EXHIBIT 99.4
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of August 8, 2000, between German American Capital Corporation as
seller (the "Seller") and GMAC Commercial Mortgage Securities, Inc. as purchaser
(the "Purchaser").
The 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"); provided, however, that with respect to the mortgage
loan identified on the Mortgage Loan Schedule as loan number DMB7884, "Mortgage
Loan" shall mean the REMIC regular interest and the REMIC residual interest in
the single-asset REMIC established with respect to such mortgage loan by a REMIC
Declaration made by the Seller on July 31, 2000. Certain other multifamily and
commercial mortgage loans (the "Other Mortgage Loans") will be purchased by the
Purchaser from (i) German American Capital Corporation ("GACC"), pursuant to,
and for the consideration described in, the Mortgage Loan Purchase Agreement,
dated as of August 8, 2000 (the "GACC Warehouse Mortgage Loan Purchase
Agreement"), between the Purchaser and GACC, (ii) Xxxxxxx Xxxxx Mortgage Company
("GSMC") pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of August 8, 2000 (the "GSMC Warehouse Mortgage
Loan Purchase Agreement") between the Purchaser and GSMC, (iii) Salomon Brothers
Realty Corp. ("Salomon"), pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of August 8, 2000 (the "Salomon
Warehouse Mortgage Loan Purchase Agreement"), between the Purchaser and Salomon
(the mortgage loans purchased by the Purchaser under the GACC Warehouse Mortgage
Loan Purchase Agreement, the GSMC Warehouse Mortgage Loan Purchase Agreement and
the Salomon Warehouse Mortgage Loan Purchase Agreement, the "Warehouse Mortgage
Loans"); (iv) and GSMC, pursuant to, and for the consideration described in, the
Mortgage Loan Purchase Agreement, dated as of August 8, 2000 (the "GSMC Mortgage
Loan Purchase Agreement"), between the Purchaser and GSMC. The Seller, GACC,
GSMC and Salomon are collectively referred to as the "Mortgage Loan Sellers." A
multifamily mortgage participation certificate issued and guaranteed by the
Federal Home Loan Mortgage Corporation (the "Mortgage Certificate") will be
purchased by the Purchaser from GMAC Commercial Mortgage Corporation ("GMACCM")
pursuant to an Assignment and Assumption Agreement, dated as of August 17, 2000
(the "Assignment and Assumption Agreement), between the Purchaser and GMACCM.
It is expected that the Mortgage Loans will be transferred, together with
the Other Mortgage Loans and the Mortgage Certificate 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 Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, 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 August
1, 2000 (the "Pooling and Servicing Agreement"), among the Purchaser as
depositor, GMACCM as master servicer (in such capacity, the "Master Servicer")
and special servicer (in such capacity, the "Special Servicer") and Xxxxx Fargo
Bank Minnesota, N.A., as trustee (in such capacity, the "Trustee"). Capitalized
terms not otherwise defined herein have the meanings assigned to them in the
Pooling and Servicing Agreement as in effect on the Closing Date.
The Purchaser intends to sell the Class A-1, Class A-2, Class B, Class C,
Class D and Class E Certificates to Deutsche Bank Securities Inc. and Xxxxxxx,
Sachs & Co. (together, the "Underwriters"), pursuant to an underwriting
agreement dated the date hereof (the "Underwriting Agreement"). The Purchaser
intends to sell the Class X and Class F Certificates to Deutsche Bank Securities
Inc. and Xxxxxxx, Xxxxx & Co., and the Class G, Class H, Class J, Class K, Class
L, Class M, Class N and Class O 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 Purchaser intends to sell the Class R-I, Class R-II and Class
R-III Certificates to Xxxxxxx, Sachs & Co. (in such capacity, an "Initial
Purchaser"). The Class X, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class R-I, Class R-II and Class R-III Certificates
are collectively referred to as the "Non-Registered Certificates."
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on August 17, 2000 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). The "Cut-off Date" with respect to any Mortgage Loan is the Due
Date for such Mortgage Loan in August 2000. 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 $252,533,736.23
subject to a variance of plus or minus 5%. The purchase price for the Mortgage
Loans shall be $251,601,678.05.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the Seller
of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdback for transaction expenses), the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the 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 Seller on or with respect
to the Mortgage Loans after the Cut-off Date for such Mortgage Loan, together
with all of the Seller's right, title and interest in
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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 Seller, the Seller shall deliver or cause to be delivered to or at
the direction of the Purchaser) all scheduled payments of principal and interest
due on the Mortgage Loans after the Cut-off Date for each 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 Seller.
(b) In connection with the Seller's assignment pursuant to subsection (a)
above, the Seller hereby agrees 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 hereto) for each Mortgage Loan so
assigned. It is further acknowledged and agreed by the Seller that the Purchaser
intends to cause the Trustee to perform a limited review of such Mortgage Files
to enable the Trustee to confirm to the Purchaser on or before the Closing Date
that the Mortgage Note referred to in clause (i) of Exhibit B has been delivered
by the Seller with respect to each such Mortgage File. In the event Seller fails
to so deliver each such Mortgage File to the Trustee, the Purchaser 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. 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, 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 2(b) 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, 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 Purchaser (or any subsequent owner of the affected
Mortgage Loan, including without limitation the Trustee) within 180 days of the
Closing Date (or within such longer period after the Closing Date as the
Purchaser (or such subsequent owner) may consent to, which consent shall not be
unreasonably withheld so long as the Seller has provided the Purchaser (or such
subsequent owner) with evidence of such recording or filing, as the case may be,
or has certified to the Purchaser (or such subsequent owner) as to the
occurrence of such recording or filing, as the case may be, and is, as certified
to the Purchaser (or such subsequent owner) no less often than quarterly, in
good faith attempting to obtain from the appropriate county recorder's or filing
office such original or copy). 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 solely
because such policy has not yet been issued, the delivery requirements of this
Section 2(b) shall be deemed to be satisfied as to
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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 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
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the 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 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. On the Closing Date, upon notification from the Seller that the
purchase price referred to in Section 1 (exclusive of any applicable holdback
for transaction expenses) has been received by the Seller, the Trustee shall be
authorized to release to the Purchaser or its designee all of the Mortgage Files
in the Trustee's possession relating to the Mortgage Loans.
(c) 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 and each UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of Exhibit B 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 Purchaser (or any subsequent owner of the affected Mortgage
Loan, including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together with all
escrow payments, reserve funds and other comparable funds in the possession of
the Seller (or under its control) with respect to the Mortgage Loans, shall
(unless they are held by a sub-servicer that shall, as of the Closing Date,
begin acting on behalf of the Master Servicer pursuant to a written agreement
between such parties) be delivered by the Seller (or its agent) to the Purchaser
(or its designee) no later than the Closing Date. If a sub-servicer shall, as of
the Closing Date, begin acting on behalf of the Master Servicer with respect to
any Mortgage Loan pursuant to a written agreement between such parties, the
Seller shall deliver a copy of the related Servicing File to the Master
Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage Loans to
the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
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The 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 Seller's representations, warranties and covenants set forth
in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The 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 C, 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 Maryland, and is in compliance
with the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the 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 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,
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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 the ability of the Seller to
perform its obligations under this Agreement.
(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) Neither the 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 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-9 through A-11, 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 and/or the 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 2000-C2 Transaction--The Mortgage Assets," "--Geographic
Concentrations of the Mortgaged Properties," "--Property Types," "--Prepayment
Protection Provided by the Mortgage Loans," "--Payment Terms of the Mortgage
Loans," "Risk Factors" and "Description of the Mortgage Assets", set forth on
Annex A to the Prospectus Supplement and (to the extent it contains information
consistent with that on
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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.
(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 Seller with this
Agreement, or the consummation by the 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 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 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 C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser, and
the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable to
it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against
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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 Seller, the Underwriters, the Initial
Purchasers and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans or
the consummation of any of the transactions contemplated hereby.
(viii) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of or
compliance by the Purchaser with this Agreement, or the consummation by the
Purchaser of any transaction contemplated hereby, other than (1) such consents,
approvals, authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (2) where the lack of such consent, approval,
authorization, qualification, registration, filing or notice would not have a
material adverse effect on the performance by the Purchaser under this
Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. 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 4(a) and set forth in
Exhibit C (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
Trustee and the holders of the Certificates), the Seller shall cure such Defect
or Breach, as the case may be, in all material
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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, which corrected Mortgage Loan Schedule shall be deemed to
amend and replace the existing Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 6(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).
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 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.
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(c) In connection with any repurchase of or substitution for a Mortgage
Loan contemplated by this Section 6, 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) Except as provided in Section 2(b), this Section 6 provides the sole
remedies available to the Purchaser, and its successors and assigns (including,
without limitation, 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 4(a) and set forth in Exhibit C, or in connection with
the circumstances described in Section 6(b). If the Seller defaults on its
obligations to repurchase any Mortgage Loan in accordance with Section 6(a) or
6(b) or disputes its obligation to repurchase 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.
(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(a) 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 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the 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 acceptable to the Purchaser, shall be duly
executed and delivered by all signatories as required pursuant to the respective
terms thereof;
(iii) The 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;
10
(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 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 Seller shall have paid or agreed to pay all fees, costs and
expenses payable by it to the Purchaser pursuant to this Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the 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 Seller;
(c) A certificate of good standing regarding the 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 Seller substantially in the form of Exhibit D-2
hereto, executed by an executive officer or authorized signatory of the Seller
and dated the Closing Date, and upon which the Purchaser and each Underwriter
may rely;
(e) Written opinions of counsel for the Seller, in a form reasonably
acceptable to counsel for the Purchaser and subject to such reasonable
assumptions and qualifications as may be requested by counsel for the 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 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.
11
SECTION 9. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser, its
officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus Supplement, the
Memorandum, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission (in the case of any such
Computational Materials or ABS Term Sheets, when read in conjunction with the
Prospectus and, in the case of the Memorandum, when read together with the other
information specified therein as being available for review by investors) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; but only if and to the extent that (i) any such untrue
statement or alleged untrue statement is with respect to information regarding
the Mortgage Loans contained in the Loan Detail or, to the extent consistent
therewith, the Diskette or contained in the Term Sheet Diskette, to the extent
consistent with the Term Sheet Master Tape, or (ii) any such untrue statement or
alleged untrue statement or omission or alleged omission is with respect to
information regarding the Seller or the Mortgage Loans contained in the
Prospectus Supplement or the Memorandum under the headings "Summary of Series
2000-C2 Transaction -- The Mortgage Assets," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment Protection Provided by
the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors"
and/or "Description of the Mortgage Assets" or contained on Annex A 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) 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 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 Seller
may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-74299 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,
2000, as supplemented by the prospectus supplement dated August 8, 2000 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated August 17, 2000, relating to
the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in
12
the no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to Xxxxxx,
Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters"); and "ABS Term Sheets"
shall have the meaning assigned thereto in the no-action letter dated February
17, 1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the Xxxxxx
Letters, the "No-Action Letters"). The mortgage loan information and information
related thereto contained on the diskette attached to any ABS Term Sheets or
Computational Materials is referred to herein as the "Term Sheet Diskette" and
the tape provided by the 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 Seller (the "indemnifying party") under this Section 9, notify
the indemnifying party in writing of the commencement thereof; but the omission
to notify the indemnifying party will not relieve it from any liability that it
may have to any indemnified party otherwise than under this Section 9. In case
any such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election to assume the defense of such action and approval by the
indemnified party of counsel, which approval will not be unreasonably withheld,
the indemnifying party will not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Purchaser and the indemnifying party,
representing all the indemnified 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).
13
(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 Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 9, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any indemnified
party, and (iii) acceptance of and payment for any of the Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered to or mailed, by
registered mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by a similar mailed writing, if to the
Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at 000 Xxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance Manager,
facsimile no. (000) 000-0000, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter
14
be furnished to the Seller in writing by the Purchaser; and if to
the Seller, addressed to German American Capital Corporation, 00 X. 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, facsimile no. (212)
469-7210, with a copy to Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxx & Xxxx, 000 Xxxxxx
Xxxx, Xxx Xxxx, Xxx Xxxx, 00000, or to such other address or facsimile number as
the 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 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 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 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 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this Agreement
that is prohibited or which is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
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.
15
SECTION 17. 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.
SECTION 18. 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 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 Seller and the Purchaser, and their permitted
successors and assigns, and the indemnified parties referred to in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived, modified or
in any way altered, unless such amendment, waiver, modification or alteration is
in writing and signed by a duly authorized officer of the party against whom
such amendment, waiver, modification or alteration is sought to be enforced. In
addition, this Agreement may not be changed in any manner which would have a
material adverse effect on any third party beneficiary under Section 12 hereof
without the prior consent of that person.
16
IN WITNESS WHEREOF, the 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/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES,
INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
17
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
LOAN NUMBER NAME ADDRESS CITY
DBM10100 Xxxxxxxxx Portfolio Nantucket Island Nantucket
DBM10118 Mervyn's Plaza 3643-3753 Camp Wisdom Road Dallas
DBM10304 Riverside Green Apartments 0000 Xxxxxx Xxxxxx Xxxxxxxx
XXX00000 Bulova Technologies Building 000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxx
DBM10627 Chesterfield Crossing 00000 Xxxxxxxxxx Xxxxxxxx Xxxxxxxx
DBM10628 Xxxxxxx'x Xxxxxxx Xxxxxx 0000-0000 Xxxxxx & 5305-5319 Breezeway Toledo
DBM10749 Wall Street & Northgate Office Buildings Various Various
DBM10749-A Wall Street Service Center 0000 Xxxx Xxxxxx Xxxxxx
DBM10749-B Xxxxxxxxx Xxxxxx Xxxxxxxx 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx
DBM10982 Eastlake Commons 44801-44975 Xxxxx Xxxx Xxxxxxxx Xxxxxxx
XXX00000 Xxxxx Xxxx Office Courte 000-000 Xxxxxxxxxxx Xxxxx Xxxxxxxx
DBM11301 Tory Estates 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxx
DBM11379 City Centre Office Building 000 Xxxx Xxxx Xxxx Xxxxxx Xxxxxxx
DBM11402 Xxxxxxx Xxxx Xxxxxxxxxx 00000 Xxxx Xxxxxx Xxxxxx
DBM11414 536 & 000 Xxxxxxx Xxxxxx 536 & 000 Xxxxxxx Xxxxxx Perth Amboy
DBM11651 Briarwood Manor Apartments 1351 Good Intent Road Deptford
DBM11828 The Lafayette Building 433 - 000 Xxxxxxxx Xxxxxx Xxxxxxxxxxxx
XXX00000 Xxxxxx of Los Angeles Office Building 0000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
INTEREST RATE ORIGINAL CUT-OFF DATE REMAINING
LOAN NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM MATURITY DATE
DBM10100 Xxxxxxxxxxxxx 00000 9.0300 Fixed 18,500,000.00 18,463,148.46 115 3/1/30
DBM10118 Texas 75237 8.8800 Fixed 2,895,000.00 2,888,945.53 115 3/1/10
DBM10304 Ohio 43212 8.1400 Fixed 3,850,000.00 3,841,605.17 116 4/1/30
DBM10594 Pennsylvania 17603 8.5600 Fixed 6,400,000.00 6,384,510.35 117 5/1/25
DBM10627 Virginia 23235 8.5000 Fixed 713,000.00 708,229.26 109 9/1/09
DBM10628 Ohio 43613 8.5000 Fixed 1,100,000.00 1,088,138.45 109 9/1/09
DBM10749 Various Various 8.9200 Fixed 3,650,000.00 3,642,463.61 115 3/1/30
XXX00000-X Xxxxx 00000 NAP
DBM10749-B Texas 78758 NAP
DBM10982 Michigan 48313 8.4500 Fixed 8,930,000.00 8,912,122.40 116 4/1/10
DBM11067 Illinois 60559 8.7600 Fixed 8,200,000.00 8,172,390.69 113 1/1/10
DBM11301 Xxx Xxxxxx 00000 8.4920 Fixed 3,400,000.00 3,387,689.16 113 1/1/30
DBM11379 Virginia 23510 8.3500 Fixed 3,400,000.00 3,395,170.54 117 5/1/30
DBM11402 Xxxxxx 00000 8.5800 Fixed 6,155,000.00 6,140,857.01 115 3/1/10
DBM11414 Xxx Xxxxxx 00000 8.9000 Fixed 14,000,000.00 13,946,088.77 115 3/1/30
DBM11651 Xxx Xxxxxx 00000 8.6700 Fixed 3,100,000.00 3,093,071.81 295 3/1/25
DBM11828 Pennsylvania 19106 8.5900 Fixed 7,550,000.00 7,535,472.06 116 4/1/10
DBM12061 California 90057 8.6000 Fixed 8,850,000.00 8,841,571.19 118 6/1/30
A-2
LOAN
NUMBER NAME ADDRESS CITY
DBM1685 Pacific Point Apartments 1714-1746 Ximeno Ave. & 0000-0000 Xxxx Xxxxxxxx Xxxxxx Xxxx Xxxxx
DBM3794 Gold Coast Galleria East 1021-1029 North Xxxxx Street Chicago
DBM5774 Xxxxxxxxx Run Apartments 000 Xxx Xxxx Xxxxxxxxxx
DBM6173 Technology Station 000-000 Xx Xxxxxx Xxxx Xxxxx Xxxxx
DBM6288 Centereach Mall 0000 Xxxxxx Xxxxxxx Xxxx Xxxxxxxxxx
XXX0000 Mobile Holiday Inn 000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxx
XXX0000 Woodbury Shopping Center 000 Xxxxxxxx Xxxx Xxxxxxxxxx
DBM8009 0000 Xxxxx 00xx Xxxxxx 0000 X 00 Xxxxxxx & 0000 X 00xx Xxxxxx Xxxxxxxxx
DBM8484 Portsmouth Industrial Building 125 Aviation Avenue Portsmouth
DBM8646 Autumn Oaks Apartments 000 Xxxx Xxxxxx Xxxx Xxxxxxx
XXX0000 000 X. Xxxx Xxxxxx 000 X. Xxxx Xxxxxx Xxxxxxxxxx
DBM8977 Fashion Terrace Apartments 0000 Xxxxxx Xxxx Xxx Xxxxx
DBM9440 Sugar Creek Apartments Various Various
DBM9440-A Sugar Creek Apartments 000 Xxxxxx Xxxxxx Normal
DBM9440-B Xxxxxxxxx Xxxxxxxxxx 000 Xxxxxx Xxxxxx Normal
DBM9551 Xxxxxxxxx Xxxxxxx Xxxxxxxxxx 0000 00xx Xxxxxx Xxxxxxxxx
DBM9724 X'Xxxxxx Portfolio Various Various
DBM9724-A Cross Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 000X - 000X Xxxxxxxxx Drive Conover
DBM9724-B Denver Lake Shopping Center 6097 - 0000 Xxxxx Xxx. 00 Xxxxxx
DBM9724-C Village of Wendell Shopping Center 000-000 XX Xxxxxxx 00 Wendell
DBM9724-D Northside Square Shopping Center 1100 - 0000 Xxxxxxxx Xxxx Xxxxxxxxxx
DBM9724-E River Park Shopping Center 1092 - 0000 Xxxxxx Xxxx Xxxxx 00 Xxxxxx
LOAN INTEREST RATE ORIGINAL CUT-OFF DATE REMAINING MATURITY
NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE
DBM1685 California 90815 7.3800 Fixed 11,905,695.00 11,803,024.10 87 4/1/29
DBM3794 Illinois 60610 7.5800 Fixed 3,200,000.00 3,147,693.40 99 11/1/28
DBM5774 Xxx Xxxxxx 00000 8.3400 Fixed 9,000,000.00 8,966,072.17 113 1/1/10
DBM6173 California 95050 7.6050 Fixed 37,200,000.00 36,811,929.25 104 4/1/29
DBM6288 Xxx Xxxx 00000 8.1700 Fixed 23,300,000.00 23,197,883.67 112 12/1/09
DBM7785 Alabama 36609 8.7600 Fixed 4,000,000.00 3,973,509.23 112 12/1/09
DBM7884 Xxx Xxxx 00000 7.8600 Fixed 7,000,000.00 6,949,369.13 108 8/1/09
DBM8009 Florida 33020 8.5100 Fixed 4,968,000.00 4,950,097.13 113 1/1/10
DBM8484 Xxx Xxxxxxxxx 00000 8.5200 Fixed 3,000,000.00 2,988,061.99 112 12/1/09
DBM8646 Xxxxxxxxxx 00000 7.7800 Fixed 5,100,000.00 5,068,822.90 110 10/1/09
DBM8925 Virginia 22314 8.9350 Fixed 4,350,000.00 4,336,049.27 113 1/1/10
DBM8977 California 92108 7.9100 Fixed 4,550,000.00 4,528,629.09 112 12/1/09
DBM9440 Various Various 8.2900 Fixed 3,200,000.00 3,187,777.42 113 1/1/10
XXX0000-X Xxxxxxxx 00000 NAP
DBM9440-B Illinois 61761 NAP
DBM9551 Minnesota 55901 8.1500 Fixed 16,400,000.00 16,316,457.73 111 11/1/09
DBM9724 Various Various 8.5700 Fixed 10,185,000.00 10,165,289.66 116 4/1/30
DBM9724-A Xxxxx Xxxxxxxx 00000 NAP
DBM9724-B Xxxxx Xxxxxxxx 00000 NAP
DBM9724-C Xxxxx Xxxxxxxx 00000 NAP
DBM9724-D Xxxxx Xxxxxxxx 00000 NAP
DBM9724-E Virginia 24179 NAP
A-3
LOAN
NUMBER NAME ADDRESS CITY
DBM9724-A Cross Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 000X - 000X Xxxxxxxxx Drive Conover
DBM9724-B Denver Lake Shopping Center 6097 - 0000 Xxxxx Xxx. 00 Xxxxxx
DBM9724-C Village of Wendell Shopping Center 000-000 XX Xxxxxxx 00 Wendell
DBM9724-D Northside Square Shopping Center 1100 - 0000 Xxxxxxxx Xxxx Xxxxxxxxxx
DBM9724-E River Park Shopping Center 1092 - 0000 Xxxxxx Xxxx Xxxxx 00 Xxxxxx
LOAN INTEREST RATE ORIGINAL CUT-OFF DATE REMAINING MATURITY
NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE
DBM9724-A Xxxxx Xxxxxxxx 00000 NAP
DBM9724-B Xxxxx Xxxxxxxx 00000 NAP
DBM9724-C Xxxxx Xxxxxxxx 00000 NAP
DBM9724-D Xxxxx Xxxxxxxx 00000 NAP
DBM9724-E Virginia 24179 NAP
ANTICIPATED DAY CREDIT
REPAYMENT PAYMENT MONTHLY LEASE
LOAN NUMBER NAME DATE DUE PAYMENT ARD LOAN LOAN
DBM10100 Xxxxxxxxx Portfolio 3/1/10 1 149,254.70 Yes
DBM10118 Mervyn's Plaza 1 23,044.20 No
DBM10304 Riverside Green Apartments 4/1/10 1 28,626.58 Yes
DBM10594 Bulova Technologies Building 5/1/10 1 51,793.57 Yes
DBM10627 Chesterfield Crossing 1 5,545.03 No
DBM10628 Xxxxxxx'x Village Square 1 8,949.44 No
DBM10749 Xxxx Xxxxxx & Xxxxxxxxx Xxxxxx Xxxxxxxxx 0/0/00 0 29,158.88 Yes
DBM10749-A Wall Street Service Center NAP
DBM10749-B Xxxxxxxxx Xxxxxx Xxxxxxxx XXX
XXX00000 Eastlake Commons 1 68,347.75 No
DBM11067 Brush Hill Office Courte 1 64,568.01 No
BROKER ADDITIONAL
STRIP SERVICING
LOAN NUMBER DEFEASANCE LOAN FEE LOAN SERVICING FEE
DBM10100 Lock/29_Defeasance/87_0%/4 0.0575
DBM10118 Lock/29_Defeasance/87_0%/4 0.0575
DBM10304 Lock/48_Defeasance/68_0%/4 0.0575
DBM10594 Lock/27_Defeasance/89_0%/4 0.0575
DBM10627 Lock/59_> YM or 1%/57_0%/4 0.0575
DBM10628 Lock/47_> YM or 1%/69_0%/4 0.0575
DBM10749 Lock/35_Defeasance/81_0%/4 0.0575
DBM10749-A NAP
DBM10749-B NAP
DBM10982 Lock/28_Defeasance/88_0%/4 0.0575
DBM11067 Lock/31_Defeasance/85_0%/4 0.0575
A-4
ANTICIPATED DAY CREDIT
REPAYMENT PAYMENT MONTHLY LEASE
LOAN NUMBER NAME DATE DUE PAYMENT ARD LOAN LOAN
DBM11301 Tory Estates 1/1/10 1 26,123.78 Yes
DBM11379 City Centre Office Building 5/1/10 1 25,782.48 Yes
DBM11402 Xxxxxxx Xxxx Apartments 1 47,676.03 No
DBM11414 536 & 000 Xxxxxxx Xxxxxx 3/1/10 1 116,530.28 Yes
DBM11651 Briarwood Manor Apartments 1 24,210.80 No
DBM11828 The Lafayette Building 1 58,535.22 No
DBM12061 County of Los Angeles Office Building 6/1/10 1 68,677.04 Yes
DBM1685 Pacific Point Apartments 11/1/07 1 82,270.25 Yes
DBM3794 Gold Coast Galleria East 11/1/08 1 22,550.42 Yes
DBM5774 Xxxxxxxxx Run Apartments 1 68,184.27 No
DBM6173 Technology Station 4/1/09 1 262,787.65 Yes
DBM6288 Centereach Mall 1 173,736.44 No
DBM7785 Mobile Holiday Inn 1 32,912.93 No
DBM7884 Woodbury Shopping Center 1 50,682.00 No
DBM8009 0000 Xxxxx 00xx Xxxxxx 1 38,234.97 No
DBM8484 Portsmouth Industrial Building 1 23,109.94 No
DBM8646 Autumn Oaks Apartments 1 36,642.81 No
DBM8925 000 X. Xxxx Xxxxxx 1 34,797.83 No
DBM8977 Fashion Terrace Apartments 1 33,101.26 No
DBM9440 Sugar Creek Apartments 1 24,130.58 No
BROKER ADDITIONAL
STRIP SERVICING
LOAN NUMBER DEFEASANCE LOAN FEE LOAN SERVICING FEE
DBM11301 Lock/31_Defeasance/85_0%/4 0.0575
DBM11379 Lock/27_Defeasance/89_0%/4 0.0575
DBM11402 Lock/29_Defeasance/87_0%/4 0.0575
DBM11414 Lock/29_Defeasance/87_0%/4 0.0575
DBM11651 Lock/29_Defeasance/91_> YM or 1%/119_1%/57_0%/4 0.0575
DBM11828 Lock/28_Defeasance/88_0%/4 0.0575
DBM12061 Lock/26_Defeasance/90_0%/4 0.0575
DBM1685 Lock/57_Defeasance/59_0%/4 0.0575
DBM3794 Lock/59_Defeasance/57_0%/4 0.0575
DBM5774 Lock/31_Defeasance/85_0%/4 0.0575
DBM6173 Lock/71_> YM or 1%/45_0%/4 0.0575
DBM6288 Lock/47_Defeasance/69_0%/4 0.0575
DBM7785 Lock/35_Defeasance/81_0%/4 0.0575
DBM7884 Lock/35_Defeasance/81_0%/4 0.0575
DBM8009 Lock/31_Defeasance/85_0%/4 0.0575
DBM8484 Lock/47_Defeasance/69_0%/4 0.0575
DBM8646 Lock/35_Defeasance/81_0%/4 0.0575
DBM8925 Lock/35_Defeasance/81_0%/4 0.0575
DBM8977 Lock/32_Defeasance/84_0%/4 0.0575
DBM9440 Lock/31_Defeasance/85_0%/4 0.0575
A-5
ANTICIPATED DAY CREDIT
REPAYMENT PAYMENT MONTHLY LEASE
LOAN NUMBER NAME DATE DUE PAYMENT ARD LOAN LOAN
DBM9440-A Sugar Creek Apartments NAP
DBM9440-B Crestwood Apartments NAP
DBM9551 Rochester Village Apartments 1 122,056.69 No
DBM9724 X'Xxxxxx Portfolio 4/1/10 1 78,819.67 Yes
DBM9724-A Cross Country Village Shopping Center NAP
DBM9724-B Denver Lake Shopping Center NAP
DBM9724-C Village of Wendell Shopping Center NAP
DBM9724-D Northside Square Shopping Center NAP
XXX0000-X Xxxxx Xxxx Xxxxxxxx Xxxxxx NAP
BROKER ADDITIONAL
STRIP SERVICING
LOAN NUMBER DEFEASANCE LOAN FEE LOAN SERVICING FEE
DBM9440-A NAP
DBM9440-B NAP
DBM9551 Lock/33_Defeasance/83_0%/4 0.0575
DBM9724 Lock/28_Defeasance/88_0%/4 0.0575
DBM9724-A NAP
DBM9724-B NAP
DBM9724-C NAP
DBM9724-D NAP
DBM9724-E NAP
A-6
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the originator, without recourse, either in
blank or to the order of the Trustee in the following form: "Pay to the order of
Xxxxx Fargo Bank Minnesota, N.A., as trustee for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
2000-C2, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the Trustee or,
if none, by the originator, either in blank or in favor of the Trustee (in such
capacity);
(iv) the original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in recordable form, executed by
the most recent assignee of record thereof prior to the Trustee or, if none, by
the originator, either in blank or in favor of the Trustee (in such capacity),
which assignment may be included as part of the corresponding assignment of
Mortgage referred to in clause (iii) above;
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if applicable, the originals
or copies of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement (if such
item is a document separate from the Mortgage) executed by the most recent
assignee of record thereof prior to the Trustee or, if none, by the originator,
either in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage referred to
in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon if
appropriate, in those instances
B-1
where the terms or provisions of the Mortgage, Mortgage Note or any related
security document have been modified or the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy,
together with all endorsements or riders (or copies thereof) that were issued
with or subsequent to the issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgaged Property;
(x) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan together with (A) if applicable, the original
or copies of any intervening assignments of such guaranty showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee thereof prior to the Trustee, if any, and (B) an original assignment of
such guaranty executed by the most recent assignee thereof prior to the Trustee
or, if none, by the originator;
(xi) (A) file or certified copies of any UCC financing statements and
continuation statements which were filed in order to perfect (and maintain the
perfection of) any security interest held by the originator of the Mortgage Loan
(and each assignee of record prior to the Trustee) in and to the personalty of
the mortgagor at the Mortgaged Property (in each case with evidence of filing
thereon) and which were in the possession of the Seller (or its agent) at the
time the Mortgage Files were delivered to the Trustee and (B) if any such
security interest is perfected and the earlier UCC financing statements and
continuation statements were in the possession of the Seller, a UCC financing
statement executed by the most recent assignee of record prior to the Trustee
or, if none, by the originator, evidencing the transfer of such security
interest, either in blank or in favor of the Trustee;
(xii) the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the Mortgagor if the Mortgage,
Mortgage Note or other document or instrument referred to above was signed on
behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
(xiv) if the Mortgage Loan is a Credit Lease Loan, an original of the
credit lease enhancement insurance policy, if any, obtained with respect to such
Mortgage Loan and an original of the residual value insurance policy, if any,
obtained with respect to such Mortgage Loan;
(xv) the original or a copy of any lockbox agreement or deposit account
or similar agreement;
(xvi) the original or a copy of any intercreditor agreement with
respect to the Mortgage Loan; and
(xvii) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
provided that, with respect to the loan number DMB7884, the Mortgage File shall
also include a copy of the executed REMIC declaration relating thereto; provided
further that whenever the
B-2
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. The original assignments referred to in clauses (iii),
(v), (vii) and (x)(B), may be in the form of one or more instruments in
recordable form in any applicable filing offices.
B-3
EXHIBIT C
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 C-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. 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 related Mortgage constitutes a valid
first lien upon the related Mortgaged Property, including all buildings located
thereon and all fixtures attached thereto, such lien being subject only to (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, and (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 (the
exceptions set forth in the foregoing clauses (A), (B) and (C) collectively,
"Permitted Encumbrances"). The Permitted Encumbrances 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
C-1
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 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. To the Seller's
actual knowledge, the insurer that issued such Title Policy is qualified to do
business in the state in which the related Mortgaged Property is located.
(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
C-2
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 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.
C-3
(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. Except in the case
of one Mortgage Loan as to which the interest of the related Mortgagor in the
related Mortgaged Property is in whole or in part a leasehold estate, the
interest of the related Mortgagor in the related Mortgaged Property consists of
a fee simple estate 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 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.
C-4
(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 (except for
hyper-amortization loans with respect to unpaid interest accruing after the
anticipated repayment date).
(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.
C-5
(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 Treasury Regulations Section
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) Credit Lease Loans. With respect to each Mortgage Loan which is
a Credit Lease Loan:
(A) To the Seller's knowledge, each credit lease ("Credit Lease")
contains customary and enforceable provisions which render the
rights and remedies of the lessor thereunder adequate for the
enforcement and satisfaction of the lessor's rights
thereunder;
C-6
(B) To the Seller's knowledge, in reliance on a tenant estoppel
certificate and representation made by the tenant under the
Credit Lease or representations made by the related borrower
under the Mortgage Loan Documents, as of the closing date of
each Credit Lease Loan (1) each Credit Lease was in full force
and effect, and no default by the borrower or the tenant has
occurred under the Credit Lease, nor is there any existing
condition which, but for the passage of time or the giving of
notice, or both, would result in a default under the terms of
the Credit Lease, (2) none of the terms of the Credit Lease
have been impaired, waived, altered or modified in any respect
(except as described in the related tenant estoppel), (3) no
tenant has been released, in whole or in part, from its
obligations under the Credit Leases, (4) there is no right of
rescission, offset, abatement, diminution, defense or
counterclaim to any Credit Lease, nor will the operation of
any of the terms of the Credit Leases, or the exercise of any
rights thereunder, render the Credit Lease unenforceable, in
whole or in part, or subject to any right of rescission,
offset, abatement, diminution, defense or counterclaim, and no
such right of rescission, offset, abatement, diminution,
defense or counterclaim has been asserted with respect
thereto, and (5) each Credit Lease has a term ending on or
after the final maturity of the related Credit Lease Loan;
(C) The Mortgaged Property is not subject to any lease other than
the related Credit Lease, no Person has any possessory
interest in, or right to occupy, the Mortgaged Property except
under and pursuant to such Credit Lease and the tenant under
the related Credit Lease is in occupancy of the Mortgaged
Property;
(D) The lease payments under the related Credit Lease are
sufficient to pay the entire amount of scheduled interest and
principal on the Credit Lease Loan, subject to the rights of
the Tenant to terminate the Credit Lease or offset, xxxxx,
suspend or otherwise diminish any amounts payable by the
tenant under the Credit Lease. Each Credit Lease Loan either
(i) fully amortizes over its original term and has no
"balloon" payment of rent due under the related Credit Lease
or (ii) is a Balloon Loan, for which a residual value
insurance policy has been obtained that requires the payment
of an amount at least equal to the Balloon Payment due on the
related Maturity Date;
(E) Under the terms of the Credit Leases, the lessee is not
permitted to assign its interest or obligations under the
Credit Lease unless such lessee remains fully liable
thereunder;
(F) The mortgagee is entitled to notice of any event of default
from the tenant under Credit Leases;
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(G) Each tenant under a Credit Lease is required to make all
rental payments directly to the mortgagee, its successors and
assigns under the related Credit Lease Loan;
(H) Each Credit Lease Loan provides that the related Credit Lease
cannot be modified without the consent of the mortgagees under
the related Credit Lease Loan;
(I) For each Credit Lease Loan under which a Credit Lease may be
terminated upon the occurrence of a casualty or condemnation,
a lease enhancement insurance policy has been obtained that
requires upon such termination the payment in full of: (a) the
principal balance of the loan and (b) all accrued and unpaid
interest on the Mortgage Loan. Under the Credit Lease for each
Credit Lease Loan, upon the occurrence of a casualty or
condemnation, the tenant has no right of rent abatement,
except to the extent of coverage provided by the related lease
enhancement insurance policy; and
(J) The terms of any guaranty of the payment and performance
obligations of the tenant under any Credit Lease are
unconditional and provide for guaranty of payment and not of
collection.
(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 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 or (2) 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
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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 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
C-9
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 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.
C-10
(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 August 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.
(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) Miscellaneous. Seller represents and warrants with respect to
[DBM 10100] that neither Seller nor the originator of such Loan, has committed,
or knowingly, intentionally or negligently aided and abetted the commission of,
any fraud in connection with or in any way related to the origination of such
Loan and to the best knowledge of Seller, Borrower has not committed any fraud
with regard to, or in any way related to, the origination of such Loan against
the Seller, the originator or the limited partners in Borrower.
C-11
It is understood and agreed that the representations and warranties set
forth in this Exhibit C shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
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SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
(xxix) Licenses, Permits, Etc.
Loan Number Property Issue
----------- -------- -----
DBM8009 4200 North 29th The zoning letter listed two expired permits for fire
alarms and one expired permit for interior demolition. The
Borrower has not obtained a Certificate of Occupancy.
(xxxvi) Litigation.
Loan Number Property Issue
----------- -------- -----
DBM5774 Xxxxxxxxx Run Apts Litigation involving a disputed broker fee in the amount
of $89,500 related to an attempted refinancing of the
property.
DBM10100 Xxxxxxxxx Portfolio The Borrower is currently involved in litigation with
Nantucket Island Associates Limited Partnership.
(xxxvii)(B) Leasehold Estate
Loan Number Property Issue
----------- -------- -----
DBM8484 Portsmouth Industrial Building The Ground Lessor is actually a lessee under another
lease. Accordingly, the Ground Lessee's interest is
subject to another interest of equal or greater priority
to the Mortgage.
(xliv) Single Purpose Entity.
Loan Number Property Issue
----------- -------- -----
DBM10627 Chesterfield Crossing The Borrower is not a Single Purpose Entity.
DBM10628 Xxxxxxx The Borrower is an individual and therefore cannot be a
Single Purpose Entity.
DBM10100 Xxxxxxxxx Portfolio The Borrower is a Massachusetts nominal trust and cannot
be a Single Purpose Entity. However, the Borrower,
however, cannot be a
C-1-1
debtor in bankruptcy and the beneficiary of the Borrower
is a Single Purpose Entity.
(xlv) Defeasance Provisions.
Loan Number Property Issue
----------- -------- -----
DBM7784 Woodbury Woodbury The Borrower is permitted to defease the loan
beginning August 1, 2002.
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF AN OFFICER OF THE SELLER
Certificate of Officer of German American Capital Corporation (the "Seller")
----------------------------------------------------------------------------
I,_________________________, a ____________________________ of the Seller,
hereby certify as follows:
The 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 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 Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Seller and his genuine signature is set
forth opposite his name:
NAME OFFICE SIGNATURE
---------------------- --------------------------- ---------------------------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of August 8, 2000 (the
"Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the 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.
D-1-1
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
August , 2000.
By:
------------------------------
Name:
Title:
I, ___________________________, ___________________________, hereby certify
that ___________________________ is a duly elected or appointed, as the case may
be, qualified and acting ___________________________ of the Seller and that the
signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
August __, 2000.
By:
------------------------------
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SELLER
Certificate of German American Capital Corporation
In connection with the execution and delivery by German American Capital
Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
August 8, 2000 (the "Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. and the Seller, the Seller hereby certifies that (i) the
representations and warranties of the Seller in the Purchase Agreement are true
and correct in all material respects at and as of the date hereof with the same
effect as if made on the date hereof, and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the date hereof.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Purchase Agreement.
Certified this ___ day of August, 2000.
GERMAN AMERICAN CAPITAL CORPORATION
By:
------------------------------------
Name:
Title:
D-2-1
