EXHIBIT 99.3
EXECUTION COPY
SUPPLEMENTAL AGREEMENT
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This Supplemental Agreement (this "Agreement"), is dated and effective
as of August 8, 2000, among GMAC Commercial Mortgage Corporation, as seller (the
"Seller"), and Salomon Brothers Realty Corp., as purchaser (the "Purchaser"),
and GMAC Commercial Mortgage Securities, Inc., as depositor (the "Depositor").
WHEREAS, the Seller sold certain mortgage loans to the Purchaser
pursuant to a certain Mortgage Loan Purchase Agreement dated June 28, 1999, a
certain Mortgage Loan Purchase Agreement, dated as of September 29, 1999, a
certain Mortgage Loan Purchase Agreement, dated as of December 29, 1999 and a
certain Mortgage Loan Purchase Agreement, dated as of March 30, 2000 (each a
"Salomon Purchase Agreement" and collectively the "Salomon Purchase
Agreements").
WHEREAS, the Purchaser intends to sell the multifamily and commercial
mortgage loans (the "Securitization Loans") identified on the schedule annexed
hereto as Exhibit A-1 and the multifamily commercial mortgage loans (the
"Repurchased Mortgage Loans," and with the Securitization Mortgage Loans, the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A-2 (such
schedules, collectively, the "Mortgage Loan Schedules"); provided, however, that
with respect to the Mortgage Loans identified on the Mortgage Loan Schedule in
Exhibit A-1 as loan numbers 00-0000000 and 00-0000000, "Mortgage Loan" shall,
with respect to loan number 00-0000000, mean the REMIC regular interest and the
REMIC residual interest in the single-asset REMIC established with respect to
such Mortgage Loan by the REMIC Declaration made by the Purchaser on May 23,
2000, and, with respect to loan number 00-0000000, mean the REMIC regular
interest and the REMIC residual interest in the single-asset REMIC established
with respect to such Mortgage Loan by the REMIC Declaration made by the
Purchaser on April 27, 2000.
WHEREAS, It is expected that the Securitization Mortgage Loans will be
transferred, together with other multifamily and commercial mortgage loans and
mortgage assets, to a trust fund (the "Trust Fund") to be formed by the
Depositor, beneficial ownership of which will be evidenced by a series of
mortgage pass-through certificates (the "Certificates"). Certain classes of the
Certificates will be rated by Standard and Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. and Fitch Inc. (together, the "Rating
Agencies"). Certain classes of the Certificates will be registered under the
Securities Act of 1933, as amended. 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
Depositor as depositor, GMAC Commercial Mortgage Corporation as master servicer
(in such capacity, the "Master Servicer") and 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 (as defined
below).
WHEREAS, the Depositor 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 as of the date hereof; the Depositor 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 dated as of the date hereof; and the Depositor 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").
WHEREAS, each of the Seller and the Purchaser, in connection with the
transactions described above, desires to amend and supplement certain of the
provisions of the Salomon Purchase Agreements as they relate to the Mortgage
Loans in order to facilitate such transactions.
WHEREAS, the Seller desires to make certain representations and
warranties for the benefit of the Depositor in connection with the transaction
described above.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Amendment of Salomon Purchase Agreements.
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The parties hereto agree that, with respect to the Mortgage Loans only,
the Salomon Purchase Agreements are hereby amended to the extent that the
provisions of the Salomon Purchase Agreements are inconsistent with this
Agreement.
SECTION 2. Representations, Warranties and Covenants of the Seller.
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(a) The Seller hereby makes, as of August 17, 2000 (the "Closing
Date") (or as of such other date specifically provided in the particular
representation or warranty), to and for the benefit of the Depositor and its
successors and assigns (including, without limitation, the Trustee and the
holders of the Certificates), each of the representations and warranties set
forth in Exhibit B, with 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 and the Depositor that:
(i) The Seller is a corporation, duly organized, validly existing
and in good standing under the laws of the State of California, and is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each Mortgage
Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller,
and the performance and compliance with the terms of this Agreement by the
Seller, will not violate the Seller's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
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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, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Seller's good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(vi) No litigation is pending with regard to which Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller the outcome of which, in the Seller's good faith
and reasonable judgment, could reasonably be expected to prohibit the Seller
from entering into this Agreement or materially and adversely affect either the
ability of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the Underwriters, the
Initial Purchasers and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans or
the consummation of any of the other transactions contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority or court
is required, under federal or state law (including, with respect to any bulk
sale laws), for the execution, delivery and performance of or compliance by the
Seller with this Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such consents, approvals, authorizations,
qualifications, registrations, filings or notices as have been obtained or made
and (2) where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on the
performance by the Seller under this Agreement.
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(c) Upon discovery by any of the Seller, the Depositor or its successors or
assigns 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, the Depositor or their successors or assigns or
upon the discovery by any of the Seller, the Depositor or its successors or
assigns of a breach of any of the representations and warranties made pursuant
to subsection (a) above and set forth in Exhibit B which materially and
adversely affects the value of any Mortgage Loan or the interests therein of the
Depositor or its successors and assigns (including, without limitation, the
Trustee and the holders of the Certificates), the party (or, if applicable,
successor or assignee) discovering such breach shall give prompt written notice
to the Purchaser, the Seller or the Depositor and, if applicable, any assignee
of the Depositor; it being understood that the Purchaser shall have no
obligation to provide notice (written or otherwise) of a breach of any
representation or warranty made pursuant to this Section 2 or any Defect
pursuant to Section 4; provided, however, that this shall in no way limit the
Purchaser's rights to the benefits of the representations and warranties made
pursuant to Section 2(b) hereof or Section 4.1 of the Salomon Purchase
Agreements.
SECTION 3. Representations, Warranties and Covenants of the Purchaser.
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(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller and the Depositor that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of New York.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this Agreement
by the Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable to
it or any of its assets, in each case which materially and adversely affect the
ability of the Purchaser to carry out the transactions contemplated by this
Agreement.
(iii) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and has
duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law, and (C) public
policy considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
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(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 with regard to which Purchaser has
received service of process or, to the best of the Purchaser's knowledge,
threatened against the Purchaser which in the Purchaser's good faith and
reasonable judgment, could prohibit the Purchaser from entering into this
Agreement or 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 Depositor and its
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) The Purchaser hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Seller and its successors and assigns, with respect to
each Mortgage Loan each of the representations and warranties set forth below:
(i) Immediately prior to the transfer thereof to the Depositor,
the Purchaser had whatever title to such Mortgage Loan as was conveyed to it by
Seller pursuant to the Salomon Purchase Agreements, free and clear of any and
all liens, encumbrances and other interests on, in or to such Mortgage Loan
(other than, in certain cases, the right of a third party servicer to directly
service such Mortgage Loan) created by the Purchaser. Such transfer validly
assigns such title to such Mortgage Loan to the Depositor free and clear of any
pledge, lien, encumbrance or security interest created by the Purchaser;
(ii) The Purchaser has full right and authority to sell, assign
and transfer its interest in such Mortgage Loan;
(iii) The Purchaser has not done anything that would materially
impair the coverage under the lender's title insurance policy that insures the
lien of the related Mortgage;
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(iv) The Purchaser has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage or
Mortgage Note;
(v) To the Purchaser's actual knowledge, without independent
inquiry as to the provisions of the Mortgage Loans, there is no valid offset,
defense or counterclaim to such Mortgage Loan arising out of the Purchaser's
actions or holding of the Mortgage Loans; and
(vi) The terms of the related Mortgage and the Mortgage Note
have not been impaired, waived, altered or modified by the Purchaser in any
material respect, except as specifically set forth in the related Mortgage File;
provided that, with respect to the representations and warranties in clauses
(iii), (iv), (v) and (vi) above, such representations and warranties cover only
actions taken directly by the Purchaser and its Affiliates or taken by the
Seller at the direction of the Purchaser (and does not cover any actions taken
by any custodian or servicer of the Purchaser or its Affiliates, other than as
taken at the direction of the Purchaser).
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 4. Repurchases.
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(a) Within 90 days of the earlier of discovery or receipt of notice by
the Seller, from either the Depositor or any successor or assign thereof, as
applicable, of a Defect (as defined in the Pooling and Servicing Agreement as in
effect on the Closing Date) in respect of the Mortgage File for any Mortgage
Loan or a breach of any representation or warranty made pursuant to Section 2(a)
and set forth in Exhibit B (a "Breach"), which Defect or Breach, as the case may
be, materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Depositor 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 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 Depositor or any successor or assign thereof, which corrected
Mortgage Loan Schedule shall be deemed to amend and replace the existing
Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 4(a), within 60 days of the earlier of
discovery or receipt of
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notice by the Seller, from either the Depositor or any successor or assign
thereof, as applicable, that any Mortgage Loan does not constitute a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code, the Seller shall
repurchase such Mortgage Loan from the then owner(s) thereof at the applicable
Purchase Price by payment of such Purchase Price by wire transfer of immediately
available funds to the account designated by such owner(s).
In addition, if, as of the Closing Date, any Mortgage Loan is secured
by a Mortgage that does not constitute a valid first lien upon the related
Mortgaged Property, including all buildings located thereon and all fixtures
attached thereto, or if a Mortgage is subject to something other than (A) the
lien of current real property taxes and assessments not yet due and payable, (B)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record, (C) exceptions and exclusions specifically referred to
in the lender's title insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan and (D) those
exceptions set forth on Schedule B-1 to Exhibit B hereto (the exceptions set
forth in the foregoing clauses (A), (B), (C) and (D) collectively, "Permitted
Encumbrances"), or if the insurer that issued the Title Policy referred to in
clause (vi) of Exhibit B hereto in respect of any Mortgage Loan was not
qualified to do business in the state in which the related Mortgaged Property is
located, and in either case such failure materially and adversely affects the
interests of the Depositor or its successors or assigns (including the Trustee
or the holders of Certificates) (any such failure that materially and adversely
affects the interests of holders of Certificates, also a "Breach"), the Seller
shall be required, at its option, to either (i) cure such Breach in all material
respects or (ii) repurchase the affected Mortgage Loan, in each case, within the
applicable Permitted Cure Period (as defined below). 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 Depositor or its
assignee at the applicable Purchase Price or (ii) if within the three-month
period commencing on the Closing Date (or within the two-year period commencing
on the Closing Date if the related Mortgage Loan is a "defective obligation"
within the meaning of Section 860(a)(4)(B)(ii) of the Code and Treasury
Regulation Section 1.860G-2(f)), at its option, replace such Mortgage Loan with
a Qualifying Substitute Mortgage Loan and pay any corresponding Substitution
Shortfall Amount. The Seller agrees that any such repurchase or substitution
shall be completed in accordance with and subject to the terms and conditions of
the Pooling and Servicing Agreement.
For purposes of the preceding paragraph only, the "Permitted Cure
Period" applicable to any Breach in respect of any Mortgage Loan shall be the
90-day period immediately following the earlier of the discovery by the Seller
or receipt by the Seller of notice of such Breach; provided that if such Breach
cannot be corrected or cured in all material respects within such 90-day period,
but it is reasonably likely that such Breach could be corrected or cured within
180 days of the earlier of discovery by the Seller and receipt by the Seller of
notice of such Breach, and the Seller is diligently attempting to effect such
correction or cure, then the applicable Permitted Cure Period shall, with the
consent of the Depositor 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
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Defect resulting solely from a delay caused by the public recording or filing
office where a document has been sent for recording or filing.
(c) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 4, the then owner(s) thereof shall
tender or cause to be tendered promptly to the Seller, upon delivery of a
receipt executed by the Seller, the related Mortgage File and Servicing File,
and each document that constitutes a part of the Mortgage File that was endorsed
or assigned to the Purchaser or the Trustee shall be endorsed or assigned, as
the case may be, to the Seller or its designee in the same manner. The form and
sufficiency of all such instruments and certificates shall be the responsibility
of the Seller.
(d) This Section 4 provides the sole remedies available to the Depositor,
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 2(a) and set
forth in Exhibit B, or in connection with the circumstances described in Section
4(b). If the Seller defaults on its obligations to repurchase or replace any
Mortgage Loan in accordance with Section 4(a) or 4(b) or disputes its obligation
to repurchase or replace any Mortgage Loan in accordance with either such
subsection, the Depositor 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 Depositor for all necessary and reasonable costs and
expenses incurred in connection with such enforcement. Notwithstanding anything
in this Agreement to the contrary, the Purchaser shall have no responsibility or
obligation to comply with, and shall have no liability to any assignee of the
Purchaser or the Depositor or any other person for the Seller's failure to
comply with, the Seller's obligations under this Section 4 or Sections 5(b), (c)
or (d) or otherwise.
(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 5. Conveyance of Mortgage Files.
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(a) In connection with the Purchaser's assignment of the Mortgage
Loans to the Depositor pursuant to the Mortgage Loan Purchase Agreement, the
Purchaser hereby covenants with the Seller that at least one (1) Business Day
before the Closing Date, it shall direct Xxxxx Fargo Corporate Trust Services,
as bailee for the Purchaser, upon payment of the Purchase Price as set forth in
the Mortgage Loan Purchase Agreement, to deliver or cause to be delivered to and
deposited with the Trustee, the Mortgage File (as described on Exhibit B to the
Mortgage Loan Purchase Agreement) for each Mortgage Loan so assigned to the
extent (and only to such extent) that such Mortgage File was delivered to the
Purchaser by the Seller. The Mortgage File shall be released by the Trustee in
accordance with Section 2(b) of the Mortgage Loan Purchase
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Agreement. In the event the Purchaser fails to so deliver each such Mortgage
File to the Trustee, the Seller and its successors and assigns shall be entitled
to pursue any rights or remedies in respect of such failure as may be available
under applicable law.
(b) For the benefit of the Purchaser and the Depositor and its successors
and assigns, the Seller acknowledges and agrees that the Depositor intends to
cause the Trustee to perform a limited review of the Mortgage Files relating to
the Mortgage Loans to enable the Trustee to confirm to the Depositor on or
before the Closing Date that the Mortgage Note referred to in clause (i) of
Exhibit B of the Mortgage Loan Purchase Agreement has been delivered to the
Trustee with respect to each such Mortgage File. If the original Mortgage Note
cannot be delivered to the Trustee for any reason, 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, as to any
Mortgage Loan, the original or a copy of any of the documents and/or instruments
referred to in clauses (ii), (iv), (viii), (xi)(A) and (xii) of Exhibit B of the
Mortgage Loan Purchase Agreement, with evidence of recording thereon, cannot be
delivered to the Trustee solely because of a delay caused by the public
recording or filing office where such document or instrument has been delivered
for recordation or filing, or because such original recorded document has been
lost or returned from the recording or filing office and subsequently lost, as
the case may be, the delivery requirements of this Section 5 shall be deemed to
have been satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that a copy
of such document or instrument (without evidence of recording or filing thereon,
but certified (which certificate may relate to multiple documents and/or
instruments) by the Seller to be a true and complete copy of the original
thereof submitted for recording or filing, as the case may be) has been
delivered to the Trustee on or before the Closing Date, and either the original
of such missing document or instrument, or a copy thereof, with evidence of
recording or filing, as the case may be, thereon, is delivered to or at the
direction of the Depositor or Trustee within 180 days of the Closing Date (or
within such longer period after the Closing Date as the Trustee (or such
subsequent owner) may consent to, which consent shall not be unreasonably
withheld so long as the Seller has provided the Depositor or Trustee with
evidence of such recording or filing, as the case may be, or has certified to
the Depositor or Trustee as to the occurrence of such recording or filing, as
the case may be, and is, as certified to the Trustee no less often than
quarterly, in good faith attempting to obtain from the appropriate county
recorder's or filing office such original or copy).
(c) If, as to any Mortgage Loan, the original or a copy of the related
lender's title insurance policy referred to in clause (ix) of Exhibit B of the
Mortgage Loan Purchase Agreement cannot be delivered to the Trustee solely
because such policy has not yet been issued, the delivery requirements of this
Section 5 shall be deemed to be satisfied as to such missing item, and such
missing item shall be deemed to have been included in the related Mortgage File,
provided that the Seller has delivered to the Trustee, on or before the Closing
Date, a commitment for title insurance "marked-up" at the closing of such
Mortgage Loan, and the Seller shall deliver to or at the direction of the
Depositor or Trustee, promptly following the receipt thereof, the original
related lender's title insurance policy (or a copy thereof). In addition,
notwithstanding anything to the contrary contained herein, if there exists with
respect to any group of related cross-collateralized Mortgage Loans only one
original of any document referred to in Exhibit B of the Mortgage Loan Purchase
Agreement covering all the Mortgage Loans in such group, then the inclusion of
the original of such document in the Mortgage File for any of the Mortgage Loans
in
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such group shall be deemed an inclusion of such original in the Mortgage File
for each such Mortgage Loan.
(d) As to each Mortgage Loan, the Seller shall be responsible for all
costs associated with (i) the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B to the Mortgage
Loan Agreement and each UCC-2 and UCC-3, if any, referred to in clause (xi)(B)
of Exhibit B to the Mortgage Loan Purchase Agreement and (ii) the delivery of a
copy of any such document or instrument to the Master Servicer promptly
following its return to the Trustee or its designee after such recording or
filing; provided that the Seller shall not be responsible for actually recording
or filing any such document or instrument. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Seller shall promptly prepare or cause the preparation of a
substitute therefor or cure or cause the curing of such defect, as the case may
be, and shall thereafter deliver the substitute or corrected document to or at
the direction of the Depositor or the Trustee for recording or filing, as
appropriate, at the Seller's expense.
SECTION 6. Agreement of the Seller.
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The Seller hereby agrees to provide the following documents to the
Purchaser in connection with the execution of this Agreement:
(a) An Officer's Certificate substantially in the form of Exhibit C
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser may rely, attaching thereto
as exhibits the organizational documents of the Seller; and
(b) Written opinions of counsel for the Seller, substantially in the
form of Exhibits D-1 and D-2 hereto 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.
SECTION 7. 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 8. Costs.
-----
Costs relating to the transactions contemplated hereby and in the
Mortgage Loan Purchase Agreement shall be borne by the Seller.
SECTION 9. Indemnification.
---------------
(a) The Purchaser (the "Indemnifying Party") agrees to indemnify
and hold harmless the Seller against any and all losses, claims, damages or
liabilities, joint or several, to which it may become subject insofar as such
losses, claims, damages or liabilities (or actions in respect
10
thereto) arise out of or are based upon the breach of any of the Purchaser's
representations or warranties contained in Section 3(b) of this Agreement. This
indemnity will be in addition to any liability which the Purchaser may otherwise
have.
(b) The indemnity agreement contained in this Section 9 shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, or (ii) any investigation made by any indemnified party.
SECTION 10. 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 11. 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 12. GOVERNING LAW.
-------------
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND
DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
EXCEPT THAT THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 13. Further Assurances.
------------------
The Seller, the Purchaser and the Depositor 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 14. 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 and
the Depositor, 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
11
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. Each of the Purchaser, the
Depositor and their respective assignees has the right to assign its interest
under this Agreement, in whole or in part. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser, the Depositor and their permitted successors and assigns.
Section 15. 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.
12
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
SALOMON BROTHERS REALTY CORP.
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
13
GMAC COMMERCIAL MORTGAGE SECURITIES,
INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
14
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
LOAN NUMBER NAME ADDRESS CITY STATE ZIP
00-0000000 Bladensburg Shopping 0000-0000 Xxxxxxxxx Xxxxxxxxxxx Xxxxxxxx 00000
Center Road
00-0000000 The Corners Shopping 0000 Xxxx 0xx Xxxxxx Xx. Xxxxx Xxxxx 00000
Center
00-0000000 Cypress Square Shopping 13451 XxXxxxxx Xxxx Xxxxx Xxxxxxx 00000
Center
00-0000000 The Shoppes at Kiln Creek 000 Xxxxx Xxxxxx Xxxxxxx Xxxx Xxxxxxxx 00000
00-0000000 Citrus Heights Plaza 0000 Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxxxxx 00000
Shopping Center Boulevard
00-0000000 Stonegate Apartments 1431 - 1439 Xxxxxxx Xxxxxxxxx Xxxxxxxxxxx 00000
Avenue
00-0000000 Carousel Ranch Mobile 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx 00000
Home Park Xxxxx Road
00-0000000 Gardena Village Shopping 00000 Xxxxx Xxxxxxx Xxxxxxx Xxxxxxxxxx 00000
Center Avenue
00-0000000 Advance Auto Parts Various Various Various Various
Retail (Combined)
01-1024948-A Advance Auto - Sayre 000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxxxx 00000
01-1024948-B Advance Auto - Wellsboro 000 Xxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxxx 00000
00-0000000 Sunset Pointe Apartments 00000-00000 XX 00xx Xxxxxxxx Xxxxxxxxxx 00000
Street
00-0000000 0000 X.X. 00xx Xxxxxx 0000 X.X. 00 Xxxxxx Xxxxx Xxxxxxx 00000
Apartments
00-0000000 Universal Shoppes Retail 6807 - 6809 Visitors Xxxxxxx Xxxxxxx 00000
Circle
00-0000000 Ralph's Xxxxxx Valley 00000 Xxxxxx Xxxxxx Xxxxxx Xxxxxxxxxx 00000
Retail Boulevard
00-0000000 East Colorado Boulevard 0000 Xxxx Xxxxxxxx Xxxxxxxx Xxxxxxxxxx 00000
Retail Boulevard
00-0000000 Sierra Xxxxxxx 0000 Xxxxxxxx Xxxxx Xxxxxx Xxxxxx 00000
Apartments (Richard's
Place)
LOAN NUMBER INTEREST RATE ORIGINAL CUT-OFF DATE REMAINING MATURITY
RATE TYPE BALANCE BALANCE TERM DATE
00-0000000 8.6250 Fixed 1,200,000.00 1,181,413.21 104 4/1/09
00-0000000 8.0000 Fixed 1,500,000.00 1,485,003.22 105 5/1/09
00-0000000 8.8750 Fixed 2,200,000.00 2,192,824.94 113 1/1/10
00-0000000 8.9700 Fixed 1,430,000.00 1,427,094.93 115 3/1/10
00-0000000 8.7500 Fixed 1,450,000.00 1,447,335.64 116 4/1/10
00-0000000 8.4200 Fixed 2,500,000.00 2,490,772.65 113 1/1/10
00-0000000 8.6250 Fixed 1,000,000.00 997,733.73 115 3/1/10
00-0000000 9.1250 Fixed 2,925,000.00 2,914,283.39 115 3/1/10
00-0000000 9.3000 Fixed 926,000.00 918,313.57 114 2/1/10
01-1024948-A
01-1024948-B
00-0000000 8.1900 Fixed 1,200,000.00 1,195,295.64 113 1/1/10
00-0000000 8.9900 Fixed 1,000,000.00 997,981.72 115 3/1/10
00-0000000 9.5000 Fixed 1,108,000.00 1,105,250.34 114 2/1/10
00-0000000 8.7500 Fixed 1,960,000.00 1,939,531.68 176 4/1/15
00-0000000 9.5000 Fixed 510,000.00 509,135.58 115 3/1/10
00-0000000 8.3900 Fixed 2,050,000.00 2,045,826.52 116 4/1/10
A-2
LOAN NUMBER NAME ANTICIPATED DAY MONTHLY
REPAYMENT PAYMENT PAYMENT
DATE DUE
00-0000000 Bladensburg Shopping 1 9,868.06
Center
00-0000000 The Corners Shopping 1 11,131.59
Center
00-0000000 Cypress Square Shopping 1 17,504.19
Center
00-0000000 The Shoppes at Kiln Creek 1 11,475.25
00-0000000 Citrus Heights Plaza 1 11,407.16
Shopping Center
00-0000000 Stonegate Apartments 1 19,081.28
00-0000000 Carousel Ranch Mobile 1 7,777.90
Home Park
00-0000000 Gardena Village Shopping 1 24,797.35
Center
00-0000000 Advance Auto Parts Retail 1 8,510.96
(Combined)
01-1024948-A Advance Auto - Sayre
01-1024948-B Advance Auto - Wellsboro
00-0000000 Xxxxxx Xxxxxx Xxxxxxxxxx 0 8,964.63
00-0000000 0000 X.X. 00xx Xxxxxx 1 8,039.03
Apartments
00-0000000 Universal Shoppes Retail 1 9,316.66
00-0000000 Ralph's Xxxxxx Valley 1 19,589.19
Retail
00-0000000 Xxxx Xxxxxxxx Xxxxxxxxx 1 4,288.36
Retail
00-0000000 Sierra Xxxxxxx Apartments 1 15,603.19
(Richard's Place)
LOAN NUMBER ARD CREDIT DEFEASANCE BROKER ADDITIONAL SERVICING
LOAN LEASE STRIP SERVICING FEE
LOAN LOAN FEE LOAN
00-0000000 No No Lock/36_Defeasance/80_0%/4 0.2575
00-0000000 No No Lock/35_Defeasance/81_0%/4 0.1325
00-0000000 No No Lock/31_Defeasance/85_0%/4 0.1325
00-0000000 No No Lock/29_Defeasance/87_0%/4 0.2575
00-0000000 No No Lock/28_Defeasance/88_0%/4 0.2575
00-0000000 No No Lock/31_Defeasance/85_0%/4 0.1325
00-0000000 No No Lock/29_Defeasance/87_0%/4 0.2575
00-0000000 No No Lock/29_Defeasance/87_0%/4 0.1325
00-0000000 No No Lock/30_Defeasance/86_0%/4 0.2575
01-1024948-A NAP NAP
01-1024948-B NAP NAP
00-0000000 No No Lock/31_Defeasance/82_0%/7 0.2575
00-0000000 No No Lock/29_Defeasance/87_0%/4 0.2575
00-0000000 No No Lock/30_Defeasance/86_0%/4 0.2575
00-0000000 No No Lock/28_Defeasance/148_0%/4 0.1325
00-0000000 No No Lock/29_Defeasance/87_0%/4 0.2575
00-0000000 No No Lock/28_Defeasance/88_0%/4 0.1325
A-3
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, except as set forth on Schedule B-1 hereto, that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer
thereof to the Purchaser, the Seller had good and marketable title to, and was
the sole owner and holder of, such Mortgage Loan, free and clear of any and all
liens, encumbrances and other interests on, in or to such Mortgage Loan (other
than, in certain cases, the right of a subservicer to directly service such
Mortgage Loan). Such transfer validly assigns ownership of such Mortgage Loan to
the Purchaser free and clear of any pledge, lien, encumbrance or security
interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right
and authority to sell, assign and transfer such Mortgage Loan to the Purchaser.
No provision of the Mortgage Note, Mortgage or other loan document relating to
such Mortgage Loan prohibits or restricts the Seller's right to assign or
transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct in
all material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the Cut-off Date
for such Mortgage Loan, and has not been during the twelve-month period prior
thereto, 30 days or more delinquent in respect of any debt service payment
required thereunder, without giving effect to any applicable grace period.
(v) Permitted Encumbrances. The Permitted Encumbrances (as defined in
the Mortgage Loan Purchase Agreement of which this Exhibit B forms a part) do
not materially interfere with the security intended to be provided by the
related Mortgage, the current use or operation of the related Mortgaged Property
or the current ability of the Mortgaged Property to generate net operating
income sufficient to service the Mortgage Loan. If the Mortgaged Property is
operated as a nursing facility, a hospitality property or a multifamily
property, the Mortgage, together with any separate security agreement, similar
agreement and UCC financing statement, if any, establishes and creates a first
priority, perfected security interest (subject only to any prior purchase money
security interest), to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in all
personal property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such
B-1
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.
(vii) No Waivers by Seller of Material Defaults. The Seller has not
waived any material default, breach, violation or event of acceleration existing
under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid offset,
defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of the
commencement of a proceeding for the condemnation of all or any material portion
of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage and all
other documents and instruments evidencing, guaranteeing, insuring or otherwise
securing such Mortgage Loan have been duly and properly executed by the parties
thereto, and each is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged Property
are insured under an "all risk" insurance policy against loss by hazards of
extended coverage in an amount (subject to a customary deductible) at least
equal to the full insurable replacement cost of the
B-2
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.
(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.
B-3
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties would
be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. The interest of the
related Mortgagor in the related Mortgaged Property consists of a fee simple
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 of the Mortgage Loan Purchase Agreement between
Salomon Brothers Realty Corp., as seller and GMAC Commercial Mortgage
Securities, Inc., as purchaser, dated August 8, 2000, constitutes the legal,
valid and binding assignment of such Mortgage from the relevant assignor to the
Trustee. The Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each Mortgage
Loan establishes and creates a valid, subsisting and, subject only to Permitted
Encumbrances, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, subleases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related Mortgage,
and each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases, not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form and constitutes a legal,
valid and binding assignment, sufficient to convey to the assignee named therein
all of the assignor's right, title and interest in, to and under such Assignment
of Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that
are, as of the Closing Date, required to be deposited with the mortgagee or its
agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the actual knowledge of the Seller, as
of the Closing Date, the related Mortgaged Property was and is free and clear of
any mechanics' and materialmen's liens or liens in the nature thereof which
create a lien prior to that created by the related Mortgage, except those which
are insured against by the Title Policy referred to in (vi) above.
(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
B-4
such Mortgaged Property comply in all material respects with applicable
zoning laws and ordinances (except to the extent that they may constitute legal
non-conforming uses).
(xxiv) Originator Authorized. To the extent required under applicable
law as of the Closing Date, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent necessary to
ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. (A) To the Seller's knowledge, there exists
no material default, breach or event of acceleration under the related Mortgage
or Mortgage Note, and (B) the Seller has not received actual notice of any event
(other than payments due but not yet delinquent) that, with the passage of time
or with notice and the expiration of any grace or cure period, would constitute
such a material default, breach or event of acceleration; provided, however,
that this representation and warranty does not cover any default, breach or
event of acceleration that specifically pertains to any matter otherwise covered
or addressed by any other representation and warranty made by the Seller herein.
(xxvi) Inspection. In connection with the origination or acquisition of
each Mortgage Loan, the Seller inspected or caused to be inspected the Mortgaged
Property.
(xxvii) No Equity Participation or Contingent Interest. The Mortgage
Loan contains no equity participation by the lender, and does not provide for
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property, or for negative amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan has, to
the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any amount
required by the Mortgage Loan (other than amounts paid by the tenant as
specifically provided under the related lease).
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor or operator of the related Mortgaged Property was in possession of all
material licenses, permits and authorizations required by applicable laws for
the ownership and operation of the related Mortgaged Property as it was then
operated and if a related Mortgaged Property is improved by a skilled nursing,
congregate care or assisted living facility, the most recent inspection or
survey by governmental authorities having jurisdiction in connection with such
licenses, permits and authorizations did not cite such Mortgaged Property for
material violations (which shall include only "Level A" (or equivalent)
violations in the case of skilled nursing facilities) that had not been cured or
as to which a plan of correction had not been submitted to and accepted by such
governmental authorities. To the extent such facility participates in Medicaid
or Medicare, such facility is in compliance in all material respects with the
requirements of such program.
(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
B-5
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;
(B) To the Seller's knowledge, in reliance on a tenant estoppel
certificate and representation made
B-6
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;
(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
B-7
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 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;
B-8
(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
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.
B-9
(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.
(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
X-00
Xxxxx 0, 0000), (xx) only with substitute collateral constituting "government
securities" within the meaning of Treas. Reg. Section 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.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser, the Depositor and/or the Trustee and shall inure to the
benefit of the Purchaser, and its successors and assigns (including without
limitation the Depositor, the Trustee and the holders of the Certificates),
notwithstanding any restrictive or qualified endorsement or assignment.
B-11
SCHEDULE B-1 to EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
XLIV SINGLE PURPOSE ENTITY
The related Mortgagor is not a single purpose bankruptcy remote entity.
Loan Number Property Issue
----------- -------- -----
20971 Bladensburg Shopping Center Borrower is not an SPE
21111 Corners Shopping Center Borrower is not an SPE
00000 Xxxxxxx Xxxxxx XX Borrower is not an SPE
24168 Shoppes at Kiln Creek Borrower is not an SPE
00000 Xxxxxx Xxxxxxx Xxxxx XX Borrower is not an SPE
24654 Stonegate Apartments Borrower is not an SPE
24714 Carousel Ranch MHP Borrower is not an SPE
24869 Gardena Village SC Borrower is not an SPE
24948 Advance Auto Parts Borrower is not an SPE
25134 Sunset Pointe Apartments Borrower is not an SPE
25373 0000 X. 00xx Xxxxxx Apartments Borrower is not an SPE
25798 Universal Shoppes Borrower is not an SPE
25814 Xxxxx Xxxxxx Valley Retail Borrower is not an SPE
00000 Xxxx Xxxxxxxx Xxxx. Retail Borrower is not an SPE
26456 Sierra Xxxxxxx Apartments Borrower is not an SPE
(xlv) Defeasance Provisions.
-----------------------
Loan Number Property Issue
-------- -----
00-0000000 Bladensburg Shopping Center The Borrower is permitted to
defease the loan beginning
May 1, 2002.
00-0000000 The Corners Shopping Center The Borrower is permitted to
defease the loan beginning
May 1, 2002.
B-1-1
EXHIBIT C
FORM OF CERTIFICATE OF AN OFFICER OF THE SELLER
Certificate of Officer of GMAC Commercial Mortgage Corporation ("GMACCM")
-------------------------------------------------------------------------
I, Xxxxx Xxxxxxx-Xxxx, a Secretary of GMACCM (the "Seller"), hereby
certify as follows:
The Seller is a corporation duly organized and validly existing under
the laws of the State of California.
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
---- ------ ---------
Xxxxx Xxxxxxx Vice President
Each person listed above who signed, either manually or by facsimile
signature, the Supplemental Agreement, dated as of August 8, 2000 (the
"Supplemental Agreement"), among the Seller, Salomon Brothers Realty Corp. 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.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Supplemental Agreement.
C-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
August ____, 2000.
By:
-----------------------
Name:
Title:
I, [name], [title], 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] genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
August ____, 2000.
By:
-----------------------
Name:
Title:
X-0
XXXXXXX X-0
FORM OF OPINION I OF COUNSEL TO THE SELLER
[GMAC Commercial Mortgage Corporation Letterhead]
August 17, 2000
Salomon Brothers Realty Corp.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: GMAC Commercial Mortgage Corporation
Supplemental Agreement dated as of August 8, 2000
Ladies and Gentlemen:
I am General Counsel to GMAC Commercial Mortgage Corporation (the
"Seller" or "GMACCM"). In that capacity, I am familiar with the transactions
contemplated under the Supplemental Agreement, dated as of August 8, 2000 (the
"Agreement"), among GMACCM, GMAC Commercial Mortgage Securities, Inc. (the
"Company") and Salomon Brothers Realty Corp. Capitalized terms not defined
herein shall have the meaning assigned thereto in the Agreement.
In connection with rendering this opinion letter, I have examined or
have caused persons under my supervision to examine the Agreement and such other
records and other documents as I have deemed necessary. I have further assumed
that there is not and will not be any other agreement that materially
supplements or otherwise modifies the agreements expressed in the Agreement. As
to matters of fact, I have examined and relied upon representations of parties
contained in the Agreement and, where I have deemed appropriate, representations
and certifications of officers of the Company, the Seller, other transaction
participants or public officials. I have assumed the authenticity of all
documents submitted to me as originals, the genuineness of all signatures other
than officers of the Seller and the conformity to the originals of all documents
submitted to me as copies. I have assumed that all parties, except for the
Company and the Seller, had the corporate power and authority to enter into and
perform all obligations thereunder. As to such parties, I also have assumed the
due authorization by all requisite corporate action, the due execution and
delivery and the enforceability of such documents. I have further assumed the
conformity of the Mortgage Loans and related documents to the requirements of
the Agreement.
In rendering this opinion letter, I do not express any opinion
concerning any law other than the law of the Commonwealth of Pennsylvania, the
General Corporation Law of the State of Delaware and the federal law of the
United States, and I do not express any opinion concerning the application of
the "doing business" laws or the securities laws of any jurisdiction other than
the federal securities laws of the United States. To the extent that any of the
matters upon which I am opining herein are governed by laws ("Other Laws") other
than the laws identified in the
D-1-1
preceding sentence, I have assumed with your permission and without independent
verification or investigation as to the reasonableness of such assumption, that
such Other Laws and judicial interpretation thereof do not vary in any respect
material to this opinion from the corresponding laws of the Commonwealth of
Pennsylvania and judicial interpretations thereof. I do not express any opinion
on any issue not expressly addressed below.
Based upon the foregoing, I am of the opinion that:
1. The Agreement has been duly and validly authorized, executed and
delivered by the Seller and, upon due authorization, execution and delivery by
the other parties thereto, will constitute the valid, legal and binding
agreements of the Seller, enforceable against the Seller in accordance with
their terms, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the rights of creditors, (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law, and
(iii) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of the Agreement which purport to provide indemnification with
respect to securities law violations.
2. No consent, approval, authorization or order of a Commonwealth of
Pennsylvania or federal court or governmental agency or body is required for the
consummation by the Seller of the transactions contemplated by the terms of the
Agreement, except for those consents, approvals, authorizations or orders which
previously have been obtained.
3. Neither the consummation of any of the transactions contemplated by,
nor the fulfillment by the Seller of any other of the terms of, the Agreement,
will result in a material breach of any term or provision of the charter or
bylaws of the Seller or any Commonwealth of Pennsylvania or federal statute or
regulation or conflict with, result in a material breach, violation or
acceleration of or constitute a material default under the terms of any
indenture or other material agreement or instrument to which the Seller is a
party or by which it is bound or any order or regulation of any Commonwealth of
Pennsylvania or federal court, regulatory body, administrative agency or
governmental body having jurisdiction over the Seller.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity, except Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP, is entitled to rely hereon without prior written consent. Copies of this
opinion letter may not be furnished to any other person or entity, nor may any
portion of this opinion letter be quoted, circulated or referred to in any other
document without my prior written consent.
Very truly yours,
Xxxxx Xxxxxxx-Xxxx
General Counsel
EXHIBIT D-2
FORM OF OPINION II OF COUNSEL TO THE SELLER
GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000-0000
Salomon Brothers Realty Corp.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as special counsel to GMAC Commercial Mortgage
Corporation (the "Seller") in connection with the transactions contemplated
under the Supplemental Agreement, dated as of August 8, 2000 (the "Agreement"),
among the Seller, GMAC Commercial Mortgage Securities, Inc. and Salomon Brothers
Realty Corp. Capitalized terms not defined herein shall have the meaning
assigned thereto in the Agreement. This opinion letter is rendered pursuant to
Section 6(b) of the Agreement.
In arriving at the opinions expressed below, we have examined
and relied on the following documents:
(a) an executed copy of the Agreement;
(b) the certificate of incorporation and bylaws of the Seller;
(c) a good standing certificate from the Secretary of State of the
State of California concerning the Seller; and
(d) such other records, documents, instruments and certificates as
we have deemed necessary or appropriate for purposes of this opinion.
Based upon such examination and having regard for legal
considerations which we deem relevant, we are of the opinion that the Agreement
constitutes a legal, valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms.
With your permission we have assumed the following: (a) the
authenticity of original documents and the genuineness of all signatures; (b)
the conformity to the originals of all documents submitted to us as copies; (c)
the truth, accuracy and completeness of the information, factual matters,
representations and warranties contained in the records, documents, instruments
and certificates we have reviewed; and (d) the due authorization, execution and
delivery on behalf of the respective parties thereto of documents referred to
herein and, except as specifically covered in the opinion set forth above, the
legal, valid and binding effect thereof on such parties.
D-2-1
Our opinion that any document is valid, legal and binding or
enforceable in accordance with its terms is subject to: (1) limitations imposed
by bankruptcy, insolvency, fraudulent conveyance, reorganization, arrangement,
moratorium or other laws relating to or affecting the enforcement of creditors'
rights generally; (2) general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law; and (3) rights
to indemnification which may be limited by applicable law or equitable
principles or otherwise unenforceable as against public policy.
We express no opinion as to matters of law other than the law
of the State of New York.
This opinion letter is solely for your benefit and may not be
relied upon or used by, circulated, quoted or referred to, nor may copies hereof
be delivered to, any other person without our prior written approval. We
disclaim any obligation to update this opinion letter for events occurring or
coming to our attention after the date hereof.
Very truly yours,
XXXXXX, XXXXXXXXXX & XXXXXXXXX LLP
D-2-2