasonably acceptable to a prudent
commercial mortgage lender or that would not otherwise materially and adversely
affect the security intended to be provided by the related Mortgage, the
Mortgage Loan documents for each Mortgage Loan provide that proceeds
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paid under any such casualty insurance policy will (or, at the lender's option,
will) be applied either to the repair or restoration of the related Mortgaged
Property or to the payment of amounts due under such Mortgage Loan; provided
that the related Mortgage Loan documents may entitle the related Mortgagor to
any portion of such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the Mortgage Loan;
and provided, further, that, if the related Mortgagor holds a leasehold interest
in the related Mortgaged Property, the application of such proceeds will be
subject to the terms of the related Ground Lease (as defined in Paragraph 18
below). Based on the due diligence performed by the Mortgage Loan Seller, which
in all events was at least such due diligence as a prudent commercial mortgage
lender (with respect to the below referenced insurance policies regarding the
origination of the related Mortgage Loan) or a prudent commercial mortgage
servicer (with respect to any renewal of the below referenced insurance policies
since the origination of the related Mortgage Loan) would undertake with respect
to such issue after September 11, 2001, for each Mortgage Loan, except as
indicated on Schedule B-14C, the related all risk property casualty insurance
policy and business interruption policy do not specifically exclude acts of
terrorism, or any related damage claims, from coverage as of the later of (i)
the date of origination of the Mortgage Loan and (ii) the last date as of which
the policy was renewed or amended except as indicated on Schedule B-14C, and the
related loan documents do not expressly prohibit or waive such coverage, except
to the extent that any right to require such coverage may be limited by
commercially reasonable availability. To the Mortgage Loan Seller's actual
knowledge, all insurance policies described above are with an insurance carrier
qualified to write insurance in the relevant jurisdiction and all insurance
described above is in full force and effect.
(15) Taxes and Assessments. No real estate taxes or
governmental assessments or governmental charges that prior to the Cut-Off Date
became due and owing in respect of each Mortgaged Property are delinquent and
unpaid, or, an escrow of funds in an amount sufficient to pay such payments has
been established. Such taxes, assessments and charges shall not be considered
delinquent and unpaid until the date on which interest or penalties may first be
payable thereon.
(16) Mortgagor Bankruptcy. No Mortgaged Property, nor any
portion thereof is the subject of, and no Mortgagor under a Mortgage Loan is a
debtor in, any state or federal bankruptcy, insolvency or similar proceeding.
(17) Local Law Compliance. To the Mortgage Loan Seller's
knowledge, based upon a letter from governmental authorities, an opinion of
counsel, a zoning consultant's report, an endorsement to the related Title
Policy, or (when such would be acceptable to a reasonably prudent commercial
mortgage lender) a representation of the related Mortgagor at the time of
origination of the subject Mortgage Loan, or based on such other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject Mortgaged Property is located, except as described on Schedule
B-17, the improvements located on or forming part of, and the existing use of,
each Mortgaged Property: (i) are not in violation of any applicable building
codes or land laws applicable to the Mortgaged Property, the improvements
thereon or the use and occupancy thereof which would have a material adverse
effect on the value, operation, current principal use or net operating income of
the Mortgaged Property which are not covered by title insurance; and (ii) are in
material compliance with
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applicable zoning laws and ordinances, including all such applicable parking
ordinances or requirements, or constitute a legal non-conforming use or
structure (provided that with respect to any non-conformity with such laws or
ordinances either: (x) in the event of casualty or destruction, the use or
structure may be restored or repaired to the full extent of the use or structure
at the time of such casualty as provided in Paragraph 14 above; (y) law and
ordinance insurance coverage has been obtained for the structure or use as
provided in Paragraph 14 above; or (z) such non-compliance does not materially
and adversely affect the value of the related Mortgaged Property).
(18) Leasehold Estate Only. If any Mortgage Loan is secured by
the interest of a Mortgagor as a lessee under a ground lease (together with any
and all written amendments and modifications thereof and any and all estoppels
from or other agreements with the ground lessor, a "Ground Lease"), but not by
the related fee interest in the subject real property (the "Fee Interest"),
then, except as set forth on Schedule B-18:
(1) Such Ground Lease or a memorandum thereof has been
or will be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage and does not restrict the
use of the related Mortgaged Property by such lessee, its successors or assigns
in a manner that would materially adversely affect the security provided by the
related Mortgage; to the extent required under such Ground Lease, the lessor
under such Ground Lease has been sent notice of the lien of the related Mortgage
in accordance with the provisions of such Ground Lease; and there has been no
material change in the terms of such Ground Lease since its recordation, with
the exception of material changes reflected in written instruments which are a
part of the related Mortgage File;
(2) 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 Permitted Encumbrances, and such Ground Lease
provides that it shall remain superior to any mortgage or other lien upon the
related Fee Interest;
(3) 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;
(4) Such Ground Lease is in full force and effect, and
the Mortgage Loan Seller has not received, as of the Closing Date, any notice
that an event of default has occurred thereunder and to the Mortgage Loan
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;
(5) Such Ground Lease requires the lessor under such
Ground Lease thereunder to give notice of any default by the lessee to the
mortgagee under such Mortgage Loan provided such mortgagee has provided such
lessor with notice of its lien in accordance with the provisions of such Ground
Lease and such Ground Lease further provides that no notice of termination given
under such Ground Lease is effective against the mortgagee under such
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Mortgage Loan unless a copy has been delivered to such mortgagee in the manner
described in such Ground Lease and the Mortgage Loan Seller has provided such
lessor with notice of the lien of the related Mortgage in accordance with the
provisions of such Ground Lease;
(6) 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;
(7) Except as set forth on Schedule B-18G, such Ground
Lease has an original term (or an original term plus options exercisable by the
holder of the related Mortgage) which extends not less than twenty (20) years
beyond the end of the amortization term of such Mortgage Loan;
(8) Such Ground Lease requires the lessor to enter into
a new lease with a mortgagee upon termination of such Ground Lease by reason of
default by the Mortgagor including termination as a result of a rejection of
such Ground Lease in a bankruptcy proceeding;
(9) 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 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. Under the terms of such Ground Lease and the related Mortgage Loan
documents, taken together, any condemnation proceeds or awards in respect of a
total or substantially total taking will be applied first to the payment of the
outstanding principal and interest on the Mortgage Loan (except as otherwise
provided by applicable law) and subject to any rights to require the
improvements to be rebuilt;
(10) Such Ground Lease does not impose any restrictions
on subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender 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;
(11) The lessor under such Ground Lease is not
permitted in the absence of an uncured default to disturb the possession,
interest or quiet enjoyment of the tenant in any manner, which would materially
adversely affect the security provided by such Ground Lease and the related
Mortgage; and
(12) Such Ground Lease provides that it may not be
amended or modified without the prior consent of the mortgagee under such
Mortgage Loan and that any such action without such consent is not binding on
such mortgagee, its successors or assigns.
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(19) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
regulation section 1.860G-2(a), and the related Mortgaged Property, if acquired
in connection with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section 860G(a)(8)
(without regard to Section 856(e)(4) of the Code).
(20) Advancement of Funds. The Mortgage Loan Seller has not
(nor, to the Mortgage Loan Seller's knowledge, has any prior holder of such
Mortgage Loan) advanced funds or knowingly received any advance of funds from a
party other than the owner of the related Mortgaged Property (or a tenant at or
the property manager of the related Mortgaged Property), for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
(21) No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the lender or
shared appreciation feature 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 provide for negative amortization. Neither the Mortgage
Loan Seller nor any Affiliate thereof has any obligation to make any capital
contribution to the Mortgagor under the Mortgage Loan or otherwise.
(22) Legal Proceedings. To the Mortgage Loan Seller's
knowledge, as of origination of the Mortgage Loan, there were no, and to the
Mortgage Loan Seller's actual knowledge, as of the Closing Date, there are no
pending actions, suits, litigation or other proceedings by or before any court
or governmental authority against or affecting the Mortgagor (or any guarantor
to the extent a reasonably prudent commercial or multifamily, as applicable,
mortgage lender would consider such guarantor material to the underwriting of
such Mortgage Loan) under any Mortgage Loan 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 as security
for such Mortgage Loan, the Mortgagor's ability to pay principal, interest or
any other amounts due under such Mortgage Loan or the ability of any such
guarantor to meet its obligations under the applicable guaranty.
(23) Other Mortgage Liens. Except as otherwise set forth on
Schedule B-23, none of the Mortgage Loans permits the related Mortgaged Property
or any direct controlling interest in the related Mortgagor to be encumbered by
any mortgage lien or, in the case of a direct controlling interest in the
related Mortgagor, a lien to secure any other debt, without the prior written
consent of the holder of the subject Mortgage Loan or the satisfaction of debt
service coverage or similar criteria specified therein. To the Mortgage Loan
Seller's knowledge, as of origination of the subject Mortgage Loan, and to the
Mortgage Loan Seller's actual knowledge, as of the Closing Date, except as
otherwise set forth on Schedule B-23, and except for cases involving other
Mortgage Loans, no Mortgaged Property securing the subject Mortgage Loan is
encumbered by any other mortgage liens (other than Permitted Encumbrances) and
no direct controlling equity interest in the related Mortgagor is encumbered by
a lien to secure any other debt. The related Mortgage Loan documents do not
specifically prohibit the mortgagee from requiring the Mortgagor under each
Mortgage Loan to pay all reasonable costs and
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expenses related to any required consent to an encumbrance, including reasonable
legal fees and expenses and any applicable Rating Agency fees, or would permit
the subject mortgagee to withhold such consent if such costs and expenses are
not paid by a party other than such mortgagee.
(24) No Mechanics' Liens. To the Mortgage Loan Seller's
knowledge, as of the origination of the Mortgage Loan, and, to the Mortgage Loan
Seller's actual knowledge, as of the Closing Date: (i) each Mortgaged Property
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such mechanic's or materialmen's lien that would be prior or equal to the
lien of the related Mortgage and that is not bonded or escrowed for or covered
by title insurance.
(25) Compliance with Usury Laws. Each Mortgage Loan complied
with, or was exempt from, all applicable usury laws in effect at its date of
origination.
(26) Licenses and Permits. Except as set forth on Schedule
B-26, each Mortgage Loan contains provisions substantially to the effect that,
to the extent required by applicable law, each Mortgagor is required to be
qualified to do business and requires the related Mortgagor and the related
Mortgaged Property to be in material compliance with all regulations, licenses,
permits, authorizations, restrictive covenants and zoning, parking and building
laws or ordinances, in each case to the extent required by law or to the extent
that the failure to be so qualified or in compliance would have a material and
adverse effect upon the enforceability of the Mortgage Loan or upon the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
(27) Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages upon which recording taxes and fees were
paid in an amount sufficient to allow the mortgagee to realize on the Mortgaged
Properties in an amount at least equal to the original principal balance of such
Mortgage Loan.
(28) Releases of Mortgaged Properties. Except as set forth on
Schedule B-28A, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property from the lien of
the related Mortgage except upon: (i) payment in full of all amounts due under
the related Mortgage Loan or (ii) delivery of "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in connection with a defeasance
of the related Mortgage Loan; provided that the Mortgage Loans that are
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of material portions of the related Mortgaged Property or the release
of one or more related Mortgaged Properties upon: (i) the satisfaction of
certain legal and underwriting requirements, (ii) the payment of a release price
for the released property or parcel as set forth on Schedule B-28C or (iii) the
delivery of comparable substitute real estate collateral subject to certain
conditions precedent as set forth on Schedule B-28C. No release or partial
release of any Mortgaged
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Property, or any portion thereof, expressly permitted pursuant to the terms of
any Mortgage Note or Mortgage will constitute a significant modification of the
related Mortgage Loan under Treas. Reg. Section 1.860G-2(b)(2). Notwithstanding
the foregoing, any Mortgage Loan may permit the unconditional release of one or
more unimproved parcels of land to which the Mortgage Loan Seller did not give
any material value in its underwriting of such Mortgage Loan. With respect to
any release or substitution, the related Mortgagor is required to pay all
reasonable costs and expenses associated therewith incurred by the mortgagee
including any Rating Agency fees and expenses.
(29) Defeasance. Each Mortgage Loan containing provisions for
defeasance of all or a portion of the Mortgaged Property either (i) requires the
prior written consent of, and compliance with all conditions set by, the holder
of the Mortgage Loan, (ii) requires confirmation from the rating agencies rating
the certificates of any securitization transaction in which such Mortgage Loan
is included that such defeasance will not cause the downgrade, withdrawal or
qualification of the then current ratings of such certificates, or (iii)
requires that (A) defeasance must occur in accordance with the requirements of,
and within the time permitted by, applicable REMIC rules and regulations, (B)
the replacement collateral consists of non-callable U.S. government securities
in an amount sufficient to make all scheduled payments under such Mortgage Loan
when due, (C) at the mortgagee's election, the Mortgage Loan may only be assumed
by a single-purpose entity designated or approved by the holder of the Mortgage
Loan and (D) counsel provide an opinion that the Trustee has a perfected
security interest in such U.S. government securities prior to any other claim or
interest. The Mortgagor is required by the Mortgage Loan documents to pay all
reasonable costs and expenses, including but not limited to Rating Agency fees,
accountants fees and legal fees, associated with such defeasance.
(30) Inspection. Except as set forth on Schedule B-30, the
Mortgage Loan Seller, an affiliate of the Mortgage Loan Seller, or a
correspondent in the conduit funding program of the Mortgage Loan Seller,
inspected, or caused the inspection of, each Mortgaged Property within twelve
(12) months of the Closing Date.
(31) No Material Default. Other than payments due but not yet
30 days or more past due, there exists no material default, breach, violation or
event of acceleration under the Mortgage Note or Mortgage for any Mortgage Loan;
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that specifically pertains
to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Mortgage Loan Seller in this Exhibit B.
(32) Due-on-Sale. The Mortgage for each Mortgage Loan contains
a "due-on-sale" clause, which provides for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or any direct controlling equity interest in the related Mortgagor, is
transferred or sold, other than by reason of family and estate planning
transfers, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized
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Mortgaged Loans or multi-property Mortgage Loans, transfers among co-Mortgagors
or transfers of a similar nature to the foregoing meeting the requirements of
the Mortgage Loan. The related Mortgage Loan documents require the Mortgagor
under each Mortgage Loan to pay all reasonable fees and expenses associated with
securing the consent or approval of the holder of the related Mortgage for all
such actions requiring such consent or approval under the related Mortgage,
including Rating Agency fees and the cost of counsel opinions relating to REMIC
or other securitization tax issues.
(33) Single Purpose Entity. Except as otherwise described on
Schedule B-33 hereto, each Mortgage Loan with an original principal balance over
$5,000,000.00 requires the related Mortgagor to be, at least for so long as the
Mortgage Loan is outstanding, and to the Mortgage Loan Seller's actual
knowledge, the related Mortgagor is, a Single-Purpose Entity. For this purpose,
"Single-Purpose Entity" means a person, other than an individual, which is
formed or organized solely for the purpose of owning and operating the related
Mortgaged Property or Properties; does not engage in any business unrelated to
such Mortgaged Property or Properties and the financing thereof; and whose
organizational documents provide, or which entity represented and covenanted in
the related Mortgage Loan documents, substantially to the effect that such
Mortgagor (i) does not and will not have any material assets other than those
related to its interest in such Mortgaged Property or Properties or the
financing thereof; (ii) does not and will not have any indebtedness other than
as permitted by the related Mortgage or other related Mortgage Loan documents;
(iii) maintains its own books, records and accounts, in each case which are
separate and apart from the books, records and accounts of any other person; and
(iv) holds itself out as being a legal entity, separate and apart from any other
person. In addition, each Mortgage Loan with a Cut-off Date Principal Balance of
$20,000,000 or more, except as set forth on Schedule B-33, the related
Mortgagor's organizational documents provide substantially to the effect that
the Mortgagor shall: conduct business in its own name; not guarantee or assume
the debts or obligations of any other person; not commingle its assets or funds
with those of any other person; prepare separate tax returns and financial
statements, or if part of a consolidated group, be shown as a separate member of
such group; transact business with affiliates on an arm's length basis; hold
itself out as being a legal entity, separate and apart from any other person,
and such organizational documents further provide substantially to the effect
that: any dissolution and winding up or insolvency filing for such entity is
prohibited or requires the consent of an independent director or member or the
unanimous consent of all partners or members, as applicable; such documents may
not be amended with respect to the Single-Purpose Entity requirements without
the approval of the mortgagee or rating agencies; the Mortgagor shall have an
outside independent director or member. The Mortgage Loan Seller has obtained,
and the Servicing File contains, with respect to each Mortgage Loan having a
Cut-off Date Principal Balance of $20,000,000 or more, in connection with its
origination or acquisition thereof, a counsel's opinion regarding
non-consolidation of the Mortgagor. The organization documents of any Mortgagor
on a Mortgage Loan having a Cut-off Date Principal Balance of $20,000,000 or
more that is a single member limited liability company, provide that the
Mortgagor shall not dissolve or liquidate upon the bankruptcy, dissolution,
liquidation or death of the sole member and the Mortgage Loan Seller has
obtained in connection with its origination or acquisition of the subject
Mortgage Loan, and the Servicing File contains, an opinion of such Mortgagor's
counsel confirming that the law of the jurisdiction in which such single member
limited liability company was organized permits such continued existence upon
such bankruptcy, dissolution, liquidation or death of the sole member of the
Mortgagor and that the applicable law
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provides that creditors of the single member may only attach the assets of the
member including the membership interests in the Mortgagor but not the assets of
the Mortgagor.
(34) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
(35) Tax Parcels. Except as described on Schedule B-35 of this
Agreement, each Mortgaged Property constitutes one or more complete separate tax
lots containing no other property, or is subject to an endorsement under the
related Title Policy insuring same, or an application for the creation of
separate tax lots complying in all respects with the applicable laws and
requirements of the applicable governing authority has been made and approved by
the applicable governing authority and such separate tax lots shall be effective
for the next tax year.
(36) Security Interests. UCC Financing Statements have been
filed and/or recorded (or, if not filed and/or recorded, have been submitted in
proper form for filing and recording), in all public places necessary to perfect
a valid security interest in all items of personal property owned by a Mortgagor
and located on the related Mortgaged Property (other than any personal property
subject to a leasing arrangement or purchase money security interest permitted
under the terms of such Mortgage Loan or any other applicable personal property
leases, provided, the related Mortgage Loan documents contain a provision
providing for the assignment of such leases and related contracts to the
mortgagee in the event of a foreclosure of the Mortgage Loan), which in all
cases, includes any elevators and all Mortgagor-owned furniture, fixtures and
equipment material to the operation and use of the Mortgaged Property as
presently operated, and if such Mortgaged Property is a hotel or self-storage
facility, operated by the related Mortgagor, then such personal property
constitutes all of the material personal property required to operate the
Mortgagor's business as currently operated (other than any personal property
subject to a leasing arrangement or purchase money security interest permitted
under the terms of such Mortgage Loan or any other applicable personal property
leases, provided, the related Mortgage Loan documents contain a provision
providing for the assignment of such leases and related contracts to the
mortgagee in the event of a foreclosure of the Mortgage Loan) and the Mortgages,
security agreements, chattel mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and create a
valid and enforceable first priority (except as noted above in this Paragraph
36) lien and security interest, to the extent perfection may be effected
pursuant to applicable law solely by recording or filing UCC Financing
Statements, on such items of personalty except as enforceability may be limited
as set forth in Paragraph 13. In the case of each Mortgage Loan secured by a
hotel, the related loan documents contain such provisions as are necessary and
UCC Financing Statements have been filed as necessary, in each case, to perfect
a valid first security interest in Mortgagor's related operating revenues with
respect to such Mortgaged Property. An assignment of each UCC Financing
Statement relating to the Mortgage Loan has been completed or will be prepared
in blank which the Purchaser or Trustee, as applicable, or its designee is
authorized to complete and to file in the filing office in which such Financing
Statement was filed. Notwithstanding any of the foregoing, no representation is
made as to the perfection or priority of any security interest in rents or other
personal property to the extent that possession or control of such items or
actions other than the filing of UCC Financing Statements are required in order
to effect such perfection.
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(37) Disclosure to Environmental Insurer and Other Matters. If
the Mortgaged Property securing any Mortgage Loan is covered by a secured
creditor impaired property policy, then the Mortgage Loan Seller:
a. has disclosed, or is aware that there has been
disclosed, in the application for such policy or otherwise to the insurer under
such policy the "pollution conditions" (as defined in such policy) identified in
any environmental reports related to such Mortgaged Property which are in the
Mortgage Loan Seller's possession or are otherwise known to the Mortgage Loan
Seller; or
b. has delivered or caused to be delivered to the
insurer under such policy copies of all environmental reports in the Mortgage
Loan Seller's possession related to such Mortgaged Property;
in each case to the extent required by such policy or to the extent the failure
to make any such disclosure or deliver any such report would materially and
adversely affect the Purchaser's ability to recover under such policy. If the
Mortgaged Property securing any Mortgage Loan is covered by a secured creditor
impaired property policy, then: (v) all premiums for such insurance have been
paid and any deductible is held in escrow by the Mortgage Loan Seller and will
be transferred to the Purchaser; (w) such insurance is in full force and effect;
(x) the policy is in an amount equal to at least 125% of the principal balance
of the Mortgage Loan; (y) the policy has a term that ends no sooner than five
(5) years after the maturity date of the Mortgage Loan and is not cancelable
during such term; and (z) (i) an environmental report, a property condition
report or an engineering report was prepared that included an assessment for
lead based paint ("LBP") (in the case of a multifamily property built prior to
1978), asbestos containing materials ("ACM") (in the case of any property built
prior to 1985) and radon gas ("RG") (in the case of a multifamily property) at
such Mortgaged Property and (ii) if such report disclosed the existence of a
material and adverse LBP, ACM or RG environmental condition or circumstance
affecting such Mortgaged Property, then, except as otherwise described on
Schedule C-38, (A) the related Mortgagor was required to remediate such
condition or circumstance prior to the closing of the subject Mortgage Loan, or
(B) the related Mortgagor was required to provide additional security reasonably
estimated to be adequate to cure such condition or circumstance, or (C) the
related Mortgage Loan documents require the related Mortgagor to establish an
operations and maintenance plan with respect to such condition or circumstance
after the closing of such Mortgage Loan. If the Mortgage Loan is listed on
Schedule B-12D and the environmental insurance for such Mortgage Loan is not a
secured creditor policy but was required to be obtained by the Mortgagor, then
the holder of the Mortgage Loan is entitled to be an additional insured under
such policy, all premiums have been paid, such insurance is in full force and
effect and, to the Mortgage Loan Seller's knowledge, the Mortgagor has made the
disclosures and complied with the requirements of clauses (a) and (b) of this
Paragraph 37.
(38) Prepayment Premiums and Yield Maintenance Charges.
Prepayment Premiums and Yield Maintenance Charges payable with respect to each
Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treas. Reg. Section 1.860G-1(b)(2).
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(39) Operating Statements. Except as set forth on Schedule
B-39, each Mortgage Loan requires the Mortgagor, in some cases only at the
request of the holder of the related Mortgage, to provide the owner or holder of
the related Mortgage with at least quarterly and annual operating statements,
rent rolls (if there is more than one tenant) and related information and annual
financial statements, which annual financial statements with respect to each
Mortgage Loan with an original principal balance greater than $20 million shall
be audited (or prepared and certified) by an independent certified public
accountant upon the request of the holder of the related Mortgage.
(40) Recourse. Each Mortgage Loan is non-recourse; provided
that, except as described on Schedule B-40, the Mortgagor and either a principal
of the Mortgagor or other individual guarantor, with assets other than any
interest in the Mortgagor, is liable in the event of (i) fraud or material
intentional misrepresentation, (ii) misapplication or misappropriation of rents,
insurance payments, condemnation awards or tenant security deposits (to the
extent received by the related Mortgagor after the occurrence of an event of
default and not paid to the Mortgagee or applied to the Mortgaged Property in
the ordinary course of business), (iii) violation of applicable environmental
laws or breaches of environmental covenants or (iv) the filing of a voluntary
bankruptcy or insolvency proceeding by the Mortgagor; and provided, further,
that, with respect to clause (iii) of the preceding proviso, an indemnification
against losses related to such violations or environmental insurance shall
satisfy such requirement. No waiver of liability for such non-recourse
exceptions has been granted to the Mortgagor or any such guarantor or principal
by the Mortgage Loan Seller or anyone acting on behalf of the Mortgage Loan
Seller.
(41) Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that has not been assigned to the Purchaser.
(42) Fee Simple or Leasehold Interests. The interest of the
related Mortgagor in the Mortgaged Property securing each Mortgage Loan includes
a fee simple and/or leasehold estate or interest in real property and the
improvements thereon.
(43) Servicing. The servicing and collection practices used
with respect to the Mortgage Loan have complied with applicable law and the
servicing standard set forth in Section 3.01(a) of the Pooling and Servicing
Agreement.
(44) Originator's Authorization To Do Business. To the extent
required under applicable law, at all times when it held such Mortgage Loan, the
originator of such Mortgage Loan was authorized to do business in the
jurisdiction in which the related Mortgaged Property is located to the extent
necessary to ensure the enforceability of such Mortgage Loan.
(45) No Fraud In Origination. In the origination of the
Mortgage Loan, none of the Mortgage Loan Seller, the originator, or any employee
or mortgage broker, if any, of the Mortgage Loan Seller or the originator,
engaged in any fraud or intentional material misrepresentation with respect to
the Mortgagor, the Mortgaged Property or any guarantor. To the Mortgage Loan
Seller's actual knowledge, no Mortgagor is guilty of defrauding or making an
intentional material misrepresentation to the Mortgage Loan Seller or originator
with respect to the origination of the Mortgage Loan, the Mortgagor or the
Mortgaged Property.
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(46) Appraisal. In connection with its origination or
acquisition of each Mortgage Loan, the Mortgage Loan Seller obtained an
appraisal of the related Mortgaged Property, which appraisal is signed by an
appraiser, who, to the Mortgage Loan Seller's actual knowledge, had no interest,
direct or indirect, in the Mortgagor, the Mortgaged Property or in any loan made
on the security of the Mortgaged Property, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; the appraisal
provides that it satisfy the requirements of the "Uniform Standards of
Professional Appraisal Practice" as adopted by the Appraisal Standards Board of
the Appraisal Foundation, all as in effect on the date the Mortgage Loan was
originated.
(47) Jurisdiction of Organization. In respect of each Mortgage
Loan, in reliance on certified copies of incorporation or partnership or other
entity documents, as applicable, delivered in connection with the origination of
such Mortgage Loan, the related Mortgagor is an entity organized under the laws
of a state of the United States of America, the District of Columbia or the
Commonwealth of Puerto Rico.
(48) Mortgagor Concentration. Except as otherwise specified on
Schedule B-48, no single Mortgagor, and to Mortgage Loan Seller's knowledge, no
group of affiliated Mortgagors is/are the obligor(s) under any one or more
Mortgage Loans with a Cut-off Date Principal Balance of $50,000,000 or more.
(49) Escrows. All escrow deposits (including capital
improvements and environmental remediation reserves) relating to any Mortgage
Loan that were required to be delivered to the lender under the terms of the
related Mortgage Loan documents, have been received and, to the extent of any
remaining balances of such escrow deposits, are in the possession or under the
control of the Mortgage Loan Seller or its agents (which shall include the
Master Servicer). All such escrow deposits which are required for the
administration and servicing of such Mortgage Loan are conveyed hereunder to the
Purchaser.
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SCHEDULE TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
REP. 12 ENVIRONMENTAL CONDITIONS.
With respect to Loan Nos. 04-15578, 04-15563, 04-15573, and 04-15577, Xxxxxxxx
A&P, Blairstown A&P, North Wildwood Super Fresh and Food Basics Paterson, with
respect to the statement in the representations that states that "The Mortgage
Loan documents for each Mortgage Loan require the related Mortgagor to comply
with all applicable federal, state and local environmental laws and
regulations", so long as the master lease for each loan referred to in this
exception is in effect and no event of default is occurring thereunder, the
terms of the master lease control. The tenant under the master lease is required
to comply with environmental laws. As long as the tenant under the master lease
is in compliance with the terms of the master lease, the borrower is deemed in
compliance.
REP. 14 INSURANCE.
With respect to Loan No. 02-12594, Johnstown Galleria, the business interruption
insurance covers the continued loss of income until such income either returns
to the same level it was at prior to the loss, or the expiration date of six (6)
months from the date that the related property is repaired or replaced and
operations are resumed, which occurs first.
With respect to Loan Nos. 04-15578, 04-15563, 04-15573, and 04-15577, Xxxxxxxx
A&P, Blairstown A&P, North Wildwood Super Fresh and Food Basics Paterson so long
as the master lease for each loan referred to in this exception is in effect the
terms of the master lease control. The master lease does not expressly require:
(i) that the related hazard insurance policy contain appropriate endorsements to
avoid the application of coinsurance and it not permit reduction in insurance
proceeds for depreciation, and (ii) that 15 days' notice be given for
non-payment of premiums.
The mater lease relating to the Xxxxxxxx A&P, Blairstown A&P, North Wildwood
Super Fresh and Food Basics loans requires that the insurer have an insurance
rating of either (i) VIII or better by A.M. Best Company, Inc., or (ii) VIII or
better by A.M. Best Company, Inc. and a rating by S&P of BBB- or better,
provided, however, that Lloyd's of London Companies will be acceptable so long
as it has a rating of not less than A.M. Best Company, Inc. A-:X.
The tenant under the master lease relating to the Xxxxxxxx A&P, Blairstown A&P,
North Wildwood Super Fresh and Food Basics loans is required to maintain
insurance for the property. The tenant may self insure so long as the tenant or
its guarantor has an investment grade rating or better and such self insurance
program does not violate any applicable law.
The tenant under the master lease relating to the Xxxxxxxx A&P, Blairstown A&P,
North Wildwood Super Fresh and Food Basics loans is required to maintain
terrorism insurance for the related property in the maximum amount set forth in
the lease.
With respect to Loan No. 03-15219, 0000 Xxxxxxxx Xxxxxxxxx, the related mortgage
requires the borrower to obtain insurance from one or more domestic primary
insurer(s) having (i) a general policy rating of A or better and a financial
class of VI or better by A.M. Best Company, Inc. (or if a rating of A.M. Best
Company, Inc. is no longer available, a similar rating from a similar or
successor service) and (ii) a claims paying ability rating by a credit rating
agency approved by lender of not less than AA by Standard & Poor's Corp. or such
comparable rating by such other rating agency; provided. Notwithstanding the
foregoing, the lender has approved borrower's current insurance carrier,
Affiliated FM Insurance Company ("Affiliated FM"), provided that borrower agrees
that in the event (i) Affiliated FM is downgraded or (ii) lender is unable to
securitize the loan due to Affiliated FM and/or the rating thereof in place at
the time of the closing of the loan, then borrower shall fully cooperate and
shall, at its sole cost and expense, provide policies issued through a carrier
with the rating requirements set forth in the first sentence of section 3.3(b)
of the related mortgage.
With respect to Loan No. 03-15196, One Xxxxxxxx Center, the related mortgage
requires the borrower to obtain insurance from an insurer with a claims paying
ability of not less than A by S&P or such comparable rating by another rating
agency. Notwithstanding the foregoing, lender has approved the current insurance
policies issued by Donegal Mutual Insurance Company ("Donegal"). Upon renewal of
such policies, however, borrower must ensure that Donegal or a replacement
issuer complies with the requirement of section 3.3(b) of the related mortgage.
REP 18(C). LEASEHOLD ESTATE ONLY.
With respect to Loan Nos. 03-14817, 03-14818, 03-14813, Pacific Medical
Portfolio 2, the Ground Lease is assignable to Lender's successors and assigns
provided they are each an "Institutional Lender" as defined below.
"Institutional Lender" shall mean (i) Xxxxxx Xxxxxxx Mortgage Capital Inc., a
New York corporation and/or (ii) one or more of the following so long as the
same is not a Disqualified Person:
(A) a real estate investment trust, bank, saving and loan association,
investment bank, insurance company, trust company, commercial credit
corporation, pension plan, pension fund, or pension advisory firm, mutual fund,
government entity or plan, provided that any such Person referred to in this
clause (A satisfies the Eligibility Requirements;
(B) an investment company, money management firm or "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, or an institutional "accredited investor" provided that any
such Person referred to in the clause (B) satisfies the satisfies the
Eligibility Requirements;
(C) an institution substantially similar to any of the foregoing
entities described in clauses (ii)(A) or (ii)(B) that satisfies the Eligibility
Requirements;
(D) any entity Controlled by any of the entities described in clause
(i) or clauses (ii)(A), (ii)(B) or (ii)(C) above;
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(E) a Qualified Trustee in connection with a securitization of, the
creation of collateralized debt obligations ("CDO") secured by or financing
through an "owner trust" of, the Loan (collectively, "Securitization Vehicles"),
so long as (A) the special servicer or manager of such Securitization Vehicle
has the Required Special Servicer Rating and (B) the entire "controlling class"
of such Securitization Vehicle, other than with respect to a CDO Securitization
Vehicle, is held by one or more entities that are otherwise Institutional
Lenders under clauses (ii)(A), (B), (C) or (D) of this definition; provided that
the operative documents of the related Securitization Vehicle require that (1)
in the case of a CDO Securitization Vehicle, the "equity interest" in such
Securitization Vehicle is owned by one or more entities that are Institutional
Lenders under clauses (ii)(A), (B), (C) or (D) of this definition and (2) if any
of the relevant trustee, special servicer, manager fails to meet the
requirements of this clause (E), such Person must be replaced by a Person
meeting the requirements of this clause (E) within thirty (30) days; or
(F) an investment fund, limited liability company, limited partnership
or general partnership where a Permitted Fund Manager or an entity that is
otherwise an Institutional Lender under clauses (ii)(A), (B), (C) or (D) of this
definition acts as the general partner, managing member or fund manager and at
least 50% of the equity interests in such investment vehicle are owned, directly
or indirectly, by one or more entities that are otherwise Institutional Lenders
under clauses (ii)(A), (B), (C) or (D) of this definition.
As used in the above definition of "Institutional Lender", the following terms
shall have the following meanings:
(i) "Disqualified Person" shall mean any Person or any Affiliate of a
Person, which directly or indirectly engages in activities within (i) a two mile
radius of the Property and (ii) any additional area that is within the top
postal codes, when sorted in descending order, to which 75% of patients of the
Hospital operated by Landlord or its Affiliates on the Hospital Property are
discharged, that are "directly competitive" with Landlord or the Property.
Activities and/or opportunities relating to the development, construction,
ownership, operation and/or management of medical office buildings or other
related facilities located within the such areas will be considered "directly
competitive" with Landlord's business and the Property.
(ii) "Eligibility Requirements" shall mean, with respect to any Person,
that such Person (i) has total assets (in name or under management) in excess of
$600,000,000 and (except with respect to a pension advisory firm or similar
fiduciary) capital/statutory surplus or shareholder's equity of $250,000,000 and
(ii) is regularly engaged in the business of making or owning commercial real
estate loans or operating commercial mortgage properties.
(iii) "Permitted Fund Manager" shall mean any Person that on the date
of determination is (i) a nationally-recognized manager of investment funds
investing in debt or equity interests relating to commercial real estate, (ii)
investing through a fund with committed capital of at least $250,000,000 and
(iii) not subject to any action or proceeding under any bankruptcy, insolvency,
rehabilitation or other similar proceeding.
(iv) "Qualified Trustee" shall mean (i) a corporation, national bank,
national banking association or a trust company, organized and doing business
under the laws of any state or the
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United States of America, authorized under such laws to exercise corporate trust
powers and to accept the trust conferred, having a combined capital and surplus
of at least $100,000,000 and subject to supervision or examination by federal or
state authority, (ii) an institution insured by the Federal Deposit Insurance
Corporation or (iii) an institution whose long-term senior unsecured debt is
rated either of the then in effect top two rating categories of each of the
Rating Agencies.
(v) "Rating Agencies" each of S&P, Xxxxx'x and Fitch.
(vi) "Required Special Servicer Rating" shall mean (i) a rating of
"CSS1" in the case of Fitch, Inc. ("Fitch"), (ii) on the Standard & Poor's
Ratings Services, a division of the XxXxxx-Xxxx Companies, Inc. ("S&P") list of
approved special servicers in the case of S&P and (iii) in the case of Xxxxx'x
Investors Service, Inc. ("Moody's"), such special servicer is acting as special
servicer in a commercial mortgage loan securitization that was rated by Moody's
within the twelve (12) month period prior to the date of determination, and
Moody's has not downgraded or withdrawn the then-current rating on any class of
commercial mortgage securities or placed any class of commercial mortgage
securities on watch citing the continuation of such special servicer as special
servicer of such commercial mortgage securities.
REP 18(J). LEASEHOLD ESTATE ONLY.
With respect to Loan Nos. 03-14817, 03-14818, 03-14813, Pacific Medical
Portfolio 2, unless otherwise approved by Landlord, the Property must be used
exclusively as a medical office building for the private practice of medicine by
medical, osteopathic and/or podiatric doctors (on the related Catholic
Healthcare West Hospital's (the "Hospital") staff). Neither tenant nor any
subtenant may use the related property for the purpose of providing any services
competitive with those offered at the related Hospital, including, without
limitation, those uses set forth in Exhibit C to the related lease; provided,
however, the foregoing shall not apply to subtenants occupying space within the
related property as of the date of the related lease that are expressly
permitted under the terms of such sublease and such subtenant shall only be
allowed to engage in such competitive services until the expiration of the
current term of such sublease. Notwithstanding the foregoing restrictions, with
landlord's consent, the tenant may use the related property and may allow the
related property to be used for incidental uses (such as a coffee cart and ATM)
consistent with the use of the related property. (Section 7.2)
Tenant shall not allow the related property to be used for the performance of
any medical or surgical procedures, including abortion, euthanasia or in-vitro
fertilization, which contravene with landlord's healthcare policies as expressed
in landlord's Statement of Common Values or Ethical and Religious Directives for
Catholic Healthcare Services (the "Mission Statements"), which are attached to
the lease as Exhibit H.
Notwithstanding anything in the lease to the contrary, no portion of the related
property shall, without Landlord's prior approval, be owned, managed, leased or
operated by a person or entity if such person or entity, or any affiliate of
such person or entity is a Disqualified Person. A "Disqualified Person" as used
herein shall mean any person or entity or any affiliate of a person or entity
which directly or indirectly engages in activities within (i) a two mile radius
of the related property and (ii) any additional area that is within the top
postal codes, when sorted in
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descending order, to which 75% of patients of the Hospital operated by landlord
or landlord's affiliates on the Hospital property are discharged, that are
"directly competitive" with Landlord or the medical office building. Activities
and/or opportunities relating to the development, construction, ownership,
operating and/or management of medical office buildings or other related
facilities located with in such areas will be considered "directly competitive."
Such restrictions do not apply to certain medical office buildings being
developed in various areas as set forth in the lease.
REP 23. OTHER MORTGAGE LIENS.
With respect to Loan No. 02-12594, Johnstown Galleria, a mezzanine loan in the
approximate initial principal amount of $3,000,000 was made by Xxxxxx Xxxxxxx
Mortgage Capital Inc., which assigned the mezzanine loan to RAIT Partnership
L.P. to ZAK Malls LLC. The mezzanine loan is secured by a pledge of the equity
interests in JM Mezz Limited Partnership, the owner of the borrower. The
maturity date of the mezzanine loan is February 1, 2014. Interest accrues on the
outstanding balance of the mezzanine loan at 13%.
With respect to Loan Nos. 04-15578, 04-15563, 04-15573, and 04-15577, Xxxxxxxx
A&P, Blairstown A&P and Food Basics Paterson, a mezzanine loan in the
approximate initial aggregate principal amount of $12,104,756 (a portion of
which in the amount of $10,974,000 is designated as the "A Mezzanine Loan" and a
portion of which in the amount of $1,130,756 is designated as the "B Mezzanine
Loan" and collectively the "Mezzanine Loan") was made by Fortress Credit Corp.
Subject to certain conditions set forth in the mezzanine loan documents, the
mezzanine lender may advance the mezzanine borrower an additional $5,000,000.
The Mezzanine Loan is secured by a pledge of the equity interests in the owner
of the borrower of (i) the Xxxxxxxx A&P, Blairstown A&P and Food Basics Paterson
loans, all of which are in the pool of loans deposited into the Trust Fund, and
(ii) the equity interests of 4 other borrowers of other loans that are not
included in the mortgage pool being deposited into the Trust Fund (the
properties of the other four loans are located in Cape May, NJ; Mahway, NJ;
Massapequa Park, NY; and Whitestone, NY). The mezzanine debt related to the A
Mezzanine Loan that is allocated to the Xxxxxxxx A&P loan, Blairstown A&P loan
and the Food Basics Paterson loan is $1,738,000, $ 1,072,000 and $505,000,
respectively. Interest accrues on the A Mezzanine Loan at 16%. No interest
accrues on the B Mezzanine Loan.
REP 26. LICENSES AND PERMITS.
With respect to Loan Nos. 04-15578, 04-15563, 04-15573, and 04-15577, Xxxxxxxx
A&P, Blairstown A&P, North Wildwood Super Fresh and Food Basics Paterson, so
long as the master lease for each loan referred to in this exception is in
effect and no event of default is occurring thereunder, the terms of the master
lease control. The tenant under the master lease is required to comply with laws
set forth in representation number 26. As long as the tenant under the master
lease is in compliance with the terms of the master lease, the borrower is
deemed in compliance.
REP 28. RELEASES OF MORTGAGED PROPERTIES.
With respect to Loan Nos. 03-14817, 03-14818, 03-14813, Pacific Medical
Portfolio 2, the Mortgage Loan documents for the Mortgage Loan permit a
defeasance of the Mortgage Loan and
-5-
a release of any or all of the individual Mortgaged Properties upon satisfaction
of certain legal and underwriting criteria set forth therein. The Mortgage Loan
documents also provide that, in the event the ground lessor elects to close a
hospital directly affiliated with the applicable Mortgaged Property for a period
of two years, (i) the ground lessor is permitted to partially assume the related
Mortgage Loan in an amount equal to the allocated loan amount for the such
Mortgaged Property, upon satisfaction of certain legal and underwriting criteria
set forth in the related Mortgage Loan documents, or (ii) the Mortgagor may
partially prepay the related Mortgage Loan in an amount equal to the allocated
loan amount for the such Mortgaged Property, with all related penalties and fees
paid by the ground lessor. In either such case of (i) or (ii) above, the
applicable Mortgaged Property will be released from cross-collateralization with
the other Mortgaged Properties at par.
With respect to Loan Nos. 04-15578, 04-15563, 04-15573, and 04-15577, Xxxxxxxx
A&P, Blairstown A&P, North Wildwood Super Fresh and Food Basics Paterson, the
related master lease provides for a right of a rejectable offer in connection
with a Zoning Event of Loss (as defined under the related master lease) by the
related tenant, in which event the related borrower must pay the loan in full or
accept the offer.
REP 32. DUE-ON-SALE.
With respect to Loan Nos. 03-14817, 03-14818, 03-14813, Pacific Medical
Portfolio 2, the related loan agreement permits a partial assumption of a
property by the lessor (Catholic Healthcare West ("CHW")) in connection with in
the event the ground lessor elects to close a hospital directly affiliated with
the applicable Mortgaged Property for a period of two years. CHW is permitted to
assume the portion of the loan equal to the allocated loan amount for the
applicable property, subject to certain conditions set forth in the related loan
agreement.
With respect to Loan 02-12594, Johnstown Galleria, see Rep. 23.
With respect to Loan 04-15578, Xxxxxxxx A&P, see Rep. 23.
With respect to Loan 04-15563, Blairstown A&P, see Rep. 23.
With respect to Loan 04-15577, Food Basics Paterson, see Rep. 23.
REP 39. OPERATING STATEMENTS.
With respect to Loan Nos. 04-15578, 04-15563, 04-15573, and 04-15577, Xxxxxxxx
A&P, Blairstown A&P, North Wildwood Super Fresh and Food Basics Paterson, so
long as the master lease for each loan referred to in this exception is in
effect and no event of default is occurring thereunder, the terms of the master
lease control. The tenant under the related master lease is required to comply
with the reporting requirements of representation number 39 (except that rent
rolls for other tenants not under the master lease are not required to be
provided).
REP 40. RECOURSE.
With respect to Loan No. 04-15578, Xxxxxxxx A&P, there is no guaranty from "a
principal of the Mortgagor or other individual guarantor".
-6-
With respect to Loan No. 04-15563, Blairstown A&P, there is no guaranty from "a
principal of the Mortgagor or other individual guarantor".
With respect to Loan No. 04-15577, Food Basics Paterson, there is no guaranty
from "a principal of the Mortgagor or other individual guarantor".
With respect to Loan Nos. 04-15578, 04-15563, 04-15573, and 04-15577, Xxxxxxxx
A&P, Blairstown A&P, North Wildwood Super Fresh and Food Basics Paterson, the
related borrower will not be personally liable losses the lender incur with
respect to violation of environmental laws due to waste and hazardous waste at
the related property so long as the tenant under the related master lease in in
occupancy of the property and is in compliance with the terms of the master
lease.
With respect to Loan Nos. 03-14817, 03-14818, 03-14813, Pacific Medical
Portfolio 2, there is no guaranty from "a principal of the Mortgagor or other
individual guarantor".
With respect to Loan Nos. 04-15767 and 0415768, Schomac Synott and Schoman
Budget, there is no guaranty from "a principal of the Mortgagor or other
individual guarantor".
-7-
Schedule B-12D
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STATE COUNTIES & SPECIFIC CITIES
--------------------------------------------------------------------------------
Alabama Xxxxxxx and Mobile
--------------------------------------------------------------------------------
Delaware Sussex
--------------------------------------------------------------------------------
Florida Entire State - All Counties
--------------------------------------------------------------------------------
Xxxxxxx Xxxxx, Camden, Chatham, Glynn, Liberty, XxXxxxxx
--------------------------------------------------------------------------------
Hawaii Entire State - All Counties
--------------------------------------------------------------------------------
Louisiana Cameron, Iberia, Jefferson, Lafourche, Orleans,
Plaquemines, St. Xxxxxxx, St. Xxxx, St. Tammany,
Terrebonne, Xxxxxxxxxx
--------------------------------------------------------------------------------
Massachusetts Barnstable, Bristol, Dukes, Nantucket, Plymouth
--------------------------------------------------------------------------------
Maryland Xxxxxxx, Dorchester, Somerset, St. Mary's, Wicomico,
Warchester
--------------------------------------------------------------------------------
Mississippi Hancock, Harrison, Xxxxxxx
--------------------------------------------------------------------------------
North Carolina Xxxxxxxx, Xxxxxx, Brunswick, Camden, Carteret, Choswan,
Currituck, Dare, Hyde, New Hanover, Onslow, Pamlico,
Pasquotank, Xxxxxx, Perquimans, Tyrell, Washington
--------------------------------------------------------------------------------
New Jersey Atlantic, Cape May, Cumberland, Monmouth, Ocean
--------------------------------------------------------------------------------
New York Nassau, Suffolk
--------------------------------------------------------------------------------
Puerto Rico Entire Commonwealth - All Counties
--------------------------------------------------------------------------------
South Carolina Beaufort Berkeley, Charleston, Colleton, Georgetown,
Horry
--------------------------------------------------------------------------------
Texas Aransas, Brazorla, Calhoun, Cameron, Xxxxxxxx,
Galveston, Town of Baytown, Jackson, Jefferson, Kenedyl,
Kleiberg, Matagoda, Nueces, Refugio, San Xxxxxxxx,
Willacy
--------------------------------------------------------------------------------
Virginia Accomack, Chesapeake City, Gloucester, Hampton City,
Isle of Wight, Lancaster, Xxxxxxx Field City, Little
Creek City, Xxxxxxx, Middlesex, Newport News City,
Norfolk City, Northampton, Northumberland, Posquoson
City, Portsmith City, Suffolk City, Virginia Beach City,
York.
--------------------------------------------------------------------------------
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
Certificate of Officer of Xxxxxx Xxxxxxx Mortgage Capital Inc. (the
"Mortgage Loan Seller")
I, _______________________, a __________________ of the Mortgage Loan
Seller, hereby certify as follows:
The Mortgage Loan Seller is a corporation 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
Certificate of Incorporation and By-Laws of the Mortgage Loan 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 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 Mortgage Loan Purchase Agreement, dated as of April 7, 2004 (the
"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 Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
April , 2004.
---
By:
-----------------------------
Name:
Title:
I, _____________________________, _______________________________,
hereby certify that ____________________________ is a duly elected or appointed,
as the case may be, qualified and acting _________________________ of the
Mortgage Loan Seller and that the signature appearing above is his or her
genuine signature.
-2-
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
April , 2004.
---
By:
-----------------------------
Name:
Title:
-3-
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of Xxxxxx Xxxxxxx Mortgage Capital Inc.
In connection with the execution and delivery by Xxxxxx Xxxxxxx
Mortgage Capital Inc. (the "Mortgage Loan Seller") of, and the consummation of
the transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated as of April 7, 2004 (the "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 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 to
be performed or satisfied at or prior to the date hereof.
Certified this day of April, 2004.
---------
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
C-2-1
