MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of May 16, 2003, between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. as
Mortgage Loan Seller (the "Mortgage Loan Seller" or "MSMC") and GMAC Commercial
Mortgage Securities, Inc. as purchaser (the "Purchaser").
The Mortgage Loan Seller desires to sell, assign, transfer and
otherwise convey to the Purchaser, and the Purchaser desires to purchase,
subject to the terms and conditions set forth below, the multifamily and
commercial mortgage loans (the "Mortgage Loans") identified on the schedule
annexed hereto as Exhibit A (the "Mortgage Loan Schedule"). Certain other
multifamily and commercial mortgage loans (the "Other Mortgage Loans") will be
purchased by the Purchaser from (i) GMAC Commercial Mortgage Corporation
("GMACCM"), pursuant to, and for the consideration described in, the Mortgage
Loan Purchase Agreement, dated as of May 16, 2003 (the "GMACCM Mortgage Loan
Purchase Agreement"), between the Purchaser and GMACCM, (ii) ▇▇▇▇▇▇▇ Sachs
Mortgage Company ("GSMC"), pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of May 16, 2003 (the "GSMC
Warehouse Mortgage Loan Purchase Agreement"), between the Purchaser and GSMC,
(iii) GSMC, pursuant to, and for the consideration described in, the Mortgage
Loan Purchase Agreement, dated as of May 16, 2003 (the "GSMC Mortgage Loan
Purchase Agreement"), between the Purchaser and GSMC, (iv) German American
Capital Corporation ("GACC"), pursuant to, and for the consideration described
in, the Mortgage Loan Purchase Agreement, dated as of May 16, 2003 (the "GACC
Warehouse Mortgage Loan Purchase Agreement"), between the Purchaser and GACC and
(v) GACC, pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of May 16, 2003 (the "GACC Mortgage Loan Purchase
Agreement"), between the Purchaser and GACC. The Mortgage Loan Seller, GMACCM,
GSMC and GACC are collectively referred to as the "Mortgage Loan Sellers."
It is expected that the Mortgage Loans will be transferred, together
with the Other Mortgage Loans, to a trust fund (the "Trust Fund") to be formed
by the Purchaser, beneficial ownership of which will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by ▇▇▇▇▇'▇ 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 May 1, 2003 (the "Pooling and Servicing Agreement"), among the
Purchaser as depositor, GMAC Commercial Mortgage Corporation as master servicer
(in such capacity, the "Master Servicer") and special servicer, LaSalle Bank
National Association, as trustee (in such capacity, the "Trustee"), and ABN AMRO
Bank N.V., as fiscal agent. Capitalized terms not otherwise defined herein have
the meanings assigned to them in the Pooling and Servicing Agreement as in
effect on the Closing Date.
The Purchaser intends to sell the Class A-1, Class A-2, Class B, Class
C, Class D and Class E Certificates to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated and Deutsche Bank Securities Inc. (together, the
"Underwriters"), pursuant to an underwriting
agreement dated the date hereof (the "Underwriting Agreement"). The Purchaser
intends to sell the Class X-1, Class X-2, Class A-1A, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N-1, Class N-2, Class O, Class P and
Class Q Certificates to ▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
and Deutsche Bank Securities Inc. (in such capacity, each an "Initial
Purchaser") pursuant to a certificate purchase agreement, dated the date hereof
(the "Certificate Purchase Agreement"). The Purchaser intends to sell the Class
R-I, Class R-II and Class R-III Certificates to a Qualified Institutional Buyer
(in such capacity, an "Initial Purchaser"). The Class X-1, Class X-2, Class
A-1A, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N-1,
Class N-2, Class O, Class P, Class Q, Class R-I, Class R-II and Class R-III
Certificates are collectively referred to as the "Non-Registered Certificates."
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
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The Mortgage Loan Seller agrees to sell, assign, transfer and otherwise
convey to the Purchaser, and the Purchaser agrees to purchase, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on May 29,
2003 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The "Cut-off Date" with respect to any Mortgage Loan is
the Due Date for such Mortgage Loan in May 2003. As of the close of business on
their respective Cut-off Dates (which Cut-off Dates may occur after the Closing
Date), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$149,001,066, subject to a variance of plus or minus 5%. The purchase price for
the Mortgage Loans shall be determined by the parties pursuant to an agreed upon
term sheet.
SECTION 2. Conveyance of Mortgage Loans.
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(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 of such date, including all interest and principal received or
receivable by the Mortgage Loan Seller on or with respect to the Mortgage Loans
after the Cut-off Date for such Mortgage Loan, together with all of the Mortgage
Loan Seller's right, title and interest in and to the proceeds of any related
title, hazard, or other insurance policies and any escrow, reserve or other
comparable accounts related to the Mortgage Loans. The Purchaser shall be
entitled to (and, to the extent received by or on behalf of the Mortgage Loan
Seller, the Mortgage Loan Seller shall deliver or cause to be delivered to or at
the direction of the Purchaser) all scheduled payments of principal and interest
due on the Mortgage Loans after the Cut-off Date for each 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.
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(b) In connection with the Mortgage Loan Seller's assignment pursuant
to subsection (a) above, the Mortgage Loan Seller hereby agrees that, at least
five (5) Business Days before the Closing Date, it shall have delivered to and
deposited with the Trustee, the Mortgage File (as described on Exhibit B hereto)
for each Mortgage Loan so assigned. It is further acknowledged and agreed by the
Mortgage Loan Seller that the Purchaser intends to cause the Trustee to perform
a limited review of such Mortgage Files to enable the Trustee to confirm to the
Purchaser on or before the Closing Date that the Mortgage Note referred to in
clause (1) of Exhibit B has been delivered by the Mortgage Loan Seller with
respect to each such Mortgage File. In the event Mortgage Loan Seller fails to
so deliver each such Mortgage File to the Trustee, the Purchaser and its
successors and assigns shall be entitled to pursue any rights or remedies in
respect of such failure as may be available under applicable law. If the
Mortgage Loan Seller cannot deliver, or cause to be delivered as to any Mortgage
Loan, the original Mortgage Note, the Mortgage Loan Seller shall deliver a copy
or duplicate original of such Mortgage Note, together with an affidavit
certifying that the original thereof has been lost or destroyed. If the Mortgage
Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan,
the original or a copy of any of the documents and/or instruments referred to in
clauses (2), (4), (8), (11), (12) and (20) of Exhibit B, with evidence of
recording or filing thereof, solely because of a delay caused by the public
recording or filing office where such document or instrument has been delivered
for recordation or filing, or because such original recorded document has been
lost or returned from the recording or filing office and subsequently lost, as
the case may be, the delivery requirements of this Section 2(b) shall be deemed
to have been satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that a
photocopy of such missing document or instrument certified by the Mortgage Loan
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Trustee, and
either the original of such missing document or instrument, or a copy thereof,
with evidence of recording or filing, as the case may be, thereon, is delivered
to or at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee) within 180 days of the
Closing Date (or within such longer period after the Closing Date as the
Purchaser (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Mortgage Loan Seller has provided the
Purchaser (or such subsequent owner) with evidence of such recording or filing,
as the case may be, or has certified to the Purchaser (or such subsequent owner)
as to the occurrence of such recording or filing, as the case may be, and is, as
certified to the Purchaser (or such subsequent owner) no less often than
quarterly, in good faith attempting to obtain from the appropriate county
recorder's or filing office such original or copy). If the Mortgage Loan Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, the original
or a copy of the related lender's title insurance policy referred to in clause
(9) of Exhibit B solely because such policy has not yet been issued, the
delivery requirements of this Section 2(b) shall be deemed to be satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that the Mortgage Loan Seller has
delivered to the Trustee a commitment for title insurance "marked-up" at the
closing of such Mortgage Loan, and the Mortgage Loan Seller shall deliver to or
at the direction of the Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee), promptly following the
receipt thereof, the original related lender's title insurance policy (or a copy
thereof). In addition, notwithstanding anything to the contrary contained
herein, if there exists with respect to any
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group of related cross-collateralized Mortgage Loans only one original of any
document referred to in Exhibit B covering all the Mortgage Loans in such group,
then the inclusion of the original of such document in the Mortgage File for any
of the Mortgage Loans in such group shall be deemed an inclusion of such
original in the Mortgage File for each such Mortgage Loan. On the Closing Date,
upon notification from the Mortgage Loan Seller that the purchase price referred
to in Section 1 (exclusive of any applicable holdback for transaction expenses)
has been received by the Mortgage Loan Seller, the Trustee shall be authorized
to release to the Purchaser or its designee all of the Mortgage Files in the
Trustee's possession relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Mortgage Loan Seller, at its own
expense, shall be responsible for (i) the recording or filing, as the case may
be, of each assignment referred to in clauses (3) and (5) of Exhibit B and each
UCC-2 and UCC-3, if any, referred to in clause (11)(B) of Exhibit B and (ii) the
delivery of a copy of any such document or instrument to the Master Servicer
promptly following its return to the Trustee or its designee after such
recording or filing. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Mortgage Loan Seller shall promptly prepare or cause the preparation of a
substitute therefor or cure such defect, as the case may be, and shall
thereafter deliver the substitute or corrected document to or at the direction
of the Purchaser (or any subsequent owner of the affected Mortgage Loan,
including without limitation the Trustee) for recording or filing, as
appropriate, at the Mortgage Loan Seller's expense.
(d) All documents and records in the Mortgage Loan Seller's possession
(or under its control) relating to the Mortgage Loans that are not required to
be a part of a Mortgage File in accordance with Exhibit B (all such other
documents and records as to any Mortgage Loan, including, without limitation,
and if applicable, a copy of the Mortgage Note, a copy of the Mortgage, a copy
of the Security Agreement, property insurance information, property inspections,
financial statements (subject to and in accordance with any applicable
confidentiality agreements), escrow analysis, tax bills, appraisals,
environmental reports, engineering reports, the asset summary, financial
information on the borrower, sponsor and guarantor, a copy of letters of credit
and a copy of environmental insurance policies, the "Servicing File"), together
with all escrow payments, reserve funds and other comparable funds in the
possession of the Mortgage Loan Seller (or under its control) with respect to
the Mortgage Loans, shall (unless they are held by a sub-servicer that shall, as
of the Closing Date, begin acting on behalf of the Master Servicer pursuant to a
written agreement between such parties) be delivered by the Mortgage Loan Seller
(or its agent) to the Purchaser (or its designee) no later than the Closing
Date. If a sub-servicer shall, as of the Closing Date, begin acting on behalf of
the Master Servicer with respect to any Mortgage Loan pursuant to a written
agreement between such parties, the Mortgage Loan Seller shall deliver a copy of
the related Servicing File to the Master Servicer.
(e) 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.
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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.
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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.
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(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 such changes or modifications as may be permitted or required by the
Rating Agencies.
(b) In addition, the Mortgage Loan Seller, as of the date hereof,
hereby represents and warrants to, and covenants with, the Purchaser that:
(i) The Mortgage Loan Seller is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
New York, and is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the Mortgage
Loan Seller, and the performance and compliance with the terms of this
Agreement by the Mortgage Loan Seller, will not violate the Mortgage
Loan Seller's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, in each case which materially and adversely affect
the ability of the Mortgage Loan Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Mortgage Loan Seller has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance
of this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the
Mortgage Loan Seller in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the 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
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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 addition, the Mortgage Loan Seller will not act, nor
has it authorized or will it authorize any person to act, in any manner
set forth in the foregoing sentence with respect to any of the
Certificates or interests therein. For purposes of this paragraph
4(b)(viii), the term "similar security" shall be deemed to include,
without limitation, any security evidencing or, upon issuance, that
would have evidenced an interest in the Mortgage Loans or the Other
Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information
set forth on pages A-16 through A-18, 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.
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Insofar as it relates to the Mortgage Loans, the Mortgaged
Properties related to such 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 2003-C1 Transaction--The Mortgage
Pool," "--Geographic Concentrations of the Mortgaged Properties,"
"--Property Types," "--Prepayment or Call Protection Provided by the
Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk
Factors" and "Description of the Mortgage Pool," set forth on Annex A
and/or Annex B 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. Insofar as it relates to the Oakbrook Center
Whole Loan (as defined in the Prospectus Supplement) and the Mortgaged
Property related thereto 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 2003-C1
Transaction--The Mortgage Pool," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment or Call
Protection Provided by the Mortgage Loans," "--Payment Terms of the
Mortgage Loans," "Risk Factors," "Description of the Mortgage Pool,"
"Servicing of the Mortgage Loans," "The Pooling and Servicing
Agreement," and "Description of the Certificates," set forth on Annex A
and/or Annex B to the Prospectus Supplement and (to the extent it
contains information consistent with that on such Annex A) set forth on
the Diskette, does not contain any untrue statement of a material fact
or (in the case of the Memorandum, when read together with the other
information specified therein as being available for review by
investors) omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(x) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any
bulk sale laws), for the execution, delivery and performance of or
compliance by the Mortgage Loan Seller with this Agreement, or the
consummation by the Mortgage Loan Seller of any transaction
contemplated hereby, other than (1) the filing or recording of
financing statements, instruments of assignment and other similar
documents necessary in connection with Mortgage Loan Seller's sale of
the Mortgage Loans to the Purchaser, (2) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (3) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Mortgage Loan Seller under this Agreement.
(xi) Upon discovery by any of the parties hereto of a breach of any
of the representations and warranties made pursuant to and set forth in
subsection (b) above which materially and adversely affects the
interests of the Purchaser or a breach of any of
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the representations and warranties made pursuant to subsection (a)
above and set forth in Exhibit C which materially and adversely affects
the value of any Mortgage Loan or the interests therein of the
Purchaser or its successors and assigns (including, without limitation
the Trustee and the holders of the Certificates), the party discovering
such breach shall give prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
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(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.
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(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Mortgage Loan Seller, the
Underwriters, the Initial Purchasers and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
transactions contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Mortgage Loan Seller, the party
discovering such breach shall give prompt written notice to the other party
hereto.
SECTION 6. Repurchases.
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(a) Within 90 days of the earlier of discovery or receipt of notice by
the Mortgage Loan Seller, from either the Purchaser or any successor or assign
thereof, of a Defect (as defined in the Pooling and Servicing Agreement as in
effect on the Closing Date) in respect of the Mortgage File for any Mortgage
Loan or a breach of any representation or warranty made pursuant to Section 4(a)
and set forth in Exhibit C (a "Breach"), which Defect or Breach, as the case may
be, materially and adversely affects the value of any Mortgage Loan or any
Mortgaged Property or the interests therein of the Purchaser or its successors
and assigns (including, without limitation, the Trustee and the holders of the
Certificates), the Mortgage Loan Seller shall cure such Defect or Breach, as the
case may be, in all material respects or repurchase the affected Mortgage Loan
from the then owner(s) thereof at the applicable Purchase Price (as defined in
the Pooling and Servicing Agreement as in effect on the Closing Date) by payment
of such Purchase Price by wire transfer of immediately available funds to the
account designated by such owner(s); provided, however, that in lieu of
effecting any such repurchase, the Mortgage Loan Seller will be permitted to
deliver a Qualifying Substitute Mortgage Loan and to pay a cash amount equal to
the applicable Substitution Shortfall Amount, subject to the terms and
conditions of the Pooling and Servicing Agreement as in effect on the Closing
Date; provided, further, that if such Defect relates to clause (18) of Exhibit B
hereto, the Mortgage Loan Seller may deposit with the Master Servicer an amount,
to be held in a Special Reserve Account (as defined in the Pooling and Servicing
Agreement as in effect on the Closing Date), equal to the amount of the
undelivered letter of credit (or alternatively, the Mortgage Loan Seller may
deliver to the Master Servicer, with a copy to the Purchaser or any successor or
assign thereof, a letter of credit for the benefit of the Master Servicer on
behalf of the Purchaser and upon the same terms and conditions as the
undelivered letter of credit) which the Master Servicer on behalf of the
Purchaser may use (or draw upon, as the case may be) under the same
circumstances and
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conditions as the Master Servicer would have been entitled to
draw on the undelivered letter of credit. Any such letter of credit or funds
shall be held by the Master Servicer until the earlier of (i) the date on which
the Master Servicer certifies to the Purchaser or any successor or assign
thereof that such Defect has been cured, at which time such letter of credit or
funds shall be returned to the Mortgage Loan Seller and (ii) the date on which
the Mortgage Loan is repurchased.
If the Mortgage Loan Seller is notified of a Defect in any Mortgage
File that corresponds to information set forth in the Mortgage Loan Schedule,
the Mortgage Loan Seller shall promptly correct such Defect and provide a new,
corrected Mortgage Loan Schedule to the Purchaser, which corrected Mortgage Loan
Schedule shall be deemed to amend and replace the existing Mortgage Loan
Schedule for all purposes.
If any such Breach is not corrected or cured in all material respects
within the applicable Permitted Cure Period, the Mortgage Loan Seller shall, not
later than the last day of such Permitted Cure Period, (i) repurchase the
affected Mortgage Loan from the Purchaser or its assignee at the applicable
Purchase Price or (ii) if within the three-month period commencing on the
Closing Date (or within the two-year period commencing on the Closing Date if
the related Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), at its option, replace such Mortgage Loan with a Qualifying
Substitute Mortgage Loan and pay any corresponding Substitution Shortfall
Amount. The Mortgage Loan Seller agrees that any such repurchase or substitution
shall be completed in accordance with and subject to the terms and conditions of
the Pooling and Servicing Agreement.
For purposes of the preceding paragraph only, the "Permitted Cure
Period" applicable to any Breach in respect of any Mortgage Loan shall be the
90-day period immediately following the earlier of the discovery by the Mortgage
Loan Seller or receipt by the Mortgage Loan Seller of notice of such Breach;
provided, that if such Breach cannot be corrected or cured in all material
respects within such 90-day period, but is reasonably likely that such Breach
could be corrected or cured within 180 days of the earlier of discovery by the
Mortgage Loan Seller and receipt by the Mortgage Loan Seller of notice of such
Breach and the Mortgage Loan Seller is diligently attempting to effect such
correction or cure, then the applicable Permitted Cure Period shall, with the
consent of the Purchaser or its assignee (which consent shall not be
unreasonably withheld), be extended for an additional 90 days, unless (i) the
affected Mortgage Loan is in default and (ii) the applicable Breach constitutes
a Material Document Defect (as defined in the Pooling and Servicing Agreement)
other than a Material Document Defect resulting solely from a delay caused by
the public recording or filing office where a document has been sent for
recording or filing.
(b) Notwithstanding Section 6(a), within 60 days of the earlier of
discovery or receipt of notice by the Mortgage Loan Seller, from either the
Purchaser or any successor or assign thereof, that any Mortgage Loan does not
constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code, the Mortgage Loan Seller shall repurchase such Mortgage Loan from the
then owner(s) thereof at the applicable Purchase Price by payment of such
Purchase Price by wire transfer of immediately available funds to the account
designated by such owner(s).
10
(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 6, the then owner(s) thereof shall tender or
cause to be tendered promptly to the Mortgage Loan Seller, upon delivery of a
receipt executed by the Mortgage Loan Seller, the related Mortgage File and
Servicing File, and each document that constitutes a part of the Mortgage File
that was endorsed or assigned to the Purchaser or the Trustee shall be endorsed
or assigned, as the case may be, to the Mortgage Loan Seller or its designee in
the same manner. The form and sufficiency of all such instruments and
certificates shall be the responsibility of the Mortgage Loan Seller.
(d) Except as provided in Section 2(b), this Section 6 provides the
only remedies available to the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the Certificates)
respecting any Defect in a Mortgage File or any Breach, or in connection with
any circumstances described in Section 6(b). If the Mortgage Loan Seller
defaults on its obligations to repurchase any Mortgage Loan in accordance with
Section 6(a) or 6(b) or disputes its obligation to repurchase any Mortgage Loan
in accordance with either such subsection, the Purchaser or its successors and
assigns may take such action as is appropriate to enforce such payment or
performance, including, without limitation, the institution and prosecution of
appropriate proceedings. The Mortgage Loan Seller shall reimburse the Purchaser
for all necessary and reasonable costs and expenses incurred in connection with
such enforcement.
(e) In the event that (i) any Mortgage Loan that is a
Cross-Collateralized Mortgage Loan (as defined in the Pooling and Servicing
Agreement) is required to be repurchased pursuant to this Section 6 as a result
of a Breach, Defect or other event, and (ii) the cross-collateralization
provisions of the related Cross-Collateralized Mortgage Loans cannot be released
to the extent required by Section 2.03 of the Pooling and Servicing Agreement to
permit repurchase of the affected Mortgage Loan within the time period specified
in this Agreement for such repurchase, the Mortgage Loan Seller shall repurchase
the affected Mortgage Loan and all of the related Cross-Collateralized Mortgage
Loans not so released.
SECTION 7. Closing.
-------
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of 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 reasonably acceptable
to the Purchaser, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
11
(iii) The Mortgage Loan Seller shall have delivered and released to
the Trustee, the Purchaser or the Purchaser's designee, as the case may
be, all documents and funds required to be so delivered pursuant to
Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its sole
determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied
with, and the Mortgage Loan Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(vi) The Mortgage Loan Seller shall have paid or agreed to pay all
fees, costs and expenses payable by it to the Purchaser pursuant to
this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
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 D-1
hereto, executed by the Secretary or an assistant secretary of the Mortgage Loan
Seller, and dated the Closing Date, and upon which the Purchaser and each
Underwriter may rely, attaching thereto as exhibits the organizational documents
of the Mortgage Loan Seller;
(c) A certificate of good standing regarding the Mortgage Loan Seller
from the Secretary of State for the State of New York, dated not earlier than 30
days prior to the Closing Date;
(d) A certificate of the Mortgage Loan Seller substantially in the form
of Exhibit D-2 hereto, executed by an executive officer or authorized signatory
of the Mortgage Loan Seller and dated the Closing Date, and upon which the
Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan Seller, in a form
reasonably acceptable to counsel for the Purchaser and subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Mortgage Loan Seller and acceptable to counsel for the Purchaser, dated the
Closing Date and addressed to the Purchaser and each Underwriter;
12
(f) Any other opinions of counsel for the Mortgage Loan Seller
reasonably requested by the Rating Agencies in connection with the issuance of
the Certificates, each of which shall include the Purchaser and each Underwriter
as an addressee; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9. Indemnification.
---------------
(a) The Mortgage Loan Seller agrees to indemnify and hold harmless the
Purchaser, its officers and directors, and each person, if any, who controls the
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus Supplement, the Memorandum, the Diskette or, insofar as they are
required to be filed as part of the Registration Statement pursuant to the
No-Action Letters, any Computational Materials or ABS Term Sheets with respect
to the Registered Certificates, or in any revision or amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission (in the case of any such Computational Materials or ABS Term Sheets,
when read in conjunction with the Prospectus and, in the case of the Memorandum,
when read together with the other information specified therein as being
available for review by investors) to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; but only if and to the
extent that (i) any such untrue statement or alleged untrue statement is with
respect to information regarding the Mortgage Loans contained in the Loan Detail
or, to the extent consistent therewith, the Diskette or contained in the Term
Sheet Diskette, to the extent consistent with the Term Sheet Master Tape, or
(ii) any such untrue statement or alleged untrue statement or omission or
alleged omission is with respect to information regarding the Mortgage Loan
Seller, the Mortgage Loans or the Mortgaged Properties contained in the
Prospectus Supplement or the Memorandum under the headings "Summary of Series
2003-C1 Transaction--The Mortgage Pool," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection
Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk
Factors" and "Description of the Mortgage Pool," or contained on Annex A and/or
Annex B to the Prospectus Supplement (exclusive of the Loan Detail), and such
information does not represent a restatement or aggregation of information
contained in the Loan Detail; or (iii) any such untrue statement or alleged
untrue statement or omission or alleged omission is with respect to information
regarding the Oakbrook Center Whole Loan (as defined in the Prospectus
Supplement) or the Mortgaged Property related thereto contained in the
Prospectus Supplement or the Memorandum under the headings "Summary of Series
2003-C1 Transaction--The Mortgage Pool," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection
Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk
Factors," "Description of the Mortgage Pool," "Servicing of the Mortgage Loans,"
"The Pooling and Servicing Agreement" and/or "Description of the Certificates"
or contained on Annex A
13
and/or Annex B to the Prospectus Supplement (exclusive of the Loan Detail), and
such information does not represent a restatement or aggregation of information
contained in the Loan Detail; or (iv) 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. 333-100695 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 November 6,
2002, as supplemented by the prospectus supplement dated May 16, 2003 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated May 16, 2003, 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 ▇▇▇▇▇▇, Peabody Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & 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 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 information related thereto contained on the diskette
attached to any ABS Term Sheets or Computational Materials is referred to herein
as the "Term Sheet Diskette" and the tape provided by the 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
14
those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election to assume the defense of such
action and approval by the indemnified party of counsel, which approval will not
be unreasonably withheld, the indemnifying party will not be liable for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the indemnifying
party, representing all the indemnified parties under Section 9(a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue 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.
15
(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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇. Quinn,
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇ or to such other
address or facsimile number as the Mortgage Loan Seller may designate in writing
to the Purchaser.
SECTION 12. Third Party Beneficiaries.
-------------------------
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the 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
16
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.
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
17
manner which would have a material adverse effect on any third party beneficiary
under Section 12 hereof without the prior consent of that person.
18
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.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE
CAPITAL INC.
By: /s/ ▇▇▇▇▇▇ ▇. Friend
---------------------------------
Name: ▇▇▇▇▇▇ ▇. Friend
Title: Vice President
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-1
Exhibit A
Mortgage Loan Schedule
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Loan Number Property Name Address City
===================================================================================================================================
1 Oakbrook Center ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
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Various ARC Portfolio Various Various
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02-12312 ARC Portfolio - Green Spring Valley ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Raleigh
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02-12314 ARC Portfolio - ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇
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02-12311 ARC Portfolio - Inspiration Valley ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Arvada
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▇▇-▇▇▇▇▇ ▇▇▇ Portfolio - Mobile Gardens ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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02-12322 ARC Portfolio - Colonial Gardens ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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02-12295 ARC Portfolio - Sheridan ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Arvada
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02-12324 ARC Portfolio - Castle Acres ▇▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ 50 ▇'▇▇▇▇▇▇
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02-12293 ARC Portfolio - Westmoor 7901 South Council Oklahoma City
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02-12325 ARC Portfolio - Carriage Court East ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Orlando
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02-12326 ARC Portfolio - Carriage Court Central ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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02-12315 ARC Portfolio - El Lago I ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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02-12306 ARC Portfolio - Picture Ranch ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇
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02-12318 ARC Portfolio - Eastern Villa ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Stillwater
-----------------------------------------------------------------------------------------------------------------------------------
02-12305 ARC Portfolio - Riverchase ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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02-12313 ARC Portfolio - Green Cove ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
02-12319 ▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Stillwater
-----------------------------------------------------------------------------------------------------------------------------------
02-12316 ARC Portfolio - El Lago II ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
02-12308 ARC Portfolio - Oakridge (Stonegate) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
02-12317 ARC Portfolio - El ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
02-12323 ARC Portfolio - Cedar Creek 4020 Pulaski Pike Huntsville
-----------------------------------------------------------------------------------------------------------------------------------
02-12294 ARC Portfolio - Sycamore Square ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
02-11111 Clinton, NJ Distribution ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
03-12933 EQR Portfolio - ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Mobile
-----------------------------------------------------------------------------------------------------------------------------------
03-12935 EQR Portfolio - Spring Lake Manor ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Birmingham
-----------------------------------------------------------------------------------------------------------------------------------
03-12934 EQR Portfolio - High River Apartments 1900 Rice Mine Road Tuscaloosa
-----------------------------------------------------------------------------------------------------------------------------------
01-09387 West Broward Shopping Center ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Plantation
-----------------------------------------------------------------------------------------------------------------------------------
A-1
-----------------------------------------------------------------------------------------------------------------------------------
Mortgage Remaining Anticipated
Rate Rate Original Cut-Off Date Term to Maturity Date Repayment
Loan Number State Zip Code (%) Type Balance ($) Balance ($) Maturity (Mos.) or ARD Date
===================================================================================================================================
1 Illinois 60523 5.12000 Fixed 60,000,000 59,572,416 113 10/1/2012
-----------------------------------------------------------------------------------------------------------------------------------
Various Various Various 7.35000 Fixed 47,524,420 47,152,530 108 5/1/2012
-----------------------------------------------------------------------------------------------------------------------------------
02-12312 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 7,276,524 7,219,584
-----------------------------------------------------------------------------------------------------------------------------------
▇▇-▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 4,738,116 4,701,039
-----------------------------------------------------------------------------------------------------------------------------------
02-12311 Colorado 80002 4,547,768 4,512,181
-----------------------------------------------------------------------------------------------------------------------------------
02-12309 Colorado 80221 3,893,147 3,862,682
-----------------------------------------------------------------------------------------------------------------------------------
02-12322 ▇▇▇▇▇▇ ▇▇▇▇▇ 3,773,006 3,743,481
-----------------------------------------------------------------------------------------------------------------------------------
02-12295 Colorado 80002 3,446,835 3,419,863
-----------------------------------------------------------------------------------------------------------------------------------
02-12324 Illinois 62269 2,386,739 2,368,062
-----------------------------------------------------------------------------------------------------------------------------------
02-12293 Oklahoma 73169 2,304,996 2,286,959
-----------------------------------------------------------------------------------------------------------------------------------
02-12325 Florida 32822 2,188,273 2,171,149
-----------------------------------------------------------------------------------------------------------------------------------
02-12326 Florida 32809 2,129,418 2,112,755
-----------------------------------------------------------------------------------------------------------------------------------
▇▇-▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 1,889,721 1,874,934
-----------------------------------------------------------------------------------------------------------------------------------
02-12306 Colorado 81520 1,670,154 1,657,085
-----------------------------------------------------------------------------------------------------------------------------------
02-12318 Oklahoma 74074 1,132,106 1,123,247
-----------------------------------------------------------------------------------------------------------------------------------
02-12305 ▇▇▇▇▇▇ ▇▇▇▇▇ 1,105,020 1,096,373
-----------------------------------------------------------------------------------------------------------------------------------
02-12313 Alabama 35803 1,054,458 1,046,207
-----------------------------------------------------------------------------------------------------------------------------------
02-12319 Oklahoma 74074 1,005,572 997,703
-----------------------------------------------------------------------------------------------------------------------------------
02-12316 Texas 76119 873,018 866,186
-----------------------------------------------------------------------------------------------------------------------------------
02-12308 Oklahoma 74074 851,795 845,130
-----------------------------------------------------------------------------------------------------------------------------------
02-12317 Kansas 67217 747,431 741,582
-----------------------------------------------------------------------------------------------------------------------------------
02-12323 Alabama 35810 387,738 384,704
-----------------------------------------------------------------------------------------------------------------------------------
02-12294 Kansas 67216 122,585 121,626
-----------------------------------------------------------------------------------------------------------------------------------
02-11111 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ 6.45000 Fixed 20,246,776 20,246,776 120 5/1/2013
-----------------------------------------------------------------------------------------------------------------------------------
03-12933 Alabama 36608 5.67000 Fixed 4,250,000 4,235,741 117 2/1/2013
-----------------------------------------------------------------------------------------------------------------------------------
03-12935 Alabama 35212 5.67000 Fixed 3,780,000 3,767,318 117 2/1/2013
-----------------------------------------------------------------------------------------------------------------------------------
03-12934 Alabama 35406 5.67000 Fixed 3,650,000 3,637,754 117 2/1/2013
-----------------------------------------------------------------------------------------------------------------------------------
01-09387 Florida 33311 6.64000 Fixed 10,450,000 10,388,531 113 10/1/2012
-----------------------------------------------------------------------------------------------------------------------------------
A-2
--------------------------------------------------------------------------------------------------------------------------
Date
Payment Monthly ARD Credit Lease
Loan Number Due Payment Loan Loan Prepayment Provision
==========================================================================================================================
1 1 326,507.62 Lockout/30_Defeasance/85_0%/4
--------------------------------------------------------------------------------------------------------------------------
Various 1 327,430.00 Lockout/35_Defeasance/83_0%/1
--------------------------------------------------------------------------------------------------------------------------
02-12312 50,133.21
--------------------------------------------------------------------------------------------------------------------------
02-12314 32,644.30
--------------------------------------------------------------------------------------------------------------------------
02-12311 31,332.85
--------------------------------------------------------------------------------------------------------------------------
02-12309 26,822.70
--------------------------------------------------------------------------------------------------------------------------
02-12322 25,994.96
--------------------------------------------------------------------------------------------------------------------------
02-12295 23,747.73
--------------------------------------------------------------------------------------------------------------------------
02-12324 16,443.97
--------------------------------------------------------------------------------------------------------------------------
02-12293 15,880.78
--------------------------------------------------------------------------------------------------------------------------
02-12325 15,076.59
--------------------------------------------------------------------------------------------------------------------------
02-12326 14,671.10
--------------------------------------------------------------------------------------------------------------------------
02-12315 13,019.65
--------------------------------------------------------------------------------------------------------------------------
02-12306 11,506.90
--------------------------------------------------------------------------------------------------------------------------
02-12318 7,799.89
--------------------------------------------------------------------------------------------------------------------------
02-12305 7,613.28
--------------------------------------------------------------------------------------------------------------------------
02-12313 7,264.92
--------------------------------------------------------------------------------------------------------------------------
02-12319 6,928.11
--------------------------------------------------------------------------------------------------------------------------
02-12316 6,014.85
--------------------------------------------------------------------------------------------------------------------------
02-12308 5,868.63
--------------------------------------------------------------------------------------------------------------------------
02-12317 5,149.59
--------------------------------------------------------------------------------------------------------------------------
02-12323 2,671.41
--------------------------------------------------------------------------------------------------------------------------
02-12294 844.58
--------------------------------------------------------------------------------------------------------------------------
02-11111 1 127,308.36 Lockout/24_Defeasance/92_0%/4
--------------------------------------------------------------------------------------------------------------------------
03-12933 1 24,586.28 Lockout/27_Defeasance/89_0%/4
--------------------------------------------------------------------------------------------------------------------------
03-12935 1 21,867.33 Lockout/27_Defeasance/89_0%/4
--------------------------------------------------------------------------------------------------------------------------
03-12934 1 21,115.28 Lockout/27_Defeasance/89_0%/4
--------------------------------------------------------------------------------------------------------------------------
01-09387 1 67,016.17 Lockout/31_Defeasance/85_0%/4
--------------------------------------------------------------------------------------------------------------------------
A-3
-----------------------------------------------------------------------------------------------------------------------------------
Annual Additional
Cross Collateralized Debt Broker Strip Servicing Environmental Letter of
Loan Number Groups Service ($) Loan Fee Loan Insurance Loan Credit Loan
===================================================================================================================================
1 3,918,091
-----------------------------------------------------------------------------------------------------------------------------------
Various 3,929,160
-----------------------------------------------------------------------------------------------------------------------------------
02-12312 601,599
-----------------------------------------------------------------------------------------------------------------------------------
02-12314 391,732
-----------------------------------------------------------------------------------------------------------------------------------
02-12311 375,994
-----------------------------------------------------------------------------------------------------------------------------------
02-12309 321,872
-----------------------------------------------------------------------------------------------------------------------------------
02-12322 311,940
-----------------------------------------------------------------------------------------------------------------------------------
02-12295 284,973
-----------------------------------------------------------------------------------------------------------------------------------
02-12324 197,328
-----------------------------------------------------------------------------------------------------------------------------------
02-12293 190,569
-----------------------------------------------------------------------------------------------------------------------------------
02-12325 180,919
-----------------------------------------------------------------------------------------------------------------------------------
02-12326 176,053
-----------------------------------------------------------------------------------------------------------------------------------
02-12315 156,236
-----------------------------------------------------------------------------------------------------------------------------------
02-12306 138,083
-----------------------------------------------------------------------------------------------------------------------------------
02-12318 93,599
-----------------------------------------------------------------------------------------------------------------------------------
02-12305 91,359
-----------------------------------------------------------------------------------------------------------------------------------
02-12313 87,179
-----------------------------------------------------------------------------------------------------------------------------------
02-12319 83,137
-----------------------------------------------------------------------------------------------------------------------------------
02-12316 72,178
-----------------------------------------------------------------------------------------------------------------------------------
02-12308 70,424
-----------------------------------------------------------------------------------------------------------------------------------
02-12317 61,795
-----------------------------------------------------------------------------------------------------------------------------------
02-12323 32,057
-----------------------------------------------------------------------------------------------------------------------------------
02-12294 10,135
-----------------------------------------------------------------------------------------------------------------------------------
02-11111 1,527,700
-----------------------------------------------------------------------------------------------------------------------------------
03-12933 Group A 295,035 Yes
-----------------------------------------------------------------------------------------------------------------------------------
03-12935 Group A 262,408 Yes
-----------------------------------------------------------------------------------------------------------------------------------
03-12934 Group A 253,383 Yes
-----------------------------------------------------------------------------------------------------------------------------------
01-09387 804,194 Yes
-----------------------------------------------------------------------------------------------------------------------------------
A-4
-----------------------------------------------------------------------------
Servicing
Loan Number Leasehold Fee Rate (%) Loan Seller
=============================================================================
1 0.03230 MSMC
-----------------------------------------------------------------------------
Various 0.03230 MSMC
-----------------------------------------------------------------------------
02-12312 MSMC
-----------------------------------------------------------------------------
02-12314 MSMC
-----------------------------------------------------------------------------
02-12311 MSMC
-----------------------------------------------------------------------------
02-12309 MSMC
-----------------------------------------------------------------------------
02-12322 MSMC
-----------------------------------------------------------------------------
02-12295 MSMC
-----------------------------------------------------------------------------
02-12324 MSMC
-----------------------------------------------------------------------------
02-12293 MSMC
-----------------------------------------------------------------------------
02-12325 MSMC
-----------------------------------------------------------------------------
02-12326 MSMC
-----------------------------------------------------------------------------
02-12315 MSMC
-----------------------------------------------------------------------------
02-12306 MSMC
-----------------------------------------------------------------------------
02-12318 MSMC
-----------------------------------------------------------------------------
02-12305 MSMC
-----------------------------------------------------------------------------
02-12313 MSMC
-----------------------------------------------------------------------------
02-12319 MSMC
-----------------------------------------------------------------------------
02-12316 MSMC
-----------------------------------------------------------------------------
02-12308 MSMC
-----------------------------------------------------------------------------
02-12317 MSMC
-----------------------------------------------------------------------------
02-12323 MSMC
-----------------------------------------------------------------------------
02-12294 MSMC
-----------------------------------------------------------------------------
02-11111 0.03230 MSMC
-----------------------------------------------------------------------------
03-12933 0.03230 MSMC
-----------------------------------------------------------------------------
03-12935 0.03230 MSMC
-----------------------------------------------------------------------------
03-12934 0.03230 MSMC
-----------------------------------------------------------------------------
01-09387 0.08230 MSMC
-----------------------------------------------------------------------------
A-5
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section
2(b), collectively consists of the following documents:
(1) the original Mortgage Note, endorsed by the most recent
endorsee prior to the Trustee or, if none, by the originator, without recourse,
in blank or to the order of the Trustee in the following form: "Pay to the order
of LaSalle Bank National Association, as trustee for the registered holders of
GMAC Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates,
Series 2003-C1, without recourse";
(2) the original or a copy of the Mortgage and, if applicable,
the originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan to the
most recent assignee of record thereof prior to the Trustee, if any, in each
case with evidence of recording indicated thereon;
(3) the original of the assignment of the Mortgage, in
recordable form, executed by the most recent assignee of record thereof prior to
the Trustee, or if none by the originator, either in blank or in favor of the
Trustee (in such capacity);
(4) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording thereon;
(5) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee, or,
if none, by the originator, either in blank or in favor of the Trustee (in such
capacity), which assignment may be included as part of the corresponding
assignment of Mortgage, referred to in clause (3) above;
(6) an original or a copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any;
(7) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the originator,
either in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage referred to
in clause (3) above;
(8) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon, where
appropriate, in those
B-1
instances where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been modified or the Mortgage Loan has been
assumed;
(9) the original or a copy of the lender's title insurance
policy, together with all endorsements or riders (or copies thereof) that were
issued with or subsequent to the issuance of such policy, insuring the priority
of the Mortgage as a first lien on the Mortgaged Property;
(10) the original or a copy of any guaranty of the obligations
of the Mortgagor under the Mortgage Loan which was in the possession of the
Mortgage Loan Seller at the time the Mortgage Files were delivered to the
Trustee together with (A) if applicable, the original or copies of any
intervening assignments of such guaranty showing a complete chain of assignment
from the originator of the Mortgage Loan to the most recent assignee thereof
prior to the Trustee, if any, and (B) an original assignment of such guaranty
executed by the most recent assignee thereof prior to the Trustee or, if none,
by the originator;
(11) (A) file or certified copies of any UCC financing
statements and continuation statements which were filed in order to perfect (and
maintain the perfection of) any security interest held by the originator of the
Mortgage Loan (and each assignee of record prior to the Trustee) in and to the
personalty of the Mortgagor at the Mortgaged Property (in each case with
evidence of filing thereon) and which were in the possession of the Mortgage
Loan Seller (or its agent) at the time the Mortgage Files were delivered and (B)
if any such security interest is perfected and the earlier UCC financing
statements and continuation statements were in the possession of the Mortgage
Loan Seller, a UCC financing statement executed by the most recent assignee of
record prior to the Trustee or, if none, by the originator, evidencing the
transfer of such security interest, either in blank or in favor of the Trustee;
(12) the original or a copy of the power of attorney (with
evidence of recording thereon, if appropriate) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to above was
not signed by the Mortgagor;
(13) if the Mortgagor has a leasehold interest in the related
Mortgage Loan, the original ground lease or a copy thereof;
(14) if the Mortgage Loan is a Credit Lease Loan, an original of
the credit lease enhancement insurance policy, if any, obtained with respect to
such Mortgage Loan and an original of the residual value insurance policy, if
any, obtained with respect to such Mortgage Loan;
(15) the original or a copy of any lockbox agreement or deposit
account or similar agreement;
(16) the original or a copy of any intercreditor agreement with
respect to the Mortgage Loan;
(17) the original or a copy of any environmental insurance
policy;
(18) the original or a copy (if the original is held by the
Master Servicer) of any letter of credit and any related transfer documents;
B-2
(19) for a hospitality property, copies of franchise agreements,
if any, and franchisor comfort letters, if any;
(20) a checklist of all documents included in the Mortgage File;
and
(21) any additional documents required to be added to the
Mortgage File pursuant to this Agreement; provided, that whenever the term
"Mortgage File" is used to refer to documents actually received by the Purchaser
or the Trustee, such term shall not be deemed to include such documents and
instruments required to be included therein unless they are actually so
received. The original assignments referred to in clauses (3), (5), (7) and
(10)(B), may be in the form of one or more instruments in recordable form in any
applicable filing offices.
B-3
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Mortgage Loan Seller hereby
represents and warrants, as of the date hereinbelow specified or, if no such
date is specified, as of the Closing Date, except as set forth on Schedule C-1
hereto, that:
1) Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of the
date of this Agreement and as of the Cut-off Date.
2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller had
good title to, and was the sole owner of, each Mortgage Loan. The Seller has
full right, power and authority to transfer and assign each of the Mortgage
Loans to or at the direction of the Purchaser and has validly and effectively
conveyed (or caused to be conveyed) to the Purchaser or its designee all of the
Seller's legal and beneficial interest in and to the Mortgage Loans free and
clear of any and all pledges, liens, charges, security interests and/or other
encumbrances. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3) Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-off Date.
4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes 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/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt and (e) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage for
such other Mortgage Loan (the foregoing items (a) through (e) being herein
referred to as the "Permitted Encumbrances"). The related assignment of such
Mortgage executed and delivered in favor of the Trustee is in recordable form
and constitutes a legal, valid and binding assignment, sufficient to convey to
the assignee named therein all of the assignor's right, title and interest in,
to and under such Mortgage. Such Mortgage, together with any separate security
agreements, chattel
C-1
mortgages or equivalent instruments, establishes and creates a valid and,
subject to the exceptions set forth in paragraph 13 below, enforceable security
interest in favor of the holder thereof in all of the related Mortgagor's
personal property used in, and reasonably necessary to operate, the related
Mortgaged Property. In the case of a Mortgaged Property operated as a hotel or
an assisted living facility, the Mortgagor's personal property includes all
personal property that a prudent mortgage lender making a similar Mortgage Loan
would deem reasonably necessary to operate the related Mortgaged Property as it
is currently being operated. A Uniform Commercial Code financing statement has
been filed and/or recorded in all places necessary to perfect a valid security
interest in such personal property, to the extent a security interest may be so
created therein, and such security interest is a first priority security
interest, subject to any prior purchase money security interest in such personal
property and any personal property leases applicable to such personal property.
Notwithstanding the foregoing, no representation is made as to the perfection 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 Uniform
Commercial Code financing statements are required in order to effect such
perfection.
5) Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule C-1 to Exhibit C), nor has any instrument been executed
that would effect any such satisfaction, cancellation, subordination, rescission
or release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Mortgage Note,
Mortgage or Assignment of Leases has been impaired, waived, altered or modified
in any respect, except by written instruments, all of which are included in the
related Mortgage File.
7) Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of an
engineering report within 18 months prior to the Cut-off Date as set forth on
Schedule C-1 to this Exhibit C, each Mortgaged Property is, to the Seller's
knowledge, free and clear of any damage (or adequate reserves therefor have been
established) that would materially and adversely affect its value as security
for the related Mortgage Loan, and (ii) with respect to the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-off Date as set forth on Schedule C-1 to this
Exhibit C, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
C-2
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's title insurance policy referred to herein or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value or
marketability of such Mortgaged Property, except those encroachments that are
insured against by the Title Policy referred to herein.
8) Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) lender's title insurance
policy or a marked-up title insurance commitment (on which the required premium
has been paid) which evidences such title insurance policy (the "Title Policy")
in the original principal amount of the related Mortgage Loan after all advances
of principal. Each Title Policy insures that the related Mortgage is a valid
first priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located.
9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10) Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph 13)
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.
11) Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(i) a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (ii) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or
C-3
any transferee thereof except 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 the related Mortgage
Loan.
12) Environmental Conditions.
------------------------
i) With respect to the Mortgaged Properties securing the
Mortgage Loans that were the subject of an environmental site
assessment within 18 months prior to the Cut-off Date as set forth on
Schedule C-1 to this Exhibit C, an environmental site assessment, or an
update of a previous such report, was performed with respect to each
Mortgaged Property in connection with the origination or the sale of
the related Mortgage Loan, a report of each such assessment (or the
most recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser, and the
Seller has no knowledge of any material and adverse environmental
condition or circumstance affecting any Mortgaged Property that was not
disclosed in such report. Each Mortgage requires the related Mortgagor
to comply with all applicable federal, state and local environmental
laws and regulations. Where such assessment disclosed the existence of
a material and adverse environmental condition or circumstance
affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such condition
was obtained or must be maintained until the condition is remediated or
(iii) the related Mortgagor was required either to provide additional
security that was deemed to be sufficient by the originator in light of
the circumstances and/or to establish an operations and maintenance
plan. In the case of each Mortgage Loan set forth on Schedule C-1 to
this Exhibit C, (i) such Mortgage Loan is the subject of a Secured
Creditor Impaired Property Policy, issued by the issuer set forth on
Schedule C-1 (the "Policy Issuer") and effective as of the date thereof
(the "Environmental Insurance Policy"), (ii) the Environmental
Insurance Policy is in full force and effect, (iii)(a) a property
condition or engineering report was prepared with respect to lead based
paint ("LBP"), asbestos containing materials ("ACM") and radon gas
("RG") at each related Mortgaged Property and (b) if such report
disclosed the existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting the related Mortgaged
Property, the related Mortgagor (A) was required to remediate the
identified condition prior to closing the Mortgage Loan or provide
additional security, or establish with the lender a reserve from loan
proceeds, in an amount deemed to be sufficient by the Seller for the
remediation of the problem and/or (B) agreed in the Mortgage Loan
documents to establish an operations and maintenance plan after the
closing of the Mortgage Loan, (iv) on the effective date of the
Environmental Insurance Policy, Seller as originator had no knowledge
of any material and adverse environmental condition or circumstance
affecting the Mortgaged Property (other than the existence of LBP, ACM
or RG) that was not disclosed to the Policy Issuer in one or more of
the following: (a) the application for insurance, (b) a borrower
questionnaire that was provided to the Policy Issuer or (c) an
engineering or other report provided to the Policy Issuer and (v) the
premium of any Environmental Insurance Policy has been paid through the
maturity of the policy's term and the term of such policy extends at
least five years beyond the maturity of the Mortgage Loan.
C-4
ii) With respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an environmental site
assessment within 18 months prior to the Cut-off Date as set forth on
Schedule C-1 to this Exhibit C, (i) no Hazardous Material is present on
such Mortgaged Property such that (1) the value of such Mortgaged
Property is materially and adversely affected or (2) under applicable
federal, state or local law, (a) such Hazardous Material could be
required to be eliminated at a cost materially and adversely affecting
the value of the Mortgaged Property before such Mortgaged Property
could be altered, renovated, demolished or transferred or (b) the
presence of such Hazardous Material could (upon action by the
appropriate governmental authorities) subject the owner of such
Mortgaged Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting the
value of the Mortgaged Property, and (ii) such Mortgaged Property is in
material compliance with all applicable federal, state and local laws
pertaining to Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse effect on
the value of such Mortgaged Property and neither Seller nor, to
Seller's knowledge, the related Mortgagor or any current tenant
thereon, has received any notice of violation or potential violation of
any such law.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance or material as may be defined as a
hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C.ss.ss.9601
et seq.), the Hazardous Materials Transportation Act as amended (42
U.S.C.ss.ss.6901 et seq.), the Federal Water Pollution Control Act as
amended (33 U.S.C.ss.ss.1251 et seq.), the Clean Air Act (42
U.S.C.ss.ss.1251 et seq.) and any regulations promulgated pursuant
thereto.
13) Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by or on
behalf of the related Mortgagor 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 bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and there is
no valid defense, counterclaim or right of offset or rescission available to the
related Mortgagor with respect to such Mortgage Note, Mortgage or other
agreement.
14) Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of
C-5
the principal balance of the related Mortgage Loan and the replacement cost of
the Mortgaged Property, and contains no provisions for a deduction for
depreciation, and not less than the amount necessary to avoid the operation of
any co-insurance provisions with respect to the Mortgaged Property; (b) a
business interruption or rental loss insurance policy, in an amount at least
equal to six months of operations of the Mortgaged Property; (c) a flood
insurance policy (if any portion of buildings or other structures on the
Mortgaged Property are located in an area identified by the Federal Emergency
Management Agency as having special flood hazards and the Federal Emergency
Management Agency requires flood insurance to be maintained); and (d) a
comprehensive general liability insurance policy in amounts as are generally
required by commercial mortgage lenders, and in any event not less than $1
million per occurrence. Such insurance policy contains a standard mortgagee
clause that names the mortgagee as an additional insured in the case of
liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from such Mortgagor. Each Mortgage provides that casualty insurance
proceeds will be applied (a) to the restoration or repair of the related
Mortgaged Property, (b) to the restoration or repair of the related Mortgaged
Property, with any excess insurance proceeds after restoration or repair being
paid to the Mortgagor, or (c) to the reduction of the principal amount of the
Mortgage Loan.
15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered unpaid until the date on
which interest or penalties would be first 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 or insolvency or similar proceeding.
17) Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest in
the Ground Lease but not by the related fee interest in such Mortgaged Property
(the "Fee Interest"), and as to such Ground Leases:
i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between the Seller and related lessor) does
not prohibit the current use of the Mortgaged Property and does not
prohibit the interest of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan,
C-6
with the exception of material changes reflected in written instruments
that are a part of the related Mortgage File;
ii) 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;
iii) 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 or if such lessor's consent is
required it cannot be unreasonably withheld;
iv) Such Ground Lease is in full force and effect, and the Ground
Lease provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented thereto, and
the Seller has received no notice that an event of default has occurred
thereunder, and, to the Seller's 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;
v) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B) provides
that no notice of termination given under such Ground Lease is
effective against the holder of the Mortgage unless a copy of such
notice has been delivered to such holder and the lessor has offered or
is required to enter into a new lease with such holder on terms that do
not materially vary from the economic terms of the Ground Lease.
vi) A mortgagee 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;
vii) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less than twenty
years beyond the Stated Maturity Date of the related Mortgage Loan;
viii) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease interest
will be applied either (A) to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and disburse
such proceeds as the repair or restoration progresses (except in such
cases where a provision entitling a third party to hold and disburse
such proceeds would not be viewed as commercially unreasonable by a
C-7
prudent commercial mortgage lender), or (B) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon;
ix) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is located;
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 the lessee thereunder for
any reason, or in any manner, which would materially adversely affect
the security provided by the related Mortgage; and
x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is rejected
in a bankruptcy proceeding.
18) Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
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) [Reserved]
21) Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance of
funds from a party other than the owner of the related Mortgaged Property,
directly or indirectly, for the payment of any amount required by such Mortgage
Loan.
22) No Mechanics' Liens. Each Mortgaged 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 no rights are outstanding that under law could
give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
23) Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
24) Cross-collateralization. Except as set forth on Schedule C-1 to
this Exhibit C, no Mortgage Loan is cross-collateralized or cross-defaulted with
any loan other than one or more other Mortgage Loans.
25) Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property that was included in the
appraisal for such Mortgaged Property,
C-8
and/or generates income from the lien of the related Mortgage except upon
payment in full of all amounts due under the related Mortgage Loan or in
connection with the defeasance provisions of the related Note and Mortgage. The
Mortgages relating to those Mortgage Loans identified on Schedule C-1 hereto
require the mortgagee to grant releases of portions of the related Mortgaged
Properties upon (a) the satisfaction of certain legal and underwriting
requirements and/or (b) the payment of a release price and prepayment
consideration in connection therewith. Except as described in the first sentence
hereof and for those Mortgage Loans identified on Schedule C-1 hereto, no
Mortgage Loan permits the full or partial release or substitution of collateral
unless the mortgagee or servicer can require the Borrower to provide an opinion
of tax counsel to the effect that such release or substitution of collateral (a)
would not constitute a "significant modification" of such Mortgage Loan within
the meaning of Treas. Reg. ss.1.1001-3 and (b) would not cause such Mortgage
Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code.
26) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
27) No Material Default. There exists no material Event of Default,
breach, violation or event of acceleration (and, to the Seller's actual
knowledge, no event which, with the passage of time or the giving of notice, or
both, would constitute any of the foregoing) under the documents evidencing or
securing the Mortgage Loan, in any such case to the extent the same materially
and adversely affects the value of the Mortgage Loan and the related Mortgaged
Property; provided, however, that this representation and warranty does not
address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise covered by any
other representation and warranty made by the Seller in any of paragraphs 3, 7,
12, 14, 15, 16 and 17 of this Exhibit C.
28) Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be inspected
each Mortgaged Property in connection with the origination of the related
Mortgage Loan.
29) Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
30) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein.
C-9
The Seller has no knowledge that any of the Mortgaged Properties is encumbered
by any lien junior to the lien of the related Mortgage.
31) Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
32) Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in all
material respects legal, proper and prudent and have met customary industry
standards.
33) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
34) Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to the Seller's knowledge (a) the
related Mortgagor is in compliance in all material respects with all federal and
state laws applicable to the use and operation of the related Mortgaged Property
and (b) if the operator of the Mortgaged Property participates in Medicare or
Medicaid programs, the facility is in compliance in all material respects with
the requirements for participation in such programs.
35) Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to the
Purchaser.
36) Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Mortgagor, is transferred,
sold or encumbered; provided, however, that certain Mortgage Loans provide a
mechanism for the assumption of the loan by a third party upon the Mortgagor's
satisfaction of certain conditions precedent, and upon payment of a transfer
fee, if any, or transfer of interests in the Mortgagor or constituent entities
of the Mortgagor to a third party or parties related to the Mortgagor upon the
Mortgagor's satisfaction of certain conditions precedent.
37) Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any
C-10
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
38) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural person
(and the Mortgagor if the Mortgagor is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
39) Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the payment of
all reasonable costs and expenses of the lender incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the lender associated with the approval of an assumption of such Mortgage
Loan.
40) Defeasance. No Mortgage Loan provides that it can be defeased until
the date that is more than two years after the Closing Date or provides that it
can be defeased with any property other than government securities (as defined
in Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States.
41) Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans.
42) [Reserved]
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 (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
C-11
monitoring practices customarily utilized by prudent commercial or multifamily,
as applicable, mortgage lenders with respect to securitizable commercial or
multifamily, as applicable, mortgage loans, including inquiry with a
representative of the loan servicer designated as the party responsible for the
knowledge of the servicer pertaining to the 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 without any express or implied
obligation to make inquiry. All information contained in the 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, has 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 Mortgage 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, the Mortgage Loan Seller. 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.
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
C-12
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
Exception to Representation 4 - Lien; Valid Assignment:
-----------------------
----------------------------------------------------------------------------------------------------------------------
LOAN # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
01-09387 West Broward Shopping Center A tenant at the related Mortgaged Property, Wendy's, has
an option to purchase its parcel/pad at fair market
value. The option is not effective until after the
maturity of the loan.
----------------------------------------------------------------------------------------------------------------------
Exception to Representation 12- Environmental Conditions:
-------------------------
----------------------------------------------------------------------------------------------------------------------
LOAN # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
01-09387 West Broward Shopping Center An environmental holdback in the amount of $1,875 exists
for closing a groundwater monitoring well.
----------------------------------------------------------------------------------------------------------------------
Exception to Representation 14 - Insurance:
---------
----------------------------------------------------------------------------------------------------------------------
LOAN # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
02-11111 Clinton, NJ Distribution Center Prior to (i) an event of default under the lease with a
tenant at the related Mortgaged Property, KB Toys, Inc.,
(ii) an event of default under the related Mortgage Loan
or (iii) the termination of such lease, the tenant is
required to maintain insurance pursuant to the terms of
its lease. The insurance provisions set forth in such
lease meet the requirements set forth in this
representation. In the event that such lease is
terminated, the related Mortgage Loan documents require
the related mortgagor to maintain similar insurance.
----------------------------------------------------------------------------------------------------------------------
C-1-1
Exception to Representation 24 - Cross-Collateralization:
-----------------------
----------------------------------------------------------------------------------------------------------------------
LOAN # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
03-12933, EQR Portfolio - Country Club ▇▇▇▇▇ The related Mortgage Loans are cross-collateralized and
03-12935 and Apartments, EQR Portfolio cross-defaulted, except that the Mortgage provides that
03-12934 - Spring Lake Manor, EQR the High River Apartments property serves as security for
Portfolio - High River only one hundred and twenty-five percent (125%) of the
Apartments loan amount of its related Mortgage Loan and, the
Mortgages for Spring Lake Manor and Country Club ▇▇▇▇▇
Apartments provide that each related Mortgaged Property serves
as security only for one hundred and fifty percent (150%) of
the loan amount of its related Mortgage Loan, respectively.
So long as each of the related Mortgagors constitutes a
separate borrowing entity and meets all of the single purpose
entity requirements contained in the related Loan Documents,
the related Mortgage Loans shall cease to be
cross-collateralized or cross-defaulted at such time as the
related Mortgaged Properties each individually achieve the
following minimum actual debt service coverage ratios
(determined by the related mortgagee on a trailing 12 month
basis) and maximum loan-to-value ratios (pursuant to an MAI
appraisal): Country Club ▇▇▇▇▇ Apartments, 1.30x/80%, Spring
Lake Manor, 1.45x/70%, High River Apartments 1.35x/75%.
----------------------------------------------------------------------------------------------------------------------
Exception to Representation 25 - Releases of Mortgaged Property:
-------------------------------
----------------------------------------------------------------------------------------------------------------------
LOAN # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
1 Oakbrook Center The related Mortgage Loan permits partial defeasance and
release of a certain parcel of the related Mortgaged
Property from the Lien of the related Mortgage upon the
satisfaction of certain legal and underwriting conditions,
including but not limited to the following: the related
Mortgagor delivers defeasance collateral equal to 125% of
allocated loan amount. The initial allocated loan amount
for the release parcel is $10,000,000.
----------------------------------------------------------------------------------------------------------------------
C-1-2
----------------------------------------------------------------------------------------------------------------------
Various ARC Portfolio The related Mortgage loan , permits partial defeasance and
release of one or more of the related Mortgaged Properties
from the lien of the Mortgage upon the satisfaction of
certain legal and underwriting conditions, including but
not limited to the following: (i) the related Mortgagor
delivers defeasance collateral equal to 125% of the
allocated loan amount of the released property or
properties, (ii) the underwritten debt service coverage
ratio for the remaining collateral is equal to or greater
than the debt service coverage ratio immediately prior to
the release, and (iii) no more than 25% of the collateral
contained in the original asset pool is released.
The related Mortgage Loan further permits the release of
certain non-revenue producing commercial frontage property at
the Mobile Gardens Property upon the satisfaction of certain
legal and underwriting conditions, including but not limited
to the following: the delivery of legal opinions as to zoning,
title endorsements and certificates from architects, engineers
and the borrower.
----------------------------------------------------------------------------------------------------------------------
C-1-3
Exception to Representation 38 - Non-Recourse Exceptions:
-----------------------
----------------------------------------------------------------------------------------------------------------------
LOAN # MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
----------------------------------------------------------------------------------------------------------------------
1, Various, Oakbrook Center, ARC Portfolio, The related Mortgage Loan is not recourse to a natural
02-11111, Clinton, NJ Distribution person, nor is any natural person liable to the related
03-12933, Center, EQR Portfolio - mortgagee for damages arising in the case of fraud or
03-12935 and Country Club ▇▇▇▇▇ Apartments, willful misrepresentation by the related Mortgagor,
03-12934 EQR Portfolio - Spring Lake misappropriation of rents, insurance proceeds or
Manor, EQR Portfolio - High condemnation awards or breaches of the environmental
River Apartments covenants in the related Mortgage Loan documents.
----------------------------------------------------------------------------------------------------------------------
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
Certificate of Officer of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (the
"Mortgage Loan Seller")
I, _______________________, a __________________ of the Mortgage Loan
Seller, hereby certify as follows:
The Mortgage Loan Seller is a corporation duly organized and validly
existing under the laws of the State of New York.
Attached hereto as Exhibit I are true and correct copies of the
Certificate of Incorporation and By-Laws of the Mortgage Loan Seller, which
Certificate of Incorporation and By-Laws are on the date hereof, and have been
at all times in full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation
or dissolution of the Mortgage Loan Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Mortgage Loan Seller and his genuine
signature is set forth opposite his name:
Name Office Signature
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of May 16, 2003 (the
"Purchase Agreement"), between the Mortgage Loan Seller and GMAC Commercial
Mortgage Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Mortgage Loan Seller of the Mortgage Loans, was, at
the respective times of such signing and delivery, duly authorized or appointed
to execute such documents in such capacity, and the signatures of such persons
or facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
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IN WITNESS WHEREOF, the undersigned has executed this certificate as of
May ___, 2003.
By:
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Name:
Title:
I, _____________________________, _______________________________,
hereby certify that ____________________________ is a duly elected or appointed,
as the case may be, qualified and acting _________________________ of the
Mortgage Loan Seller and that the signature appearing above is his or her
genuine signature.
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IN WITNESS WHEREOF, the undersigned has executed this certificate as of
May ____, 2003.
By:
--------------------------------
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
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In connection with the execution and delivery by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc. (the "Mortgage Loan Seller") of, and the consummation of
the transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated as of May 16, 2003 (the "Purchase Agreement"), between GMAC Commercial
Mortgage Securities, Inc. and the Mortgage Loan Seller, the Mortgage Loan Seller
hereby certifies that (i) the representations and warranties of the Mortgage
Loan Seller in the Purchase Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, and (ii) the Mortgage Loan Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the date hereof.
Certified this day of May, 2003.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.
By:
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Name:
Title:
By:
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Name:
Title:
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