EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and effective as of August 2, 2004, between GMAC Commercial Mortgage
Corporation, as seller (the "Mortgage Loan Seller" or "GMACCM"), 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 (each, a "Mortgage Loan" and collectively, the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule"). Certain other multifamily and commercial mortgage
loans (the "Other Mortgage Loans") will be purchased by the Purchaser from (i)
German American Capital Corporation ("GACC"), pursuant to, and for the
consideration described in, the Mortgage Loan Purchase Agreement, dated as of
August 2, 2004, between the Purchaser and GACC and (ii) Xxxxxx Xxxxxxx Mortgage
Capital, Inc. ("MSMC"), pursuant to, and for the consideration described in, the
Mortgage Loan Purchase Agreement, dated as of August 2, 2004 between the
Purchaser and MSMC. The Mortgage Loan Seller, GACC and MSMC are collectively
referred to as the "Mortgage Loan Sellers."
It is expected that the Mortgage Loans will be transferred,
together with the Other Mortgage Loans, to a trust fund (the "Trust Fund") to be
formed by the Purchaser, beneficial ownership of which will be evidenced by a
series of mortgage pass-through certificates (the "Certificates"). Certain
classes of the Certificates will be rated by Xxxxx'x Investors Service, Inc. and
Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. (together, the "Rating Agencies"). Certain classes of the Certificates (the
"Registered Certificates") will be registered under the Securities Act of 1933,
as amended (the "Securities Act"). The Trust Fund will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of August 1, 2004 (the "Pooling and Servicing Agreement"), among the
Purchaser, as depositor, GMAC Commercial Mortgage Corporation, as master
servicer (in such capacity, the "Master Servicer") and serviced whole loan
paying agent, Midland Loan Services, Inc., as special servicer (in such
capacity, the "Special Servicer"), LaSalle Bank National Association, as trustee
(the "Trustee") and ABN AMRO 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-1A, Class
A-2, Class A-3, Class A-4, Class B, Class C, Class D and Class E Certificates to
Deutsche Bank Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse
First Boston LLC, GMAC Commercial Holding Capital Markets Corp. and Greenwich
Capital Markets, Inc. (together, the "Underwriters"), pursuant to an
underwriting agreement dated the date hereof (the "Underwriting Agreement"). The
Purchaser intends to sell the Class X-1, Class X-2, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P and Class Q
Certificates to Deutsche Bank Securities Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated (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 F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, 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.
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
August 12, 2004 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The "Cut-off Date" with respect to any
Mortgage Loan is the Due Date for such Mortgage Loan in August 2004. As of the
close of business on their respective Cut-off Dates (which Cut-off Dates may
occur after the Closing Date), the Mortgage Loans will have an aggregate
principal balance (the "Aggregate Cut-off Date Balance"), after application of
all payments of principal due thereon on or before such date, whether or not
received, of $474, 813,103 subject to a variance of plus or minus 5%. The
purchase price for the Mortgage Loans shall be determined by the parties
pursuant to an agreed upon term sheet.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the
Mortgage Loan Seller of the purchase price referred to in Section 1 hereof
(exclusive of any applicable holdback for transaction expenses), the Mortgage
Loan Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, without recourse, all the right, title and interest of the
Mortgage Loan Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including all interest and principal received or
receivable by the Mortgage Loan Seller on or with respect to the Mortgage Loans
after the Cut-off Date for each such Mortgage Loan, together with all of the
Mortgage Loan Seller's right, title and interest in and to the proceeds of any
related title, hazard or other insurance policies and any escrow, reserve or
other comparable accounts related to the Mortgage Loans. The Purchaser shall be
entitled to (and, to the extent received by or on behalf of the Mortgage Loan
Seller, the Mortgage Loan Seller shall deliver or cause to be delivered to or at
the direction of the Purchaser) all scheduled payments of principal and interest
due on the Mortgage Loans after the Cut-off Date for such Mortgage Loan, and all
other recoveries of principal and interest collected thereon after such Cut-off
Date. All scheduled payments of principal and interest due thereon on or before
the Cut-off Date for each Mortgage Loan and collected after such Cut-off Date
shall belong to the Mortgage Loan Seller.
(b) In connection with the Mortgage Loan Seller's assignment pursuant
to subsection (a) above, the Mortgage Loan Seller acknowledges that the
Depositor has directed the Mortgage Loan Seller, and the Mortgage Loan Seller
hereby agrees, to deliver the Mortgage File (as such term is defined in the
Pooling and Servicing Agreement) to the Trustee, and otherwise
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comply with the requirements of Sections 2.01(b), 2.01(c) and 2.01(d) of the
Pooling and Servicing Agreement, provided that whenever the term Mortgage File
is used to refer to documents actually received by the Purchaser or the Trustee,
such term shall not be deemed to include such documents and instruments required
to be included therein unless they are actually so received.
(c) The Mortgage Loan Seller's records will reflect the transfer of the
Mortgage Loans to the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Mortgage Loan Seller shall reasonably cooperate with any
examination of the Mortgage Files and Servicing Files that may be undertaken by
or on behalf of the Purchaser. The fact that the Purchaser has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
and/or Servicing Files shall not affect the Purchaser's right to pursue any
remedy available in equity or at law for a breach of the Mortgage Loan Seller's
representations, warranties and covenants set forth in or contemplated by
Section 4.
SECTION 4. Representations, Warranties and Covenants of the Mortgage
Loan Seller.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date (or
as of such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser and its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit B
with respect to the Mortgage Loans, with such changes or modifications as may be
permitted or required by the Rating Agencies.
(b) In addition, the Mortgage Loan Seller, as of the date hereof,
hereby represents and warrants to, and covenants with, the Purchaser that:
(i) The Mortgage Loan Seller is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
California, and is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and to perform its obligations
under this Agreement.
(ii) The execution and delivery of this Agreement by the Mortgage
Loan Seller, and the performance and compliance with the terms of this
Agreement by the Mortgage Loan Seller, will not violate the Mortgage
Loan Seller's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, in each case which materially and adversely affect
the ability of the Mortgage Loan Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Mortgage Loan Seller has the full power and authority to
enter into and consummate all transactions contemplated by this
Agreement, has duly authorized
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the execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the
Mortgage Loan Seller in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally,
(B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law, and (C)
public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of this Agreement that purport to provide
indemnification for securities laws liabilities.
(v) The Mortgage Loan Seller is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this Agreement will not constitute a
violation of, any law, any order or decree of any court or arbiter or
any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Mortgage
Loan Seller's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Mortgage Loan Seller
to perform its obligations under this Agreement or the financial
condition of the Mortgage Loan Seller.
(vi) No litigation is pending with regard to which the Mortgage
Loan Seller has received service of process or, to the best of the
Mortgage Loan Seller's knowledge, threatened against the Mortgage Loan
Seller the outcome of which, in the Mortgage Loan Seller's good faith
and reasonable judgment, could reasonably be expected to prohibit the
Mortgage Loan Seller from entering into this Agreement or materially
and adversely affect the ability of the Mortgage Loan Seller to perform
its obligations under this Agreement.
(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
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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 and the Mortgaged
Properties related to such Mortgage Loans, the information set forth on
the pages between pages A-1-11 and A-1-12 of Annex A-1 to the
Prospectus Supplement (as defined in Section 9) (the "Loan Detail")
and, to the extent consistent therewith, the information set forth on
the diskette attached to the Prospectus Supplement and the accompanying
prospectus (the "Diskette"), is true and correct in all material
respects. Insofar as it relates to (w) the Mortgage Loan Seller, (x)
the Mortgage Loans, the Two Gateway Center Whole Loan and the
Providence Biltmore Hotel Whole Loan (as defined in the Prospectus
Supplement) or the Mortgaged Properties related thereto or (y) any
intercreditor agreement relating to the Two Gateway Center Whole Loan
and the Providence Biltmore Hotel Whole Loan or (z) the GMACCM 2004-C1
Pooling and Servicing Agreement (as defined in the Prospectus
Supplement) 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) and
or set forth on Annex A-1 or Annex B to the Prospectus Supplement and
(to the extent it contains information consistent with that on such
Annex A-1) set forth on the Diskette, does not contain any untrue
statement of material fact or (in the case of the Memorandum, when read
together with the other information specified therein as being
available for review by investors) omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration
or filing with or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any
bulk sale laws), for the execution, delivery and performance of or
compliance by the Mortgage Loan Seller with this Agreement, or the
consummation by the Mortgage Loan Seller of any transaction
contemplated hereby, other than (1) the filing or recording of
financing statements, instruments of assignment and other similar
documents necessary in connection with Mortgage Loan Seller's sale of
the Mortgage Loans to the Purchaser, (2) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (3) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Mortgage Loan Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties made pursuant to and set forth in subsection
(b) above which materially and adversely affects the interests of the Purchaser
or a breach of any of the
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representations and warranties made pursuant to subsection (a) above and set
forth in Exhibit B, which materially and adversely affects the value of any
Mortgage Loan or the interests therein of the Purchaser or its successors and
assigns (including, without limitation the Trustee and the holders of the
Certificates), the party discovering such breach shall give prompt written
notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(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.
The Mortgage Loan Seller hereby agrees to comply with Sections
2.02 and 2.03 of the Pooling and Servicing Agreement, including, but not limited
to, any obligation to repurchase or substitute Mortgage Loans in respect of any
Material Breach or Material Document Defect.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Mayer, Brown, Xxxx & Maw LLP, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(i) All of the representations and warranties of the Mortgage Loan
Seller specified herein shall be true and correct as of the Closing
Date, and the Aggregate Cut-off Date Balance shall be within the range
permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and reasonably acceptable
to the Purchaser, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released
to the Trustee, the Purchaser or the Purchaser's designee, as the case
may be, all documents and funds required to be so delivered pursuant to
Section 2;
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(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
C-1 hereto, executed by the Secretary or an assistant secretary of the
Mortgage Loan Seller, and dated the Closing Date, and upon which the
Purchaser and each Underwriter may rely, attaching thereto as exhibits
the organizational documents of the Mortgage Loan Seller;
(c) A certificate of good standing regarding the Mortgage Loan
Seller from the Secretary of State for the State of California, dated
not earlier than 30 days prior to the Closing Date;
(d) A certificate of the Mortgage Loan Seller substantially in the
form of Exhibit C-2 hereto, executed by an executive officer or
authorized signatory of the Mortgage Loan Seller and dated the Closing
Date, and upon which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan Seller, in a
form reasonably acceptable to counsel for the Purchaser 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;
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(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, any Asset Summary (as
defined hereinafter), 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, ABS Term Sheets or any Asset Summary, 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 (w) the Mortgage Loan
Seller or (x) the Mortgage Loans, the Two Gateway Center Whole Loan, the
Providence Biltmore Hotel Whole Loan or any or all of the Mortgaged Properties
related thereto contained in the Prospectus Supplement or the Memorandum, or
Annex A-1 and/or Annex B to the Prospectus Supplement (exclusive of the Loan
Detail), and such information represents 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 (w) the Mortgage Loan Seller, (x) the Mortgage Loans, the
Two Gateway Center Whole Loan, the Providence Biltmore Hotel Whole Loan or any
or all of the Mortgaged Properties related thereto or (y) any intercreditor
agreement relating to the Two Gateway Center Whole Loan and the Providence
Biltmore Hotel Whole Loan or (z) the GMACCM 2004-C1 Pooling and Servicing
Agreement contained in the Prospectus Supplement or the Memorandum, or Annex A-1
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; (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
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forth in or made pursuant to Section 4; or (v) any untrue statement or alleged
untrue statement arises out of or is with respect to any Asset Summary and such
untrue statement or alleged untrue statement does not relate to information from
a Third Party Report, except to the extent that any such information provided in
reliance upon a Third Party Report is misstated in such Asset Summary; provided,
that the indemnification provided by this Section 9 shall not apply to the
extent that such untrue statement of a material fact or omission of a material
fact necessary to make the statements made, in light of the circumstances in
which they were made, not misleading, was made as a result of an error in the
manipulation of, or calculations based upon, the Loan Detail. This indemnity
agreement will be in addition to any liability which the Mortgage Loan Seller
may otherwise have.
"Registration Statement" shall mean the registration statement No.
333-115244 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 May 26, 2004, as supplemented by the prospectus
supplement dated August 2, 2004 (the "Prospectus Supplement"), relating to the
Registered Certificates; "Memorandum" shall mean the private placement
memorandum dated August 2, 2004, relating to the Non-Registered Certificates;
"Computational Materials" shall have the meaning assigned thereto in the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to Xxxxxx,
Xxxxxxx Acceptance, Corporation I, Xxxxxx, Peabody & Co. Incorporated and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters"); and "ABS Term Sheets"
shall have the meaning assigned thereto in the no-action letter dated February
17, 1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the Xxxxxx
Letters, the "No-Action Letters"). The mortgage loan information and information
related thereto contained on the diskette attached to any ABS Term Sheets or
Computational Materials is referred to herein as the "Term Sheet Diskette" and
the tape provided by the 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. As used herein "Asset Summary" shall mean any
summary of features of such Mortgage Loan and the related Mortgaged Property
prepared by or on behalf of the Mortgage Loan Seller that were delivered to any
investor of the Private Certificates; "Third Party Report" shall mean
appraisals, market studies, environmental, accounting, engineering and other
reports, studies or surveys concerning any of the Mortgage Loans or related
Mortgaged Properties.
(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
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assume the defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election to assume the
defense of such action and approval by the indemnified party of counsel, which
approval will not be unreasonably withheld, the indemnifying party will not be
liable for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof, unless: (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Purchaser and the
indemnifying party, representing all the indemnified parties under Section 9(a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party; and
except that, if clause (i) or (iii) is applicable, such liability shall only be
in respect of the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue 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
11
payment shall promptly refund the amount so paid to the party which made such
payment. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section
9 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be
borne by the respective parties hereto.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at
000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance
Manager, facsimile no. (000) 000-0000, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter be furnished to the Mortgage Loan Seller in writing by the
Purchaser; and if to the Mortgage Loan Seller, addressed to GMAC Commercial
Mortgage Corporation, at 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000,
Attention: Structured Finance Manager, facsimile no. (000) 000-0000, with a copy
to GMAC Commercial Mortgage Corporation, or to such other address or facsimile
number as the Mortgage Loan Seller may designate in writing to the Purchaser.
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.
12
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or which is held to be void or unenforceable
shall be ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law, which prohibits or renders void
or unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 17. Further Assurances.
The Mortgage Loan Seller and the Purchaser agree to execute
and deliver such instruments and take such further actions as the other party
may, from time to time, reasonably request in order to effectuate the purposes
and to carry out the terms of this Agreement.
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
13
Purchaser and their permitted successors and assigns and the indemnified parties
referred to in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived,
modified or in any way altered, unless such amendment, waiver, modification or
alteration is in writing and signed by a duly authorized officer of the party
against whom such amendment, waiver, modification or alteration is sought to be
enforced. In addition, this Agreement may not be changed in any manner, which
would have a material adverse effect on any third party beneficiary under
Section 12 hereof without the prior consent of that person.
14
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser
have caused their names to be signed hereto by their respective duly authorized
officers as of the date first above written.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CONTROL LOAN LOAN LOAN
NUMBER GROUP NUMBER ORIGINATOR PROPERTY NAME ADDRESS
---------------------------------------------------------------------------------------------------------------------
1 1 44570 GMACCM Parmatown Shopping Center 0000 Xxxx Xxxxxxxxx Xxxxx
2 1 45530 GMACCM Two Gateway Center 000-000 Xxxxxx Xxxxxx
3 1 42258 GMACCM Janss Marketplace 000-000 Xxxxx Xxxxxxxx Xxxx
4 1 44889 GMACCM Utopia Plaza 000-00 Xxxxx Xxxxxxxx
5 1 43911 GMACCM Providence Biltmore Hotel 00 Xxxxxxxx Xxxxxx
6 1 40915 GMACCM PGA Plaza Shopping Center 0000-0000 XXX Xxxx
7 2 45371 GMACCM Turnbury Park Apartments 00000 Xxxxxxxxx Xxxx
8 1 44183 GMACCM Shoppes at St. Lucie West 0000 Xx. Xxxxx Xxxx Xxxxxxxxx
9 1 44514 GMACCM Springhill Xxxxxx-Xxx Xxxxxxx 000 Xx. Xxxxxx Xxxxxx
10 1 44433 GMACCM Xxxxxxxx Xxxxxx Xxxxxxxx 00000 Xxxxx 00xx Xxxxx
11 2 45342 GMACCM Stonewood Apartments 701 X. X. Xxxxxx Boulevard
12 1 45914 GMACCM Springhill Suites- Willow Grove 0000 Xxxxxxxx Xxxx
13 1 45428 GMACCM Greenbrier MHP 21301-21425 Xxxxxxx Canyon Road
14 1 44695 GMACCM Diamondhead Building 000 Xxxxxxxxx Xxxxxx
15 1 45427 GMACCM Xxxxxxx Mobile Home Park 00000 Xxxxxx Xxxxxxx
16 1 44449 GMACCM Woodbridge Jewelry Exchange 0 Xxxxxxxxxx Xxxxxx Xxxxx
17 1 40023 GMACCM Xxxxxx Xxxx Xxxxxxx Xxxxxx 000-000 Xxx Xxxx Road
18 1 44450 GMACCM 000 Xxxxx Xxxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxxx
19 1 45067 GMACCM Courtyard South Beach 0000 Xxxxxxxxxx Xxxxxx
20 1 44674 GMACCM Valley Fair Shopping Center 0-000 Xxxx Xxxxxxxx Xxxxxx
21 1 44513 GMACCM Xxxxxxxx Xxxxxxx 000 Xxxxxx Xxxx
22 1 44233 GMACCM Nanuet Shopping Center 000-000 Xxxx Xxxxx 00
23 2 44875 GMACCM Xxx Xxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxxxx Xxxx
24 1 45230 XXXXXX Xxxxxxxxx - Xxxxxxxxxxx 0000 Xxxxxxx Xxxxx Road
25 1 44821 XXXXXX Xxxx Xxxxx Xxxxxx 0000 Xxxxx Xxxxxxx Xxxx
26 1 45580 GMACCM Cove Terrace Shopping Center 00-000 Xxxx X.X. Xxxxxxx 000
27 1 45308 GMACCM 00000 Xxxxxxxxx Xxxxxxx 00000 Xxxxxxxxx Xxxxxxx
28 1 45322 GMACCM West Glendale Self Storage 0000 X. Xxx Xxxxxx Xxxxxx
29 2 45537 GMACCM Chateau Calistoga Mobile Home Park 223 Champagne West
30 1 45165 GMACCM Central and Xxxxxx Retail 0000-0000 Xxxxx Xxxxxxx Xxxxxx
31 1 44366 GMACCM Silverado Self Storage 0000 Xxx Xxxxxx Xxxxxxxxx
32 1 42701 GMACCM Corporate Park at Xxxxxxx 00000 XX 000xx Xxxxxx
33 1 44461 GMACCM Century Plaza 0000-0000 Xxxxxxxxx Xxxx
34 1 44284 GMACCM Xxxxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxxxxx Xxxx
35 2 44511 GMACCM Sandpiper Apartments 000 Xxxxxx Xxxxxxxx Xxxxx
36 1 45099 GMACCM Torrance Village 0000-0000 Xxxxxxxx Xxxx
37 1 45100 GMACCM EZ Storage 0000 Xxxxxxxxxxxx Xxxxxx
38 1 41670 GMACCM Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxxx Xxxxxx Xxxx
621 North Governor Xxxxxx
39 1 44693 GMACCM Priority Off-Airport Parking Boulevard
40 2 43444 GMACCM Xxxxxx Xxxx Xxxxxxxxxx 0000 Xxxxxx Xxxx
41 2 44615 GMACCM Stone Mill Run Apartments 5101 - 5125 Xxxxx Ford Road
CONTROL
NUMBER CITY STATE ZIP CODE COUNTY
--------------------------------------------------------------------------
1 Parma Ohio 44129 Cuyahoga
2 Xxxxxx Xxx Xxxxxx 00000 Essex
3 Xxxxxxxx Xxxx Xxxxxxxxxx 00000 Ventura
Queens (Fresh
4 Xxxxxxx) New York 11366 Queens
5 Providence Rhode Island 00000 Xxxxxxxxxx
0 Xxxx Xxxxx Xxxxxxx Xxxxxxx 00000 Xxxx Xxxxx
0 Xxxxxx Xxxxxxxx 00000 Xxxxx
0 Xxxx Xx. Xxxxx Xxxxxxx 00000 St. Lucie
9 Xxx Xxxxxxx Xxxxxxxxx 00000 Orleans
10 Xxxxxxx Xxxxxxx 00000 Maricopa
11 Xxxxxxx Xxxxx 00000 Xxxxxx
00 Xxxxxx Xxxxx Xxxxxxxxxxxx 00000 Xxxxxxxxxx
00 Xxxxx Xxxxxxx Xxxxxxxxxx 00000 Los Angeles
14 Mountainside New Jersey 00000 Xxxxx
00 Xxxxx Xxxxxxx Xxxxxxxxxx 00000 Xxx Xxxxxxx
Xxxxxxxxx
00 Xxxxxxxxxx Xxx Xxxxxx 00000 County
Hampton
17 Xxxxxxx Xxxxxxxx 00000 City
18 Xxxx Xxxxxx Xxxxxxxxxx 00000 Los Angeles
19 Xxxxx Xxxxx Xxxxxxx 00000 Miami-Dade
20 Xxxxx Xxxxxxx 00000 Maricopa
21 Xxxxxxxx Xxxxxxxxxxx 00000 Middlesex
22 Nanuet New York 10954 Rockland
East Baton
Rouge
23 Baton Rouge Louisiana 70814 Parish
24 Xxxxxxxxxxx Xxxxxxx 00000 Xxxx
25 Xxxxxx Xxxxxxx 00000 Broward
00 Xxxxxxxx Xxxx Xxxxx 00000 Xxxxxxx
27 Xxxxxxx Xxxxx 00000 Xxxxxx
28 Xxxxxxxx Xxxxxxx 00000 Maricopa
29 Xxxxxxxxx Xxxxxxxxxx 00000 Napa
30 Xxxxxxx Xxxxxxx 00000 Maricopa
31 Reno Nevada 89523 Washoe
32 Xxxxx Xxxxxxx 00000 Miami-Dade
33 Xxxx Xxxxxxxx 00000 Oakland
34 Xxxxxx Xxxxxxxxxx 00000 Tulare
35 Xx Xxxx Xxxxx 00000 Xx Xxxx
00 Xxxxxxxx Xxxxxxxxxx 00000 Los Angeles
00 Xxxxx Xxxx Xxxxxxxxxx 00000 Xxxxxx
38 Xxxxxx Xxxxxxx 00000 Pima
39 Xxxxxxxxx Xxxxxxxxxxxx 00000 Delaware
40 Xxxxxx Xxxxxxx 00000 DeKalb
41 Xxxxxxx Xxxxxxx 00000 Orange
A-1
CONTROL RELATED ORIGINAL CURRENT INTEREST ACCRUAL
NUMBER GROUPS BALANCE ($) BALANCE ($) RATE % TYPE AMORTIZATION TYPE NOTE DATE
------------------------------------------------------------------------------------------------------------------------------------
1 69,000,000 68,949,377 6.450 ACT/360 Amortizing Balloon 6/29/2004
2 50,000,000 49,762,760 5.790 ACT/360 Amortizing Balloon 2/5/2004
3 35,750,000 35,380,518 6.020 ACT/360 Amortizing Balloon 8/8/2003
4 31,400,000 31,400,000 6.000 ACT/360 Amortizing Balloon 7/23/2004
5 25,000,000 24,967,624 6.000 ACT/360 Amortizing Balloon 7/1/2004
6 Group A 19,000,000 19,000,000 5.400 ACT/360 Interest Only 5/20/2004
7 16,880,000 16,865,186 5.780 ACT/360 Amortizing Balloon 6/25/2004
8 Group A 16,900,000 16,844,507 5.080 ACT/360 Amortizing Balloon 4/15/2004
9 15,500,000 15,463,117 6.770 ACT/360 Amortizing Balloon 6/1/2004
10 13,650,000 13,588,936 5.090 ACT/360 Amortizing Balloon 4/1/2004
11 Group C 13,230,000 13,230,000 5.500 ACT/360 Interest Only, then Amortizing 7/20/2004
12 13,200,000 13,183,869 6.220 ACT/360 Amortizing Balloon 6/30/2004
13 Group C 12,200,000 12,188,624 5.540 ACT/360 Amortizing Balloon 6/29/2004
14 12,000,000 11,977,997 5.990 ACT/360 Amortizing Balloon 5/18/2004
15 Group C 11,000,000 10,989,743 5.540 ACT/360 Amortizing Balloon 6/29/2004
16 9,000,000 8,993,042 6.260 ACT/360 Amortizing Balloon 6/2/2004
17 8,600,000 8,565,399 5.590 ACT/360 Amortizing Balloon 4/1/2004
18 8,208,000 8,193,742 6.230 ACT/360 Amortizing Balloon 5/21/2004
19 8,000,000 7,991,116 6.690 ACT/360 Amortizing Balloon 6/25/2004
20 7,830,000 7,830,000 5.890 ACT/360 Interest Only, then Amortizing 4/27/2004
21 6,900,000 6,887,320 5.980 ACT/360 Amortizing Balloon 5/19/2004
22 6,100,000 6,089,186 6.140 ACT/360 Amortizing Balloon 5/14/2004
23 6,080,000 6,069,415 6.220 ACT/360 Amortizing Balloon 5/26/2004
24 6,000,000 5,992,085 5.830 ACT/360 Amortizing Balloon 6/17/2004
25 5,250,000 5,237,954 6.970 ACT/360 Amortizing Balloon 5/27/2004
26 4,500,000 4,469,224 5.820 ACT/360 Fully Amortizing 6/1/2004
27 4,400,000 4,391,824 5.930 ACT/360 Amortizing Balloon 5/28/2004
28 4,200,000 4,196,501 5.980 ACT/360 Amortizing Balloon 6/29/2004
29 Group C 4,040,000 4,040,000 5.800 ACT/360 Interest Only, then Amortizing 7/6/2004
30 3,730,000 3,723,327 6.100 ACT/360 Amortizing Balloon 5/25/2004
31 3,500,000 3,485,332 5.400 ACT/360 Amortizing Balloon 3/26/2004
32 3,400,000 3,397,175 5.990 ACT/360 Amortizing Balloon 6/3/2004
33 3,225,000 3,219,612 6.400 ACT/360 Amortizing Balloon 5/26/2004
34 3,000,000 2,990,213 5.110 ACT/360 Amortizing Balloon 4/20/2004
35 2,500,000 2,495,198 5.780 ACT/360 Amortizing Balloon 5/28/2004
36 2,400,000 2,400,000 6.160 ACT/360 Amortizing Balloon 7/19/2004
37 2,375,000 2,375,000 6.030 ACT/360 Amortizing Balloon 7/20/2004
38 2,300,000 2,293,879 6.140 ACT/360 Amortizing Balloon 5/27/2004
39 2,300,000 2,289,838 5.460 ACT/360 Amortizing Balloon 4/30/2004
40 1,950,000 1,946,613 6.230 ACT/360 Amortizing Balloon 5/28/2004
41 1,464,000 1,457,852 5.750 ACT/360 Amortizing Balloon 4/30/2004
FIRST ORIGINAL REMAINING
CONTROL PAYMENT INTEREST ONLY INTEREST ONLY
NUMBER DATE PERIOD PERIOD
------------------------------------------------------
1 8/1/2004
2 4/1/2004
3 10/1/2003
4 9/1/2004
5 8/1/2004
6 7/1/2004 60 58
7 8/1/2004
8 6/1/2004
9 7/1/2004
10 5/1/2004
11 9/1/2004 24 24
12 8/1/2004
13 8/1/2004
14 7/1/2004
15 8/1/2004
16 8/1/2004
17 5/1/2004
18 7/1/2004
19 8/1/2004
20 6/1/2004 24 21
21 7/1/2004
22 7/1/2004
23 7/1/2004
24 8/1/2004
25 7/1/2004
26 7/1/2004
27 7/1/2004
28 8/1/2004
29 9/1/2004 24 24
30 7/1/2004
31 5/1/2004
32 8/1/2004
33 7/1/2004
34 6/1/2004
35 7/1/2004
36 9/1/2004
37 9/1/2004
38 7/1/2004
39 6/1/2004
40 7/1/2004
41 6/1/2004
A-2
ORIGINAL REMAINING ORIGINAL REMAINING GRACE MATURITY
CONTROL TERM TO TERM TO AMORTIZATION AMORTIZATION PAYMENT DEFAULT DATE
NUMBER SEASONING MATURITY MATURITY TERM TERM DUE DATE PERIOD OR ARD
----------------------------------------------------------------------------------------------------------------------
1 1 120 119 360 359 1 5 7/1/2014
2 5 120 115 360 355 1 5 3/1/2014
3 11 120 109 360 349 1 5 9/1/2013
4 0 120 120 360 360 1 5 8/1/2014
5 1 82 81 298 297 1 5 5/1/2011
6 2 60 58 0 0 1 5 6/1/2009
7 1 120 119 360 359 1 5 7/1/2014
8 3 120 117 360 357 1 5 5/1/2014
9 2 85 83 300 298 1 5 7/1/2011
10 4 60 56 360 356 1 5 4/1/2009
11 0 120 120 360 360 1 5 8/1/2014
12 1 120 119 300 299 1 5 7/1/2014
13 1 120 119 360 359 1 5 7/1/2014
14 2 120 118 360 358 1 5 6/1/2014
15 1 120 119 360 359 1 5 7/1/2014
16 1 120 119 360 359 1 5 7/1/2014
17 4 144 140 360 356 1 5 4/1/2016
18 2 120 118 360 358 1 5 6/1/2014
19 1 120 119 300 299 1 5 7/1/2014
20 3 120 117 336 336 1 5 5/1/2014
21 2 84 82 360 358 1 5 6/1/2011
22 2 120 118 360 358 1 5 6/1/2014
23 2 120 118 360 358 1 5 6/1/2014
24 1 120 119 300 299 1 10 7/1/2014
25 2 120 118 300 298 1 5 6/1/2014
26 2 180 178 180 178 1 5 6/1/2019
27 2 120 118 360 358 1 5 6/1/2014
28 1 60 59 360 359 1 5 7/1/2009
29 0 120 120 360 360 1 5 8/1/2014
30 2 120 118 360 358 1 5 6/1/2014
31 4 120 116 360 356 1 5 4/1/2014
32 1 120 119 360 359 1 5 7/1/2014
33 2 120 118 360 358 1 5 6/1/2014
34 3 120 117 360 357 1 5 5/1/2014
35 2 120 118 360 358 1 5 6/1/2014
36 0 120 120 360 360 1 5 8/1/2014
37 0 120 120 360 360 1 5 8/1/2014
38 2 120 118 300 298 1 5 6/1/2014
39 3 60 57 300 297 1 5 5/1/2009
40 2 120 118 360 358 1 5 6/1/2014
41 3 120 117 300 297 1 5 5/1/2014
SCHEDULED
CONTROL MATURITY OR ARD
NUMBER BALANCE ($) PREPAYMENT PROVISION
-------------------------------------------------------------------
1 59,279,512 Lock/25_Defeasance/91_0%/4
2 42,141,091 Lock/29_Defeasance/87_0%/4
3 30,339,185 Lock/35_Defeasance/83_0%/2
4 26,626,499 Lock/ 24_Defeasance/95_0%/1
5 21,478,109 Lock/49_Defeasance/31_0%/2
6 19,000,000 Lock/26_Defeasance/30_0%/4
7 14,221,880 Lock/25_Defeasance/91 _0%/4
8 13,930,731 Lock/23_>YM and 1%/93_0%/4
9 13,471,401 Lock/38_Defeasance/45_0%/2
10 12,605,704 Lock/28_Defeasance/30_0%/2
11 11,589,751 Lock/24_Defeasance/93_0%/3
12 10,297,517 Lock/37_Defeasance/81_0%/2
13 10,203,818 Lock/25_Defeasance/92_0%/3
14 10,172,992 Lock/26_Defeasance/90_0%/4
15 9,200,165 Lock/25_Defeasance/92_0%/3
16 7,690,525 Lock/25_Defeasance/91_0%/4
17 6,817,033 Lock/28_Defeasance/112_0%/4
18 7,007,088 Lock/26_Defeasance/92_0%/2
19 6,337,169 Lock/37_Defeasance/81_0%/2
20 6,771,974 Lock/27_Defeasance/89_0%/4
21 6,232,061 Lock/26_Defeasance/54_0%/4
22 5,193,998 Lock/26_Defeasance/90_0%/4
23 5,188,944 Lock/26_Defeasance/92_0%/2
24 4,619,607 Lock/37_Defeasance/81_0%/2
25 4,195,202 Lock/38_Defeasance/80_0%/2
26 0 Lock/26_Defeasance/152_0%/2
27 3,723,488 Lock/26_Defeasance/91_0%/3
28 3,927,932 Lock/25_Defeasance/33_0%/2
29 3,564,228 Lock/24_Defeasance/93_0%/3
30 3,172,311 Lock/26_Defeasance/92_0%/2
31 2,914,450 Lock/28_Defeasance/90_0%/2
32 2,882,590 Lock/25_Defeasance/91_0%/4
33 2,766,510 Lock/26_Defeasance/90_0%/4
34 2,475,314 Lock/27_Defeasance/91_0%/2
35 2,106,155 Lock/35_>YM and 1%/81_0%/4
36 2,044,670 Lock/24_Defeasance/94_0%/2
37 2,015,722 Lock/24_Defeasance/92_0%/4
38 1,789,310 Lock/26_Defeasance/90_0%/4
39 2,062,009 Lock/27_Defeasance/31_0%/2
40 1,664,696 Lock/26_Defeasance/92_0%/2
41 1,124,126 Lock/27_Defeasance/91_0%/2
A-3
CUT-OFF DATE
BALANCE PER
SQ. FT./
SCHEDULED TOTAL SQ. FT./ UNIT/PAD/
CONTROL ANNUAL DEBT CUT-OFF MATURITY OR ARD UNITS/PADS/ UNIT ROOM/
NUMBER SERVICE DATE LTV (%) DATE LTV (%) ROOMS/SPACES DESCRIPTION SPACES
-------------------------------------------------------------------------------------------------------------------------------
1 5,206,326 71.82 61.75 861,207 Sq. Ft. 80
2 3,516,698 70.09 59.35 772,690 Sq. Ft. 129
3 2,577,591 75.28 64.55 423,010 Sq. Ft. 84
4 2,259,106 79.29 67.24 112,336 Sq. Ft. 280
5 1,938,513 56.87 48.93 290 Rooms 86,095
6 1,040,250 76.00 76.00 113,722 Sq. Ft. 167
7 1,185,948 79.93 67.40 161 Units 104,753
8 1,098,611 79.46 65.71 200,457 Sq. Ft. 84
9 1,287,445 74.70 65.08 208 Rooms 74,342
10 888,345 78.55 72.87 152,600 Sq. Ft. 89
11 901,422 71.13 62.31 252 Units 52,500
12 1,041,981 74.91 58.51 155 Rooms 85,057
13 834,921 60.94 51.02 318 Pads 38,329
14 862,427 74.86 63.58 103,860 Sq. Ft. 115
15 752,798 60.85 50.94 314 Pads 34,999
16 665,677 68.13 58.26 15,694 Sq. Ft. 573
17 591,799 77.87 61.97 194,286 Sq. Ft. 44
18 605,176 74.49 63.70 78,978 Sq. Ft. 104
19 659,642 66.59 52.81 90 Rooms 88,790
20 571,470 64.18 55.51 90,862 Sq. Ft. 86
21 495,364 67.52 61.10 108,613 Sq. Ft. 63
22 445,481 79.60 67.90 34,180 Sq. Ft. 178
23 447,805 79.86 68.28 258 Units 23,525
24 456,444 58.75 45.29 93 Rooms 64,431
25 444,066 70.78 56.69 95 Rooms 55,136
26 450,448 58.42 0.00 160,377 Sq. Ft. 28
27 314,190 77.73 65.90 81,538 Sq. Ft. 54
28 301,526 75.61 70.77 1,064 Units 3,944
29 284,458 48.56 42.84 196 Pads 20,612
30 271,243 69.86 59.52 29,296 Sq. Ft. 127
31 235,843 51.33 42.92 846 Units 4,120
32 244,354 75.49 64.06 56,020 Sq. Ft. 61
33 242,071 65.39 63.60 34,876 Sq. Ft. 92
34 195,683 60.41 50.01 77,080 Sq. Ft. 39
35 175,644 79.72 67.29 91 Units 27,420
36 175,644 70.59 60.14 17,292 Sq. Ft. 139
37 171,422 78.38 66.53 478 Units 4,969
38 180,197 66.01 51.49 21,900 Sq. Ft. 105
39 168,829 73.87 66.52 500 Spaces 4,580
40 143,774 79.45 67.95 73 Units 26,666
41 110,521 79.66 61.43 44 Units 33,133
CONTROL
NUMBER OWNERSHIP INTEREST LOCKBOX
--------------------------------------------------------
1 Fee and Leasehold In Place Hard
2 Fee Simple In Place Soft
3 Fee Simple In Place Soft
4 Fee Simple In Place Soft
5 Fee Simple In Place Hard
6 Fee Simple Springing Hard
7 Fee Simple
8 Fee Simple Springing Hard
9 Fee Simple
10 Fee Simple
11 Fee Simple
12 Fee Simple
13 Fee Simple
14 Fee Simple Springing Hard
15 Fee Simple
16 Fee Simple Springing Hard
17 Fee Simple In Place Hard
18 Fee Simple
19 Fee Simple
20 Fee Simple In Place Soft
21 Fee Simple
22 Fee Simple
23 Leasehold
24 Fee and Leasehold
25 Fee Simple
26 Fee Simple
27 Fee Simple
28 Fee Simple
29 Fee Simple
30 Leasehold Springing Hard
31 Fee Simple
32 Fee Simple Springing Hard
33 Fee Simple
34 Fee Simple Springing Hard
35 Fee Simple
36 Fee Simple
37 Fee Simple
38 Fee Simple
39 Fee Simple In Place Soft
40 Fee Simple
41 Fee Simple
A-4
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
For purposes of these representations and warranties, the
phrases "to the knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan
Seller's knowledge" shall mean, except where otherwise expressly set forth
below, the actual state of knowledge of the Mortgage Loan Seller or any servicer
acting on its behalf regarding the matters referred to, in each case: (i) after
the Mortgage Loan Seller's having conducted such inquiry and due diligence into
such matters as would be customarily performed by prudent institutional
commercial or multifamily, as applicable, mortgage lenders, and in all events as
required by the Mortgage Loan Seller's underwriting standards, at the time of
the Mortgage Loan Seller's origination or acquisition of the particular Mortgage
Loan; and (ii) subsequent to such origination, utilizing the servicing and
monitoring practices customarily utilized by prudent commercial mortgage loan
servicers with respect to securitizable commercial or multifamily, as
applicable, mortgage loans. Also for purposes of these representations and
warranties, the phrases "to the actual knowledge of the Mortgage Loan Seller" or
"to the Mortgage Loan Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the
Mortgage Loan Seller or any servicer acting on its behalf without any express or
implied obligation to make inquiry. All information contained in documents
included in the definition of Mortgage File in the Pooling and Servicing
Agreement shall be deemed to be within the knowledge and the actual knowledge of
the Mortgage Loan Seller, to the extent that the Mortgage Loan Seller or its
closing counsel or custodian, if any, have reviewed or had possession of such
document at any time. For purposes of these representations and warranties, to
the extent that any representation or warranty is qualified by the Mortgage Loan
Seller's knowledge with respect to the contents of the Note, Mortgage, lender's
title policy and any letters of credit or ground leases, if such document is not
included in the Mortgage File, the Mortgage Loan Seller shall make such
representation or warranty without any such qualification. Wherever there is a
reference in a representation or warranty to receipt by, or possession of, the
Mortgage Loan Seller of any information or documents, or to any action taken by
the Mortgage Loan Seller or to any action which has not been taken by the
Mortgage Loan Seller or its agents or employees, such reference shall include
the receipt or possession of such information or documents by, or the taking of
such action or the not taking such action by, either of the Mortgage Loan Seller
or any servicer acting on its behalf. For purposes of these representations and
warranties, when referring to the conduct of "reasonable prudent institutional
commercial or multifamily, as applicable mortgage lenders" (or similar such
phrases and terms), such conduct shall be measured by reference to the industry
standards generally in effect as of the date the related representation or
warranty relates to or is made.
The Mortgage Loan Seller hereby represents and warrants with
respect to the Mortgage Loans that, as of the date herein below specified or, if
no such date is specified, as of the Closing Date, and subject to Section 18 of
this Agreement:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the Mortgage Loan Schedule to the Pooling
and Servicing Agreement
B-1
was true and accurate in all material respects as of the Cut-Off Date
and contains all of the information set forth in the definition of
"Mortgage Loan Schedule" in the Pooling and Servicing Agreement
(2) Ownership of Mortgage Loans. Immediately prior to the transfer
of the Mortgage Loans to the Purchaser, the Mortgage Loan Seller had
good title to, and was the sole owner of, each Mortgage Loan. The
Mortgage Loan Seller has full right, power and authority to sell,
transfer and assign each Mortgage Loan to, or at the direction of, the
Purchaser free and clear of any and all pledges, liens, charges,
security interests, participation interests and/or other interests and
encumbrances (other than the rights to servicing and related
compensation as reflected in the Mortgage Loan Schedule). Subject to
the completion of the names and addresses of the assignees and
endorsees and any missing recording information in all instruments of
transfer or assignment and endorsements and the completion of all
recording and filing contemplated hereby and by the Pooling and
Servicing Agreement, the Mortgage Loan Seller will have validly and
effectively conveyed to the Purchaser all legal and beneficial interest
in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance (except for certain
servicing rights described on Schedule B-41 hereto or otherwise
contemplated by this Agreement or the Pooling and Servicing Agreement).
The sale of the Mortgage Loans to the Purchaser or its designee does
not require the Mortgage Loan Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, endorsed to the
Purchaser, or its designee, in conformity with the requirements of the
definition of "Mortgage File" in the Pooling and Servicing Agreement
and each such endorsement is genuine.
(3) Payment Record. Such Mortgage Loan was not as of the Cut-off
Date for such Mortgage Loan, and has not been during the twelve-month
period prior thereto, 30 days or more delinquent in respect of any debt
service payment required thereunder, without giving effect to any
applicable grace period.
(4) Lien; Valid Assignment. The Mortgage related to and delivered
in connection with each Mortgage Loan constitutes a legal, valid and,
subject to the exceptions set forth in Paragraph 13 below, enforceable
first priority lien upon the related Mortgaged Property, except for the
following (collectively, the "Permitted Encumbrances"): (a) the lien
for current real estate taxes, water charges, sewer rents and
assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of
public record and are referred to in the related lender's title
insurance policy (or, if not yet issued, referred to in a pro forma
title policy or title policy
B-2
commitment meeting the requirements described in Paragraph 8 below);
(c) exceptions and exclusions specifically referred to in the related
lender's title insurance policy (or, if not yet issued, referred to in
a pro forma title policy or title policy commitment meeting the
requirements described in Paragraph 8 below); (d) other matters to
which like properties are commonly subject; (e) the rights of tenants
(as tenants only) under leases (including subleases) pertaining to the
related Mortgaged Property; (f) condominium declarations of record and
identified in the related lender's title insurance policy (or, if not
yet issued, identified in a pro forma title policy or title policy
commitment meeting the requirements described in Paragraph 8 below);
and (g) if such Mortgage Loan constitutes a Cross-Collateralized
Mortgage Loan, the lien of the Mortgage for another Mortgage Loan
contained in the same group of Cross-Collateralized Mortgage Loans.
With respect to each Mortgage Loan, such Permitted Encumbrances do not,
individually or in the aggregate, materially interfere with the
security intended to be provided by the related Mortgage, the current
principal use of the related Mortgaged Property, the current ability of
the related Mortgaged Property to generate income sufficient to service
such Mortgage Loan or materially and adversely affect the value of the
Mortgage Loan . The related assignment of the Mortgage for each
Mortgage Loan, executed and delivered in favor of the Trustee, is in
recordable form (but for insertion of the name and address of the
assignee and any related recording information which is not yet
available to the Mortgage Loan Seller) to validly and effectively
convey the assignor's interest therein and constitutes a legal, valid,
binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Mortgage from the relevant assignor to
the Trustee.
(5) Assignment of Leases. There exists as part of the related
Mortgage File an Assignment of Leases (an "Assignment of Leases")
either as a separate document or as part of the Mortgage. Each related
Assignment of Leases creates a valid, first priority collateral
assignment of, or a valid perfected first priority lien on or security
interest in, certain rights under the related lease or leases,
including the right to receive all payment due under the related Lease,
subject only to a license granted to the related Mortgagor to exercise
certain rights and to perform certain obligations of the lessor under
such lease or leases, including the right to operate the related leased
property and none of the related leases contains any restriction on
such collateral assignment or creation of a security interest therein,
as applicable. The related assignment of any Assignment of Leases not
included in a Mortgage, executed and delivered in favor of the Trustee
is in recordable form (but for insertion of the name and address of the
assignee and any related recording information which is not yet
available to the Mortgage Loan Seller) to validly and effectively
convey the assignor's interest therein and constitutes a legal, valid,
binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Assignment of Leases from the relevant
assignor to the Trustee.
(6) Mortgage Status; Waivers and Modifications. The terms of the
Mortgage Loan have not been waived, modified, altered, satisfied,
impaired, canceled, subordinated or rescinded in any manner which
materially interferes with the security provided by such Mortgage Loan
and the related Mortgaged Property other than any material amendment or
modification which has been effected pursuant to a written instrument
and has been duly submitted for recordation to the extent necessary to
protect the interests of the mortgagee, and is a part of the related
Mortgage File. Except as set forth on Schedule B-6, no consents,
waivers, modifications, alterations or assumptions of any kind with
respect to a Mortgage Loan have occurred since the date upon which the
due diligence file related to the applicable Mortgage Loan was
delivered to Allied Capital Corporation. The Mortgage Loan Seller has
not taken any affirmative action inconsistent with the Servicing
Standard that would cause the representations and warranties of the
related Mortgagor under the Mortgage Loan not to be true and correct in
any material respect.
B-3
(7) Condition of Property; Condemnation. In the case of each
Mortgage Loan, one or more engineering reports were prepared in
connection with the origination of such Mortgage Loan by an independent
third-party engineering firm who inspected the Mortgaged Property, and
except as set forth in such engineering assessment(s) or on Schedule
B-7A, the related Mortgaged Property is, to the Mortgage Loan Seller's
knowledge, free and clear of any damage that would materially and
adversely affect its value as security for such Mortgage Loan (except
in cases set forth in clauses (a), (b) and (c) below). As of
origination of such Mortgage Loan there was no proceeding pending, and
subsequent to such date, the Mortgage Loan Seller has not received
actual notice of, any proceeding pending for the condemnation of all or
any material portion of the Mortgaged Property. Except as set forth on
Schedule B-7B, if any of the engineering reports referred to above in
this Paragraph 7 revealed any material damage or material deferred
maintenance, then one of the following is true: (a) the repairs and/or
maintenance necessary to correct such condition have been completed in
all material respects; (b) an escrow of funds is required or a letter
of credit was obtained in a percentage equal to 125% of the amount
reasonably estimated to be sufficient to complete the repairs and/or
maintenance necessary to correct such condition; or (c) the reasonable
estimate of the cost to complete the repairs and/or maintenance
necessary to correct such condition represented no more than (i) 2% of
the value of the related Mortgaged Property as reflected in an
appraisal conducted in connection with the origination of the subject
Mortgage Loan or (ii) $50,000 whichever is less. As of the date of the
origination of each Mortgage Loan, except as set forth on Schedule
B-7B: (x) all of the material improvements on the related Mortgaged
Property lay wholly within the boundaries and, to the extent in effect
at the time of construction, building restriction lines of such
property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or
that do not affect the value or current principal use of such Mortgaged
Property to any material extent, (y) no improvements on adjoining
properties encroached upon such Mortgaged Property so as to affect the
value or current principal use of such Mortgaged Property to any
material extent, except those encroachments that are insured against by
the lender's title insurance policy referred to in Paragraph 8 below
and (z) the Mortgaged Property securing each Mortgage Loan is located
on or adjacent to a public road, or has access to an irrevocable
easement permitting ingress and egress.
(8) Title Insurance. The lien of each Mortgage securing a Mortgage
Loan is insured by an American Land Title Association (or an equivalent
form of) lender's title insurance policy (the "Title Policy") (except
that if such policy is yet to be issued, such insurance may be
evidenced by a "marked up" pro forma policy or title commitment in
either case marked as binding and countersigned by the title company or
its authorized agent, either on its face or by an acknowledged closing
instruction or escrow letter) in the original principal amount of such
Mortgage Loan after all advances of principal, insuring the originator
of the related Mortgage Loan, its successors and assigns (as the sole
insured) that the related Mortgage is a valid first priority lien on
such Mortgaged Property, subject only to the Permitted Encumbrances.
Such Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) is in full force and effect, all premiums thereon
have been paid, the Mortgage Loan Seller has made no claims thereunder
and, to the Mortgage Loan Seller's knowledge, no prior holder of the
related Mortgage has
B-4
made any claims thereunder and no claims have been paid thereunder.
The Mortgage Loan Seller has not, and to the Mortgage Loan Seller's
knowledge, no prior holder of the related Mortgage has done anything
that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee (including endorsement and delivery of
the related Mortgage Note to the Purchaser or its designee and
recording of the related Assignment of Mortgage in favor of the
Purchaser or its designee in the applicable real estate records), such
Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. Such Title Policy contains no
exclusion for any of the following circumstances, or it affirmatively
insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available), (a)
that the related Mortgaged Property has access to a public road, and
(b) that the area shown on the survey, if any, reviewed or prepared in
connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage. Such
Title Policy contains no exclusion regarding the encroachment upon any
easements of any permanent improvements located on the related
Mortgaged Property for which the grantee of such easement has the
ability to force removal of such improvement, or such Title Policy
affirmatively insures against losses caused by forced removal of any
material permanent improvements on the related Mortgaged Property that
encroach upon any material easements.
(9) No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the
Mortgage Loan has been disbursed but a portion thereof is being held in
escrow or reserve accounts pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with respect
to the related Mortgaged Property), and there is no obligation for
future advances with respect thereto. If the related Mortgage Loan
documents include any requirements regarding (a) the completion of any
on-site or off-site improvements and (b) the disbursement of any funds
escrowed for such purpose, and if those requirements were to have been
complied with on or before the Closing Date, then such requirements
have been complied with in all material respects or such funds so
escrowed have not been released except to the extent specifically
provided by the related Mortgage Loan documents.
(10) Mortgage Provisions. The Mortgage Note, Mortgage (along with
any security agreement and UCC financing statement) and Assignment of
Leases for each Mortgage Loan, together with applicable state law,
contain customary and, subject to the exceptions set forth in Paragraph
13 below, enforceable provisions for commercial Mortgage Loans such as
to render the rights and remedies of the holder thereof adequate for
the practical realization against the related Mortgaged Property of the
principal benefits of the security intended to be provided thereby. The
Mortgage Loan documents for each Mortgage Loan, subject to applicable
law, provide for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect
the rents if there is an event of default under such Mortgage Loan.
(11) Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has
B-5
either (i) been properly designated, has accepted such designation and
currently so serves or (ii) may be substituted in accordance with the
Mortgage and applicable law, and (b) no fees or expenses are payable to
such trustee by the Mortgage Loan Seller, the Depositor or any
transferee thereof except for such fees and expenses (all of which are
the obligation of the related Mortgagor under the related Mortgage Loan
documents) as would be payable in connection with a trustee's sale
after default by the related Mortgagor or in connection with any full
or partial release of the related Mortgaged Property or related
security for such Mortgage Loan.
(12) Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule B-12A, (a) an environmental site
assessment meeting the requirements of the American Society for Testing
and Materials and covering all environmental hazards typically assessed
for similar properties including use, type and tenants of the Mortgaged
Property ("Environmental Report"), or an update of such an assessment,
was performed by a licensed (to the extent required by applicable state
law) reputable, independent third-party environmental consulting firm
with respect to each Mortgaged Property in connection with the
origination of such Mortgage Loan and/or thereafter updated such that,
except as set forth on Schedule B-12B, such Environmental Report is
dated no earlier than twelve months prior to the Closing Date, (b) a
copy of each such Environmental Report has been delivered to the
Purchaser, and (c) either: (i) no such Environmental Report provides
that as of the date of the report there is a material violation of any
applicable environmental laws with respect to any circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any
such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the same
have not been subsequently remediated in all material respects, then,
except as described on Schedule B-12C, one or more of the following are
true: (A) one or more parties not related to or including the related
Mortgagor and collectively having financial resources reasonably
estimated by the Mortgage Loan Seller at the time of origination to be
adequate to cure the subject violation in all material respects, were
identified as the responsible party or parties for such condition or
circumstance and such condition or circumstance does not materially
impair the value of the Mortgaged Property, (B) the related Mortgagor
was required to provide additional security reasonably estimated by the
Mortgage Loan Seller at the time of origination to be adequate to cure
the subject violation in all material respects, (C) if and to the
extent that such condition or circumstances can, based upon the
recommendation set forth in the subject Environmental Report, be
remediated or otherwise appropriately addressed in all material
respects through the implementation of an operations and maintenance
plan, the related Mortgagor was required to obtain and maintain an
operations and maintenance plan, (D) the related Mortgagor, or other
responsible party, provided a "no further action" letter or other
evidence reasonably acceptable to a reasonably prudent commercial
mortgage lender that applicable federal, state or local governmental
authorities had no current intention of taking any action, and are not
requiring any action, in respect of such condition or circumstance, (E)
such conditions or circumstances were investigated further and based
upon such additional investigation, an independent third-party
environmental consultant recommended no further investigation or
remediation, (F) the expenditure of funds reasonably estimated to be
necessary to effect such remediation is not greater than the lesser of
2% of the
B-6
outstanding principal balance of the related Mortgage Loan or $50,000,
(G) there exists an escrow of funds reasonably estimated by the
Mortgage Loan Seller at origination to be sufficient for purposes of
effecting such remediation, (H) the related Mortgaged Property is
identified on Schedule B-12D and insured under a policy of insurance
subject to per occurrence and aggregate limits and a deductible, each
as set forth on Schedule B-12D, against certain losses arising from
such circumstances and conditions or (I) a party with financial
resources reasonably estimated by the Mortgage Loan Seller at the time
of origination to be adequate to cure the subject violation in all
material respects provided a guaranty or indemnity to the related
Mortgagor to cover the costs of any required investigation, testing,
monitoring or remediation. To the Mortgage Loan Seller's actual
knowledge, having made no independent inquiry other than reviewing the
Environmental Reports(s) and employing an environmental consultant to
perform the assessment(s) referenced herein, there are no material
circumstances or conditions with respect to any Mortgaged Property not
revealed in any such Environmental Report, where obtained, that render
such Mortgaged Property in material violation of any applicable
environmental laws. The Mortgage Loan documents for each Mortgage Loan
require the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. The Mortgage Loan
Seller has not taken any affirmative action which would cause the
Mortgaged Property securing any Mortgage Loan not to be in compliance
with all federal, state and local laws pertaining to environmental
hazards. Each Mortgagor represents and warrants in the related Mortgage
Loan documents substantially to the effect that, except as set forth in
certain specified environmental reports and to the Mortgagor's
knowledge, as of the date of origination, it has not used, caused or
permitted to exist and will not use, cause or permit to exist on the
related Mortgaged Property any hazardous materials which violate
federal, state or local laws, ordinances, regulations, orders,
directives, or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or
disposal of hazardous materials. Unless the related Mortgaged Property
is identified on Schedule B-12D, the related Mortgagor (or an affiliate
thereof) has agreed to indemnify mortgagee against, or otherwise be
liable for, any and all losses resulting from a breach of environmental
representations, warranties or covenants given by the Mortgagor in
connection with such Mortgage Loan, generally including any and all
losses, liabilities, damages, injuries, penalties, fines, expenses and
claims of any kind or nature whatsoever (including without limitation,
attorneys' fees and expenses) paid, incurred or suffered by or asserted
against, any such party resulting from such breach.
(13) Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Mortgagor, or any
guarantor of non-recourse exceptions and environmental liability, with
respect to each Mortgage Loan is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation),
enforceable in accordance with its terms, except as such enforcement
may be limited by (i) bankruptcy, insolvency, reorganization,
fraudulent transfer and conveyance or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and except that certain provisions in
such loan documents may be further limited or rendered
B-7
unenforceable by applicable law. There is no right of rescission,
offset, abatement, diminution or valid defense or counterclaim
available to the related Mortgagor with respect to such Mortgage Note,
Mortgage or other agreements that would deny the mortgagee the
principal benefits intended to be provided thereby. The Mortgage Loan
Seller has no actual knowledge of any such rights, defenses or
counterclaims having been asserted.
(14) Insurance. Except as otherwise set forth on Schedule B-14A,
all improvements upon each Mortgaged Property are insured under a fire
and extended perils insurance policy included within the classification
"All Risk of Physical Loss" insurance (or the equivalent) policy in an
amount (subject to a customary and reasonable deductible) at least
equal to the full insurable replacement cost of the improvements
located on such Mortgaged Property, and if applicable, the related
hazard insurance policy contains appropriate endorsements to avoid the
application of coinsurance and does not permit reduction in insurance
proceeds for depreciation. Except in the case of the Mortgaged
Properties identified on Schedule B-14B hereto, each Mortgaged Property
is the subject of a business interruption, actual loss sustained or
rent loss insurance policy providing coverage for at least twelve (12)
months (or a specified dollar amount which is reasonably estimated to
cover no less than twelve (12) months of rental income). If any portion
of the improvements upon the related Mortgaged Property was, at the
time of the origination of such Mortgage Loan, in a flood zone area as
identified in the Federal Register by the Federal Emergency Management
Agency as a 100 year flood zone or special hazard area, and flood
insurance was available, a flood insurance policy meeting any
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least of
(1) the outstanding principal balance of such Mortgage Loan, (2) the
full insurable value of such Mortgaged Property, (3) the maximum amount
of insurance available under the National Flood Insurance Act of 1968,
as amended, or (4) 100% of the replacement cost of the improvements
located on such Mortgaged Property. If any Mortgaged Property is
located in the state of California or in a "seismic zone" 3 or 4, a
seismic assessment was conducted (except in the case of mobile home
parks) at the time of originations and seismic insurance was obtained
to the extent such Mortgaged Property has a PML of greater than twenty
percent (20%) calculated using at least a 450 a year look back with a
10% probability of exceedance in a 50 year period. If the Mortgaged
Property for any Mortgage Loan is located in any of the locations set
forth on Schedule B-12D, then such Mortgaged Property is insured by
windstorm insurance in an amount at least equal to the lesser of (i)
the outstanding principal balance of such Mortgage Loan and (ii) 100%
of the insurable replacement cost of the improvements located on the
related Mortgaged Property. All such hazard and flood insurance
policies contain a standard mortgagee clause for the benefit of the
holder of the related Mortgage, its successors and assigns, as
mortgagee, and are not terminable (nor may the amount of coverage
provided thereunder be reduced) without thirty (30) days' (fifteen (15)
days for non-payment of premiums) prior written notice to the
mortgagee; and no such notice has been received, including any notice
of nonpayment of premiums, that has not been cured. Each Mortgaged
Property and all improvements thereon are also covered by comprehensive
general liability insurance in such amounts as are generally required
by reasonably prudent commercial lenders or as recommended by a
reputable, independent
B-8
insurance consultant. If any Mortgaged Property is, to the Mortgage
Loan Seller's knowledge, a materially non-conforming use or structure
under applicable zoning laws and ordinances, then, in the event of a
material casualty or destruction, one or more of the following is true:
(i) such Mortgaged Property may be restored or repaired to materially
the same extent of the use or structure at the time of such casualty;
(ii) such Mortgaged Property is covered by law and ordinance insurance
in an amount customarily required by reasonably prudent commercial
mortgage lenders or as recommended by a reputable, independent
insurance consultant; or (iii) the amount of hazard insurance currently
in place and required by the related Mortgage Loan documents would
generate proceeds sufficient to pay off the subject Mortgage Loan.
Additionally, the insurer for all of the required coverages set forth
herein has a claims paying ability rating from Standard & Poor's,
Xxxxx'x or Xxxxx Ratings of not less than A-minus (or the equivalent),
or from A.M. Best of not less than "A:V" (or the equivalent) except
that for any Mortgage Loan having a Cut-off Date Principal Balance
equal to or greater than $20,000,000, the insurer for all of the
required coverages set forth herein has a claims paying ability rating
from Standard & Poor's, Xxxxx'x or Fitch of not less than A (or the
equivalent), or from A.M. Best of not less than "A:IX" (or the
equivalent). With respect to each Mortgage Loan, the related Mortgage
Loan documents require that the related Mortgagor or a tenant of such
Mortgagor maintain insurance as described above or permit the Mortgagee
to require insurance as described above. Except under circumstances set
forth in the related Mortgage Loan documents that would be reasonably
acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be
provided by the related Mortgage, the Mortgage Loan documents for each
Mortgage Loan provide that proceeds paid under any such casualty
insurance policy will (or, at the lender's option, will) be applied
either to the repair or restoration of the related Mortgaged Property
or to the payment of amounts due under such Mortgage Loan; provided
that the related Mortgage Loan documents may entitle the related
Mortgagor to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due
under the Mortgage Loan; and provided, further, that, if the related
Mortgagor holds a leasehold interest in the related Mortgaged Property,
the application of such proceeds will be subject to the terms of the
related Ground Lease (as defined in Paragraph 18 below). Based on the
due diligence performed by the Mortgage Loan Seller, which in all
events was at least such due diligence as a prudent commercial mortgage
lender (with respect to the below referenced insurance policies
regarding the origination of the related Mortgage Loan) or a prudent
commercial mortgage servicer (with respect to any renewal of the below
referenced insurance policies since the origination of the related
Mortgage Loan) would undertake with respect to such issue after
September 11, 2001, for each Mortgage Loan, except as indicated on
Schedule B-14C, the related all risk property casualty insurance policy
and business interruption policy do not specifically exclude, or have a
separate policy covering, acts of terrorism, or any related damage
claims, from coverage as of the later of (i) the date of origination of
the Mortgage Loan and (ii) the last date as of which the policy was
renewed or amended except as indicated on Schedule B-14C, and the
related loan documents do not expressly prohibit or waive such
coverage, except to the extent that any right to require such coverage
may be limited by commercially reasonable availability. To the Mortgage
Loan Seller's actual knowledge, all insurance policies described above
are with an
B-9
insurance carrier qualified to write insurance in the relevant
jurisdiction and all insurance described above is in full force and
effect.
(15) Taxes and Assessments. No real estate taxes or governmental
assessments or governmental charges that prior to the Cut-Off Date
became due and owing in respect of each Mortgaged Property are
delinquent and unpaid, or, an escrow of funds in an amount sufficient
to pay such payments has been established. Such taxes, assessments and
charges shall not be considered delinquent and unpaid until the date on
which interest or penalties may first be payable thereon.
(16) Mortgagor Bankruptcy. No Mortgaged Property, nor any portion
thereof is the subject of, and no Mortgagor under a Mortgage Loan is a
debtor in, any state or federal bankruptcy, insolvency or similar
proceeding.
(17) Local Law Compliance. To the Mortgage Loan Seller's
knowledge, based upon a letter from governmental authorities, an
opinion of counsel, a zoning consultant's report, an endorsement to the
related Title Policy, or (when such would be acceptable to a reasonably
prudent commercial mortgage lender) a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan, or
based on such other due diligence considered reasonable by prudent
commercial mortgage lenders in the lending area where the subject
Mortgaged Property is located, except as described on Schedule B-17,
the improvements located on or forming part of, and the existing use
of, each Mortgaged Property: (i) are not in violation of any applicable
building codes or land laws applicable to the Mortgaged Property, the
improvements thereon or the use and occupancy thereof which would have
a material adverse effect on the value, operation, current principal
use or net operating income of the Mortgaged Property which are not
covered by title insurance; and (ii) are in material compliance with
applicable zoning laws and ordinances, including all such applicable
parking ordinances or requirements, or constitute a legal
non-conforming use or structure (provided that with respect to any
non-conformity with such laws or ordinances either: (x) in the event of
casualty or destruction, the use or structure may be restored or
repaired to the full extent of the use or structure at the time of such
casualty as provided in Paragraph 14 above; (y) law and ordinance
insurance coverage has been obtained for the structure or use as
provided in Paragraph 14 above; or (z) such non-compliance does not
materially and adversely affect the value of the related Mortgaged
Property).
(18) Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease (together with
any and all written amendments and modifications thereof and any and
all estoppels from or other agreements with the ground lessor, a
"Ground Lease"), but not by the related fee interest in the subject
real property (the "Fee Interest"), then, except as set forth on
Schedule B-18:
(a) Such Ground Lease or a memorandum thereof has been or
will be duly recorded; such Ground Lease permits the interest of
the lessee thereunder to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns in a manner that
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would materially adversely affect the security provided by the
related Mortgage; to the extent required under such Ground Lease,
the lessor under such Ground Lease has been sent notice of the
lien of the related Mortgage in accordance with the provisions of
such Ground Lease; and there has been no material change in the
terms of such Ground Lease since its recordation, with the
exception of material changes reflected in written instruments
which are a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than Permitted Encumbrances, and
such Ground Lease provides that it shall remain superior to any
mortgage or other lien upon the related Fee Interest;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and assigns upon
notice to, but without the consent of, the lessor thereunder (or,
if such consent is required, it has been obtained prior to the
Closing Date); and in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of such
lessor;
(d) Such Ground Lease is in full force and effect, and the
Mortgage Loan Seller has not received, as of the Closing Date, any
notice that an event of default has occurred thereunder and to the
Mortgage Loan Seller's actual knowledge, there exists no condition
that, but for the passage of time or the giving of notice, or
both, would result in an event of default under the terms of such
Ground Lease;
(e) Such Ground Lease requires the lessor under such Ground
Lease thereunder to give notice of any default by the lessee to
the mortgagee under such Mortgage Loan provided such mortgagee has
provided such lessor with notice of its lien in accordance with
the provisions of such Ground Lease and such Ground Lease further
provides that no notice of termination given under such Ground
Lease is effective against the mortgagee under such Mortgage Loan
unless a copy has been delivered to such mortgagee in the manner
described in such Ground Lease and the Mortgage Loan Seller has
provided such lessor with notice of the lien of the related
Mortgage in accordance with the provisions of such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient
time to gain possession of the interest of the lessee under such
Ground Lease) to cure any default under such Ground Lease, which
is curable after the receipt of notice of any such default, before
the lessor thereunder may terminate such Ground Lease;
(g) Except as set forth on Schedule B-18G, such Ground Lease
has an original term (or an original term plus options exercisable
by the holder of the
B-11
related Mortgage) which extends not less than twenty (20) years
beyond the end of the amortization term of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease by
reason of default by the Mortgagor including termination as a
result of a rejection of such Ground Lease in a bankruptcy
proceeding;
(i) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds, will be
applied either to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in such
cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or to the
payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon. Under the terms of
such Ground Lease and the related Mortgage Loan documents, taken
together, any condemnation proceeds or awards in respect of a
total or substantially total taking will be applied first to the
payment of the outstanding principal and interest on the Mortgage
Loan (except as otherwise provided by applicable law) and subject
to any rights to require the improvements to be rebuilt;
(j) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender and such Ground Lease contains
a covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession, interest
or quiet enjoyment of any subtenant of the lessee, or in any
manner, which would materially adversely affect the security
provided by the related Mortgage;
(k) The lessor under such Ground Lease is not permitted in
the absence of an uncured default to disturb the possession,
interest or quiet enjoyment of the tenant in any manner, which
would materially adversely affect the security provided by such
Ground Lease and the related Mortgage; and
(l) Such Ground Lease provides that it may not be amended or
modified without the prior consent of the mortgagee under such
Mortgage Loan and that any such action without such consent is not
binding on such mortgagee, its successors or assigns.
(19) Qualified Mortgage. Such Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
regulation section 1.860G-2(a), and the related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) (without regard to Section 856(e)(4) of the Code).
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(20) Advancement of Funds. The Mortgage Loan Seller has not (nor,
to the Mortgage Loan Seller's knowledge, has any prior holder of such
Mortgage Loan) advanced funds or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property (or a
tenant at or the property manager of the related Mortgaged Property), for
the payment of any amount required by such Mortgage Loan, except for
interest accruing from the date of origination of such Mortgage Loan or the
date of disbursement of the Mortgage Loan proceeds, whichever is later, to
the date which preceded by 30 days the first due date under the related
Mortgage Note.
(21) No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the lender
or shared appreciation feature and does not provide for any contingent or
additional interest in the form of participation in the cash flow of the
related Mortgaged Property or provide for negative amortization. Neither
the Mortgage Loan Seller nor any Affiliate thereof has any obligation to
make any capital contribution to the Mortgagor under the Mortgage Loan or
otherwise.
(22) Legal Proceedings. To the Mortgage Loan Seller's knowledge,
as of origination of the Mortgage Loan, there were no, and to the Mortgage
Loan Seller's actual knowledge, as of the Closing Date, there are no
pending actions, suits, litigation or other proceedings by or before any
court or governmental authority against or affecting the Mortgagor (or any
guarantor to the extent a reasonably prudent commercial or multifamily, as
applicable, mortgage lender would consider such guarantor material to the
underwriting of such Mortgage Loan) under any Mortgage Loan or the related
Mortgaged Property that, if determined adversely to such Mortgagor or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Mortgage Loan, the Mortgagor's
ability to pay principal, interest or any other amounts due under such
Mortgage Loan or the ability of any such guarantor to meet its obligations
under the applicable guaranty.
(23) Other Mortgage Liens. Except as otherwise set forth on
Schedule B-23, none of the Mortgage Loans permits the related Mortgaged
Property or any direct controlling interest in the related Mortgagor to be
encumbered by any mortgage lien or, in the case of a direct controlling
interest in the related Mortgagor, a lien to secure any other debt, without
the prior written consent of the holder of the subject Mortgage Loan or the
satisfaction of debt service coverage or similar criteria specified
therein. To the Mortgage Loan Seller's knowledge, as of origination of the
subject Mortgage Loan, and to the Mortgage Loan Seller's actual knowledge,
as of the Closing Date, except as otherwise set forth on Schedule B-23, and
except for cases involving other Mortgage Loans, no Mortgaged Property
securing the subject Mortgage Loan is encumbered by any other mortgage
liens (other than Permitted Encumbrances) and no direct controlling equity
interest in the related Mortgagor is encumbered by a lien to secure any
other debt. The related Mortgage Loan documents do not specifically
prohibit the mortgagee from requiring the Mortgagor under each Mortgage
Loan to pay all reasonable costs and expenses related to any required
consent to an encumbrance, including reasonable legal fees and expenses and
any applicable Rating Agency fees, or would permit the subject
B-13
mortgagee to withhold such consent if such costs and expenses are not paid
by a party other than such mortgagee.
(24) No Mechanics' Liens. To the Mortgage Loan Seller's knowledge,
as of the origination of the Mortgage Loan, and, to the Mortgage Loan
Seller's actual knowledge, as of the Closing Date: (i) each Mortgaged
Property (exclusive of any related personal property) is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to
the lien of the related Mortgage and that are not bonded or escrowed for or
covered by title insurance, and (ii) no rights are outstanding that under
law could give rise to any such mechanic's or materialmen's lien that would
be prior or equal to the lien of the related Mortgage and that is not
bonded or escrowed for or covered by title insurance.
(25) Compliance with Usury Laws. Each Mortgage Loan complied with,
or was exempt from, all applicable usury laws in effect at its date of
origination.
(26) Licenses and Permits. Except as set forth on Schedule B-26,
each Mortgage Loan contains provisions substantially to the effect that, to
the extent required by applicable law, each Mortgagor is required to be
qualified to do business and requires the related Mortgagor and the related
Mortgaged Property to be in material compliance with all regulations,
licenses, permits, authorizations, restrictive covenants and zoning,
parking and building laws or ordinances, in each case to the extent
required by law or to the extent that the failure to be so qualified or in
compliance would have a material and adverse effect upon the enforceability
of the Mortgage Loan or upon the practical realization against the related
Mortgaged Property of the principal benefits of the security intended to be
provided thereby.
(27) Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages upon which recording taxes and fees
were paid in an amount sufficient to allow the mortgagee to realize on the
Mortgaged Properties in an amount at least equal to the original principal
balance of such Mortgage Loan.
(28) Releases of Mortgaged Properties. Except as set forth on
Schedule B-28A, no Mortgage Note or Mortgage requires the mortgagee to
release all or any material portion of the related Mortgaged Property from
the lien of the related Mortgage except upon: (i) payment in full of all
amounts due under the related Mortgage Loan or (ii) delivery of "government
securities" within the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in
connection with a defeasance of the related Mortgage Loan; provided that
the Mortgage Loans that are Cross-Collateralized Mortgage Loans, and the
other individual Mortgage Loans secured by multiple parcels, may require
the respective mortgagee(s) to grant releases of material portions of the
related Mortgaged Property or the release of one or more related Mortgaged
Properties upon: (i) the satisfaction of certain legal and underwriting
requirements, (ii) the payment of a release price for the released property
or parcel as set forth on Schedule B-28C or (iii) the delivery of
comparable substitute real estate collateral subject to certain conditions
precedent as set
B-14
forth on Schedule B-28C. No release or partial release of any Mortgaged
Property, or any portion thereof, expressly permitted pursuant to the terms
of any Mortgage Note or Mortgage will constitute a significant modification
of the related Mortgage Loan under Treas. Reg. Section 1.860G-2(b)(2).
Notwithstanding the foregoing, any Mortgage Loan may permit the
unconditional release of one or more unimproved parcels of land to which
the Mortgage Loan Seller did not give any material value in its
underwriting of such Mortgage Loan. With respect to any release or
substitution, the related Mortgagor is required to pay all reasonable costs
and expenses associated therewith incurred by the mortgagee including any
Rating Agency fees and expenses.
(29) Defeasance. Each Mortgage Loan containing provisions for
defeasance of all or a portion of the Mortgaged Property either (i)
requires the prior written consent of, and compliance with all conditions
set by, the holder of the Mortgage Loan, (ii) requires confirmation from
the rating agencies rating the certificates of any securitization
transaction in which such Mortgage Loan is included that such defeasance
will not cause the downgrade, withdrawal or qualification of the then
current ratings of such certificates, or (iii) requires that (A) defeasance
must occur in accordance with the requirements of, and within the time
permitted by, applicable REMIC rules and regulations, (B) the replacement
collateral consists of non-callable U.S. government securities in an amount
sufficient to make all scheduled payments under such Mortgage Loan when
due, (C) at the mortgagee's election, the Mortgage Loan may only be assumed
by a single-purpose entity designated or approved by the holder of the
Mortgage Loan and (D) counsel provide an opinion that the Trustee has a
perfected security interest in such U.S. government securities prior to any
other claim or interest. The Mortgagor is required by the Mortgage Loan
documents to pay all reasonable costs and expenses, including but not
limited to Rating Agency fees, accountants fees and legal fees, associated
with such defeasance.
(30) Inspection. Except as set forth on Schedule B-30, the
Mortgage Loan Seller, an affiliate of the Mortgage Loan Seller, or a
correspondent in the conduit funding program of the Mortgage Loan Seller,
inspected, or caused the inspection of, each Mortgaged Property within
twelve (12) months of the Closing Date.
(31) No Material Default. Other than payments due but not yet 30
days or more past due, there exists no material default, breach, violation
or event of acceleration under the Mortgage Note or Mortgage for any
Mortgage Loan; provided, however, that this representation and warranty
does not cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of the subject matter otherwise
covered by any other representation and warranty made by the Mortgage Loan
Seller in this Exhibit B.
(32) Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan if, without the prior
written consent of the holder of such Mortgage, either the related
Mortgaged Property, or any direct controlling equity interest in the
related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers of less than a controlling
interest in the Mortgagor, transfers
B-15
of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the
Mortgage Loan, transfers among existing members, partners or shareholders
in the Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgaged Loans or multi-property Mortgage Loans,
transfers among co-Mortgagors or transfers of a similar nature to the
foregoing meeting the requirements of the Mortgage Loan. The related
Mortgage Loan documents require the Mortgagor under each Mortgage Loan to
pay all reasonable fees and expenses associated with securing the consent
or approval of the holder of the related Mortgage for all such actions
requiring such consent or approval under the related Mortgage, including
Rating Agency fees and the cost of counsel opinions relating to REMIC or
other securitization tax issues.
(33) Single Purpose Entity. Except as otherwise described on
Schedule B-33 hereto, each Mortgage Loan with an original principal balance
over $5,000,000.00 requires the related Mortgagor to be, at least for so
long as the Mortgage Loan is outstanding, and to the Mortgage Loan Seller's
actual knowledge, the related Mortgagor is, a Single-Purpose Entity. For
this purpose, "Single-Purpose Entity" means a person, other than an
individual, which is formed or organized solely for the purpose of owning
and operating the related Mortgaged Property or Properties; does not engage
in any business unrelated to such Mortgaged Property or Properties and the
financing thereof; and whose organizational documents provide, or which
entity represented and covenanted in the related Mortgage Loan documents,
substantially to the effect that such Mortgagor (i) does not and will not
have any material assets other than those related to its interest in such
Mortgaged Property or Properties or the financing thereof; (ii) does not
and will not have any indebtedness other than as permitted by the related
Mortgage or other related Mortgage Loan documents; (iii) maintains its own
books, records and accounts, in each case which are separate and apart from
the books, records and accounts of any other person; and (iv) holds itself
out as being a legal entity, separate and apart from any other person. In
addition, each Mortgage Loan with a Cut-off Date Principal Balance of
$20,000,000 or more, except as set forth on Schedule B-33, the related
Mortgagor's organizational documents provide substantially to the effect
that the Mortgagor shall: conduct business in its own name; not guarantee
or assume the debts or obligations of any other person; not commingle its
assets or funds with those of any other person; prepare separate tax
returns and financial statements, or if part of a consolidated group, be
shown as a separate member of such group; transact business with affiliates
on an arm's length basis; hold itself out as being a legal entity, separate
and apart from any other person, and such organizational documents further
provide substantially to the effect that: any dissolution and winding up or
insolvency filing for such entity is prohibited or requires the consent of
an independent director or member or the unanimous consent of all partners
or members, as applicable; such documents may not be amended with respect
to the Single-Purpose Entity requirements without the approval of the
mortgagee or rating agencies; the Mortgagor shall have an outside
independent director or member. The Mortgage Loan Seller has obtained, and
the Servicing File contains, with respect to each Mortgage Loan having a
Cut-off Date Principal Balance of $20,000,000 or more, in connection with
its origination or acquisition thereof, a counsel's opinion regarding
non-consolidation of the Mortgagor. The organization documents of any
Mortgagor on a Mortgage Loan having a Cut-off Date Principal Balance of
B-16
$20,000,000 or more that is a single member limited liability company,
provide that the Mortgagor shall not dissolve or liquidate upon the
bankruptcy, dissolution, liquidation or death of the sole member and the
Mortgage Loan Seller has obtained in connection with its origination or
acquisition of the subject Mortgage Loan, and the Servicing File contains,
an opinion of such Mortgagor's counsel confirming that the law of the
jurisdiction in which such single member limited liability company was
organized permits such continued existence upon such bankruptcy,
dissolution, liquidation or death of the sole member of the Mortgagor and
that the applicable law provides that creditors of the single member may
only attach the assets of the member including the membership interests in
the Mortgagor but not the assets of the Mortgagor.
(34) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
(35) Tax Parcels. Except as described on Schedule B-35, each
Mortgaged Property constitutes one or more complete separate tax lots
containing no other property, or is subject to an endorsement under the
related Title Policy insuring same, or an application for the creation of
separate tax lots complying in all respects with the applicable laws and
requirements of the applicable governing authority has been made and
approved by the applicable governing authority and such separate tax lots
shall be effective for the next tax year.
(36) Security Interests. UCC Financing Statements have been filed
and/or recorded (or, if not filed and/or recorded, have been submitted in
proper form for filing and recording), in all public places necessary to
perfect a valid security interest in all items of personal property owned
by a Mortgagor and located on the related Mortgaged Property (other than
any personal property subject to a leasing arrangement or purchase money
security interest permitted under the terms of such Mortgage Loan or any
other applicable personal property leases, provided, the related Mortgage
Loan documents contain a provision providing for the assignment of such
leases and related contracts to the mortgagee in the event of a foreclosure
of the Mortgage Loan), which in all cases, includes any elevators and all
Mortgagor-owned furniture, fixtures and equipment material to the operation
and use of the Mortgaged Property as presently operated, and if such
Mortgaged Property is a hotel or self-storage facility, operated by the
related Mortgagor, then such personal property constitutes all of the
material personal property required to operate the Mortgagor's business as
currently operated (other than any personal property subject to a leasing
arrangement or purchase money security interest permitted under the terms
of such Mortgage Loan or any other applicable personal property leases,
provided, the related Mortgage Loan documents contain a provision providing
for the assignment of such leases and related contracts to the mortgagee in
the event of a foreclosure of the Mortgage Loan) and the Mortgages,
security agreements, chattel mortgages or equivalent documents related to
and delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable first priority (except as noted above in
this Paragraph 36) lien and security interest, to the extent perfection may
be effected pursuant to applicable law solely by recording or filing UCC
Financing Statements, on such items of personalty except as enforceability
may be limited as set forth in Paragraph 13. In the case of each Mortgage
Loan secured by a hotel, the related
B-17
loan documents contain such provisions as are necessary and UCC Financing
Statements have been filed as necessary, in each case, to perfect a valid
first security interest in Mortgagor's related operating revenues with
respect to such Mortgaged Property. An assignment of each UCC Financing
Statement relating to the Mortgage Loan has been completed or will be
prepared in blank which the Purchaser or Trustee, as applicable, or its
designee is authorized to complete and to file in the filing office in
which such Financing Statement was filed. Notwithstanding any of the
foregoing, no representation is made as to the perfection or priority of
any security interest in rents or other personal property to the extent
that possession or control of such items or actions other than the filing
of UCC Financing Statements are required in order to effect such
perfection.
(37) Disclosure to Environmental Insurer and Other Matters. If the
Mortgaged Property securing any Mortgage Loan is covered by a secured
creditor impaired property policy, then the Mortgage Loan Seller:
(a) has disclosed, or is aware that there has been disclosed,
in the application for such policy or otherwise to the insurer
under such policy the "pollution conditions" (as defined in such
policy) identified in any environmental reports related to such
Mortgaged Property which are in the Mortgage Loan Seller's
possession or are otherwise known to the Mortgage Loan Seller; or
(b) has delivered or caused to be delivered to the insurer
under such policy copies of all environmental reports in the
Mortgage Loan Seller's possession related to such Mortgaged
Property;
in each case to the extent required by such policy or to the extent the
failure to make any such disclosure or deliver any such report would
materially and adversely affect the Purchaser's ability to recover under
such policy. If the Mortgaged Property securing any Mortgage Loan is
covered by a secured creditor impaired property policy, then: (v) all
premiums for such insurance have been paid and any deductible is held in
escrow by the Mortgage Loan Seller and will be transferred to the
Purchaser; (w) such insurance is in full force and effect; (x) the policy
is in an amount equal to at least 125% of the principal balance of the
Mortgage Loan; (y) the policy has a term that ends no sooner than five (5)
years after the maturity date of the Mortgage Loan and is not cancelable
during such term; and (z) (i) an environmental report, a property condition
report or an engineering report was prepared that included an assessment
for lead based paint ("LBP") (in the case of a multifamily property built
prior to 1978), asbestos containing materials ("ACM") (in the case of any
property built prior to 1985) and radon gas ("RG") (in the case of a
multifamily property) at such Mortgaged Property and (ii) if such report
disclosed the existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting such Mortgaged Property,
then, except as otherwise described on Schedule C-38, (A) the related
Mortgagor was required to remediate such condition or circumstance prior to
the closing of the subject Mortgage Loan, or (B) the related Mortgagor was
required to provide additional security reasonably estimated to be adequate
to cure such condition or circumstance, or (C) the related Mortgage Loan
documents require the related Mortgagor to establish an operations and
maintenance plan with respect to such condition or circumstance after the
closing of such Mortgage Loan.
B-18
If the Mortgage Loan is listed on Schedule B-12D and the environmental
insurance for such Mortgage Loan is not a secured creditor policy but was
required to be obtained by the Mortgagor, then the holder of the Mortgage
Loan is entitled to be an additional insured under such policy, all
premiums have been paid, such insurance is in full force and effect and, to
the Mortgage Loan Seller's knowledge, the Mortgagor has made the
disclosures and complied with the requirements of clauses (a) and (b) of
this Paragraph 37.
(38) Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each
Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treas. Reg. Section 1.860G-1(b)(2).
(39) Operating Statements. Except as set forth on Schedule B-39,
each Mortgage Loan requires the Mortgagor, in some cases only at the
request of the holder of the related Mortgage, to provide the owner or
holder of the related Mortgage with at least quarterly and annual operating
statements, rent rolls (if there is more than one tenant) and related
information and annual financial statements, which annual financial
statements with respect to each Mortgage Loan with an original principal
balance greater than $20 million shall be audited (or prepared and
certified) by an independent certified public accountant upon the request
of the holder of the related Mortgage.
(40) Recourse. Each Mortgage Loan is non-recourse; provided that,
except as described on Schedule B-40, the Mortgagor and either a principal
of the Mortgagor or other individual guarantor, with assets other than any
interest in the Mortgagor, is liable in the event of (i) fraud or material
intentional misrepresentation, (ii) misapplication or misappropriation of
rents, insurance payments, condemnation awards or tenant security deposits
(to the extent received by the related Mortgagor after the occurrence of an
event of default and not paid to the Mortgagee or applied to the Mortgaged
Property in the ordinary course of business), (iii) violation of applicable
environmental laws or breaches of environmental covenants or (iv) the
filing of a voluntary bankruptcy or insolvency proceeding by the Mortgagor;
and provided, further, that, with respect to clause (iii) of the preceding
proviso, an indemnification against losses related to such violations or
environmental insurance shall satisfy such requirement. No waiver of
liability for such non-recourse exceptions has been granted to the
Mortgagor or any such guarantor or principal by the Mortgage Loan Seller or
anyone acting on behalf of the Mortgage Loan Seller.
(41) Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that has not been assigned to the Purchaser.
(42) Fee Simple or Leasehold Interests. The interest of the
related Mortgagor in the Mortgaged Property securing each Mortgage Loan
includes a fee simple and/or leasehold estate or interest in real property
and the improvements thereon.
B-19
(43) Servicing. The servicing and collection practices used with
respect to the Mortgage Loan have complied with applicable law and the
servicing standard set forth in Section 3.01(a) of the Pooling and
Servicing Agreement.
(44) Originator's Authorization To Do Business. To the extent
required under applicable law, at all times when it held such Mortgage
Loan, the originator of such Mortgage Loan was authorized to do business in
the jurisdiction in which the related Mortgaged Property is located to the
extent necessary to ensure the enforceability of such Mortgage Loan.
(45) No Fraud In Origination. In the origination of the Mortgage
Loan, none of the Mortgage Loan Seller, the originator, or any employee or
mortgage broker, if any, of the Mortgage Loan Seller or the originator,
engaged in any fraud or intentional material misrepresentation with respect
to the Mortgagor, the Mortgaged Property or any guarantor. To the Mortgage
Loan Seller's actual knowledge, no Mortgagor is guilty of defrauding or
making an intentional material misrepresentation to the Mortgage Loan
Seller or originator with respect to the origination of the Mortgage Loan,
the Mortgagor or the Mortgaged Property.
(46) Appraisal. In connection with its origination or acquisition
of each Mortgage Loan, the Mortgage Loan Seller obtained an appraisal of
the related Mortgaged Property, which appraisal is signed by an appraiser,
who, to the Mortgage Loan Seller's actual knowledge, had no interest,
direct or indirect, in the Mortgagor, the Mortgaged Property or in any loan
made on the security of the Mortgaged Property, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the
appraisal provides that it satisfy the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, all as in effect on the date
the Mortgage Loan was originated.
(47) Jurisdiction of Organization. In respect of each Mortgage
Loan, in reliance on certified copies of incorporation or partnership or
other entity documents, as applicable, delivered in connection with the
origination of such Mortgage Loan, the related Mortgagor is an entity
organized under the laws of a state of the United States of America, the
District of Columbia or the Commonwealth of Puerto Rico.
(48) Mortgagor Concentration. Except as otherwise specified on
Schedule B-48, no single Mortgagor, and to Mortgage Loan Seller's
knowledge, no group of affiliated Mortgagors is/are the obligor(s) under
any one or more Mortgage Loans with a Cut-off Date Principal Balance of
$50,000,000 or more.
(49) Escrows. All escrow deposits (including capital improvements
and environmental remediation reserves) relating to any Mortgage Loan that
were required to be delivered to the lender under the terms of the related
Mortgage Loan documents, have been received and, to the extent of any
remaining balances of such escrow deposits, are in the possession or under
the control of the Mortgage Loan Seller or its agents (which shall include
the Master Servicer). All such escrow deposits which are required for the
B-20
administration and servicing of such Mortgage Loan are conveyed hereunder
to the Purchaser.
B-21
SCHEDULE TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
GMAC COMMERCIAL MORTGAGE CORPORATION
GLOBAL EXCEPTION FOR ALL MORTGAGE LOANS:
REP #14: Cancellation for non-payment of premiums may occur upon 10 days notice.
REP #33: For loans $20,000,000 and over, the organizational Documents
either require the Mortgagor, managing member or general partner, as
applicable to have an outside independent director or member.
REP #4
TWO GATEWAY CENTER (CONTROL #41837)
EXCEPTIONS:
Rep (4) The related property securing the Mortgage Loan also secures
one other pari passu A note that was securitized in the GMAC 2004-C1
Trust.
REP #7
PARMATOWN (LOAN #44570)
EXCEPTIONS:
Rep (7) There were $55,000 in immediate repairs which were not
reserved.
REP #12
JANSS MARKETPLACE (LOAN #42258)
EXCEPTIONS:
Rep (12)(a) The environmental report is dated as of February 4, 2003.
REP #14
RIVER VILLAGE SHOPPING CENTER (LOAN #41670)
PARMATOWN (LOAN #44570)
STONEWOOD APARTMENTS (LOAN# 45342)
XXXXXXX MOBILE HOME ESTATES (LOAN# 44527)
GREENBRIAR MHP (LOAN# 45428)
CHATEAU CALISTOGA MHP (LOAN# 45537)
B-22
EXCEPTIONS:
The six above referenced loans bear exception to Rep (14). Terrorism
insurance is subject to a limitation on costs.
REP #18
PARMATOWN (LOAN #44570)
EXCEPTIONS:
Rep (18): The ground lease relating to an access easement does not
comply with the following clauses:
Sub-clauses (c), (g), (h), (k) and (l)
COURTYARD TALLAHASSEE (CONTROL #43250)
Rep (18): The ground lease does not comply with the following clause:
Sub-clauses (k)
BANK OF THE WEST (CONTROL #45017)
Rep (18): Two out of the twelve leases relating to parking does not
comply with the following clause:
Sub-clauses (g)
FOX HILL APARTMENTS (CONTROL #44875)
Rep (18): Both ground leases do not comply with the following clause:
Sub-clauses (g) and (h)
REP #00
XXXXXXXX XXXX APARTMENTS (CONTROL #45371)
EXCEPTIONS:
Rep (23) Mezzanine debt is permitted.
B-23
PROVIDENCE BILTMORE HOTEL (CONTROL #43911)
EXCEPTIONS:
Rep (23) The subject $25,000,000 loan represents the senior note in a
$30,500,000 first mortgage loan. The other note, which is subordinate
to the senior note, has an original loan amount of $7,425,877 and is
not included in the trust.
REP #33
TWO GATEWAY CENTER (CONTROL #41837)
EXCEPTIONS:
Rep (33) Managing Member (rather than the Mortgagor) must have two
outside directors.
REP #40
COURTYARD TALLAHASSEE (CONTROL #43250)
EXCEPTIONS:
Rep (40) No natural person has guaranteed the non-recourse carve-outs.
PARMATOWN (LOAN #44570)
EXCEPTIONS:
Rep (40) Under clause (i) only the borrower is subject to recourse.
Under clause (ii) only the borrower is subject to recourse. Under
clause (iii) only the borrower is subject to recourse however, an
environmental insurance policy for $5,000,000 is currently in place.
Under clause (iv) both the borrower and guarantor are subject to
recourse but the guarantor's recourse is limited to $12,500,000.
B-24
EXHIBIT A
SCHEDULE B-12D
B-25
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
GMAC COMMERCIAL MORTGAGE CORPORATION
CERTIFICATE OF SECRETARY
I, the undersigned Assistant Secretary of GMAC COMMERCIAL MORTGAGE
CORPORATION (the "COMPANY" or "MORTGAGE LOAN SELLER"), hereby certify as
follows:
(1) I am a duly elected, qualified and acting Assistant Secretary
of the Company.
(2) The Company is a corporation organized under the laws of the
State of California. A true and correct copy of the Certificate of Good
Standing for the Company issued by the Secretary of State for the State
of California is attached hereto as Exhibit I.
(3) Also attached hereto as Exhibit I are true, correct and
complete copies of the Company's Certificate of Incorporation and
Bylaws, as amended through the date hereof.
(4) Attached hereto as Exhibit II is a copy of certain resolutions
of the Company which have been duly adopted by the Company and which
remain in full force and effect as of the date hereof and have not been
amended, rescinded or impaired in any way.
(5) To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Mortgage Loan Seller are pending or
contemplated.
(6) Each person listed below currently holds the title set forth
opposite his or her name and the signature of each such person (whether
applied manually, by facsimile, or as an electronic signature)
appearing below, opposite his or her name, is his or her genuine
signature:
NAME TITLE SIGNATURE
-------------------------
-------------------------
-------------------------
-------------------------
(7) Each person listed above who signed, either manually or by
facsimile signature, the Mortgage Loan Purchase Agreement, dated as of
August 2, 2004 (the "Purchase Agreement"), between the Mortgage Loan
Seller and GMAC Commercial Mortgage Securities, Inc. providing for the
purchase by GMAC Commercial Mortgage Securities, Inc. from the Mortgage
Loan Seller of the Mortgage Loans, was, at the respective times of such
signing and delivery, duly authorized or appointed to execute
C-1-1
such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine
signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, I have executed this Certificate as of
this ___th day of [________] 2004.
------------------------------------------
[Name], [Assistant] Secretary
C-1-2
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of GMAC Commercial Mortgage Corporation
In connection with the execution and delivery by GMAC Commercial
Mortgage Corporation (the "Mortgage Loan Seller") of, and the consummation of
the transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated as of August 2, 2004 (the "Purchase Agreement"), between GMAC Commercial
Mortgage Securities, Inc. and the Mortgage Loan Seller, the Mortgage Loan Seller
hereby certifies that (i) the representations and warranties of the Mortgage
Loan Seller in the Purchase Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, and (ii) the Mortgage Loan Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the date hereof.
Certified this __th day of [________] 2004.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:
---------------------------------
Name:
Title:
C-2-1
