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EXHIBIT 99.1
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of December 5, 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 and a
companion loan (collectively, the "Mortgage Loans") identified on the schedule
annexed hereto as Exhibit A (the "Mortgage Loan Schedule"). The Arizona Mills
Mortgage Loan identified as loan number 24082 on the Mortgage Loan Schedule (the
"Participation Loan"), which is one of the Mortgage Loans identified on the
Mortgage Loan Schedule, is subject to a participation agreement (the
"Participation Agreement") under which a 50% participating interest (the
"Participation Interest") was created that is currently held by Goldman Sachs
Mortgage Company ("GSMC"), which has sold its interest in the Participation Loan
to Purchaser pursuant to the GSMC Mortgage Loan Purchase Agreement (defined
below). For purposes of this Agreement, the Mortgage Loans shall include the
AmeriSuites Companion Loan identified as loan number 29734 Note B on the
Mortgage Loan Schedule (the "AmeriSuites Companion Loan"), which AmeriSuites
Companion Loan was subordinated to the AmeriSuites Mortgage Loan identified as
loan number 29734 on the Mortgage Loan Schedule (the "AmeriSuites Mortgage
Loan") pursuant to an agreement among noteholders (the "Intercreditor
Agreement"). 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 December 5, 2000 (the "GACC Warehouse Mortgage
Loan Purchase Agreement"), between the Purchaser and GACC, (ii) GSMC pursuant
to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of December 5, 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 December 5, 2000
(the "GACC 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 December 5, 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 and companion loans to a
trust fund (the "Trust Fund") to be formed
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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 Moody's 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 Goldman, Sachs &
Co. (together, the "Underwriters"), pursuant to an underwriting agreement dated
the date hereof (the "Underwriting Agreement"). The Purchaser intends to sell
the Class X, Class E, Class F and Class G Certificates to the Underwriters, the
Class S-MAC-1, Class S-MAC-2, Class S-MAC-3 and Class S-MAC-4 Certificates to
Goldman, 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 R-I, Class R-II, Class R-III,
Class S-AM, Class S-MAC-1, Class S-MAC-2, Class S-MAC-3 and Class S-MAC-4
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 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 and the Companion Loan 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,
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of $502,394,201 subject to a variance of plus or minus 5%. The purchase price
for the Mortgage Loans and the Companion Loan shall be determined by the parties
pursuant to an agreed upon term sheet.
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 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. Notwithstanding the foregoing, the Mortgage File for the Participation
Loan will also include an original executed counterpart of the Participation
Agreement and the Mortgage File for the AmeriSuites Mortgage Loan and the
AmeriSuites Companion Loan will also each include an original executed
counterpart of the Intercreditor Agreement. 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
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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 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
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cure or cause the curing of such defect, as the case may be, and shall
thereafter deliver the substitute or corrected document to or at the direction
of the Purchaser (or any subsequent owner of the affected Mortgage Loan,
including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with Exhibit B (all such other documents and
records, as to any Mortgage Loan, the "Servicing File"), together with all
escrow payments, reserve funds and other comparable funds in the possession of
the Seller (or under its control) with respect to the Mortgage Loans, shall
(unless they are held by a sub-servicer that shall, as of the Closing Date,
begin acting on behalf of the Master Servicer pursuant to a written agreement
between such parties) be delivered by the Seller (or its agent) to the Purchaser
(or its designee) no later than the Closing Date. If a sub-servicer shall, as of
the Closing Date, begin acting on behalf of the Master Servicer with respect to
any Mortgage Loan pursuant to a written agreement between such parties, the
Seller shall deliver a copy of the related Servicing File to the Master
Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage
Loans to the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence Review.
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), (i) each of the representations and warranties set forth in
Exhibit C with respect to each Mortgage Loan other than the Participation Loan
and (ii) with respect to the Participation Loan, each of the representations and
warranties set forth in Exhibit E, 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:
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(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 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.
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(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the Initial
Purchasers and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans or
the consummation of any of the other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its behalf has (A)
offered, pledged, sold, disposed of or otherwise transferred any Certificate,
any interest in any Certificate or any other similar security to any person in
any manner, (B) solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (C) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (D) made any general
solicitation by means of general advertising or in any other manner with respect
to any Certificate, any interest in any Certificate or any similar security, or
(E) taken any other action, that (in the case of any of the acts described in
clauses (A) through (E) above) would constitute or result in a violation of the
Securities Act or any state securities law relating to or in connection with the
issuance of the Certificates or require registration or qualification pursuant
to the Securities Act or any state securities law of any Certificate not
otherwise intended to be a Registered Certificate. In addition, the Seller will
not act, nor has it authorized or will it authorize any person to act, in any
manner set forth in the foregoing sentence with respect to any of the
Certificates or interests therein. For purposes of this paragraph 4(b)(viii),
the term "similar security" shall be deemed to include, without limitation, any
security evidencing or, upon issuance, that would have evidenced an interest in
the Mortgage Loans or the 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-11, inclusive,
of Annex A to the Prospectus Supplement (as defined in Section 9) (the "Loan
Detail") and, to the extent consistent therewith, the information set forth on
the diskette attached to the Prospectus Supplement and the accompanying
prospectus (the "Diskette"), is true and correct in all material respects.
Insofar as it relates to the Mortgage Loans and 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-C3 Transaction--The Mortgage Pool," "--Geographic
Concentrations of the Mortgaged Properties," "--Property Types," "--Prepayment
or 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
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available for review by investors) omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(x) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental authority
or court is required, under federal or state law (including, with
respect to any bulk sale laws), for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby,
other than (1) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with Seller's sale of the Mortgage Loans to the Purchaser,
(2) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (3)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect
on the performance by the Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties made pursuant to and set forth in subsection
(b) above which materially and adversely affects the interests of the Purchaser
or a breach of any of the representations and warranties made pursuant to
subsection (a) above and set forth in Exhibit C which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the Purchaser
or its successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(ii) 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.
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(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 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.
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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 or Exhibit E, as applicable (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 sixty (60) days of the earlier
of discovery or receipt of notice by the Seller, from either the Purchaser or
any successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) thereof at the
applicable Purchase Price by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s).
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,
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(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). Notwithstanding anything to the contrary contained
herein, the terms and conditions of this paragraph shall not apply to the
Participation Loan.
If any such Breach is not corrected or cured in all material respects
within the applicable Permitted Cure Period, the Seller shall, not later than
the last day of such Permitted Cure Period, (i) repurchase the affected Mortgage
Loan from the Purchaser or its assignee at the applicable Purchase Price or (ii)
if within the three-month period commencing on the closing date (or within the
two-year period commencing on the Closing Date if the related Mortgage Loan is a
"defective obligation" within the meaning of Section 860(a)(4)(B)(ii) of the
Code and Treasury Regulation Section 1.860G-2(f)), at its option, replace such
Mortgage Loan with a Qualifying Substitute Mortgage Loan and pay any
corresponding Substitution Shortfall Amount. The Seller agrees that any such
repurchase or substitution shall be completed in accordance with and subject to
the terms and conditions of the Pooling and Servicing Agreement.
For purposes of the preceding paragraph only, the "Permitted Cure
Period" applicable to any Breach in respect of any Mortgage Loan shall be the
90-day period immediately following the earlier of the discovery by the Seller
or receipt by the Seller of notice of such Breach; provided that if such Breach
cannot be corrected or cured in all material respects within such 90-day period,
but is reasonably likely that such Breach could be corrected or cured within 180
days of the earlier of discovery by the Seller and receipt by the Seller of
notice of such Breach and the Seller is diligently attempting to effect such
correction or cure, then the applicable Permitted Cure Period shall, with the
consent of the Purchaser or its assignee (which consent shall not be
unreasonably withheld), be extended for an additional 90 days, unless (i) the
affected Mortgage Loan is in default and (ii) the applicable Breach constitutes
a Material Document Defect (as defined in the Pooling and Servicing Agreement)
other than a Material Document Defect resulting solely from a delay caused by
the public recording or filing office where a document has been sent for
recording or filing.
(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 Exhibit E,
as
11
<PAGE>
applicable, or in connection with the circumstances described in Section 6(b).
If the Seller defaults on its obligations to repurchase any Mortgage Loan in
accordance with Section 6(a) or 6(b) or disputes its obligation to repurchase
any Mortgage Loan in accordance with either such subsection, the Purchaser or
its successors and assigns may take such action as is appropriate to enforce
such payment or performance, including, without limitation, the institution and
prosecution of appropriate proceedings. The Seller shall reimburse the Purchaser
for all necessary and reasonable costs and expenses incurred in connection with
such enforcement.
(e) In the event that (i) any Mortgage Loan that is a
Cross-Collateralized Mortgage Loan (as defined in the Pooling and Servicing
Agreement) is required to be repurchased pursuant to this Section 6 as a result
of a Breach, Defect or other event, and (ii) the cross-collateralization
provisions of the related Cross-Collateralized Mortgage Loans cannot be released
to the extent required by Section 2.03 of the Pooling and Servicing Agreement to
permit repurchase of the affected Mortgage Loan within the time period specified
in this Agreement for such repurchase, the Seller shall repurchase the affected
Mortgage Loan and all of the related Cross-Collateralized Mortgage Loans not so
released. In the event that the AmeriSuites Mortgage Loan or the AmeriSuites
Companion Loan is required to be repurchased pursuant to this Section 6 as a
result of a Breach, Defect or other event, the Seller shall repurchase both the
AmeriSuites Mortgage Loan and the AmeriSuites Companion Loan.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of Mayer, Brown & Platt, 1675 Broadway, New York, New York
10019 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;
(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;
12
<PAGE>
(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;
(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
13
<PAGE>
(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-C3
Transaction -- The Mortgage Pool," "--Geographic Concentrations of the Mortgaged
Property," "--Property Types," "--Prepayment or 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 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.
14
<PAGE>
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-45256 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 November 20,
2000, as supplemented by the prospectus supplement dated December 5, 2000 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated December 14, 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 Kidder, Peabody Acceptance Corporation I, Kidder, Peabody
& Co. Incorporated, and Kidder 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 "Kidder
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 Kidder 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
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
15
<PAGE>
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.
(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.
16
<PAGE>
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
200 Witmer Road, Horsham, Pennsylvania 19044-8015, Attention: Structured Finance
Manager, facsimile no. (215) 328-1775, 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 200 Witmer
Road, Horsham, Pennsylvania 19044-8015, Attention: Structured Finance Manager,
facsimile no. (215) 328-1775, 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.
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
17
<PAGE>
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 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.
18
<PAGE>
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.
19
<PAGE>
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/
--------------------------------------
Name: David Lazarus
Title: Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/
--------------------------------------
Name: David Lazarus
Title: Vice President
S-1
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
GMACCM / RFC MORTGAGE LOAN SCHEDULE
<TABLE>
<CAPTION>
LOAN NUMBER LOAN NAME ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
24082 Arizona Mills 5000 Arizona Mills Circle
29734 AmeriSuites Loan
29734-A AmeriSuites - Birmingham 2980 Highway 150
29734-B AmeriSuites Uptown - Albuquerque 6901 Arvada Avenue, N.E.
29734-C AmeriSuites - Linthicum Heights 940 International Drive
29734-D AmeriSuites - Tampa 4811 West Main Street
29734-E AmeriSuites - Flagstaff 2455 South Beulah Boulevard
29734-F AmeriSuites - Forest Park 12001 Chase Plaza Drive
29734-G Homewood Suites - Germantown 7855 Wolf River Parkway
29734-H Residence Inn - Somers Point 900 Mays Landing Road
29734 Note B AmeriSuites Companion Loan
29734-A AmeriSuites - Birmingham 2980 Highway 150
29734-B AmeriSuites Uptown - Albuquerque 6901 Arvada Avenue, N.E.
29734-C AmeriSuites - Linthicum Heights 940 International Drive
29734-D AmeriSuites - Tampa 4811 West Main Street
29734-E AmeriSuites - Flagstaff 2455 South Beulah Boulevard
29734-F AmeriSuites - Forest Park 12001 Chase Plaza Drive
29734-G Homewood Suites - Germantown 7855 Wolf River Parkway
29734-H Residence Inn - Somers Point 900 Mays Landing Road
28723 Lichtenstein Retail Portfolio
28723-A Hale Road Plaza 120 Hale Road
28723-B Christmas Tree Shops Plaza 1505 South Washington Street
28723-C Bernie's Plaza 40 Cumberland Avenue
28450 Governor's Square Apartments 520 P Street, 1451 3rd Street
29497 Briargrove Plaza Shopping Center 6100 - 6154 Westheimer Road
27395 Bound Brook Apartments West Union Avenue
28997 Hillside Village Shopping Center 6441 E. Mockingbird Lane
28269 Holiday Inn-Pittsburgh Airport 1406 Beers School Road
27302 Fairfax Circle Shopping Center 9629-9703 Lee Highway
28270 Courtyard by Marriott 2700 Hoppe Trail
28492 Vistas at Northbrook 619 West Orlando Avenue
28640 Fairfield Inn by Marriott 2750 Slater Road
24767 Villages at McClintock 1701 East Don Carlos Avenue
28491 TownePlace Suites by Marriott 66 Zephyr Road
28350 Bay Shore Retail Center 3845 Bayshore Road
28616 Waterford at Summit View Apartments 8301 Presidents Drive
28493 Courtyard by Marriott 80 Northeast Loop 410
28499 Courtyard by Marriott (MI) 1592 Mall Drive
28497 Fairfield Inn by Marriott (TX) 88 Northeast Loop 410
29297 Amtech Systems Corporation Facility 8600 Jefferson Street, NE
27443 Microtel Inn & Suites (Maryland) 1170 Winterson Road
28233 Bainbridge Self-Storage 9300 Sportsman Club Road NE
28394 Pine Circle Townhomes 7102-7196 Lodgepole Drive, SE
27764 Timberlake Courts Apartments 125 Interstate Highway 10 North
27963 University Avenue Office Building 7373 University Avenue
27587 Airline Medical Office 5990 Airline Drive
27965 Congress Avenue Office Park I 1760 N. Congress Avenue
26252 Hunt Club Apartments 2211 West Hickory Street
28267 El Camino Real Courtyards 250 El Camino Real
28261 Arcadia Business Center 735 W. Duarte Road
27964 Beach Professional Plaza 12362 Beach Boulevard
28992 Brentstone Apartments 2712 Bartlett Avenue
01-1027968 2911 Florence Avenue Retail 2911 Florence Avenue
01-1027711 Parkview Professional Building 1800 Rockaway Avenue
01-1026840 Kendall Apartment Portfolio
01-1026840-A 39th Street Apartments 975, 1005, 1015 39th Street
01-1026840-B Sutton Place Apartments 1832 - 1836 Sutton Court
01-1026840-C Winston Drive Apartments 3370 - 3400 Winston Drive
01-1026840-D 25th Street Apartments 3902 25th Street
01-1026840-E Kennedy Drive Apartments 2005 - 2007 Kennedy Drive
01-1026840-F Loganwood Apartments 2104 18th Avenue
01-1026670 Island Mall 1425 McCulloch Boulevard
01-1025159 Highland Park Apartments 6622 - 6766 North Fessenden Street
01-1026870 Ashley Apartment Building 4954 West Pine Boulevard
01-1028013 Carlton Heights Apartments 8206 Bunche Drive
01-1027426 Colonial Apartments 165 Pearl Street
01-1024923 Trinity Towers, Brittany Apartments, Wagner Apts
01-1024923-A Trinity Towers Apartments 34 - 38 Vernon Street
01-1024923-B Brittany Apartments 44 New Britain Avenue
01-1024923-C Wagner Apartments 59 Webster Street
01-1027758 171 - 181 Market Street Office 171 - 181 Market Street
01-1027009 Hudson Place Apartments 5605, 5610, 5611, 5612 Hudson Street; 1517-1519
Matilda St.
01-1025837 Greenville Shopping Center 2715 Traders Road
01-1026862 Beach AC Mini-Storage 101 Central Road
01-1026872 Palmetto Medical Park 22023 State Road 7
01-1024063 100 East Main Office 100 East Main Street and 101 East Water Street
01-1027024 Patriot Self Storage 1144 Sigman Road
01-1027879 374 South 5th Street Apartments 374 South 5th Street
01-1023747 Independent Packaging Industrial Building 303 North Curry Pike
01-1028782 367 South 5th Street Multifamily 367 South 5th Street
01-1028014 Fairfield Apartments 100 South Bowser Road
991091618 Valley Creek Office Property 8301, 8401, & 8501 Golden Valley Road
11029238 Athens Promenade 3640-3660 Atlanta Highway
11029240 DeZavala Oaks Apartments 6033 DeZavala Road
991091621 Courtyard by Marriott - Orange 136 Marsh Hill Road
991091659 Avanex II 40949 Encyclopedia Circle
991091630 Porter Square Galleria One Porter Square
991091620 Courtyard by Marriott - Westborough 3 Technology Drive
991091256 Windover of Melbourne Apartments 2255 Friday Court #225
991091662 Park Colony Apartments 9127 N. Potter Road
991091255 Windover Health Club Apartments 5496 Fitness Circle
11029222 The Willows Apartments 49330 Carlos Road
11029255 Fowler Plaza 2301 East Fowler Avenue
991091257 Windover Golden Pointe 2555 Friday Court #225
991091664 Bluffs IV 6305 & 6309 Carpinteria Avenue
991091661 Linens & Things 3200 Mall Loop Drive
991091652 Wellington Mobile Home Park 245 Lancaster Drive
991091668 Suncrest Village Apartments 10901 & 11061 Village Bend Lane
11029223 Best Buy Mankato 1895 Adam Street
991091254 Windover of Fort Pierce Apartments 2476 Atlantis Drive
991091647 Metro Park Complex 333 Metro Park
991091633 Route One Crossing 108 Newbury Street (Route 1)
991091653 Riverbend MHP 7535 Northeast River Road
991091657 Eckerd Drug/Children's Hospital 2604 - 2606 Route 130 North
991091654 Beacon Commons 5629-5669 Beacon Street
11029256 Mission Square Retail Center 9735 Old St. Augustine Road
991091632 Louis Brandman and Sons 173 Main Street and 10 Catherine Street
991091646 Empire Building 1231 Walnut Street
991091669 Courtyard Park 4201 Oglethorpe Street
991091631 Lansdale & Five Points Apartments 2713, 2719 Azalea Gardens Rd & 1209-1213
Norview Ave
991091622 Federal Plaza Shopping Center 1924-1960 S. Federal Highway
991091666 Parkwood Square Shopping Center 3010 Highway 30 West
991091626 Carrollton/Del-Mar Apartments 1600 & 1610 Belt Line Drive
991091624 Grand Manor Apartments 7405 W 123rd Street
991091635 Ath-Dara 83-93 S. Lansdowne Avenue
11029249 Bridgewater Mews 1952 Route 22 East
991091644 Descanso Plaza Apartments 11102 East 16th Avenue
991091619 Bluebird Apartments 900 - 908 Rice Street
991091628 Wexford Apartments 430 Elm Street
991091627 South Lamar Retail 2300 South Lamar Boulevard
991091663 Wheatley Plaza Apartments 5600 Market Street
991091645 210-230 West Nyack Road 210 - 230 West Nyack Road
991091650 Metacom Apartments 400R Metacom Avenue
991091634 Oak Apartments 8904-8914 Temple Terrace Highway
991091649 Metacom Retail 390 Metacom Avenue
11029241 La Comercia 5805 Lyons Avenue
991091623 Plant City Shopping Center 1705-1707 Jim Redman Parkway
991091655 Southern Acres MHP 3334 East Southern Avenue
991091651 Willow Lane Apartments 3101-3111 Willow Lane
991091665 Huffmeister Plaza 11302 Huffmeister Road
991091625 Belmont Square 6347-6359 West Belmont Avenue
991091658 15-17 Massasoit Avenue 15-17 Massasoit Avenue
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
INTEREST
RATE RATE ORIGINAL CUT-OFF DATE
LOAN NUMBER CITY STATE ZIP CODE (%) TYPE BALANCE ($) BALANCE ($)
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
24082 Tempe Arizona 85282 7.89500 Fixed 73,000,000 72,915,715
29734 8.44385 Fixed 31,500,000 31,468,201
29734-A Hoover Alabama 35244
29734-B Albuquerque New Mexico 87110
29734-C Linthicum Heights Maryland 21090
29734-D Tampa Florida 33607
29734-E Flagstaff Arizona 86001
29734-F Forest Park Ohio 45240
29734-G Germantown Tennessee 38138
29734-H Somers Point New Jersey 08244
29734 Note B 6.89300 Fixed 4,500,000 4,495,457
29734-A Hoover Alabama 35244
29734-B Albuquerque New Mexico 87110
29734-C Linthicum Heights Maryland 21090
29734-D Tampa Florida 33607
29734-E Flagstaff Arizona 86001
29734-F Forest Park Ohio 45240
29734-G Germantown Tennessee 38138
29734-H Somers Point New Jersey 08244
28723 8.25000 Fixed 28,350,000 28,331,922
28723-A Manchester Connecticut 06040
28723-B North Attleboro Massachusetts 02760
28723-C North Attleboro Massachusetts 02760
28450 Sacramento California 95814 8.08000 Fixed 19,600,000 19,556,631
29497 Houston Texas 77057 7.96000 Fixed 14,950,000 14,939,887
27395 Bound Brook New Jersey 08805 8.06000 Fixed 12,960,000 12,960,000
28997 Dallas Texas 75214 8.18000 Fixed 12,050,000 12,029,212
28269 Moon Township Pennsylvania 15108 8.45000 Fixed 10,500,000 10,481,894
27302 Fairfax Virginia 22031 8.45000 Fixed 9,600,000 9,579,724
28270 Round Rock Texas 78681 8.50000 Fixed 6,100,000 6,083,592
28492 Normal Illinois 61761 8.50000 Fixed 6,100,000 6,085,660
28640 Morrisville North Carolina 27560 9.25000 Fixed 5,800,000 5,786,500
24767 Tempe Arizona 85281 7.99000 Fixed 5,400,000 5,393,921
28491 Williston Vermont 05495 8.75000 Fixed 5,200,000 5,185,037
28350 Lower Township New Jersey 08204 8.21500 Fixed 5,100,000 5,094,598
28616 Swatara Township Pennsylvania 17111 8.00000 Fixed 5,000,000 4,996,645
28493 San Antonio Texas 78216 8.56250 Fixed 4,400,000 4,385,061
28499 Benton Harbor Michigan 49022 8.31250 Fixed 3,800,000 3,786,431
28497 San Antonio Texas 78216 8.56250 Fixed 3,700,000 3,687,438
29297 Albuquerque New Mexico 87113 8.09000 Fixed 3,500,000 3,496,165
27443 Linthicum Maryland 21090 8.65000 Fixed 3,300,000 3,288,994
28233 Bainbridge Island Washington 98110 8.75000 Fixed 3,200,000 3,194,811
28394 Grand Rapids Michigan 49548 8.30000 Fixed 3,000,000 2,994,976
27764 Beaumont Texas 77707 8.20000 Fixed 2,275,000 2,270,127
27963 La Mesa California 92041 8.20000 Fixed 1,685,000 1,682,107
27587 Houston Texas 77076 8.37500 Fixed 1,350,000 1,349,161
27965 West Palm Beach Florida 33409 8.20000 Fixed 1,340,000 1,337,700
26252 Denton Texas 76201 8.73000 Fixed 1,100,000 1,092,670
28267 Tustin California 92780 8.37500 Fixed 1,100,000 1,098,192
28261 Arcadia California 91007 8.66000 Fixed 1,000,000 998,471
27964 Stanton California 90680 8.20000 Fixed 950,000 948,369
28992 Pascagoula Mississippi 39567 7.92000 Fixed 840,000 839,427
01-1027968 Los Angeles California 90255 8.67000 Fixed 4,650,000 4,641,273
01-1027711 Hewlett New York 11557 8.43000 Fixed 3,765,000 3,755,960
01-1026840 8.69000 Fixed 3,450,000 3,443,562
01-1026840-A Bettendorf Iowa 52722
01-1026840-B Bettendorf Iowa 52722
01-1026840-C Bettendorf Iowa 52722
01-1026840-D Moline Illinois 61265
01-1026840-E East Moline Illinois 61244
01-1026840-F Moline Illinois 61265
01-1026670 Lake Havasu City Arizona 92083 9.06000 Fixed 2,480,000 2,475,119
01-1025159 Portland Oregon 97203 8.28000 Fixed 2,000,000 1,994,979
01-1026870 St. Louis Missouri 63108 8.20000 Fixed 2,000,000 1,995,716
01-1028013 Dallas Texas 75243 8.75000 Fixed 1,960,000 1,955,735
01-1027426 Seymour Connecticut 06483 8.08000 Fixed 1,700,000 1,696,238
01-1024923 8.82000 Fixed 1,580,000 1,572,308
01-1024923-A Hartford Connecticut 06106
01-1024923-B Hartford Connecticut 06106
01-1024923-C Hartford Connecticut 06106
01-1027758 Paterson New Jersey 07505 8.57000 Fixed 1,342,000 1,339,900
01-1027009 Dallas Texas 75206 8.12000 Fixed 1,200,000 1,196,844
01-1025837 Greenville Texas 75402 8.64000 Fixed 1,160,000 1,157,388
01-1026862 Indian Harbor Beach Florida 32937 8.75000 Fixed 1,000,000 993,364
01-1026872 Boca Raton Florida 33428 8.50000 Fixed 1,000,000 998,030
01-1024063 Charlottesville Virginia 22902 9.00000 Fixed 977,000 972,478
01-1027024 Conyers Georgia 30012 8.75000 Fixed 955,000 951,204
01-1027879 Brooklyn New York 11211 8.22000 Fixed 940,000 938,394
01-1023747 Bloomington Indiana 47404 8.77000 Fixed 875,000 872,266
01-1028782 Brooklyn New York 11211 8.22000 Fixed 723,000 721,765
01-1028014 Richardson Texas 75081 9.25000 Fixed 640,000 638,819
991091618 Golden Valley Minnesota 55427 8.73000 Fixed 14,000,000 13,947,530
11029238 Athens Georgia 30606 8.24000 Fixed 13,300,000 13,286,010
11029240 San Antonio Texas 78249 8.05000 Fixed 13,150,000 13,150,000
991091621 Orange Connecticut 06477 8.93000 Fixed 12,190,000 12,123,647
991091659 Fremont California 94538 8.41000 Fixed 9,500,000 9,477,053
991091630 Cambridge Massachusetts 02140 8.43000 Fixed 8,885,000 8,833,493
991091620 Westborough Massachusetts 01581 8.93000 Fixed 8,630,000 8,583,025
991091256 West Melbourne Florida 32904 8.16000 Fixed 6,820,000 6,805,233
991091662 Des Plaines Illinois 60016 8.20000 Fixed 6,500,000 6,483,295
991091255 Orlando Florida 32839 8.16000 Fixed 5,725,000 5,712,604
11029222 Chesterfield Township Michigan 48045 8.32000 Fixed 5,480,000 5,470,868
11029255 Tampa Florida 33612 8.56000 Fixed 4,808,000 4,803,377
991091257 West Melbourne Florida 32904 8.16000 Fixed 4,805,000 4,794,596
991091664 Carpinteria California 93013 8.91000 Fixed 4,700,000 4,677,703
991091661 Joliet Illinois 60432 8.36000 Fixed 3,400,000 3,388,080
991091652 Reno Nevada 89506 8.41000 Fixed 3,260,000 3,253,412
991091668 Houston Texas 77072 8.14000 Fixed 3,225,000 3,217,979
11029223 Mankato Minnesota 56001 8.45000 Fixed 3,000,000 2,995,161
991091254 Ft. Pierce Florida 34981 8.16000 Fixed 2,950,000 2,943,612
991091647 Rochester New York 14623 8.44000 Fixed 2,900,000 2,884,745
991091633 Peabody Massachusetts 01960 8.76000 Fixed 2,428,000 2,416,032
991091653 Otsego Minnesota 55330 8.56000 Fixed 2,400,000 2,391,847
991091657 Cinnaminson New Jersey 08077 8.62000 Fixed 2,242,000 2,236,920
991091654 Pittsburgh Pennsylvania 15217 8.39000 Fixed 2,200,000 2,195,529
11029256 Jacksonville Florida 32257 8.58000 Fixed 2,015,000 2,009,661
991091632 Norwalk Connecticut 06851 8.90000 Fixed 1,900,000 1,881,300
991091646 Philadelphia Pennsylvania 19107 8.41500 Fixed 1,791,000 1,784,821
991091669 Hyattsville Maryland 20781 7.87000 Fixed 1,750,000 1,743,813
991091631 Norfolk Virginia 23513 8.01000 Fixed 1,730,000 1,718,602
991091622 Stuart Florida 34994 8.42000 Fixed 1,510,000 1,503,586
991091666 Huntsville Texas 77340 8.78000 Fixed 1,500,000 1,495,877
991091626 Carrollton Texas 75211 8.28000 Fixed 1,482,000 1,475,493
991091624 Apple Valley Minnesota 55124 8.14000 Fixed 1,380,000 1,376,391
991091635 Lansdowne Pennsylvania 19050 8.39000 Fixed 1,336,000 1,330,267
11029249 Bridgewater New Jersey 08807 8.32000 Fixed 1,300,000 1,297,834
991091644 Aurora Colorado 80010 8.37000 Fixed 1,219,000 1,210,266
991091619 St. Paul Minnesota 55117 8.10000 Fixed 1,100,000 1,078,500
991091628 Pottstown Pennsylvania 19464 8.11000 Fixed 1,100,000 1,095,911
991091627 Austin Texas 78704 8.54000 Fixed 1,000,000 995,843
991091663 Houston Texas 77020 8.63500 Fixed 1,000,000 995,926
991091645 West Nyack New York 10960 9.63000 Fixed 920,000 904,541
991091650 Bristol Rhode Island 02809 8.67000 Fixed 800,000 798,215
991091634 Tampa Florida 33637 8.57000 Fixed 790,000 786,737
991091649 Bristol Rhode Island 02809 8.67000 Fixed 735,000 732,028
11029241 Houston Texas 77020 8.90000 Fixed 665,000 664,045
991091623 Plant City Florida 33566 8.42000 Fixed 655,000 652,218
991091655 Phoenix Arizona 85040 8.62000 Fixed 635,000 632,405
991091651 Bronx(Pelham Bay) New York 10461 8.71000 Fixed 591,000 589,904
991091665 Houston Texas 77065 8.88000 Fixed 550,000 546,974
991091625 Chicago Illinois 60618 8.72000 Fixed 510,000 507,960
991091658 Bristol Rhode Island 02809 9.14000 Fixed 368,000 367,295
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
REMAINING ANTICIPATED
TERM TO REPAYMENT DAY PAYMT MONTHLY ARD CREDIT LEASE
LOAN NUMBER MATURITY (MOS.) MATURITY DATE DATE DUE PAYMENT LOAN LOAN
--------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
24082 118 10/05/10 5 530,314 No No
29734 119 11/01/25 11/01/10 1 253,615 Yes No
29734-A
29734-B
29734-C
29734-D
29734-E
29734-F
29734-G
29734-H
29734 Note B 119 11/01/25 11/01/10 1 30,227 Yes No
29734-A
29734-B
29734-C
29734-D
29734-E
29734-F
29734-G
29734-H
28723 119 11/05/10 5 212,984 No No
28723-A
28723-B
28723-C
28450 116 08/05/10 5 144,912 No No
29497 119 11/05/10 5 109,281 No No
27395 113 05/05/10 5 95,639 No No
28997 117 09/05/10 5 89,935 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
28270 117 09/01/25 09/01/10 1 49,119 Yes 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
28491 117 09/01/25 09/01/10 1 42,764 Yes No
28350 118 10/05/10 5 38,189 No No
28616 179 11/05/15 5 36,688 No No
28493 116 08/01/25 08/01/10 1 35,616 Yes No
28499 116 08/01/25 08/01/10 1 30,120 Yes No
28497 116 08/01/25 08/01/10 1 29,949 Yes No
29297 118 10/05/10 5 25,902 No No
27443 116 08/01/25 08/01/10 1 26,907 Yes No
28233 118 10/05/10 5 26,309 No No
28394 117 09/05/10 5 22,644 No No
27764 116 08/05/10 5 17,011 No No
27963 117 09/05/10 5 12,600 No No
27587 119 11/05/10 5 10,261 No No
27965 117 09/05/10 5 10,020 No No
26252 112 04/05/10 5 9,029 No No
28267 117 09/05/10 5 8,361 No No
28261 117 09/05/10 5 7,803 No No
27964 117 09/05/10 5 7,104 No No
28992 119 11/05/10 5 6,117 No No
01-1027968 116 08/01/10 1 36,316 No No
01-1027711 115 07/01/10 1 28,763 No No
01-1026840 116 08/01/10 1 26,993 No No
01-1026840-A
01-1026840-B
01-1026840-C
01-1026840-D
01-1026840-E
01-1026840-F
01-1026670 115 07/01/10 1 20,062 No No
01-1025159 115 07/01/10 1 15,068 No No
01-1026870 116 08/01/10 1 14,955 No No
01-1028013 55 07/01/05 1 15,419 No No
01-1027426 116 08/01/10 1 12,569 No No
01-1024923 114 06/01/10 1 13,065 No No
01-1024923-A
01-1024923-B
01-1024923-C
01-1027758 117 09/01/10 1 10,385 No No
01-1027009 115 07/01/10 1 8,906 No No
01-1025837 115 07/01/10 1 9,035 No No
01-1026862 112 04/01/10 1 8,221 No No
01-1026872 116 08/01/10 1 7,689 No No
01-1024063 110 02/01/10 1 7,861 No No
01-1027024 115 07/01/10 1 7,851 No No
01-1027879 117 09/01/10 1 7,042 No No
01-1023747 115 07/01/10 1 7,062 No No
01-1028782 117 09/01/10 1 5,416 No No
01-1028014 55 07/01/05 1 5,265 No No
991091618 112 04/01/10 04/01/10 1 109,938 Yes No
11029238 118 10/01/10 10/01/10 1 99,825 Yes No
11029240 129 09/01/11 1 96,949 No No
991091621 113 05/01/25 05/01/10 1 101,714 Yes No
991091659 115 07/01/30 07/01/10 1 72,442 Yes No
991091630 109 01/01/10 1 67,878 No No
991091620 113 05/01/25 05/01/10 1 72,009 Yes No
991091256 116 08/01/10 1 50,806 No No
991091662 115 07/01/10 1 48,604 No No
991091255 116 08/01/10 1 42,648 No No
11029222 117 09/01/10 1 41,439 No No
11029255 118 10/01/10 1 37,174 No No
991091257 116 08/01/10 1 35,795 No 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
11029223 117 09/01/10 1 22,961 No No
991091254 116 08/01/10 1 21,976 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
991091657 115 07/01/10 1 17,430 No No
991091654 116 08/01/10 1 16,745 No No
11029256 117 09/01/10 1 16,334 No No
991091632 113 05/01/10 05/01/10 1 16,973 Yes No
991091646 113 05/01/10 1 13,664 No No
991091669 114 06/01/10 1 12,683 No No
991091631 113 05/01/10 1 13,364 No No
991091622 114 06/01/10 1 11,822 No No
991091666 114 06/01/10 1 11,833 No No
991091626 115 07/01/10 1 11,715 No No
991091624 115 07/01/10 1 10,261 No No
991091635 115 07/01/10 1 10,659 No No
11029249 117 09/01/10 1 9,831 No No
991091644 112 04/01/10 1 9,709 No No
991091619 173 05/01/15 1 10,576 No No
991091628 116 08/01/10 1 8,570 No No
991091627 115 07/01/10 1 8,079 No No
991091663 115 07/01/10 1 8,143 No No
991091645 173 05/01/15 1 9,679 No No
991091650 115 07/01/10 1 6,248 No No
991091634 115 07/01/10 1 6,399 No No
991091649 115 07/01/10 1 6,003 No No
11029241 117 09/01/10 1 5,303 No No
991091623 114 06/01/10 1 5,128 No No
991091655 115 07/01/10 1 5,165 No No
991091651 116 08/01/10 1 4,633 No No
991091665 113 05/01/10 1 4,570 No No
991091625 115 07/01/10 1 4,183 No No
991091658 115 07/01/10 1 2,998 No No
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
BROKER ADDITIONAL
STRIP SERVICING SERVICING
LOAN NUMBER DEFEASANCE LOANS FEE LOAN FEE RATE (%)
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
24082 Lock/25_Defeasance/91_0%/4 0.0318
29734 Lock/24_Defeasance/92_0%/4 0.1268
29734-A
29734-B
29734-C
29734-D
29734-E
29734-F
29734-G
29734-H
29734 Note B Lock/24_Defeasance/92_0%/4 0.1268
29734-A
29734-B
29734-C
29734-D
29734-E
29734-F
29734-G
29734-H
28723 Lock/24_Defeasance/94_0%/2 0.1268
28723-A
28723-B
28723-C
28450 Lock/27_Defeasance/91_0%/2 0.0768
29497 Lock/24_Defeasance/94_0%/2 0.0518
27395 Lock/28_Defeasance/88_0%/2 0.1268
28997 Lock/26_Defeasance/93_0%/1 0.1268
28269 Lock/47_Defeasance/66_0%/7 0.1268
27302 Lock/27_Defeasance/91_0%/2 0.1268
28270 Lock/48_Defeasance/70_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
28491 Lock/47_Defeasance/71_0%/2 0.1268
28350 Lock/25_Defeasance/91_0%/4 0.1268
28616 Lock/24_Defeasance/154_0%/2 0.1268
28493 Lock/35_Defeasance/82_0%/3 0.1268
28499 Lock/35_Defeasance/82_0%/3 0.1268
28497 Lock/35_Defeasance/82_0%/3 0.1268
29297 Lock/25_Defeasance/93_0%/2 0.1268
27443 Lock/35_Defeasance/81_0%/4 0.1268
28233 Lock/25_Defeasance/93_0%/2 0.1268
28394 Lock/26_Defeasance/92_0%/2 0.1268
27764 Lock/27_Defeasance/91_0%/2 0.1268
27963 Lock/26_Defeasance/92_0%/2 0.1268
27587 Lock/24_Defeasance/94_0%/2 0.1268
27965 Lock/26_Defeasance/92_0%/2 0.1268
26252 Lock/31_Defeasance/87_0%/2 0.1268
28267 Lock/26_Defeasance/92_0%/2 0.1268
28261 Lock/26_Defeasance/92_0%/2 0.1268
27964 Lock/26_Defeasance/92_0%/2 0.1268
28992 Lock/24_Defeasance/94_0%/2 0.1268
01-1027968 Lock/28_Defeasance/88_0%/4 0.1268
01-1027711 Lock/29_Defeasance/87_0%/4 0.1268
01-1026840 Lock/28_Defeasance/88_0%/4 0.1268
01-1026840-A
01-1026840-B
01-1026840-C
01-1026840-D
01-1026840-E
01-1026840-F
01-1026670 Lock/29_Defeasance/87_0%/4 0.1268
01-1025159 Lock/29_Defeasance/87_0%/4 0.1268
01-1026870 Lock/28_Defeasance/88_0%/4 0.1268
01-1028013 Lock/29_Defeasance/27_0%/4 0.1268
01-1027426 Lock/28_Defeasance/88_0%/4 0.1268
01-1024923 Lock/30_Defeasance/86_0%/4 0.1268
01-1024923-A
01-1024923-B
01-1024923-C
01-1027758 Lock/27_Defeasance/89_0%/4 0.2518
01-1027009 Lock/29_Defeasance/87_0%/4 0.1268
01-1025837 Lock/29_Defeasance/87_0%/4 0.2518
01-1026862 Lock/32_Defeasance/84_0%/4 0.2518
01-1026872 Lock/28_Defeasance/88_0%/4 0.2518
01-1024063 Lock/34_Defeasance/82_0%/4 0.2518
01-1027024 Lock/29_Defeasance/87_0%/4 0.2518
01-1027879 Lock/27_Defeasance/89_0%/4 0.2518
01-1023747 Lock/29_Defeasance/87_0%/4 0.1268
01-1028782 Lock/27_Defeasance/89_0%/4 0.2518
01-1028014 Lock/29_Defeasance/27_0%/4 0.2518
991091618 Lock/32_Defeasance/84_0%/4 0.0868
11029238 Lock/26_Defeasance/90_0%/4 0.0868
11029240 Lock/27_Defeasance/101_0%/4 0.0868
991091621 Lock/31_Defeasance/85_0%/4 0.0868
991091659 Lock/29_Defeasance/87_0%/4 0.0868
991091630 Lock/35_Defeasance/81_0%/4 0.0868
991091620 Lock/31_Defeasance/85_0%/4 0.0868
991091256 Lock/27_Defeasance/90_0%/3 0.0868
991091662 Lock/29_Defeasance/87_0%/4 0.0868
991091255 Lock/27_Defeasance/90_0%/3 0.0868
11029222 Lock/27_Defeasance/89_0%/4 0.0868
11029255 Lock/26_Defeasance/90_0%/4 0.0868
991091257 Lock/27_Defeasance/90_0%/3 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
11029223 Lock/27_Defeasance/89_0%/4 0.0868
991091254 Lock/27_Defeasance/90_0%/3 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
991091657 Lock/29_Defeasance/87_0%/4 0.0868
991091654 Lock/28_Defeasance/88_0%/4 0.0868
11029256 Lock/27_Defeasance/89_0%/4 0.0868
991091632 Lock/31_Defeasance/85_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
991091631 Lock/31_Defeasance/85_0%/4 0.0868
991091622 Lock/30_Defeasance/86_0%/4 0.0868
991091666 Lock/30_Defeasance/86_0%/4 0.0868
991091626 Lock/29_Defeasance/87_0%/4 0.0868
991091624 Lock/29_Defeasance/87_0%/4 0.0868
991091635 Lock/29_Defeasance/87_0%/4 0.0868
11029249 Lock/27_Defeasance/89_0%/4 0.0868
991091644 Lock/32_Defeasance/84_0%/4 0.0868
991091619 Lock/31_Defeasance/145_0%/4 0.0868
991091628 Lock/28_Defeasance/88_0%/4 0.0868
991091627 Lock/48_5%/12_4%/12_3%/12_2%/12_1%/20_0%/4 0.0868
991091663 Lock/29_Defeasance/87_0%/4 0.0868
991091645 Lock/31_Defeasance/145_0%/4 0.0868
991091650 Lock/29_Defeasance/87_0%/4 0.0868
991091634 Lock/29_Defeasance/87_0%/4 0.0868
991091649 Lock/29_Defeasance/87_0%/4 0.0868
11029241 Lock/27_Defeasance/89_0%/4 0.0868
991091623 Lock/30_Defeasance/86_0%/4 0.0868
991091655 Lock/29_Defeasance/87_0%/4 0.0868
991091651 Lock/28_Defeasance/88_0%/4 0.0868
991091665 Lock/31_Defeasance/85_0%/4 0.0868
991091625 Lock/29_Defeasance/87_0%/4 0.0868
991091658 Lock/29_Defeasance/87_0%/4 0.0868
</TABLE>
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan and, if a Loan Group is involved, the
related Companion 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-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;
(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;
(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
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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;
(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 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 or Companion Loan is a Credit Lease
Loan, an original of the credit lease enhancement insurance policy, if
any, obtained with respect to such
B-2
<PAGE>
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) 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;
(xvii) the original or a copy of any environmental insurance
policy;
(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 with respect to the Participation Loan, the Mortgage File will
also include an original executed counterpart of the Participation Agreement
which provides, inter alia, that the related Mortgage File shall be held by the
custodian thereunder for the benefit of the holders of the participation
interest created thereunder; provided further 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
<PAGE>
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan other than the Participation Loan,
the Seller hereby represents and warrants, as of the date herein below 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.
C-1
<PAGE>
(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
C-2
<PAGE>
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.
To the extent an
C-3
<PAGE>
environmental insurance policy has been obtained with respect to a Mortgage
Loan, (i) the related environmental insurance policy is in full force and
effect, (ii) on the effective date of such environmental insurance policy, the
Seller, as originator, had no knowledge of any material and adverse
environmental condition or circumstance affecting the Mortgage Property that was
not disclosed to the policy issuer in one or more of the following: (a) the
application for insurance, (b) a borrower questionnaire that was provided to the
policy issuer or (c) an environmental assessment, engineering or other report
provided to the policy issuer and (iii) the premiums on the environmental
insurance policy have been paid in full, or the related loan documents provide
for payment of such premiums by the related Mortgagor or other responsible party
as the same shall be payable.
(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. The interest of the
related Mortgagor in the related Mortgaged Property consists of a fee simple
interest 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.
C-4
<PAGE>
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that
are, as of the Closing Date, required to be deposited with the mortgagee or its
agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the actual knowledge of the Seller, as
of the Closing Date, the related Mortgaged Property was and is free and clear of
any mechanics' and materialmen's liens or liens in the nature thereof which
create a lien prior to that created by the related Mortgage, except those which
are insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that was
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any material
extent (unless affirmatively covered by the title insurance referred to in
paragraph (vi) above), and no improvements on adjoining properties encroached
upon such Mortgaged Property to any material extent. To the Seller's knowledge,
based upon opinions of counsel and/or other due diligence customarily performed
by the Seller, the improvements located on or forming part of 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.
C-5
<PAGE>
(xxviii) No Advances of Funds. No holder of the Mortgage Loan has, to
the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any amount
required by the Mortgage Loan (other than amounts paid by the tenant as
specifically provided under the related lease).
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor or operator of the related Mortgaged Property was in possession of all
material licenses, permits and authorizations required by applicable laws for
the ownership and operation of the related Mortgaged Property as it was then
operated.
(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
C-6
<PAGE>
served as the only security for such Mortgage Loan (other than a recourse
feature or other third party credit enhancement within the meaning of Treasury
Regulations Section 1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) [Reserved.]
(xxxvi) Litigation. To the Seller's actual knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the related Mortgagor or the related Mortgaged
Property that, if determined adversely to such Mortgagor or Mortgaged Property,
would materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple interest in real estate or the related Mortgage
Loan is secured in whole or in part by the interest of the Mortgagor as a lessee
under a ground lease of the Mortgaged Property (a "Ground Lease"). Any Mortgage
Loan that is secured by the interest of the Mortgagor under a Ground Lease may
or may not be secured by the related fee interest in such Mortgaged Property
(the "Fee Interest"). If a Mortgage Loan is secured in whole or in part by a
Ground Lease, either (1) the ground lessor's Fee Interest is subordinated to the
lien of the Mortgage, (2) such Mortgage Loan is also secured by the related fee
interest or (3) 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;
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<PAGE>
(C) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns
upon notice to, but without the need to obtain the consent of,
such lessor;
(D) Such Ground Lease is in full force and effect, and the Seller
has received no notice that an event of default has occurred
thereunder, and, to the Seller's actual knowledge, there
exists no condition that, but for the passage of time or the
giving of notice, or both, would result in an event of default
under the terms of such Ground Lease;
(E) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of
any default by the lessee to the mortgagee under such Mortgage
Loan, provided that the mortgagee under such Mortgage Loan has
provided the lessor with notice of its lien in accordance with
the provisions of such Ground Lease, and such Ground Lease, or
an estoppel letter or other agreement, further provides that
no notice of termination given under such Ground Lease is
effective against the mortgagee unless a copy has been
delivered to the mortgagee;
(F) The mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient
time to gain possession of the interest of the lessee under
such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any
such default, before the lessor thereunder may terminate such
Ground Lease;
(G) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less
than ten years beyond the Stated Maturity Date of the related
Mortgage Loan;
(H) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds will be applied
either to the repair or restoration of all or part of the
related 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;
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<PAGE>
(I) Such Ground Lease does not impose any restrictions on
subletting which would be viewed, as of the date of
origination of the related Mortgage Loan, as commercially
unreasonable by the Seller; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any subtenant of the lessee, or
in any manner, which would materially adversely affect the
security provided by the related Mortgage; and
(J) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor to enter into a new lease in the event of
a termination of the Ground Lease by reason of a default by
the Mortgagor under the Ground Lease, including, rejection of
the ground lease in a bankruptcy proceeding.
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan, (b) release is conditioned upon the satisfaction
of certain underwriting and legal requirements or the payment of a release
price, or (c) a defeasance is affected in accordance with the Mortgage Loan
Documents, the related Mortgage Note or Mortgage does not require the holder
thereof to release all or any portion of the Mortgaged Property from the lien of
the related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal priority
with the lien of the related Mortgage (excluding (a) any lien relating to
another Mortgage Loan that is cross-collateralized with such Mortgage Loan and
(b) the AmeriSuites Companion 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.
C-9
<PAGE>
(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 December 1, 2000),
(ii) only with substitute collateral constituting "government securities" within
the meaning of Treas. Reg. ss. 1.860G-2(a)(8)(i), and (iii) only to facilitate
the disposition of mortgage real property and not as a part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
(xlvi) Defeasance Costs. If the Mortgage Loan permits defeasance, then
the mortgage loan documents related to such Mortgage Loan require (a) the
borrower to pay all rating agency fees associated with defeasance and all other
out-of-pocket expenses associated with defeasance such as accountant's fees and
opinions of counsel, or (b) that the borrower provide a REMIC opinion, an
opinion regarding the first priority perfected security interest in the
defeasance collateral, rating agency letters certifying no rating qualification
or downgrade on any securities, and accountant certification that all payments
from the defeasance collateral are sufficient to make monthly principal and
interest payments on such Mortgage Loan through maturity.
(xlvii) Rating Agency Fees for Assumptions. In the case of each
Mortgage Loan that entitles the Mortgagor to cause an assumption of such
Mortgage Loan by a third party, the holder of each Mortgage Loan is entitled to
require the payment by the related Mortgagor of any related rating agency fees
if a Rating Agency Confirmation is required under the Pooling and Servicing
Agreement in connection with such assumption.
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.
C-10
<PAGE>
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
(xiii) INSURANCE
The following loans do not comply with all insurance requirements, as
specified below:
<TABLE>
<CAPTION>
Loan Number Property Issue
----------- -------- -----
<S> <C> <C>
991091622 Federal Plaza Shopping Center Insured rents are less than actual 12 months of
rent.
991091626 Carrolton/Del-Mar Apartments Insured rents are $35,840 less than actual 12
991091654 Beacon Commons Insured rents are $4,619 less than actual 12
months of rent.
(xliv) SINGLE PURPOSE ENTITY
Borrowers on the following loan(s) are not single purpose entities.
Loan Number Property Issue
----------- -------- -----
23747 Independent Packing Borrower is not an SPE, No provisions in the
organizational or loan documents.
26862 Beach AC Mini Storage Borrower is not an SPE, No provisions in the
organizational or loan documents.
</TABLE>
C-1-1
<PAGE>
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 December 5, 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.
Exhibit D - Page 1
<PAGE>
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
Exhibit D - Page 2
<PAGE>
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] genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this
certificate as of ____________, 2000.
By:________________________
Name:
Title:
Exhibit D - Page 3
<PAGE>
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 December 5, 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 December, 2000.
GMAC COMMERCIAL MORTGAGE
CORPORATION
By:________________________
Name:
Title:
Exhibit D-2 - Page 1
<PAGE>
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
December 14, 2000
To: Persons on Annex A
Re: GMAC Commercial Mortgage Securities, Inc.
Mortgage Pass-Through Certificates, Series 2000-C3
Ladies and Gentlemen:
I am 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-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. (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 (the "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 December 5, 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 December 5, 2000 (the "GACC Mortgage Loan Purchase
Agreement"), between the Company and GACC. Certain of the Mortgage
Loans were purchased by the Company from Goldman Sachs Mortgage Company
("GSMC"), pursuant to, and for the consideration described in, the
Mortgage Loan Purchase Agreement, dated as of December 5, 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 December 5, 2000 (the "GACC 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 December 5, 2000 (the "GSMC
Exhibit D-3A - Page 1
<PAGE>
Mortgage Loan Purchase Agreement"), between the Company and GACC. The
Pooling and Servicing Agreement and the GMACCM Mortgage Loan Purchase
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, and Class D, Certificates to Deutsche Bank Securities Inc. and
Goldman, Sachs & Co., as the underwriters (the "Underwriters") named in
the Underwriting Agreement, dated as of December 5, 2000 (the
"Underwriting Agreement"), among the Company, the Seller, and the
Underwriters. The Company sold the Class X, Class E, Class F and Class
G Certificates to the Underwriters, the Class S-MAC-1, Class S-MAC-2,
Class S-MAC-3 and Class S-MAC-4 Certificates to Goldman, 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.
pursuant to two certificate purchase agreements, each dated as of
December 5, 2000 (the "Certificate Purchase Agreements"). The Company
sold the Class R-I, Class R-II and Class R-III Certificates to CIBC
World Markets Corp.
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"
Exhibit D-3A - Page 2
<PAGE>
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 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 Mayer, Brown &
Platt, is entitled to rely hereon
Exhibit D-3A - Page 3
<PAGE>
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,
David J. Holl
Counsel
Exhibit D-3A - Page 4
<PAGE>
Annex A
GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
Deutsche Bank Securities Inc.
Goldman, Sachs & Co.
Fitch, Inc.
Moody's Investors Service, Inc.
LaSalle Bank National Association
Annex A-1
<PAGE>
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
FORM OF OPINION OF MAYER, BROWN & PLATT
December 14, 2000
GMAC Commercial Mortgage Corporation
GMAC Commercial Mortgage Securities, Inc.
Deutsche Bank Securities Inc.
Goldman, Sachs & Co.
Re: GMAC Commercial Mortgage Securities, Inc.,
Mortgage Pass-Through Certificates, Series 2000-C3
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
December 5, 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 December 5, 2000 (the "Underwriting
Agreement"), between the Purchaser and Deutsche Bank Securities Inc.
and Goldman, Sachs & Co, and issued under the Pooling and Servicing
Agreement, dated as of December 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.
Exhibit D-3B - Page 1
<PAGE>
In connection with the transactions described above, certain
mortgage loans (the "GACC Warehouse Mortgage Loans") were sold to the
Purchaser by German American Capital Corporation ("GACC"), pursuant to
the Mortgage Loan Purchase Agreement, dated as of December 5, 2000 (the
"GACC 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 Goldman Sachs
Mortgage Company("GSMC"), pursuant to the Mortgage Loan Purchase
Agreement, dated as of December 5, 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 December 5, 2000 (the "GACC 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 December
5, 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 David J. Holl, Esq., Counsel to GMACCM, and Allen Matkins
Leck Gamble & Mallory 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.
Exhibit D-3B - Page 2
<PAGE>
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.
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
Exhibit D-3B - Page 3
<PAGE>
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 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-C3 Transaction -- The Mortgage Pool," "--Geographic Concentrations
of the Mortgaged Properties," "--Property Types," "--Prepayment or 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 Mayer, Brown & Platt 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
Exhibit D-3B - Page 4
<PAGE>
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,
MAYER, BROWN & PLATT
Exhibit D-3B - Page 5
<PAGE>
EXHIBIT E
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE PARTICIPATION LOAN
With respect to the Participation 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 E-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,
subject to the related Participation Agreement, free and clear of any
and all liens, encumbrances and other interests on, in or to such
Mortgage Loan, subject to the Participation Interest (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, subject to the related Participation Agreement, to the
Purchaser free and clear of any pledge, lien, encumbrance or security
interest (other than the rights of any sub-servicer to subservice such
Mortgage Loans).
(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; provided,
however, that this representation or warranty shall be deemed not to
include any representation or warranty with respect to the subject
matter of any other representation or warranty set forth herein.
(iv) Payment Record. Such Mortgage Loan was not as of the
Cut-off Date for such Mortgage Loan, and has not been during the
twelve-month period prior thereto, 30 days or more delinquent in
respect of any debt service payment required thereunder, without giving
effect to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes a
valid first lien upon the related Mortgaged Property, including all
buildings located thereon and all fixtures attached thereto, such lien
being subject only to (A) the lien of current real property taxes and
assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record, and (C) exceptions and exclusions specifically referred to in
the
Exhibit E-1 - Page 1
<PAGE>
lender's title insurance policy issued or, as evidenced by a
"marked-up" commitment, to be issued in respect of such Mortgage Loan
(the exceptions set forth in the foregoing clauses (A), (B) and (C)
collectively, "Permitted Encumbrances"). The Permitted Encumbrances do
not materially interfere with the security intended to be provided by
the related Mortgage, the current use or operation of the related
Mortgaged Property or the current ability of the Mortgaged Property to
generate net operating income sufficient to service the Mortgage Loan.
(vi) Title Insurance. The lien of the related Mortgage is
insured by a Title Policy (as defined in Exhibit C to the Agreement),
or its equivalent as adopted in the applicable jurisdiction, issued by
a nationally recognized title insurance company, insuring the
originator of such Mortgage Loan, its successors and assigns, as to the
first priority lien of the Mortgage in the original principal amount of
the Mortgage Loan after all advances of principal, subject only to
Permitted Encumbrances (or, if a title insurance policy has not yet
been issued in respect of the Mortgage Loan, a policy meeting the
foregoing description is evidenced by a commitment for title insurance
"marked-up" at the closing of such loan). Each Title Policy (or, if it
has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the
Seller's knowledge, no material claims have been made thereunder and no
claims have been paid thereunder. The Seller has not, by act or
omission, done anything that would materially impair the coverage under
such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it
has yet to be issued, the coverage to be provided thereby) will inure
to the benefit of the Trustee, without the consent of or notice to the
insurer. To the Seller's actual knowledge, the insurer that issued such
Title Policy is qualified to do business in the state in which the
related Mortgaged Property is located.
(vii) No Waivers by Seller of Material Defaults. The Seller
has not waived any material default, breach, violation or event of
acceleration existing under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no
valid offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth
in any engineering report prepared in connection with the origination
of (or obtained in connection with or otherwise following the Seller's
acquisition of) such Mortgage Loan, the related Mortgaged Property is,
to the Seller's knowledge, free and clear of any damage that would
materially and adversely affect its value as security for such Mortgage
Loan (except in such case where an escrow of funds exists sufficient to
effect the necessary repairs and maintenance). The Seller has no actual
notice of the
Exhibit E-1 - Page 2
<PAGE>
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 in
all material respects 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, redemption, fraudulent
conveyance, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally and by general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(xiii) Insurance. All improvements upon the related Mortgaged
Property are insured under an "all risk" insurance policy against loss
by hazards of extended coverage in an amount (subject to a customary
deductible) at least equal to the full insurable replacement cost of
the improvements located on such Mortgaged Property, which policy
contains appropriate endorsements to avoid the application of
coinsurance and does not permit reduction in insurance proceeds for
depreciation. If any portion of the improvements upon the related
Mortgaged Property was, at the time of the origination of such Mortgage
Loan, in a flood zone area as identified in the Federal Register by the
Federal Emergency Management Agency as a 100 year flood zone or special
hazard area, and flood insurance was available, a flood insurance
policy meeting any requirements of the then current guidelines of the
Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not
less than the least of (1) the outstanding principal balance of such
Mortgage Loan, (2) the full insurable value of such Mortgaged Property,
(3) the maximum amount of insurance available under the National Flood
Insurance Act of 1968, as amended, or (4) 100% of the replacement cost
of the improvements located on such Mortgaged Property. In addition,
the Mortgage requires the Mortgagor to maintain in respect of the
Mortgaged Property workers' compensation insurance (if applicable),
comprehensive general liability insurance in amounts generally required
by the Seller, and at least twelve months
Exhibit E-1 - Page 3
<PAGE>
rental or business interruption insurance, and all such insurance
required by the Mortgage to be maintained is in full force and effect.
Each such insurance policy names the holder of the Mortgage as an
additional insured or contains a mortgagee endorsement naming the
holder of the Mortgage as loss payee and requires prior notice to the
holder of the Mortgage of termination or cancellation, and no such
notice has been received, including any notice of nonpayment of
premiums, that has not been cured.
(xiv) Environmental Condition. The related Mortgaged Property
was subject to one or more environmental site assessments (or an update
of a previously conducted assessment), which was (were) performed on
behalf of the Seller, or as to which the related report was delivered
to the Seller in connection with its origination or acquisition of such
Mortgage Loan; and the Seller, having made no independent inquiry other
than reviewing the resulting report(s) and/or employing an
environmental consultant to perform the assessment(s) referenced
herein, has no knowledge of any material and adverse environmental
conditions or circumstance affecting such Mortgaged Property that was
not disclosed in the related report(s). The Seller has not taken any
action with respect to such Mortgage Loan or the related Mortgaged
Property that could subject the Purchaser, or its successors and
assigns in respect of the Mortgage Loan, to any liability under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA") or any other applicable federal, state or
local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal,
state or local environmental law with respect to the related Mortgaged
Property that was not disclosed in the related report. The related
Mortgage or loan documents in the related Mortgage File requires the
Mortgagor to comply with all applicable federal, state and local
environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans.
Such Mortgage Loan is not cross-collateralized with any mortgage loan
that will not be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related
Mortgage and the Mortgage Note have not been impaired, waived, altered
or modified in any material respect, except as specifically set forth
in the related Mortgage File.
(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
Exhibit E-1 - Page 4
<PAGE>
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) Reserved.
(xix) Whole Loan. Except for the Mortgage Loan subject to the
Participation Agreement.
(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.
(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
Exhibit E-1 - Page 5
<PAGE>
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 do not in any material respects
violate any applicable zoning laws and ordinances (except to the extent
that they may constitute legal non-conforming uses).
(xxiv) Originator Authorized. To the extent required under
applicable law as of the Closing Date, the originator of such Mortgage
Loan was authorized to do business in the jurisdiction in which the
related Mortgaged Property is located at all times when it held the
Mortgage Loan to the extent necessary to ensure the enforceability of
such Mortgage Loan.
(xxv) No Material Default. (A) To the Seller's knowledge,
there exists no material default, breach or event of acceleration under
the related Mortgage or Mortgage Note, and (B) the Seller has not
received actual notice of any event (other than payments due but not
yet delinquent) that, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute such a
material default, breach or event of acceleration; provided, however,
that this representation and warranty does not cover any default,
breach or event of acceleration that specifically pertains to any
matter otherwise covered or addressed by any other representation and
warranty made by the Seller herein.
(xxvi) Inspection. In connection with the origination or
acquisition of each Mortgage Loan, the Seller inspected or caused to be
inspected the Mortgaged Property.
(xxvii) No Equity Participation or Contingent Interest. The
Mortgage Loan contains no equity participation by the lender, and does
not provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property, or
for negative amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan
has, to the Seller's knowledge, advanced funds or induced, solicited or
knowingly received any advance of funds from a party other than the
owner of the related Mortgaged Property, directly or indirectly, for
the payment of any amount required by the Mortgage Loan (other than
amounts paid by the tenant as specifically provided under the related
lease).
(xxix) Licenses, Permits, Etc. To the Seller's knowledge,
based on due diligence customarily performed in the origination of
comparable mortgage loans by
Exhibit E-1 - Page 6
<PAGE>
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 generally accepted
servicing standards for similar multifamily and commercial loans.
(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 Treas. Reg. ss.
1.860G-2(a)(1)(ii)).
Exhibit E-1 - Page 7
<PAGE>
(xxxiv) LTV and Significant Modifications. If the Mortgage
Loan was "significantly modified" prior to the Closing Date so as to
result in a taxable exchange under Section 1001 of the Code, it either
(A) was modified as a result of the default or reasonably foreseeable
default of such Mortgage Loan or (B) satisfies the provisions of either
clause (A)(1) of paragraph (xxxiii) (substituting the date of the last
such modification for the date the Mortgage Loan was originated) or
clause (A)(2) of paragraph (xxxiii), including the proviso thereto.
(xxxv) Reserved.
(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) Reserved.
(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 in the
Mortgage Loan Documents and such portion was not considered material
for purposes of underwriting the Mortgage Loan, (b) release is
conditioned upon the satisfaction of certain underwriting and legal
requirements or the payment of a release price, or (c) a defeasance is
affected in accordance with the Mortgage Loan Documents, the related
Mortgage Note or Mortgage does not require the holder thereof to
release all or any portion of the Mortgaged Property from the lien of
the related Mortgage except upon payment in full of all amounts due
under such Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the
related Mortgaged Property to be encumbered by any lien junior to or of
equal priority with the lien of the related Mortgage (excluding any
lien relating to another Mortgage Loan that is cross-collateralized
with such Mortgage Loan) without the prior written consent of the
holder thereof or the satisfaction of debt service coverage or similar
conditions specified therein.
Exhibit E-1 - Page 8
<PAGE>
(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 December 1, 2000), (ii) only with substitute
collateral constituting "government securities" within the meaning of
Treas. Reg. ss. 1.860G-2(a)(8)(i), and (iii) only to facilitate the
disposition of mortgage real property and not as a part of an
arrangement to collateralize a REMIC offering with obligations that are
not real estate mortgages.
(xlvi) Defeasance Costs. If the Mortgage Loan permits
defeasance, then the mortgage loan documents related to such Mortgage
Loan require (a) the borrower to pay all rating agency fees associated
with defeasance and all other out-of-pocket expenses associated with
defeasance such as accountant's fees and opinions of counsel, or (b)
that the borrower provide a REMIC opinion, an opinion regarding the
first priority perfected security interest in the defeasance
collateral, rating agency
Exhibit E-1 - Page 9
<PAGE>
letters certifying no rating qualification or downgrade on any
securities, and accountant certification that all payments from the
defeasance collateral are sufficient to make monthly principal and
interest payments on such Mortgage Loan through maturity.
(xlvii) Rating Agency Fees for Assumptions. In the case of
each Mortgage Loan that entitles the Mortgagor to cause an assumption
of such Mortgage Loan by a third party, the holder of each Mortgage
Loan is entitled to require the payment by the related Mortgagor of any
related rating agency fees if a Rating Agency Confirmation is required
under the Pooling and Servicing Agreement in connection with such
assumption.
It is understood and agreed that the representations and
warranties set forth in this Exhibit E 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.
Exhibit E-1 - Page 10
<PAGE>
SCHEDULE E-1 TO EXHIBIT E
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
(XL) JUNIOR LIENS
The loan documents provide that the borrower may incur
additional debt.
<TABLE>
<CAPTION>
Loan Number Property Issue
----------- ------------- ------
<S> <C> <C>
24082 Arizona Mills The borrower is permitted to incur up to
$3,000,000 of debt secured by personal property
at the Arizona Mills property, provided that such
financing, together with any trade payables
incurred in the ordinary course of business by
the Arizona Mills borrower, does not exceed four
percent (4%) of the then outstanding principal
balance of the Arizona Mills loan.
</TABLE>
E-1-1
