EXHIBIT 99.1
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 8, 2000, between GMAC Commercial Mortgage 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"). Certain other multifamily and commercial 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 Xxxxx 0, 0000 (xxx "XXXX 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 March 8, 2000 (the "GSMC
Warehouse Mortgage Loan Purchase Agreement") between the Purchaser and GSMC (the
mortgage loans purchased by the Purchaser under the GACC Warehouse Mortgage Loan
Purchase Agreement and the GSMC Warehouse Mortgage Loan Purchase Agreement, the
"Warehouse Mortgage Loans"), (iii) GACC, pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of Xxxxx 0, 0000
(xxx "XXXX Mortgage Loan Purchase Agreement"), between the Purchaser and GACC,
and (iv) GSMC, pursuant to, and for the consideration described in, the Mortgage
Loan Purchase Agreement, dated as of March 8, 2000 (the "GSMC Mortgage Loan
Purchase Agreement"), between the Purchaser and GSMC. The Seller, GACC and GSMC
are collectively referred to as the "Mortgage Loan Sellers."
It is expected that the Mortgage Loans will be transferred, together with
other multifamily and commercial mortgage loans to a trust fund (the "Trust
Fund") to be formed by the Purchaser, beneficial ownership of which will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Xxxxx'x
Investors Service, Inc. and Fitch IBCA, 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 March 1, 2000 (the "Pooling
and Servicing Agreement"), among the Purchaser as depositor, GMAC Commercial
Mortgage Corporation as master servicer (in such capacity, the "Master
Servicer") and special servicer (in such capacity, the "Special Servicer")
LaSalle Bank National Association, as trustee (in such capacity, the "Trustee")
and ABN AMRO Bank N.V., as fiscal agent. 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, Class E, Class F and Class X Certificates to Deutsche Bank Securities
Inc. and Xxxxxxx, Xxxxx & Co. (together, the "Underwriters"), pursuant to an
underwriting agreement dated the date hereof (the "Underwriting Agreement"). The
Purchaser intends to sell the Class G and Class H Certificates to Deutsche Bank
Securities Inc. and the 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 First Union
National Bank (in such capacity, an "Initial Purchaser"). The 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 March 8, 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 March, 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 $49,498,583 subject
to a variance of plus or minus 5%. The purchase price for the Mortgage Loans
shall be $49,550,209.40.
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 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
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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 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
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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.
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SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
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 California, and is in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance and compliance with the terms of this Agreement by the
Seller, will not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, in each case which materially and
adversely affect the ability of the Seller to carry out the transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance with
the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, (B) general principles of equity, regardless
of whether such
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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 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
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would have evidenced an interest in the Mortgage Loans or the Warehouse
Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans and the Warehouse
Mortgage Loans, the information set forth on pages A-8 through A-10,
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 the
Warehouse 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-C1
Transaction--The Mortgage Pool," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Call Protection provided by
the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk
Factors" and "Description of the Mortgage Pool," set forth on Annex A to
the Prospectus Supplement and (to the extent it contains information
consistent with that on such Annex A) set forth on the Diskette, does not
contain any untrue statement of a material fact or (in the case of the
Memorandum, when read together with the other information specified therein
as being available for review by investors) omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(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.
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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 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
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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 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
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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 C-1 to Exhibit C 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 C hereto in respect of any Mortgage Loan was not
qualified to do business in the state in which the related Mortgaged Property is
located, and in either case such failure materially and adversely affects the
interests of holders of Certificates, (any such failure that materially and
adversely affects the interests of holders of Certificates, also a "Breach"),
the Seller shall be required, at its option, to either (i) cure such Breach in
all material respects or (ii) repurchase the affected Mortgage Loan, 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 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.
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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.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Xxxxx, Xxxxx & Xxxxx, 0000 Xxxxxxxx, 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;
11
(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 California, 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, substantially in the
form of Exhibits D-3A and D-3B 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 and each Underwriter;
12
(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.
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 or the Warehouse 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 or the Warehouse Mortgage Loans contained in the Prospectus
Supplement or the Memorandum under the headings "Summary of Series 2000-C1
Transaction -- The Mortgage Pool," "--Geographic Concentrations of the Mortgaged
Property," "--Property Types," "--Call Protection provided by the Mortgage
Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors" and/or
"Description of the Mortgage Pool" or contained on Annex A 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
13
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 March 3,
2000, as supplemented by the prospectus supplement dated March 8, 2000 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated March 8, 2000, relating to the
Non-Registered Certificates; "Computational Materials" shall have the meaning
assigned thereto in the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Securities and Exchange Commission (the
"Commission") to 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 and related information 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
14
and approval by the indemnified party of counsel, which approval will not be
unreasonably withheld, the indemnifying party will not be liable for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the indemnifying
party, representing all the indemnified parties under Section 9(a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(d) The Purchaser and the 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.
15
(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 Xxxxxxx
Xxxx, X.X. Xxx 0000, 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 be furnished to the Seller in writing by the
Purchaser; and if to the Seller, addressed to GMAC Commercial Mortgage
Corporation, at 000 Xxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxxxx
00000-0000, Attention: Structured Finance Manager, facsimile no. (000) 000-0000,
with a copy to GMAC Commercial Mortgage Corporation, 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.
16
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.
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
17
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.
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.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
GMACCM Non-Sale Loans
Loan
Number Name Address
23452 Maverick Creek Villas 15651 Xxxxx Xxxx Boulevard
23888 Interbelt North Business Center 14310-14320 Interdrive East
24737 Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxxxxx
25254 Commons of Valwood 00000 Xxxxxxxx Xxxxxx
25545 Atrium Company Portfolio Various
00000-X Xxxxxxxxxx Xxx 0000 Xxxxxxxxxx Xxx
00000-X Xx Xxxxxxxxxx Xxxx 0000 Xx Xxxxxxxxxx Xxxx
00000-X Xxxxxxxxxx Xxxxx 0000 Xxxxxxxxxx Xxxxx
00000 Xxxxxxxxxx Xxxxxxxxx Apartments 00-00 Xxxxxxx Xxxx
00000 Xxxxxxxxx Apartments 0000 Xxxxxxx Xxxx
00000 000 Xxxxxxxx 000 Xxxxxxxx
Loan Interest Rate Original
Number City State Zip Rate Type Balance
23452 Xxx Xxxxxxx Xxxxx 00000 7.910 Fixed 14,885,000.00
23888 Xxxxxxx Xxxxx 00000 8.875 Fixed 2,045,000.00
00000 Xxxxxx Xxxxx 00000 9.500 Fixed 3,350,000.00
00000 Xxxxxxx Xxxxxx Xxxxx 00000 8.590 Fixed 8,600,000.00
25545 Various Various Various 8.700 Fixed 13,123,000.00
25545-A Xxxxxx Xxxxx 00000
25545-B Xxxxxxxxxx Xxxxx 00000
00000-X Xxxxxxxxxx Xxxxx 75401
25893 Xxxxxxxxxx Xxxxxxxxxxx 0000 8.510 Fixed 3,250,000.00
00000 Xxxxxxxxxx Xxxxxxxxxxx 00000 8.390 Fixed 1,775,000.00
00000 Xxx Xxxx Xxx Xxxx 00000 9.480 Fixed 2,500,000.00
Cut-Off Anticipated Day Credit
Loan Date Remaining Maturity Repayment Payment Monthly ARD Lease
Number Balance Term Date Date Due Payment Loan Loan
23452 14,871,557.98 119 2/10/10 10 108,288.41 No No
23888 2,043,349.39 119 2/5/10 5 16,270.94 No No
24737 3,347,468.19 119 2/10/10 10 28,168.62 No No
25254 8,592,833.73 119 2/5/10 5 66,675.88 No No
25545 13,123,000.00 118 1/5/10 5 102,785.73 No No
25545-A
25545-B
25545-C
25893 3,247,266.93 119 2/5/10 5 25,012.72 No No
25912 1,775,000.00 118 1/10/10 10 13,510.08 No No
25936 2,498,106.79 119 2/5/10 5 20,984.88 No No
49,498,583
Broker Additional
Loan Strip Servicing Servicing
Number Defeasance Loan Fee Loan Fee
23452 Lock/25_Defeasance/93_0%/2 0.1276
23888 Lock/25_Defeasance/93_0%/2 0.1276
24737 Lock/25_Defeasance/93_0%/2 0.1276
25254 Lock/25_Defeasance/93_0%/2 0.1276
25545 Lock/26_Defeasance/90_0%/4 0.1276
25545-A
25545-B
25545-C
25893 Lock/25_Defeasance/93_0%/2 0.1276
25912 Lock/26_Defeasance/92_0%/2 0.1276
25936 Lock/25_Defeasance/93_0%/2 0.1276
A-1
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 LaSalle Bank National Association, as trustee for the
registered holders of GMAC Commercial Mortgage Securities, Inc., Mortgage
Pass-Through Certificates, Series 2000-C1, 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
B-1
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 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
B-2
original of the residual value insurance policy, if any, obtained with
respect to such Mortgage Loan; provided that whenever the term "Mortgage
File" is used to refer to documents actually received by the Purchaser or
the Trustee, such term shall not be deemed to include such documents and
instruments required to be included therein unless they are actually so
received. 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 Permitted Encumbrances (as defined in
the Mortgage Loan Purchase Agreement of which this Exhibit C 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.
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(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.
(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
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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.
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(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will
not be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and
the Mortgage Note have not been impaired, waived, altered or modified in
any material respect, except as specifically set forth in the related
Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For
purposes of this representation and warranty, real property taxes and
assessments shall not be considered unpaid until the date on which interest
and/or penalties would be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except in the case
of one Mortgage Loans 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.
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(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination
of such Mortgage Loan), as of the date of such origination, no improvement
that was included for the purpose of determining the appraised value of the
related Mortgaged Property at the time of origination of such Mortgage Loan
lay outside the boundaries and building restriction lines of such property
to any material extent (unless affirmatively covered by the title insurance
referred to in paragraph (vi) above), and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material extent.
To the Seller's knowledge, based upon opinions of counsel and/or other due
diligence customarily performed by the Seller, the improvements located on
or forming part of such Mortgaged Property comply in all material respects
with applicable zoning laws and ordinances (except to the extent that they
may constitute legal non-conforming uses).
(xxiv) Originator Authorized. To the extent required under applicable
law as of the Closing Date, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related
Mortgaged Property is located at all times when it held the Mortgage Loan
to the extent necessary to ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. (A) To the Seller's knowledge, there exists
no material default, breach or event of acceleration under the related
Mortgage or Mortgage Note, and (B) the Seller has not received actual
notice of any event (other than payments due but not yet delinquent) that,
with the passage of time or with notice and the expiration of any grace or
cure period, would constitute such a material default, breach or event of
acceleration; provided, however, that this representation and warranty does
not cover any default, breach or event of acceleration that specifically
pertains to any matter otherwise covered or addressed by any other
representation and warranty made by the Seller herein.
(xxvi) Inspection. In connection with the origination or acquisition
of each Mortgage Loan, the Seller inspected or caused to be inspected the
Mortgaged Property.
(xxvii) No Equity Participation or Contingent Interest. The Mortgage
Loan contains no equity participation by the lender, and does not provide
for any contingent or additional interest in the form of participation in
the cash flow of the related Mortgaged Property, or for negative
amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan has, to
the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Loan (other than amounts paid by the tenant
as specifically provided under the related lease).
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(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.
(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)
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(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 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
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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 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
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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;
(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,
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which is curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground Lease;
(G) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than ten years
beyond the Stated Maturity Date of the related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds will be applied either to the
repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee under such Mortgage Loan or a trustee
appointed by it having the right to hold and disburse such proceeds as
the repair or restoration progresses (except in such cases where a
provision entitling another party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender), or to the payment of the outstanding
principal balance of the Mortgage Loan together with any accrued
interest thereon;
(I) Such Ground Lease does not impose any restrictions on subletting which
would be viewed, as of the date of origination of the related Mortgage
Loan, as commercially unreasonable by the Seller; and such Ground
Lease contains a covenant that the lessor thereunder is not permitted,
in the absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any subtenant of the lessee, or in any
manner, which would materially adversely affect the security provided
by the related Mortgage; and
(J) Such Ground Lease, or an estoppel letter or other agreement, requires
the lessor to enter into a new lease in the event of a termination of
the Ground Lease by reason of a default by the Mortgagor under the
Ground Lease, including, rejection of the ground lease in a bankruptcy
proceeding.
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan, (b) release is conditioned upon the
satisfaction of certain underwriting and legal requirements and 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.
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(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 Xxxxx 0, 0000), (xx) 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,
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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 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
NONE
C-1-1
EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF THE SELLER
Certificate of Officer of GMAC Commercial Mortgage Corporation ("GMACCM")
I, ________________, a __________________ 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
---- ------ ---------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of March 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.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
Exhibit D - Page 1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
March 16, 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
____________, 2000.
By:
--------------------------
Name:
Title:
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of GMAC Commercial Mortgage Corporation
In connection with the execution and delivery by GMAC Commercial Mortgage
Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
March 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 March, 2000.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:
---------------------------------
Name:
Title:
Exhibit D-2 - Page 1
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
March 16, 2000
To: Persons on Annex A
Re: GMAC Commercial Mortgage Securities, Inc.
Mortgage Pass-Through Certificates, Series 2000-C1
Ladies and Gentlemen:
I am General Counsel to GMAC Commercial Mortgage Corporation (the "Seller"
or "GMACCM"). In that capacity, I am familiar with the issuance of certain
Mortgage Pass-Through Certificates, Series 2000-C1 (the "Certificates"),
evidencing undivided interests in a trust fund (the "Trust Fund") consisting
primarily of certain mortgage loans (the "Mortgage Loans"), pursuant to a
Pooling and Servicing Agreement, dated as of March 1, 2000 (the "Pooling and
Servicing Agreement"), among GMAC Commercial Mortgage Securities, Inc. (the
"Company") as depositor, the Seller as master servicer and special servicer,
LaSalle Bank National Association, as trustee (the "Trustee"), and ABN AMRO Bank
N.V., as fiscal agent.
Certain of the Mortgage Loans were purchased by the Company from the
Seller, pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of March 8, 2000 (the "GMACCM Mortgage Loan
Purchase Agreement"), between the Company and the Seller. Certain of the
Mortgage Loans will be purchased by the Company from German American Capital
Corporation ("GACC"), pursuant to, and for the consideration described in, the
Mortgage Loan Purchase Agreement, dated as of Xxxxx 0, 0000 (xxx "XXXX Mortgage
Loan Purchase Agreement"), between the Company and GACC. Certain of the Mortgage
Loans were purchased by the Company from Xxxxxxx Sachs Mortgage Company
("GSMC"), pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of March 8, 2000 (the "GSMC Mortgage Loan Purchase
Agreement"), between the Company and GSMC. Certain of the Mortgage Loans were
purchased by the Company from GACC, pursuant to, and for the consideration
described in, the Mortgage Loan Purchase Agreement, dated as of Xxxxx 0, 0000
(xxx "XXXX Mortgage Loan Purchase Agreement"), between the Company and GACC.
Certain of the Mortgage Loans will be purchased by the Company from GSMC,
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of March 8, 2000 (the "GSMC Mortgage Loan Purchase
Agreement"), between the Company and GACC. The Pooling and Servicing Agreement
and the GMACCM Mortgage Loan Purchase
Exhibit D-3A - Page 1
Agreement are referred to herein together as the "Agreements." Capitalized terms
not defined herein have the meanings set forth in the Agreements. This opinion
is rendered pursuant to Section 8(e) of the GMACCM Mortgage Loan Purchase
Agreement.
The Company has sold the Class A-1, Class A-2, Class B, Class C, Class D,
Class E and Class F Certificates to Deutsche Bank Securities Inc. and Xxxxxxx,
Xxxxx & Co., as the underwriters (the "Underwriters") named in the Underwriting
Agreement, dated as of March 8, 2000 (the "Underwriting Agreement"), among the
Company, the Seller, and the Underwriters. The Company sold the Class G and
Class H Certificates to Deutsche Bank Securities Inc. and the Class J, Class K,
Class L, Class M, Class N and Class O Certificates to Commercial Asset Trading,
Inc. pursuant to two Certificate Purchase Agreements, each dated as of March 8,
2000 (the "Certificate Purchase Agreements"). The Company sold the Class R-I,
Class R-II and Class R-III Certificates to First Union National Bank.
In connection with rendering this opinion letter, I have examined or have
caused persons under my supervision to examine the Agreements 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 Agreements. As
to matters of fact, I have examined and relied upon representations of parties
contained in the Agreements and, where I have deemed appropriate,
representations and certifications of officers of the Company, the Seller, the
Trustee, 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 Agreements.
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 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
Exhibit D-3A - Page 2
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. Each of the Agreements 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 Agreements
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 Agreements, 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
Agreements, 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 Xxxxx, Xxxxx & Xxxxx, 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-3A - Page 3
Annex A
GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
Deutsche Bank Securities Inc.
Xxxxxxx, Xxxxx & Co.
Fitch IBCA, Inc.
Xxxxx'x Investors Services, Inc.
LaSalle Bank National Association
Annex A-1
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
Form of Opinion of Xxxxx, Xxxxx & Xxxxx
March 16, 2000
GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
Deutsche Bank Securities Inc.
Xxxxxxx, Sachs & Co.
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2000-C1
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as special
counsel to GMAC Commercial Mortgage Corporation ("GMACCM"), pursuant to Section
8(e) of the Mortgage Loan Purchase Agreement, dated March 16, 2000 (the "GMACCM
Mortgage Loan Purchase Agreement"), between GMAC Commercial Mortgage Securities,
Inc. (the "Purchaser") and GMACCM as the Seller, (in such capacity the
"Seller"), relating to the sale by the Seller of certain mortgage loans (the
"GMACCM Mortgage Loans"), and relating to the Certificates sold pursuant to the
Underwriting Agreement, dated as of March 16, 2000 (the "Underwriting
Agreement"), between the Purchaser and Deutsche Bank Securities Inc. and
Xxxxxxx, Xxxxx & Co, and issued under the Pooling and Servicing Agreement, dated
as of March 1, 2000, among GMACCM as special servicer and master servicer (in
such respective capacities, the "Special Servicer" and the "Master Servicer"),
the Purchaser, as depositor, LaSalle Bank National Association, as trustee, and
ABN AMRO Bank N.V., as fiscal agent (the "Pooling and Servicing Agreement" and
together with the GMACCM Mortgage Loan Purchase Agreement, the "Agreements").
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Agreements.
In connection with the transactions described above, certain mortgage loans
(the "GACC Warehouse Mortgage Loans") were sold to the Purchaser by German
American
Exhibit D-3B - Page 1
Capital Corporation ("GACC"), pursuant to the Mortgage Loan Purchase Agreement,
dated as of Xxxxx 0, 0000 (xxx "XXXX Warehouse Mortgage Loan Purchase
Agreement"), between the Purchaser and GACC, and certain other mortgage loans
(the "GSMC Warehouse Mortgage Loans") were sold to the Purchaser by Xxxxxxx
Sachs Mortgage Company("GSMC"), pursuant to the Mortgage Loan Purchase
Agreement, dated as of March 8, 2000 (the "GSMC Warehouse Mortgage Loan Purchase
Agreement"), between the Purchaser and GSMC. Certain other mortgage loans (the
"GACC Mortgage Loans") were sold to the Purchaser by GACC, pursuant to the
Mortgage Loan Purchase Agreement, dated as of Xxxxx 0, 0000 (xxx "XXXX Mortgage
Loan Purchase Agreement"), between the Purchaser and GACC, and certain other
mortgage loans (the "GSMC Mortgage Loans") were sold to the Purchaser by GSMC,
pursuant to the Mortgage Loan Purchase Agreement, dated as of March 8, 2000 (the
"GSMC Mortgage Loan Purchaser Agreement"), between the Purchaser and GSMC.
In rendering this opinion, we have examined and relied upon executed copies
of the Agreements and originals or copies, certified or otherwise identified to
our satisfaction, of such certificates and other documents as we have deemed
appropriate for the purposes of rendering this opinion. We have examined and
relied upon, among other things, the documents and opinions delivered to you at
the closing being held today relating to the Certificates, as well as (a) the
Prospectus and the Memorandum, (b) an executed copy of each of the GACC
Warehouse Mortgage Loan Purchase Agreement, the GMACCM Mortgage Loan Purchase
Agreement, the GSMC Warehouse Mortgage Loan Purchase Agreement, the GACC
Mortgage Loan Purchase Agreement and the GSMC Mortgage Loan Purchase Agreement
and (c) an executed copy of the Pooling and Servicing Agreement.
In conducting our examination, we have assumed, without investigation, the
legal capacity of all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents. We have,
with your permission, also relied upon the opinions of even date herewith of
Xxxxx Xxxxxxx-Xxxx, Esq., General Counsel to GMACCM, and Xxxxx Xxxxxxx Xxxx
Xxxxxx & Xxxxxxx LLP, special California counsel to GMACCM, addressed to you. As
to any facts material to the opinions expressed herein which were not
independently established or verified, we have relied upon oral or written
statements and representations of officers and other representatives of GMACCM
and others.
We are members of the bar of the State of New York and do not purport to be
experts on or to express any opinion herein concerning any laws other than the
laws of the State of New York and the federal laws of the United States of
America. We express no opinion herein as to the laws of any other jurisdiction.
Exhibit D-3B - Page 2
Based upon the matters stated herein and upon such investigation as we have
deemed necessary, we are of the opinion that the Agreements have been duly
authorized, executed and delivered by GMACCM and, upon due authorization,
execution and delivery by the Purchaser, will each constitute a valid, legal and
binding agreement of GMACCM, enforceable against GMACCM in accordance with its
respective terms, except as enforceability may be limited by (a) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws relating to or affecting the enforcement of creditors rights
generally and (b) general principles of equity, whether enforcement is sought in
a proceeding in equity or at law.
In rendering the opinions expressed above, we express no opinion regarding
any severability provision in the Agreements or regarding the legal, valid and
binding effect or the enforceability of any indemnification provision in the
Agreements to the extent that any such provisions may be deemed to cover matters
under the federal securities laws. The opinions expressed above are subject to
the further qualification that certain of the remedial provisions in the
Agreements may be limited or rendered ineffective or unenforceable in whole or
in part under the laws of the State of New York (but the inclusion of such
provisions does not make the remedies provided by the Agreements inadequate for
the practical realization of the rights and benefits purported to be provided
thereby, except for the economic consequences of procedural or other delay).
We have not ourselves checked the accuracy or completeness of, or otherwise
independently verified, the information furnished with respect to the Prospectus
Supplement or the Memorandum. In addition, as you are aware, with limited
exception, we did not examine or review the Mortgage Files although we did
review the asset summaries (the "GMACCM Asset Summaries") furnished and prepared
by GMACCM with respect to the GMACCM Mortgage Loans sold under the GMACCM
Mortgage Loan Purchase Agreement, the GACC Warehouse Mortgage Loans sold under
the GACC Warehouse Mortgage Loan Purchase Agreement, and the GSMC Warehouse
Mortgage Loans sold under the GSMC Warehouse Mortgage Loan Purchase Agreement
(collectively, the "Mortgage Loans"). We did not, however, check the accuracy or
completeness of or otherwise independently verify the information contained in
the GMACCM Asset Summaries. Moreover, we note that we were advised by GMACCM in
connection with our review of the GMACCM Asset Summaries that such GMACCM Asset
Summaries were summaries only, and in certain instances being continually
updated and corrected and were not intended to be relied on for a complete legal
description of each GMACCM Mortgage Loan.
In the course of the preparation by the Purchaser of the Prospectus
Supplement and the Memorandum, we have participated in conferences with certain
officers of GMACCM, the Purchaser, counsel to the Purchaser and your
representatives, during which the contents of the Prospectus Supplement and the
Memorandum and related
Exhibit D-3B - Page 3
matters were discussed and, at your request we have reviewed the information
contained in the Prospectus Supplement (other than the information presented in
tabular form) under the headings "Summary of Series 2000-C1 Transaction -- The
Mortgage Pool," "--Geographic Concentrations of the Mortgaged Properties,"
"--Property Types," "--Call Protection provided by the Mortgage Loans,"
"--Payment Terms of the Mortgage Loans," "Risk Factors" and/or "Description of
the Mortgage Pool" relating to GMACCM, the Purchaser and the Mortgage Loans
(collectively, the "Selected Information"). On the basis of the discussions and
limited review referred to above, although we are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Prospectus Supplement and the Memorandum, and
without independent check or verification of the Selected Information except as
stated, no facts have come to our attention that have caused us to believe that
the Selected Information set forth in either the Prospectus Supplement or the
Memorandum (other than financial and statistical data included or not included
therein or incorporated by reference therein, as to which we express no
opinion), as of its issue date, contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Whenever our opinion with respect to the existence or absence of facts is
indicated to be based on our knowledge or awareness, we are referring to the
actual knowledge of the Xxxxx, Xxxxx & Xxxxx attorneys who have represented you
in connection with the transactions contemplated by the Agreements. Except as
expressly set forth herein, we have not undertaken any independent investigation
to determine the existence or absence of such facts and no inference as to our
knowledge concerning such facts should be drawn from the fact that such
representation has been undertaken by us.
This letter is limited to the specific issues addressed herein and the
opinion rendered above is limited in all respects to laws and facts existing on
the date hereof. By rendering this opinion, we do not undertake to advise you
with respect to any other matter or of any change in such laws or facts or in
the interpretations of such laws which may occur after the date hereof.
We are furnishing this opinion to you solely for your benefit. This opinion
is not to be used, circulated, quoted or otherwise referred to for any other
purpose, except that the persons listed on Exhibit A hereto may rely upon this
opinion in connection with their rating of the Certificates to the same extent
as if this opinion had been addressed to them.
Very truly yours,
Xxxxx, Xxxxx & Xxxxx
Exhibit D-3B - Page 4
