EXHIBIT 99.4
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of December 5, 2000, between German American Capital Corporation as
seller (the "Seller") and GMAC Commercial Mortgage Securities, Inc. as purchaser
(the "Purchaser").
Subject to the terms and conditions hereof, the Seller desires to sell,
assign, transfer and otherwise convey to the Purchaser, and the Purchaser
desires to purchase, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
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, Inc. (together, the "Rating Agencies").
Certain classes of the Certificates (the "Registered Certificates") will be
registered under the Securities Act of 1933, as amended (the "Securities Act").
The Trust Fund will be created and the Certificates will be issued pursuant to a
pooling and servicing agreement to be dated as of December 1, 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 (the "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 and Class D 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 X, Class E, Class F and Class G Certificate to the Underwriters, the
Class S-MAC-1, Class S-MAC-2, Class S-MAC-3 and Class S-MAC-4 Certificates to
Xxxxxxx, Sachs & Co. and the Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P and Class S-AM 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 CIBC World Markets Corp. (in such capacity, an "Initial
Purchaser"). The Class X, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class S-AM, S-MAC-1, S-MAC-2, Class
S-MAC-3, Class S-MAC-4, 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.
---------------------
Subject to the terms and conditions hereof, 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 December 14, 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 December,
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 $116,371,178, subject to a variance of plus or
minus 5%. The purchase price for the Mortgage Loans shall be calculated and paid
pursuant to the Mortgage Loan Purchase Agreement dated September 28, 2000
between the Seller, as purchaser, and the Purchaser, as seller.
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 each 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 such Mortgage Loan, and
all other recoveries of principal and interest collected thereon after such
Cut-off Date. All scheduled payments of principal and interest due thereon on or
before the Cut-off Date for each Mortgage Loan and collected after such Cut-off
Date shall belong to the 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 to the extent that such Mortgage File was delivered to the Seller by
GMAC Commercial Mortgage Corporation. 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) 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
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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.
(d) The Seller's records will reflect the transfer of the Mortgage
Loans to the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
-----------------------------------------------------------
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) Reserved.
(b) The Seller, as of the date hereof, hereby represents and warrants
to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Maryland,
and is in compliance with the laws of each State to the extent
necessary 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
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enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(vi) No litigation is pending with regard to which the 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 or the financial condition of the
Seller.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans by the Seller to the Purchaser or
the consummation of any of the other transactions contemplated hereby.
(viii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law (including, with
respect to any bulk sale laws), for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby,
other than (1) 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,
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.
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(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, in each case which materially and adversely affect the
ability of the Purchaser to carry out the transactions contemplated by
this Agreement.
(iii) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(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. Reserved.
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SECTION 7. Closing.
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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 and
the Purchaser specified herein shall be true and correct as of the
Closing Date;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and reasonably acceptable
to the Purchaser, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee, the Purchaser or the Purchaser's designee, as the case may be,
all documents and funds required to be so delivered pursuant to Section
2;
(iv) 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; and
(v) The Underwriting Agreement shall not have been terminated in
accordance with its terms.
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Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
-----------------
The Closing Documents shall consist of the following:
(i) this Agreement duly executed and delivered by the Purchaser
and the Seller;
(ii) an Officer's Certificate substantially in the form of
Exhibit C-1 hereto, executed by the Secretary or an assistant secretary
of the Seller, and dated the Closing Date, and upon which the
Purchaser, each Underwriter and each Initial Purchaser may rely,
attaching thereto as exhibits the organizational documents of the
Seller;
(iii) a certificate of good standing regarding the Seller from
the Secretary of State for the State of Maryland, dated not earlier
than 30 days prior to the Closing Date;
(iv) a certificate of the Seller substantially in the form of
Exhibit C-2 hereto, executed by an executive officer or authorized
signatory of the Seller and dated the Closing Date, and upon which the
Purchaser, each Underwriter and each Initial Purchaser may rely;
(v) a written opinion of counsel for the Seller, substantially
in the form of Exhibit C-3 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, each Underwriter and each Initial
Purchaser;
(vi) to the extent required by any of the Rating Agencies, a
written opinion of counsel for the Purchaser regarding the
characterization of the transfer of the Mortgage Loans to the Purchaser
as a "true sale", subject to such reasonable assumptions and
qualifications as may be requested by counsel for the Purchaser, dated
the Closing Date and addressed to the Rating Agencies, the Purchaser,
each Underwriter and the Trustee;
(vii) the Supplemental Agreement, dated as of the date hereof,
between GMAC Commercial Mortgage Corporation ("GMACCM") and the Seller
(the "Supplemental Agreement"), duly executed and delivered by GMACCM
and the Seller; and
(viii) such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Reserved.
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SECTION 10. Assignment of Supplemental Agreement.
------------------------------------
In connection with the transfer of the Mortgage Loans hereunder, the
Seller hereby assigns to the Purchaser all of the Seller's right, title and
interest in and to the Supplemental Agreement.
SECTION 11. Notices.
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All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at
000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000-0000, Attention: Structured Finance
Manager, facsimile no. (000) 000-0000, with a copy to the General Counsel, GMAC
Commercial Mortgage Corporation, or such other address or facsimile number as
may hereafter be furnished to the Seller in writing by the Purchaser; and if to
the Seller, addressed to German American Capital Corporation, at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, facsimile no.
(000) 000-0000, or to such other address or facsimile number as the Seller may
designate in writing to the Purchaser.
SECTION 12. Reserved.
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SECTION 13. Representations, Warranties and Agreements to Survive
Delivery.
-----------------------------------------------------
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 14. Severability of Provisions.
--------------------------
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 15. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
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SECTION 16. GOVERNING LAW.
-------------
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED 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 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.
SECTION 19. Amendments.
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(a) 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.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
By: /s/
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
Acknowledged and Agreed
with respect to Section 10:
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
GMACCM - DEUTSCHE BANC REPURCHASE FACILITY
LOAN NUMBER LOAN NAME ADDRESS
----------------------------------------------------------------------------------------------------------------------------
27395 Bound Xxxxx Xxxxxxxxxx Xxxx Xxxxx Xxxxxx
00000 Holiday Inn-Pittsburgh Airport 1406 Beers School Road
00000 Xxxxxxx Xxxxxx Shopping Center 0000-0000 Xxx Xxxxxxx
00000 Xxxxxx at Northbrook 000 Xxxx Xxxxxxx Xxxxxx
00000 Xxxxxxxxx Inn by Marriott 0000 Xxxxxx Xxxx
24767 Villages at XxXxxxxxxx 0000 Xxxx Xxx Xxxxxx Xxxxxx
00000 Microtel Inn & Suites (Maryland) 0000 Xxxxxxxxx Xxxx
00000 Xxxx Xxxxxx Townhomes 0000-0000 Xxxxxxxxx Xxxxx, XX
00000 Xxxxxxxxxx Courts Apartments 000 Xxxxxxxxxx Xxxxxxx 00 Xxxxx
00000 Xxxx Club Apartments 0000 Xxxx Xxxxxxx Xxxxxx
00-0000000 XxXxxxxx Xxxx Xxxxxxxxxx 0000 XxXxxxxx Xxxx
991091659 Avanex II 00000 Xxxxxxxxxxxx Xxxxxx
991091664 Bluffs IV 6305 & 6309 Carpinteria Avenue
991091661 Linens & Things 0000 Xxxx Xxxx Xxxxx
991091652 Wellington Mobile Home Park 245 Lancaster Drive
991091668 Xxxxxxxx Xxxxxxx Xxxxxxxxxx 00000 & 11061 Xxxxxxx Xxxx Xxxx
000000000 Xxxxx Xxxx Xxxxxxx 333 Metro Park
991091633 Route One Crossing 000 Xxxxxxx Xxxxxx (Xxxxx 1)
991091653 Riverbend MHP 0000 Xxxxxxxxx Xxxxx Xxxx
991091646 Empire Building 0000 Xxxxxx Xxxxxx
000000000 Xxxxxxxxx Xxxx 0000 Xxxxxxxxxx Xxxxxx
00-0000000 Trinity Towers, Brittany Apartments, Xxxxxx Apts
01-1024923-A Xxxxxxx Xxxxxx Xxxxxxxxxx 00 - 00 Xxxxxx Xxxxxx
01-1024923-B Brittany Apartments 00 Xxx Xxxxxxx Xxxxxx
00-0000000-X Xxxxxx Apartments 00 Xxxxxxx Xxxxxx
991091624 Grand Manor Apartments 0000 X 000xx Xxxxxx
00-0000000 Xxxxxxxxxxx Xxxx 0000 Xxxxx 00 Xxxx
991091619 Bluebird Apartments 900 - 908 Rice Street
991091663 Xxxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxx Xxxxxx
991091655 Southern Acres MHP 0000 Xxxx Xxxxxxxx Xxxxxx
991091651 Willow Lane Apartments 0000-0000 Xxxxxx Xxxx
991091625 Belmont Square 0000-0000 Xxxx Xxxxxxx Xxxxxx
INTEREST
RATE RATE ORIGINAL CUT-OFF DATE
LOAN NUMBER CITY STATE ZIP CODE (%) TYPE BALANCE ($) BALANCE ($)
--------------------------------------------------------------------------------------------------------------------------------
27395 Bound Xxxxx Xxx Xxxxxx 00000 8.06000 Fixed 12,960,000 12,960,000
00000 Xxxx Xxxxxxxx Xxxxxxxxxxxx 00000 8.45000 Fixed 10,500,000 10,481,894
27302 Xxxxxxx Xxxxxxxx 00000 8.45000 Fixed 9,600,000 9,579,724
28492 Xxxxxx Xxxxxxxx 00000 8.50000 Fixed 6,100,000 6,085,660
28640 Xxxxxxxxxxx Xxxxx Xxxxxxxx 00000 9.25000 Fixed 5,800,000 5,786,500
24767 Xxxxx Xxxxxxx 00000 7.99000 Fixed 5,400,000 5,393,921
27443 Xxxxxxxxx Xxxxxxxx 00000 8.65000 Fixed 3,300,000 3,288,994
28394 Xxxxx Xxxxxx Xxxxxxxx 00000 8.30000 Fixed 3,000,000 2,994,976
27764 Xxxxxxxx Xxxxx 00000 8.20000 Fixed 2,275,000 2,270,127
00000 Xxxxxx Xxxxx 00000 8.73000 Fixed 1,100,000 1,092,670
00-0000000 Xxx Xxxxxxx Xxxxx 00000 8.05000 Fixed 13,150,000 13,150,000
991091659 Xxxxxxx Xxxxxxxxxx 00000 8.41000 Fixed 9,500,000 9,477,053
991091664 Xxxxxxxxxxx Xxxxxxxxxx 00000 8.91000 Fixed 4,700,000 4,677,703
991091661 Xxxxxx Xxxxxxxx 00000 8.36000 Fixed 3,400,000 3,388,080
991091652 Xxxx Xxxxxx 00000 8.41000 Fixed 3,260,000 3,253,412
991091668 Xxxxxxx Xxxxx 00000 8.14000 Fixed 3,225,000 3,217,979
991091647 Xxxxxxxxx Xxx Xxxx 00000 8.44000 Fixed 2,900,000 2,884,745
991091633 Xxxxxxx Xxxxxxxxxxxxx 00000 8.76000 Fixed 2,428,000 2,416,032
991091653 Xxxxxx Xxxxxxxxx 00000 8.56000 Fixed 2,400,000 2,391,847
991091646 Xxxxxxxxxxxx Xxxxxxxxxxxx 00000 8.41500 Fixed 1,791,000 1,784,821
991091669 Xxxxxxxxxxx Xxxxxxxx 00000 7.87000 Fixed 1,750,000 1,743,813
00-0000000 8.82000 Fixed 1,580,000 1,572,308
01-1024923-A Xxxxxxxx Xxxxxxxxxxx 00000
01-1024923-B Xxxxxxxx Xxxxxxxxxxx 00000
01-1024923-C Xxxxxxxx Xxxxxxxxxxx 00000
991091624 Xxxxx Xxxxxx Xxxxxxxxx 00000 8.14000 Fixed 1,380,000 1,376,391
00-0000000 Xxxxxxxxxxx Xxx Xxxxxx 00000 8.32000 Fixed 1,300,000 1,297,834
991091619 Xx. Xxxx Xxxxxxxxx 00000 8.10000 Fixed 1,100,000 1,078,500
991091663 Xxxxxxx Xxxxx 00000 8.63500 Fixed 1,000,000 995,926
991091655 Xxxxxxx Xxxxxxx 00000 8.62000 Fixed 635,000 632,405
991091651 Bronx(Pelham Bay) Xxx Xxxx 00000 8.71000 Fixed 591,000 589,904
991091625 Xxxxxxx Xxxxxxxx 00000 8.72000 Fixed 510,000 507,960
REMAINING ANTICIPATED
TERM TO REPAYMENT DAY PAYMT MONTHLY ARD CREDIT LEASE
LOAN NUMBER MATURITY (MOS.) MATURITY DATE DATE DUE PAYMENT LOAN LOAN
--------------------------------------------------------------------------------------------------------------------------------
27395 113 05/05/10 5 95,639 No No
28269 118 10/01/25 10/01/10 1 84,195 Yes No
27302 116 08/05/10 5 73,746 No No
28492 156 12/05/13 5 46,904 No No
28640 117 09/01/25 09/01/10 1 49,670 Yes No
24767 118 10/05/10 5 39,586 No No
27443 116 08/01/25 08/01/10 1 26,907 Yes No
28394 117 09/05/10 5 22,644 No No
27764 116 08/05/10 5 17,011 No No
26252 112 04/05/10 5 9,029 No No
00-0000000 129 09/01/11 1 96,949 No No
991091659 115 07/01/30 07/01/10 1 72,442 Yes No
991091664 110 02/01/10 1 37,513 No No
991091661 113 05/01/10 05/01/10 1 25,806 Yes No
991091652 116 08/01/10 1 24,859 No No
991091668 116 08/01/10 1 23,979 No No
991091647 114 06/01/10 1 23,234 No No
991091633 114 06/01/10 1 19,978 No No
991091653 116 08/01/10 1 19,423 No No
991091646 113 05/01/10 1 13,664 No No
991091669 114 06/01/10 1 12,683 No No
00-0000000 114 06/01/10 1 13,065 No No
01-1024923-A
01-1024923-B
01-1024923-C
991091624 115 07/01/10 1 10,261 No No
00-0000000 117 09/01/10 1 9,831 No No
991091619 173 05/01/15 1 10,576 No No
991091663 115 07/01/10 1 8,143 No No
991091655 115 07/01/10 1 5,165 No No
991091651 116 08/01/10 1 4,633 No No
991091625 115 07/01/10 1 4,183 No No
BROKER ADDITIONAL
STRIP SERVICING SERVICING
LOAN NUMBER DEFEASANCE LOANS FEE LOAN FEE RATE (%)
-------------------------------------------------------------------------------------------------------
27395 Lock/28_Defeasance/88_0%/2 0.1268
28269 Lock/47_Defeasance/66_0%/7 0.1268
27302 Lock/27_Defeasance/91_0%/2 0.1268
28492 Lock/28_Defeasance/131_0%/2 0.1268
28640 Lock/36_Defeasance/82_0%/2 0.1268
24767 Lock/25_Defeasance/93_0%/2 0.1268
27443 Lock/35_Defeasance/81_0%/4 0.1268
28394 Lock/26_Defeasance/92_0%/2 0.1268
27764 Lock/27_Defeasance/91_0%/2 0.1268
26252 Lock/31_Defeasance/87_0%/2 0.1268
00-0000000 Lock/27_Defeasance/101_0%/4 0.0868
991091659 Lock/29_Defeasance/87_0%/4 0.0868
991091664 Lock/34_Defeasance/82_0%/4 0.0868
991091661 Lock/31_Defeasance/85_0%/4 0.0868
991091652 Lock/28_Defeasance/88_0%/4 0.0868
991091668 Lock/28_Defeasance/88_0%/4 0.0868
991091647 Lock/30_Defeasance/86_0%/4 0.0868
991091633 Lock/30_Defeasance/83_0%/7 0.0868
991091653 Lock/28_Defeasance/88_0%/4 0.0868
991091646 Lock/48_> of YM or 1%/68_0%/4 0.0868
991091669 Lock/30_Defeasance/86_0%/4 0.0868
00-0000000 Lock/30_Defeasance/86_0%/4 0.1268
01-1024923-A
01-1024923-B
01-1024923-C
991091624 Lock/29_Defeasance/87_0%/4 0.0868
00-0000000 Lock/27_Defeasance/89_0%/4 0.0868
991091619 Lock/31_Defeasance/145_0%/4 0.0868
991091663 Lock/29_Defeasance/87_0%/4 0.0868
991091655 Lock/29_Defeasance/87_0%/4 0.0868
991091651 Lock/28_Defeasance/88_0%/4 0.0868
991091625 Lock/29_Defeasance/87_0%/4 0.0868
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan and, if a Loan Group is
involved, the related Companion Loan, shall 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-C3, 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 or Loan Group to the most recent assignee of
record thereof prior to the Trustee, if any, in each case with
evidence of recording indicated thereon or, if any such
original Mortgage or assignment has not been returned from the
applicable public recording office, a copy thereof certified by
GMAC Commercial Mortgage Corporation ("GMACCM") to be a true
and complete copy of the original thereof submitted or, in the
case of assignments to GMACCM, to be submitted for recording;
(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 or Loan Group 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 or Loan Group to the most
recent assignee of record thereof prior to the Trustee, if any;
B-1
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage) executed by
the most recent assignee of record thereof prior to the Trustee
or, if none, by the originator, either in blank or in favor of
the Trustee (in such capacity), which assignment may be
included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of
recording thereon if appropriate, in those instances where the
terms or provisions of the Mortgage, Mortgage Note or any
related security document have been modified or the Mortgage
Loan or Companion 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 or, with respect to each Mortgage
Loan as to which a title insurance policy has not yet been
issued, a lender's title insurance commitment with a letter
from the issuer of the policy stating (or a lender's title
insurance policy commitment marked to show changes) that all
conditions to the issuance of the policy have been satisfied;
(x) the original or a copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan or Companion 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 or
Loan Group 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 or Companion 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 not signed by the Mortgagor;
(xiii) the related Ground Lease or a copy thereof, if any;
B-2
(xiv) if the Mortgage Loan or Companion Loan is a Credit Lease Loan,
an original of the credit lease enhancement insurance policy,
if any, obtained with respect to such Mortgage Loan or
Companion Loan and an original of the residual value insurance
policy, if any, obtained with respect to such Mortgage Loan or
Companion Loan;
(xv) the original or a copy of any lockbox agreement or deposit
account or similar agreement;
(xvi) a copy or an original of any environmental insurance policies;
(xvii) the original or a copy of any intercreditor agreement
(including any Intercreditor Agreement relating to a Loan
Group) with respect to the Mortgage Loan or Loan Group;
(xviii) the original or a copy of any letter of credit; and
(xix) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
provided that, 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-1
FORM OF CERTIFICATE OF AN OFFICER OF THE SELLER
Certificate of Officer of German American Capital Corporation (the "Seller")
I,__________________________________, a ______________________________
of the Seller, hereby certify as follows:
The Seller is a corporation duly organized and validly existing under
the laws of the State of Maryland.
Attached hereto as Exhibit I are true and correct copies of the
organizational documents of the Seller which organizational documents 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 Supplemental Agreement, dated December 5, 2000 (the "Supplemental
Agreement") between GMAC Commercial Mortgage Corporation and the Seller, and/or
the Mortgage Loan Purchase Agreement, dated December 5, 2000 (the "Mortgage Loan
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 Mortgage Loan Purchase Agreement.
C-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
December , 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 or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
December , 2000.
By:
-------------------------------------------
Name:
Title:
C-1-2
EXHIBIT C-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of German American Capital Corporation
--------------------------------------------------
In connection with the execution and delivery by German American
Capital Corporation (the "Seller") of, and the consummation of the transaction
contemplated by, that certain Mortgage Loan Purchase Agreement, dated as of
December 5, 2000 (the "Mortgage Loan 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 Mortgage Loan
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 set forth in the Mortgage Loan Purchase
Agreement 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 Mortgage Loan Purchase Agreement.
Certified this ______ day of December, 2000.
GERMAN AMERICAN CAPITAL
CORPORATION
By:
-------------------------------------------
Name:
Title:
C-2-1
EXHIBIT C-3
FORM OF OPINION OF COUNSEL TO THE SELLER
December 5, 2000
GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
Xxxxxxx, Xxxxx & Co.
Deutsche Bank Securities Inc.
Fitch, Inc.
Xxxxx'x Investors Service, Inc.
LaSalle Bank National Association
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2000-C3
--------------------------------------------------
Ladies and Gentlemen:
I am Counsel to German American Capital Corporation (the "Seller"). In
that capacity, I am familiar with the issuance of certain Mortgage Pass-Through
Certificates, Series 2000-C3 (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 December 1, 2000 (the "Pooling and Servicing Agreement"),
among GMAC Commercial Mortgage Securities, Inc. as depositor (the "Depositor"),
GMAC Commercial Mortgage Corporation ("GMACCM") as master servicer and special
servicer and LaSalle Bank National Association, as trustee (the "Trustee"), and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent").
Certain of the Mortgage Loans were purchased by the Depositor from the
Seller, pursuant to, and for the consideration described in, the Mortgage Loan
Purchase Agreement, dated as of December 5, 2000 (the "Mortgage Loan Purchase
Agreement"), between the Seller and the Depositor. In connection with the
transactions described above, the Seller and GMACCM have entered into a
Supplemental Agreement, dated as of December 5, 2000 (the "Supplemental
Agreement"), in order to facilitate such transactions and in contemplation of
the assignment by the Seller to the Depositor of all of its right, title and
interest in and to the Supplemental Agreement. The Mortgage Loan Purchase
Agreement and the Supplemental Agreement are referred to herein as the
"Agreements." Capitalized terms not defined herein have the meanings set forth
in the Agreement. This opinion is rendered pursuant to Section 8(e) of the
Agreement.
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
C-3-1
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 GMACCM,
the Depositor, 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 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 State of New York 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 State of New York and judicial
interpretations thereof. I do not express any opinion on any issue not expressly
addressed below.
Based upon the foregoing, I am of the opinion that:
1. The Seller is duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland and has the
requisite corporate power and authority to enter into and perform its
obligations under the Agreements.
2. The Agreements have 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 or are construed to provide indemnification with
respect to securities law violations.
3. No consent, approval, authorization or order of a State of New York
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.
C-3-2
4. 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 State of New York or federal statute or regulation
or conflict with or result in a material breach or violation of any order or
regulation of any State of New York 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 is entitled to rely hereon without my
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,
C-3-3
