EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of June 20, 2002, between GMAC Commercial Mortgage Corporation, as
seller (the "Mortgage Loan Seller"), 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 (collectively, the "Mortgage Loans") identified on the schedule annexed
hereto as Exhibit A (the "Mortgage Loan Schedule"). Certain other multifamily
and commercial mortgage loans will be purchased by the Purchaser from: (i)
German American Capital Corporation ("GACC"), pursuant to, and for the
consideration described in, the Mortgage Loan Purchase Agreement, dated as of
June 20, 2002 (the "GACC Warehouse Mortgage Loan Purchase Agreement"), between
the Purchaser and GACC, (ii) GACC, pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of June 20, 2002,
between the Purchaser and GACC, (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company ("GSMC"),
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of June 20, 2002 (the "GSMC Warehouse Mortgage Loan Purchase
Agreement") between the Purchaser and GSMC, and (iv) GSMC, pursuant to, and for
the consideration described in, the Mortgage Loan Purchase Agreement, dated as
of June 20, 2002, between the Purchaser and GSMC. The mortgage loans purchased
by the Purchaser under the GACC Warehouse Mortgage Loan Purchase Agreement and
the GSMC Warehouse Mortgage Loan Purchase Agreement are referred to herein as
the "Warehouse Mortgage Loans."
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by ▇▇▇▇▇'▇
Investors Service, Inc. and Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ 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 June 1, 2002 (the "Pooling and
Servicing Agreement"), among the Purchaser as depositor, GMAC Commercial
Mortgage Corporation as master servicer and special servicer, LaSalle Bank
National Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V. as
fiscal agent. Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Pooling and Servicing Agreement as in effect on the
Closing Date.
The Purchaser intends to sell the Class A-1, Class A-2, Class A-3, Class B,
Class C, Class D and Class E Certificates to Deutsche Bank Securities Inc. and
▇▇▇▇▇▇▇, Sachs & Co. (together, the "Underwriters"), pursuant to an underwriting
agreement dated the date hereof (the "Underwriting Agreement"). The Purchaser
intends to sell the Class X-1, Class X-2, Class F, Class G and Class H
Certificates to Deutsche Bank Securities Inc. and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (in such
capacity, each an "Initial Purchaser") and the Class J, Class K, Class L, Class
M, Class N,
Class O and Class P Certificates to Deutsche Bank Securities Inc. (in such
capacity, an "Initial Purchaser") pursuant to two certificate purchase
agreements, each dated the date hereof (the "Certificate Purchase Agreements").
The Purchaser intends to sell the Class R-I, Class R-II and Class R-III
Certificates to a Qualified Institutional Buyer (in such capacity, an "Initial
Purchaser"). The Class X-1, Class X-2, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class R-I, Class R-II and Class
R-III Certificates are collectively referred to as the "Non-Registered
Certificates."
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The 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 June 27,
2002 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The "Cut-off Date" with respect to each Mortgage Loan is
the Due Date for such Mortgage Loan in June 2002. As of the close of business on
their respective Cut-off Dates (which Cut-off Dates may occur after the Closing
Date), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$47,840,304.60 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 the 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 each Mortgage Loan
after the Cut-off Date for 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 each Mortgage Loan 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 to the
2
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.
(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 C
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 California,
and is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of
each Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the 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
3
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the Mortgage
Loan Seller in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
the enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
that purport to provide indemnification for securities laws liabilities.
(v) The Mortgage Loan Seller is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Mortgage Loan Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Mortgage Loan Seller to perform its obligations under this Agreement
or the financial condition of the Mortgage Loan Seller.
(vi) No litigation is pending with regard to which 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
4
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 Warehouse Mortgage Loans or any substantial number
thereof.
(ix) Insofar as it relates to the Mortgage Loans and the Warehouse
Mortgage Loans, the information set forth on pages A-10 through A-12,
inclusive, of Annex A to the Prospectus Supplement (as defined in Section
9) (the "Loan Detail") and, to the extent consistent therewith, the
information set forth on the diskette attached to the Prospectus Supplement
and the accompanying prospectus (the "Diskette"), is true and correct in
all material respects. Insofar as it relates to the Mortgage Loans and
Warehouse Mortgage Loans 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
2002-C2 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.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
5
SECTION 5. Representations Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(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.
6
(viii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby, other
than (1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (2)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Mortgage Loan Seller, the party discovering such
breach shall give prompt written notice to the other party hereto.
SECTION 6. 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 Mayer, Brown, ▇▇▇▇ & Maw, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ 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 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;
7
(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 either of the Certificate
Purchase Agreements shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
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 California, 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, 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
8
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus Supplement, the Memorandum, the Diskette or, insofar as they are
required to be filed as part of the Registration Statement pursuant to the
No-Action Letters, any Computational Materials or ABS Term Sheets with respect
to the Registered Certificates, or in any revision or amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission (in the case of any such Computational Materials or ABS Term Sheets,
when read in conjunction with the Prospectus and, in the case of the Memorandum,
when read together with the other information specified therein as being
available for review by investors) to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; but only if and to the
extent that (i) any such untrue statement or alleged untrue statement is with
respect to information regarding the Mortgage Loans or Warehouse 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 Warehouse Mortgage
Loans contained in the Prospectus Supplement or the Memorandum under the
headings "Summary of Series 2002-C2 Transaction - The Mortgage Pool,"
"-Geographic Concentrations of the Mortgaged Properties," "-Property Types,"
"-Prepayment or Call Protection Provided by the Mortgage Loans," "--Payment
Terms of the Mortgage Loans," "Risk Factors" and/or "Description of the Mortgage
Pool" or contained on Annex A to the Prospectus Supplement (exclusive of the
Loan Detail), and such information does not represent a restatement or
aggregation of information contained in the Loan Detail; or (iii) such untrue
statement, alleged untrue statement, omission or alleged omission arises out of
or is based upon a breach of the representations and warranties of the 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.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-60030 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated June 26,
2001, as supplemented by the prospectus supplement dated June 20, 2002 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated June 20, 2002, 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co.
Incorporated, and ▇▇▇▇▇▇ 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 "▇▇▇▇▇▇ Letters";
and "ABS
9
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 ▇▇▇▇▇▇ Letters, the "No-Action Letters"). The mortgage loan information
and related information contained on the diskette attached to any ABS Term
Sheets or Computational Materials is referred to herein as the "Term Sheet
Diskette" and the tape provided by the 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
10
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
indemnified and indemnifying parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by such parties.
(d) The Purchaser and the 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 ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Structured Finance Manager,
facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, 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 GMAC Commercial
Mortgage Corporation, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Structured Finance Manager, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy
to GMAC Commercial Mortgage Corporation, 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.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
LOAN NUMBER PROPERTY NAME ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ Santa ▇▇▇▇ Southside ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
36069 Jacob's Landing ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
34560 Pueblo at ▇▇▇▇▇▇▇▇▇ Shopping Centre ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
35564 Mission Bay Self Storage ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
36169 Rancho Mirage Apartments ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
35756 New Haven Portfolio
35756-1 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Apartments ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
35756-2 ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
35756-3 ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
36167 Southwind Apartments ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
35673 Millburn ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Industrial Building 420-428 ▇▇▇▇▇▇▇▇ Canyon Road City of Industry California 91745
36168 Loma Verde Apartments ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
33494 Shurgard Self Storage ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
36071 Villa Dylano Phase II ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
35538 Shoppes at Palm Way ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
28310 ▇▇▇▇▇▇▇ Gardens Apartments ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MORTGAGE REMAINING ANTICIPATED
RATE RATE ORIGINAL CUT-OFF DATE TERM TO REPAYMENT
LOAN NUMBER (%) TYPE BALANCE ($) BALANCE ($) MATURITY (MOS.) MATURITY DATE DATE
-------------------------------------------------------------------------------------------------------------------------
36206 7.63000 Fixed 8,750,000 8,750,000 120 6/5/12
36069 7.26000 Fixed 5,900,000 5,900,000 120 6/5/12
-------------------------------------------------------------------------------------------------------------------------
34560 7.73000 Fixed 4,730,000 4,727,664 119 5/5/12
35564 7.37000 Fixed 4,400,000 4,400,000 120 6/5/12
36169 7.00000 Fixed 4,100,000 4,100,000 120 6/5/12
35756 7.21000 Fixed 3,300,000 3,300,000 120 6/5/12
▇▇▇▇▇-▇ - - -
▇▇▇▇▇-▇ - - -
▇▇▇▇▇-▇ - - -
▇▇▇▇▇ 7.00000 Fixed 3,000,000 3,000,000 120 6/5/12
-------------------------------------------------------------------------------------------------------------------------
35673 7.22000 Fixed 2,525,000 2,525,000 120 7/1/12
34008 7.93000 Fixed 2,325,000 2,322,337 118 4/5/12
36168 7.00000 Fixed 2,300,000 2,300,000 120 6/5/12
33494 7.69000 Fixed 1,700,000 1,700,000 120 6/5/12
-------------------------------------------------------------------------------------------------------------------------
36071 7.43000 Fixed 1,640,000 1,640,000 120 6/5/12
35538 7.66000 Fixed 1,600,000 1,600,000 120 6/5/12
28310 7.46000 Fixed 1,600,000 1,575,304 106 4/5/11
ADDITIONAL
DATE PAYMENT MONTHLY CREDIT LEASE BROKER STRIP SERVICING
LOAN NUMBER DUE PAYMENT ARD LOAN LOAN PREPAYMENT PROVISION LOAN FEE LOAN
------------------------------------------------------------------------------------------------------------------------------------
36206 5 61,962.05 Lockout/24_Defeasance/92_0%/4
36069 5 40,288.43 Lockout/24_Defeasance/94_0%/2
------------------------------------------------------------------------------------------------------------------------------------
34560 5 33,820.95 Lockout/25_Defeasance/91_0%/4
35564 5 30,664.66 Lockout/24_Defeasance/94_0%/2
36169 5 27,277.40 Lockout/35_> of YM or 1%/81_0%/4
35756 5 23,767.65 Lockout/24_Defeasance/94_0%/2
35756-1 -
35756-2 -
35756-3 -
36167 5 19,959.07 Lockout/35_> of YM or 1%/81_0%/4
------------------------------------------------------------------------------------------------------------------------------------
35673 1 17,173.60 Lockout/23_Defeasance/95_0%/2
34008 5 16,946.71 Lockout/26_Defeasance/92_ 0%/2
36168 5 15,301.96 Lockout/35_> of YM or 1%/81_0%/4
33494 5 12,773.70 Lockout/24_Defeasance/94_0%/2
------------------------------------------------------------------------------------------------------------------------------------
36071 5 11,388.61 Lockout/24_Defeasance/94_0%/2
35538 5 11,990.88 Lockout/24_Defeasance/94_0%/2
28310 5 11,782.26 Lockout/35_Defeasance/83_0%/2
MASTER
CROSS COLLATERALIZED ENVIRONMENTAL LETTER OF SERVICING
LOAN NUMBER LOAN GROUPS INSURANCE LOAN CREDIT LOAN LEASEHOLD FEE RATE (%)
----------------------------------------------------------------------------------------------------------
36206 0.12820
36069 0.12820
----------------------------------------------------------------------------------------------------------
34560 0.12820
35564 0.12820
36169 0.12820
35756 0.12820
35756-1
35756-2
35756-3
36167 0.12820
----------------------------------------------------------------------------------------------------------
35673 0.12820
34008 0.12820
36168 0.12820
33494 0.12820
----------------------------------------------------------------------------------------------------------
36071
35538 Yes 0.12820
28310 0.12820
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
B-1
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, materially
interfere with
B-2
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
(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
B-3
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
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
B-4
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 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
B-5
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 C-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 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
B-6
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 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
B-7
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-14WS, 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, ▇▇▇▇▇'▇ or ▇▇▇▇▇ 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, ▇▇▇▇▇'▇ 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 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
B-8
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 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 __, 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 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
B-9
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:
(a) 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;
(b) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances, and such Ground Lease provides
that it shall remain superior to any mortgage or other lien upon the
related Fee Interest;
(c) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and its successors and assigns upon notice to, but without the
consent of, the lessor thereunder (or, if such consent is required, it has
been obtained prior to the Closing Date); and in the event that it is so
assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of such
lessor;
(d) Such Ground Lease is in full force and effect, and the 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;
(e) 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
B-10
mortgagee under such 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;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(g) 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;
(h) 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;
(i) 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;
(j) 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;
(k) 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
B-11
(l) 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.
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
B-12
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 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 C-28B or (iii) the
delivery of
B-13
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 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,
B-14
transfers among affiliated Mortgagors with respect to cross-collateralized
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,
B-15
dissolution, liquidation or death of the sole member of the Mortgagor and that
the applicable law 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.
B-16
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 38.
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).
B-17
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), or (iii) violation of applicable environmental
laws or breaches of environmental covenants; 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.
B-18
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.
50. Single Asset REMIC. With respect to each of the single asset REMICs,
there has been no amendment, waiver, impairment, alteration, or modification to
any provision of the related REMIC declaration or to any provisions of the
related Mortgage Loan documents since the startup day of the single asset REMIC.
With respect to each of the single asset REMICs, the single asset REMIC has been
administered, the related Mortgage Loan has been serviced, and each provision of
the related REMIC declaration has been complied with in a manner such that the
single asset REMIC has not failed to qualify as a REMIC for federal income tax
purposes at any time since the Startup Day.
B-19
EXCEPTIONS AND REQUIRED SCHEDULES
7. Condition of Property; Condemnation.
------------------------ -------------------------------- ------------------------------------------------------------
Loan No. Property Name Description of Exception
------------------------ -------------------------------- ------------------------------------------------------------
36168 Loma Verde Apartments Mortgagor established a Repair Reserve by depositing
$107,470 (110% of the cost to complete repairs as
estimated in the Engineering Report) at closing.
------------------------ -------------------------------- ------------------------------------------------------------
12. Environmental Conditions - Schedule B-12B
------------------------ -------------------------------- ------------------------------------------------------------
Loan No. Property Name Description of Exception
------------------------ -------------------------------- ------------------------------------------------------------
28310 ▇▇▇▇▇▇▇ Garden Apartments The Environmental Report for this Mortgage Loan is dated
December 5, 2000.
------------------------ -------------------------------- ------------------------------------------------------------
14. Insurance.
------------------------ -------------------------------- ------------------------------------------------------------
Loan No. Property Name Description of Exception
------------------------ -------------------------------- ------------------------------------------------------------
35538 Shoppes at Palm Way Property Carrier is Century Surety rated BBB by S&P and
A-VI by A.M. Best.
------------------------ -------------------------------- ------------------------------------------------------------
35756 New Haven Portfolio Umbrella liability carrier is TIG, rated BBB by S&P.
------------------------ -------------------------------- ------------------------------------------------------------
14. Insurance - Schedule B-14WS
----------------------------------------- ----------------------------------------------------------------------------
STATE COUNTIES & SPECIFIC CITIES
----------------------------------------- ----------------------------------------------------------------------------
Alabama ▇▇▇▇▇▇▇ and Mobile
----------------------------------------- ----------------------------------------------------------------------------
Delaware Sussex
----------------------------------------- ----------------------------------------------------------------------------
Florida Entire State--All Counties
----------------------------------------- ----------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, Camden, Chatham, Glynn, Liberty, ▇▇▇▇▇▇▇▇
----------------------------------------- ----------------------------------------------------------------------------
Hawaii Entire State--All Counties
----------------------------------------- ----------------------------------------------------------------------------
Louisiana Cameron, Iberia, Jefferson, Lafourche, Orleans, Plaquemines, St. ▇▇▇▇▇▇▇,
St. ▇▇▇▇, St. Tammany, Terrebonne, ▇▇▇▇▇▇▇▇▇▇
----------------------------------------- ----------------------------------------------------------------------------
Massachusetts Barnstable, Bristol, Dukes, Nantucket, Plymouth
----------------------------------------- ----------------------------------------------------------------------------
Maryland ▇▇▇▇▇▇▇, Dorchester, Somerset, St. Mary's, Wicomico, Warchester
----------------------------------------- ----------------------------------------------------------------------------
B-20
----------------------------------------- ----------------------------------------------------------------------------
STATE COUNTIES & SPECIFIC CITIES
----------------------------------------- ----------------------------------------------------------------------------
Mississippi Hancock, Harrison, Jackson
----------------------------------------- ----------------------------------------------------------------------------
North Carolina ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Brunswick, Camden, Carteret, Chowan, Currituck, Dare,
Hyde, New Hanover, Onslow, Pamlico, Pasquotank, ▇▇▇▇▇▇, 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, ▇▇▇▇▇▇▇▇, Galveston, Town of Baytown,
Jackson, Jefferson, Kenedy, Kleiberg, Matagoda, Nueces, Refugio, San
▇▇▇▇▇▇▇▇, Willacy
----------------------------------------- ----------------------------------------------------------------------------
Virginia Accomack, Chesapeake City, Gloucester, Hampton City, Isle of Wight,
Lancaster, ▇▇▇▇▇▇▇ Field City, Little Creek City, ▇▇▇▇▇▇▇▇, Middlesex,
Newport News City, Norfolk City, Northampton, Northumberland, Posquoson
City, Portsmith City, Suffolk City, Virginia Beach City, York
----------------------------------------- ----------------------------------------------------------------------------
21. No Equity Interest, Equity Participation or Contingent Interest.
------------------------ -------------------------------- ------------------------------------------------------------
Loan No. Property Name Description of Exception
------------------------ -------------------------------- ------------------------------------------------------------
36069 Jacob's Landing Subordinate debt, held by GMACCM, in the amount of
$300,000 is secured by equity in the Mortgagor.
------------------------ -------------------------------- ------------------------------------------------------------
36071 Villa Dylano Phase II Subordinate debt, held by GMACCM, in the amount of
$100,000 is secured by equity in the Mortgagor.
------------------------ -------------------------------- ------------------------------------------------------------
23. Other Mortgage Liens.
------------------------ -------------------------------- ------------------------------------------------------------
Loan No. Property Name Description of Exception
------------------------ -------------------------------- ------------------------------------------------------------
36069 Jacob's Landing Subordinate debt, held by GMACCM, in the amount of
$300,000 is secured by equity in the Mortgagor.
------------------------ -------------------------------- ------------------------------------------------------------
36071 Villa Dylano Phase II Subordinate debt, held by GMACCM, in the amount of
$300,000 is secured by equity in the Mortgagor.
------------------------ -------------------------------- ------------------------------------------------------------
B-21
28. Releases of Mortgaged Properties - Schedules B-28A, B-28B and B-28C
------------- ----------------- ---------------------------------------- ---------------------- ----------------------
Loan No. Property Name Parcel Allocated Loan Amount Adjusted Release
Price
------------- ----------------- ---------------------------------------- ---------------------- ----------------------
35756 New Haven ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $2,511,628 $3,139,535
Portfolio New Haven, Connecticut
------------- ----------------- ---------------------------------------- ---------------------- ----------------------
35756 New Haven ▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $446,512 $558,140
Portfolio New Haven, Connecticut
------------- ----------------- ---------------------------------------- ---------------------- ----------------------
35756 New Haven ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ $341,860 $427,325
Portfolio New Haven, Connecticut
------------- ----------------- ---------------------------------------- ---------------------- ----------------------
B-22
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
GMAC COMMERCIAL MORTGAGE CORPORATION
CERTIFICATE OF SECRETARY
I, the undersigned [Assistant] Secretary of GMAC COMMERCIAL MORTGAGE
CORPORATION (the "COMPANY" or "MORTGAGE LOAN SELLER"), hereby certify as
follows:
1. I am a duly elected, qualified and acting [Assistant] Secretary of the
Company.
2. The Company is a corporation organized under the laws of the State of
California. A true and correct copy of the Certificate of Good Standing for the
Company issued by the Secretary of State for the State of California is attached
hereto as Exhibit I.
3. Also attached hereto as Exhibit I are true, correct and complete copies
of the Company's Certificate of Incorporation and Bylaws, as amended through the
date hereof.
4. Attached hereto as Exhibit II is a copy of certain resolutions of the
Company which have been duly adopted by the Company and which remain in full
force and effect as of the date hereof and have not been amended, rescinded or
impaired in any way.
5. To the best of my knowledge, no proceedings looking toward liquidation
or dissolution of the Mortgage Loan Seller are pending or contemplated.
6. Each person listed below currently holds the title set forth opposite
his or her name and the signature of each such person (whether applied manually,
by facsimile or as an electronic signature) appearing below, opposite his or her
name, is his or her genuine signature:
NAME TITLE SIGNATURE
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
7. Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of June 20, 2002 (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
C-1-1
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, I have executed this Certificate as of this 27th day of
June 2002.
-------------------------------
[Name], [Assistant] Secretary
C-1-2
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of GMAC Commercial Mortgage Corporation
In connection with the execution and delivery by GMAC Commercial Mortgage
Corporation (the "Mortgage Loan Seller") of, and the consummation of the
transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated as of June 20, 2002 (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. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.
Certified this 27th day of June 2002.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:_________________________________
Name:
Title:
C-2-1