EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of August 2, 2004, between German American Capital Corporation, as
Mortgage Loan Seller (the "Mortgage Loan Seller" or "GACC") and GMAC Commercial
Mortgage Securities, Inc., as purchaser (the "Purchaser").
The Mortgage Loan Seller desires to sell, assign, transfer and otherwise
convey to the Purchaser, and the Purchaser desires to purchase, subject to the
terms and conditions set forth below, the multifamily and commercial mortgage
loans (the "Mortgage Loans") identified on the schedule annexed hereto as
Exhibit A (the "Mortgage Loan Schedule"). Certain other multifamily and
commercial mortgage loans (the "Other Mortgage Loans") will be purchased by the
Purchaser from (i) GMAC Commercial Mortgage Corporation ("GMACCM"), pursuant to,
and for the consideration described in, the Mortgage Loan Purchase Agreement,
dated as of August 2, 2004, between the Purchaser and GMACCM and (ii) ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital, Inc. ("MSMC"), pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of August 2, 2004,
between the Purchaser and MSMC. The Mortgage Loan Seller, GMACCM 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 ▇▇▇▇▇'▇ Investors Service, Inc. and Standard &
Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies (together, the
"Rating Agencies"). Certain classes of the Certificates (the "Registered
Certificates") will be registered under the Securities Act of 1933, as amended
(the "Securities Act"). The Trust Fund will be created and the Certificates will
be issued pursuant to a pooling and servicing agreement to be dated as of August
1, 2004 (the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor, GMAC Commercial Mortgage Corporation, as master servicer (in such
capacity, the "Master Servicer") and serviced whole loan paying agent, Midland
Loan Services, Inc., as special servicer (in such capacity, the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee") and
ABN AMRO Bank N.V. as fiscal agent. Capitalized terms not otherwise defined
herein have the meanings assigned to them in the Pooling and Servicing Agreement
as in effect on the Closing Date.
The Purchaser intends to sell the Class A-1, Class A-1A, Class A-2, Class
A-3, Class A-4, Class B, Class C, Class D and Class E Certificates to Deutsche
Bank Securities Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Credit Suisse First
Boston LLC, GMAC Commercial Holding Capital Markets Corp. and Greenwich Capital
Markets, Inc. (together, the "Underwriters"), pursuant to an underwriting
agreement dated the date hereof (the "Underwriting Agreement"). The Purchaser
intends to sell the Class X-1, Class X-2, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P and Class Q Certificates to
Deutsche Bank Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (in such
capacity, each an "Initial Purchaser"), pursuant to a certificate purchase
agreement, dated the date hereof (the "Certificate Purchase Agreement"). The
Purchaser intends to sell the Class R-I, Class R-II and Class R-III Certificates
to a Qualified Institutional Buyer (in such capacity, an "Initial Purchaser").
The
Class X-1, Class X-2, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q, Class R-I, Class R-II and Class
R-III Certificates are collectively referred to as the "Non-Registered
Certificates."
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Mortgage Loan Seller agrees to sell, assign, transfer and otherwise
convey to the Purchaser, and the Purchaser agrees to purchase, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on August
12, 2004 or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The "Cut-off Date" with respect to any Mortgage
Loan is the Due Date for such Mortgage Loan in August, 2004. As of the close of
business on their respective Cut-off Dates (which Cut-off Dates may occur after
the Closing Date), the Mortgage Loans will have an aggregate principal balance
(the "Aggregate Cut-off Date Balance"), after application of all payments of
principal due thereon on or before such date, whether or not received, of
$207,078,472 subject to a variance of plus or minus 5%. The purchase price for
the Mortgage Loans shall be determined by the parties pursuant to an agreed upon
term sheet.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the
Mortgage Loan Seller of the purchase price referred to in Section 1 hereof
(exclusive of any applicable holdback for transaction expenses), the Mortgage
Loan Seller does hereby sell, transfer, assign, set over and otherwise convey to
the Purchaser, without recourse, all the right, title and interest of the
Mortgage Loan Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including all interest and principal received or
receivable by the Mortgage Loan Seller on or with respect to the Mortgage Loans
after the Cut-off Date for each such Mortgage Loan, together with all of the
Mortgage Loan Seller's right, title and interest in and to the proceeds of any
related title, hazard or other insurance policies and any escrow, reserve or
other comparable accounts related to the Mortgage Loans. The Purchaser shall be
entitled to (and, to the extent received by or on behalf of the Mortgage Loan
Seller, the Mortgage Loan Seller shall deliver or cause to be delivered to or at
the direction of the Purchaser) all scheduled payments of principal and interest
due on the Mortgage Loans after the Cut-off Date for such Mortgage Loan, and all
other recoveries of principal and interest collected thereon after such Cut-off
Date. All scheduled payments of principal and interest due thereon on or before
the Cut-off Date for each Mortgage Loan and collected after such Cut-off Date
shall belong to the Mortgage Loan Seller.
(b) In connection with the Mortgage Loan Seller's assignment pursuant to
subsection (a) above, the Mortgage Loan Seller acknowledges that the Depositor
has directed the Mortgage Loan Seller, and the Mortgage Loan Seller hereby
agrees, to deliver the Mortgage File (as such term is defined in the Pooling and
Servicing Agreement) to the Trustee, and otherwise 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
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actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and instruments required to be included therein unless
they are actually so received.
(c) The Mortgage Loan Seller's records will reflect the transfer of the
Mortgage Loans to the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
The Mortgage Loan Seller shall reasonably cooperate with any examination of
the Mortgage Files and Servicing Files that may be undertaken by or on behalf of
the Purchaser. The fact that the Purchaser has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files and/or
Servicing Files shall not affect the Purchaser's right to pursue any remedy
available in equity or at law for a breach of the Mortgage Loan Seller's
representations, warranties and covenants set forth in or contemplated by
Section 4.
SECTION 4. Representations, Warranties and Covenants of the Mortgage Loan
Seller.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date (or as of
such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser and its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit B
with respect to the Mortgage Loans, with such changes or modifications as may be
permitted or required by the Rating Agencies.
(b) In addition, the Mortgage Loan Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser that:
(i) The Mortgage Loan Seller is a corporation, duly organized, validly
existing, and in good standing under the laws of the State of Maryland, and
is in compliance with the laws of each State in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of
each Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Mortgage Loan
Seller, and the performance and compliance with the terms of this Agreement
by the Mortgage Loan Seller, will not violate the Mortgage Loan Seller's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or which is applicable to it or any of its assets, in
each case which materially and adversely affect the ability of the Mortgage
Loan Seller to carry out the transactions contemplated by this Agreement.
(iii) The Mortgage Loan Seller has the full power and authority to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
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(iv) This Agreement, assuming due authorization, execution and delivery
by the Purchaser, constitutes a valid, legal and binding obligation of the
Mortgage Loan Seller, enforceable against the Mortgage Loan Seller in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
that purport to provide indemnification for securities laws liabilities.
(v) The Mortgage Loan Seller is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Mortgage Loan Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Mortgage Loan Seller to perform its obligations under this Agreement
or the financial condition of the Mortgage Loan Seller.
(vi) No litigation is pending with regard to which the Mortgage Loan
Seller has received service of process or, to the best of the Mortgage Loan
Seller's knowledge, threatened against the Mortgage Loan Seller the outcome
of which, in the Mortgage Loan Seller's good faith and reasonable judgment,
could reasonably be expected to prohibit the Mortgage Loan Seller from
entering into this Agreement or materially and adversely affect the ability
of the Mortgage Loan Seller to perform its obligations under this
Agreement.
(vii) The Mortgage Loan Seller has not dealt with any broker,
investment banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers and their respective affiliates, that
may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans or the consummation of any of the other
transactions contemplated hereby.
(viii) Neither the Mortgage Loan Seller nor anyone acting on its behalf
has (A) offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (B) solicited any offer to buy or to accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (D) made any general solicitation by means
of general advertising or in any other manner with respect to any
Certificate, any interest in any Certificate or any similar security, or
(E) taken any other action, that (in the case of any of the acts described
in clauses (A) through (E) above) would constitute or result in a violation
of the Securities Act or any 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
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Mortgage Loan Seller will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any of the Certificates or interests therein. For
purposes of this paragraph 4(b)(viii), the term "similar security" shall be
deemed to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Mortgage Loans or
the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information set
forth between pages A-1-1 and A-1-28 inclusive of A-1 to the Prospectus
Supplement (as defined in Section 9) (the "Loan Detail") and, to the extent
consistent therewith, the information set forth on the diskette attached to
the Prospectus Supplement and the accompanying prospectus (the "Diskette"),
is true and correct in all material respects. Insofar as it relates to the
Mortgage Loans (other than the Military Circle Whole Loan and the 731
Lexington-Bloomberg Headquarters Whole Loan (each as defined in the
Prospectus Supplement)) and the Mortgaged Properties related thereto and/or
the Mortgage Loan Seller and does not represent a restatement or
aggregation of the information on the Loan Detail, the information set
forth in the Prospectus Supplement and the Memorandum (as defined in
Section 9) under the headings "Summary of Series 2004-C2 Transaction--The
Mortgage Pool," "--Geographic Concentrations of the Mortgaged Properties,"
"--Property Types," "--Prepayment or Call Protection Provided by the
Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors,"
and "Description of the Mortgage Pool" set forth on Annex A-1 and/or Annex
B to the Prospectus Supplement and (to the extent it contains information
consistent with that on such Annex A-1) set forth on the Diskette, does not
contain any untrue statement of a material fact or (in the case of the
Memorandum, when read together with the other information specified therein
as being available for review by investors) omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. Insofar as it relates to the
Military Circle Whole Loan and the 731 Lexington-Bloomberg Headquarters
Whole Loan (each as defined in the Prospectus Supplement) and the Mortgaged
Property related thereto and does not represent a restatement or
aggregation of the information on the Loan Detail, the information set
forth in the Prospectus Supplement and the Memorandum (as defined in
Section 9) under the headings "Summary of Series 2004-C2 Transaction--The
Mortgage Pool," "--Geographic Concentrations of the Mortgaged Properties,"
"--Property Types," "--Prepayment or Call Protection Provided by the
Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors,"
"Description of the Mortgage Pool," "Servicing of the Mortgage Loans," "The
Pooling and Servicing Agreement," and/or "Description of the Certificates"
or set forth on Annex ▇-▇/ ▇▇▇▇▇ ▇-▇ and/or Annex B to the Prospectus
Supplement (provided, that with respect to the information in Annex B,
"Servicing of the Mortgage Loans," "The Pooling and Servicing Agreement"
and "Description of the Certificates," only such portions that solely
relate to the Military Circle Whole Loan and the 731 Lexington-Bloomberg
Headquarters Whole Loan, respectively) and (to the extent it contains
information consistent with that on such Annex A-1 and Annex A-2) set forth
on the Diskette, does not contain any untrue statement of a material fact
or (in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors)
omit to state any material fact necessary to make
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the statements therein, in light of the circumstances under which they were
made, not misleading
(x) No consent, approval, authorization or order of, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law (including, with respect to any bulk sale laws),
for the execution, delivery and performance of or compliance by the
Mortgage Loan Seller with this Agreement, or the consummation by the
Mortgage Loan Seller of any transaction contemplated hereby, other than (1)
the filing or recording of financing statements, instruments of assignment
and other similar documents necessary in connection with Mortgage Loan
Seller's sale of the Mortgage Loans to the Purchaser, (2) such consents,
approvals, authorizations, qualifications, registrations, filings or
notices as have been obtained or made and (3) where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by the
Mortgage Loan Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit B which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Mortgage Loan Seller that:
(i) The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser, and
the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by the Mortgage Loan Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject
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to (A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, and
(B) general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Purchaser's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Purchaser to
perform its obligations under this Agreement or the financial condition of
the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Mortgage Loan Seller, the
Underwriters, the Initial Purchasers and their respective affiliates, that
may be entitled to any commission or compensation in connection with the
sale of the Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) No consent, approval, authorization or order of, registration or
filing with or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of
or compliance by the Purchaser with this Agreement, or the consummation by
the Purchaser of any transaction contemplated hereby, other than (1) such
consents, approvals, authorizations, qualifications, registrations, filings
or notices as have been obtained or made and (2) where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Mortgage Loan Seller, the party discovering such
breach shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
The Mortgage Loan Seller hereby agrees to comply with Sections 2.02 and
2.03 of the Pooling and Servicing Agreement, including, but not limited to, any
obligation to repurchase or substitute Mortgage Loans in respect of any Material
Breach or Material Document Defect.
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SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Mayer, Brown, ▇▇▇▇ & Maw LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ 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;
(iv) The result of any examination of the Mortgage Files and Servicing
Files performed by or on behalf of the Purchaser pursuant to Section 3
shall be satisfactory to the Purchaser in its sole determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Mortgage Loan Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(vi) The Mortgage Loan Seller shall have paid or agreed to pay all
fees, costs and expenses payable by it to the Purchaser pursuant to this
Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Mortgage Loan Seller;
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(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 Maryland, dated not earlier
than 30 days prior to the Closing Date;
(d) A certificate of the Mortgage Loan Seller substantially in the form
of Exhibit C-2 hereto, executed by an executive officer or authorized
signatory of the Mortgage Loan Seller and dated the Closing Date, and upon
which the Purchaser and each Underwriter may rely;
(e) Written opinions of counsel for the Mortgage Loan Seller, in a form
reasonably acceptable to counsel for the Purchaser, subject to such
reasonable assumptions and qualifications as may be requested by counsel
for the Mortgage Loan Seller and acceptable to counsel for the Purchaser,
dated the Closing Date and addressed to the Purchaser and each Underwriter;
(f) Any other opinions of counsel for the Mortgage Loan Seller
reasonably requested by the Rating Agencies in connection with the issuance
of the Certificates, each of which shall include the Purchaser and each
Underwriter as an addressee; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 9. Indemnification.
(a) The Mortgage Loan Seller agrees to indemnify and hold harmless the
Purchaser, its officers and directors and each person, if any, who controls the
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus Supplement, the Memorandum, the Diskette, any Asset Summary (as
defined hereinafter) or, insofar as they are required to be filed as part of the
Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials, ABS Term Sheets or any Asset Summary, when read in
conjunction with the Prospectus and, in the case of the Memorandum, when read
together with the other information specified therein as being available for
review by investors) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; but only if and to the
extent
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that (i) any such untrue statement or alleged untrue statement is with respect
to information regarding the Mortgage Loans contained in the Loan Detail or, to
the extent consistent therewith, the Diskette or contained in the Term Sheet
Diskette, to the extent consistent with the Term Sheet Master Tape; or (ii) any
such untrue statement or alleged untrue statement or omission or alleged
omission is with respect to information regarding the Mortgage Loan Seller, the
Mortgage Loans (other than the Military Circle Whole Loan and the 731
Lexington-Bloomberg Headquarters Whole Loan (each as defined in the Prospectus
Supplement)) or the Mortgaged Properties related thereto contained in the
Prospectus Supplement or the Memorandum under the headings "Summary of Series
2004-C2 Transaction--The Mortgage Pool," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection
Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk
Factors," and/or "Description of the Mortgage Pool" or contained on Annex ▇-▇/
▇▇▇▇▇ ▇-▇ and/or Annex B to the Prospectus Supplement (exclusive of the Loan
Detail), and such information does not represent a restatement or aggregation of
information contained in the Loan Detail; or (iii) any such untrue statement or
alleged untrue statement or omission or alleged omission is with respect to
information regarding the Military Circle Whole Loan and the 731
Lexington-Bloomberg Headquarters Whole Loan (each as defined in the Prospectus
Supplement) or the Mortgaged Property related thereto contained in the
Prospectus Supplement or the Memorandum under the headings "Summary of Series
2004-C2 Transaction--The Mortgage Pool," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment or Call Protection
Provided by the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk
Factors," "Description of the Mortgage Pool," "Servicing of the Mortgage Loans,"
"The Pooling and Servicing Agreement," and/or "Description of the Certificates"
or contained on Annex ▇-▇/ ▇▇▇▇▇ ▇-▇ and/or Annex B to the Prospectus Supplement
(exclusive of the Loan Detail) (provided, that with respect to the information
in Annex B, "Servicing of the Mortgage Loans," "The Pooling and Servicing
Agreement" and "Description of the Certificates," only such portions that solely
relate to the Military Circle Whole Loan and the 731 Lexington-Bloomberg
Headquarters Whole Loan (each as defined in the Prospectus Supplement), and such
information does not represent a restatement or aggregation of information
contained in the Loan Detail; (iv) such untrue statement, alleged untrue
statement, omission or alleged omission arises out of or is based upon a breach
of the representations and warranties of the Mortgage Loan Seller set forth in
or made pursuant to Section 4; or (v) any untrue statement or alleged untrue
statement arises out of or is with respect to any Asset Summary and such untrue
statement or alleged untrue statement does not relate to information from a
Third Party Report, except to the extent that any such information provided in
reliance upon a Third Party Report is misstated in such Asset Summary; provided,
that the indemnification provided by this Section 9 shall not apply to the
extent that such untrue statement of a material fact or omission of a material
fact necessary to make the statements made, in light of the circumstances in
which they were made, not misleading, was made as a result of an error in the
manipulation of, or calculations based upon, the Loan Detail. This indemnity
agreement will be in addition to any liability which the Mortgage Loan Seller
may otherwise have.
"Registration Statement" shall mean the registration statement No.
333-115244 filed by the Purchaser on Form S-3, including without limitation
exhibits thereto and information incorporated therein by reference; "Prospectus"
shall mean the prospectus dated July 31, 2003, as supplemented by the prospectus
supplement dated August 2, 2004 (the "Prospectus
10
Supplement"), relating to the Registered Certificates; "Memorandum" shall mean
the private placement memorandum dated August [ ], 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co.
Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation and the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "▇▇▇▇▇▇
Letters"); and "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the ▇▇▇▇▇▇ Letters, the "No-Action Letters"). The mortgage
loan information and information related thereto contained on the diskette
attached to any ABS Term Sheets or Computational Materials is referred to herein
as the "Term Sheet Diskette" and the tape provided by the Mortgage Loan Seller
that was used to create the Term Sheet Diskette is referred to herein as the
"Term Sheet Master Tape." References herein to ABS Term Sheets or Computational
Materials shall include any Term Sheet Diskette provided therewith. As used
herein "Asset Summary" shall mean any summary of features of such Mortgage Loan
and the related Mortgaged Property prepared by or on behalf of the Mortgage Loan
Seller that were delivered to any investor of the Private Certificates; "Third
Party Report" shall mean appraisals, market studies, environmental, accounting,
engineering and other reports, studies or surveys concerning any of the Mortgage
Loans or related Mortgaged Properties.
(b) Promptly after receipt by any person entitled to indemnification under
this Section 9 (each, an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Mortgage Loan Seller (the "indemnifying party") under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the omission to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party otherwise than under this
Section 9. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election to assume the defense of such action
and approval by the indemnified party of counsel, which approval will not be
unreasonably withheld, the indemnifying party will not be liable for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless: (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the indemnifying
party, representing all the indemnified
11
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 indemnifying party. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto.
12
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
registered mail, postage prepaid, by overnight mail or courier service or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Structured Finance Manager,
facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter be furnished to the Mortgage Loan Seller in writing by the
Purchaser; and if to the Mortgage Loan Seller, addressed to German American
Capital Corporation, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile no. (212)
751-4864 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.
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.
13
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.
14
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized officers as
of the date first above written.
GERMAN AMERICAN CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Authorized Signatory
--------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
--------------------------------
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CONTROL LOAN LOAN
NUMBER GROUP LOAN NUMBER ORIGINATOR PROPERTY NAME ADDRESS
------------------------------------------------------------------------------------------------------------------------
1 1 GA19942 GACC Military Circle Mall 880 North Military ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - Bloomberg
2 1 DBM19573 GACC Headquarters ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
3 2 DBM20122 GACC Stonybrook Apartments ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
4 1 DBM20144 GACC Silverado Shopping Center 9770 and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
5 2 DBM20119 GACC Rothschild Portfolio Various
5.1 DBM20119-1 GACC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
5.2 DBM20119-2 GACC ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
5.3 DBM20119-3 GACC ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
5.4 DBM20119-4 GACC 2121 Grand Concourse 2121 Grand Concourse
5.5 DBM20119-5 GACC ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
6 1 DBM20125 GACC Lake Shore Plaza 565 - 605 Portion Road
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; 4801-4949
7 1 DBM20212 GACC Commerce Center Sharp Street; ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
8 2 DBM20127 GACC Hilltop Gardens ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
9 1 DBM20292 GACC Lakepointe Centre I ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
10 1 DBM20300 GACC Executive Airport Business Center ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
11 1 DBM20126 GACC Bryn Mawr Office ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
12 2 DBM20187 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
CONTROL
NUMBER CITY STATE ZIP CODE COUNTY
--------------------------------------------------------------------------
1 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ New York
3 ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
5 Bronx New York Various Bronx
5.1 Bronx New York 10457 Bronx
5.2 Bronx ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Bronx
5.3 Bronx ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Bronx
5.4 Bronx ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Bronx
5.5 Bronx ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Bronx
▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Suffolk
7 ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Worcester
9 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Ada
10 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Broward
11 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Delaware
12 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
A-1
CONTROL RELATED ORIGINAL CURRENT INTEREST ACCRUAL
NUMBER GROUPS BALANCE ($) BALANCE ($) RATE % TYPE AMORTIZATION TYPE
-----------------------------------------------------------------------------------------------------------
1 61,200,000 61,200,000 5.869 ACT/360 Amortizing Balloon
Interest Only, then
2 50,000,000 50,000,000 5.363 ACT/360 HyperAmortizing
3 Group B 15,865,000 15,850,970 5.750 ACT/360 Amortizing Balloon
4 15,200,000 15,200,000 5.430 ACT/360 Interest Only, then Amortizing
5 15,150,000 15,134,314 5.110 ACT/360 Amortizing Balloon
5.1 3,345,000 3,341,537 5.110 ACT/360 Amortizing Balloon
5.2 3,405,000 3,401,475 5.110 ACT/360 Amortizing Balloon
5.3 2,300,000 2,297,619 5.110 ACT/360 Amortizing Balloon
5.4 4,040,000 4,035,817 5.110 ACT/360 Amortizing Balloon
5.5 2,060,000 2,057,867 5.110 ACT/360 Amortizing Balloon
6 Group B 14,335,000 14,323,274 6.050 ACT/360 Amortizing Balloon
7 10,100,000 10,100,000 5.750 ACT/360 Amortizing Balloon
8 6,925,000 6,918,782 5.690 ACT/360 Amortizing Balloon
9 6,300,000 6,294,915 6.100 ACT/360 Amortizing Balloon
10 4,960,000 4,960,000 5.910 ACT/360 Interest Only, then Amortizing
11 Group B 4,650,000 4,646,196 6.050 ACT/360 Amortizing Balloon
12 2,452,000 2,450,021 6.100 ACT/360 Amortizing Balloon
FIRST ORIGINAL REMAINING
CONTROL PAYMENT INTEREST ONLY INTEREST ONLY
NUMBER NOTE DATE DATE PERIOD PERIOD SEASONING
-----------------------------------------------------------------------------------
1 7/6/2004 9/1/2004 0
2 2/13/2004 4/1/2004 24 19 5
3 6/18/2004 8/1/2004 1
4 7/28/2004 9/1/2004 18 18 0
5 6/10/2004 8/1/2004 1
5.1 6/10/2004 8/1/2004 1
5.2 6/10/2004 8/1/2004 1
5.3 6/10/2004 8/1/2004 1
5.4 6/10/2004 8/1/2004 1
5.5 6/10/2004 8/1/2004 1
6 6/18/2004 8/1/2004 1
7 7/23/2004 9/1/2004 0
8 6/25/2004 8/1/2004 1
9 6/25/2004 8/1/2004 1
10 6/3/2004 8/1/2004 24 23 1
11 6/18/2004 8/1/2004 1
12 7/1/2004 8/1/2004 1
A-2
ORIGINAL REMAINING ORIGINAL REMAINING GRACE MATURITY
CONTROL TERM TO TERM TO AMORTIZATION AMORTIZATION PAYMENT DEFAULT DATE
NUMBER MATURITY MATURITY TERM TERM DUE DATE PERIOD OR ARD
-----------------------------------------------------------------------------------------------------
1 120 120 360 360 1 5 8/1/2014
2 120 115 237 237 1 5 3/1/2014
3 120 119 360 359 1 5 7/1/2014
4 84 84 360 360 1 5 8/1/2011
5 60 59 360 359 1 5 7/1/2009
5.1 60 59 360 359 1 5 7/1/2009
5.2 60 59 360 359 1 5 7/1/2009
5.3 60 59 360 359 1 5 7/1/2009
5.4 60 59 360 359 1 5 7/1/2009
5.5 60 59 360 359 1 5 7/1/2009
6 120 119 360 359 1 5 7/1/2014
7 120 120 300 300 1 5 8/1/2014
8 60 59 360 359 1 5 7/1/2009
9 120 119 360 359 1 5 7/1/2014
10 84 83 360 360 1 5 7/1/2011
11 120 119 360 359 1 5 7/1/2014
12 120 119 360 359 1 5 7/1/2014
SCHEDULED
SCHEDULED MATURITY
MATURITY ANNUAL CUT-OFF OR ARD
CONTROL OR ARD DEBT DATE LTV DATE LTV
NUMBER BALANCE ($) PREPAYMENT PROVISION SERVICE (%) (%)
--------------------------------------------------------------------------------------------
1 52,082,443 Lock/24_Defeasance/89_0%/7 4,304,598 71.75 61.06
2 35,761,214 Lock/29_Defeasance/88_0%/3 4,145,479 58.69 42.01
3 13,354,612 Lock/25_Defeasance/91_0%/4 1,111,006 78.47 66.11
4 13,975,590 Lock/24_Defeasance/56_0%/4 1,027,650 73.80 72.64
5 13,995,369 Lock/25_Defeasance/31_0%/4 988,200 78.01 72.14
5.1
5.2
5.3
5.4
5.5
6 12,174,963 Lock/25_Defeasance/91_0%/4 1,036,883 78.92 67.08
7 7,754,097 Lock/24_Defeasance/92_0%/4 762,477 77.69 59.65
8 6,450,868 Lock/25_Defeasance/31_0%/4 481,786 76.88 71.68
9 5,358,525 Lock/25_Defeasance/92_0%/3 458,132 75.84 64.56
10 4,634,473 Lock/25_Defeasance/55_0%/4 353,416 80.00 74.75
11 3,949,326 Lock/25_Defeasance/91_0%/4 336,345 78.75 66.94
12 2,085,572 Lock/25_Defeasance/91_0%/4 178,308 79.94 68.04
A-3
CUT-OFF DATE
TOTAL SQ. FT./ BALANCE PER SQ. FT./
CONTROL UNITS/PADS/ UNIT UNIT/PAD/ROOM/
NUMBER ROOMS/SPACES DESCRIPTION SPACES OWNERSHIP INTEREST LOCKBOX
------------------------------------------------------------------------------------------------------------------
1 740,788 Sq. Ft. 83 Fee and Leasehold In Place Hard
2 694,634 Sq. Ft. 452 Fee Simple In Place Hard
3 258 Units 61,438 Fee Simple
4 91,512 Sq. Ft. 166 Fee Simple Springing Hard
5 243 Units 62,281 Fee Simple
5.1 59 Units 0 Fee Simple
5.2 56 Units 0 Fee Simple
5.3 48 Units 0 Fee Simple
5.4 43 Units 0 Fee Simple
5.5 37 Units 0 Fee Simple
6 94,790 Sq. Ft. 151 Fee Simple Springing Hard
7 554,444 Sq. Ft. 18 Fee Simple
8 120 Units 57,657 Fee Simple
9 64,030 Sq. Ft. 98 Fee Simple
10 73,559 Sq. Ft. 67 Leasehold In Place Soft
11 24,315 Sq. Ft. 191 Fee Simple
12 60 Units 40,834 Fee Simple
A-4
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
For purposes of these representations and warranties, the phrases "to the
knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan Seller's
knowledge" shall mean, except where otherwise expressly set forth below, the
actual state of knowledge of the Mortgage Loan Seller or any servicer acting on
its behalf regarding the matters referred to, in each case: (i) after the
Mortgage Loan Seller's having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Mortgage Loan Seller's underwriting standards, at the time of the Mortgage
Loan Seller's origination or acquisition of the particular Mortgage Loan; and
(ii) subsequent to such origination, utilizing the servicing and monitoring
practices customarily utilized by prudent commercial mortgage loan servicers
with respect to securitizable commercial or multifamily, as applicable, mortgage
loans. Also for purposes of these representations and warranties, the phrases
"to the actual knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan
Seller's actual knowledge" shall mean, except where otherwise expressly set
forth below, the actual state of knowledge of the Mortgage Loan Seller or any
servicer acting on its behalf without any express or implied obligation to make
inquiry. All information contained in documents included in the definition of
Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Mortgage Loan Seller, to
the extent that the Mortgage Loan Seller or its closing counsel or custodian, if
any, have reviewed or had possession of such document at any time. For purposes
of these representations and warranties, to the extent that any representation
or warranty is qualified by the Mortgage Loan Seller's knowledge with respect to
the contents of the Note, Mortgage, lender's title policy and any letters of
credit or ground leases, if such document is not included in the Mortgage File,
the Mortgage Loan Seller shall make such representation or warranty without any
such qualification. Wherever there is a reference in a representation or
warranty to receipt by, or possession of, the Mortgage Loan Seller of any
information or documents, or to any action taken by the Mortgage Loan Seller or
to any action which has not been taken by the Mortgage Loan Seller or its agents
or employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or the not taking such
action by, either of the Mortgage Loan Seller or any servicer acting on its
behalf. For purposes of these representations and warranties, when referring to
the conduct of "reasonable prudent institutional commercial or multifamily, as
applicable mortgage lenders" (or similar such phrases and terms), such conduct
shall be measured by reference to the industry standards generally in effect as
of the date the related representation or warranty relates to or is made.
The Mortgage Loan Seller hereby represents and warrants with respect to the
Mortgage Loans that, as of the date herein below specified or, if no such date
is specified, as of the Closing Date, and subject to Section 18 of this
Agreement:
1) Mortgage Loan Schedule. The information pertaining to each Mortgage
Loan set forth in the Mortgage Loan Schedule to the Pooling and Servicing
Agreement
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was true and accurate in all material respects as of the Cut-Off Date and
contains all of the information set forth in the definition of "Mortgage
Loan Schedule" in the Pooling and Servicing Agreement
2) Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Mortgage Loan Seller had good
title to, and was the sole owner of, each Mortgage Loan. The Mortgage Loan
Seller has full right, power and authority to sell, transfer and assign
each Mortgage Loan to, or at the direction of, the Purchaser free and clear
of any and all pledges, liens, charges, security interests, participation
interests and/or other interests and encumbrances (other than the rights to
servicing and related compensation as reflected in the Mortgage Loan
Schedule). Subject to the completion of the names and addresses of the
assignees and endorsees and any missing recording information in all
instruments of transfer or assignment and endorsements and the completion
of all recording and filing contemplated hereby and by the Pooling and
Servicing Agreement, the Mortgage Loan Seller will have validly and
effectively conveyed to the Purchaser all legal and beneficial interest in
and to each Mortgage Loan free and clear of any pledge, lien, charge,
security interest or other encumbrance (except for certain servicing rights
described on Schedule B-41 hereto or otherwise contemplated by this
Agreement or the Pooling and Servicing Agreement). The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Mortgage Loan
Seller to obtain any governmental or regulatory approval or consent that
has not been obtained. Each Mortgage Note is, or shall be as of the Closing
Date, endorsed to the Purchaser, or its designee, in conformity with the
requirements of the definition of "Mortgage File" in the Pooling and
Servicing Agreement and each such endorsement is genuine.
3) Payment Record. Such Mortgage Loan was not as of the Cut-off Date
for such Mortgage Loan, and has not been during the twelve-month period
prior thereto, 30 days or more delinquent in respect of any debt service
payment required thereunder, without giving effect to any applicable grace
period.
4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a legal, valid and, subject
to the exceptions set forth in Paragraph 13 below, enforceable first
priority lien upon the related Mortgaged Property, except for the following
(collectively, the "Permitted Encumbrances"): (a) the lien for current real
estate taxes, water charges, sewer rents and assessments not yet due and
payable; (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and are referred to
in the related lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy or title policy 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
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commitment meeting the requirements described in Paragraph 8 below); and
(g) if such Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan,
the lien of the Mortgage for another Mortgage Loan contained in the same
group of Cross-Collateralized Mortgage Loans. With respect to each Mortgage
Loan, such Permitted Encumbrances do not, individually or in the aggregate,
materially interfere with the security intended to be provided by the
related Mortgage, the current principal use of the related Mortgaged
Property, the current ability of the related Mortgaged Property to generate
income sufficient to service such Mortgage Loan or materially and adversely
affect the value of the Mortgage Loan . The related assignment of the
Mortgage for each Mortgage Loan, executed and delivered in favor of the
Trustee, is in recordable form (but for insertion of the name and address
of the assignee and any related recording information which is not yet
available to the Mortgage Loan Seller) to validly and effectively convey
the assignor's interest therein and constitutes a legal, valid, binding
and, subject to the exceptions set forth in Paragraph 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5) Assignment of Leases. There exists as part of the related Mortgage
File an Assignment of Leases (an "Assignment of Leases") either as a
separate document or as part of the Mortgage. Each related Assignment of
Leases creates a valid, first priority collateral assignment of, or a valid
perfected first priority lien on or security interest in, certain rights
under the related lease or leases, including the right to receive all
payment due under the related Lease, subject only to a license granted to
the related Mortgagor to exercise certain rights and to perform certain
obligations of the lessor under such lease or leases, including the right
to operate the related leased property and none of the related leases
contains any restriction on such collateral assignment or creation of a
security interest therein, as applicable. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in
favor of the Trustee is in recordable form (but for insertion of the name
and address of the assignee and any related recording information which is
not yet available to the Mortgage Loan Seller) to validly and effectively
convey the assignor's interest therein and constitutes a legal, valid,
binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Assignment of Leases from the relevant
assignor to the Trustee.
6) Mortgage Status; Waivers and Modifications. The terms of the
Mortgage Loan have not been waived, modified, altered, satisfied, impaired,
canceled, subordinated or rescinded in any manner which materially
interferes with the security provided by such Mortgage Loan and the related
Mortgaged Property other than any material amendment or modification which
has been effected pursuant to a written instrument and has been duly
submitted for recordation to the extent necessary to protect the interests
of the mortgagee, and is a part of the related Mortgage File. Except as set
forth on Schedule B-6, no consents, waivers, modifications, alterations or
assumptions of any kind with respect to a Mortgage Loan have occurred since
the date upon which the due diligence file related to the applicable
Mortgage Loan was delivered to Allied Capital Corporation. The Mortgage
Loan Seller has not taken any affirmative action inconsistent with the
Servicing Standard that would cause the representations and warranties of
the related Mortgagor under the Mortgage Loan not to be true and correct in
any material respect.
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7) Condition of Property; Condemnation. In the case of each Mortgage
Loan, one or more engineering reports were prepared in connection with the
origination of such Mortgage Loan by an independent third-party engineering
firm who inspected the Mortgaged Property, and except as set forth in such
engineering assessment(s) or on Schedule B-7A, the related Mortgaged
Property is, to the Mortgage Loan Seller's knowledge, free and clear of any
damage that would materially and adversely affect its value as security for
such Mortgage Loan (except in cases set forth in clauses (a), (b) and (c)
below). As of origination of such Mortgage Loan there was no proceeding
pending, and subsequent to such date, the Mortgage Loan Seller has not
received actual notice of, any proceeding pending for the condemnation of
all or any material portion of the Mortgaged Property. Except as set forth
on Schedule B-7B, if any of the engineering reports referred to above in
this Paragraph 7 revealed any material damage or material deferred
maintenance, then one of the following is true: (a) the repairs and/or
maintenance necessary to correct such condition have been completed in all
material respects; (b) an escrow of funds is required or a letter of credit
was obtained in a percentage equal to 125% of the amount reasonably
estimated to be sufficient to complete the repairs and/or maintenance
necessary to correct such condition; or (c) the reasonable estimate of the
cost to complete the repairs and/or maintenance necessary to correct such
condition represented no more than (i) 2% of the value of the related
Mortgaged Property as reflected in an appraisal conducted in connection
with the origination of the subject Mortgage Loan or (ii) $50,000 whichever
is less. As of the date of the origination of each Mortgage Loan, except as
set forth on Schedule B-7B: (x) all of the material improvements on the
related Mortgaged Property lay wholly within the boundaries and, to the
extent in effect at the time of construction, building restriction lines of
such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do
not affect the value or current principal use of such Mortgaged Property to
any material extent, (y) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to affect the value or current principal
use of such Mortgaged Property to any material extent, except those
encroachments that are insured against by the lender's title insurance
policy referred to in Paragraph 8 below and (z) the Mortgaged Property
securing each Mortgage Loan is located on or adjacent to a public road, or
has access to an irrevocable easement permitting ingress and egress.
8) Title Insurance. The lien of each Mortgage securing a Mortgage Loan
is insured by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (except that if such
policy is yet to be issued, such insurance may be evidenced by a "marked
up" pro forma policy or title commitment in either case marked as binding
and countersigned by the title company or its authorized agent, either on
its face or by an acknowledged closing instruction or escrow letter) in the
original principal amount of such Mortgage Loan after all advances of
principal, insuring the originator of the related Mortgage Loan, its
successors and assigns (as the sole insured) that the related Mortgage is a
valid first priority lien on such Mortgaged Property, subject only to the
Permitted Encumbrances. Such Title Policy (or, if it has yet to be issued,
the coverage to be provided thereby) is in full force and effect, all
premiums thereon have been paid, the Mortgage Loan Seller has made no
claims thereunder and, to the Mortgage Loan Seller's knowledge, no prior
holder of the related Mortgage has
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made any claims thereunder and no claims have been paid thereunder. The
Mortgage Loan Seller has not, and to the Mortgage Loan Seller's knowledge,
no prior holder of the related Mortgage has done anything that would
materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Mortgage Loan to the
Trustee (including endorsement and delivery of the related Mortgage Note to
the Purchaser or its designee and recording of the related Assignment of
Mortgage in favor of the Purchaser or its designee in the applicable real
estate records), such Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) will inure to the benefit of the Trustee
without the consent of or notice to the insurer. Such Title Policy contains
no exclusion for any of the following circumstances, or it affirmatively
insures (unless the related Mortgaged Property is located in a jurisdiction
where such affirmative insurance is not available), (a) that the related
Mortgaged Property has access to a public road, and (b) that the area shown
on the survey, if any, reviewed or prepared in connection with the
origination of the related Mortgage Loan is the same as the property
legally described in the related Mortgage. Such Title Policy contains no
exclusion regarding the encroachment upon any easements of any permanent
improvements located on the related Mortgaged Property for which the
grantee of such easement has the ability to force removal of such
improvement, or such Title Policy affirmatively insures against losses
caused by forced removal of any material permanent improvements on the
related Mortgaged Property that encroach upon any material easements.
9) No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan
has been disbursed but a portion thereof is being held in escrow or reserve
accounts pending the satisfaction of certain conditions relating to
leasing, repairs or other matters with respect to the related Mortgaged
Property), and there is no obligation for future advances with respect
thereto. If the related Mortgage Loan documents include any requirements
regarding (a) the completion of any on-site or off-site improvements and
(b) the disbursement of any funds escrowed for such purpose, and if those
requirements were to have been complied with on or before the Closing Date,
then such requirements have been complied with in all material respects or
such funds so escrowed have not been released except to the extent
specifically provided by the related Mortgage Loan documents.
10) Mortgage Provisions. The Mortgage Note, Mortgage (along with any
security agreement and UCC financing statement) and Assignment of Leases
for each Mortgage Loan, together with applicable state law, contain
customary and, subject to the exceptions set forth in Paragraph 13 below,
enforceable provisions for commercial Mortgage Loans such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. The Mortgage Loan
documents for each Mortgage Loan, subject to applicable law, provide for
the appointment of a receiver for the collection of rents or for the
related mortgagee to enter into possession to collect the rents if there is
an event of default under such Mortgage Loan.
11) Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has
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either (i) been properly designated, has accepted such designation and
currently so serves or (ii) may be substituted in accordance with the
Mortgage and applicable law, and (b) no fees or expenses are payable to
such trustee by the Mortgage Loan Seller, the Depositor or any transferee
thereof except for such fees and expenses (all of which are the obligation
of the related Mortgagor under the related Mortgage Loan documents) as
would be payable in connection with a trustee's sale after default by the
related Mortgagor or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12) Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Schedule B-12A, (a) an environmental site
assessment meeting the requirements of the American Society for Testing and
Materials and covering all environmental hazards typically assessed for
similar properties including use, type and tenants of the Mortgaged
Property ("Environmental Report"), or an update of such an assessment, was
performed by a licensed (to the extent required by applicable state law)
reputable, independent third-party environmental consulting firm with
respect to each Mortgaged Property in connection with the origination of
such Mortgage Loan and/or thereafter updated such that, except as set forth
on Schedule B-12B, such Environmental Report is dated no earlier than
twelve months prior to the Closing Date, (b) a copy of each such
Environmental Report has been delivered to the Purchaser, and (c) either:
(i) no such Environmental Report provides that as of the date of the report
there is a material violation of any applicable environmental laws with
respect to any circumstances or conditions relating to the related
Mortgaged Property; or (ii) if any such Environmental Report does reveal
any such circumstances or conditions with respect to the related Mortgaged
Property and the same have not been subsequently remediated in all material
respects, then, except as described on Schedule B-12C, one or more of the
following are true: (A) one or more parties not related to or including the
related Mortgagor and collectively having financial resources reasonably
estimated by the Mortgage Loan Seller at the time of origination to be
adequate to cure the subject violation in all material respects, were
identified as the responsible party or parties for such condition or
circumstance and such condition or circumstance does not materially impair
the value of the Mortgaged Property, (B) the related Mortgagor was required
to provide additional security reasonably estimated by the Mortgage Loan
Seller at the time of origination to be adequate to cure the subject
violation in all material respects, (C) if and to the extent that such
condition or circumstances can, based upon the recommendation set forth in
the subject Environmental Report, be remediated or otherwise appropriately
addressed in all material respects through the implementation of an
operations and maintenance plan, the related Mortgagor was required to
obtain and maintain an operations and maintenance plan, (D) the related
Mortgagor, or other responsible party, provided a "no further action"
letter or other evidence reasonably acceptable to a reasonably prudent
commercial mortgage lender that applicable federal, state or local
governmental authorities had no current intention of taking any action, and
are not requiring any action, in respect of such condition or circumstance,
(E) such conditions or circumstances were investigated further and based
upon such additional investigation, an independent third-party
environmental consultant recommended no further investigation or
remediation, (F) the expenditure of funds reasonably estimated to be
necessary to effect such remediation is not greater than the lesser of 2%
of the
B-6
outstanding principal balance of the related Mortgage Loan or $50,000, (G)
there exists an escrow of funds reasonably estimated by the Mortgage Loan
Seller at origination to be sufficient for purposes of effecting such
remediation, (H) the related Mortgaged Property is identified on Schedule
B-12D and insured under a policy of insurance subject to per occurrence and
aggregate limits and a deductible, each as set forth on Schedule B-12D,
against certain losses arising from such circumstances and conditions or
(I) a party with financial resources reasonably estimated by the Mortgage
Loan Seller at the time of origination to be adequate to cure the subject
violation in all material respects provided a guaranty or indemnity to the
related Mortgagor to cover the costs of any required investigation,
testing, monitoring or remediation. To the Mortgage Loan Seller's actual
knowledge, having made no independent inquiry other than reviewing the
Environmental Reports(s) and employing an environmental consultant to
perform the assessment(s) referenced herein, there are no material
circumstances or conditions with respect to any Mortgaged Property not
revealed in any such Environmental Report, where obtained, that render such
Mortgaged Property in material violation of any applicable environmental
laws. The Mortgage Loan documents for each Mortgage Loan require the
related Mortgagor to comply with all applicable federal, state and local
environmental laws and regulations. The Mortgage Loan Seller has not taken
any affirmative action which would cause the Mortgaged Property securing
any Mortgage Loan not to be in compliance with all federal, state and local
laws pertaining to environmental hazards. Each Mortgagor represents and
warrants in the related Mortgage Loan documents substantially to the effect
that, except as set forth in certain specified environmental reports and to
the Mortgagor's knowledge, as of the date of origination, it has not used,
caused or permitted to exist and will not use, cause or permit to exist on
the related Mortgaged Property any hazardous materials which violate
federal, state or local laws, ordinances, regulations, orders, directives,
or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous
materials. Unless the related Mortgaged Property is identified on Schedule
B-12D, the related Mortgagor (or an affiliate thereof) has agreed to
indemnify mortgagee against, or otherwise be liable for, any and all losses
resulting from a breach of environmental representations, warranties or
covenants given by the Mortgagor in connection with such Mortgage Loan,
generally including any and all losses, liabilities, damages, injuries,
penalties, fines, expenses and claims of any kind or nature whatsoever
(including without limitation, attorneys' fees and expenses) paid, incurred
or suffered by or asserted against, any such party resulting from such
breach.
13) Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Mortgagor, or any
guarantor of non-recourse exceptions and environmental liability, with
respect to each Mortgage Loan is the legal, valid and binding obligation of
the maker thereof (subject to any non-recourse provisions contained in any
of the foregoing agreements and any applicable state anti-deficiency or
market value limit deficiency legislation), enforceable in accordance with
its terms, except as such enforcement may be limited by (i) bankruptcy,
insolvency, reorganization, fraudulent transfer and conveyance or other
similar laws affecting the enforcement of creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
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unenforceable by applicable law. There is no right of rescission, offset,
abatement, diminution or valid defense or counterclaim available to the
related Mortgagor with respect to such Mortgage Note, Mortgage or other
agreements that would deny the mortgagee the principal benefits intended to
be provided thereby. The Mortgage Loan Seller has no actual knowledge of
any such rights, defenses or counterclaims having been asserted.
14) Insurance. Except as otherwise set forth on Schedule B-14A, all
improvements upon each Mortgaged Property are insured under a fire and
extended perils insurance policy included within the classification "All
Risk of Physical Loss" insurance (or the equivalent) policy in an amount
(subject to a customary and reasonable deductible) at least equal to the
full insurable replacement cost of the improvements located on such
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of coinsurance
and does not permit reduction in insurance proceeds for depreciation.
Except in the case of the Mortgaged Properties identified on Schedule B-14B
hereto, each Mortgaged Property is the subject of a business interruption,
actual loss sustained or rent loss insurance policy providing coverage for
at least twelve (12) months (or a specified dollar amount which is
reasonably estimated to cover no less than twelve (12) months of rental
income). If any portion of the improvements upon the related Mortgaged
Property was, at the time of the origination of such Mortgage Loan, in a
flood zone area as identified in the Federal Register by the Federal
Emergency Management Agency as a 100 year flood zone or special hazard
area, and flood insurance was available, a flood insurance policy meeting
any requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier,
in an amount representing coverage not less than the least of (1) the
outstanding principal balance of such Mortgage Loan, (2) the full insurable
value of such Mortgaged Property, (3) the maximum amount of insurance
available under the National Flood Insurance Act of 1968, as amended, or
(4) 100% of the replacement cost of the improvements located on such
Mortgaged Property. If any Mortgaged Property is located in the state of
California or in a "seismic zone" 3 or 4, a seismic assessment was
conducted (except in the case of mobile home parks) at the time of
originations and seismic insurance was obtained to the extent such
Mortgaged Property has a PML of greater than twenty percent (20%)
calculated using at least a 450 a year look back with a 10% probability of
exceedance in a 50 year period. If the Mortgaged Property for any Mortgage
Loan is located in any of the locations set forth on Schedule B-12D, then
such Mortgaged Property is insured by windstorm insurance in an amount at
least equal to the lesser of (i) the outstanding principal balance of such
Mortgage Loan and (ii) 100% of the insurable replacement cost of the
improvements located on the related Mortgaged Property. All such hazard and
flood insurance policies contain a standard mortgagee clause for the
benefit of the holder of the related Mortgage, its successors and assigns,
as mortgagee, and are not terminable (nor may the amount of coverage
provided thereunder be reduced) without thirty (30) days' (fifteen (15)
days for non-payment of premiums) prior written notice to the mortgagee;
and no such notice has been received, including any notice of nonpayment of
premiums, that has not been cured. Each Mortgaged Property and all
improvements thereon are also covered by comprehensive general liability
insurance in such amounts as are generally required by reasonably prudent
commercial lenders or as recommended by a reputable, independent
B-8
insurance consultant. If any Mortgaged Property is, to the Mortgage Loan
Seller's knowledge, a materially non-conforming use or structure under
applicable zoning laws and ordinances, then, in the event of a material
casualty or destruction, one or more of the following is true: (i) such
Mortgaged Property may be restored or repaired to materially the same
extent of the use or structure at the time of such casualty; (ii) such
Mortgaged Property is covered by law and ordinance insurance in an amount
customarily required by reasonably prudent commercial mortgage lenders or
as recommended by a reputable, independent insurance consultant; or (iii)
the amount of hazard insurance currently in place and required by the
related Mortgage Loan documents would generate proceeds sufficient to pay
off the subject Mortgage Loan. Additionally, the insurer for all of the
required coverages set forth herein has a claims paying ability rating from
Standard & Poor's, Moody's or ▇▇▇▇▇ Ratings of not less than A-minus (or
the equivalent), or from A.M. Best of not less than "A:V" (or the
equivalent) except that for any Mortgage Loan having a Cut-off Date
Principal Balance equal to or greater than $20,000,000, the insurer for all
of the required coverages set forth herein has a claims paying ability
rating from Standard & Poor's, 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
proceeds paid under any such casualty insurance policy will (or, at the
lender's option, will) be applied either to the repair or restoration of
the related Mortgaged Property or to the payment of amounts due under such
Mortgage Loan; provided that the related Mortgage Loan documents may
entitle the related Mortgagor to any portion of such proceeds remaining
after the repair or restoration of the related Mortgaged Property or
payment of amounts due under the Mortgage Loan; and provided, further,
that, if the related Mortgagor holds a leasehold interest in the related
Mortgaged Property, the application of such proceeds will be subject to the
terms of the related Ground Lease (as defined in Paragraph 18 below). Based
on the due diligence performed by the Mortgage Loan Seller, which in all
events was at least such due diligence as a prudent commercial mortgage
lender (with respect to the below referenced insurance policies regarding
the origination of the related Mortgage Loan) or a prudent commercial
mortgage servicer (with respect to any renewal of the below referenced
insurance policies since the origination of the related Mortgage Loan)
would undertake with respect to such issue after September 11, 2001, for
each Mortgage Loan, except as indicated on Schedule B-14C, the related all
risk property casualty insurance policy and business interruption policy do
not specifically exclude, or
have a separate policy covering, acts of terrorism, or any related damage
claims, from coverage as of the later of (i) the date of origination of the
Mortgage Loan and (ii) the last date as of which the policy was renewed or
amended except as indicated on Schedule B-14C, and the related loan
documents do not expressly prohibit or waive such coverage, except to the
extent that any right to require such coverage may be limited by
commercially reasonable availability. To the Mortgage Loan Seller's actual
knowledge,
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all insurance policies described above are with an insurance carrier
qualified to write insurance in the relevant jurisdiction and all insurance
described above is in full force and effect.
15) Taxes and Assessments. No real estate taxes or governmental
assessments or governmental charges that prior to the Cut-Off Date became
due and owing in respect of each Mortgaged Property are delinquent and
unpaid, or, an escrow of funds in an amount sufficient to pay such payments
has been established. Such taxes, assessments and charges shall not be
considered delinquent and unpaid until the date on which interest or
penalties may first be payable thereon.
16) Mortgagor Bankruptcy. No Mortgaged Property, nor any portion
thereof is the subject of, and no Mortgagor under a Mortgage Loan is a
debtor in, any state or federal bankruptcy, insolvency or similar
proceeding.
17) Local Law Compliance. To the Mortgage Loan Seller's knowledge,
based upon a letter from governmental authorities, an opinion of counsel, a
zoning consultant's report, an endorsement to the related Title Policy, or
(when such would be acceptable to a reasonably prudent commercial mortgage
lender) a representation of the related Mortgagor at the time of
origination of the subject Mortgage Loan, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in
the lending area where the subject Mortgaged Property is located, except as
described on Schedule B-17, the improvements located on or forming part of,
and the existing use of, each Mortgaged Property: (i) are not in violation
of any applicable building codes or land laws applicable to the Mortgaged
Property, the improvements thereon or the use and occupancy thereof which
would have a material adverse effect on the value, operation, current
principal use or net operating income of the Mortgaged Property which are
not covered by title insurance; and (ii) are in material compliance with
applicable zoning laws and ordinances, including all such applicable
parking ordinances or requirements, or constitute a legal non-conforming
use or structure (provided that with respect to 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
B-10
Mortgaged Property by such lessee, its successors or assigns in a
manner that would materially adversely affect the security provided by
the related Mortgage; to the extent required under such Ground Lease,
the lessor under such Ground Lease has been sent notice of the lien of
the related Mortgage in accordance with the provisions of such Ground
Lease; and there has been no material change in the terms of such
Ground Lease since its recordation, with the exception of material
changes reflected in written instruments which are a part of the
related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances, and such Ground
Lease provides that it shall remain superior to any mortgage or other
lien upon the related Fee Interest;
(c) The Mortgagor's interest in such Ground Lease is assignable
to the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date); and in the
event that it is so assigned, is further assignable by the Purchaser
and its successors and assigns upon notice to, but without the need to
obtain the consent of such lessor;
(d) Such Ground Lease is in full force and effect, and the
Mortgage Loan Seller has not received, as of the Closing Date, any
notice that an event of default has occurred thereunder and to the
Mortgage Loan Seller's actual knowledge, there exists no condition
that, but for the passage of time or the giving of notice, or both,
would result in an event of default under the terms of such Ground
Lease;
(e) Such Ground Lease requires the lessor under such Ground Lease
thereunder to give notice of any default by the lessee to the mortgagee
under such Mortgage Loan provided such mortgagee has provided such
lessor with notice of its lien in accordance with the provisions of
such Ground Lease and such Ground Lease further provides that no notice
of termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered to
such mortgagee in the manner described in such Ground Lease and the
Mortgage Loan Seller has provided such lessor with notice of the lien
of the related Mortgage in accordance with the provisions of such
Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease)
to cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(g) Except as set forth on Schedule B-18G, such Ground Lease has
an original term (or an original term plus options exercisable by the
holder of the
B-11
related Mortgage) which extends not less than twenty (20) years beyond
the end of the amortization term of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease by reason
of default by the Mortgagor including termination as a result of a
rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds, will be
applied either to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee or a trustee appointed
by it having the right to hold and disburse such proceeds as the repair
or restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender), or to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon. Under the
terms of such Ground Lease and the related Mortgage Loan documents,
taken together, any condemnation proceeds or awards in respect of a
total or substantially total taking will be applied first to the
payment of the outstanding principal and interest on the Mortgage Loan
(except as otherwise provided by applicable law) and subject to any
rights to require the improvements to be rebuilt;
(j) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the absence of
an uncured default, to disturb the possession, interest or quiet
enjoyment of any subtenant of the lessee, or in any manner, which would
materially adversely affect the security provided by the related
Mortgage;
(k) The lessor under such Ground Lease is not permitted in the
absence of an uncured default to disturb the possession, interest or
quiet enjoyment of the tenant in any manner, which would materially
adversely affect the security provided by such Ground Lease and the
related Mortgage; and
(l) Such Ground Lease provides that it may not be amended or
modified without the prior consent of the mortgagee under such Mortgage
Loan and that any such action without such consent is not binding on
such mortgagee, its successors or assigns.
19) Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury
regulation section 1.860G-2(a), and the related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) (without regard to Section 856(e)(4) of the Code).
B-12
20) Advancement of Funds. The Mortgage Loan Seller has not (nor, to the
Mortgage Loan Seller's knowledge, has any prior holder of such Mortgage
Loan) advanced funds or knowingly received any advance of funds from a
party other than the owner of the related Mortgaged Property (or a tenant
at or the property manager of the related Mortgaged Property), for the
payment of any amount required by such Mortgage Loan, except for interest
accruing from the date of origination of such Mortgage Loan or the date of
disbursement of the Mortgage Loan proceeds, whichever is later, to the date
which preceded by 30 days the first due date under the related Mortgage
Note.
21) No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the lender or shared
appreciation feature and does not provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property or provide for negative amortization. Neither the
Mortgage Loan Seller nor any Affiliate thereof has any obligation to make
any capital contribution to the Mortgagor under the Mortgage Loan or
otherwise.
22) Legal Proceedings. To the Mortgage Loan Seller's knowledge, as of
origination of the Mortgage Loan, there were no, and to the Mortgage Loan
Seller's actual knowledge, as of the Closing Date, there are no pending
actions, suits, litigation or other proceedings by or before any court or
governmental authority against or affecting the Mortgagor (or any guarantor
to the extent a reasonably prudent commercial or multifamily, as
applicable, mortgage lender would consider such guarantor material to the
underwriting of such Mortgage Loan) under any Mortgage Loan or the related
Mortgaged Property that, if determined adversely to such Mortgagor or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Mortgage Loan, the Mortgagor's
ability to pay principal, interest or any other amounts due under such
Mortgage Loan or the ability of any such guarantor to meet its obligations
under the applicable guaranty.
23) Other Mortgage Liens. Except as otherwise set forth on Schedule
B-23, none of the Mortgage Loans permits the related Mortgaged Property or
any direct controlling interest in the related Mortgagor to be encumbered
by any mortgage lien or, in the case of a direct controlling interest in
the related Mortgagor, a lien to secure any other debt, without the prior
written consent of the holder of the subject Mortgage Loan or the
satisfaction of debt service coverage or similar criteria specified
therein. To the Mortgage Loan Seller's knowledge, as of origination of the
subject Mortgage Loan, and to the Mortgage Loan Seller's actual knowledge,
as of the Closing Date, except as otherwise set forth on Schedule B-23, and
except for cases involving other Mortgage Loans, no Mortgaged Property
securing the subject Mortgage Loan is encumbered by any other mortgage
liens (other than Permitted Encumbrances) and no direct controlling equity
interest in the related Mortgagor is encumbered by a lien to secure any
other debt. The related Mortgage Loan documents do not specifically
prohibit the mortgagee from requiring the Mortgagor under each Mortgage
Loan to pay all reasonable costs and expenses related to any required
consent to an encumbrance, including reasonable legal fees and expenses and
any applicable Rating Agency fees, or would permit the subject
B-13
mortgagee to withhold such consent if such costs and expenses are not paid
by a party other than such mortgagee.
24) No Mechanics' Liens. To the Mortgage Loan Seller's knowledge, as of
the origination of the Mortgage Loan, and, to the Mortgage Loan Seller's
actual knowledge, as of the Closing Date: (i) each Mortgaged Property
(exclusive of any related personal property) is free and clear of any and
all mechanics' and materialmen's liens that are prior or equal to the lien
of the related Mortgage and that are not bonded or escrowed for or covered
by title insurance, and (ii) no rights are outstanding that under law could
give rise to any such mechanic's or materialmen's lien that would be prior
or equal to the lien of the related Mortgage and that is not bonded or
escrowed for or covered by title insurance.
25) Compliance with Usury Laws. Each Mortgage Loan complied with, or
was exempt from, all applicable usury laws in effect at its date of
origination.
26) Licenses and Permits. Except as set forth on Schedule B-26, each
Mortgage Loan contains provisions substantially to the effect that, to the
extent required by applicable law, each Mortgagor is required to be
qualified to do business and requires the related Mortgagor and the related
Mortgaged Property to be in material compliance with all regulations,
licenses, permits, authorizations, restrictive covenants and zoning,
parking and building laws or ordinances, in each case to the extent
required by law or to the extent that the failure to be so qualified or in
compliance would have a material and adverse effect upon the enforceability
of the Mortgage Loan or upon the practical realization against the related
Mortgaged Property of the principal benefits of the security intended to be
provided thereby.
27) Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any group
of cross-collateralized Mortgage Loans, the sum of the amounts of the
respective Mortgages upon which recording taxes and fees were paid in an
amount sufficient to allow the mortgagee to realize on the Mortgaged
Properties in an amount at least equal to the original principal balance of
such Mortgage Loan.
28) Releases of Mortgaged Properties. Except as set forth on Schedule
B-28A, no Mortgage Note or Mortgage requires the mortgagee to release all
or any material portion of the related Mortgaged Property from the lien of
the related Mortgage except upon: (i) payment in full of all amounts due
under the related Mortgage Loan or (ii) delivery of "government securities"
within the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in connection
with a defeasance of the related Mortgage Loan; provided that the Mortgage
Loans that are Cross-Collateralized Mortgage Loans, and the other
individual Mortgage Loans secured by multiple parcels, may require the
respective mortgagee(s) to grant releases of material portions of the
related Mortgaged Property or the release of one or more related Mortgaged
Properties upon: (i) the satisfaction of certain legal and underwriting
requirements, (ii) the payment of a release price for the released property
or parcel as set forth on Schedule B-28C or (iii) the delivery of
comparable substitute real estate collateral subject to certain conditions
precedent as set
B-14
forth on Schedule B-28C. No release or partial release of any Mortgaged
Property, or any portion thereof, expressly permitted pursuant to the terms
of any Mortgage Note or Mortgage will constitute a significant modification
of the related Mortgage Loan under Treas. Reg. Section 1.860G-2(b)(2).
Notwithstanding the foregoing, any Mortgage Loan may permit the
unconditional release of one or more unimproved parcels of land to which
the Mortgage Loan Seller did not give any material value in its
underwriting of such Mortgage Loan. With respect to any release or
substitution, the related Mortgagor is required to pay all reasonable costs
and expenses associated therewith incurred by the mortgagee including any
Rating Agency fees and expenses.
29) Defeasance. Each Mortgage Loan containing provisions for defeasance
of all or a portion of the Mortgaged Property either (i) requires the prior
written consent of, and compliance with all conditions set by, the holder
of the Mortgage Loan, (ii) requires confirmation from the rating agencies
rating the certificates of any securitization transaction in which such
Mortgage Loan is included that such defeasance will not cause the
downgrade, withdrawal or qualification of the then current ratings of such
certificates, or (iii) requires that (A) defeasance must occur in
accordance with the requirements of, and within the time permitted by,
applicable REMIC rules and regulations, (B) the replacement collateral
consists of non-callable U.S. government securities in an amount sufficient
to make all scheduled payments under such Mortgage Loan when due, (C) at
the mortgagee's election, the Mortgage Loan may only be assumed by a
single-purpose entity designated or approved by the holder of the Mortgage
Loan and (D) counsel provide an opinion that the Trustee has a perfected
security interest in such U.S. government securities prior to any other
claim or interest. The Mortgagor is required by the Mortgage Loan documents
to pay all reasonable costs and expenses, including but not limited to
Rating Agency fees, accountants fees and legal fees, associated with such
defeasance.
30) Inspection. Except as set forth on Schedule B-30, the Mortgage Loan
Seller, an affiliate of the Mortgage Loan Seller, or a correspondent in the
conduit funding program of the Mortgage Loan Seller, inspected, or caused
the inspection of, each Mortgaged Property within twelve (12) months of the
Closing Date.
31) No Material Default. Other than payments due but not yet 30 days or
more past due, there exists no material default, breach, violation or event
of acceleration under the Mortgage Note or Mortgage for any Mortgage Loan;
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that specifically
pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Mortgage Loan Seller in this
Exhibit B.
32) Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan if, without the prior
written consent of the holder of such Mortgage, either the related
Mortgaged Property, or any direct controlling equity interest in the
related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers of less than a controlling
interest in the Mortgagor, transfers
B-15
of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the
Mortgage Loan, transfers among existing members, partners or shareholders
in the Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgaged Loans or multi-property Mortgage Loans,
transfers among co-Mortgagors or transfers of a similar nature to the
foregoing meeting the requirements of the Mortgage Loan. The related
Mortgage Loan documents require the Mortgagor under each Mortgage Loan to
pay all reasonable fees and expenses associated with securing the consent
or approval of the holder of the related Mortgage for all such actions
requiring such consent or approval under the related Mortgage, including
Rating Agency fees and the cost of counsel opinions relating to REMIC or
other securitization tax issues.
33) Single Purpose Entity. Except as otherwise described on Schedule
B-33 hereto, each Mortgage Loan with an original principal balance over
$5,000,000.00 requires the related Mortgagor to be, at least for so long as
the Mortgage Loan is outstanding, and to the Mortgage Loan Seller's actual
knowledge, the related Mortgagor is, a Single-Purpose Entity. For this
purpose, "Single-Purpose Entity" means a person, other than an individual,
which is formed or organized solely for the purpose of owning and operating
the related Mortgaged Property or Properties; does not engage in any
business unrelated to such Mortgaged Property or Properties and the
financing thereof; and whose organizational documents provide, or which
entity represented and covenanted in the related Mortgage Loan documents,
substantially to the effect that such Mortgagor (i) does not and will not
have any material assets other than those related to its interest in such
Mortgaged Property or Properties or the financing thereof; (ii) does not
and will not have any indebtedness other than as permitted by the related
Mortgage or other related Mortgage Loan documents; (iii) maintains its own
books, records and accounts, in each case which are separate and apart from
the books, records and accounts of any other person; and (iv) holds itself
out as being a legal entity, separate and apart from any other person. In
addition, each Mortgage Loan with a Cut-off Date Principal Balance of
$20,000,000 or more, except as set forth on Schedule B-33, the related
Mortgagor's organizational documents provide substantially to the effect
that the Mortgagor shall: conduct business in its own name; not guarantee
or assume the debts or obligations of any other person; not commingle its
assets or funds with those of any other person; prepare separate tax
returns and financial statements, or if part of a consolidated group, be
shown as a separate member of such group; transact business with affiliates
on an arm's length basis; hold itself out as being a legal entity, separate
and apart from any other person, and such organizational documents further
provide substantially to the effect that: any dissolution and winding up or
insolvency filing for such entity is prohibited or requires the consent of
an independent director or member or the unanimous consent of all partners
or members, as applicable; such documents may not be amended with respect
to the Single-Purpose Entity requirements without the approval of the
mortgagee or rating agencies; the Mortgagor shall have an outside
independent director or member. The Mortgage Loan Seller has obtained, and
the Servicing File contains, with respect to each Mortgage Loan having a
Cut-off Date Principal Balance of $20,000,000 or more, in connection with
its origination or acquisition thereof, a counsel's opinion regarding
non-consolidation of the Mortgagor. The organization documents of any
Mortgagor on a Mortgage Loan having a Cut-off Date Principal Balance of
B-16
$20,000,000 or more that is a single member limited liability company,
provide that the Mortgagor shall not dissolve or liquidate upon the
bankruptcy, dissolution, liquidation or death of the sole member and the
Mortgage Loan Seller has obtained in connection with its origination or
acquisition of the subject Mortgage Loan, and the Servicing File contains,
an opinion of such Mortgagor's counsel confirming that the law of the
jurisdiction in which such single member limited liability company was
organized permits such continued existence upon such bankruptcy,
dissolution, liquidation or death of the sole member of the Mortgagor and
that the applicable law provides that creditors of the single member may
only attach the assets of the member including the membership interests in
the Mortgagor but not the assets of the Mortgagor.
34) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
35) Tax Parcels. Except as described on Schedule B-35, each Mortgaged
Property constitutes one or more complete separate tax lots containing no
other property, or is subject to an endorsement under the related Title
Policy insuring same, or an application for the creation of separate tax
lots complying in all respects with the applicable laws and requirements of
the applicable governing authority has been made and approved by the
applicable governing authority and such separate tax lots shall be
effective for the next tax year.
36) Security Interests. UCC Financing Statements have been filed and/or
recorded (or, if not filed and/or recorded, have been submitted in proper
form for filing and recording), in all public places necessary to perfect a
valid security interest in all items of personal property owned by a
Mortgagor and located on the related Mortgaged Property (other than any
personal property subject to a leasing arrangement or purchase money
security interest permitted under the terms of such Mortgage Loan or any
other applicable personal property leases, provided, the related Mortgage
Loan documents contain a provision providing for the assignment of such
leases and related contracts to the mortgagee in the event of a foreclosure
of the Mortgage Loan), which in all cases, includes any elevators and all
Mortgagor-owned furniture, fixtures and equipment material to the operation
and use of the Mortgaged Property as presently operated, and if such
Mortgaged Property is a hotel or self-storage facility, operated by the
related Mortgagor, then such personal property constitutes all of the
material personal property required to operate the Mortgagor's business as
currently operated (other than any personal property subject to a leasing
arrangement or purchase money security interest permitted under the terms
of such Mortgage Loan or any other applicable personal property leases,
provided, the related Mortgage Loan documents contain a provision providing
for the assignment of such leases and related contracts to the mortgagee in
the event of a foreclosure of the Mortgage Loan) and the Mortgages,
security agreements, chattel mortgages or equivalent documents related to
and delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable first priority (except as noted above in
this Paragraph 36) lien and security interest, to the extent perfection may
be effected pursuant to applicable law solely by recording or filing UCC
Financing Statements, on such items of personalty except as enforceability
may be limited as set forth in Paragraph 13. In the case of each Mortgage
Loan secured by a hotel, the related
B-17
loan documents contain such provisions as are necessary and UCC Financing
Statements have been filed as necessary, in each case, to perfect a valid
first security interest in Mortgagor's related operating revenues with
respect to such Mortgaged Property. An assignment of each UCC Financing
Statement relating to the Mortgage Loan has been completed or will be
prepared in blank which the Purchaser or Trustee, as applicable, or its
designee is authorized to complete and to file in the filing office in
which such Financing Statement was filed. Notwithstanding any of the
foregoing, no representation is made as to the perfection or priority of
any security interest in rents or other personal property to the extent
that possession or control of such items or actions other than the filing
of UCC Financing Statements are required in order to effect such
perfection.
37) Disclosure to Environmental Insurer and Other Matters. If the
Mortgaged Property securing any Mortgage Loan is covered by a secured
creditor impaired property policy, then the Mortgage Loan Seller:
(a) has disclosed, or is aware that there has been disclosed, in
the application for such policy or otherwise to the insurer under such
policy the "pollution conditions" (as defined in such policy)
identified in any environmental reports related to such Mortgaged
Property which are in the Mortgage Loan Seller's possession or are
otherwise known to the Mortgage Loan Seller; or
(b) has delivered or caused to be delivered to the insurer under
such policy copies of all environmental reports in the Mortgage Loan
Seller's possession related to such Mortgaged Property;
in each case to the extent required by such policy or to the extent the failure
to make any such disclosure or deliver any such report would materially and
adversely affect the Purchaser's ability to recover under such policy. If the
Mortgaged Property securing any Mortgage Loan is covered by a secured creditor
impaired property policy, then: (v) all premiums for such insurance have been
paid and any deductible is held in escrow by the Mortgage Loan Seller and will
be transferred to the Purchaser; (w) such insurance is in full force and effect;
(x) the policy is in an amount equal to at least 125% of the principal balance
of the Mortgage Loan; (y) the policy has a term that ends no sooner than five
(5) years after the maturity date of the Mortgage Loan and is not cancelable
during such term; and (z) (i) an environmental report, a property condition
report or an engineering report was prepared that included an assessment for
lead based paint ("LBP") (in the case of a multifamily property built prior to
1978), asbestos containing materials ("ACM") (in the case of any property built
prior to 1985) and radon gas ("RG") (in the case of a multifamily property) at
such Mortgaged Property and (ii) if such report disclosed the existence of a
material and adverse LBP, ACM or RG environmental condition or circumstance
affecting such Mortgaged Property, then, except as otherwise described on
Schedule C-38, (A) the related Mortgagor was required to remediate such
condition or circumstance prior to the closing of the subject Mortgage Loan, or
(B) the related Mortgagor was required to provide additional security reasonably
estimated to be adequate to cure such condition or circumstance, or (C) the
related Mortgage Loan documents require the related Mortgagor to establish an
operations and maintenance plan with respect to such condition or circumstance
after the closing of such Mortgage Loan. If the Mortgage Loan is listed on
Schedule B-12D and the environmental insurance for such Mortgage Loan is not a
secured
B-18
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-19
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.
50) Credit Tenant Lease.
B-20
(a) The lease payments due under the related Credit Lease,
together with any escrow payments held by the Mortgage Loan Seller or
its designee, are equal to or greater than the payments due with
respect to the related Mortgage Loan.
(b) The Mortgagor does not have any material monetary obligations
under the related Credit Lease, and every material monetary obligation
associated with managing, owning, developing and operating the leased
property, including, but not limited to, the costs associated with
utilities, taxes, insurance, maintenance and repairs is an obligation
of the related Tenant.
(c) The Mortgagor does not have any nonmonetary obligations under
the related Credit Lease, except for the delivery of possession of the
leased property.
(d) Except as may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), the related Tenant
cannot terminate such Credit Lease for any reason prior to the payment
in full of: (a) the principal balance of the related Mortgage Loan; (b)
all accrued and unpaid interest on such Mortgage Loan; and (c) any
other sums due and payable under such Mortgage Loan, as of the
termination date, which date is a rent payment date, except for a
material default by the related Mortgagor under the Credit Lease or due
to a casualty or condemnation event, in which case, a Lease Enhancement
Policy insures against such risk.
(e) In the event the related Tenant assigns or sublets the
related leased property, such Tenant (and if applicable, the related
guarantor) remains obligated under the related Credit Lease.
(f) Each property related to a Credit Lease Loan is one or more
separate tax lots, except properties concerning which adequate funds
have been escrowed to cover taxes due on the entire tax lot or lots.
(g) The related Tenant has agreed to indemnify the Mortgagor from
any claims of any nature (a) to which the Mortgagor is subject because
of such Mortgagor's estate in the leased property (except to the extent
caused by the act or omission of the Mortgagor or its agents or
employees), or (b) arising from (i) injury to or death of any person or
damage to or loss of property on the leased property or connected with
the use, condition or occupancy of the leased property, (ii) Tenant's
violation of the related Credit Lease, or (iii) any act or omission of
the Tenant.
(h) The related Tenant has agreed to indemnify the Mortgagor from
any claims of any nature arising as a result of any hazardous material
affecting the leased property and due to such Tenant's use of the
leased property.
B-21
(i) In connection with Credit Lease Loans with a Guaranty, the
related guarantor guarantees the payments due under the related Credit
Lease and such Guaranty, on its face, contains no conditions to such
payment, except as may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(j) Except for the Credit Lease Loans which have residual value
insurance, each Credit Lease Loan fully amortizes over the term of the
loan, and there is no "balloon" payment due under such Credit Lease
Loan at maturity.
(k) There is no right of any offset or set-off under the Credit
Lease.
(l) Each Tenant under each Credit Lease Loan is required to make
all rental payments due under the applicable Credit Lease directly to a
lock-box being maintained by or on behalf of the mortgagee.
(m) No material modification or amendment of any Credit Lease
shall be binding upon the mortgagee without such mortgagee's prior
written consent to such material modification or amendment, which
consent may not be unreasonably unwithheld.
(n) Each property related to a Credit Lease Loan has a permanent
certificate of occupancy, and the related Tenant has commenced the
payment of rent due under the respective Credit Tenant Lease in
accordance with its terms.
(o) Each Tenant has delivered a subordination, non-disturbance
and attornment agreement pursuant to which the respective Tenant has
agreed in the event the related mortgagee succeeds to the interest of
the Mortgagor under the Credit Lease by reason of foreclosure or
acceptance of a deed in lieu of foreclosure, the Tenant will attorn to
and recognize the mortgagee as its landlord under the Credit Lease for
the remainder of the term of the Credit Lease.
(p) To the Mortgage Loan Seller's knowledge, except for any
ground lease pursuant to which the related Mortgagor may have acquired
its interest in the respective property, the property related to each
Credit Lease and Loan is not subject to any other lease other than the
related Credit Lease and no Person has any possessory interest in, or
right to occupy, the subject property except pursuant to the Credit
Lease. The Tenant under the related Credit Lease is in occupancy of the
premises.
(q) Except as may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), the lease is in full
force and effect, and is a legal, valid, binding and enforceable
obligation of the tenant.
B-22
(r) No default by the landlord or the tenant has occurred under
the lease, and to the Mortgage Loan Seller's knowledge there are no
existing conditions that, with the passage of time or the giving of
notice, or both, would result in a default under the terms of the
lease.
(s) The tenant has agreed to notify the mortgagee of any default
under the lease and to provide the mortgagee with reasonable time and
opportunity to cure.
(t) In the event that the lease may be terminated upon the
occurrence of a casualty or condemnation, the related mortgage loan has
the benefit of a noncancelable lease enhancement policy for which the
entire premium has been paid in full.
B-23
SCHEDULE TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
GERMAN AMERICAN CAPITAL CORPORATION
Mortgage Loan No. DBM 19573, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇--▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, is
also secured by a fee simple interest in a 205,000 sq. ft. speculative office
condominium ("Unit 2") in the building; the lender received this additional
collateral only because Bloomberg L.P. ("Bloomberg") has certain expansion
rights into Unit 2 that arise under the Bloomberg lease. No value was assigned
to such additional Unit 2 collateral by the Rating Agencies in determining the
rating levels, and no cash flow from Unit 2 was included in the appraisal for
valuation purposes. The Unit 2 collateral is subject to release if space in Unit
2 is no longer required to be available to Bloomberg pursuant to the Bloomberg
lease; rents and other cash flows from Unit 2 are not required to be deposited
in the lockbox and may be separately financed by the Mortgagor's parent; and the
lender has agreed not to foreclose on the Unit 2 collateral unless certain Unit
2-specific defaults occur. In addition, subject to the consent of the holder of
the ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇--▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇ Loan, the Mortgagor may
transfer Unit 2 to another wholly-owned subsidiary of the sponsor. If such
consent is granted, the Unit 2 owner may be separately financed and, under
certain circumstances, the Unit 2 owner may obtain the release of Unit 2 from
the lien of the mortgage of the 731 Lexington Avenue--Bloomberg Headquarters
Mortgage Loan. No value is attributed to the Unit 2 collateral and no
representations and/or warranties are made herein with respect to Unit 2.
REP. #2: Ownership of Mortgage Loans.
REP. #4: Lien; Valid Assignment.
REP. #5: Assignment of Leases.
As described in the prospectus supplement, Mortgage Loan No. DBM 19573, 731
Lexington Avenue--Bloomberg Headquarters, is currently being serviced and
administered pursuant to the COMM ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ and Servicing Agreement. All
of GACC's right, title and interest in the mortgage and other security documents
has been assigned to ▇▇▇▇▇ Fargo Bank, N.A., a national banking association, as
Trustee for the registered holders of COMM 2004-LNB3, Commercial Mortgage
Pass-Through Certificates.
REP #14 Insurance.
Generally, each Mortgage Loan requires that all insurance name the lender as the
first mortgagee or first beneficiary on all property insurance policies and as
the loss payee on all loss of rents or loss of business income insurance
policies. In addition, the Mortgage Loans generally permit the lender to apply
sums received from casualty and insurance proceeds first to all of its costs
incurred in obtaining those proceeds, before any such proceeds are applied in
respect of the items listed in Representation 14.
B-24
Mortgage Loan No. DBM 19573, 731 Lexington Avenue--Bloomberg Headquarters,
provides that the Mortgagor is required to maintain the insurance coverage with
one or more domestic primary insurers reasonably acceptable to lender, having
claims-paying-ability and financial strength ratings by S&P of not less than "A"
and its equivalent by the other Rating Agencies, provided that, with respect to
any layered or quota share insurance policy for the insurance that is issued by
a syndication of more than five insurers, then the foregoing requirements shall
not be violated if such insurance is provided under a blanket policy and at
least sixty percent of the limits of insurance in place on the Closing Date and
thereafter is with the primary carrier having a claims paying ability rating of
"A" or better and the other carriers having a claims paying ability rating of
"BBB" or better by S&P and its equivalent by the other Rating Agencies. The
Mortgage Loan documents permit the lender to use insurance proceeds to cover any
costs incurred in obtaining such proceeds prior to either the repair or
restoration of the Mortgaged Property or the reduction of the outstanding
principal balance of the Mortgage Loan.
Mortgage Loan No. GA 19942, Military Circle, provides that during any period of
the term of the Mortgage Loan that the Terrorism Risk Insurance Act of 2002 is
not in effect, if "acts of terrorism" are excluded from coverage, Mortgagor will
be required to obtain an endorsement to its existing policies or a separate
policy insuring against such excluded acts to the extent such policy or
endorsement is commercially available, in an amount determined by Mortgagee in
its sole discretion; provided, however, that Mortgagor is only required to
maintain such coverage to the extent and at the level obtainable at an annual
premium not to exceed the greater of (x) $15,000 and (y) such amount as may be
required from time to time by the Rating Agencies.
Mortgage Loan Nos. GA ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; DBM 20127, Hilltop Gardens; DBM
20119, Rothschild Portfolio; DBM ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Plaza; DBM 20122, Stonybrook Apartments; DBM 20300, Executive ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇; ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Center I; and DBM ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Apartments, each requires the Mortgagor to maintain insurance coverage that
complies with Representation 14. However, each such Mortgage Loan states that
such insurance policy may provide for at least ten days notice to Mortgagee
prior to any cancellation due to non-payment of insurance premiums, instead of
the required fifteen days.
REP #18 Leasehold Estate Only.
With respect to Mortgage Loan No. GA 19942, Military Circle: (b) the Ground
Lease does not provide that it shall remain superior to any mortgage or other
lien upon the related fee interest, although the title policy did not reflect
any such existing mortgage or other lien on the fee estate at the closing of the
Mortgage Loan, (e) although the Ground Lease does require copies of notices of
default be sent to Mortgagee, the Ground Lease does not require that notice of
termination be delivered to Mortgagee, unless it is in connection with
Mortgagor's exercise of its termination option in 2010, (j, k) the Ground Lease
does not contain a quiet enjoyment covenant by ground lessor and (l) the Ground
Lease does not provide that it may not be amended or modified without
Mortgagee's consent.
With respect to Mortgage Loan No. DBM 20300, Executive Airport Business Center:
(b) the Ground Lease does not specifically provide that it shall be superior to
any mortgage or other lien
B-25
upon the related Fee Interest, but contains language to the effect that nothing
in the lease shall be deemed to impose upon the leasehold interest the
superiority of the lien of any fee mortgage, (i) any insurance proceeds payable
due to the destruction or damage to any of the Premises will be payable to and
deposited in a commercial national bank as trustee located in Fort Lauderdale,
FL that is selected by the Landlord, not by the Mortgagee; the Ground Lease also
states that any condemnation proceeds shall be used by the Tenant for
restoration purposes, but does not require any condemnation proceeds to be
applied first to the payment of outstanding principal interest on the Mortgage
Loan; (l) the Ground Lease is silent with respect to amendments and
modifications without the Leasehold Mortgagee's prior consent, but the Mortgage
Loan is supported by a non-recourse guarantee that holds the loan's sponsor
personally liable for losses resulting from any amendment and/or modification of
the Ground Lease without lender's consent and for application of insurance
proceeds or condemnation awards not in accordance with the loan documents.
REP #23 Other Mortgage Liens.
Mortgage Loan No. DBM 20300, Executive Airport Business Center, permits the
Mortgagor to provide mezzanine financing in connection with sale of the
Mortgaged Property to a buyer, provided such mezzanine financing is not secured
by a pledge of the managing member, manager or general partner interest in the
Buyer, the combined DSCRs of the Loan and the mezzanine loan is not less than
1.32 to 1.0, the combined loan to value ratio of the Loan and the mezzanine loan
is not more than 80% and the combined loan to cost ratio is not more than 80%.
REP #28 Releases of Mortgaged Property.
With respect to Mortgage Loan No. GA 19942, Military Circle, Mortgagor has the
right to obtain the release of a parcel of the Mortgaged Property owned in fee
and, upon the acquisition by Mortgagor of the related fee estate and the
termination of the ground lease, a parcel of the Mortgaged Property currently
leased by Mortgagor, each of which parcels do contain improvements (including a
parking lot, a portion of a "ring road," and former miniature golf course which
is not connected to the shopping mall). The release of such parcels is subject
to the satisfaction by Mortgagor of certain conditions precedent set forth in
the Mortgage (which conditions include compliance of the remaining Mortgaged
Property with zoning requirements, the continued use of the ring road after the
release, a REMIC opinion and a no-downgrade letter from the rating agencies).
Neither of the parcels was attributed any value by Mortgage Loan Seller for
underwriting purposes.
Mortgage Loan No. DBM 20119, Rothschild Portfolio, is secured by Mortgagor's
interest in five separate properties located at: (1) 2103-2121 Grand Concourse,
a/k/a ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ("Grand Concourse"), (2) ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ("▇▇▇▇▇"), (3) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇
("Shakespeare"), (4) ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ("250 East") and (5) ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ("80 West"). Mortgagor may, on one occasion, obtain
a release of one of the parcels from the Mortgage, provided the following
conditions, among others, are satisfied:
(a) the DSCR for each of the remaining properties must be at least
1.25:1.00;
B-26
(b) For each remaining property, the stabilized occupancy rate after the
release must be at least 95%;
(c) Rating agency confirmation that the release will not result in a
downgrading, withdrawal or qualification of the current ratings assigned in
connection with the Loan; and
(d) Mortgagor shall pay a release price as shown below:
----------------------------------------------------------------------
Release Property Release Price
----------------------------------------------------------------------
Grand Concourse $5,050,000
----------------------------------------------------------------------
▇▇▇▇▇ $2,875,000
----------------------------------------------------------------------
Shakespeare $2,575,000
----------------------------------------------------------------------
250 East $4,181,250
----------------------------------------------------------------------
80 West $4,256,250
----------------------------------------------------------------------
REP #29 Defeasance.
With respect to Mortgage Loan No. GA 19942, Military Circle, at Mortgagor's
election, the Mortgage Loan may be assumed by a successor entity designated by
Mortgagor and approved by Mortgagee in its sole discretion. Although there is no
specific requirement that the successor entity be a single-purpose entity, in
addition to the requirement that the successor entity be approved by Mortgagee
in its sole discretion, Mortgagor is required to provide a bankruptcy
non-consolidation opinion satisfactory to Mortgagee and the applicable rating
agency. While the Mortgage does not specifically require Mortgagor to pay rating
agency fees, accountants fees and legal fees associated with a defeasance, the
Mortgage does require Mortgagor to pay all costs and expenses incurred by
Mortgagee or its agents in connection with a defeasance.
REP #32 Due-on-Sale.
With respect to Mortgage Loan No. GA 19942, Military Circle, while the Mortgage
does not specifically require Mortgagor to pay rating agency fees and cost of
counsel opinions relating to REMIC or other securitization issues, the Mortgage
does require Mortgagor to pay all costs and expenses incurred by Mortgagee in
connection with the approval of transfers, including, without limitation,
attorneys' fees.
REP #34 Whole Loan.
Mortgage Loan No. DBM 19573, 731 Lexington Avenue--Bloomberg Headquarters, is
evidenced by (i) five pari passu notes (one of which is an interest only note)
in the total principal amount of $314,000,000 and one of which, in the amount of
$50,000,000 is being assigned by the Mortgage Loan Seller and (ii) a subordinate
B Note in the principal amount of $86,000,000, which is not being assigned by
Mortgage Loan Seller.
The foregoing loan also serves as collateral for the other promissory notes
identified in this representation exception (also relevant to rep. 27 and rep.
41).
B-27
REP #40 Recourse.
Mortgage Loan No. DBM 19573, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇--▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, is
without recourse to any natural person for damages arising in the case of each
of the items enumerated in this representation.
Mortgage Loan No. DBM 20300, Executive Airport Business Center, has recourse
carve-outs that do not include voluntary bankruptcy of Mortgagor, but include
only collusive involuntary bankruptcy.
B-28
Schedule B-12D
B-29
EXHIBIT C-1
FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER
Certificate of Officer of German American Capital Corporation (the
"Mortgage Loan Seller")
I, _______________________, a __________________ of the Mortgage Loan
Seller, hereby certify as follows:
The Mortgage Loan Seller is a corporation duly organized and validly
existing under the laws of the State of Maryland.
Attached hereto as Exhibit I are true and correct copies of the Certificate
of Incorporation and By-Laws of the Mortgage Loan Seller, which Certificate of
Incorporation and By-Laws are on the date hereof, and have been at all times in
full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Mortgage Loan Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Mortgage Loan Seller and his genuine
signature is set forth opposite his name:
Name Office Signature
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of August 2, 2004 (the
"Purchase Agreement"), between the Mortgage Loan Seller and GMAC Commercial
Mortgage Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Mortgage Loan Seller of the Mortgage Loans, was, at
the respective times of such signing and delivery, duly authorized or appointed
to execute 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.
C-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
[____], 2004.
By:
-------------------------------------
Name:
Title:
I, _____________________________, _______________________________, hereby
certify that ____________________________ is a duly elected or appointed, as the
case may be, qualified and acting _________________________ of the Mortgage Loan
Seller and that the signature appearing above is his or her genuine signature.
C-1-2
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
[_______], 2004.
By:
-------------------------------------
Name:
Title:
C-1-3
EXHIBIT C-2
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
Certificate of German American Capital Corporation
In connection with the execution and delivery by German American
Capital Corporation (the "Mortgage Loan Seller") of, and the consummation of the
transaction contemplated by, that certain Mortgage Loan Purchase Agreement,
dated as of August 2, 2004 (the "Purchase Agreement"), between GMAC Commercial
Mortgage Securities, Inc. and the Mortgage Loan Seller, the Mortgage Loan Seller
hereby certifies that (i) the representations and warranties of the Mortgage
Loan Seller in the Purchase Agreement are true and correct in all material
respects at and as of the date hereof with the same effect as if made on the
date hereof, and (ii) the Mortgage Loan Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the date hereof.
Certified this ____ day of [_______], 2004.
GERMAN AMERICAN CAPITAL CORPORATION
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
C-2-1