MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of June 1, 1997 (the
"Agreement"), between GE Capital Access, Inc. (the "Seller") and Xxxxxxx Xxxxx
Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase,
without recourse except as specifically provided herein, certain multifamily and
commercial mortgage loans (the "Mortgage Loans") as provided herein. The
Purchaser intends to deposit them, together with the Daiwa Mortgage Loans (as
defined below) and MLMC Mortgage Loans (as defined below), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to the Trust Fund. The Trust Fund will be
created and the Certificates will be issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of June 1, 1997 (the
"Cut-off Date"), among the Purchaser as depositor, GE Capital Asset Management
Corporation as master servicer (in such capacity, the "Master Servicer"), GE
Capital Realty Group, Inc. as special servicer (in such capacity, the "Special
Servicer"), General Electric Capital Corporation, ABN AMRO Bank N.V. as fiscal
agent (in such capacity, the "Fiscal Agent") and LaSalle National Bank as
trustee (the "Trustee"). Concurrently with the purchase of Mortgage Loans
pursuant to this Agreement, the Purchaser will also purchase multifamily and
commercial mortgage loans pursuant to a Mortgage Loan Purchase Agreement, dated
as of June 1, 1997, between Daiwa Finance Corp. ("Daiwa") and the Purchaser (the
"Daiwa Agreement") and pursuant to a Mortgage Loan Purchase Agreement, dated as
of June 1, 1997, between Xxxxxxx Xxxxx Mortgage Capital Inc. ("MLMC") and the
Purchaser (the "MLMC Agreement"). Such mortgage loans (the "Daiwa Mortgage
Loans" and the "MLMC Mortgage Loans", respectively) will likewise be deposited
into the Trust Fund. Capitalized terms used but not defined herein have the
respective meanings set forth in the Pooling and Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
(a) The Seller agrees to sell, and the Purchaser agrees to purchase,
without recourse except as specifically provided herein, the Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. The Mortgage Loan Schedule may be amended to reflect the actual
Mortgage Loans. (The Mortgage Loans identified on the Mortgage Loan Schedule
shall hereinafter be referred to as the "GECA Mortgage Loans.") The GECA
Mortgage Loans will have an aggregate principal balance of $160,978,732 (the
"GECA Balance") as of the close of business on the Cut-off Date, after giving
effect to any payments due before such date whether or not received. The GECA
Balance, the Daiwa Balance (as defined in the Daiwa Agreement) and the MLMC
Balance (as defined in the MLMC Agreement) together equal an aggregate principal
balance (the "Initial Pool Balance") of $840,787,856. The purchase and sale of
the GECA Mortgage Loans shall take place on June 26, 1997 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date"). The
consideration for the GECA Mortgage Loans shall consist of a cash amount equal
to (A) 100% of the GECA Balance, plus (B) interest accrued on each MLMC Mortgage
Loan at the related Mortgage Rate, for the period from and including the Cut-off
Date up to but not including the Closing Date, which cash amount shall be paid
to the Seller or its designee by wire transfer in immediately available funds on
the Closing Date.
The Purchaser will assign to the Trustee, all of its right, title
and interest in and to the GECA Mortgage Loans.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the GECA
Mortgage Loans identified on the Mortgage Loan Schedule as of such date. The
Mortgage Loan Schedule, as it may be amended, shall conform to the requirements
set forth in this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the GECA Mortgage Loans due
on or before the Cut-off Date). All scheduled payments of principal and interest
due on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the GECA Mortgage Loans due on or
before the Cut-off Date), shall belong to, and be promptly remitted to, the
Seller.
(c) The Seller hereby represents and warrants that it has, on behalf
of the Purchaser, delivered to the Trustee, the documents and instruments
specified below with respect to each GECA Mortgage Loan (each a "Mortgage
File"). All Mortgage Files so delivered will be held by the Trustee in escrow at
all times prior to the Closing Date. Each Mortgage File shall, except as
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otherwise disclosed on Exhibit B hereto, contain the following documents:
(i) the original executed Mortgage Note, endorsed (including
interim endorsements and without recourse,
representation or warranty, express or implied) to the
order of LaSalle National Bank, as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series
1997-C1;
(ii) an original or copy of the Mortgage and of any
intervening assignments thereof, in each case with
evidence of recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases
(with recording information indicated thereon), if such
item is a document separate from the Mortgage;
(iv) an original executed assignment of the Mortgage, any
related Assignment of Leases (if such item is a document
separate from the Mortgage), and any other recorded
document relating to the Mortgage Loan otherwise
included in the Mortgage File, in favor of LaSalle
National Bank, as trustee for the registered holders of
Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1997-C1;
(v) an original assignment of all unrecorded documents
relating to the Mortgage Loan, in favor of LaSalle
National Bank, as trustee for the registered holders of
Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1997-C1, in recordable
form;
(vi) originals or copies of any written modification
agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have been
modified;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with the
origination of such Mortgage Loan, or, if such policy
has not been issued, an irrevocable, binding commitment
to issue such title insurance policy; and
(viii) filed copies of any prior UCC Financing Statements in
favor of the originator of such
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Mortgage Loan or in favor of any assignee prior to the
Trustee (but only to the extent the Seller had
possession of such UCC Financing Statements prior to the
Closing Date) and, if there is an effective UCC
Financing Statement in favor of the Seller on record
with the applicable public office for UCC Financing
Statements, an original UCC-2 or UCC-3, as appropriate,
in favor of LaSalle National Bank, as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series
1997-C1.
(d) Within 30 days following the Closing Date, the Purchaser shall
submit or cause to be submitted for recordation or filing, as the case may be,
in the appropriate public office for real property records or Uniform Commercial
Code financing statements, as appropriate, each assignment of Mortgage and each
assignment of Assignment of Leases referred to in clause (iv) of subsection (c)
above and each UCC-2 and UCC-3 in favor of and delivered to the Trustee
constituting part of the Mortgage File. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, then the Seller shall promptly prepare a substitute therefor or cure
such defect or cause such to be done, as the case may be, and the Seller shall
promptly deliver such substitute or corrected document or instrument to the
Purchaser or its designee.
(e) All documents necessary to the servicing of the GECA Mortgage
Loans and in the Seller's possession (the "Additional Mortgage Loan Documents")
that are not required to be delivered to the Trustee shall be delivered or
caused to be delivered by the Seller to the Master Servicer or at the direction
of the Master Servicer, to the appropriate sub-servicer.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and
is duly authorized and qualified to transact any and all business
contemplated by this Agreement and possesses all requisite authority,
power, licenses, permits and franchises to execute, deliver and comply
with its obligations under the terms of this Agreement and to carry on its
business as currently conducted by it, except to the extent that the
failure to obtain the same would not, in the Seller's good faith judgment,
materially and adversely affect the condition (financial or other),
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operations of the Seller or its properties, or the value of the Mortgage
Loans.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights in general and by general
equity principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law), or by public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from liabilities under
applicable securities laws.
(iii) The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's certificate of incorporation
or By-Laws, (B) violate any law or regulation or any administrative decree
or order to which it is subject or (C) 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 contract, agreement or
other instrument to which the Seller is a party or which may be applicable
to the Seller or any of its assets.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or have consequences
that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement.
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(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would, in the Seller's good
faith and reasonable judgment, prohibit its entering into this Agreement
or adversely affect the performance by the Seller of its obligations under
this Agreement.
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the transfer
of the GECA Mortgage Loans to the Purchaser as a sale of the GECA Mortgage
Loans to the Purchaser in exchange for consideration consisting of a cash
amount equal to (A) 100% of the GECA Balance, plus (B) interest accrued on
each GECA Mortgage Loan at the related Mortgage Rate, for the period from
and including the Cut-off Date up to but not including the Closing Date.
The consideration received by the Seller upon the sale of the GECA
Mortgage Loans to the Purchaser will constitute reasonably equivalent
value and fair consideration for the GECA Mortgage Loans. The Seller will
be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the GECA Mortgage Loans to the Purchaser. The
Seller is not selling the GECA Mortgage Loans to the Purchaser with any
intent to hinder, delay or defraud any of the creditors of the Seller.
(ix) Immediately prior to the sale of the GECA Mortgage Loans
to the Purchaser as herein contemplated, the Seller will have good title
thereto and be the sole owner thereof, and such sale will transfer the
GECA Mortgage Loans to the Purchaser free and clear of any pledge, lien,
encumbrance or security interest.
(x) The Prospectus dated June 5, 1997, as of the date of the
Prospectus Supplement dated June 20, 1997 (the "Prospectus Supplement"),
or as of the Closing Date, does not include any untrue statement of a
material fact relating to the MLMC Mortgage Loans or the Seller in the
Sections entitled "SUMMARY-Mortgage Loan Sellers", "SUMMARY-The Mortgage
Pool" and "DESCRIPTION OF THE MORTGAGE POOL" in the Prospectus Supplement,
or omitted or omits to state therein a material fact necessary in order to
make the statements in such Sections relating to the GECA Mortgage Loans
or the Seller, in light of the circumstances under which they were made,
not misleading, and the Memorandum (as defined in the Certificate Purchase
Agreement, dated as of June 26, 1997), as of the date thereof or as of the
Closing Date, insofar as
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the Memorandum incorporates such sections of the Prospectus Supplement,
does not include any untrue statement of a material fact relating to the
GECA Mortgage Loans or the Seller or omitted or omits to state therein a
material fact necessary in order to make the statements therein relating
to the GECA Mortgage Loans or the Seller, in the light of the
circumstances under which they were made, not misleading. As the sole
remedy for breach of this representation, the Seller shall indemnify the
Purchaser against any and all losses, claims, damages or liabilities to
which the Purchaser may become subject as a result of the breach of the
representations contained in this Section 3(a)(x) pursuant to Section 7
hereof.
(b) The Seller hereby represents and warrants for the benefit of the
Purchaser and the Trustee for the benefit of the Certificateholders, as of the
Closing Date, with respect to each GECA Mortgage Loan, that:
(i) The Seller has good and marketable title to, and is the
sole owner and holder of, the Mortgage Loan.
(ii) The Seller has full right and authority to sell, assign
and transfer the Mortgage Loan.
(iii) The information pertaining to the Mortgage Loan set
forth in the Mortgage Loan Schedule is true, correct and complete in all
material respects as of the Cut-off Date.
(iv) The related Mortgagor has represented to the Seller or
the Mortgagee, as applicable, that as of the date of origination of the
Mortgage Loan, such Mortgagor, lessee and/or operator was in possession of
all licenses, permits, and authorizations then required for use of the
Mortgaged Property which were valid and in full force and effect as of the
origination date.
(v) The origination, servicing and collection practices used
by the Seller and, to the best of Seller's knowledge, any prior holder of
the Mortgage Note have been in all respects legal, proper and prudent and
have met customary industry standards.
(vi) The Seller is transferring the Mortgage Loan to the
Purchaser free and clear of any liens, pledges, charges and security
interests and the related Mortgage and Mortgage Note do not prohibit such
transfer.
(vii) The proceeds of the Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder.
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(viii) If such Mortgage Loan was originated by the Seller or
an affiliate thereof, the Mortgage Loan complied with all applicable
usury, truth-in-lending, real estate settlement, equal credit opportunity,
disclosure and any other material laws applicable to such origination as
of the origination date; and if such Mortgage Loan was not originated by
the Seller or an affiliate thereof, then, to the best of the Seller's
knowledge after having performed the type of due diligence customarily
performed by prudent institutional commercial and multifamily mortgage
lenders, the Mortgage Loan complied with all applicable usury,
truth-in-lending, real estate settlement, equal credit opportunity,
disclosure and any other material laws applicable to the origination of
such Mortgage Loan as of the origination date.
(ix) Each of the related Mortgage Note, related Mortgage and
other agreements executed in connection therewith 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 legislation), enforceable in the applicable state in
accordance with its terms and contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the related Mortgaged Property or
properties of the benefits of the security, including realization by
judicial or, if applicable, non-judicial foreclosure, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and, to
the best of Seller's knowledge, there is no valid defense, counterclaim or
right of offset or rescission available to the related Mortgagor as of the
Closing Date with respect to such Mortgage Note, Mortgage or other
agreements.
(x) The Mortgage File contains an Assignment of Leases (or the
related Mortgage provides for such an assignment), which creates, in favor
of the holder of the Note, a valid first-priority assignment of or
security interest in the right to receive all payments due under the
related leases, and no other person owns any interest therein superior to
or of equal priority with the interest created under such assignment;
provided that the enforceability of such lien is subject to applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws
affecting the enforcement of creditors' rights generally, and by the
application of the rules of equity.
(xi) Since the origination of the Mortgage Loan the terms of
the related Mortgage Note, Mortgage and
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Security Agreements have not been impaired, waived, modified, altered,
satisfied, canceled or subordinated by the Seller, the originator or the
servicer thereof in any respect, except, in each of the foregoing
instances, by written instruments that are a part of the related Mortgage
File, recorded in the applicable public recording office if necessary to
maintain the priority of the lien of the related Mortgage and Security
Agreements and delivered to the Purchaser.
(xii) The Mortgage Loan complies with the Seller's or the
Seller's affiliate's that originated the Mortgage Loan underwriting
policies in effect as of such Mortgage Loan's origination date or, in the
case of Mortgage Loans acquired by the Seller (other than from an
affiliate), as of the date of such acquisition, (as applicable), and,
except for the Mortgage Loans acquired by the Seller, is on a form
commonly used by the Seller as of such date.
(xiii) The related Mortgage Note is not secured by any
collateral that is not being transferred to the Purchaser and each
Mortgage Loan that is cross-collateralized is cross-collateralized only
with other Mortgage Loans sold pursuant to this Agreement.
(xiv) The assignment of the related Mortgage and assignment of
leases to the Trustee constitutes the legal, valid, binding and
enforceable assignment of such Mortgage in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(xv) The Mortgage Loan is not a participation interest in a
mortgage loan, but is a whole loan, and the Seller does not own any equity
interest in the Mortgagor.
(xvi) Except with respect to the Mortgage Loans listed on
Exhibit C attached hereto, which provide for hyperamortization, the
Mortgage Loan does not contain any terms providing for a contingent
interest, or negative amortization.
(xvii) The related Mortgage creates a first-mortgage lien on
the related Mortgaged Property. Such lien has priority over all other
liens and encumbrances (including mechanic's or materialmen's liens)
except for (A) the lien for current real estate taxes and assessments not
yet due and payable and (B) covenants, conditions and restrictions, rights
of way, easements and other non-lien matters that are of public record and
are referred to in the related lender's title insurance policy, none of
which,
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individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage. A UCC financing statement has
been filed and/or recorded in all places necessary to perfect a valid
security interest in the personal property, granted under such Mortgage
for which perfection is accomplished by the filing of a UCC financing
statement; any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes
and creates a valid and enforceable first lien and first priority security
interest on the property described therein, provided that enforceability
may be limited by bankruptcy or other laws affecting creditor's rights or
by the application of the rules of equity.
(xviii) The related Mortgage Note and Mortgage do not require
the Mortgagee thereof to release any portion of the related Mortgaged
Property from the lien of the Mortgage that would have a material and
adverse affect on the related Mortgage Loan except upon payment in full of
the Mortgage Loan.
(xix) As of the Cut-off Date, there are no delinquent taxes,
assessments or other governmental charges which would be a lien against
the related Mortgaged Property affecting the related Mortgaged Property or
an escrow of funds in an amount sufficient to cover such payments has been
established.
(xx) Except as set forth in Exhibit D attached hereto, all
escrows, reserves, deposits and other payments relating to the Mortgage
Loan are under the control of the Seller or servicer of such Mortgage Loan
and all amounts required as of the date hereof under the Mortgage Loan
Documents to be deposited by the related Mortgagor have been deposited and
to the best of Seller's knowledge, to the extent such amounts have been
applied, they have been applied as intended. All such escrows, reserves,
deposits and other payments have been conveyed by the Seller to the
Trustee.
(xxi) (A) Except for certain delinquent payments, none of
which were thirty (30) or more days past the date when first due, since
the later of one year prior to the Closing Date or, if applicable, the
date of acquisition by the Mortgage Loan Seller of such Mortgage Loan,
through the Cut-Off Date, there was no material default, breach, violation
or event of acceleration existing under the related Mortgage or the
related Mortgage Note, and to the best knowledge of Seller, after due
inquiry, no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration; and (B) the Seller
has not waived any material
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default, breach, violation or event of acceleration of any of the
foregoing, and, pursuant to the terms of the related Mortgage or the
related Mortgage Note, no person or party other than the holder of such
Mortgage Note may declare any event of default or accelerate the related
indebtedness under either of such Mortgage or Mortgage Note.
(xxii) Except as set forth in Exhibit E attached hereto, the
related Mortgage provides that the Mortgagor is required to provide to the
Mortgagee at least annually an operating statement, rent roll (if
applicable and if requested by the Mortgagee) and balance sheet, and if
requested in accordance with the terms of the Mortgage Loan, rent rolls,
with respect to the Mortgaged Property certified by a duly authorized
officer of the Mortgagor as true and correct as of the date thereof.
(xxiii) There is no proceeding known to the Seller to be
pending, after due inquiry, or threatened in writing for the total or
partial condemnation of a material part of the related Mortgaged Property,
and the Mortgaged Property is free and clear of any damage not covered by
insurance that would materially and adversely affect its value as security
for the Mortgage Loan; to the Seller's actual knowledge, there are no
pending actions, suits or proceedings by or before any court or
governmental authority against or affecting the related Mortgagor 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 or the ability of the Mortgagor to pay principal,
interest or any other amounts due under such Mortgage Loan.
(xxiv) Based on the type of due diligence customarily
performed by prudent institutional commercial and multifamily mortgage
lenders, each improvement located on or forming part of the related
Mortgaged Property complies with applicable laws and zoning ordinances, or
constitutes a legal non-conforming use or structure or, if such an
improvement does not so comply, such non-compliance does not materially
and adversely affect the value or operation of the Mortgaged Property.
(xxv) None of the improvements included for the purpose of
determining the appraised value of the related Mortgaged Property at the
time of the origination of the Mortgage Loan lies outside of the
boundaries and building restriction lines of the related Mortgaged
Property, except for certain immaterial encroachments therefrom, and no
improvements on adjoining properties materially encroach upon the related
Mortgaged Property.
(xxvi) The related Mortgaged Property is covered by an ALTA
lender's title insurance policy or its
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equivalent, insuring for the benefit of the original holder of the related
Note, its successors and assigns, that the related Mortgage is a valid
first mortgage lien on such Mortgaged Property in the original principal
amount of the related Note, subject only to the exceptions stated therein,
which do not and will not materially and adversely interfere with (1) the
ability of the related Mortgagor timely to pay in full the principal and
interest on the related Mortgage Note, or (2) the use of such Mortgaged
Property for the use currently being made thereof, or (3) the value of the
Mortgaged Property, and such policy is freely assignable to the trustee
without the consent of or any notification to the insurer; and such title
insurance policy is in full force and effect, no claims have been made
thereunder and to the best knowledge of the Seller, no holder of the
related Mortgage has done anything that would materially impair the
coverage under such policy.
(xxvii) The related Mortgaged Property is insured by a fire
and extended perils insurance policy that provides coverage in an amount
not less than the lesser of (a) the outstanding principal balance of the
Mortgage Loan and (b) the full replacement cost and, in any event, such
insurance policy is in an amount necessary to avoid the operation of any
co-insurance provisions with respect to the Mortgaged Property; each
related Mortgage obligates the related Mortgagor to maintain or cause to
be maintained all such insurance and at such Mortgagor's failure to do so,
does not prohibit the Mortgagee from maintaining such insurance, and such
insurance requires, or the related Mortgage requires the Mortgagor to
cause the related insurer to provide, prior notice to the Mortgagee at
termination or cancellation, and no such notice has been received; any
insurance proceeds in respect of a casualty loss or taking, will be
applied either to the repair or restoration of all or part of the related
Mortgaged Property or the payment of the outstanding principal balance of
the related Mortgage Loan, except for certain amounts not greater than
amounts which would be considered prudent by an institutional commercial
mortgage lender with respect to a similar mortgage loan and which are set
forth in the related Mortgage. Except as set forth on Exhibit F attached
hereto, the Mortgagee is named as a beneficiary under such insurance
policy.
(xxviii) Except as set forth on Exhibit G attached hereto, the
related Mortgaged Property is insured by business interruption or rent
insurance, in an amount at least equal to 12 months (or, in the case of
the Mortgage Loans listed in Exhibit H attached hereto, 6 months) of
operations of such Mortgaged Property and comprehensive general liability
insurance in an amount not less than $1 million per occurrence.
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(xxix) Except as set forth on Exhibit I attached hereto, no
improvements on a related Mortgaged Property are located in a "flood
hazard area" as defined by the Federal Insurance Administration or, if so
located, are covered by flood hazard insurance.
(xxx) The Mortgage Loan represents a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code. The Seller
represents and warrants that, either as of the date of origination or the
Closing Date, the fair market value of the property securing the Mortgage
Loan was not less than 80% of the "adjusted issue price" (within the
meaning of the REMIC Provisions) of such Mortgage Loan.
(xxxi) Prepayment Premiums and Yield Maintenance Charges
payable with respect to the Mortgage Loan, if any, constitute "customary
prepayment penalties" within the meaning of Treasury regulation Section
1.860G-1(b)(2).
(xxxii) A Phase I Environmental Site Assessment was performed
with respect to the related Mortgaged Property. Such Phase I Environmental
Site Assessment was performed within eight (8) months prior to their
respective dates of origination. A report of such Phase I Environmental
Site Assessment has been delivered to the Purchaser, and the Seller (or
its affiliate that originated the Mortgage Loan), having made no
independent inquiry other than reviewing such report, has no knowledge of
any material and adverse environmental condition or circumstance affecting
the related Mortgaged Property that was not disclosed in such report. To
the extent any such condition or circumstance was disclosed, there has
been escrowed an amount of money considered sufficient by the Seller,
based upon the related environmental reports, to cure and remedy such
condition or circumstance as recommended in the Phase I or, where
applicable, Phase II Environmental Site Assessment or such condition has
been cured and remedied. The Seller has received no notice of any other
such condition or circumstance.
(xxxiii) The Mortgage Loan contains a representation made by
the Mortgagor in substance that it has not and will not use, cause or
permit to exist on the related Mortgaged Property any hazardous materials
in any manner that violates federal, state or local laws, ordinances,
regulations or orders. The Mortgage Loan requires that the Mortgagor will
defend and hold the holder of the Mortgage and its successors and/or
assigns harmless from and against any and all losses, liabilities,
damages, injuries, penalties, fines, expenses, and claims of any kind
whatsoever (including attorney's fees and costs) paid, incurred, or
suffered by, or asserted against, any such party resulting from a breach
of any representation,
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warranty or covenant relating to environmental matters given by the
Mortgagor under the related Mortgage except for those resulting from gross
negligence or willful misconduct by the holder of the Mortgage or those
which are initially placed on, in or under the Mortgaged Property after
foreclosure or other taking of title to the Mortgaged Property by the
holder of the Mortgage. Subject to the last sentence of this clause
(xxxiii), to the best of the Seller's knowledge, having made no
independent inquiry other than reviewing Phase I and Phase II (where
applicable) Environmental Site Assessments, (i) the Mortgaged Property is
in material compliance with all applicable federal, state and local laws
pertaining to environmental regulation, contamination or clean-up, and
(ii) no notice of violation of such laws has been issued by any
governmental agency or authority, except as disclosed in environmental or
engineering assessments, including Phase I Environmental Site Assessments
or additional assessments (including Phase II Environmental Site
Assessments). To the extent any material violation was disclosed, there
has been escrowed an amount of money considered sufficient by the Seller,
based upon the related environmental reports, to cure and remedy such
condition or circumstance as recommended in the Phase I or Phase II
Environmental Site Assessment or such condition has been cured and
remedied.
(xxxiv) To the best knowledge of the Seller, after due inquiry
at origination, the Mortgagor is not a debtor in any state or federal
bankruptcy, insolvency, reorganization or similar proceeding.
(xxxv) No advance of funds has been made directly or
indirectly, by the Seller to the Mortgagor other than pursuant to the Note
and to Seller's (or its affiliate's that originated the Mortgage Loan)
knowledge, no funds have been received from any person other than such
Mortgagor for or on account of payments due on the Note.
(xxxvi) The related Mortgage prohibits, without the prior
written consent of the holder of such Mortgage, any sale or transfer of,
or pledge or lien on, the related Mortgaged Property, whether such lien
may be equal or subordinate to the lien of the related Mortgages, other
than (1) certain subordinate liens governed by standstill agreements which
each provide that the subordinate lender may not accelerate or otherwise
take any remedial action for so long as the Mortgage Loan is outstanding
(the Mortgaged Properties encumbered by such subordinate liens and the
principal amounts of and interest rates on the related debt are set forth
on Exhibit J-1 attached hereto) and (2) certain subordinate liens that may
be incurred in the future on the Mortgaged Properties set forth on Exhibit
J-2 attached hereto, provided that the future subordinate debt secured by
such liens (a) when combined with the applicable
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Mortgage Loan does not exceed an 80% loan-to-value and has at least a 1.20
debt service coverage and (b) is subject to a standstill agreement with
provisions similar to those represented above for existing subordinate
liens.
(xxxvii) If the related Mortgaged Property is a retail,
office, industrial or multifamily property, to the best of Seller's (or
its affiliate's affiliate that originated the Mortgage Loan) knowledge,
(i) the information contained in the related schedule of leases or most
recent rent roll, as the case may be, is true and correct in all material
respects, (ii) all leases set forth therein are in full force and effect,
and (iii) except as set forth in Exhibit K attached hereto, based on
Mortgagor's representations, tenant estoppel certificates or other
documents obtained by the Seller (or its affiliate that originated the
Mortgage Loan) from the related Mortgagor and/or tenants in connection
with the origination of the related Mortgage Loan, no material default by
the Mortgagor or the lessees has occurred under such leases, nor, to the
best of the Seller's knowledge, is there any existing condition which, but
for the passage of time or the giving of notice, or both, would result in
a material default under the terms of such lease.
(xxxviii) Except with respect to the Mortgage Loans identified
in Exhibit L attached hereto, if the principal balance of the related
Mortgage Loan is greater than $10 million, the related Mortgagor is a
person, other than an individual, which is formed or organized solely for
the purpose of owning and operating the Mortgaged Property (or has
covenanted to restrict its operations to owning or operating the Mortgaged
Property), does not engage in any business unrelated to such property and
its financing, does not have any assets other than those related to its
interest in the property or its financing, or any indebtedness other than
as permitted by the related Mortgage and the other Mortgage Loan
documents, has its own books and records and accounts separate and apart
from any other person, and holds itself out as being a legal entity,
separate and apart from any other person.
(xxxix) With respect to any Mortgage Loan that is secured in
whole or in part by the interest of a Mortgagor as a lessee under a Ground
Lease (for these purposes, the term "Ground Lease" includes any related
ground lessor estoppels and any other writings from ground lessor) but not
by the related fee interest:
(A) Such Ground Lease or a memorandum thereof has been duly
recorded and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if consent of the
lessor thereunder is required, it has been obtained prior to the Closing
Date;
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(B) The Mortgagor's interest in such Ground Lease is
assignable to the Trustee without the consent of the lessor thereunder
(or, if any 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 Trustee and its successors without a need to obtain the
consent of such lessor;
(C) Such Ground Lease may not be amended, modified, canceled
or terminated without the prior written consent of the Mortgagee and that
any such action without such consent is not binding on the Mortgagee, its
successors or assigns.
(D) Unless otherwise set forth in the Ground Lease, the Ground
Lease does not permit any increase in the amount of rent payable by the
Ground Lessee thereunder during the term of the Mortgage Loan.
(E) To the best of the Seller's knowledge, at the Closing
Date, such Ground Lease is in full force and effect and no default or
condition which with passage of time would become a default, has occurred
under such Ground Lease;
(F) Such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the Mortgagee; and such Ground
Lease, or an estoppel or consent letter received by the Mortgagee from the
lessor, further provides that no notice of termination given under such
Ground Lease is effective against the mortgagee unless a copy has been
delivered to the mortgagee in the manner described in such Ground Lease or
estoppel or consent letter;
(G) The ground lessee's interest in the Ground Lease (I) is
not subject to any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than the related ground lessor's related
fee interest and any exceptions stated in the related title insurance
policy or opinion of title, which exceptions do not and will not
materially and adversely interfere with (1) the ability of the related
Mortgagor timely to pay in full the principal and interest on the related
Mortgage Note, (2) the use of such Mortgaged Property for the use
currently being made thereof, or (3) the value of the Mortgaged Property
and (II) will not be interfered with in the event of any foreclosure or
other action taken by any mortgagee of the ground lessor's fee interest.
(H) A Mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of the
interest of the lessee under such
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Ground Lease) to cure any curable default under such Ground Lease before
the lessor thereunder may terminate such Ground Lease.
(I) Such Ground Lease has an original term (including any
extension options set forth therein) that extends not less than 10 years
beyond the final maturity date of the related Mortgage Loan.
(J) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or condemnation
proceeds, will be applied either to the repair or restoration of all or
part of the related Mortgaged Property, with the lessee's mortgagee or a
trustee appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses, or to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon.
(K) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender.
(L) Upon request, the Ground Lessor is required to enter into
a new lease upon termination of the Ground Lease for any reason, on
substantially similar terms and conditions as the old lease including the
rejection of the lease in bankruptcy.
(M) To the best of Seller's (or its affiliates which
originated the Mortgage Loan) knowledge, the terms of the related Ground
Lease have not been waived, modified, altered, satisfied, impaired,
cancelled, subordinated or rescinded in any manner which materially
interferes with the security intended to be provided by such Mortgage.
(xl) As of the Cut-off Date, the aggregate principal amount of
any Mortgage Loan or group of Mortgage Loans made to one borrower or group
of affiliated borrowers does not exceed $17,353,225. Based on information
obtained from the related Mortgagor at the time of origination, a list of
borrowers or groups of affiliated borrowers with multiple Mortgage Loans
is attached hereto as Exhibit M.
(xli) With respect to any Mortgage Loan that is secured in
whole or in part by a Mortgaged Property which is operated as a
residential health care facility (a "Facility"), if any:
(A) All governmental licenses, permits, regulatory agreements or
other approvals or agreements necessary or desirable for the use and
operation of each Facility as intended are held by the related Mortgagor
or the operator
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of the Facility, and are in full force and effect, including, without
limitation, a valid certificate of need ("CON") or similar certificate,
license, or approval issued by the applicable department of health for the
requisite number of beds, and approved provider status in any approved
provider payment program (collectively, the "Licenses").
(B) The Licenses (a) may not be, and have not been, transferred to
any location other than the Facility; (b) have not been pledged as
collateral security for any other loan or indebtedness; and (c) are held
free from restrictions or known conflicts which would materially impair
the use or operation of the Facility as intended, and are not provisional,
probationary or restricted in any way.
(C) As of the Cut-off Date and to Seller's knowledge, without
inquiry, as of the Cut-off Date, the Facility has not received a "Level A"
(or equivalent) violation which has not been cured to the satisfaction of
the applicable governmental agency, and no statement of charges or
deficiencies has been made or penalty enforcement action has been
undertaken against the Facility, its operator or the Mortgagor or against
any officer, director or stockholder of such operator or the Mortgagor by
any governmental agency during the last three calendar years, and there
have been no violations over the past three years which have threatened
the Facility's, the operator's or the Mortgagor's certification for
participation in Medicare or Medicaid or the other third-party payors'
programs.
(c) If the Seller receives notice of a Document Defect or a Breach
(the "Defect/Breach Notice"), which materially and adversely affects the
interests of the Certificateholders, then the Seller shall within 90 days after
its receipt of the Defect/Breach Notice (i) cure such Document Defect or Breach,
as the case may be, in all material respects, which shall include payment of
losses and any Additional Trust Fund Expenses associated therewith, or (ii)
repurchase the affected GECA Mortgage Loan (or the related Mortgaged Property)
from the Trustee at a price equal to the Purchase Price; provided, however, that
if such Document Defect or Breach is capable of being cured but not within such
90-day period and the Seller has commenced and is diligently proceeding with the
cure of such Document Defect or Breach within such 90-day period, the Seller
shall have an additional 90 days to complete such cure; and provided, further,
that with respect to such additional 90-day period the Seller shall have
delivered an Officer's Certificate to the Trustee setting forth the reason such
Document Defect or Breach is not capable of being cured within the initial
90-day period and what actions the Seller is pursuing in connection with the
cure thereof and stating that the Seller anticipates that such Document Defect
or Breach will be cured within the additional 90-day period. Notwithstanding the
foregoing, the delivery of a commitment to issue a policy of lender's title
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insurance as described in Section 3(b)(xxvi) in lieu of the delivery of the
actual policy of lender's title insurance shall not be considered a Document
Defect with respect to any Mortgage File if such actual policy of insurance is
delivered to the Trustee or a Custodian on its behalf not later than the 90th
day following the Closing Date. The Seller's obligation to cure a Document
Defect or Breach or to repurchase any affected GECA Mortgage Loan as described
above shall constitute the sole and exclusive remedy for a Document Defect or
Breach.
SECTION 4. Representations and Warranties of the Purchaser. In order to
induce the Seller to enter into this Agreement, the Purchaser hereby represents
and warrants for the benefit of the Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Purchaser has
the full corporate power and authority and legal right to acquire the GECA
Mortgage Loans from the Seller and to transfer the GECA Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws
(and will be obtained on a timely basis), 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 by the Purchaser of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction described in
this Agreement.
(d) None of the acquisition of the GECA Mortgage Loans by the
Purchaser, the transfer of the GECA Mortgage Loans to the Trustee, and the
execution, delivery or performance of this Agreement by the Purchaser, conflicts
or will conflict with, results or will result in a breach of, or constitutes or
will constitute a default under (A) any term or provision of the Purchaser's
Articles of Incorporation or Bylaws, (B) any term or provision of any material
agreement, contract, instrument or indenture, to which the Purchaser is a party
or by which the
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Purchaser is bound, or (C) any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having jurisdiction
over the Purchaser or its assets.
(e) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the GECA Mortgage Loans by the Seller to the
Purchaser as a sale of the GECA Mortgage Loans to the Purchaser in exchange for
consideration consisting of a cash amount equal to (A) 100% of the GECA Balance,
plus (B) interest accrued on each GECA Mortgage Loan at the related Mortgage
Rate, for the period from and including the Cut-off Date up to but not including
the Closing Date.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Xxxxxxx Xxxx & Xxxxxxxxx, One
Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M.,
New York time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in Sections 3(a), 3(b) and 3(c) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement shall be true and correct in all material respects as of the Closing
Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Custodian
and the Master Servicer, respectively, all documents represented to have been or
required to be delivered to the Trustee and the Master Servicer pursuant to
Section 2 of this Agreement;
(d) 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 Seller shall have the ability to comply with all terms and conditions and
perform all duties and obligations required to be complied with or performed
after the Closing Date; and
(e) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will
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enable the Purchaser to purchase the GECA Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of the
following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A Certificate of the Seller, executed by a duly authorized
officer or other authorized signatory of the Seller and dated the Closing Date,
and upon which the Purchaser and the Underwriters may rely, to the effect that:
(1) the representations and warranties of the Seller in this Agreement are true
and correct in all material respects at and as of the Closing Date with the same
effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the date hereof;
(c) An Officer's Certificate from an officer of the Seller, in his
or her individual capacity, dated the Closing Date, and upon which the Purchaser
may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) [Reserved];
(e) The resolutions of the board of directors of the Seller and any
requisite shareholder consent authorizing the Seller's entering into the
transactions contemplated by this Agreement (or other evidence of such
authorization acceptable to the Purchaser), the certificate of incorporation and
by-laws of the Seller, and a certificate of good standing of the Seller issued
by the Secretary of State of the State of Delaware not earlier than sixty (60)
days prior to the Closing Date;
(f) A written opinion of counsel for the Seller in form and
substance acceptable to the Purchaser and its counsel, with any modifications
required by the rating agencies identified in the Prospectus Supplement (the
"Rating Agencies"), dated the Closing Date and addressed to the Purchaser, the
Underwriters and each of the Rating Agencies, together with such other written
opinions as may be required by the Rating Agencies; and
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(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
the Underwriters, their respective officers and directors, and each person, if
any, who controls the Purchaser or the Underwriters within the meaning of either
Section 15 of the Securities Act of 1933 (the "1933 Act") or Section 20 of the
Securities Exchange Act of 1934 (the "1934 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 1933 Act, the 1934 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 in whole or in part upon any untrue statement or alleged untrue
statement of a material fact relating to the GECA Mortgage Loans or the Seller
contained in the Sections entitled "SUMMARY-Mortgage Loan Sellers", "SUMMARY-The
Mortgage Pool" and "DESCRIPTION OF THE MORTGAGE POOL" in the Prospectus
Supplement, and in the Private Placement Memorandum insofar as the Private
Placement Memorandum incorporates such sections of the Prospectus Supplement, or
arise out of or are based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading, which untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon any information furnished to the
Purchaser by the Seller or approved by the Seller, or upon any document
delivered to the Purchaser by the Seller, or upon any of the representations,
warranties, covenants or agreements of the Seller as set forth in this Agreement
(collectively, the "Seller's Information"), it being acknowledged that the
statements set forth in the Prospectus Supplement under the caption
"SUMMARY-Mortgage Loan Sellers", SUMMARY-The Mortgage Pool" and "DESCRIPTION OF
THE MORTGAGE POOL" and statements in the Private Placement Memorandum insofar as
the Private Placement Memorandum incorporates such sections of the Prospectus
Supplement, in each case solely to the extent relating to or based (in whole or
in part) on information relating to the GECA Mortgage Loans or the Seller, are
to be the only statements made in reliance upon information furnished or
approved by the Seller, or upon documents delivered to the Purchaser by the
Seller, or upon any of the representations, warranties, covenants or agreements
of the Seller as set forth in this Agreement.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 7 (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 Seller (the "indemnifying party") under this Section 7, notify
the indemnifying party in writing of the commencement thereof;
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but the omission so 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 7. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, 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, representing all the indemnified parties under Section 7(a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel 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 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, 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,
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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 Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(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 7(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 7 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 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) 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 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, any of their respective directors or officers, or any person
controlling the Purchaser or the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
(f) The Underwriters shall be third-party beneficiaries of the
provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the Purchaser
to the extent that the Purchaser has paid) the Seller's pro rata portion of the
aggregate of the following amounts (the Seller's pro rata portion to be
determined according to the percentage that the GECA Balance represents the
Initial Pool Balance): (i) the costs and expenses of printing (or otherwise
reproducing) and delivering a preliminary and final Prospectus and Memorandum
relating to the Certificates; (ii) the initial fees, costs, and expenses of the
Trustee (including reasonable attorneys' fees); (iii) the filing fee charged by
the Securities and Exchange Commission for registration of the Certificates so
registered; (iv) the fees charged by the Rating Agencies to rate the
Certificates so rated; (v) the expense of recording any assignment of Mortgage
or assignment of Assignment
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of Leases as contemplated by Section 2 hereof; and (vi) the cost of obtaining a
"comfort letter" from a firm of certified public accountants selected by the
Purchaser with respect to numerical information in respect of the GECA Mortgage
Loans and the Seller included in the Prospectus and Memorandum. All other costs
and expenses in connection with the transactions contemplated hereunder shall be
borne by the party incurring such expense.
SECTION 9. Notices. All notices, copies, requests, consents, demands and
other communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 10. 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 Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the GECA Mortgage Loans by
the Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11. 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 12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 13. 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
-25-
DECISIONS OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Further Assurances. The 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 15. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the 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 Seller and the
Purchaser, and their permitted successors and assigns, and the officers,
directors and controlling persons referred to in Section 7.
SECTION 16. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced.
-26-
IN WITNESS WHEREOF, the 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.
SELLER
GE CAPITAL ACCESS, INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
Address for Notices:
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Managing Director, CMBS
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Address for Notices:
World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-27-
EXHIBIT A
MLMI 1997-C1
Mortgage loan Schedule
GECA
Control
Number Property_Name Address City State Zip Code
------- ------------- ------- ---- ----- --------
185 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxx Xxxx XX 00000
186 Banyan Bay Apartments 000 XX 00xx Xxxxxx Xxxxx XX 00000
000 Xxxxxxx Xxxxx 000 X. Xxxxxxx Xxxx Xxxxx Xxxxxxx XX 00000
188 Collegiate Suites 0000X Xxxxxxx Xxxxx Xxxxx Xxxxxxxxxx XX 00000
000 Xxxxxxxxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxxxx Xxxxx Xx XX 00000
000 Xx Xxxxxx/Xxxxxx Xxxx Apartments 000/000 Xx Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000
000 Xxxx Xxxxxxxxxx 0000 Xxxx Xxxx Xxxxx Xxxxx Xxxxxx XX 00000
193 Las Brisas 000 X. Xxxxx Xxxxxx Xxx Xxxxxx XX 00000
194 Morningstar Self Storage 00000 Xxxxxx Xxxx Xxxxxxxx XX 00000
000 Xxx Xxxxxx Xxxx 00000 XX Xxxxxxx Xxxxx Xxxxxx XX 00000
000 Xxxxxx Xxxx Apartments 0000 Xxxxxxxxxxxxx Xxx X. Xxxxxxxxxx XX 00000
000 Xxxxx xx Xxxxx Xxx 0000 Xxxx Xxxx Xxxxxx Xxxxxxxx Xxxxx XX 00000
000 Xxxxx Xxxx 0000 Xxxxxx Xxxx Xxxxxxxx Xxxxxxx XX 00000
000 Xxxxxxxxx Xxxxx 0000 Xxxxx Xxxx Xxxxxxxxxxx XX 00000
200 The Chalet 0000 Xxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
000 Xxxxx Xxxxxxx 0000 Xxxxx Xxxxxx Xxxxxxx XX 00000
202 Arizona Acres 0000 X. Xxxxxx Xxxxx Xxxx XX 00000
000 Xxxxxx Xxxxx 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx XX 00000
204 Country Club 0000 X. Xxxxxxx Xxxx Xxxx Xxxxxx XX 00000
205 Rock Shadows 000 X. Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
000 Xxxxx Xxxxx Xxxxxxxxxx 0000 X. Xxxx Xxxx Xxxx. Xxx Xxxxx XX 00000
000 Xxxxxxxxxx Xxxxxxx 00 Xxxxxx Xxxx Xxxx X. Xxxxxxxxx XX 00000
209 6550 Xxxxxxx 0000 Xxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000
210 The Landings Apartments 0000 Xxxx Xxxx Xxxxxx Xxxxxxxxx XX 00000
000 Xxxxxx Xxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000
212 Holden Crossing 0000 X. Xxxxxx Xxxx Xxxxxxxxxx XX 00000
000 Xxxx Xxxxx 000 X. Xxxxxxxxxxx Xxxx Xxxxxx Xxxx XX 00000
214 InnsbrookApartments 00000 Xxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
215 Holiday/Hampton 0000 X. Xxxxxxx Xxxx. Xxxxxxx XX 00000
(2) 216 Terrace View 000 Xxxxxx Xxxx Xxxxxxxxx XX 00000
(2) 216 Terrace View MD
217 Springfield Apartments 00000 Xxxxxxx Xxx Xxxxxxx XX 00000
000 Xxxxxxxxx Xxxxxxxxx Mini-Storage 0000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000
000 Xxxx / Xxxxxxxxx Self Storage 3604 NW 2nd & 000 X. Xxxxxxxxx Xx Xxxx Xxxxx & Xxxxxxxxx XX 00000 & 33442
220 Devonshire Apartments 00000 X.X. 000xx Xxxxxx Xxxxxxxx XX 00000
Control Original Cut-off Date Monthly Gross Remaining Maturity
Number Balance Balance Payment Rate Term Amort Date
------ ------- ------------ ------- ----- ---- ---- --------
185 $ 3,682,500 $ 3,672,031.89 $ 30,101.00 8.680 117 297 3/1/07
186 $10,400,000 $10,372,055.90 $ 76,674.00 8.050 116 356 1/31/07
187 $ 3,734,000 $ 3,719,890.99 $ 30,622.77 8.720 116 296 1/31/07
188 $ 4,560,000 $ 4,555,861.10 $ 35,863.77 8.747 118 358 4/1/07
189 $ 8,000,000 $ 7,974,914.20 $ 62,080.94 8.600 114 354 11/30/06
190 $ 9,791,000 $ 9,779,433.09 $ 76,257.91 8.640 118 358 4/1/07
191 $ 5,400,000 $ 5,391,492.16 $ 44,198.24 8.880 118 316 4/1/07
193 $ 3,500,000 $ 3,493,627.98 $ 29,132.57 8.900 299 299 5/1/22
194 $ 2,000,000 $ 1,991,115.03 $ 16,483.66 8.780 115 295 12/31/06
195 $ 1,345,000 $ 1,343,474.40 $ 10,668.00 8.840 118 358 4/1/07
196 $ 2,595,000 $ 2,585,221.51 $ 21,334.63 8.750 116 296 1/31/07
197 $ 7,000,000 $ 6,981,169.26 $ 51,608.00 8.050 116 356 1/31/07
198 $ 2,850,000 $ 2,835,605.64 $ 23,702.78 8.890 114 294 11/30/06
199 $ 2,978,000 $ 2,968,147.93 $ 24,197.74 9.110 113 353 10/31/06
200 $ 1,462,000 $ 1,455,096.84 $ 11,723.20 8.450 115 295 1/1/07
201 $ 3,879,000 $ 3,864,084.07 $ 30,846.38 8.869 112 352 9/30/06
202 $ 2,550,000 $ 2,524,946.87 $ 18,764.33 8.030 68 344 1/26/03
203 $ 5,500,000 $ 5,475,918.34 $ 45,846.00 9.400 109 349 6/26/06
204 $ 2,450,000 $ 2,439,101.51 $ 19,943.00 9.130 74 350 7/17/03
205 $ 4,800,000 $ 4,771,985.26 $ 38,760.12 9.040 107 347 3/27/06
207 $ 3,639,000 $ 3,635,775.70 $ 30,638.10 9.040 119 299 5/1/07
208 $ 2,000,000 $ 1,998,932.33 $ 16,251.00 9.110 119 359 5/1/07
209 $ 2,025,000 $ 2,023,856.47 $ 16,061.00 8.840 143 359 4/23/09
210 $ 2,836,000 $ 2,833,427.96 $ 23,605.71 8.900 119 299 5/1/07
211 $ 2,000,000 $ 1,998,283.29 $ 17,100.00 9.230 119 299 5/1/07
212 $ 8,100,000 $ 8,100,000.00 $ 67,864.00 8.980 120 300 6/1/07
213 $ 2,500,000 $ 2,500,000.00 $ 20,894.38
214 $10,200,000 $10,200,000.00 $ 79,261.00 9.380 50 360 8/1/01
215 $11,000,000 $10,715,936.00 $101,673.99 9.380 43 223 12/31/00
(2) 216 $ 2,779,000 $ 2,725,965.85 $ 23,373.34 8.680 65 281 10/31/02
(2) 216 $ 325,090 $ 323,899.56 $ 2,710.80 8.920 65 298 10/31/02
217 $ 6,400,000 $ 6,361,564.34 $ 55,050.52 9.630 110 350 7/31/06
218 $ 1,700,000 $ 1,693,652.82 $ 14,580.66 9.730 110 350 7/31/06
219 $13,000,000 $13,000,000.00 $106,702.08 8.730 120 300 6/1/07
220 $ 4,700,000 $ 4,672,264.50 $ 39,312.19 9.310 111 351 8/31/06
Control Ground Underwriting Net Subservicing (1) Servicing Fee
Number Lease Reserves Rate Fees Fees Subservicer
------ ----- ----------- ---- ------------ ----------------- -----------
185 No 200 per unit 8.675 0.000 0.005 GE Capital Asset Management
186 No 285 per unit 8.045 0.000 0.005 GE Capital Asset Management
187 No 56.41 per pad 8.715 0.000 0.005 GE Capital Asset Management
188 No 250 per unit 8.742 0.000 0.005 GE Capital Asset Management
189 No 28.65 per pad 8.595 0.000 0.005 GE Capital Asset Management
190 No 242.54 per unit 8.635 0.000 0.005 GE Capital Asset Management
191 No 250 per unit 8.875 0.000 0.005 GE Capital Asset Management
193 No 25 per pad 8.895 0.000 0.005 GE Capital Asset Management
194 No 0.15 per sq ft 8.775 0.000 0.005 GE Capital Asset Management
195 No 25 per pad 8.835 0.000 0.005 GE Capital Asset Management
196 No 350.56 per unit 8.745 0.000 0.005 GE Capital Asset Management
197 No 342.33 per unit 8.045 0.000 0.005 GE Capital Asset Management
198 No 25 per pad 8.885 0.000 0.005 GE Capital Asset Management
199 No 25 per pad 9.105 0.000 0.005 GE Capital Asset Management
200 No 200 per unit 8.445 0.000 0.005 GE Capital Asset Management
201 Yes 25 per pad 8.864 0.000 0.005 GE Capital Asset Management
202 No 25 per pad 8.025 0.000 0.005 GE Capital Asset Management
203 No 25 per pad 9.395 0.000 0.005 GE Capital Asset Management
204 No 25 per pad 9.125 0.000 0.005 GE Capital Asset Management
205 No 25 per pad 9.035 0.000 0.005 GE Capital Asset Management
207 No 273.08 per unit 9.035 0.000 0.005 GE Capital Asset Management
208 No 89.25 per pad 9.105 0.000 0.005 GE Capital Asset Management
209 No 0.15 per sq ft 8.835 0.000 0.005 GE Capital Asset Management
210 No 224.38 per unit 8.895 0.000 0.005 GE Capital Asset Management
211 No 275 per unit 9.225 0.000 0.005 GE Capital Asset Management
212 No 0.15 per sq ft 8.975 0.000 0.005 GE Capital Asset Management
213 No 0.15 per sq ft 8.945 0.000 0.005 GE Capital Asset Management
214 No 200 per unit 9.375 0.000 0.005 GE Capital Asset Management
215 Yes 0.04 %EGI 9.375 0.000 0.005 GE Capital Asset Management
(2)216 No 25 per pad 8.675 0.000 0.005 GE Capital Asset Management
217 No 200 per unit 9.625 0.000 0.005 GE Capital Asset Management
218 No 0.2 per sq ft 9.725 0.000 0.005 GE Capital Asset Management
219 No 0.15 per sq ft 8.725 0.000 0.005 GE Capital Asset Management
220 No 200 per unit 9.305 0.000 0.005 GE Capital Asset Management
-28-
EXHIBIT B
MORTGAGE FILE SCHEDULE
None.
-29-
EXHIBIT C
MLMI 1997-C1
GECA
LIST OF MORTGAGE LOANS WHICH
PROVIDE FOR HYPERAMORTIZATION
Control Original Cut-Off Date
Number Property_Name Property Type Balance Balance
------- ------------- ------------- ------- ------------
000 Xx Xxxxxx/Xxxxxx Xxxx Apartments Multifamily $ 9,791,000 $ 9,779,433
000 Xxx Xxxxxx Xxxx Mobile Home Park $ 1,345,000 $ 1,343,474
209 6550 Xxxxxxx Unanchored Retail $ 2,025,000 $ 2,023,856
219 Boca / Deerfield Self Storage Self Storage $13,000,000 $13,000,000
-30-
EXHIBIT D
LIST OF MORTGAGE LOANS WHICH ARE EXCEPTIONS
TO SECTION 3(b)(xx)
None.
-31-
EXHIBIT E
LIST OF MORTGAGE LOANS WHICH ARE EXCEPTIONS
TO SECTION 3(b)(xxii)
None.
-32-
EXHIBIT F
LIST OF MORTGAGE LOANS WHICH ARE EXCEPTIONS
TO SECTION 3(b)(xxvii)
None.
-33-
EXHIBIT G
LIST OF MORTGAGE LOANS WHICH ARE EXCEPTIONS
TO SECTION 3(b)(xxviii)
None.
-34-
EXHIBIT H
LIST OF MORTGAGED PROPERTIES WHICH CARRY
SIX MONTHS OF BUSINESS INTERRUPTION
OR RENT INSURANCE
None.
-35-
EXHIBIT I
LIST OF MORTGAGE LOANS WHICH ARE EXCEPTION
TO SECTION 3(b)(xxix)
None.
-36-
EXHIBIT J-1
LIST OF MORTGAGED PROPERTIES SUBJECT TO
SECONDARY LIENS
None.
-37-
EXHIBIT J-2
MLMI 1997-C1
GECA
MORTGAGED PROPERTIES WITH POTENTIAL
FUTURE LIENS
Control Original Cut-Off Date
Number Property_Name Property Type Balance Balance
------ ------------- ------------- -------- ------------
200 The Chalet Multifamily $1,462,000 $1,455,097
-38-
EXHIBIT K
LIST OF MORTGAGE LOANS WHICH ARE EXCEPTIONS
TO SECTION 3(b)(xxxvii)
None.
-39-
EXHIBIT L
MLMI 1997-C1
GECA
LIST OF MORTGAGE LOANS WHICH ARE EXCEPTIONS
TO SECTION 3(b)(xxxviii)
Control Original Cut-Off Date
Number Property_Name Property Type Balance Balance
------- ------------- ------------- -------- ------------
215 Holiday Inn/Hampton Inn Hospitality $11,000,000 $10,715,936
219 Boca / Deerfield Self Storage Self Storage $13,000,000 $13,000,000
-40-
EXHIBIT M
MLMI 1997-C1
GECA
LIST OF PRINCIPAL BORROWERS
WITH MULTIPLE MORTGAGE LOANS
Control Original Cut-Off Date
Number Property_Name Property Type Balance Balance Borrower Entity Name
------- ------------- ------------- ------- ------------ --------------------
186 Banyan Bay Apartments Multifamily $10,400,000 $10,372,056 Atlantic Properties Assoc. L.P.
000 Xxxxx xx Xxxxx Xxx Multifamily $ 7,000,000 $ 6,981,169 Pines of Green Run L.P.
000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx $ 2,850,000 $ 2,835,606 Quail Hill MHP Ltd
000 Xxxxxxxxx Xxxxx Xxxxxx Xxxx Xxxx $ 2,978,000 $ 2,968,148 Xxxxxxxxx Villa MHP Ltd.
000 Xxxxx Xxxxxxx Xxxxxx Xxxx Xxxx $ 3,879,000 $ 3,864,084 Boulder Vista Village MHP Ltd.
217 Springfield Apartments Multifamily $ 6,400,000 $ 6,361,564 Springfield Properties L.P.
220 Devonshire Apartments Multifamily $ 4,700,000 $ 4,672,265 Devonshire Development LP
000 Xxxxxxx Xxxx Xxxxxx Xxxx Xxxx $ 2,779,000 $ 2,725,966 RR&D Associates
216 Terrace View Mobile Home Park $ 325,090 $ 323,900 RR&D Associates
-41-
