[EXECUTION COPY]
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of April 7, 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
April 7, 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 April 7, 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 Fitch, Inc. and Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered Certificates")
will be registered under the Securities Act of 1933, as amended (the "Securities
Act"). The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement to be dated as of April 1, 2004
(the "Pooling and Servicing Agreement"), among the Purchaser, as depositor, GMAC
Commercial Mortgage Corporation, as master servicer (in such capacity, the
"Master Servicer") and serviced whole loan paying agent, Lennar Partners, Inc.,
as special servicer (in such capacity, the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee"). Capitalized terms not otherwise defined
herein have the meanings assigned to them in the Pooling and Servicing Agreement
as in effect on the Closing Date.
The interest of the Mortgage Loan Seller in the Ivybrook Mortgage Loan
consists of the Ivybrook REMIC Regular Interest, which will be sold to the Trust
Fund in lieu of the Ivybrook Mortgage Loan. Any references to the Mortgage Loans
herein shall include the Ivybrook REMIC Regular Interest where the context so
requires.
The Purchaser intends to sell the Class A-1, Class A-2, Class A-3,
Class A-4, Class B, Class C, Class D and Class E Certificates to Xxxxxx Xxxxxxx
& Co. Incorporated, Deutsche Bank Securities Inc., GMAC Commercial Holding
Capital Corp. and Greenwich Capital Markets, Inc. (together, the
"Underwriters"), pursuant to an underwriting agreement dated the date hereof
(the
"Underwriting Agreement"). The Purchaser intends to sell the Class X-1, Class
X-2, Class A-1A, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O and Class P Certificates to Xxxxxx Xxxxxxx & Co. Incorporated,
Deutsche Bank Securities Inc., GMAC Commercial Holding Capital Corp. and
Greenwich Capital Markets, Inc. (in such capacity, each an "Initial Purchaser"),
pursuant to a certificate purchase agreement, dated the date hereof (the
"Certificate Purchase Agreement"). The Purchaser intends to sell the Class R-I,
Class R-II and Class R-III Certificates to a Qualified Institutional Buyer (in
such capacity, an "Initial Purchaser"). The Class X-1, Class X-2, Class A-1A,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P, Class R-I, Class R-II and Class R-III Certificates are collectively
referred to as the "Non-Registered Certificates."
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
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The Mortgage Loan Seller agrees to sell, assign, transfer and otherwise
convey to the Purchaser, and the Purchaser agrees to purchase, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on April 21,
2004 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The "Cut-off Date" with respect to any Mortgage Loan is
the Due Date for such Mortgage Loan in April 2004. As of the close of business
on their respective Cut-off Dates (which Cut-off Dates may occur after the
Closing Date), the Mortgage Loans will have an aggregate principal balance (the
"Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$345,259,759 subject to a variance of plus or minus 5%. The purchase price for
the Mortgage Loans shall be determined by the parties pursuant to an agreed upon
term sheet.
SECTION 2. Conveyance of Mortgage Loans.
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(a) Effective as of the Closing Date, subject only to receipt by the
Mortgage Loan Seller of the purchase price referred to in Section 1 hereof
(exclusive of any applicable holdback for transaction expenses), the Mortgage
Loan Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, without recourse, all the right, title and interest of the
Mortgage Loan Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule 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.
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(b) In connection with the Mortgage Loan Seller's assignment pursuant
to subsection (a) above, the Mortgage Loan Seller acknowledges that the
Depositor has directed the Mortgage Loan Seller, and the Mortgage Loan Seller
hereby agrees, to deliver the Mortgage File (as such term is defined in the
Pooling and Servicing Agreement) to the Trustee, and otherwise comply with the
requirements of Sections 2.01(b), 2.01(c) and 2.01(d) of the Pooling and
Servicing Agreement, provided that whenever the term Mortgage File is used to
refer to documents actually received by the Purchaser or the Trustee, such term
shall not be deemed to include such documents and instruments required to be
included therein unless they are actually so received.
(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.
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The Mortgage Loan Seller shall reasonably cooperate with any
examination of the Mortgage Files and Servicing Files that may be undertaken by
or on behalf of the Purchaser. The fact that the Purchaser has conducted or has
failed to conduct any partial or complete examination of the Mortgage Files
and/or Servicing Files shall not affect the Purchaser's right to pursue any
remedy available in equity or at law for a breach of the Mortgage Loan Seller's
representations, warranties and covenants set forth in or contemplated by
Section 4.
SECTION 4. Representations, Warranties and Covenants of the Mortgage
Loan Seller.
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(a) The Mortgage Loan Seller hereby makes, as of the Closing Date (or
as of such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser and its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit 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.
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(iii) The Mortgage Loan Seller has the full power and
authority to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the
Mortgage Loan Seller in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally,
(B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law, and (C)
public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of this Agreement that purport to provide
indemnification for securities laws liabilities.
(v) The Mortgage Loan Seller is not in violation of, and its
execution and delivery of this Agreement and its performance and
compliance with the terms of this 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
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(E) taken any other action, that (in the case of any of the acts
described in clauses (A) through (E) above) would constitute or result
in a violation of the Securities Act or any state securities law
relating to or in connection with the issuance of the Certificates or
require registration or qualification pursuant to the Securities Act or
any state securities law of any Certificate not otherwise intended to
be a Registered Certificate. In addition, the Mortgage Loan Seller will
not act, nor has it authorized or will it authorize any person to act,
in any manner set forth in the foregoing sentence with respect to any
of the Certificates or interests therein. For purposes of this
paragraph 4(b)(viii), the term "similar security" shall be deemed to
include, without limitation, any security evidencing or, upon issuance,
that would have evidenced an interest in the Mortgage Loans or the
Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans and the
Mortgaged Properties related to such Mortgage Loans, the information
set forth on pages A-12 through A-15 inclusive of Annex A to the
Prospectus Supplement (as defined in Section 9) (the "Loan Detail")
and, to the extent consistent therewith, the information set forth on
the diskette attached to the Prospectus Supplement and the accompanying
prospectus (the "Diskette"), is true and correct in all material
respects. Insofar as it relates to (w) the Mortgage Loan Seller, (x)
the Mortgage Loans, the Two Gateway Center 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 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 or Annex B to the Prospectus Supplement and (to
the extent it contains information consistent with that on such Annex
A) set forth on the Diskette, does not contain any untrue statement of
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.
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(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Mortgage Loan Seller, constitutes a valid, legal and
binding obligation of the Purchaser, enforceable against the Purchaser
in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's knowledge, threatened against the Purchaser which would
prohibit the Purchaser from entering into this Agreement or, in the
Purchaser's good faith and reasonable judgment, is likely to materially
and adversely affect either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the
Purchaser.
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(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Mortgage Loan Seller, the
Underwriters, the Initial Purchasers and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
transactions contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law, for the execution,
delivery and performance of or compliance by the Purchaser with this
Agreement, or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Mortgage Loan Seller, the party
discovering such breach shall give prompt written notice to the other party
hereto.
SECTION 6. Repurchases.
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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.
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The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage
Loan Seller specified herein shall be true and correct as of the
Closing Date, and the Aggregate Cut-off Date Balance shall be within
the range permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and reasonably acceptable
to the Purchaser, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and
released to the Trustee, the Purchaser or the Purchaser's designee, as
the case may be, all documents and funds required to be so delivered
pursuant to Section 2;
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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.
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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.
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(a) The Mortgage Loan Seller agrees to indemnify and hold harmless the
Purchaser, its officers and directors and each person, if any, who controls the
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus Supplement, the Memorandum, the Diskette or, insofar as they are
required to be filed as part of the Registration Statement pursuant to the
No-Action Letters, any Computational Materials or ABS Term Sheets with respect
to the Registered Certificates or in any revision or amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission (in the case of any such Computational Materials or ABS Term Sheets,
when read in conjunction with the Prospectus and, in the case of the Memorandum,
when read together with the other information specified therein as being
available for review by investors) to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; but only if and to the
extent that (i) any such untrue statement or alleged untrue statement is with
respect to information regarding the Mortgage Loans contained in the Loan Detail
or, to the extent consistent therewith, the Diskette or contained in the Term
Sheet Diskette, to the extent consistent with the Term Sheet Master Tape; or
(ii) any such untrue statement or alleged untrue statement or omission or
alleged omission is with respect to information regarding (w) the Mortgage Loan
Seller or (x) the Mortgage Loans, the Two Gateway Center Whole Loan or any or
all of the Mortgaged Properties related thereto contained in the Prospectus
Supplement or the Memorandum, or Annex A 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 or any or all of the
Mortgaged Properties related thereto or (y) any intercreditor agreement relating
to the Two Gateway Center Whole Loan contained in the Prospectus Supplement or
the Memorandum, or Annex A or Annex B to the Prospectus Supplement (exclusive of
the Loan Detail), and such information does not represent a restatement or
aggregation of information contained in the Loan Detail; or (iv) such untrue
statement, alleged untrue statement, omission or alleged omission arises out of
or is based upon a breach of the representations and warranties of the Mortgage
Loan Seller set forth in or made pursuant to Section 4; provided, that the
indemnification provided by this Section 9 shall not apply to the extent that
such untrue statement of a material fact or omission of a material fact
necessary to make the statements made, in light of the circumstances in which
they were made,
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not misleading, was made as a result of an error in the manipulation of, or
calculations based upon, the Loan Detail. This indemnity agreement will be in
addition to any liability which the Mortgage Loan Seller may otherwise have.
"Registration Statement" shall mean the registration statement No.
333-107510 filed by the Purchaser on Form S-3, including without limitation
exhibits thereto and information incorporated therein by reference; "Prospectus"
shall mean the prospectus dated July 31, 2003, as supplemented by the prospectus
supplement dated April 7, 2004 (the "Prospectus Supplement"), relating to the
Registered Certificates; "Memorandum" shall mean the private placement
memorandum dated April 7, 2004, relating to the Non-Registered Certificates;
"Computational Materials" shall have the meaning assigned thereto in the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to Xxxxxx,
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.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Mortgage Loan Seller (the "indemnifying
party") under this Section 9, notify the indemnifying party in writing of the
commencement thereof; but the omission to notify the indemnifying party will not
relieve it from any liability that it may have to any indemnified party
otherwise than under this Section 9. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election to assume the
defense of such action and approval by the indemnified party of counsel, which
approval will not be unreasonably withheld, the indemnifying party will not be
liable for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof, unless: (i) the indemnified party
shall have employed separate counsel in
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connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel,
approved by the Purchaser and the indemnifying party, representing all the
indemnified parties under Section 9(a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall only be in respect of the counsel referred to
in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(d) The Purchaser and the Mortgage Loan Seller agree that it would not
be just and equitable if contribution pursuant to Section 9(c) were determined
by pro rata allocation or by any other method of allocation that does not take
account of the considerations referred to in Section 9(c) above. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in this Section 9 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 9, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party will be ultimately
obligated to pay such expenses. If any expenses so paid by the indemnifying
party are subsequently determined to not be required to be borne by the
indemnifying party hereunder, the party that received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(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.
11
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.
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.
12
SECTION 15. Counterparts.
-------------
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
--------------
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 17. Further Assurances.
-------------------
The Mortgage Loan Seller and the Purchaser agree to execute and deliver
such instruments and take such further actions as the other party may, from time
to time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. Successors and Assigns.
-----------------------
The rights and obligations of the Mortgage Loan Seller under this
Agreement shall not be assigned by the Mortgage Loan Seller without the prior
written consent of the Purchaser, except that any person into which the Mortgage
Loan Seller may be merged or consolidated, or any corporation or other entity
resulting from any merger, conversion or consolidation to which the Mortgage
Loan Seller is a party, or any person succeeding to all or substantially all of
the business of the Mortgage Loan Seller, shall be the successor to the Mortgage
Loan Seller hereunder. The Purchaser has the right to assign its interest under
this Agreement, in whole or in part, as may be required to effect the purposes
of the Pooling and Servicing Agreement, and the assignee shall, to the extent of
such assignment, succeed to the rights and obligations hereunder of the
Purchaser. Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Mortgage Loan Seller and the Purchaser and
their permitted successors and assigns and the indemnified parties referred to
in Section 9.
SECTION 19. Amendments.
-----------
No term or provision of this Agreement may be amended, waived, modified
or in any way altered, unless such amendment, waiver, modification or alteration
is in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner, which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
13
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have
caused their names to be signed hereto by their respective duly authorized
officers as of the date first above written.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By:
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
S-1
EXHIBIT A
EXHIBIT A
MORTGAGE LOAN SCHEDULE
PROPERTY LOAN
NUMBER NUMBER SELLER PROJECT NAME PROPERTY ADDRESS
1 41837 GMACCM Two Gateway Center 000-000 Xxxxxx Xxxxxx
10 44050 GMACCM Paradise Park Model Resort 00000 Xxxx Xxxxx Xxxxx Xxxxx
11 41844 GMACCM Xxxxxxx Xxxxxx Xxxxx 000 Xxxxxxxxxxxx Xxxxxxxxx
12 42429 GMACCM Xxxxxxx Xxxxx Xxxxxx Xxxx 00000 Xxxx 00 Xxxx Xxxx
13 43883 GMACCM Xxxxxxxx Xxxxx 0000 Xxxxxxxx Plaza
16 42650 GMACCM West Boca Medical 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx
17 43068 GMACCM Whitney Ranch Center 601, 609 and 000 Xxxxx Xxxxxxxxx Xxxxxx
20 43356 GMACCM Newbury Oaks Marketplace 2080-2170 Xxxxxxx Xxxx
00 00000 XXXXXX Xxxxxxxxx by Marriott (Omaha) 000 Xxxxx 00xx Xxxxxx
23 42829 GMACCM Golden Wheel Manufactured Housing Community 0000 Xxx Xxxxxxx Xxxx
24 43262 GMACCM Seaside Factory Outlet Mall 0000 Xxxxx Xxxxxxxxx Xxxxx
25 43916 GMACCM 0000 Xxxxxxxx Xxxx 0000 Xxxxxxxx Xxxxxxxxx
26 41662 GMACCM Residence Inn Tyson's Corner 0000 Xxxxxxxx Xxxxxx Xxxxx
27 42864 GMACCM Xxxxxx Xxxx Xxxxxxxxxx 0000 Xxxxxx Xxxx Xxxxx
30 42803 GMACCM 00 Xxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
31 43647 GMACCM Residence Inn and Whitehall Mansion 40-42 Whitehall, 46 Whitehall & 00 Xxxxxxxxx Xxxxxx
32 43452 GMACCM Xxxxxx Xxxx Center 50 North Xxxxxxxxx Highway
33 43422 GMACCM Xxxxx Xxxxx Xxxxxxxxxx 000-000 Xxxxxxxxxx Xxxx
34 43618 GMACCM Xxxxxxx Xxxx Xxxxxxxxxx 000 Xxxxxxx Xxxxx
35 41805 GMACCM Breeze Hill Shopping Center 000 Xxxxx Xxxxxxx Xxxxx & 620, 000 Xxxxxxxx Xxxxx
00 00000 XXXXXX Shoppes of Kissimmee 3207-3235 South Xxxx Xxxxx Xxxxxxx
00 00000 XXXXXX Xxxxxxxx (Teachers Flex) One Xxxxxxxx Xxxxxxxxx
00 00000 XXXXXX AviStar Parking- Chicago 0000 Xxxxx Xxxxxxxx Xxxx
44 43896 GMACCM 000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
45 40405 GMACCM Birdneck Business Center 000 Xxxxx Xxxxxxxx Xxxx
46 42632 GMACCM Xxxxxxxxx-Xxxxx Xxxxx Xxxxxxx 0000 Xxxxx Xxxxxx Xxxxx
47 42836 GMACCM Oak Hall Marketplace 7005-7027 Xxxxxxxx Xxxxxxx
00 00000 GMACCM Coldwell Banker Plaza 0000 Xxxxx Xxxxxxx Xxxxxxxxx
50 38533 GMACCM Xxxxx Lofts 105, 109, 113 & 000 X Xxxxxx
00 00000 XXXXXX Toby's Manufactured Housing Community 0000 Xxxxxxxxx Xxxxxxx 00
52 41565 GMACCM Xxxx Xxxxxx Xxxxxxxxxxx 0000 Xxxx Xxxxxx
53 43511 GMACCM Millennium Market Center 0000-0000 Xxxx Xxxxx Xxxxxx
54 43655 GMACCM Xxxxxxxx Xxxxxxxx Xxxxxx 00 Xxxxx Xxxx
55 44038 GMACCM Cave Creek Shopping Center 0000-0000 Xxxx Xxxx Xxxx & 16802-16872 Xxxxx Xxxx Xxxxx Xxxx
00 00000 GMACCM Round Rock Super Storage 506 and 000 XxXxxx Xxxx
57 42888 GMACCM Xxxx Xxxxx Xxxxx 0000-0000 Xxxxxxxxx Xxxx
59 42957 GMACCM Xxxxxx Xxxxxxxxxx Xxxx 000-000 Xxxxxx Xxx
61 41544 GMACCM Xxxxxxx Xxxxxxxxxx Xxxxxxxx 000 Xxxxx Xxxx Xxxxxx
62 42897 GMACCM 8th and Ludlow Parking Garage 00-00 X. 0xx Xx., 724-26 Xxxxxx Xx., 000-00 Xxxxxxxx Xx.
63 42887 GMACCM Troywood Plaza 0000-0000 Xxxxxxxxx Xxxx
PROPERTY LOAN ZIP ORIGINAL
NUMBER NUMBER SELLER PROJECT NAME CITY STATE CODE BALANCE
1 41837 GMACCM Xxx Xxxxxxx Xxxxxx Xxxxxx Xxx Xxxxxx 00000 50,000,000
10 44050 GMACCM Paradise Park Model Resort Xxxxxx Xxxxxxx 00000 20,000,000
11 41844 GMACCM Xxxxxxx Xxxxxx Xxxxx Xxxxx Xxxxxxxxxxxx 00000 19,800,000
12 42429 GMACCM Xxxxxxx Xxxxx Xxxxxx Xxxx Xxxxxxxxxx Xxxxx Xxxxxxxx 00000 19,500,000
13 00000 XXXXXX Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxxxx 00000 17,000,000
16 42650 GMACCM Xxxx Xxxx Xxxxxxx Xxxx Xxxxx Xxxxxxx 00000 15,300,000
17 43068 GMACCM Xxxxxxx Xxxxx Xxxxxx Xxxxxxxxx Xxxxxx 00000 15,000,000
20 43356 GMACCM Xxxxxxx Xxxx Xxxxxxxxxxx Xxxxxxx Xxxx Xxxxxxxxxx 00000 13,300,000
21 00000 XXXXXX Xxxxxxxxx by Marriott (Omaha) Xxxxx Xxxxxxxx 00000 13,250,000
23 42829 GMACCM Golden Wheel Manufactured Housing Community Xxx Xxxx Xxxxxxxxxx 00000 12,050,000
24 43262 GMACCM Seaside Xxxxxxx Xxxxxx Xxxx Xxxxxxx Xxxxxx 00000 12,000,000
25 43916 GMACCM 0000 Xxxxxxxx Xxxx Xxx Xxxxxxx Xxxxxxxxxx 00000 11,070,000
26 41662 GMACCM Xxxxxxxxx Xxx Xxxxx'x Xxxxxx Xxxxxx Xxxxxxxx 00000 10,000,000
27 42864 GMACCM Xxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxxxxx Xxx Xxxx 00000 9,000,000
30 42803 GMACCM 00 Xxxxxx Xxxxxx Xxx Xxxx Xxx Xxxx 00000 8,200,000
31 43647 GMACCM Residence Inn and Whitehall Mansion Xxxxxxxxxx Xxxxxxxxxxx 00000 8,200,000
32 43452 GMACCM Xxxxxx Xxxx Xxxxxx Xxxxx Xxxxxxx Xxxxxxxx 00000 8,000,000
33 43422 GMACCM Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxx Xxxx 00000 6,300,000
34 43618 GMACCM Xxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxx Xxxx 00000 6,075,000
35 00000 XXXXXX Xxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx 00000 5,900,000
38 43788 GMACCM Shoppes of Kissimmee Xxxxxxxxx Xxxxxxx 00000 5,525,000
39 40026 GMACCM Ivybrook (Teachers Flex) Xxxxxxx Xxxxxxxxxxxx 00000 5,480,000
43 43699 GMACCM AviStar Parking- Chicago Xxxxxxxx Xxxx Xxxxxxxx 00000 4,750,000
44 43896 GMACCM 000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx Xxx Xxxxxx 00000 4,425,000
45 40405 GMACCM Birdneck Business Center Xxxxxxxx Xxxxx Xxxxxxxx 00000 4,100,000
46 42632 GMACCM Walgreens-Inver Grove Heights Inver Xxxxx Xxxxxx Xxxxxxxxx 00000 4,050,000
47 00000 XXXXXX Xxx Xxxx Xxxxxxxxxxx Xxx Xxxx Xxxxxxxx 00000 3,920,000
49 42405 GMACCM Coldwell Xxxxxx Xxxxx Xxx Xxxxx Xxxxxx 00000 3,750,000
50 00000 XXXXXX Xxxxx Xxxxx Xxxxx Xxxxxxxxxx 00000 3,500,000
51 44049 GMACCM Toby's Manufactured Housing Community Xxxxxxx Xxxxxxx 00000 3,460,000
52 41565 GMACCM Xxxx Xxxxxx Xxxxxxxxxxx Xxxxxxx Xxxxxxxx 00000 3,400,000
53 43511 GMACCM Millennium Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx 00000 3,250,000
54 43655 GMACCM Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx 00000 2,800,000
55 44038 GMACCM Xxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxx 00000 2,450,000
56 44012 GMACCM Round Rock Super Storage Xxxxx Xxxx Xxxxx 00000 2,400,000
57 42888 GMACCM Xxxx Xxxxx Xxxxx Xxxx Xxxxxxxx 00000 2,250,000
59 42957 GMACCM Xxxxxx Xxxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxx 00000 2,000,000
61 00000 XXXXXX Xxxxxxx Xxxxxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx 00000 1,650,000
62 42897 GMACCM 0xx xxx Xxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxxxx Xxxxxxxxxxxx 00000 1,500,000
63 42887 GMACCM Xxxxxxxx Xxxxx Xxxx Xxxxxxxx 00000 1,475,000
CUT-OFF DAY
PROPERTY LOAN CUT-OFF BALANCE LOAN MATURITY INTEREST PAYMENT
NUMBER NUMBER SELLER PROJECT NAME BALANCE ALLOCATION TYPE DATE RATE DUE
1 41837 GMACCM Two Gateway Center 49,956,233 49,956,233 Fixed 3/1/2014 5.790 1
10 44050 GMACCM Paradise Park Model Resort 19,980,977 19,980,977 Fixed 3/1/2009 5.460 1
11 41844 GMACCM Wyndham Valley Forge 19,630,275 19,630,275 Fixed 9/1/2013 6.750 1
12 00000 XXXXXX Xxxxxxx Xxxxx Xxxxxx Xxxx 19,500,000 19,500,000 Fixed 4/1/2014 5.520 1
13 43883 GMACCM Overland Plaza 17,000,000 17,000,000 Fixed 3/1/2014 5.750 1
16 42650 GMACCM West Boca Medical 15,228,528 15,228,528 Fixed 11/1/2013 6.020 1
17 43068 GMACCM Whitney Ranch Center 15,000,000 15,000,000 Fixed 1/1/2014 5.860 1
20 43356 GMACCM Newbury Oaks Marketplace 13,262,624 13,262,624 Fixed 1/1/2014 6.040 1
21 42612 GMACCM Courtyard by Marriott (Omaha) 13,201,499 13,201,499 Fixed 1/1/2014 6.790 1
23 42829 GMACCM Golden Wheel Manufactured Housing Community 12,021,504 12,021,504 Fixed 2/1/2009 5.100 1
24 43262 GMACCM Seaside Factory Outlet Mall 11,989,388 11,989,388 Fixed 3/1/2014 5.750 1
25 43916 GMACCM 0000 Xxxxxxxx Xxxx 11,060,210 11,060,210 Fixed 3/1/2014 5.750 1
26 41662 GMACCM Residence Inn Tyson's Corner 9,898,829 9,898,829 Fixed 8/1/2013 6.520 1
27 42864 GMACCM Cherry Hill Townhouses 8,991,980 8,991,980 Fixed 3/1/2014 5.720 1
30 42803 GMACCM 00 Xxxxxx Xxxxxx 8,181,763 8,181,763 Fixed 2/1/2014 5.430 1
31 43647 GMACCM Residence Inn and Whitehall Mansion 8,179,329 8,179,329 Fixed 2/1/2014 6.890 1
32 43452 GMACCM Xxxxxx Xxxx Center 7,976,402 7,976,402 Fixed 1/1/2014 5.810 1
33 43422 GMACCM Bella Vista Apartments 6,280,787 6,280,787 Fixed 1/1/2014 5.650 1
34 43618 GMACCM Hickory Hill Apartments 6,075,000 6,075,000 Fixed 1/1/2009 5.100 1
35 41805 GMACCM Breeze Hill Shopping Center 5,895,187 5,895,187 Fixed 3/1/2014 6.060 1
38 43788 GMACCM Shoppes of Kissimmee 5,520,176 5,520,176 Fixed 3/1/2014 5.800 1
39 40026 GMACCM Ivybrook (Teachers Flex) 5,409,735 5,409,735 Fixed 3/1/2008 5.750 1
43 43699 GMACCM AviStar Parking- Chicago 4,727,813 4,727,813 Fixed 1/1/2009 5.325 1
44 43896 GMACCM 000 Xxxxxxxx Xxxxxx 4,425,000 4,425,000 Fixed 4/1/2014 5.500 1
45 40405 GMACCM Birdneck Business Center 4,088,306 4,088,306 Fixed 1/1/2014 5.970 1
46 42632 GMACCM Walgreens-Inver Grove Heights 4,041,804 4,041,804 Fixed 2/1/2014 5.930 1
47 42836 GMACCM Oak Hall Marketplace 3,916,857 3,916,857 Fixed 3/1/2014 6.125 1
49 42405 GMACCM Coldwell Banker Plaza 3,739,214 3,739,214 Fixed 1/1/2014 5.930 1
50 38533 GMACCM Xxxxx Lofts 3,497,099 3,497,099 Fixed 3/1/2014 6.000 1
51 44049 GMACCM Toby's Manufactured Housing Community 3,456,536 3,456,536 Fixed 3/1/2009 5.250 1
52 41565 GMACCM Main Street Marketplace 3,390,241 3,390,241 Fixed 1/1/2014 5.940 1
53 43511 GMACCM Millennium Market Center 3,243,354 3,243,354 Fixed 2/1/2014 5.875 1
54 43655 GMACCM Lakeside Shopping Center 2,800,000 2,800,000 Fixed 4/1/2014 5.760 1
55 44038 GMACCM Cave Creek Shopping Center 2,450,000 2,450,000 Fixed 4/1/2014 5.810 1
56 44012 GMACCM Round Rock Super Storage 2,396,654 2,396,654 Fixed 3/1/2014 5.540 1
57 42888 GMACCM Troy Point Plaza 2,242,182 2,242,182 Fixed 12/1/2013 6.250 1
59 42957 GMACCM Monroe Industrial Park 1,996,014 1,996,014 Fixed 2/1/2014 6.010 1
61 41544 GMACCM Chelsea Clocktower Building 1,645,274 1,645,274 Fixed 1/1/2014 5.950 1
62 42897 GMACCM 8th and Ludlow Parking Garage 1,493,111 1,493,111 Fixed 1/1/2010 5.430 1
63 42887 GMACCM Troywood Plaza 1,469,875 1,469,875 Fixed 12/1/2013 6.250 1
CREDIT
PROPERTY LOAN MONTHLY LEASE SERVICING
NUMBER NUMBER SELLER PROJECT NAME PAYMENT ARD PREPAYMENT PROVISION LOAN FEE %
1 41837 GMACCM Two Gateway Center 293,058 Lock/25_Defeasance/91_0%/4 No 0.1284
10 44050 GMACCM Paradise Park Model Resort 113,056 Lock/25_Defeasance/31_0%/4 No 0.1284
11 41844 GMACCM Wyndham Valley Forge 136,800 Lock/43_Defeasance/75_0%/2 No 0.1284
12 42429 GMACCM Xxxxxxx Xxxxx Xxxxxx Xxxx 000,000 Lock/24_Defeasance/91_0%/5 No 0.1284
13 43883 GMACCM Overland Plaza 99,207 Lock/25_Defeasance/91_0%/4 No 0.1284
16 42650 GMACCM West Boca Medical 91,928 Lock/29_Defeasance/89_0%/2 No 0.1284
17 43068 GMACCM Whitney Ranch Center 88,587 Lock/27_Defeasance/88_0%/5 No 0.1284
20 43356 GMACCM Newbury Oaks Marketplace 80,083 Lock/27_Defeasance/89_0%/4 No 0.1284
21 42612 GMACCM Courtyard by Marriott (Omaha) 91,881 Lock/51_Defeasance/67_0%/2 No 0.1284
23 42829 GMACCM Golden Wheel Manufactured Housing Community 65,425 Lock/26_Defeasance/32_0%/2 No 0.1284
24 43262 GMACCM Seaside Factory Outlet Mall 70,029 Lock/25_Defeasance/93_0%/2 No 0.1284
25 43916 GMACCM 0000 Xxxxxxxx Xxxx 64,602 Lock/25_Defeasance/93_0%/2 No 0.1284
26 41662 GMACCM Residence Inn Tyson's Corner 67,646 Lock/44_Defeasance/74_0%/2 No 0.1284
27 42864 GMACCM Cherry Hill Townhouses 52,350 Lock/25_Defeasance/93_0%/2 No 0.1284
30 42803 GMACCM 00 Xxxxxx Xxxxxx 46,199 Lock/26_>YM or 1%/93_0%/1 No 0.1284
31 43647 GMACCM Residence Inn and Whitehall Mansion 57,382 Lock/50_Defeasance/66_0%/4 No 0.1284
32 43452 GMACCM Xxxxxx Xxxx Center 46,991 Lock/27_Defeasance/89_0%/4 No 0.1284
33 43422 GMACCM Bella Vista Apartments 36,366 Lock/27_Defeasance/91_0%/2 No 0.1284
34 43618 GMACCM Hickory Hill Apartments 32,984 Lock/27_Defeasance/31_0%/2 No 0.1284
35 41805 GMACCM Breeze Hill Shopping Center 35,601 Lock/25_Defeasance/93_0%/2 No 0.1284
38 43788 GMACCM Shoppes of Kissimmee 32,418 Lock/25_Defeasance/91_0%/4 No 0.1284
39 40026 GMACCM Ivybrook (Teachers Flex) 31,980 Lock/36_Defeasance/22_0%/2 No 0.1284
43 43699 GMACCM AviStar Parking- Chicago 28,675 Lock/23_>YM or 1%/36_0%/1 No 0.1284
44 43896 GMACCM 000 Xxxxxxxx Xxxxxx 25,125 Lock/24_Defeasance/94_0%/2 No 0.1284
45 40405 GMACCM Birdneck Business Center 24,503 Lock/27_Defeasance/91_0%/2 No 0.1284
46 42632 GMACCM Walgreens-Inver Grove Heights 24,100 Lock/26_Defeasance/92_0%/2 No 0.1284
47 42836 GMACCM Oak Hall Marketplace 23,818 Lock/25_Defeasance/93_0%/2 No 0.1284
49 42405 GMACCM Coldwell Banker Plaza 22,315 Lock/27_Defeasance/91_0%/2 No 0.1284
50 38533 GMACCM Xxxxx Lofts 20,984 Lock/25_Defeasance/93_0%/2 No 0.1284
51 44049 GMACCM Toby's Manufactured Housing Community 19,106 Lock/25_Defeasance/31_0%/4 No 0.1284
52 41565 GMACCM Main Street Marketplace 20,254 Lock/27_Defeasance/91_0%/2 No 0.1284
53 43511 GMACCM Millennium Market Center 19,225 Lock/26_Defeasance/90_0%/4 No 0.1284
54 43655 GMACCM Lakeside Shopping Center 16,358 Lock/24_Defeasance/94_0%/2 No 0.1284
55 44038 GMACCM Cave Creek Shopping Center 14,391 Lock/24_Defeasance/92_0%/4 No 0.1284
56 44012 GMACCM Round Rock Super Storage 14,795 Lock/25_Defeasance/93_0%/2 No 0.1284
57 42888 GMACCM Xxxx Point Plaza 13,854 Lock/28_Defeasance/88_0%/4 No 0.1284
59 42957 GMACCM Monroe Industrial Park 12,004 Lock/26_Defeasance/92_0%/2 No 0.1284
61 41544 GMACCM Chelsea Clocktower Building 9,840 Lock/27_Defeasance/89_0%/4 No 0.1284
62 42897 GMACCM 8th and Ludlow Parking Garage 9,149 Lock/27_Defeasance/41_0%/4 No 0.1284
63 42887 GMACCM Troywood Plaza 9,082 Lock/28_Defeasance/88_0%/4 No 0.1284
PROPERTY LOAN CROSS GROUND REMAINING LETTER OF
NUMBER NUMBER SELLER PROJECT NAME COLL LEASE FLAG TERM CREDIT
1 41837 GMACCM Two Gateway Xxxxxx Xx Xx 000 Xx
00 00000 XXXXXX Paradise Park Model Resort Xx Xx 00 Xx
00 00000 XXXXXX Wyndham Valley Forge No No 113 No
12 42429 GMACCM Orchard Xxxxx Xxxxxx Xxxx Xx Xx 000 Xx
00 00000 GMACCM Overland Plaza No No 119 Yes
16 42650 GMACCM West Boca Medical No Yes 115 No
17 43068 GMACCM Whitney Ranch Xxxxxx Xx Xx 000 Xx
00 00000 XXXXXX Newbury Oaks Marketplace No No 117 No
21 42612 GMACCM Courtyard by Marriott (Omaha) Xx Xx 000 Xx
00 00000 XXXXXX Golden Wheel Manufactured Housing Community Xx Xx 00 Xx
00 00000 XXXXXX Seaside Factory Outlet Mall No Yes 119 No
25 43916 GMACCM 0000 Xxxxxxxx Xxxx No No 119 Yes
26 41662 GMACCM Residence Inn Tyson's Xxxxxx Xx Xx 000 Xx
00 00000 XXXXXX Cherry Hill Townhouses No Xx 000 Xx
00 00000 XXXXXX 00 Xxxxxx Xxxxxx No No 118 No
31 43647 GMACCM Residence Inn and Whitehall Mansion No No 118 No
32 43452 GMACCM Xxxxxx Xxxx Xxxxxx Xx Xx 000 Xx
00 00000 XXXXXX Xxxxx Xxxxx Xxxxxxxxxx Xx Xx 000 Xx
00 00000 GMACCM Xxxxxxx Xxxx Xxxxxxxxxx Xx Xx 00 Xx
00 00000 GMACCM Breeze Hill Shopping Center Xx Xx 000 Xx
00 00000 XXXXXX Shoppes of Kissimmee No No 119 No
39 40026 GMACCM Ivybrook (Teachers Flex) Xx Xx 00 Xx
00 00000 XXXXXX AviStar Parking- Chicago Xx Xx 00 Xx
00 00000 XXXXXX 000 Xxxxxxxx Xxxxxx No No 120 No
45 40405 GMACCM Birdneck Business Xxxxxx Xx Xx 000 Xx
00 00000 XXXXXX Walgreens-Inver Grove Heights No No 118 No
47 42836 GMACCM Oak Hall Marketplace No No 119 No
49 42405 GMACCM Coldwell Banker Xxxxx Xx Xx 000 Xx
00 00000 XXXXXX Xxxxx Lofts Xx Xx 000 Xx
00 00000 XXXXXX Toby's Manufactured Housing Community Xx Xx 00 Xx
00 00000 XXXXXX Main Street Marketplace No No 117 No
53 43511 GMACCM Millennium Market Center No No 118 Yes
54 43655 GMACCM Lakeside Shopping Xxxxxx Xx Xx 000 Xx
00 00000 XXXXXX Cave Creek Shopping Center Xx Xx 000 Xx
00 00000 XXXXXX Round Rock Super Storage Xx Xx 000 Xx
00 00000 XXXXXX Xxxx Xxxxx Xxxxx Xx Xx 000 Xx
00 00000 GMACCM Xxxxxx Xxxxxxxxxx Xxxx Xx Xx 000 Xx
00 00000 GMACCM Xxxxxxx Xxxxxxxxxx Xxxxxxxx Xx Xx 000 Xx
00 00000 GMACCM 8th and Ludlow Parking Garage No No 69 No
63 42887 GMACCM Troywood Xxxxx Xx Xx 000 Xx
X-0
XXXXXXX X
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
For purposes of these representations and warranties, the phrases "to the
knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan Seller's
knowledge" shall mean, except where otherwise expressly set forth below, the
actual state of knowledge of the Mortgage Loan Seller or any servicer acting on
its behalf regarding the matters referred to, in each case: (i) after the
Mortgage Loan Seller's having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Mortgage Loan Seller's underwriting standards, at the time of the Mortgage
Loan Seller's origination or acquisition of the particular Mortgage Loan; and
(ii) subsequent to such origination, utilizing the servicing and monitoring
practices customarily utilized by prudent commercial mortgage loan servicers
with respect to securitizable commercial or multifamily, as applicable, mortgage
loans. Also for purposes of these representations and warranties, the phrases
"to the actual knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan
Seller's actual knowledge" shall mean, except where otherwise expressly set
forth below, the actual state of knowledge of the Mortgage Loan Seller or any
servicer acting on its behalf without any express or implied obligation to make
inquiry. All information contained in documents included in the definition of
Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Mortgage Loan Seller, to
the extent that the Mortgage Loan Seller or its closing counsel or custodian, if
any, have reviewed or had possession of such document at any time. For purposes
of these representations and warranties, to the extent that any representation
or warranty is qualified by the Mortgage Loan Seller's knowledge with respect to
the contents of the Note, Mortgage, lender's title policy and any letters of
credit or ground leases, if such document is not included in the Mortgage File,
the Mortgage Loan Seller shall make such representation or warranty without any
such qualification. Wherever there is a reference in a representation or
warranty to receipt by, or possession of, the Mortgage Loan Seller of any
information or documents, or to any action taken by the Mortgage Loan Seller or
to any action which has not been taken by the Mortgage Loan Seller or its agents
or employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or the not taking such
action by, either of the Mortgage Loan Seller or any servicer acting on its
behalf. For purposes of these representations and warranties, when referring to
the conduct of "reasonable prudent institutional commercial or multifamily, as
applicable mortgage lenders" (or similar such phrases and terms), such conduct
shall be measured by reference to the industry standards generally in effect as
of the date the related representation or warranty relates to or is made.
The Mortgage Loan Seller hereby represents and warrants with respect to the
Mortgage Loans that, as of the date herein below specified or, if no such date
is specified, as of the Closing Date, and subject to Section 18 of this
Agreement:
1) Mortgage Loan Schedule. The information pertaining to each Mortgage
Loan set forth in the Mortgage Loan Schedule to the Pooling and Servicing
Agreement was true
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and accurate in all material respects as of the Cut-Off Date and contains all of
the information set forth in the definition of "Mortgage Loan Schedule" in the
Pooling and Servicing Agreement
2) Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Mortgage Loan Seller had good title to,
and was the sole owner of, each Mortgage Loan. The Mortgage Loan Seller has full
right, power and authority to sell, transfer and assign each Mortgage Loan to,
or at the direction of, the Purchaser free and clear of any and all pledges,
liens, charges, security interests, participation interests and/or other
interests and encumbrances (other than the rights to servicing and related
compensation as reflected in the Mortgage Loan Schedule). Subject to the
completion of the names and addresses of the assignees and endorsees and any
missing recording information in all instruments of transfer or assignment and
endorsements and the completion of all recording and filing contemplated hereby
and by the Pooling and Servicing Agreement, the Mortgage Loan Seller will have
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to each Mortgage Loan free and clear of any pledge, lien,
charge, security interest or other encumbrance (except for certain servicing
rights described on Schedule B-41 hereto or otherwise contemplated by this
Agreement or the Pooling and Servicing Agreement). The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Mortgage Loan Seller
to obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, endorsed to
the Purchaser, or its designee, in conformity with the requirements of the
definition of "Mortgage File" in the Pooling and Servicing Agreement and each
such endorsement is genuine.
3) Payment Record. Such Mortgage Loan was not as of the Cut-off Date
for such Mortgage Loan, and has not been during the twelve-month period prior
thereto, 30 days or more delinquent in respect of any debt service payment
required thereunder, without giving effect to any applicable grace period.
4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a legal, valid and, subject to
the exceptions set forth in Paragraph 13 below, enforceable first priority lien
upon the related Mortgaged Property, except for the following (collectively, the
"Permitted Encumbrances"): (a) the lien for current real estate taxes, water
charges, sewer rents and assessments not yet due and payable; (b) covenants,
conditions and restrictions, rights of way, easements and other matters that are
of public record and are referred to in the related lender's title insurance
policy (or, if not yet issued, referred to in a pro forma title policy or title
policy commitment meeting the requirements described in Paragraph 8 below); (c)
exceptions and exclusions specifically referred to in the related lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or title policy commitment meeting the requirements described in Paragraph 8
below); (d) other matters to which like properties are commonly subject; (e) the
rights of tenants (as tenants only) under leases (including subleases)
pertaining to the related Mortgaged Property; (f) condominium declarations of
record and identified in the related lender's title insurance policy (or, if not
yet issued, identified in a pro forma title policy or title policy commitment
meeting the requirements described in Paragraph 8 below); and (g) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same group of
Cross-Collateralized Mortgage Loans. With respect to each Mortgage Loan, such
Permitted Encumbrances do not, individually or in the aggregate,
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materially interfere with the security intended to be provided by the related
Mortgage, the current principal use of the related Mortgaged Property, the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan or materially and adversely affect the value of
the Mortgage Loan . The related assignment of the Mortgage for each Mortgage
Loan, executed and delivered in favor of the Trustee, is in recordable form (but
for insertion of the name and address of the assignee and any related recording
information which is not yet available to the Mortgage Loan Seller) to validly
and effectively convey the assignor's interest therein and constitutes a legal,
valid, binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Mortgage from the relevant assignor to the
Trustee.
5) Assignment of Leases. There exists as part of the related Mortgage
File an Assignment of Leases (an "Assignment of Leases") either as a separate
document or as part of the Mortgage. Each related Assignment of Leases creates a
valid, first priority collateral assignment of, or a valid perfected first
priority lien on or security interest in, certain rights under the related lease
or leases, including the right to receive all payment due under the related
Lease, subject only to a license granted to the related Mortgagor to exercise
certain rights and to perform certain obligations of the lessor under such lease
or leases, including the right to operate the related leased property and none
of the related leases contains any restriction on such collateral assignment or
creation of a security interest therein, as applicable. The related assignment
of any Assignment of Leases not included in a Mortgage, executed and delivered
in favor of the Trustee is in recordable form (but for insertion of the name and
address of the assignee and any related recording information which is not yet
available to the Mortgage Loan Seller) to validly and effectively convey the
assignor's interest therein and constitutes a legal, valid, binding and, subject
to the exceptions set forth in Paragraph 13 below, enforceable assignment of
such Assignment of Leases from the relevant assignor to the Trustee.
6) Mortgage Status; Waivers and Modifications. The terms of the
Mortgage Loan have not been waived, modified, altered, satisfied, impaired,
canceled, subordinated or rescinded in any manner which materially interferes
with the security provided by such Mortgage Loan and the related Mortgaged
Property other than any material amendment or modification which has been
effected pursuant to a written instrument and has been duly submitted for
recordation to the extent necessary to protect the interests of the mortgagee,
and is a part of the related Mortgage File. Except as set forth on Schedule B-6,
no consents, waivers, modifications, alterations or assumptions of any kind with
respect to a Mortgage Loan have occurred since the date upon which the due
diligence file related to the applicable Mortgage Loan was delivered to Allied
Capital Corporation. The Mortgage Loan Seller has not taken any affirmative
action inconsistent with the Servicing Standard that would cause the
representations and warranties of the related Mortgagor under the Mortgage Loan
not to be true and correct in any material respect.
7) Condition of Property; Condemnation. In the case of each Mortgage
Loan, one or more engineering reports were prepared in connection with the
origination of such Mortgage Loan by an independent third-party engineering firm
who inspected the Mortgaged Property, and except as set forth in such
engineering assessment(s) or on Schedule B-7A, the related Mortgaged Property
is, to the Mortgage Loan Seller's knowledge, free and clear of any damage that
would materially and adversely affect its value as security for such Mortgage
Loan
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(except in cases set forth in clauses (a), (b) and (c) below). As of origination
of such Mortgage Loan there was no proceeding pending, and subsequent to such
date, the Mortgage Loan Seller has not received actual notice of, any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property. Except as set forth on Schedule B-7B, if any of the engineering
reports referred to above in this Paragraph 7 revealed any material damage or
material deferred maintenance, then one of the following is true: (a) the
repairs and/or maintenance necessary to correct such condition have been
completed in all material respects; (b) an escrow of funds is required or a
letter of credit was obtained in a percentage equal to 125% of the amount
reasonably estimated to be sufficient to complete the repairs and/or maintenance
necessary to correct such condition; or (c) the reasonable estimate of the cost
to complete the repairs and/or maintenance necessary to correct such condition
represented no more than (i) 2% of the value of the related Mortgaged Property
as reflected in an appraisal conducted in connection with the origination of the
subject Mortgage Loan or (ii) $50,000 whichever is less. As of the date of the
origination of each Mortgage Loan, except as set forth on Schedule B-7B: (x) all
of the material improvements on the related Mortgaged Property lay wholly within
the boundaries and, to the extent in effect at the time of construction,
building restriction lines of such property, except for encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below or that do not affect the value or current principal use of such
Mortgaged Property to any material extent, (y) no improvements on adjoining
properties encroached upon such Mortgaged Property so as to affect the value or
current principal use of such Mortgaged Property to any material extent, except
those encroachments that are insured against by the lender's title insurance
policy referred to in Paragraph 8 below and (z) the Mortgaged Property securing
each Mortgage Loan is located on or adjacent to a public road, or has access to
an irrevocable easement permitting ingress and egress.
8) Title Insurance. The lien of each Mortgage securing a Mortgage Loan
is insured by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (except that if such policy
is yet to be issued, such insurance may be evidenced by a "marked up" pro forma
policy or title commitment in either case marked as binding and countersigned by
the title company or its authorized agent, either on its face or by an
acknowledged closing instruction or escrow letter) in the original principal
amount of such Mortgage Loan after all advances of principal, insuring the
originator of the related Mortgage Loan, its successors and assigns (as the sole
insured) that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to the Permitted Encumbrances. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid, the Mortgage Loan
Seller has made no claims thereunder and, to the Mortgage Loan Seller's
knowledge, no prior holder of the related Mortgage has made any claims
thereunder and no claims have been paid thereunder. The Mortgage Loan Seller has
not, and to the Mortgage Loan Seller's knowledge, no prior holder of the related
Mortgage has done anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the related
Mortgage Loan to the Trustee (including endorsement and delivery of the related
Mortgage Note to the Purchaser or its designee and recording of the related
Assignment of Mortgage in favor of the Purchaser or its designee in the
applicable real estate records), such Title Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the benefit of the
Trustee without the consent of or notice to the insurer. Such Title Policy
contains no exclusion for any of the following circumstances, or it
affirmatively insures (unless the related Mortgaged Property is located in a
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jurisdiction where such affirmative insurance is not available), (a) that the
related Mortgaged Property has access to a public road, and (b) that the area
shown on the survey, if any, reviewed or prepared in connection with the
origination of the related Mortgage Loan is the same as the property legally
described in the related Mortgage. Such Title Policy contains no exclusion
regarding the encroachment upon any easements of any permanent improvements
located on the related Mortgaged Property for which the grantee of such easement
has the ability to force removal of such improvement, or such Title Policy
affirmatively insures against losses caused by forced removal of any material
permanent improvements on the related Mortgaged Property that encroach upon any
material easements.
9) No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. If the related Mortgage
Loan documents include any requirements regarding (a) the completion of any
on-site or off-site improvements and (b) the disbursement of any funds escrowed
for such purpose, and if those requirements were to have been complied with on
or before the Closing Date, then such requirements have been complied with in
all material respects or such funds so escrowed have not been released except to
the extent specifically provided by the related Mortgage Loan documents.
10) Mortgage Provisions. The Mortgage Note, Mortgage (along with any
security agreement and UCC financing statement) and Assignment of Leases for
each Mortgage Loan, together with applicable state law, contain customary and,
subject to the exceptions set forth in Paragraph 13 below, enforceable
provisions for commercial Mortgage Loans such as to render the rights and
remedies of the holder thereof adequate for the practical realization against
the related Mortgaged Property of the principal benefits of the security
intended to be provided thereby. The Mortgage Loan documents for each Mortgage
Loan, subject to applicable law, provide for the appointment of a receiver for
the collection of rents or for the related mortgagee to enter into possession to
collect the rents if there is an event of default under such Mortgage Loan.
11) Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either (i) been properly designated, has accepted such
designation and currently so serves or (ii) may be substituted in accordance
with the Mortgage and applicable law, and (b) no fees or expenses are payable to
such trustee by the Mortgage Loan Seller, the Depositor or any transferee
thereof except for such fees and expenses (all of which are the obligation of
the related Mortgagor under the related Mortgage Loan documents) as would be
payable in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for such Mortgage Loan.
12) Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule B-12A, (a) an environmental site assessment
meeting the requirements of the American Society for Testing and Materials and
covering all environmental hazards typically assessed for similar properties
including use, type and tenants of the Mortgaged
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Property ("Environmental Report"), or an update of such an assessment, was
performed by a licensed (to the extent required by applicable state law)
reputable, independent third-party environmental consulting firm with respect to
each Mortgaged Property in connection with the origination of such Mortgage Loan
and/or thereafter updated such that, except as set forth on Schedule B-12B, such
Environmental Report is dated no earlier than twelve months prior to the Closing
Date, (b) a copy of each such Environmental Report has been delivered to the
Purchaser, and (c) either: (i) no such Environmental Report provides that as of
the date of the report there is a material violation of any applicable
environmental laws with respect to any circumstances or conditions relating to
the related Mortgaged Property; or (ii) if any such Environmental Report does
reveal any such circumstances or conditions with respect to the related
Mortgaged Property and the same have not been subsequently remediated in all
material respects, then, except as described on Schedule B-12C, one or more of
the following are true: (A) one or more parties not related to or including the
related Mortgagor and collectively having financial resources reasonably
estimated by the Mortgage Loan Seller at the time of origination to be adequate
to cure the subject violation in all material respects, were identified as the
responsible party or parties for such condition or circumstance and such
condition or circumstance does not materially impair the value of the Mortgaged
Property, (B) the related Mortgagor was required to provide additional security
reasonably estimated by the Mortgage Loan Seller at the time of origination to
be adequate to cure the subject violation in all material respects, (C) if and
to the extent that such condition or circumstances can, based upon the
recommendation set forth in the subject Environmental Report, be remediated or
otherwise appropriately addressed in all material respects through the
implementation of an operations and maintenance plan, the related Mortgagor was
required to obtain and maintain an operations and maintenance plan, (D) the
related Mortgagor, or other responsible party, provided a "no further action"
letter or other evidence reasonably acceptable to a reasonably prudent
commercial mortgage lender that applicable federal, state or local governmental
authorities had no current intention of taking any action, and are not requiring
any action, in respect of such condition or circumstance, (E) such conditions or
circumstances were investigated further and based upon such additional
investigation, an independent third-party environmental consultant recommended
no further investigation or remediation, (F) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is not greater than the
lesser of 2% of the outstanding principal balance of the related Mortgage Loan
or $50,000, (G) there exists an escrow of funds reasonably estimated by the
Mortgage Loan Seller at origination to be sufficient for purposes of effecting
such remediation, (H) the related Mortgaged Property is identified on Schedule
B-12D and insured under a policy of insurance subject to per occurrence and
aggregate limits and a deductible, each as set forth on Schedule B-12D, against
certain losses arising from such circumstances and conditions or (I) a party
with financial resources reasonably estimated by the Mortgage Loan Seller at the
time of origination to be adequate to cure the subject violation in all material
respects provided a guaranty or indemnity to the related Mortgagor to cover the
costs of any required investigation, testing, monitoring or remediation. To the
Mortgage Loan Seller's actual knowledge, having made no independent inquiry
other than reviewing the Environmental Reports(s) and employing an environmental
consultant to perform the assessment(s) referenced herein, there are no material
circumstances or conditions with respect to any Mortgaged Property not revealed
in any such Environmental Report, where obtained, that render such Mortgaged
Property in material violation of any applicable environmental laws. The
Mortgage Loan documents for each Mortgage Loan require the related Mortgagor to
comply with all applicable
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federal, state and local environmental laws and regulations. The Mortgage Loan
Seller has not taken any affirmative action which would cause the Mortgaged
Property securing any Mortgage Loan not to be in compliance with all federal,
state and local laws pertaining to environmental hazards. Each Mortgagor
represents and warrants in the related Mortgage Loan documents substantially to
the effect that, except as set forth in certain specified environmental reports
and to the Mortgagor's knowledge, as of the date of origination, it has not
used, caused or permitted to exist and will not use, cause or permit to exist on
the related Mortgaged Property any hazardous materials which violate federal,
state or local laws, ordinances, regulations, orders, directives, or policies
governing the use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous materials. Unless the related
Mortgaged Property is identified on Schedule B-12D, the related Mortgagor (or an
affiliate thereof) has agreed to indemnify mortgagee against, or otherwise be
liable for, any and all losses resulting from a breach of environmental
representations, warranties or covenants given by the Mortgagor in connection
with such Mortgage Loan, generally including any and all losses, liabilities,
damages, injuries, penalties, fines, expenses and claims of any kind or nature
whatsoever (including without limitation, attorneys' fees and expenses) paid,
incurred or suffered by or asserted against, any such party resulting from such
breach.
13) Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Mortgagor, or any guarantor of
non-recourse exceptions and environmental liability, with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
fraudulent transfer and conveyance or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law), and except that certain provisions in such loan documents may be
further limited or rendered unenforceable by applicable law. There is no right
of rescission, offset, abatement, diminution or valid defense or counterclaim
available to the related Mortgagor with respect to such Mortgage Note, Mortgage
or other agreements that would deny the mortgagee the principal benefits
intended to be provided thereby. The Mortgage Loan Seller has no actual
knowledge of any such rights, defenses or counterclaims having been asserted.
14) Insurance. Except as otherwise set forth on Schedule B-14A, all
improvements upon each Mortgaged Property are insured under a fire and extended
perils insurance policy included within the classification "All Risk of Physical
Loss" insurance (or the equivalent) policy in an amount (subject to a customary
and reasonable deductible) at least equal to the full insurable replacement cost
of the improvements located on such Mortgaged Property, and if applicable, the
related hazard insurance policy contains appropriate endorsements to avoid the
application of coinsurance and does not permit reduction in insurance proceeds
for depreciation. Except in the case of the Mortgaged Properties identified on
Schedule B-14B hereto, each Mortgaged Property is the subject of a business
interruption, actual loss sustained or rent loss insurance policy providing
coverage for at least twelve (12) months (or a specified dollar amount which is
reasonably estimated to cover no less than twelve (12) months of rental income).
If any portion of the improvements upon the related Mortgaged Property was, at
the time of the origination of such Mortgage Loan, in a flood zone area as
identified in the Federal
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Register by the Federal Emergency Management Agency as a 100 year flood zone or
special hazard area, and flood insurance was available, a flood insurance policy
meeting any requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the outstanding
principal balance of such Mortgage Loan, (2) the full insurable value of such
Mortgaged Property, (3) the maximum amount of insurance available under the
National Flood Insurance Act of 1968, as amended, or (4) 100% of the replacement
cost of the improvements located on such Mortgaged Property. If any Mortgaged
Property is located in the state of California or in a "seismic zone" 3 or 4, a
seismic assessment was conducted (except in the case of mobile home parks) at
the time of originations and seismic insurance was obtained to the extent such
Mortgaged Property has a PML of greater than twenty percent (20%) calculated
using at least a 450 a year look back with a 10% probability of exceedance in a
50 year period. If the Mortgaged Property for any Mortgage Loan is located in
any of the locations set forth on Schedule B-14WS, then such Mortgaged Property
is insured by windstorm insurance in an amount at least equal to the lesser of
(i) the outstanding principal balance of such Mortgage Loan and (ii) 100% of the
insurable replacement cost of the improvements located on the related Mortgaged
Property. All such hazard and flood insurance policies contain a standard
mortgagee clause for the benefit of the holder of the related Mortgage, its
successors and assigns, as mortgagee, and are not terminable (nor may the amount
of coverage provided thereunder be reduced) without thirty (30) days' (fifteen
(15) days for non-payment of premiums) prior written notice to the mortgagee;
and no such notice has been received, including any notice of nonpayment of
premiums, that has not been cured. Each Mortgaged Property and all improvements
thereon are also covered by comprehensive general liability insurance in such
amounts as are generally required by reasonably prudent commercial lenders or as
recommended by a reputable, independent insurance consultant. If any Mortgaged
Property is, to the Mortgage Loan Seller's knowledge, a materially
non-conforming use or structure under applicable zoning laws and ordinances,
then, in the event of a material casualty or destruction, one or more of the
following is true: (i) such Mortgaged Property may be restored or repaired to
materially the same extent of the use or structure at the time of such casualty;
(ii) such Mortgaged Property is covered by law and ordinance insurance in an
amount customarily required by reasonably prudent commercial mortgage lenders or
as recommended by a reputable, independent insurance consultant; or (iii) the
amount of hazard insurance currently in place and required by the related
Mortgage Loan documents would generate proceeds sufficient to pay off the
subject Mortgage Loan. Additionally, the insurer for all of the required
coverages set forth herein has a claims paying ability rating from Standard &
Poor's, Moody's 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, Moody's or Fitch of not
less than A (or the equivalent), or from A.M. Best of not less than "A:IX" (or
the equivalent). With respect to each Mortgage Loan, the related Mortgage Loan
documents require that the related Mortgagor or a tenant of such Mortgagor
maintain insurance as described above or permit the Mortgagee to require
insurance as described above. Except under circumstances set forth in the
related Mortgage Loan documents that would be reasonably acceptable to a prudent
commercial mortgage lender or that would not otherwise materially and adversely
affect the security intended to be provided by the related Mortgage, the
Mortgage Loan documents for each Mortgage Loan provide that
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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 acts of terrorism, or any related damage claims, from
coverage as of the later of (i) the date of origination of the Mortgage Loan and
(ii) the last date as of which the policy was renewed or amended except as
indicated on Schedule B-14C, and the related loan documents do not expressly
prohibit or waive such coverage, except to the extent that any right to require
such coverage may be limited by commercially reasonable availability. To the
Mortgage Loan Seller's actual knowledge, all insurance policies described above
are with an insurance carrier qualified to write insurance in the relevant
jurisdiction and all insurance described above is in full force and effect.
15) Taxes and Assessments. No real estate taxes or governmental
assessments or governmental charges that prior to the Cut-Off Date became due
and owing in respect of each Mortgaged Property are delinquent and unpaid, or,
an escrow of funds in an amount sufficient to pay such payments has been
established. Such taxes, assessments and charges shall not be considered
delinquent and unpaid until the date on which interest or penalties may first be
payable thereon.
16) Mortgagor Bankruptcy. No Mortgaged Property, nor any portion
thereof is the subject of, and no Mortgagor under a Mortgage Loan is a debtor
in, any state or federal bankruptcy, insolvency or similar proceeding.
17) Local Law Compliance. To the Mortgage Loan Seller's knowledge,
based upon a letter from governmental authorities, an opinion of counsel, a
zoning consultant's report, an endorsement to the related Title Policy, or (when
such would be acceptable to a reasonably prudent commercial mortgage lender) a
representation of the related Mortgagor at the time of origination of the
subject Mortgage Loan, or based on such other due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area where the
subject Mortgaged Property is located, except as described on Schedule B-17, the
improvements located on or forming part of, and the existing use of, each
Mortgaged Property: (i) are not in violation of any applicable building codes or
land laws applicable to the Mortgaged Property, the improvements thereon or the
use and occupancy thereof which would have a material adverse effect on the
value, operation, current principal use or net operating income of the Mortgaged
Property which are not covered by title insurance; and (ii) are in material
compliance with
B-9
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 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;
B-10
(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 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
B-11
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).
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.
B-12
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 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.
B-13
28) Releases of Mortgaged Properties. Except as set forth on Schedule
B-28A, no Mortgage Note or Mortgage requires the mortgagee to release all or any
material portion of the related Mortgaged Property from the lien of the related
Mortgage except upon: (i) payment in full of all amounts due under the related
Mortgage Loan or (ii) delivery of "government securities" within the meaning of
Treas. Reg. Section 1.860G-2(a)(8)(i) in connection with a defeasance of the
related Mortgage Loan; provided that the Mortgage Loans that are
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of material portions of the related Mortgaged Property or the release
of one or more related Mortgaged Properties upon: (i) the satisfaction of
certain legal and underwriting requirements, (ii) the payment of a release price
for the released property or parcel as set forth on Schedule B-28C or (iii) the
delivery of comparable substitute real estate collateral subject to certain
conditions precedent as set forth on Schedule B-28C. No release or partial
release of any Mortgaged 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
B-14
representation and warranty does not cover any default, breach, violation or
event of acceleration that specifically pertains to or arises out of the subject
matter otherwise covered by any other representation and warranty made by the
Mortgage Loan Seller in this Exhibit B.
32) Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or any direct controlling equity interest in the related Mortgagor, is
transferred or sold, other than by reason of family and estate planning
transfers, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized 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
B-15
Entity requirements without the approval of the mortgagee or rating agencies;
the Mortgagor shall have an outside independent director or member. The Mortgage
Loan Seller has obtained, and the Servicing File contains, with respect to each
Mortgage Loan having a Cut-off Date Principal Balance of $20,000,000 or more, in
connection with its origination or acquisition thereof, a counsel's opinion
regarding non-consolidation of the Mortgagor. The organization documents of any
Mortgagor on a Mortgage Loan having a Cut-off Date Principal Balance of
$20,000,000 or more that is a single member limited liability company, provide
that the Mortgagor shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of the sole member and the Mortgage Loan
Seller has obtained in connection with its origination or acquisition of the
subject Mortgage Loan, and the Servicing File contains, an opinion of such
Mortgagor's counsel confirming that the law of the jurisdiction in which such
single member limited liability company was organized permits such continued
existence upon such bankruptcy, dissolution, liquidation or death of the sole
member of the Mortgagor and that the applicable law 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
B-16
recording or filing UCC Financing Statements, on such items of personalty except
as enforceability may be limited as set forth in Paragraph 13. In the case of
each Mortgage Loan secured by a hotel, the related loan documents contain such
provisions as are necessary and UCC Financing Statements have been filed as
necessary, in each case, to perfect a valid first security interest in
Mortgagor's related operating revenues with respect to such Mortgaged Property.
An assignment of each UCC Financing Statement relating to the Mortgage Loan has
been completed or will be prepared in blank which the Purchaser or Trustee, as
applicable, or its designee is authorized to complete and to file in the filing
office in which such Financing Statement was filed. Notwithstanding any of the
foregoing, no representation is made as to the perfection or priority of any
security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing of UCC
Financing Statements are required in order to effect such perfection.
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-17
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.
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.
B-18
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 administration and servicing
of such Mortgage Loan are conveyed hereunder to the Purchaser.
B-19
SCHEDULE TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
GMAC COMMERCIAL MORTGAGE CORPORATION
Exception to Representation 14 - Insurance:
----------------------------------------------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--- ---------------- ------------------------
----------------------------------------------------------------------------------------------------------------------
All Mortgage Loans Cancellation for non-payment of premiums may occur upon 10
days' notice.
----------------------------------------------------------------------------------------------------------------------
Paradise Manufactured Housing Mortgagor is permitted a $100,000 deductible with respect
Community (Control #44050) to its property insurance so long as it maintains net worth
and liquidity requirements set forth in Loan documents.
----------------------------------------------------------------------------------------------------------------------
Courtyard by Marriott Omaha One of the two certificates of insurance for the Mortgaged
(Control #42612) Property does not include the its successors and assigns
language, and it states that the insurer will "endeavor" to
provide notice of cancellation, but without any obligation
or liability for failure to do so. The second certificate of
insurance (which includes some, but not all of the coverages
listed on the first certificate) states that notice of
cancellation will be mailed to Lender within 60 days of the
occurrence of the same, but does not specify that such time
period must precede the cancellation of the policy.
----------------------------------------------------------------------------------------------------------------------
Exception to Representation 18 - Leasehold Estate Only:
----------------------
----------------------------------------------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--- ---------------- ------------------------
----------------------------------------------------------------------------------------------------------------------
Seaside Factory Outlet Ground Lease for Parking Lot does not contain various lender
(Control #43262) protection, notice and cure right provisions contained in
this representation. The term of this Ground Lease is
currently a renewal term, with only 4 years remaining, and 3
additional 5-year terms remain after such term. The Lessor
under this Ground Lease can terminate the Ground Lease at
any time upon 12 months' notice if it wishes to retake and
utilize the parcel for certain purposes.
----------------------------------------------------------------------------------------------------------------------
B-20
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
West Boca Medical Arts Pavilion II Ground Lease for Parcel 1 does not meet requirements of
(Control #42650) this representation in all respects regarding lender
protections, notices and transfer rights.
----------------------------------------------------------------------------------------------------------------------
Exception to Representation 32 - Due on Sale:
-----------
----------------------------------------------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--- ---------------- ------------------------
----------------------------------------------------------------------------------------------------------------------
Courtyard by Marriott Omaha (Control Section 13(c) of the Deed of Trust allows AmerUs
#42612) (individually and collectively, the limited partners of
Borrower) to transfer over 49% of its partnership interest
to an unrelated party without the prior approval of
Lender, provided that the following conditions are met:
A) prior to securitization:
1) if transferee does not obtain greater, additional
rights than those held by AmerUs;
2) the transfer does not result in a breach of the
Management Agreement;
3) Lender reasonably approves of the organizational docs
and the transferee, in connection with the transfer; and
4) Borrower or AmerUs pays all of the costs and fees
incurred by Lender in connection with the review and
approval.
B) after securitization:
1) if transferee does not obtain greater, additional
rights than those held by AmerUs;
2) the transfer does not result in a breach of the
Management Agreement;
3) if required under the pooling and servicing agreement,
Lender will receive a non-consolidation legal opinion
addressing the proposed transferee and the Borrower, in a
form
----------------------------------------------------------------------------------------------------------------------
B-21
----------------------------------------------------------------------------------------------------------------------
reasonably acceptable to Lender;
4) Lender reasonably approves of the organizational docs
and the transferee, in connection with the transfer;
5) if required under the pooling and servicing agreement,
Lender must receive a no downgrade letter from a rating
agency; and
6) Borrower or AmerUs pays all of the costs and fees
incurred by Lender in connection with the review and
approval.
----------------------------------------------------------------------------------------------------------------------
Exception to Representation 33 - Single-Purpose Entity:
---------------------
----------------------------------------------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--- ---------------- ------------------------
----------------------------------------------------------------------------------------------------------------------
Two Gateway Center (Control #41837) Organizational Documents do not equire Mortgagor to have an
outside independent director or member, but its Managing
Member must have two outside directors.
----------------------------------------------------------------------------------------------------------------------
Exception to Representation 40 - Recourse:
----------------------------------------------------------------------------------------------------------------------
ID# MORTGAGE LOAN(S) DESCRIPTION OF EXCEPTION
--- ---------------- ------------------------
----------------------------------------------------------------------------------------------------------------------
West Boca Medical Arts Pavilion II Exception to non-recourse limitation covering circumstances
(Control #42650) of fraud or misrepresentation is limited to only certain
types of fraud or misrepresentation relating to application
for, origination and funding of the loan.
----------------------------------------------------------------------------------------------------------------------
B-22
EXHIBIT A
Schedule B-12D
--------------
------------------------------------------------------------------------------------------------------------
STATE COUNTIES & SPECIFIC CITIES
------------------------------------------------------------------------------------------------------------
Alabama Xxxxxxx and Mobile
------------------------------------------------------------------------------------------------------------
Delaware Sussex
------------------------------------------------------------------------------------------------------------
Florida Entire State - All Counties
------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx, Camden, Chatham, Glynn, Liberty, XxXxxxxx
------------------------------------------------------------------------------------------------------------
Hawaii Entire State - All Counties
------------------------------------------------------------------------------------------------------------
Louisiana Cameron, Iberia, Jefferson, Lafourche, Orleans, Plaquemines, St. Xxxxxxx, St.
Xxxx, St. Tammany, Terrebonne, Xxxxxxxxxx
------------------------------------------------------------------------------------------------------------
Massachusetts Barnstable, Bristol, Dukes, Nantucket, Plymouth
------------------------------------------------------------------------------------------------------------
Maryland Xxxxxxx, Dorchester, Somerset, St. Mary's, Wicomico, Warchester
------------------------------------------------------------------------------------------------------------
Mississippi Hancock, Harrison, Xxxxxxx
------------------------------------------------------------------------------------------------------------
North Carolina Xxxxxxxx, Xxxxxx, Brunswick, Camden, Carteret, Choswan, Currituck, Dare, Hyde,
New Hanover, Onslow, Pamlico, Pasquotank, Xxxxxx, Perquimans, Tyrell, Washington
------------------------------------------------------------------------------------------------------------
New Jersey Atlantic, Cape May, Cumberland, Monmouth, Ocean
------------------------------------------------------------------------------------------------------------
New York Nassau, Suffolk
------------------------------------------------------------------------------------------------------------
Puerto Rico Entire Commonwealth - All Counties
------------------------------------------------------------------------------------------------------------
South Carolina Beaufort Berkeley, Charleston, Colleton, Georgetown, Horry
------------------------------------------------------------------------------------------------------------
Texas Aransas, Brazorla, Calhoun, Cameron, Xxxxxxxx, Galveston, Town of Baytown,
Jackson, Jefferson, Kenedyl, Kleiberg, Matagoda, Nueces, Refugio, San Xxxxxxxx,
Willacy
------------------------------------------------------------------------------------------------------------
Virginia Accomack, Chesapeake City, Gloucester, Hampton City, Isle of Wight, Lancaster,
Xxxxxxx Field City, Little Creek City, Xxxxxxx, Middlesex, Newport News City,
Norfolk City, Northampton, Northumberland, Posquoson City, Portsmith City,
Suffolk City, Virginia Beach City, York.
------------------------------------------------------------------------------------------------------------
EXHIBIT A
SCHEDULE B-14C
[See Spreadsheet]
EXHIBIT A
SCHEDULE B-17
[See Spreadsheet]
EXHIBIT A
SCHEDULE B-18G
[See Spreadsheet]
EXHIBIT A
SCHEDULE B-23
[See Spreadsheet]
EXHIBIT A
SCHEDULE B-28
[See Spreadsheet]
EXHIBIT A
SCHEDULE B-39
[See Spreadsheet]
EXHIBIT A
SCHEDULE B-40
[See Spreadsheet]
EXHIBIT A
SCHEDULE B-48
[See Spreadsheet]
B-2
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
April 7, 2004 (the "Purchase Agreement"), between the Mortgage Loan
Seller and GMAC Commercial Mortgage Securities, Inc. providing for the
purchase by GMAC Commercial Mortgage Securities, Inc. from the Mortgage
Loan Seller of the Mortgage Loans, was, at the
C-1-1
respective times of such signing and delivery, duly authorized or
appointed to execute such documents in such capacity, and the
signatures of such persons or facsimiles thereof appearing on such
documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, 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 April 7, 2004 (the "Purchase Agreement"), between GMAC Commercial
Mortgage Securities, Inc. and the Mortgage Loan Seller, the Mortgage Loan Seller
hereby certifies that (i) the representations and warranties of the Mortgage
Loan Seller in the Purchase Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, and (ii) the Mortgage Loan Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the date hereof.
Certified this __th day of [________] 2004.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:
----------------------------------
Name:
Title:
C-2-1
