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EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated and
effective as of December 18, 2003, 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 December 18, 2003 (the
"GMACCM Mortgage
Loan Purchase Agreement"), between the Purchaser and GMACCM,
(ii) Morgan Stanley
Mortgage Capital, Inc. ("MSMC"), pursuant to, and for the
consideration
described in, the Mortgage Loan Purchase Agreement, dated as of
December 18,
2003 (the "MSMC Mortgage Loan Purchase Agreement"), between the
Purchaser and
MSMC, (iii) Goldman Sachs Mortgage Company ("GSMC"), pursuant
to, and for the
consideration described in, the Mortgage Loan Purchase
Agreement, dated as of
December 18, 2003 (the "GSMC Mortgage Loan Purchase Agreement"),
between the
Purchaser and GSMC and (iv) Commerzbank AG, New York Branch
("COMBANK"),
pursuant to, and for the consideration described in, the
Mortgage Loan Purchase
Agreement, dated as of December 18, 2003 (the "COMBANK Mortgage
Loan Purchase
Agreement"), between the Purchaser and COMBANK. The Mortgage
Loan Seller,
GMACCM, MSMC, GSMC and COMBANK 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 Moody's Investors Service, Inc.,
Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies 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, 2003 (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
companion loan
paying agent, Lennar Partners, Inc., as special servicer of the
Mortgage Loans
(other than the AFR/Bank of America Portfolio Loan) and the
Other Mortgage Loans
(in such capacity, as applicable, the "Special Servicer"),
Midland Loan
Services, Inc., as special servicer of the AFR/Bank of America
Portfolio Whole
Loan (the "AFR/Bank of America 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.
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The Purchaser intends to sell the Class A-1, Class A-2, Class
A-3,
Class A-4, Class B, Class C, Class D and Class E Certificates to
Deutsche Bank
Securities Inc., Goldman, Sachs & Co. and Morgan Stanley
& Co. Incorporated
(together, the "Underwriters"), pursuant to an underwriting
agreement dated the
date hereof (the "Underwriting Agreement"). The Purchaser
intends to sell the
Class S-AFR1, Class S-AFR2, Class S-AFR3 and Class S-AFR4
(collectively, the
"Class S-AFR Certificates") and the Class X-1, Class X-2, Class
A1-A, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O and Class
P Certificates to Deutsche Bank Securities Inc., Goldman, Sachs
& Co and Morgan
Stanley & 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 A-1A,
Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O,
Class P, Class S-AFR1, Class S-AFR2, Class S-AFR3, Class S-AFR4,
Class R-I,
Class R-II and Class R-III Certificates are collectively
referred to as the
"Non-Registered Certificates."
Now, therefore, in consideration of the premises and the
mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
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The Mortgage Loan Seller agrees to sell, assign, transfer and
otherwise
convey to the Purchaser, and the Purchaser agrees to purchase,
the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take
place on December
18, 2003 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 December 2003. 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
$424,686,475 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
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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 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
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Diligence Review.
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The Mortgage Loan Seller shall reasonably cooperate with any
examination of the Mortgage Files and Servicing Files that may
be undertaken by
or on behalf of the Purchaser. The fact that the Purchaser has
conducted or has
failed to conduct any partial or complete examination of the
Mortgage Files
and/or Servicing Files shall not affect the Purchaser's right to
pursue any
remedy available in equity or at law for a breach of the
Mortgage Loan Seller's
representations, warranties and covenants set forth in or
contemplated by
Section 4.
SECTION 4. Representations, Warranties and Covenants of
--------------------------------------------
the Mortgage Loan Seller.
------------------------
(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.
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(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.
(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.
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(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 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 on pages A-14 through A-17 inclusive of Annex A to the
Prospectus
Supplement (as defined in Section 9) (the "Loan Detail") and, to
the extent
consistent therewith, the information set forth on the diskette
attached to
the Prospectus Supplement and the accompanying prospectus (the
"Diskette"),
is true and correct in all material respects. Insofar as it
relates to the
Mortgage Loans (other than the AFR/Bank of America Portfolio
Loan (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
2003-C3
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 and/or Annex B to the Prospectus Supplement and (to the extent
it
contains information consistent with that on such Annex A) set
forth on the
Diskette, does not contain any untrue statement of 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 AFR/Bank of America Portfolio Whole Loan (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 Sectio 9) under the headings "Summary
of Series
2003-C3 - Transaction--The Mortgage Pool," "--Geographic
Concentrations of
the Mortgaged Properties," "--Property Types," "--
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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 "Description of the Certificates," set forth on
Annex A
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 AFR/Bank of America Portfolio
Whole
Loan) and (to the extent it contains information consistent with
that on
such Annex A) set forth on the Diskette, does not contain any
untrue
statement of 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. Assuming the information in the Prospectus
and the
Prospectus Supplement (other than the information with respect
to which the
Mortgage Loan Seller otherwise has made representations and
warranties in
this clause (ix)) is true and correct in all material respects,
the S-AFR
Memorandum (as defined herein) does not contain an untrue
statement of a
material fact or omit to state a material fact necessary to make
the
statements therein, in light of the circumstances under which
they were
made, not misleading.
(x) No consent, approval, authorization or order of,
registration or
filing with or notice to, any governmental authority or court is
required,
under federal or state law (including, with respect to any bulk
sale laws),
for the execution, delivery and performance of or compliance by
the
Mortgage Loan Seller with this Agreement, or the consummation by
the
Mortgage Loan Seller of any transaction contemplated hereby,
other than (1)
the filing or recording of financing statements, instruments of
assignment
and other similar documents necessary in connection with
Mortgage Loan
Seller's sale of the Mortgage Loans to the Purchaser, (2) such
consents,
approvals, authorizations, qualifications, registrations,
filings or
notices as have been obtained or made and (3) where the lack of
such
consent, approval, authorization, qualification, registration,
filing or
notice would not have a material adverse effect on the
performance by the
Mortgage Loan Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of
any of
the representations and warranties made pursuant to and set
forth in
subsection (b) above which materially and adversely affects the
interests
of the Purchaser or a breach of any of the representations and
warranties
made pursuant to subsection (a) above and set forth in Exhibit B
which
materially and adversely affects the value of any Mortgage Loan
or the
interests therein of the Purchaser or its successors and
assigns
(including, without limitation the Trustee and the holders of
the
Certificates), the party discovering such breach shall give
prompt written
notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
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(a) The Purchaser, as of the date hereof, hereby represents
and
warrants to, and covenants with, the Mortgage Loan Seller
that:
(i) The Purchaser is a corporation duly organized, validly
existing
and in good standing under the laws of the State of
Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser,
and the performance and compliance with the terms of this
Agreement by the
Purchaser, will not violate the Purchaser's organizational
documents or
constitute a default (or an
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event which, with notice or lapse of time, or both, would
constitute a
default) under, or result in the breach of, any material
agreement or other
instrument to which it is a party or which is applicable to it
or any of
its assets.
(iii) The Purchaser has the full power and authority to enter
into and
consummate all transactions contemplated by this Agreement, has
duly
authorized the execution, delivery and performance of this
Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and
delivery by the Mortgage Loan Seller, constitutes a valid, legal
and
binding obligation of the Purchaser, enforceable against the
Purchaser in
accordance with the terms hereof, subject to (A) applicable
bankruptcy,
insolvency, reorganization, moratorium and other laws affecting
the
enforcement of creditors' rights generally, and (B) general
principles
of equity, regardless of whether such enforcement is considered
in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution
and
delivery of this Agreement and its performance and compliance
with the
terms of this Agreement will not constitute a violation of, any
law, any
order or decree of any court or arbiter or any order, regulation
or demand
of any federal, state or local governmental or regulatory
authority, which
violation, in the Purchaser's good faith and reasonable
judgment, is likely
to affect materially and adversely either the ability of the
Purchaser to
perform its obligations under this Agreement or the financial
condition of
the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's
knowledge, threatened against the Purchaser which would prohibit
the
Purchaser from entering into this Agreement or, in the
Purchaser's good
faith and reasonable judgment, is likely to materially and
adversely affect
either the ability of the Purchaser to perform its obligations
under this
Agreement or the financial condition of the Purchaser.
(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.
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(b) Upon discovery by any of the parties hereto of a breach of
any of
the representations and warranties set forth above which
materially and
adversely affects the interests of the Mortgage Loan Seller, the
party
discovering such breach shall give prompt written notice to the
other party
hereto.
SECTION 6. Repurchases.
-----------
The Mortgage Loan Seller hereby agrees to comply with Sections
2.02 and
2.03 of the Pooling and Servicing Agreement, including, but not
limited to, any
obligation to repurchase or substitute Mortgage Loans in respect
of any Material
Breach or Material Document Defect.
SECTION 7. Closing.
-------
The closing of the sale of the Mortgage Loans (the "Closing")
shall be
held at the offices of Mayer, Brown, Rowe & Maw LLP, 1675
Broadway, New York,
New York 10019 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.
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Both parties agree to use their best efforts to perform
their
respective obligations hereunder in a manner that will enable
the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
-----------------
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the
Purchaser
and the Mortgage Loan Seller;
(b) An Officer's Certificate substantially in the form of
Exhibit
C-1 hereto, executed by the Secretary or an assistant secretary
of the
Mortgage Loan Seller, and dated the Closing Date, and upon which
the
Purchaser and each Underwriter may rely, attaching thereto as
exhibits
the organizational documents of the Mortgage Loan Seller;
(c) A certificate of good standing regarding the Mortgage
Loan
Seller from the Secretary of State for the State of 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
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statutory law or regulation, at common law or otherwise, insofar
as such
losses, claims, damages or liabilities (or actions in respect
thereof)
arise out of or are based upon any untrue statement or alleged
untrue
statement of a material fact contained in the Prospectus
Supplement, the
Memorandum, the Diskette or, insofar as they are required to be
filed as
part of the Registration Statement pursuant to the No-Action
Letters, any
Computational Materials or ABS Term Sheets with respect to the
Registered
Certificates, or in any revision or amendment thereof or
supplement
thereto, or arise out of or are based upon the omission or
alleged omission
(in the case of any such Computational Materials or ABS Term
Sheets, when
read in conjunction with the Prospectus and, in the case of the
Memorandum,
when read together with the other information specified therein
as being
available for review by investors) to state therein a material
fact
required to be stated therein or necessary to make the
statements therein,
in light of the circumstances under which they were made, not
misleading;
but only if and to the extent that (i) any such untrue statement
or alleged
untrue statement is with respect to information regarding the
Mortgage
Loans (other than the AFR/Bank of America Portfolio Loan (as
defined in the
Prospectus Supplement)) 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 AFR/Bank of America Portfolio
Loan (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 2003-C3 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 A
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 AFR/Bank of America Portfolio Whole
Loan (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 2003-C3 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 A 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 AFR/Bank of America Portfolio Whole Loan (as
defined in the
Prospectus Supplement), and such information does not represent
a
restatement or aggregation of information contained in the Loan
Detail;
(iv) any such untrue statement or alleged untrue statement or
omission or
alleged omission contained in the S-AFR Memorandum but only if
such any
untrue statement or alleged
10
<PAGE>
untrue statement or omission or alleged omission does not relate
to the
information in the Prospectus Supplement or Prospectus included
as part of
the S-AFR Memorandum (other than information with respect to
which the
Mortgage Loan Seller has agreed to provide indemnity pursuant to
clauses
(i) through (iii) above) or represent a restatement or
aggregation of
information contained in the Loan Detail; or (v) such untrue
statement,
alleged untrue statement, omission or alleged omission arises
out of or is
based upon a breach of the representations and warranties of the
Mortgage
Loan Seller set forth in or made pursuant to Section 4;
provided, that the
indemnification provided by this Section 9 shall not apply to
the extent
that such untrue statement of a material fact or omission of a
material
fact necessary to make the statements made, in light of the
circumstances
in which they were made, 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.
For purposes of the foregoing, "Registration Statement" shall
mean the
registration statement No. 333-107510 filed by the Purchaser on
Form S-3,
including without limitation exhibits thereto and information
incorporated
therein by reference; "Prospectus" shall mean the prospectus
dated July 31,
2003, as supplemented by the prospectus supplement dated
December 10, 2003 (the
"Prospectus Supplement"), relating to the Registered
Certificates; "Memorandum"
shall mean the private placement memorandum dated December 10,
2003, relating to
the Non-Registered Certificates (other than the Class S-AFR
Certificates):
"S-AFR Memorandum" shall mean the private placement memorandum
dated December
10, 2003, relating to the Class S-AFR Certificates; "Memoranda"
shall mean the
Memorandum and the S-AFR Memorandum, collectively;
"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 Kidder, Peabody
Acceptance Corporation
I, Kidder, Peabody & Co. Incorporated and Kidder 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 "Kidder 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 Kidder
Letters, the
"No-Action Letters"). The mortgage loan information and
information related
thereto contained on the diskette attached to any ABS Term
Sheets or
Computational Materials is referred to herein as the "Term Sheet
Diskette" and
the tape provided by the Mortgage Loan Seller that was used to
create the Term
Sheet Diskette is referred to herein as the "Term Sheet Master
Tape." References
herein to ABS Term Sheets or Computational Materials shall
include any Term
Sheet Diskette provided therewith.
(b) Promptly after receipt by any person entitled to
indemnification
under this Section 9 (each, an "indemnified party") of notice of
the
commencement of any action, such indemnified party will, if a
claim in
respect thereof is to be made against the Mortgage Loan Seller
(the
"indemnifying party") under this Section 9, notify the
indemnifying party
in writing of the commencement thereof; but the omission to
notify the
indemnifying party will not relieve it from any liability that
it may have
to any indemnified party otherwise than under this Section 9. In
case any
such action is brought against any indemnified party and it
notifies the
indemnifying party of the commencement thereof, the indemnifying
party will
be entitled to participate therein, and to the extent that it
may elect by
written notice delivered to the indemnified party promptly after
receiving
the aforesaid notice from such indemnified party, to assume the
defense
thereof, with counsel satisfactory to such indemnified party;
provided,
however, that if the defendants in any such action include both
the
indemnified party and the
11
<PAGE>
indemnifying party and the indemnified party or parties shall
have
reasonably concluded that there may be legal defenses available
to it or
them and/or other indemnified parties that are different from or
additional
to those available to the indemnifying party, the indemnified
party or
parties shall have the right to select separate counsel to
assert such
legal defenses and to otherwise participate in the defense of
such action
on behalf of such indemnified party or parties. Upon receipt of
notice from
the indemnifying party to such indemnified party of its election
to assume
the defense of such action and approval by the indemnified party
of
counsel, which approval will not be unreasonably withheld, the
indemnifying
party will not be liable for any legal or other expenses
subsequently
incurred by such indemnified party in connection with the
defense thereof,
unless: (i) the indemnified party shall have employed separate
counsel in
connection with the assertion of legal defenses in accordance
with the
proviso to the preceding sentence (it being understood, however,
that the
indemnifying party shall not be liable for the expenses of more
than one
separate counsel, approved by the Purchaser and the indemnifying
party,
representing all the indemnified parties under Section 9(a) who
are parties
to such action), (ii) the indemnifying party shall not have
employed
counsel reasonably satisfactory to the indemnified party to
represent the
indemnified party within a reasonable time after notice of
commencement of
the action, or (iii) the indemnifying party has authorized the
employment
of counsel for the indemnified party at the expense of the
indemnifying
party; and except that, if clause (i) or (iii) is applicable,
such
liability shall only be in respect of the counsel referred to in
such
clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due
in
accordance with its terms but is for any reason held by a court
to be
unavailable to an indemnified party on grounds of policy or
otherwise, then
the indemnifying party, in lieu of indemnifying such indemnified
party,
shall contribute to the amount paid or payable by such
indemnified party as
a result of such losses, claims, damages or liabilities, in such
proportion
as is appropriate to reflect the relative fault of the
indemnified and
indemnifying parties in connection with the statements or
omissions which
resulted in such losses, claims, damages or liabilities, as well
as any
other relevant equitable considerations. The relative fault of
the
indemnified and indemnifying parties shall be determined by
reference to,
among other things, whether the untrue or alleged untrue
statement of a
material fact or the omission or alleged omission to state a
material fact
relates to information supplied by such parties.
(d) The Purchaser and the Mortgage Loan Seller agree that it
would not
be just and equitable if contribution pursuant to Section 9(c)
were
determined by pro rata allocation or by any other method of
allocation that
does not take account of the considerations referred to in
Section 9(c)
above. The amount paid or payable by an indemnified party as a
result of
the losses, claims, damages and liabilities referred to in this
Section 9
shall be deemed to include, subject to the limitations set forth
above, any
legal or other expenses reasonably incurred by such indemnified
party in
connection with investigating or defending any such action or
claim, except
where the indemnified party is required to bear such expenses
pursuant to
this Section 9, which expenses the indemnifying party shall pay
as and when
incurred, at the request of the indemnified party, to the extent
that the
indemnifying party will be ultimately obligated to pay such
expenses. If
any expenses so paid by the indemnifying party are
subsequently
12
<PAGE>
determined to not be required to be borne by the indemnifying
party
hereunder, the party that received such payment shall promptly
refund the
amount so paid to the party, which made such payment. No person
guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the
Securities Act) shall be entitled to contribution from any
person who was
not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in
this
Section 9 shall remain operative and in full force and effect
regardless of
(i) any termination of this Agreement, (ii) any investigation
made by any
indemnified party, and (iii) acceptance of and payment for any
of the
Certificates.
SECTION 10. Costs.
-----
Costs relating to the transactions contemplated hereby shall be
borne
by the respective parties hereto.
SECTION 11. Notices.
-------
All demands, notices and communications hereunder shall be in
writing and
shall be deemed to have been duly given if personally delivered
to or mailed, by
registered mail, postage prepaid, by overnight mail or courier
service or
transmitted by facsimile and confirmed by a similar mailed
writing, if to the
Purchaser, addressed to GMAC Commercial Mortgage Securities,
Inc. at 200 Witmer
Road, Horsham, Pennsylvania 19044-8015, Attention: Structured
Finance Manager,
facsimile no. (215) 328-1775, 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, 60 Wall Street, New York, New York 10005,
Attention: Lainie
Kaye, facsimile no. (212) 797-4489, with a copy to Kevin Blauch,
Latham &
Watkins, 885 Third Avenue, New York, New York 10022, 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.
--------------------------
13
<PAGE>
Any part, provision, representation, warranty or covenant of
this
Agreement that is prohibited or which is held to be void or
unenforceable shall
be ineffective to the extent of such prohibition or
unenforceability without
invalidating the remaining provisions hereof. Any part,
provision,
representation, warranty or covenant of this Agreement that is
prohibited or
unenforceable or is held to be void or unenforceable in any
particular
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of
such prohibition or unenforceability without invalidating the
remaining
provisions hereof, and any such prohibition or unenforceability
in any
particular jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law,
the parties hereto waive any provision of law, which prohibits
or renders void
or unenforceable any provision hereof.
SECTION 15. Counterparts.
------------
This Agreement may be executed in any number of counterparts,
each of
which shall be deemed to be an original, but all of which
together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
-------------
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 17. Further Assurances.
------------------
The Mortgage Loan Seller and the Purchaser agree to execute and
deliver
such instruments and take such further actions as the other
party may, from time
to time, reasonably request in order to effectuate the purposes
and to carry out
the terms of this Agreement.
SECTION 18. Successors and Assigns.
----------------------
The rights and obligations of the Mortgage Loan Seller under
this
Agreement shall not be assigned by the Mortgage Loan Seller
without the prior
written consent of the Purchaser, except that any person into
which the Mortgage
Loan Seller may be merged or consolidated, or any corporation or
other entity
resulting from any merger, conversion or consolidation to which
the Mortgage
Loan Seller is a party, or any person succeeding to all or
substantially all of
the business of the Mortgage Loan Seller, shall be the successor
to the Mortgage
Loan Seller hereunder. The Purchaser has the right to assign its
interest under
this Agreement, in whole or in part, as may be required to
effect the purposes
of the Pooling and Servicing Agreement, and the assignee shall,
to the extent of
such assignment, succeed to the rights and obligations hereunder
of the
Purchaser. Subject to the foregoing, this Agreement shall bind
and inure to the
benefit of and be enforceable by the Mortgage Loan Seller and
the Purchaser and
their permitted successors and assigns and the indemnified
parties referred to
in Section 9.
SECTION 19. Amendments.
----------
14
<PAGE>
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.
15
<PAGE>
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/ Helaine M. Kaplan
--------------------------------------
Name: Helaine M. Kaplan
Title: Vice President
By: /s/ Jeffrey E. Paige
--------------------------------------
Name: Jeffrey E. Paige
Title: Authorized Signatory
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ David Lazarus
--------------------------------------
Name: David Lazarus
Title: Vice President
S-1
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
CONTROL LOAN LOAN
NUMBER GROUP LOAN NUMBER ORIGINATOR PROPERTY NAME ADDRESS
CITY
------- ------- ------------- -------------
-------------------------------- ----------------------------------
--------------
<S> <C> <C> <C> <C> <C>
<C>
1 1 GA18944 GACC AFR Portfolio (1) Various Various
1.1 GA18944-1 GACC Bank of America Center 231 South LaSalle
Street Chicago
1.2 GA18944-2 GACC Van Ness & Market One South Van Ness
Boulevard San Francisco
1.3 GA18944-3 GACC 525 North Tryon-Odell Building 525 North
Tryon Street Charlotte
1.4 GA18944-4 GACC Bank of America Financial Center 601 West
Riverside Avenue Spokane
1.5 GA18944-5 GACC Jacksonville Ops Center #600 9000 Southside
Boulevard Jacksonville
1.6 GA18944-6 GACC Jacksonville Ops Center #100 9000 Southside
Boulevard Jacksonville
1.7 GA18944-7 GACC Jacksonville Ops Center #400 9000 Southside
Boulevard Jacksonville
1.8 GA18944-8 GACC South Region TPC 17100 North West 59th Avenue
Miami Lakes
1.9 GA18944-9 GACC Catalina-Bank of America Center 1825 East
Buckeye Road Phoenix
1.10 GA18944-10 GACC Jacksonville Ops Center #200 9000 Southside
Boulevard Jacksonville
1.11 GA18944-11 GACC Jacksonville Ops Center #700 9000 Southside
Boulevard Jacksonville
1.12 GA18944-12 GACC South Mountain-Bank of America 1825 East
Buckeye Road Phoenix
1.13 GA18944-13 GACC Jacksonville Ops Center #500 9000 Southside
Boulevard Jacksonville
1.14 GA18944-14 GACC Jacksonville Ops Center #300 9000 Southside
Boulevard Jacksonville
1.15 GA18944-15 GACC Miami Lakes Operation Center 5875 North
West 163rd Street Miami Lakes
1.16 GA18944-16 GACC Spokane Bankcard Services 1616 South Rustle
Spokane
1.17 GA18944-17 GACC Century Park 1000 Century Park Road
Tampa
1.18 GA18944-18 GACC Bank of America Plaza 820 A Street
Tacoma
1.19 GA18944-19 GACC Mendham Operations Center 707 Mendham
Boulevard Orlando
1.20 GA18944-20 GACC Glendale Main 345 North Brand Boulevard
Glendale
1.21 GA18944-21 GACC Fort Sam Houston 1422 East Grayson Street
San Antonio
1.22 GA18944-22 GACC Ellinwood Center #300 300 Ellinwood Way
Pleasant Hill
1.23 GA18944-23 GACC Ellinwood Center #400 400 Ellinwood Way
Pleasant Hill
1.24 GA18944-24 GACC Long Beach Financial 150 Long Beach
Boulevard Long Beach
1.25 GA18944-25 GACC Maricopa-Bank of America Center 1825 East
Buckeye Road Phoenix
1.26 GA18944-26 GACC Camelback-Bank of America Center 1825 East
Buckeye Road Phoenix
1.27 GA18944-27 GACC McDowell-Bank of America Center 1825 East
Buckeye Road Phoenix
1.28 GA18944-28 GACC Stockton Main Office 110 East Weber Street
Stockton
1.29 GA18944-29 GACC Inland Empire Cash Vault 1275 South Dupont
Avenue Ontario
1.30 GA18944-30 GACC Lake & Colorado Br 880 East Colorado
Boulevard Pasadena
1.31 GA18944-31 GACC Pomona Main 444 South Garey Avenue
Pomona
1.32 GA18944-32 GACC Ellinwood Center #500 500 Ellinwood Way
Pleasant Hill
1.33 GA18944-33 GACC Sunnyvale Main Branch 444 South Mathilda
Avenue Sunnyvale
1.34 GA18944-34 GACC Coronado Branch 1199 Orange Avenue
Coronado
1.35 GA18944-35 GACC Riverside Main 3650 14th Street
Riverside
1.36 GA18944-36 GACC Williams Islands 18305 Biscayne Boulevard
Aventura
1.37 GA18944-37 GACC La Jolla Main 7680 Girard Avenue La
Jolla
1.38 GA18944-38 GACC Whittier Office 7255 South Greenleaf Avenue
Whittier
1.39 GA18944-39 GACC Hallandale Beach 801 East Hallandale
Boulevard Hallandale
1.40 GA18944-40 GACC Annapolis Church Circle - BAL 10 Church
Circle Annapolis
1.41 GA18944-41 GACC Greenspoint 12400 Interstate 45 North
Houston
1.42 GA18944-42 GACC Redding Main Branch 1661 East Street
Redding
1.43 GA18944-43 GACC Albuquerque Operations Center 725 6th
Street North West Albuquerque
<CAPTION>
CONTROL
NUMBER STATE ZIP CODE COUNTY
------------ --------------- --------- -------------
<S> <C> <C> <C>
1 Various Various Various
1.1 Illinois 60604 Cook
1.2 California 94103 San Francisco
1.3 North Carolina 28202 Mecklenberg
1.4 Washington 99210 Spokane
1.5 Florida 32256 Duval
1.6 Florida 32256 Duval
1.7 Florida 32256 Duval
1.8 Florida 33015 Miami-Dade
1.9 Arizona 85034 Maricopa
1.10 Florida 32256 Duval
1.11 Florida 32256 Duval
1.12 Arizona 85034 Maricopa
1.13 Florida 32256 Duval
1.14 Florida 32256 Duval
1.15 Florida 33014 Miami-Dade
1.16 Washington 99224 Spokane
1.17 Florida 33607 Hillsborough
1.18 Washington 98402 Pierce
1.19 Florida 32825 Orange
1.20 California 91203 Los Angeles
1.21 Texas 78208 Bexar
1.22 California 94523 Contra Costa
1.23 California 94523 Contra Costa
1.24 California 90802 Los Angeles
1.25 Arizona 85034 Maricopa
1.26 Arizona 85034 Maricopa
1.27 Arizona 85034 Maricopa
1.28 California 95202 San Joaquin
1.29 California 91761 San Bernadino
1.30 California 91106 Los Angeles
1.31 California 91766 Los Angeles
1.32 California 94523 Contra Costa
1.33 California 94086 Santa Clara
1.34 California 92118 San Diego
1.35 California 92501 Riverside
1.36 Florida 33160 Miami-Dade
1.37 California 92037 San Diego
1.38 California 90602 Los Angeles
1.39 Florida 33009 Broward
1.40 Maryland 21401 Anne Arundel
1.41 Texas 77060 Harris
1.42 California 96001 Shasta
1.43 New Mexico 87102 Bernalillo
</TABLE>
A-1
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE LOAN SCHEDULE
ORIGINAL
CONTROL RELATED BALANCE CURRENT INTEREST ADMIN. ACCRUAL
NUMBER GROUPS ($) BALANCE ($) RATE % FEE % TYPE AMORTIZATION
TYPE NOTE DATE
----------- ------------ --------- ------------- ---------
---------- --------- -------------------- ----------------
<S> <C> <C> <C> <C> <C>
<C> <C> <C>
1 100,000,000 100,000,000 5.48912 0.0318 Actual/360 Interest
Only, then 12/01/2003
Amortizing
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.40
1.41
1.42
1.43
<CAPTION>
FIRST ORIGINAL REMAINING
CONTROL PAYMENT INTEREST INTEREST
NUMBER DATE ONLY PERIOD ONLY PERIOD SEASONING
------------- ----------------- ----------- --------------
-----------
<S> <C> <C> <C> <C>
1 01/01/2004 18 18 0
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.40
1.41
1.42
1.43
</TABLE>
A-2
<PAGE>
MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
CONTROL ORIGINAL TERM TO REMAINING TERM TO ORIGINAL
REMAINING
NUMBER MATURITY MATURITY AMORTIZATION TERM AMORTIZATION TERM
PAYMENT DUE DATE
--------------- ------------------ --------------------
------------------- ------------------- -------------------
<S> <C> <C> <C> <C> <C>
1 120 120 330 330 1
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.40
1.41
1.42
1.43
<CAPTION>
CONTROL GRACE DEFAULT MATURITY DATE OR SCHEDULED MATURITY
NUMBER PERIOD ARD OR ARD BALANCE ($)
------------- ------------------ -------------------
---------------------
<S> <C> <C> <C>
1 5 12/01/2013 83,917,809
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.40
1.41
1.42
1.43
</TABLE>
A-3
<PAGE>
<TABLE>
<CAPTION>
MORTGAGE LOAN SCHEDULE
SCHEDULED TOTAL SQ.
CONTROL ANNUAL DEBT "CUT-OFF DATE MATURITY OR ARD
FT./UNITS/PADS/ UNIT
NUMBER PREPAYMENT PROVISION SERVICE LTV (%)" DATE LTV (%) ROOMS
DESCRIPTION
------------ --------------------------------- --------------
-------------- ------------------- ----------------
-------------
<S> <C> <C> <C> <C> <C>
<C>
1 Lock/24_Defeasance/91_0%/5 7,053,434 47.24 39.73 7,774,995 Sq
Ft
1.1 1,027,783 Sq Ft
1.2 481,064 Sq Ft
1.3 413,407 Sq Ft
1.4 359,843 Sq Ft
1.5 295,895 Sq Ft
1.6 233,311 Sq Ft
1.7 172,511 Sq Ft
1.8 115,662 Sq Ft
1.9 170,151 Sq Ft
1.10 122,666 Sq Ft
1.11 118,963 Sq Ft
1.12 150,000 Sq Ft
1.13 116,749 Sq Ft
1.14 113,861 Sq Ft
1.15 141,366 Sq Ft
1.16 85,154 Sq Ft
1.17 68,868 Sq Ft
1.18 79,243 Sq Ft
1.19 112,217 Sq Ft
1.20 46,338 Sq Ft
1.21 61,095 Sq Ft
1.22 43,104 Sq Ft
1.23 42,766 Sq Ft
1.24 42,941 Sq Ft
1.25 62,482 Sq Ft
1.26 62,457 Sq Ft
1.27 62,469 Sq Ft
1.28 36,250 Sq Ft
1.29 62,659 Sq Ft
1.30 33,033 Sq Ft
1.31 33,513 Sq Ft
1.32 42,971 Sq Ft
1.33 34,559 Sq Ft
1.34 21,356 Sq Ft
1.35 38,500 Sq Ft
1.36 36,578 Sq Ft
1.37 31,482 Sq Ft
1.38 37,996 Sq Ft
1.39 42,944 Sq Ft
1.40 24,922 Sq Ft
1.41 37,846 Sq Ft
1.42 32,200 Sq Ft
1.43 59,489 Sq Ft
<CAPTION>
CUT-OFF DATE
CONTROL BALANCE PER SQ.
NUMBER FT./UNIT/PAD/ROOM OWNERSHIP INTEREST LOCKBOX
----------- ---------------------- -------------------
-------------
<S> <C> <C> <C>
1 44 Fee Hard
Simple/Leasehold
1.1 Fee Simple
1.2 Fee Simple
1.3 Fee Simple
1.4 Fee Simple
1.5 Fee Simple
1.6 Fee Simple
1.7 Fee Simple
1.8 Fee Simple
1.9 Leasehold
1.10 Fee Simple
1.11 Fee Simple
1.12 Leasehold
1.13 Fee Simple
1.14 Fee Simple
1.15 Fee Simple
1.16 Fee Simple
1.17 Fee Simple
1.18 Fee Simple
1.19 Fee Simple
1.20 Fee Simple
1.21 Fee Simple
1.22 Fee Simple
1.23 Fee Simple
1.24 Fee Simple
1.25 Leasehold
1.26 Leasehold
1.27 Leasehold
1.28 Fee Simple
1.29 Fee Simple
1.30 Fee Simple
1.31 Fee Simple
1.32 Fee Simple
1.33 Fee Simple
1.34 Fee Simple
1.35 Fee Simple
1.36 Fee Simple
1.37 Fee
Simple/Leasehold
1.38 Fee Simple
1.39 Fee Simple
1.40 Fee Simple
1.41 Fee Simple
1.42 Fee Simple
1.43 Fee Simple
</TABLE>
A-4
<PAGE>
MORTGAGE LOAN SCHEDULE
(continued)
<TABLE>
<CAPTION>
CONTROL LOAN LOAN
NUMBER GROUP LOAN NUMBER ORIGINATOR PROPERTY NAME ADDRESS
--------- -------- ------------ -------------
-----------------------------
-----------------------------------
<S> <C> <C> <C> <C> <C>
1.44 GA18944-44 GACC Santa Barbara 834 State Street
1.45 GA18944-45 GACC Charlottesville 300 East Main Street
1.46 GA18944-46 GACC Plaza 900 South Federal Highway
1.47 GA18944-47 GACC Irvine Industrial 4101 MacArthur
Boulevard
1.48 GA18944-48 GACC Gardena Main 1450 West Redondo Beach
Boulevard
1.49 GA18944-49 GACC Westshore Mall 100 North Westshore
Boulevard
1.50 GA18944-50 GACC Inglewood Main Office 330 East Manchester
Boulevard
1.51 GA18944-51 GACC Jacksonville Ops Center/School 9000
Southside Boulevard
1.52 GA18944-52 GACC Jacksonville Ops Cente
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