Common use of Non-Recourse Exceptions Clause in Contracts

Non-Recourse Exceptions. Various Various Certain of the Mortgage Loans have a recourse carveout for "material misrepresentation" rather than "fraud or other intentional misrepresentation." 49 Columbia Hotel Portfolio Under the recourse carve-out provisions, each tenant-in-common mortgagor is liable only to the extent that such tenant-in-common mortgagor caused the event that gave rise to the loss or liability. 138 Stone Ridge Apartments Phase II The mortgagor is liable xxx xxxxxx xxxxxxxx xx misapplication by the mortgagor of rents paid by tenants more than one (1) month in advance. Exceptions to Representation (xl): Separate Tax Lots. 28 Wyndham Jacksonville Riverwalk The Mortgaged Property is xx xxx xxxxxxx xx xxxxx Hotel subdivided, with one separate tax parcel consisting of the Mortgaged Property as well as additional land identified as Parcels B and C. Parcels B and C are not included in the collateral and are owned by an affiliate of the mortgagor. The mortgagor is required to (x) diligently and expeditiously prosecute to completion the subdivision of Parcel B and Parcel C from the Mortgaged Property (the "Subdivision") pursuant to and in accordance with all requirements of law, including, without limitation, obtaining all site plan, zoning and subdivision approvals from the appropriate governmental authorities and ensuring that, after giving effect to such Subdivision, the Mortgaged Property constitutes a separate legal tax parcel with sufficient parking and access to publicly-dedicated streets to satisfy the demands of the Mortgaged Property and all requirements of law, and (y) upon the request of lender, provide lender with periodic updates regarding the status of the Subdivision (including the status of any pending approvals), and, promptly following the completion of the Subdivision deliver evidence of such completion in form and substance reasonably satisfactory to lender (including copies of all final site plans, approvals, etc). During the term of the Mortgage Loan, the mortgagor is required to cause the owner of Parcel B and Parcel C to maintain Parcel B and Parcel C in a condition that will permit the Mortgaged Property to continue to enjoy access to, and use of, sufficient parking and access to publicly-dedicated streets to satisfy the demands of the Mortgaged Property and requirements of law and not to permit or undertake the development or use of Parcel B or Parcel C for any purpose which would have a material adverse effect. If during the term of the Mortgage Loan, following the Subdivision, the Parcel B & Parcel C Land Owner elects to sell or otherwise transfer title to Parcel B and/or Parcel C, the mortgagor shall cause the Parcel B & C Land Owner to include in any deed or other transfer instrument, a covenant restricting the development or the use of such parcel for any purpose which would have a material adverse effect for so long as the Mortgage encumbers the Mortgaged Property. In addition, lender will collect taxes for the Mortgaged Property and Parcels B and C until the Subdivision occurs, and the mortgagor and the non-recourse carveout guarantor are indemnifying lender for any real estate or other taxes or assessments pertaining to Parcel B and/or Parcel C incurred in connection with any foreclosure, deed in lieu of foreclosure or non-judicial sale of the Mortgaged Property occurring prior to the Subdivision. Exception to Representation (xli): Ground Leases.

Non-Recourse Exceptions. Various Various Certain of Audubon Park Apartments The guarantor's liability on the Mortgage Loans have a recourse carveout for "material misrepresentation" rather than "fraud or other intentional misrepresentation." 49 Columbia Hotel Portfolio Under the environmental recourse carve-out provisions, each tenant-in-common mortgagor is liable only to the extent that such tenant-in-common mortgagor caused the capped at $3,500,000. Houghton Place Apartments It is not an event that gave rise to the loss or liability. 138 Stone Ridge Apartments Phase II The mortgagor is liable xxx xxxxxx xxxxxxxx xx misapplication by the mortgagor of rents paid by tenants more than one (1) month in advance. Exceptions to Representation (xl): Separate Tax Lots. 28 Wyndham Jacksonville Riverwalk The Mortgaged Property is xx xxx xxxxxxx xx xxxxx Hotel subdivided, with one separate tax parcel consisting of the Mortgaged Property as well as additional land identified as Parcels B and C. Parcels B and C are not included in the collateral and are owned by an affiliate of the mortgagor. The mortgagor is required to (x) diligently and expeditiously prosecute to completion the subdivision of Parcel B and Parcel C from the Mortgaged Property (the "Subdivision") pursuant to and in accordance with all requirements of law, including, without limitation, obtaining all site plan, zoning and subdivision approvals from the appropriate governmental authorities and ensuring that, after giving effect to such Subdivision, the Mortgaged Property constitutes a separate legal tax parcel with sufficient parking and access to publicly-dedicated streets to satisfy the demands of the Mortgaged Property and all requirements of law, and (y) upon the request of lender, provide lender with periodic updates regarding the status of the Subdivision (including the status of any pending approvals), and, promptly following the completion of the Subdivision deliver evidence of such completion in form and substance reasonably satisfactory to lender (including copies of all final site plans, approvals, etc). During the term of default under the Mortgage LoanLoan documents if a recourse carve-out guarantor files for bankruptcy, the mortgagor is required to cause the owner of Parcel B and Parcel C to maintain Parcel B and Parcel C in a condition that will permit the Mortgaged Property to continue to enjoy access to, and use of, sufficient parking and access to publicly-dedicated streets to satisfy the demands of the Mortgaged Property and requirements of law and not to permit or undertake the development or use of Parcel B or Parcel C for any purpose which would have a material adverse effect. If during the term of the Mortgage Loan, following the Subdivision, the Parcel B & Parcel C Land Owner elects to sell or otherwise transfer title to Parcel B and/or Parcel C, the mortgagor shall cause the Parcel B & C Land Owner to include in any deed or other transfer instrument, a covenant restricting the development or the use of such parcel for any purpose which would have a material adverse effect for so long as the Mortgage encumbers the Mortgaged Propertytwo other guarantors with a combined net worth satisfying lender's generally applicable underwriting standards remain. In addition, lender will collect taxes for the Mortgaged Property and Parcels B and C until the Subdivision occurs, and the mortgagor West Haven Apartments The Borrower and the non-recourse carveout guarantor are indemnifying lender liable for any real estate or other taxes or assessments pertaining to Parcel B and/or Parcel C incurred in connection with any foreclosurethe "intentional misappropriation" but not the "misappropriation" of tenant security deposits, deed in lieu of foreclosure or non-judicial sale rents, insurance proceeds and condemnation awards. Chicago Pneumatic As a result of the Mortgaged Property occurring prior tenant-in-common Town Hall Industrial Building structure, each Borrower is liable under its recourse carveout guaranty only to the Subdivisionextent that the event that caused the liability under the guaranty was caused by such Borrower. Exception Legal Compliance - Origination, Funding and Exceptions to Representation (xli): Ground Leases.50) Servicing Exceptions --------------------------------- -------------------- West Haven Apartments An individual who was contemplated to be one of the nonrecourse carevout guarantors submitted financial information that may not have been true, and such individual may thus have violated federal, state or local law with respect to the origination of mortgage loans. While this individual still owns an equity interest in the Borrower, he has been deprived, by court order and by resolutions of the borrower, of all authority to make decisions with respect to or to participate in the management of the property and the Borrower. Because such individual no longer has any authority with respect the management of the property and the Borrower, and because the financial information he submitted is no longer regarded as reliable, he has been released as a recourse carevout guarantor. The lender has not released the obligations of the other recourse carveout guarantor, who retains the authority to make decisions with respect to the Borrower. SCHEDULE II

Non-Recourse Exceptions. Various Various Certain of the All Mortgage Loans have except as specified In some instances, the Loan below Documents contain a recourse carveout for "material fraud or intentional misrepresentation" rather than "fraud or other intentional material misrepresentation." 49 Columbia Hotel Portfolio Under In addition, the Loan Documents provide for recourse carve-out provisions, each tenant-in-common mortgagor is liable only for the misapplication or conversion by the borrower of any rents following an event of default or any rents collected for more than one month in advance to the extent that such tenant-in-common mortgagor caused rents or any other payments in respect of the leases and other income of the related Mortgaged Property or any other collateral are not applied to the costs of maintenance and operation of the related Mortgaged Property and to the payment of taxes, lien, claims, insurance premiums, debt service and other amounts due under the loan documents, instead of "misapplication or misappropriation of rents, insurance proceeds or condemnation awards" with respect to all Mortgage Loans. -------------------------------------------------------------------------------- Loan No. 100 (HPI - GSA Portfolio) The recourse carveout guarantor is Abbestate Holding, Inc., rather than a natural person. Abbestate Holding, Inc. has a reported a total net worth of $36,500,000 and liquid assets in the amount of $13,700,000. An environmental indemnity and an environmental insurance policy have been provided. The carveout guarantor's obligations under the environmental indemnity enter into effect in the event that gave rise to the loss environmental insurance policy lapses. -------------------------------------------------------------------------------- Loan No. 300 (Owings Mills 3) There is no other individual or liability. 138 Stone Ridge Apartments Phase II The mortgagor entity other than the borrower that is liable xxx xxxxxx xxxxxxxx xx misapplication by for the mortgagor of rents paid by tenants more than one (1) month in advance. Exceptions to Representation (xl): Separate Tax Lots. 28 Wyndham Jacksonville Riverwalk The Mortgaged Property is xx xxx xxxxxxx xx xxxxx Hotel subdivided, with one separate tax parcel consisting of the Mortgaged Property as well as additional land identified as Parcels B and C. Parcels B and C are not included in the collateral and are owned by an affiliate of the mortgagor. The mortgagor is required to (x) diligently and expeditiously prosecute to completion the subdivision of Parcel B and Parcel C from the Mortgaged Property (the "Subdivision") pursuant to and in accordance with all requirements of law, including, without limitation, obtaining all site plan, zoning and subdivision approvals from the appropriate governmental authorities and ensuring that, after giving effect to such Subdivision, the Mortgaged Property constitutes a separate legal tax parcel with sufficient parking and access to publiclynon-dedicated streets to satisfy the demands of the Mortgaged Property and all requirements of law, and (y) upon the request of lender, provide lender with periodic updates regarding the status of the Subdivision (including the status of any pending approvals), and, promptly following the completion of the Subdivision deliver evidence of such completion in form and substance reasonably satisfactory to lender (including copies of all final site plans, approvals, etc). During the term of the Mortgage Loan, the mortgagor is required to cause the owner of Parcel B and Parcel C to maintain Parcel B and Parcel C in a condition that will permit the Mortgaged Property to continue to enjoy access to, and use of, sufficient parking and access to publiclyrecourse carve-dedicated streets to satisfy the demands of the Mortgaged Property and requirements of law and not to permit or undertake the development or use of Parcel B or Parcel C for any purpose which would have a material adverse effect. If during the term of the Mortgage Loan, following the Subdivision, the Parcel B & Parcel C Land Owner elects to sell or otherwise transfer title to Parcel B and/or Parcel C, the mortgagor shall cause the Parcel B & C Land Owner to include in any deed or other transfer instrument, a covenant restricting the development or the use of such parcel for any purpose which would have a material adverse effect for so long as the Mortgage encumbers the Mortgaged Propertyouts. In addition, lender will collect taxes for non-recourse carveouts to the borrower do not include damage or destruction to the Mortgaged Property caused by the acts or omissions of the borrower, its agents, employees or contractors. -------------------------------------------------------------------------------- Loan No. 500 (252 Seventh Avenue) The recourse carveout guarantor is Rockrose Properties L.L.C., rather than a natural person. An environmental indemnity and Parcels B an environmental insurance policy have been provided. The carveout guarantor's obligations under the environmental indemnity enter into effect in the event that the environmental insurance policy lapses. -------------------------------------------------------------------------------- Loan No. 800 (Garin Ranch) The recourse carveout guarantor is Festival Retail Fund 1, L.P., rather than a natural person. -------------------------------------------------------------------------------- Loan No. 900 (1001-1007 Third Avenue) The recourse carveout guarantor is Reading International Inc., rather than a natural person. -------------------------------------------------------------------------------- Loan Nos. 600 and C until 1000 (Cranberry Commons There is no other individual or and Argosy Apartments) entity other than the Subdivision occurs, and the mortgagor and borrower that is liable for the non-recourse carveouts. -------------------------------------------------------------------------------- Loan No. 1800 (500-506 West 172nd Street) The recourse carveout guarantor are indemnifying lender for any real estate or other taxes or assessments pertaining to Parcel B and/or Parcel C incurred in connection with any foreclosureis Cronus Real Estate Fund, deed in lieu of foreclosure or non-judicial sale of the Mortgaged Property occurring prior to the SubdivisionL.P., rather than a natural person. Exception to Representation (xli): Ground Leases.--------------------------------------------------------------------------------

Non-Recourse Exceptions. Various Various Certain of With respect to Mortgage Loan No. DBM 20153, Imperial Office Center, different guarantors (who are generally the Mortgage Loans have a recourse carveout for "material misrepresentation" rather than "fraud or other intentional misrepresentation." 49 Columbia Hotel Portfolio Under the recourse carve-out provisions, each tenant-in-tenants in common mortgagor is liable only to the extent that such tenant-in-common mortgagor caused the event that gave rise to the loss or liability. 138 Stone Ridge Apartments Phase II The mortgagor is liable xxx xxxxxx xxxxxxxx xx misapplication by the mortgagor of rents paid by tenants more than one (1) month in advance. Exceptions to Representation (xl): Separate Tax Lots. 28 Wyndham Jacksonville Riverwalk The Mortgaged Property is xx xxx xxxxxxx xx xxxxx Hotel subdivided, with one separate tax parcel consisting of the Mortgaged Property as well as additional land identified as Parcels B and C. Parcels B and C are not included Property) signed separate guaranties in the collateral and are owned by an affiliate connection with certain of the mortgagor. The mortgagor is required to (x) diligently and expeditiously prosecute to completion the subdivision of Parcel B and Parcel C from the Mortgaged Property (the "Subdivision") pursuant to and in accordance with all requirements of law, including, without limitation, obtaining all site plan, zoning and subdivision approvals from the appropriate governmental authorities and ensuring that, after giving effect to such Subdivision, the Mortgaged Property constitutes a separate legal tax parcel with sufficient parking and access to publicly-dedicated streets to satisfy the demands of the Mortgaged Property and all requirements of law, and (y) upon the request of lender, provide lender with periodic updates regarding the status of the Subdivision (including the status of any pending approvals), and, promptly following the completion of the Subdivision deliver evidence of such completion in form and substance reasonably satisfactory to lender (including copies of all final site plans, approvals, etc). During the term of the Mortgage Loan, the mortgagor is required to cause the owner of Parcel B and Parcel C to maintain Parcel B and Parcel C in a condition that will permit the Mortgaged Property to continue to enjoy access to, and use of, sufficient parking and access to publicly-dedicated streets to satisfy the demands of the Mortgaged Property and requirements of law and not to permit or undertake the development or use of Parcel B or Parcel C for any purpose which would have a material adverse effect. If during the term of the Mortgage Loan, following the Subdivision, the Parcel B & Parcel C Land Owner elects to sell or otherwise transfer title to Parcel B and/or Parcel C, the mortgagor shall cause the Parcel B & C Land Owner to include in any deed or other transfer instrument, a covenant restricting the development or the use of such parcel for any purpose which would have a material adverse effect for so long as the Mortgage encumbers the Mortgaged Property. In addition, lender will collect taxes for the Mortgaged Property and Parcels B and C until the Subdivision occurs, and the mortgagor and the non-recourse carveout guarantor are indemnifying lender for any real estate or other taxes or assessments pertaining to Parcel B and/or Parcel C incurred in connection with any foreclosure, deed in lieu of foreclosure or non-judicial sale events. Certain of the Mortgaged Property occurring prior guarantees are limited to liability for fraud or willful misrepresentation committed by that particular guarantor. Also, the Subdivisionguarantors' liability for misappropriation for rents applies only to rents paid more than one month in advance. Exception Mortgage Loan No. GA 19785, Strategic Hotel Portfolio, and Mortgage Loan No. DBM 20620, Fairfield Inn by Marriott, each is without recourse to Representation any natural person for damages arising in the case of each of the items enumerated in this representation. Mortgage Loan No. DBM 20569, 000 Xxxxxx Xxxxxx, is without recourse to any natural person for damages arising from breaches of the environment covenants in the Mortgage Loan documents. EXHIBIT C-1 FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER Certificate of Officer of German American Capital Corporation (xli): Ground Leasesthe "Mortgage Loan Seller") I, _______________________, a __________________ of the Mortgage Loan Seller, hereby certify as follows: The Mortgage Loan Seller is a corporation duly organized and validly existing under the laws of the State of Maryland. Attached hereto as Exhibit I are true and correct copies of the Certificate of Incorporation and By-Laws of the Mortgage Loan Seller, which Certificate of Incorporation and By-Laws are on the date hereof, and have been at all times in full force and effect. To the best of my knowledge, no proceedings looking toward liquidation or dissolution of the Mortgage Loan Seller are pending or contemplated. Each person listed below is and has been the duly elected and qualified officer or authorized signatory of the Mortgage Loan Seller and his genuine signature is set forth opposite his name: Name Office Signature Each person listed above who signed, either manually or by facsimile signature, the Mortgage Loan Purchase Agreement, dated as of December 21, 2004 (the "Purchase Agreement"), between the Mortgage Loan Seller and GMAC Commercial Mortgage Securities, Inc. providing for the purchase by GMAC Commercial Mortgage Securities, Inc. from the Mortgage Loan Seller of the Mortgage Loans, was, at the respective times of such signing and delivery, duly authorized or appointed to execute such documents in such capacity, and the signatures of such persons or facsimiles thereof appearing on such documents are their genuine signatures. Capitalized terms not otherwise defined herein have the meanings assigned to them in the Purchase Agreement.

Non-Recourse Exceptions. Various Various Certain of the With respect to Mortgage Loans have a recourse carveout for "material misrepresentation" rather than "fraud or other intentional misrepresentation." 49 Columbia Hotel Portfolio Under the recourse Loan No. ___, Mall At Millenia, there is an Indemnity Agreement from Xxxxxx Xxxxxx and there are carve-out provisions, each tenant-in-common mortgagor is liable only outs to the extent that such tenant-in-common mortgagor caused the event that gave rise to the loss or liability. 138 Stone Ridge Apartments Phase II The mortgagor is liable xxx xxxxxx xxxxxxxx xx misapplication by the mortgagor of rents paid by tenants more than one (1) month in advance. Exceptions to Representation (xl): Separate Tax Lots. 28 Wyndham Jacksonville Riverwalk The Mortgaged Property is xx xxx xxxxxxx xx xxxxx Hotel subdivided, with one separate tax parcel consisting of the Mortgaged Property as well as additional land identified as Parcels B and C. Parcels B and C are not included in the collateral and are owned by an affiliate of the mortgagor. The mortgagor is required to (x) diligently and expeditiously prosecute to completion the subdivision of Parcel B and Parcel C from the Mortgaged Property (the "Subdivision") pursuant to and in accordance with all requirements of law, including, without limitation, obtaining all site plan, zoning and subdivision approvals from the appropriate governmental authorities and ensuring that, after giving effect to such Subdivision, the Mortgaged Property constitutes a separate legal tax parcel with sufficient parking and access to publicly-dedicated streets to satisfy the demands of the Mortgaged Property and all requirements of law, and (y) upon the request of lender, provide lender with periodic updates regarding the status of the Subdivision (including the status of any pending approvals), and, promptly following the completion of the Subdivision deliver evidence of such completion in form and substance reasonably satisfactory to lender (including copies of all final site plans, approvals, etc). During the term of the Mortgage Loan, the mortgagor is required to cause the owner of Parcel B and Parcel C to maintain Parcel B and Parcel C in a condition that will permit the Mortgaged Property to continue to enjoy access to, and use of, sufficient parking and access to publicly-dedicated streets to satisfy the demands of the Mortgaged Property and requirements of law and not to permit or undertake the development or use of Parcel B or Parcel C for any purpose which would have a material adverse effect. If during the term of the Mortgage Loan, following the Subdivision, the Parcel B & Parcel C Land Owner elects to sell or otherwise transfer title to Parcel B and/or Parcel C, the mortgagor shall cause the Parcel B & C Land Owner to include in any deed or other transfer instrument, a covenant restricting the development or the use of such parcel for any purpose which would have a material adverse effect for so long as the Mortgage encumbers the Mortgaged Property. In addition, lender will collect taxes for the Mortgaged Property and Parcels B and C until the Subdivision occurs, and the mortgagor and the non-recourse carveout guarantor are indemnifying provisions of the Loan Document which, in each case, indemnify the lender for losses incurred as a result of actions similar to those listed in representation #38, however, (a) instead of willful misrepresentation by Borrower, the lender is indemnified for losses due to intentional misrepresentation by Borrower and (b) instead of misappropriation of rents, insurance proceeds or condemnation awards, the lender is indemnified for losses due to the failure of Borrower to (i) apply Insurance Proceeds paid by reason of any real estate Casualty in accordance with the terms of the Loan Agreement and the other Loan Documents, (ii) apply Awards or other taxes or assessments pertaining to Parcel B and/or Parcel C incurred amounts received in connection with any foreclosure, deed in lieu a Condemnation of foreclosure all or non-judicial sale a portion of the Mortgaged Property occurring prior in accordance with the terms of the Loan Agreement and the other Loan Documents, or (iii) apply Rents received after the occurrence and during the continuance of an event of default to debt service, operating expenses and/or reserve funds (provided, however, if such event of default did not require lender to provide written notice to Borrower, recourse liability to lender shall not accrue until lender has given five (5) days written notice). With respect to Mortgage Loan No. ___, FGSR Portfolio, the guarantor is not liable in case of fraud or willful misrepresentation by the borrower, misappropriation of rents, insurance proceeds or condemnation awards and breaches of environmental covenants in the Mortgage Loan documents. The guarantor is only liable for any misrepresentation with respect to the Subdivision"backward looking" representations made by the borrower relating to the borrower being a Special Purpose Entity and for any losses which result from termination of the sub-lease on the Xxxxxx Xxxxxxx Xxxxxxxx property (for explanation of the sub-lease structure see the exception to rep. Exception 17). Schedule A below lists loans without warm-body guarantor. SCHEDULE A Xxxxx Fargo Tower FGSR Portfolio XxXxxxxx Mall 000 Xxxxx Xxxxxx does not have warm-body guarantors, except for breaches of the environmental covenants. EXHIBIT C-1 FORM OF CERTIFICATE OF AN OFFICER OF THE MORTGAGE LOAN SELLER Certificate of Officer of Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Mortgage Loan Seller") I, _______________________, a __________________ of the Mortgage Loan Seller, hereby certify as follows: The Mortgage Loan Seller is a corporation duly organized and validly existing under the laws of the State of New York. Attached hereto as Exhibit I are true and correct copies of the Certificate of Incorporation and By-Laws of the Mortgage Loan Seller, which Certificate of Incorporation and By-Laws are on the date hereof, and have been at all times in full force and effect. To the best of my knowledge, no proceedings looking toward liquidation or dissolution of the Mortgage Loan Seller are pending or contemplated. Each person listed below is and has been the duly elected and qualified officer or authorized signatory of the Mortgage Loan Seller and his genuine signature is set forth opposite his name: Name Office Signature Each person listed above who signed, either manually or by facsimile signature, the Mortgage Loan Purchase Agreement, dated as of December 18, 2003 (the "Purchase Agreement"), between the Mortgage Loan Seller and GMAC Commercial Mortgage Securities, Inc. providing for the purchase by GMAC Commercial Mortgage Securities, Inc. from the Mortgage Loan Seller of the Mortgage Loans, was, at the respective times of such signing and delivery, duly authorized or appointed to Representation (xli): Ground Leasesexecute such documents in such capacity, and the signatures of such persons or facsimiles thereof appearing on such documents are their genuine signatures. Capitalized terms not otherwise defined herein have the meanings assigned to them in the Purchase Agreement.