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EXHIBIT 99.7
EXECUTION COPY
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement (this "Agreement"), is dated and effective
as of December 5, 2000 between GMAC Commercial Mortgage Corporation as seller
(the "Seller") and Goldman Sachs Mortgage Company as purchaser (the
"Purchaser").
WHEREAS, the Seller sold certain mortgage loans to the Purchaser
pursuant to a certain Mortgage Loan Purchase Agreement, dated as of September
28, 2000 (the "GSMC Purchase Agreement").
WHEREAS, the Purchaser intends to sell the mortgage loans as shown on
Exhibit A hereto (the "Mortgage Loans") to GMAC Commercial Mortgage Securities,
Inc. as Depositor, (the "Depositor") pursuant to a certain Mortgage Loan
Purchase Agreement, dated as of December 5, 2000 (the "Mortgage Loan Purchase
Agreement") and the Depositor intends to transfer the Mortgage Loans, together
with other multifamily and commercial mortgage loans, to a trust fund (the
"Trust Fund") to be formed by the Depositor, 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 Moody's
Investors Service, Inc. and Fitch, Inc. (together, the "Rating Agencies").
Certain classes of the Certificates (the "Registered Certificates") will be
registered under the Securities Act of 1933, as amended (the "Securities Act").
The Trust Fund will be created and the Certificates will be issued pursuant to a
pooling and servicing agreement to be dated as of December 1, 2000 (the "Pooling
and Servicing Agreement"), among the Depositor as depositor, GMAC Commercial
Mortgage Corporation as master servicer (in such capacity, the "Master
Servicer") and special servicer (in such capacity, the "Special Servicer"),
LaSalle Bank National Association, as trustee (in such capacity, the "Trustee")
and ABN AMRO Bank N.V., as fiscal agent (the "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 (as defined below).
WHEREAS, the Depositor intends to sell the Class A-1, Class A-2, Class
B, Class C and Class D Certificates to Deutsche Bank Securities Inc. and
Goldman, Sachs & Co. (together, the "Underwriters") pursuant to an Underwriting
Agreement dated as of the date hereof (the "Underwriting Agreement"). The
Depositor intends to sell the Class X, Class E, Class F and Class G Certificates
to the Underwriters, the Class S-MAC-1, Class S-MAC-2, Class S-MAC-3 and Class
S-MAC-4 Certificates to Goldman, Sachs & Co. and the Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P and Class S-AM Certificates to
Commercial Asset Trading, Inc. (in such capacity, each an "Initial Purchaser")
pursuant to two certificate purchase agreements, each dated the date hereof (the
"Certificate Purchase Agreements"). The Depositor intends to sell the Class R-I,
Class R-II and Class R-III Certificates to CIBC World Markets Corp. (in such
capacity, an "Initial Purchaser").
WHEREAS, each of the Seller and the Purchaser, in connection with the
transaction described above, desires to amend and supplement certain of the
provisions of the GSMC Purchase Agreement as it relates to the Mortgage Loans in
order to facilitate such transaction and
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in contemplation of the assignment by the Purchaser to the Depositor of all of
its right, title and interest in and to this Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Amendment of GSMC Purchase Agreement.
The parties hereto agree that, with respect to the Mortgage Loans only,
the GSMC Purchase Agreement is hereby amended to the extent that the provisions
of such GSMC Purchase Agreement are inconsistent with this Agreement.
SECTION 2. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of December 14, 2000 (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 Depositor, the
Trustee and the holders of the Certificates), each of the representations and
warranties set forth in Exhibit B, with such changes or modifications as may be
permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents
and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of California, and is
in compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance and compliance with the terms of this Agreement by
the Seller, will not violate the 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 Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding obligation of
the Seller, enforceable against the 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
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provisions of this Agreement that purport to provide indemnification for
securities laws liabilities.
(v) The 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
Seller's good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(vi) No litigation is pending with regard to which Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller the outcome of which, in the Seller's good faith
and reasonable judgment, could reasonably be expected to prohibit the Seller
from entering into this Agreement or materially and adversely affect either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vii) The 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) 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
Seller with this Agreement, or the consummation by the Seller 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 Seller under this Agreement.
(ix) 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 its successors or assigns 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 Depositor, the Trustee and the holders of the
Certificates), the party discovering such breach shall give prompt written
notice to the other party hereto or if this Agreement has been assigned by the
Purchaser, to such assignee. The representations, warranties and covenants set
forth in Section 2(a) shall, as between the Seller and the Purchaser,
supplement, and as between the Seller and any successors or assigns of the
Purchaser, replace and amend and restate in their entirety, the representations,
warranties and covenants of the Seller made pursuant to Section 4.1(a) of the
GSMC Purchase Agreement to the extent they relate to the Mortgage Loans.
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SECTION 3. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a limited partnership duly organized,
validly existing and in good standing under the laws of State of New York.
(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, in each case which materially and adversely affect the
ability of the Purchaser to carry out the transactions contemplated by this
Agreement.
(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 Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, (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 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 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.
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(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) The Purchaser 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 Seller, and its successors and assigns, with
respect to each Mortgage Loan each of the representations and warranties set
forth below:
(i) Immediately prior to the transfer thereof to the
Depositor, the Purchaser had whatever title to such Mortgage Loan as was
conveyed to it by Seller, free and clear of any and all liens, encumbrances and
other interests on, in or to such Mortgage Loan (other than, in certain cases,
the right of a third party servicer to directly service such Mortgage Loan)
created by the Purchaser. Such transfer validly assigns such title to such
Mortgage Loan to the Depositor free and clear of any pledge, lien, encumbrance
or security interest created by the Purchaser;
(ii) The Purchaser has full right and authority to sell,
assign and transfer its interest in such Mortgage Loan;
(iii) The Purchaser has not done anything that would
materially impair the coverage under the lender's title insurance policy that
insures the lien of the related Mortgage;
(iv) The Purchaser has not waived any material default,
breach, violation or event of acceleration existing under the related Mortgage
or Mortgage Note;
(v) To the Purchaser's actual knowledge, without independent
inquiry as to the provisions of the Mortgage Loans, there is no valid offset,
defense or counterclaim to such Mortgage Loan arising out of the Purchaser's
actions or holding of the Mortgage Loans; and
(vi) The terms of the related Mortgage and the Mortgage Note
have not been impaired, waived, altered or modified by the Purchaser in any
material respect, except as specifically set forth in the related Mortgage File;
provided that, with respect to the representations and warranties in clauses
(iii), (iv), (v) and (vi) above, such representations and warranties cover only
actions taken directly by the Purchaser and its Affiliates or taken by the
Seller at the direction of the Purchaser.
(c) 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 Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
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SECTION 4. Repurchases.
(a) Within 90 days of the earlier of discovery or receipt of notice by
the Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement as in effect on the
Closing Date) in respect of the Mortgage File for any Mortgage Loan or a breach
of any representation or warranty made pursuant to Section 2(a) and set forth in
Exhibit B (a "Breach"), which Defect or Breach, as the case may be, 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
Depositor, the Trustee and the holders of the Certificates), the Seller shall
cure such Defect or Breach, as the case may be, in all material respects or
repurchase the affected Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price (as defined in the Pooling and Servicing Agreement as
in effect on the Closing Date) by payment of such Purchase Price by wire
transfer of immediately available funds to the account designated by such
owner(s); provided, however, that in lieu of effecting any such repurchase, the
Seller will be permitted to deliver a Qualifying Substitute Mortgage Loan and to
pay a cash amount equal to the applicable Substitution Shortfall Amount, subject
to the terms and conditions of the Pooling and Servicing Agreement as in effect
on the Closing Date.
If the Seller is notified of a Defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such Defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser or any successor or assign thereof, which corrected
Mortgage Loan Schedule shall be deemed to amend and replace the existing
Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 4(a), within 60 days of the earlier of discovery or
receipt of notice by the Seller, from either the Purchaser or any successor or
assign thereof, that any Mortgage Loan does not constitute a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, the Seller shall
repurchase such Mortgage Loan from the then owner(s) thereof at the applicable
Purchase Price by payment of such Purchase Price by wire transfer of immediately
available funds to the account designated by such owner(s).
In addition, if, as of the Closing Date, any Mortgage Loan is secured
by a Mortgage that does not constitute a valid first lien upon the related
Mortgaged Property, including all buildings located thereon and all fixtures
attached thereto, or if a Mortgage is subject to something other than (A) the
lien of current real property taxes and assessments not yet due and payable, (B)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, (C) exceptions and exclusions specifically referred to
in the lender's title insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan and (D) those
exceptions set forth on Schedule B-1 to Exhibit B hereto (the exceptions set
forth in the foregoing clauses (A), (B), (C) and (D) collectively, "Permitted
Encumbrances"), or if the insurer that issued the Title Policy referred to in
clause (vi) of Exhibit B hereto in respect of any Mortgage Loan was not
qualified to do business in the state in which the related Mortgaged Property is
located, and in either case such failure materially and adversely affects the
interests of holders of Certificates (any such failure that materially and
adversely affects the interests of holders of Certificates, also a "Breach"),
the Seller shall be required, at its option, to either (i) cure such Breach in
all material respects or (ii) repurchase the affected Mortgage Loan,
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in each case, within the applicable Permitted Cure Period. If any such Breach is
not corrected or cured in all material respects within the applicable Permitted
Cure Period, the Seller shall, not later than the last day of such Permitted
Cure Period, (i) repurchase the affected Mortgage Loan from the Purchaser or its
assignee at the applicable Purchase Price or (ii) if within the three-month
period commencing on the Closing Date (or within the two-year period commencing
on the Closing Date if the related Mortgage Loan is a "defective obligation"
within the meaning of Section 860(a)(4)(B)(ii) of the Code and Treasury
Regulation Section 1.860G-2(f)), at its option, replace such Mortgage Loan with
a Qualifying Substitute Mortgage Loan and pay any corresponding Substitution
Shortfall Amount. The Seller agrees that any such repurchase or substitution
shall be completed in accordance with and subject to the terms and conditions of
the Pooling and Servicing Agreement.
For purposes of the preceding paragraph only, the "Permitted Cure
Period" applicable to any Breach in respect of any Mortgage Loan shall be the
90-day period immediately following the earlier of the discovery by the Seller
or receipt by the Seller of notice of such Breach; provided that if such Breach
cannot be corrected or cured in all material respects within such 90-day period,
but it is reasonably likely that such Breach could be corrected or cured within
180 days of the earlier of discovery by the Seller and receipt by the Seller of
notice of such Breach, and the Seller is diligently attempting to effect such
correction or cure, then the applicable Permitted Cure Period shall, with the
consent of the Purchaser or its assignee (which consent shall not be
unreasonably withheld), be extended for an additional 90 days, unless (i) the
affected Mortgage Loan is in default and (ii) the applicable Breach constitutes
a Material Document Defect (as defined in the Pooling and Servicing Agreement)
other than a Material Document Defect resulting solely from a delay caused by
the public recording or filing office where a document has been sent for
recording or filing.
(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 4, the then owner(s) thereof shall tender or
cause to be tendered promptly to the Seller, upon delivery of a receipt executed
by the Seller, the related Mortgage File and Servicing File, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Purchaser or the Trustee shall be endorsed or assigned, as the case may be,
to the Seller or its designee in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) This Section 4 provides the sole remedies available to the
Purchaser, and its successors and assigns (including, without limitation, the
Depositor, the Trustee and the holders of the Certificates) respecting any
Defect in a Mortgage File or any breach of any representation or warranty made
pursuant to Section 2(a) and set forth in Exhibit B, or in connection with the
circumstances described in Section 4(b). If the Seller defaults on its
obligations to repurchase or replace any Mortgage Loan in accordance with
Section 4(a) or 4(b) or disputes its obligation to repurchase or replace any
Mortgage Loan in accordance with either such subsection, the Purchaser or its
successors and assigns may take such action as is appropriate to enforce such
payment or performance, including, without limitation, the institution and
prosecution of appropriate proceedings. The Seller shall reimburse the Purchaser
for all necessary and reasonable costs and expenses incurred in connection with
such enforcement. The remedies provided in this Section 4 shall replace and
amend and restate in their entirety the provisions of Section 4.3 of the GSMC
Purchase Agreement with respect to the Mortgage Loans.
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(e) In the event that (i) any Mortgage Loan that is a
Cross-Collateralized Mortgage Loan (as defined in the Pooling and Servicing
Agreement) is required to be repurchased pursuant to this Section 4 as a result
of a Breach, Defect or other event, and (ii) the cross-collateralization
provisions of the related Cross-Collateralized Mortgage Loans cannot be released
to the extent required by Section 2.03 of the Pooling and Servicing Agreement to
permit repurchase of the affected Mortgage Loan within the time period specified
in this Agreement for such repurchase, the Seller shall repurchase the affected
Mortgage Loan and all of the related Cross-Collateralized Mortgage Loans not so
released.
SECTION 5. Conveyance of Mortgage Files.
(a) In connection with the Purchaser's assignment of the Mortgage Loans
to the Depositor pursuant to the Mortgage Loan Purchase Agreement, the Purchaser
hereby covenants with the Seller that, at least five (5) Business Days before
the Closing Date, it shall have delivered to and deposited with the Trustee, the
Mortgage File (as described on Exhibit B to the Mortgage Loan Purchase
Agreement) for each Mortgage Loan so assigned to the extent that such Mortgage
File was delivered to the Purchaser. In the event the Purchaser fails to so
deliver each such Mortgage File to the Trustee, the Seller and its successors
and assigns shall be entitled to pursue any rights or remedies in respect of
such failure as may be available under applicable law.
(b) For the benefit of the Purchaser and its successors and assigns,
the Seller acknowledges and agrees that the Depositor intends to cause the
Trustee to perform a limited review of the Mortgage Files relating to the
Mortgage Loans to enable the Trustee to confirm to the Depositor on or before
the Closing Date that the Mortgage Note referred to in clause (i) of Exhibit B
of the Mortgage Loan Purchase Agreement has been delivered to the Trustee with
respect to each such Mortgage File. If the Seller cannot deliver, or cause to be
delivered as to any Mortgage Loan, the original Mortgage Note, the Seller shall
deliver a copy or duplicate original of such Mortgage Note, together with an
affidavit certifying that the original thereof has been lost or destroyed. If
the Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan,
the original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iv), (viii), (xi)(A) and (xii) of Exhibit B of the Mortgage Loan
Purchase Agreement, with evidence of recording thereon, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, or because such
original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of this Section 5 shall be deemed to have been satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that a copy of such document or instrument
(without evidence of recording or filing thereon, but certified (which
certificate may relate to multiple documents and/or instruments) by the Seller
to be a true and complete copy of the original thereof submitted for recording
or filing, as the case may be) has been delivered to the Trustee on or before
the Closing Date, and either the original of such missing document or
instrument, or a copy thereof, with evidence of recording or filing, as the case
may be, thereon, is delivered to or at the direction of the Depositor or Trustee
within 180 days of the Closing Date (or within such longer period after the
Closing Date as the Trustee (or such subsequent owner) may consent to, which
consent shall not be unreasonably withheld so long as the Seller has provided
the Depositor or Trustee with evidence of such recording or filing, as the case
may be, or has certified to the Depositor or Trustee as to the occurrence of
such recording or filing, as the
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case may be, and is, as certified to the Trustee no less often than quarterly,
in good faith attempting to obtain from the appropriate county recorder's or
filing office such original or copy).
(c) If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (ix) of Exhibit B of the Mortgage Loan Purchase
Agreement solely because such policy has not yet been issued, the delivery
requirements of this Section 5 shall be deemed to be satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that the Seller has delivered to the Trustee, on
or before the Closing Date, a commitment for title insurance "marked-up" at the
closing of such Mortgage Loan, and the Seller shall deliver to or at the
direction of the Depositor or Trustee, promptly following the receipt thereof,
the original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage Loans
only one original of any document referred to in Exhibit B of the Mortgage Loan
Purchase Agreement covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan.
(d) As to each Mortgage Loan, the Seller shall be responsible for all
costs associated with (i) the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B to the Mortgage
Loan Agreement and each UCC-2 and UCC-3, if any, referred to in clause (xi)(B)
of Exhibit B to the Mortgage Loan Purchase Agreement and (ii) the delivery of a
copy of any such document or instrument to the Master Servicer promptly
following its return to the Trustee or its designee after such recording or
filing; provided that the Seller shall not be responsible for actually recording
or filing any such document or instrument. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Seller shall promptly prepare or cause the preparation of a
substitute therefor or cure or cause the curing of such defect, as the case may
be, and shall thereafter deliver the substitute or corrected document to or at
the direction of the Depositor or the Trustee for recording or filing, as
appropriate, at the Seller's expense.
SECTION 6. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 7. Costs.
Costs relating to the transactions contemplated hereby and in the
Mortgage Loan Purchase Agreement shall be borne by the Seller.
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SECTION 8. Indemnification.
(a) The Purchaser (the "Indemnifying Party") agrees to indemnify and
hold harmless the Seller against any and all losses, claims, damages or
liabilities, joint or several, to which it may become subject insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon the breach of any of the Purchaser's representations or
warranties contained in Section 3(b) of this Agreement. This indemnity will be
in addition to any liability which the Purchaser may otherwise have.
(b) The indemnity agreement contained in this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, or (ii) any investigation made by any indemnified party.
SECTION 9. 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 10. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 11. 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 12. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
10
<PAGE>
SECTION 13. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser and its assignee has the right to assign its
interest under this Agreement, in whole or in part. Subject to the foregoing,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser, and their permitted successors and assigns.
SECTION 14. 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.
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/
-------------------------------------
Name: David Lazarus
Title: Vice President
GOLDMAN SACHS MORTGAGE COMPANY,
a New York Limited Partnership
By: Goldman Sachs Real Estate Funding Corp.,
its General Partner
By: /s/
-------------------------------------
Name: Robert Christie
Title: Vice President
12
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
GMACCM - GOLDMAN SACHS REPURCHASE FACILITY
<TABLE>
<CAPTION>
LOAN NUMBER LOAN NAME ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
28450 Governor's Square Apartments 520 P Street, 1451 3rd Street
28997 Hillside Village Shopping Center 6441 E. Mockingbird Lane
28270 Courtyard by Marriott 2700 Hoppe Trail
28491 TownePlace Suites by Marriott 66 Zephyr Road
28350 Bay Shore Retail Center 3845 Bayshore Road
28493 Courtyard by Marriott 80 Northeast Loop 410
28499 Courtyard by Marriott (MI) 1592 Mall Drive
28497 Fairfield Inn by Marriott (TX) 88 Northeast Loop 410
29297 Amtech Systems Corporation Facility 8600 Jefferson Street, NE
28233 Bainbridge Self-Storage 9300 Sportsman Club Road NE
27963 University Avenue Office Building 7373 University Avenue
27965 Congress Avenue Office Park I 1760 N. Congress Avenue
28267 El Camino Real Courtyards 250 El Camino Real
28261 Arcadia Business Center 735 W. Duarte Road
27964 Beach Professional Plaza 12362 Beach Boulevard
01-1027968 2911 Florence Avenue Retail 2911 Florence Avenue
01-1027711 Parkview Professional Building 1800 Rockaway Avenue
01-1026840 Kendall Apartment Portfolio
01-1026840-A 39th Street Apartments 975, 1005, 1015 39th Street
01-1026840-B Sutton Place Apartments 1832 - 1836 Sutton Court
01-1026840-C Winston Drive Apartments 3370 - 3400 Winston Drive
01-1026840-D 25th Street Apartments 3902 25th Street
01-1026840-E Kennedy Drive Apartments 2005 - 2007 Kennedy Drive
01-1026840-F Loganwood Apartments 2104 18th Avenue
01-1026670 Island Mall 1425 McCulloch Boulevard
01-1025159 Highland Park Apartments 6622 - 6766 North Fessenden Street
01-1026870 Ashley Apartment Building 4954 West Pine Boulevard
01-1028013 Carlton Heights Apartments 8206 Bunche Drive
01-1027426 Colonial Apartments 165 Pearl Street
01-1027758 171 - 181 Market Street Office 171 - 181 Market Street
01-1027009 Hudson Place Apartments 5605, 5610, 5611, 5612 Hudson Street; 1517-1519
Matilda St.
01-1025837 Greenville Shopping Center 2715 Traders Road
01-1026872 Palmetto Medical Park 22023 State Road 7
01-1024063 100 East Main Office 100 East Main Street and 101 East Water Street
01-1027024 Patriot Self Storage 1144 Sigman Road
01-1027879 374 South 5th Street Apartments 374 South 5th Street
01-1028782 367 South 5th Street Multifamily 367 South 5th Street
01-1028014 Fairfield Apartments 100 South Bowser Road
991091618 Valley Creek Office Property 8301, 8401, & 8501 Golden Valley Road
11029238 Athens Promenade 3640-3660 Atlanta Highway
991091621 Courtyard by Marriott - Orange 136 Marsh Hill Road
991091630 Porter Square Galleria One Porter Square
991091620 Courtyard by Marriott - Westborough 3 Technology Drive
991091256 Windover of Melbourne Apartments 2255 Friday Court #225
991091662 Park Colony Apartments 9127 N. Potter Road
991091255 Windover Health Club Apartments 5496 Fitness Circle
11029222 The Willows Apartments 49330 Carlos Road
11029255 Fowler Plaza 2301 East Fowler Avenue
991091257 Windover Golden Pointe 2555 Friday Court #225
11029223 Best Buy Mankato 1895 Adam Street
991091254 Windover of Fort Pierce Apartments 2476 Atlantis Drive
991091657 Eckerd Drug/Children's Hospital 2604 - 2606 Route 130 North
991091632 Louis Brandman and Sons 173 Main Street and 10 Catherine Street
991091631 Lansdale & Five Points Apartments 2713, 2719 Azalea Gardens Rd & 1209-1213 Norview Ave
991091666 Parkwood Square Shopping Center 3010 Highway 30 West
991091644 Descanso Plaza Apartments 11102 East 16th Avenue
991091628 Wexford Apartments 430 Elm Street
991091627 South Lamar Retail 2300 South Lamar Boulevard
991091645 210-230 West Nyack Road 210 - 230 West Nyack Road
991091650 Metacom Apartments 400R Metacom Avenue
991091634 Oak Apartments 8904-8914 Temple Terrace Highway
991091649 Metacom Retail 390 Metacom Avenue
11029241 La Comercia 5805 Lyons Avenue
991091658 15-17 Massasoit Avenue 15-17 Massasoit Avenue
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
INTEREST
RATE RATE ORIGINAL CUT-OFF DATE
LOAN NUMBER CITY STATE ZIP CODE (%) TYPE BALANCE ($) BALANCE ($)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
28450 Sacramento California 95814 8.08000 Fixed 19,600,000 19,556,631
28997 Dallas Texas 75214 8.18000 Fixed 12,050,000 12,029,212
28270 Round Rock Texas 78681 8.50000 Fixed 6,100,000 6,083,592
28491 Williston Vermont 05495 8.75000 Fixed 5,200,000 5,185,037
28350 Lower Township New Jersey 08204 8.21500 Fixed 5,100,000 5,094,598
28493 San Antonio Texas 78216 8.56250 Fixed 4,400,000 4,385,061
28499 Benton Harbor Michigan 49022 8.31250 Fixed 3,800,000 3,786,431
28497 San Antonio Texas 78216 8.56250 Fixed 3,700,000 3,687,438
29297 Albuquerque New Mexico 87113 8.09000 Fixed 3,500,000 3,496,165
28233 Bainbridge Island Washington 98110 8.75000 Fixed 3,200,000 3,194,811
27963 La Mesa California 92041 8.20000 Fixed 1,685,000 1,682,107
27965 West Palm Beach Florida 33409 8.20000 Fixed 1,340,000 1,337,700
28267 Tustin California 92780 8.37500 Fixed 1,100,000 1,098,192
28261 Arcadia California 91007 8.66000 Fixed 1,000,000 998,471
27964 Stanton California 90680 8.20000 Fixed 950,000 948,369
01-1027968 Los Angeles California 90255 8.67000 Fixed 4,650,000 4,641,273
01-1027711 Hewlett New York 11557 8.43000 Fixed 3,765,000 3,755,960
01-1026840 8.69000 Fixed 3,450,000 3,443,562
01-1026840-A Bettendorf Iowa 52722
01-1026840-B Bettendorf Iowa 52722
01-1026840-C Bettendorf Iowa 52722
01-1026840-D Moline Illinois 61265
01-1026840-E East Moline Illinois 61244
01-1026840-F Moline Illinois 61265
01-1026670 Lake Havasu City Arizona 92083 9.06000 Fixed 2,480,000 2,475,119
01-1025159 Portland Oregon 97203 8.28000 Fixed 2,000,000 1,994,979
01-1026870 St. Louis Missouri 63108 8.20000 Fixed 2,000,000 1,995,716
01-1028013 Dallas Texas 75243 8.75000 Fixed 1,960,000 1,955,735
01-1027426 Seymour Connecticut 06483 8.08000 Fixed 1,700,000 1,696,238
01-1027758 Paterson New Jersey 07505 8.57000 Fixed 1,342,000 1,339,900
01-1027009 Dallas Texas 75206 8.12000 Fixed 1,200,000 1,196,844
01-1025837 Greenville Texas 75402 8.64000 Fixed 1,160,000 1,157,388
01-1026872 Boca Raton Florida 33428 8.50000 Fixed 1,000,000 998,030
01-1024063 Charlottesville Virginia 22902 9.00000 Fixed 977,000 972,478
01-1027024 Conyers Georgia 30012 8.75000 Fixed 955,000 951,204
01-1027879 Brooklyn New York 11211 8.22000 Fixed 940,000 938,394
01-1028782 Brooklyn New York 11211 8.22000 Fixed 723,000 721,765
01-1028014 Richardson Texas 75081 9.25000 Fixed 640,000 638,819
991091618 Golden Valley Minnesota 55427 8.73000 Fixed 14,000,000 13,947,530
11029238 Athens Georgia 30606 8.24000 Fixed 13,300,000 13,286,010
991091621 Orange Connecticut 06477 8.93000 Fixed 12,190,000 12,123,647
991091630 Cambridge Massachusetts 02140 8.43000 Fixed 8,885,000 8,833,493
991091620 Westborough Massachusetts 01581 8.93000 Fixed 8,630,000 8,583,025
991091256 West Melbourne Florida 32904 8.16000 Fixed 6,820,000 6,805,233
991091662 Des Plaines Illinois 60016 8.20000 Fixed 6,500,000 6,483,295
991091255 Orlando Florida 32839 8.16000 Fixed 5,725,000 5,712,604
11029222 Chesterfield Township Michigan 48045 8.32000 Fixed 5,480,000 5,470,868
11029255 Tampa Florida 33612 8.56000 Fixed 4,808,000 4,803,377
991091257 West Melbourne Florida 32904 8.16000 Fixed 4,805,000 4,794,596
11029223 Mankato Minnesota 56001 8.45000 Fixed 3,000,000 2,995,161
991091254 Ft. Pierce Florida 34981 8.16000 Fixed 2,950,000 2,943,612
991091657 Cinnaminson New Jersey 08077 8.62000 Fixed 2,242,000 2,236,920
991091632 Norwalk Connecticut 06851 8.90000 Fixed 1,900,000 1,881,300
991091631 Norfolk Virginia 23513 8.01000 Fixed 1,730,000 1,718,602
991091666 Huntsville Texas 77340 8.78000 Fixed 1,500,000 1,495,877
991091644 Aurora Colorado 80010 8.37000 Fixed 1,219,000 1,210,266
991091628 Pottstown Pennsylvania 19464 8.11000 Fixed 1,100,000 1,095,911
991091627 Austin Texas 78704 8.54000 Fixed 1,000,000 995,843
991091645 West Nyack New York 10960 9.63000 Fixed 920,000 904,541
991091650 Bristol Rhode Island 02809 8.67000 Fixed 800,000 798,215
991091634 Tampa Florida 33637 8.57000 Fixed 790,000 786,737
991091649 Bristol Rhode Island 02809 8.67000 Fixed 735,000 732,028
11029241 Houston Texas 77020 8.90000 Fixed 665,000 664,045
991091658 Bristol Rhode Island 02809 9.14000 Fixed 368,000 367,295
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
REMAINING ANTICIPATED
TERM TO REPAYMENT DAY PAYMT MONTHLY ARD CREDIT LEASE
LOAN NUMBER MATURITY (MOS.) MATURITY DATE DATE DUE PAYMENT LOAN LOAN
------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
28450 116 08/05/10 5 144,912 No No
28997 117 09/05/10 5 89,935 No No
28270 117 09/01/25 09/01/10 1 49,119 Yes No
28491 117 09/01/25 09/01/10 1 42,764 Yes No
28350 118 10/05/10 5 38,189 No No
28493 116 08/01/25 08/01/10 1 35,616 Yes No
28499 116 08/01/25 08/01/10 1 30,120 Yes No
28497 116 08/01/25 08/01/10 1 29,949 Yes No
29297 118 10/05/10 5 25,902 No No
28233 118 10/05/10 5 26,309 No No
27963 117 09/05/10 5 12,600 No No
27965 117 09/05/10 5 10,020 No No
28267 117 09/05/10 5 8,361 No No
28261 117 09/05/10 5 7,803 No No
27964 117 09/05/10 5 7,104 No No
01-1027968 116 08/01/10 1 36,316 No No
01-1027711 115 07/01/10 1 28,763 No No
01-1026840 116 08/01/10 1 26,993 No No
01-1026840-A
01-1026840-B
01-1026840-C
01-1026840-D
01-1026840-E
01-1026840-F
01-1026670 115 07/01/10 1 20,062 No No
01-1025159 115 07/01/10 1 15,068 No No
01-1026870 116 08/01/10 1 14,955 No No
01-1028013 55 07/01/05 1 15,419 No No
01-1027426 116 08/01/10 1 12,569 No No
01-1027758 117 09/01/10 1 10,385 No No
01-1027009 115 07/01/10 1 8,906 No No
01-1025837 115 07/01/10 1 9,035 No No
01-1026872 116 08/01/10 1 7,689 No No
01-1024063 110 02/01/10 1 7,861 No No
01-1027024 115 07/01/10 1 7,851 No No
01-1027879 117 09/01/10 1 7,042 No No
01-1028782 117 09/01/10 1 5,416 No No
01-1028014 55 07/01/05 1 5,265 No No
991091618 112 04/01/10 04/01/10 1 109,938 Yes No
11029238 118 10/01/10 10/01/10 1 99,825 Yes No
991091621 113 05/01/25 05/01/10 1 101,714 Yes No
991091630 109 01/01/10 1 67,878 No No
991091620 113 05/01/25 05/01/10 1 72,009 Yes No
991091256 116 08/01/10 1 50,806 No No
991091662 115 07/01/10 1 48,604 No No
991091255 116 08/01/10 1 42,648 No No
11029222 117 09/01/10 1 41,439 No No
11029255 118 10/01/10 1 37,174 No No
991091257 116 08/01/10 1 35,795 No No
11029223 117 09/01/10 1 22,961 No No
991091254 116 08/01/10 1 21,976 No No
991091657 115 07/01/10 1 17,430 No No
991091632 113 05/01/10 05/01/10 1 16,973 Yes No
991091631 113 05/01/10 1 13,364 No No
991091666 114 06/01/10 1 11,833 No No
991091644 112 04/01/10 1 9,709 No No
991091628 116 08/01/10 1 8,570 No No
991091627 115 07/01/10 1 8,079 No No
991091645 173 05/01/15 1 9,679 No No
991091650 115 07/01/10 1 6,248 No No
991091634 115 07/01/10 1 6,399 No No
991091649 115 07/01/10 1 6,003 No No
11029241 117 09/01/10 1 5,303 No No
991091658 115 07/01/10 1 2,998 No No
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
BROKER ADDITIONAL
STRIP SERVICING SERVICING
LOAN NUMBER DEFEASANCE LOANS FEE LOAN FEE RATE (%)
-------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
28450 Lock/27_Defeasance/91_0%/2 0.0768
28997 Lock/26_Defeasance/93_0%/1 0.1268
28270 Lock/48_Defeasance/70_0%/2 0.1268
28491 Lock/47_Defeasance/71_0%/2 0.1268
28350 Lock/25_Defeasance/91_0%/4 0.1268
28493 Lock/35_Defeasance/82_0%/3 0.1268
28499 Lock/35_Defeasance/82_0%/3 0.1268
28497 Lock/35_Defeasance/82_0%/3 0.1268
29297 Lock/25_Defeasance/93_0%/2 0.1268
28233 Lock/25_Defeasance/93_0%/2 0.1268
27963 Lock/26_Defeasance/92_0%/2 0.1268
27965 Lock/26_Defeasance/92_0%/2 0.1268
28267 Lock/26_Defeasance/92_0%/2 0.1268
28261 Lock/26_Defeasance/92_0%/2 0.1268
27964 Lock/26_Defeasance/92_0%/2 0.1268
01-1027968 Lock/28_Defeasance/88_0%/4 0.1268
01-1027711 Lock/29_Defeasance/87_0%/4 0.1268
01-1026840 Lock/28_Defeasance/88_0%/4 0.1268
01-1026840-A
01-1026840-B
01-1026840-C
01-1026840-D
01-1026840-E
01-1026840-F
01-1026670 Lock/29_Defeasance/87_0%/4 0.1268
01-1025159 Lock/29_Defeasance/87_0%/4 0.1268
01-1026870 Lock/28_Defeasance/88_0%/4 0.1268
01-1028013 Lock/29_Defeasance/27_0%/4 0.1268
01-1027426 Lock/28_Defeasance/88_0%/4 0.1268
01-1027758 Lock/27_Defeasance/89_0%/4 0.2518
01-1027009 Lock/29_Defeasance/87_0%/4 0.1268
01-1025837 Lock/29_Defeasance/87_0%/4 0.2518
01-1026872 Lock/28_Defeasance/88_0%/4 0.2518
01-1024063 Lock/34_Defeasance/82_0%/4 0.2518
01-1027024 Lock/29_Defeasance/87_0%/4 0.2518
01-1027879 Lock/27_Defeasance/89_0%/4 0.2518
01-1028782 Lock/27_Defeasance/89_0%/4 0.2518
01-1028014 Lock/29_Defeasance/27_0%/4 0.2518
991091618 Lock/32_Defeasance/84_0%/4 0.0868
11029238 Lock/26_Defeasance/90_0%/4 0.0868
991091621 Lock/31_Defeasance/85_0%/4 0.0868
991091630 Lock/35_Defeasance/81_0%/4 0.0868
991091620 Lock/31_Defeasance/85_0%/4 0.0868
991091256 Lock/27_Defeasance/90_0%/3 0.0868
991091662 Lock/29_Defeasance/87_0%/4 0.0868
991091255 Lock/27_Defeasance/90_0%/3 0.0868
11029222 Lock/27_Defeasance/89_0%/4 0.0868
11029255 Lock/26_Defeasance/90_0%/4 0.0868
991091257 Lock/27_Defeasance/90_0%/3 0.0868
11029223 Lock/27_Defeasance/89_0%/4 0.0868
991091254 Lock/27_Defeasance/90_0%/3 0.0868
991091657 Lock/29_Defeasance/87_0%/4 0.0868
991091632 Lock/31_Defeasance/85_0%/4 0.0868
991091631 Lock/31_Defeasance/85_0%/4 0.0868
991091666 Lock/30_Defeasance/86_0%/4 0.0868
991091644 Lock/32_Defeasance/84_0%/4 0.0868
991091628 Lock/28_Defeasance/88_0%/4 0.0868
991091627 Lock/48_5%/12_4%/12_3%/12_2%/12_1%/20_0%/4 0.0868
991091645 Lock/31_Defeasance/145_0%/4 0.0868
991091650 Lock/29_Defeasance/87_0%/4 0.0868
991091634 Lock/29_Defeasance/87_0%/4 0.0868
991091649 Lock/29_Defeasance/87_0%/4 0.0868
11029241 Lock/27_Defeasance/89_0%/4 0.0868
991091658 Lock/29_Defeasance/87_0%/4 0.0868
</TABLE>
<PAGE>
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, except as set forth on Schedule B-1 hereto, that:
(i) Ownership of Mortgage Loans. Immediately prior to the
transfer thereof to the Purchaser, the Seller had good and marketable title to,
and was the sole owner and holder of, such Mortgage Loan, free and clear of any
and all liens, encumbrances and other interests on, in or to such Mortgage Loan
(other than, in certain cases, the right of a subservicer to directly service
such Mortgage Loan). Such transfer validly assigns ownership of such Mortgage
Loan to the Purchaser free and clear of any pledge, lien, encumbrance or
security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full
right and authority to sell, assign and transfer such Mortgage Loan to the
Purchaser. No provision of the Mortgage Note, Mortgage or other loan document
relating to such Mortgage Loan prohibits or restricts the Seller's right to
assign or transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to
such Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct
in all material respects as of the Cut-off Date.
(iv) 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.
(v) Permitted Encumbrances. The Permitted Encumbrances (as
defined in the Mortgage Loan Purchase Agreement of which this Exhibit B forms a
part) do not materially interfere with the security intended to be provided by
the related Mortgage, the current use or operation of the related Mortgaged
Property or the current ability of the Mortgaged Property to generate net
operating income sufficient to service the Mortgage Loan. If the Mortgaged
Property is operated as a nursing facility, a hospitality property or a
multifamily property, the Mortgage, together with any separate security
agreement, similar agreement and UCC financing statement, if any, establishes
and creates a first priority, perfected security interest (subject only to any
prior purchase money security interest), to the extent such security interest
can be perfected by the recordation of a Mortgage or the filing of a UCC
financing statement, in all personal property owned by the Mortgagor that is
used in, and is reasonably necessary to, the operation of the related Mortgaged
Property.
(vi) Title Insurance. The lien of the related Mortgage is
insured by an ALTA lender's title insurance policy ("Title Policy"), or its
equivalent as adopted in the applicable jurisdiction, issued by a nationally
recognized title insurance company, insuring the originator of such Mortgage
Loan, its successors and assigns, as to the first priority lien of the Mortgage
in the original principal amount of the Mortgage Loan after all advances of
principal, subject only to
B-1
<PAGE>
Permitted Encumbrances (or, if a title insurance policy has not yet been issued
in respect of the Mortgage Loan, a policy meeting the foregoing description is
evidenced by a commitment for title insurance "marked-up" at the closing of such
loan). Each Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) is in full force and effect, all premiums thereon have been
paid and, to the Seller's knowledge, no material claims have been made
thereunder and no claims have been paid thereunder. The Seller has not, by act
or omission, 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, 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.
(vii) No Waivers by Seller of Material Defaults. The Seller
has not waived any material default, breach, violation or event of acceleration
existing under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no
valid offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth
in any engineering report prepared in connection with the origination of (or
obtained in connection with or otherwise following the Seller's acquisition of)
such Mortgage Loan, the related Mortgaged Property is, to the Seller's
knowledge, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. The Seller has no actual
notice of the commencement of a proceeding for the condemnation of all or any
material portion of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied
with all applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds
of such Mortgage Loan have been fully disbursed and there is no requirement for
future advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage
and all other documents and instruments evidencing, guaranteeing, insuring or
otherwise securing such Mortgage Loan have been duly and properly executed by
the parties thereto, and each is the legal, valid and binding obligation of the
maker thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged
Property are insured under an "all risk" insurance policy against loss by
hazards of extended coverage in an amount (subject to a customary deductible) at
least equal to the full insurable replacement cost of the improvements located
on such Mortgaged Property, which policy contains appropriate
B-2
<PAGE>
endorsements to avoid the application of coinsurance and does not permit
reduction in insurance proceeds for depreciation. 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. In addition, the Mortgage requires the Mortgagor to maintain in
respect of the Mortgaged Property workers' compensation insurance (if
applicable), comprehensive general liability insurance in amounts generally
required by the Seller, and at least twelve months rental or business
interruption insurance, and all such insurance required by the Mortgage to be
maintained is in full force and effect. Each such insurance policy names the
holder of the Mortgage as an additional insured or contains a mortgagee
endorsement naming the holder of the Mortgage as loss payee and requires prior
notice to the holder of the Mortgage of termination or cancellation, and no such
notice has been received, including any notice of nonpayment of premiums, that
has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property
was subject to one or more environmental site assessments (or an update of a
previously conducted assessment), which was (were) performed on behalf of the
Seller, or as to which the related report was delivered to the Seller in
connection with its origination or acquisition of such Mortgage Loan; and the
Seller, having made no independent inquiry other than reviewing the resulting
report(s) and/or employing an environmental consultant to perform the
assessment(s) referenced herein, has no knowledge of any material and adverse
environmental conditions or circumstance affecting such Mortgaged Property that
was not disclosed in the related report(s). The Seller has not taken any action
with respect to such Mortgage Loan or the related Mortgaged Property that could
subject the Purchaser, or its successors and assigns in respect of the Mortgage
Loan, to any liability under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA") or any other
applicable federal, state or local environmental law, and the Seller has not
received any actual notice of a material violation of CERCLA or any applicable
federal, state or local environmental law with respect to the related Mortgaged
Property that was not disclosed in the related report. The related Mortgage or
loan documents in the related Mortgage File requires the Mortgagor to comply
with all applicable federal, state and local environmental laws and regulations.
To the extent an environmental insurance policy has been obtained with respect
to a Mortgage Loan, (i) the related environmental insurance policy is in full
force and effect, (ii) on the effective date of such environmental insurance
policy, the Seller, as originator, had no knowledge of any material and adverse
environmental condition or circumstance affecting the Mortgage Property that was
not disclosed to the policy issuer in one or more of the following: (a) the
application for insurance, (b) a borrower questionnaire that was provided to the
policy issuer or (c) an environmental assessment, engineering or other report
provided to the policy issuer and (iii) the premiums on the environmental
insurance policy have been paid in full or the related loan documents provide
for payment of such premiums by the related Mortgagor or other responsible party
as the same shall be payable.
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(xv) No Cross-Collateralization with Other Mortgage Loans.
Such Mortgage Loan is not cross-collateralized with any mortgage loan that will
not be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related
Mortgage and the Mortgage Note have not been impaired, waived, altered or
modified in any material respect, except as specifically set forth in the
related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes,
ground rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties would
be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. The
interest of the related Mortgagor in the related Mortgaged Property consists of
a fee simple interest in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage
referred to in clause (iii) of Exhibit B of the Mortgage Loan Purchase Agreement
between Goldman Sachs Mortgage Company, as seller and GMAC Commercial Mortgage
Securities, Inc., as purchaser, dated December 5, 2000, constitutes the legal,
valid and binding assignment of such Mortgage from the relevant assignor to the
Trustee. The Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each Mortgage
Loan establishes and creates a valid, subsisting and, subject only to Permitted
Encumbrances, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, subleases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related Mortgage,
and each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases, not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form and constitutes a legal,
valid and binding assignment, sufficient to convey to the assignee named therein
all of the assignor's right, title and interest in, to and under such Assignment
of Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage
Loan that are, as of the Closing Date, required to be deposited with the
mortgagee or its agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the actual knowledge of the Seller, as
of the Closing Date, the related Mortgaged Property was and is free and clear of
any mechanics' and materialmen's liens or liens in the nature thereof which
create a lien prior to that created by the related Mortgage, except those which
are insured against by the Title Policy referred to in (vi) above.
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<PAGE>
(xxiii) No Material Encroachments. To the Seller's knowledge
(based on surveys and/or title insurance obtained in connection with the
origination of such Mortgage Loan), as of the date of such origination, no
improvement that was included for the purpose of determining the appraised value
of the related Mortgaged Property at the time of origination of such Mortgage
Loan lay outside the boundaries and building restriction lines of such property
to any material extent (unless affirmatively covered by the title insurance
referred to in paragraph (vi) above), and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent. To
the Seller's knowledge, based upon opinions of counsel and/or other due
diligence customarily performed by the Seller, the improvements located on or
forming part of such Mortgaged Property comply in all material respects with
applicable zoning laws and ordinances (except to the extent that they may
constitute legal non-conforming uses).
(xxiv) Originator Authorized. To the extent required under
applicable law as of the Closing Date, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it held the Mortgage Loan to the extent
necessary to ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. (A) To the Seller's knowledge,
there exists no material default, breach or event of acceleration under the
related Mortgage or Mortgage Note, and (B) the Seller has not received actual
notice of any event (other than payments due but not yet delinquent) that, with
the passage of time or with notice and the expiration of any grace or cure
period, would constitute such a material default, breach or event of
acceleration; provided, however, that this representation and warranty does not
cover any default, breach or event of acceleration that specifically pertains to
any matter otherwise covered or addressed by any other representation and
warranty made by the Seller herein.
(xxvi) Inspection. In connection with the origination or
acquisition of each Mortgage Loan, the Seller inspected or caused to be
inspected the Mortgaged Property.
(xxvii) No Equity Participation or Contingent Interest. The
Mortgage Loan contains no equity participation by the lender, 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 for negative
amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan
has, to the Seller's knowledge, advanced funds or induced, solicited or
knowingly received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Loan (other than amounts paid by the tenant as
specifically provided under the related lease).
(xxix) Licenses, Permits, Etc. To the Seller's knowledge,
based on due diligence customarily performed in the origination of comparable
mortgage loans by the Seller, as of the date of origination of the Mortgage
Loan, the related Mortgagor or operator of the related Mortgaged Property was in
possession of all material licenses, permits and authorizations required by
applicable laws for the ownership and operation of the related Mortgaged
Property as it was then operated.
B-5
<PAGE>
(xxx) Servicing. The servicing and collection practices used
with respect to the Mortgage Loan have complied with applicable law in all
material respects and are consistent with the servicing standard set forth in
Section 3.01(a) of the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. The related Mortgage or Mortgage
Note, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph (xii)) such as to
render the rights and remedies of the holders thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(xxxii) Insurance and Condemnation Proceeds. The related
Mortgage provides that insurance proceeds and condemnation proceeds will be
applied for one of the following purposes: either to restore or repair the
Mortgaged Property, or to repay the principal of the Mortgage Loan, or otherwise
at the option of the holder of the Mortgage.
(xxxiii) LTV. The gross proceeds of such Mortgage Loan to the
related Mortgagor at origination did not exceed the non-contingent principal
amount of the Mortgage Loan and either: (A) such Mortgage Loan is secured by an
interest in real property having a fair market value (1) at the date the
Mortgage Loan was originated at least equal to 80 percent of the original
principal balance of the Mortgage Loan or (2) at the Closing Date at least equal
to 80 percent of the principal balance of the Mortgage Loan on such date;
provided that for purposes hereof, the fair market value of the real property
interest must first be reduced by (X) the amount of any lien on the real
property interest that is senior to the Mortgage Loan and (Y) a proportionate
amount of any lien that is in parity with the Mortgage Loan (unless such other
lien secures a Mortgage Loan that is cross-collateralized with such Mortgage
Loan, in which event the computation described in clauses (1) and (2) of this
paragraph (xxxiii) shall be made on a pro rata basis in accordance with the fair
market values of the Mortgaged Properties securing such cross-collateralized
Mortgage Loans; or (B) substantially all the proceeds of such Mortgage Loan were
used to acquire, improve or protect the real property which served as the only
security for such Mortgage Loan (other than a recourse feature or other third
party credit enhancement within the meaning of Treas. Reg. ss.
1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage
Loan was "significantly modified" prior to the Closing Date so as to result in a
taxable exchange under Section 1001 of the Code, it either (A) was modified as a
result of the default or reasonably foreseeable default of such Mortgage Loan or
(B) satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Reserved.
(xxxvi) Litigation. To the Seller's actual knowledge, there
are no pending actions, suits or proceedings by or before any court or
governmental authority against or affecting the related Mortgagor or the related
Mortgaged Property that, if determined adversely to such Mortgagor or Mortgaged
Property, would materially and adversely affect the value of the
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<PAGE>
Mortgaged Property or the ability of the Mortgagor to pay principal, interest or
any other amounts due under such Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of
the related Mortgagor's fee simple interest in real estate or the related
Mortgage Loan is secured in whole or in part by the interest of the Mortgagor as
a lessee under a ground lease of the Mortgaged Property (a "Ground Lease"). Any
Mortgage Loan that is secured by the interest of the Mortgagor under a Ground
Lease may or may not be secured by the related fee interest in such Mortgaged
Property (the "Fee Interest"). If a Mortgage Loan is secured in whole or in part
by a Ground Lease, either (1) the ground lessor's Fee Interest is subordinated
to the lien of the Mortgage, (2) such Mortgage Loan is also secured by the
related fee interest or (3) the following apply to such Ground Lease:
(A) To the actual knowledge of the Seller, based on due
diligence customarily performed in the origination of
comparable mortgage loans by the Seller, such Ground
Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related
estoppel letter or lender protection agreement
between the Seller and related lessor) permits the
interest of the lessee thereunder to be encumbered by
the related Mortgage; and there has been no material
change in the payment terms of such Ground Lease
since the origination of the related Mortgage Loan,
with the exception of material changes reflected in
written instruments that 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 the ground lessor's related fee interest and
Permitted Encumbrances;
(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 Seller has received no notice that an event of
default has occurred thereunder, and, to the 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, or an estoppel letter or other
agreement, requires the lessor under such Ground
Lease to give notice of any default by the lessee to
the mortgagee under such Mortgage Loan, provided that
the mortgagee under such Mortgage Loan has provided
the lessor with notice of its lien
B-7
<PAGE>
in accordance with the provisions of such Ground
Lease, and such Ground Lease, or an estoppel letter
or other agreement, further provides that no notice
of termination given under such Ground Lease is
effective against the mortgagee unless a copy has
been delivered to the mortgagee;
(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) Such Ground Lease has an original term (including any
extension options set forth therein) which extends
not less than ten years beyond the Stated Maturity
Date of the related Mortgage Loan;
(H) 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 under such Mortgage Loan
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;
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed, as of the date of
origination of the related Mortgage Loan, as
commercially unreasonable by the Seller; 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;
and
(J) Such Ground Lease, or an estoppel letter or other
agreement, requires the lessor to enter into a new
lease in the event of a termination of the Ground
Lease by reason of a default by the Mortgagor under
the Ground Lease, including, rejection of the ground
lease in a bankruptcy proceeding.
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion
B-8
<PAGE>
was not considered material for purposes of underwriting the Mortgage Loan, (b)
release is conditioned upon the satisfaction of certain underwriting and legal
requirements or the payment of a release price, or (c) a defeasance is affected
in accordance with the Mortgage Loan Documents, the related Mortgage Note or
Mortgage does not require the holder thereof to release all or any portion of
the Mortgaged Property from the lien of the related Mortgage except upon payment
in full of all amounts due under such Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal priority
with the lien of the related Mortgage (excluding any lien relating to another
Mortgage Loan that is cross-collateralized with such Mortgage Loan) without the
prior written consent of the holder thereof or the satisfaction of debt service
coverage or similar conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor is
not a debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) Due Organization of Mortgagors. As of the date of origination of
each Mortgage, each related Mortgagor which is not a natural person was duly
organized and validly existing under the laws of the state of its jurisdiction.
(xliii) Due-On-Sale. The Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without complying with the requirements of such Mortgage Loan, the
related Mortgaged Property, or any controlling interest therein, is directly or
indirectly transferred or sold.
(xliv) Single Purpose Entity. As of the date of the origination of the
relevant Mortgage Loan, the related Mortgagor is an entity, other than an
individual, whose organizational documents or the related Mortgage Loan
Documents provide substantially to the effect that the Mortgagor: (A) is formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans, (B) may not engage in any
business unrelated to such Mortgaged Property or Mortgaged Properties, (C) does
not have any material assets other than those related to its interest in and
operation of such Mortgage Property or Mortgaged Properties, (D) may not incur
indebtedness other than as permitted by the related Mortgage or other Mortgage
Loan Documents, (E) has its own books and records separate and apart from any
other person, and (F) holds itself out as a legal entity, separate and apart
from any other person.
(xlv) Defeasance Provisions. Any Mortgage Loan which contains a
provision for any defeasance of mortgage collateral by the Mortgagor, either (A)
requires the consent of the holder of the Mortgage Loan to any defeasance, or
(B) permits defeasance (i) no earlier than two years after the Closing Date (as
defined in the Pooling and Servicing Agreement, dated as of December 1, 2000),
(ii) only with substitute collateral constituting "government securities" within
the meaning of Treas. Reg. ss. 1.860G-2(a)(8)(i), and (iii) only to facilitate
the disposition of mortgage real property and not as a part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
B-9
<PAGE>
(xlvi) Defeasance Costs. If the Mortgage Loan permits defeasance, then
the mortgage loan documents related to such Mortgage Loan require (a) the
borrower to pay all rating agency fees associated with defeasance and all other
out-of-pocket expenses associated with defeasance such as accountant's fees and
opinions of counsel, or (b) that the borrower provide a REMIC opinion, an
opinion regarding the first priority perfected security interest in the
defeasance collateral, rating agency letters certifying no rating qualification
or downgrade on any securities, and accountant certification that all payments
from the defeasance collateral are sufficient to make monthly principal and
interest payments on such Mortgage Loan through maturity.
(xlvii) Rating Agency Fees for Assumptions. In the case of each
Mortgage Loan that entitles the Mortgagor to cause an assumption of such
Mortgage Loan by a third party, the holder of each Mortgage Loan is entitled to
require the payment by the related Mortgagor of any related rating agency fees
if a Rating Agency Confirmation is required under the Pooling and Servicing
Agreement in connection with such assumption.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser, the Depositor and/or the Trustee and shall inure to the
benefit of the Purchaser, and its successors and assigns (including without
limitation the Depositor, the Trustee and the holders of the Certificates),
notwithstanding any restrictive or qualified endorsement or assignment.
B-10
<PAGE>
SCHEDULE B-1 TO EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
(XIII) INSURANCE
The following loans do not comply with all insurance requirements, as
specified below:
Loan Number Property Issue
991091254 Windover of Fort Pierce Insured rents are $7,960 less than
Apartments actual 12 months of rent.
991091255 Windover Health Club Insured rents are $23,860 less than
Apartments actual 12 months of rent.
991091256 Windover of Melbourne Insured rents are $98,464 less than
Apartments actual 12 months of rent.
991091257 Windover Golden Pointe Insured rents are $77,076 less than
actual 12 months of rent.
991091644 Descanso Plaza Insured rents are $37,724 less than
Apartments actual 12 months of rent.
(XLIV) SINGLE PURPOSE ENTITY
Borrowers on the following loan(s) are not single purpose entities.
Loan Number Property Issue
24063 100 East Main Borrower is not an SPE, no
provisions in the organizational or
loan documents.
26872 Palmetto Medical Park Borrower is not an SPE, no
provisions in the
organizational or loan documents.
27711 Parkview Pavilion Borrower is not an SPE, no
provisions in the organizational or l
loan documents.
27968 2911 Florence Retail Borrower is not an SPE, no
provisions in the organizational or
loan documents.
27426 Colonial Apartments Borrower is not an SPE, no
provisions in the
organizational or loan documents.
26870 Ashley Apartment Building Borrower is not an SPE, no
provisions in the
organizational or loan documents.
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<PAGE>
27758 171-181 Market Street Borrower is not an SPE, no
provisions in the organizational or
loan documents.
27829 374 South 5th Street Borrower is not an SPE, no
provisions in the organizational or
loan documents.
28782 367 South 5th Street Borrower is not an SPE, no
provisions in the organizational or
loan documents.
27024 Patriot Storage Borrower is not an SPE, no
provisions in the organizational or
loan documents.
25159 Highland Park Borrower is not an SPE, no
provisions in the organizational or
loan documents.
26670 Island Mall Borrower is not an SPE, no
provisions in the organizational or
loan documents.
28013 Carlton Heights Borrower is not an SPE, no
provisions in the organizational or
loan documents.
28014 Fairfield Apartments Borrower is not an SPE, no
provisions in the organizational or
loan documents.
25837 Greenville SC Borrower is not an SPE, no
provisions in the organizational or
loan documents.
27009 Hudson Place Borrower is not an SPE, no
Apartments provisions in the organizational or
loan documents.
B-1-2
