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EXHIBIT 99.6
EXECUTIVE COPY
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement (this "Agreement"), is dated and effective
as of August 8, 2000, between GMAC Commercial Mortgage Corporation as seller
(the "Seller") and German American Capital Corporation as purchaser (the
"Purchaser").
WHEREAS, the Seller sold certain mortgage loans to the Purchaser
pursuant to a certain Mortgage Loan Purchase Agreement dated as of September 29,
1999, a certain Mortgage Loan Purchase Agreement dated as of March 30, 2000, and
a certain Mortgage Loan Purchase Agreement dated as of June 29, 2000 (each a
"GACC Purchase Agreement" and collectively the "GACC Purchase Agreements").
WHEREAS, the Purchaser intends to sell the mortgage loans as shown on
Exhibit A hereto (the "Mortgage Loans") to GMAC Commercial Mortgage Securities,
Inc. as Depositor, (the "Depositor") pursuant to a certain Mortgage Loan
Purchase Agreement, dated as of August 8, 2000 (the "Mortgage Loan Purchase
Agreement") and the Depositor intends to transfer the Mortgage Loans, together
with other multifamily and commercial mortgage loans and other mortgage assets,
to a trust fund (the "Trust Fund") to be formed by the Depositor, beneficial
ownership of which will be evidenced by a series of mortgage pass-through
certificates (the "Certificates"). Certain classes of the Certificates will be
rated by Standard & Poor's Ratings Services, a division of the McGraw-Hill
Companies, Inc. and Fitch, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Registered Certificates") will be registered
under the Securities Act of 1933, as amended (the "Securities Act"). The Trust
Fund will be created and the Certificates will be issued pursuant to a pooling
and servicing agreement to be dated as of August 1, 2000 (the "Pooling and
Servicing Agreement"), among the Depositor as depositor, GMAC Commercial
Mortgage Corporation as master servicer (in such capacity, the "Master
Servicer") and special servicer (in such capacity, the "Special Servicer"), and
Wells Fargo Bank Minnesota, N.A., as trustee (in such capacity, the "Trustee").
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Pooling and Servicing Agreement as in effect on the Closing Date (as
defined below).
WHEREAS, the Depositor intends to sell the Class A-1, Class A-2, Class
B, Class C, Class D, Class E and Class F Certificates to Deutsche Bank
Securities Inc. and Goldman, Sachs & Co. (together, the "Underwriters") pursuant
to an Underwriting Agreement dated as of the date hereof (the "Underwriting
Agreement"). The Depositor intends to sell the Class X and Class F Certificates
Deutsche Bank Securities Inc. and Goldman, Sachs & Co., and the Class G, Class
H, Class J, Class K, Class L, Class M, Class N and Class O Certificates to
Commercial Asset Trading, Inc. (in such capacity, each an "Initial Purchaser")
pursuant to two Certificate Purchase Agreements, each dated as of the date
hereof (the "Certificate Purchase Agreements"). The
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Depositor intends to sell the Class R-I, Class R-II and Class R-III Certificates
to Goldman, Sachs & Co. (in such capacity, an "Initial Purchaser").
WHEREAS, each of the Seller and the Purchaser, in connection with the
transactions described above, desires to amend and supplement certain of the
provisions of the GACC Purchase Agreements as they relate to the Mortgage Loans
in order to facilitate such transactions and in contemplation of the assignment
by the Purchaser to the Depositor of all of its right, title and interest in and
to this Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Amendment of GACC Purchase Agreements.
The parties hereto agree that, with respect to the Mortgage Loans only,
each GACC Purchase Agreement is hereby amended to the extent that the provisions
of such GACC Purchase Agreement are inconsistent with this Agreement.
SECTION 2. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of August 17, 2000 (the "Closing Date")
(or as of such other date specifically provided in the particular representation
or warranty), to and for the benefit of the Purchaser, and its successors and
assigns (including, without limitation, the Depositor, the Trustee and the
holders of the Certificates), each of the representations and warranties set
forth in Exhibit B, with such changes or modifications as may be permitted or
required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents
and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a corporation, duly organized, validly existing and
in good standing under the laws of the State of California, and is in compliance
with the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan and to
perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance and compliance with the terms of this Agreement by the Seller,
will not violate the Seller's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of its
assets, in each case which materially and adversely affect the ability of the
Seller to carry out the transactions contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement.
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(iv) This Agreement, assuming due authorization, execution and delivery
by the Purchaser, constitutes a valid, legal and binding obligation of the
Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally, (B) general
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations underlying
the securities laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement that purport to provide
indemnification for securities laws liabilities.
(v) The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the Seller's
good faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(vi) No litigation is pending with regard to which Seller has received
service of process or, to the best of the Seller's knowledge, threatened against
the Seller the outcome of which, in the Seller's good faith and reasonable
judgment, could reasonably be expected to prohibit the Seller from entering into
this Agreement or materially and adversely affect either the ability of the
Seller to perform its obligations under this Agreement or the financial
condition of the Seller.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the Initial
Purchasers and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage Loans or
the consummation of any of the other transactions contemplated hereby.
(viii) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law (including, with respect to any bulk sale laws), for
the execution, delivery and performance of or compliance by the Seller with this
Agreement, or the consummation by the Seller of any transaction contemplated
hereby, other than (1) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (2) where
the lack of such consent, approval, authorization, qualification, registration,
filing or notice would not have a material adverse effect on the performance by
the Seller under this Agreement.
(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 its successors or assigns or a breach of any of the representations and
warranties made pursuant to subsection (a) above and set forth in Exhibit B
which materially and adversely affects the value of any Mortgage Loan or the
interests therein of the Purchaser or its successors and assigns (including,
without limitation the Depositor, the Trustee and the holders of the
Certificates), the party discovering such breach shall give prompt written
notice to the other party hereto or if this Agreement has been assigned
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by the Purchaser, to such assignee. The representations, warranties and
covenants set forth in Section 2(a) shall, as between the Seller and the
Purchaser, supplement, and as between the Seller and any successors or assigns
of the Purchaser, replace and amend and restate in their entirety, the
representations, warranties and covenants of the Seller made pursuant to Section
4.1(a) of the GACC Purchase Agreements to the extent they relate to the Mortgage
Loans.
SECTION 3. 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 Maryland.
(ii) The execution and delivery of this Agreement by the Purchaser, and
the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable to
it or any of its assets, in each case which materially and adversely affect the
ability of the Purchaser to carry out the transactions contemplated by this
Agreement.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement, and has duly executed
and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law, and (C) public
policy considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, any order or decree
of any court or arbiter, or any order, regulation or demand of any federal,
state or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the Purchaser
from entering into this Agreement or, in the Purchaser's good faith and
reasonable judgment, is likely to materially and
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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) The Purchaser hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Seller, and its successors and assigns, with
respect to each Mortgage Loan each of the representations and warranties set
forth below:
(i) Immediately prior to the transfer thereof to the Depositor, the
Purchaser had whatever title to such Mortgage Loan as was conveyed to it by
Seller, free and clear of any and all liens, encumbrances and other interests
on, in or to such Mortgage Loan (other than, in certain cases, the right of a
third party servicer to directly service such Mortgage Loan) created by the
Purchaser. Such transfer validly assigns such title to such Mortgage Loan to the
Depositor free and clear of any pledge, lien, encumbrance or security interest
created by the Purchaser;
(ii) The Purchaser has full right and authority to sell, assign and
transfer its interest in such Mortgage Loan;
(iii) The Purchaser has not done anything that would materially impair
the coverage under the lender's title insurance policy that insures the lien of
the related Mortgage;
(iv) The Purchaser has not waived any material default, breach,
violation or event of acceleration existing under the related Mortgage or
Mortgage Note;
(v) To the Purchaser's actual knowledge, without independent inquiry
as to the provisions of the Mortgage Loans, there is no valid offset, defense or
counterclaim to such Mortgage Loan arising out of the Purchaser's actions or
holding of the Mortgage Loans; and
(vi) The terms of the related Mortgage and the Mortgage Note have not
been impaired, waived, altered or modified by the Purchaser in any material
respect, except as specifically set forth in the related Mortgage File;
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provided that, with respect to the representations and warranties in clauses
(iii), (iv), (v) and (vi) above, such representations and warranties cover only
actions taken directly by the Purchaser and its Affiliates or taken by the
Seller at the direction of the Purchaser.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 4. Repurchases.
(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 2(a) and set forth in
Exhibit B (a "Breach"), which Defect or Breach, as the case may be, materially
and adversely affects the value of any Mortgage Loan or the interests therein of
the Purchaser or its successors and assigns (including, without limitation, the
Depositor, 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 or any successor or assign thereof, which corrected
Mortgage Loan Schedule shall be deemed to amend and replace the existing
Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 4(a), within 60 days of the earlier of
discovery or receipt of 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
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issued or, as evidenced by a "marked-up" commitment, to be issued in respect of
such Mortgage Loan and (D) those exceptions set forth on Schedule B-1 to Exhibit
B hereto (the exceptions set forth in the foregoing clauses (A), (B), (C) and
(D) collectively, "Permitted Encumbrances"), or if the insurer that issued the
Title Policy referred to in clause (vi) of Exhibit B hereto in respect of any
Mortgage Loan was not qualified to do business in the state in which the related
Mortgaged Property is located, and in either case such failure materially and
adversely affects the interests of holders of Certificates (any such failure
that materially and adversely affects the interests of holders of Certificates,
also a "Breach"), the Seller shall be required, at its option, to either (i)
cure such Breach in all material respects or (ii) repurchase the affected
Mortgage Loan, in each case, within the applicable Permitted Cure Period. 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 it is reasonably likely that such Breach could be corrected or cured within
180 days of the earlier of discovery by the Seller and receipt by the Seller of
notice of such Breach, and the Seller is diligently attempting to effect such
correction or cure, then the applicable Permitted Cure Period shall, with the
consent of the 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 4, the then owner(s) thereof shall tender or
cause to be tendered promptly to the Seller, upon delivery of a receipt executed
by the Seller, the related Mortgage File and Servicing File, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Purchaser or the Trustee shall be endorsed or assigned, as the case may be,
to the Seller or its designee in the same manner. The form and sufficiency of
all such instruments and certificates shall be the responsibility of the Seller.
(d) This Section 4 provides the sole remedies available to the
Purchaser, and its successors and assigns (including, without limitation, the
Depositor, the Trustee and the holders of the Certificates) respecting any
Defect in a Mortgage File or any breach of any representation or warranty made
pursuant to Section 2(a) and set forth in Exhibit B, or in
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connection with the circumstances described in Section 4(b). If the Seller
defaults on its obligations to repurchase or replace any Mortgage Loan in
accordance with Section 4(a) or 4(b) or disputes its obligation to repurchase or
replace any Mortgage Loan in accordance with either such subsection, the
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. The remedies provided in this
Section 4 shall replace and amend and restate in their entirety the provisions
of Section 4.3 of the GACC Purchase Agreements with respect to the Mortgage
Loans.
(e) In the event that (i) any Mortgage Loan that is a
Cross-Collateralized Mortgage Loan (as defined in the Pooling and Servicing
Agreement) is required to be repurchased pursuant to this Section 4 as a result
of a Breach, Defect or other event, and (ii) the cross-collateralization
provisions of the related Cross-Collateralized Mortgage Loans cannot be released
to the extent required by Section 2.03(a) of the Pooling and Servicing Agreement
to permit repurchase of the affected Mortgage Loan within the time period
specified in this Agreement for such repurchase, the Seller shall repurchase the
affected Mortgage Loan and all of the related Cross-Collateralized Mortgage
Loans not so released.
SECTION 5. Conveyance of Mortgage Files.
(a) In connection with the Purchaser's assignment of the Mortgage Loans
to the Depositor pursuant to the Mortgage Loan Purchase Agreement, the Purchaser
hereby covenants with the Seller that, at least 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 to the Mortgage Loan Purchase
Agreement) for each Mortgage Loan so assigned to the extent that such Mortgage
File was delivered to the Purchaser. In the event the Purchaser fails to so
deliver each such Mortgage File to the Trustee, the Seller and its successors
and assigns shall be entitled to pursue any rights or remedies in respect of
such failure as may be available under applicable law.
(b) For the benefit of the Purchaser and its successors and assigns,
the Seller acknowledges and agrees that the Depositor intends to cause the
Trustee to perform a limited review of the Mortgage Files relating to the
Mortgage Loans to enable the Trustee to confirm to the Depositor on or before
the Closing Date that the Mortgage Note referred to in clause (i) of Exhibit B
of the Mortgage Loan Purchase Agreement has been delivered to the Trustee with
respect to each such Mortgage File. If the 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 of the Mortgage Loan
Purchase Agreement, with evidence of recording thereon, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, or because such
original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of this Section 5 shall be
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deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that a copy of such document or instrument (without evidence of recording or
filing thereon, but certified (which certificate may relate to multiple
documents and/or instruments) by the Seller to be a true and complete copy of
the original thereof submitted for recording or filing, as the case may be) has
been delivered to the Trustee on or before the Closing Date, and either the
original of such missing document or instrument, or a copy thereof, with
evidence of recording or filing, as the case may be, thereon, is delivered to or
at the direction of the Depositor or Trustee within 180 days of the Closing Date
(or within such longer period after the Closing Date as the Trustee (or such
subsequent owner) may consent to, which consent shall not be unreasonably
withheld so long as the Seller has provided the Depositor or Trustee with
evidence of such recording or filing, as the case may be, or has certified to
the Depositor or Trustee as to the occurrence of such recording or filing, as
the case may be, and is, as certified to the Trustee no less often than
quarterly, in good faith attempting to obtain from the appropriate county
recorder's or filing office such original or copy).
(c) If 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 of the Mortgage Loan Purchase
Agreement solely because such policy has not yet been issued, the delivery
requirements of this Section 5 shall be deemed to be satisfied as to such
missing item, and such missing item shall be deemed to have been included in the
related Mortgage File, provided that the Seller has delivered to the Trustee, on
or before the Closing Date, a commitment for title insurance "marked-up" at the
closing of such Mortgage Loan, and the Seller shall deliver to or at the
direction of the Depositor or Trustee, promptly following the receipt thereof,
the original related lender's title insurance policy (or a copy thereof). In
addition, notwithstanding anything to the contrary contained herein, if there
exists with respect to any group of related cross-collateralized Mortgage Loans
only one original of any document referred to in Exhibit B of the Mortgage Loan
Purchase Agreement covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan. Notwithstanding the foregoing,
the Mortgage File for the Mortgage Loans subject to the Participation Interest
will consist solely of 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 interests created thereunder.
(d) As to each Mortgage Loan, the Seller shall be responsible for all
costs associated with (i) the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B to the Mortgage
Loan Agreement and each UCC-2 and UCC-3, if any, referred to in clause (xi)(B)
of Exhibit B to the Mortgage Loan Purchase Agreement or the re-registration or
assignment of the Participation Interest and (ii) the delivery of a copy of any
such document or instrument to the Master Servicer promptly following its return
to the Trustee or its designee after such recording or filing; provided that the
Seller shall not be responsible for actually recording or filing any such
document or instrument. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause the preparation of a substitute therefor
or cure or cause the curing of such defect, as the case may be, and shall
thereafter deliver the
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substitute or corrected document to or at the direction of the Depositor or the
Trustee for recording or filing, as appropriate, at the Seller's expense.
SECTION 6. 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 7. Costs.
Costs relating to the transactions contemplated hereby and in the
Mortgage Loan Purchase Agreement shall be borne by the Seller.
SECTION 8. Indemnification.
(a) The Purchaser (the "Indemnifying Party") agrees to indemnify and
hold harmless the Seller against any and all losses, claims, damages or
liabilities, joint or several, to which it may become subject insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon the breach of any of the Purchaser's representations or
warranties contained in Section 3(b) of this Agreement. This indemnity will be
in addition to any liability which the Purchaser may otherwise have.
(b) The indemnity agreement contained in this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, or (ii) any investigation made by any indemnified party.
SECTION 9. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 10. 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 11. GOVERNING LAW.
10
<PAGE>
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 12. 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 13. 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 and its assignee has the right to assign its
interest under this Agreement, in whole or in part. Subject to the foregoing,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Seller and the Purchaser, and their permitted successors and assigns.
SECTION 14. 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.
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.
GMAC COMMERCIAL MORTGAGE CORPORATION
By: /s/ David Lazarus
--------------------------------
Name: David Lazarus
Title: Vice President
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Gregory B. Hartch
---------------------------------
Name: Gregory B. Hartch
Title: Authorized Signatory
By: /s/ Eric M. Schwartz
--------------------------------
Name: Eric M. Schwartz
Title: Vice President
12
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
<PAGE>
DEUTSCHE BANK REPURCHASE FACILITY
<TABLE>
<CAPTION>
LOAN NUMBER NAME ADDRESS CITY
<S> <C> <C> <C>
21702 Remond Cliff Plaza Apartments 2928 Remond Drive Dallas
24161 Galyan's-Plainfield 655 Perry Road Plainfield
24483 Residence Inn by Marriott 32 Centerra Parkway Lebanon
24575 Galyan's-Leawood 11801 Nall Avenue Leawood
25149 Center City Apartment Portfolio II Various Various
25149-A 1109 Spruce Street 1109 Spruce Street Philadelphia
25149-B 322 S. 10th Street 322 S. 10th Street Philadelphia
25149-C 927 Spruce Street 927 Spruce Street Philadelphia
25149-D 1104 Spruce Street 1104 Spruce Street Philadelphia
25149-E 2125-27 Walnut Street 2125-27 Walnut Street Philadelphia
25149-F 434 Lombard Street 434 Lombard Street Philadelphia
25149-G 1001 Pine Street 1001 Pine Street Philadelphia
25149-H 1034 Spruce Street 1034 Spruce Street Philadelphia
25149-I 1616-18 Spruce Street 1616-18 Spruce Street Philadelphia
25149-J 1957 Locust Street 1957 Locust Street Philadelphia
25149-K 218 S. 20th Street 218 S. 20th Street Philadelphia
25149-L 1719 Spruce Street 1719 Spruce Street Philadelphia
26002 Paradise Plaza Inn 3 Ninth Street Ocean City
26190 Candlestick Apartments 4747 Rigsby Avenue San Antonio
26207 Holcomb Corners Shopping Center 3375 Holcomb Bridge Road Norcross
26209 Office Depot - Hobby Lobby Retail Center 500 NW State Route 7 Blue Springs
26214 Dove Park Townhomes 11334 E. 23rd Street Tulsa
26254 Feeley Apartment Portfolio Various Various
26254-A 64 Monroe Street 64 Monroe Street Hoboken
26254-B 125 Monroe Street 125 Monroe Street Hoboken
26254-C 70 Jefferson Street 70 Jefferson Street Hoboken
26254-D 100 Jefferson Street 100 Jefferson Street Hoboken
26254-E 102 Jefferson Street 102 Jefferson Street Hoboken
26426 Bank of America Office Building 900 West 49th Street Hialeah
26560 Ahwatukee Palms Shopping Center 4825 East Warner Road Phoenix
<CAPTION>
INTEREST RATE ORIGINAL CUT-OFF DATE REMAINING MATURITY
LOAN NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE
<S> <C> <C> <C> <C> <C> <C> <C> <C>
21702 Texas 75211 8.1600 Fixed 3,200,000.00 3,170,907.00 106 6/10/09
24161 Indiana 46168 8.7580 Fixed 4,975,000.00 4,943,454.34 109 9/10/09
24483 New Hampshire 03766 8.5000 Fixed 6,100,000.00 6,089,575.96 118 6/1/25
24575 Kansas 66211 8.7540 Fixed 8,600,000.00 8,545,423.21 109 9/10/09
25149 Various Various 8.6800 Fixed 6,400,000.00 6,385,741.00 115 3/5/10
25149-A Pennsylvania 19107
25149-B Pennsylvania 19107
25149-C Pennsylvania 19106
25149-D Pennsylvania 19107
25149-E Pennsylvania 19103
25149-F Pennsylvania 19147
25149-G Pennsylvania 19107
25149-H Pennsylvania 19107
25149-I Pennsylvania 19103
25149-J Pennsylvania 19103
25149-K Pennsylvania 19103
25149-L Pennsylvania 19103
26002 Maryland 21842 9.2500 Fixed 6,000,000.00 5,987,587.21 117 5/1/25
26190 Texas 78222 8.4300 Fixed 1,155,000.00 1,152,222.62 115 3/5/10
26207 Georgia 30092 8.5300 Fixed 1,650,000.00 1,646,770.38 116 4/5/10
26209 Missouri 64014 8.3500 Fixed 3,450,000.00 3,445,099.54 117 5/5/10
26214 Oklahoma 74129 8.6700 Fixed 1,740,000.00 1,736,727.80 116 4/5/10
26254 Various Various 8.4300 Fixed 2,784,000.00 2,778,395.15 116 4/5/10
26254-A New Jersey 07030
26254-B New Jersey 07030
26254-C New Jersey 07030
26254-D New Jersey 07030
26254-E New Jersey 07030
26426 Florida 33012 8.3750 Fixed 4,910,000.00 4,908,090.42 119 7/5/10
26560 Arizona 85044 8.2260 Fixed 13,400,000.00 13,380,225.51 117 5/5/10
</TABLE>
A-2
<PAGE>
DEUTSCHE BANK REPURCHASE FACILITY
<TABLE>
<CAPTION>
LOAN NUMBER NAME ADDRESS CITY
<S> <C> <C> <C>
26750 Brighton Park Shopping Center 1005-1019 E. Grand River Avenue Brighton
27102 Sheraton Four Points Hotel 1603 Powell Street Emeryville
27256 Hampton Inn 4201 Coastal Highway Ocean City
27257 Holiday Inn Express - BWI 7481 Ridge Road Hanover
27271 Residence Inn (Danbury) 22 Segar Street Danbury
27433 Industrial Distribution Group Building 2100 The Oaks Parkway Belmont
27619 Donna Lynn Apartments 1301 East Marshall Drive Grand Prairie
27754 West Union Corporate Building 5865 South Ash Avenue Tempe
27800 Rialto Building 116 New Montgomery Street San Francisco
27974 Weinerman Multifamily Portfolio Various Various
27974-A Daibes Apartments 12 Liberty Place Weehawken
27974-B Crescent Garden Apartments 9005 Third Avenue North Bergen
28000 Courtyard by Marriott 3555 Centerpoint Parkway Pontiac
28001 Residence Inn by Marriott 3333 Centerpoint Parkway Pontiac
01-1020226 Carpenter's Union Building 1003 K Street N.W. Washington
01-1020227 DuPont Medical Building 1234 19th Street Washington
01-1020228 Continental Office Building 1012 14th Street Washington
01-1025095 College Park Apartments 3307 College Street Lacey
01-1025199 Southlake Market Loop 2830 - 2840 Market Loop Southlake
01-1025231 K-Mart Retail - Aurora, Colorado 15200 East Colfax Road Aurora
<CAPTION>
INTEREST RATE ORIGINAL CUT-OFF DATE REMAINING MATURITY
LOAN NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE
<S> <C> <C> <C> <C> <C> <C> <C> <C>
26750 Michigan 48116 8.5400 Fixed 4,400,000.00 4,395,737.00 118 6/5/10
27102 California 94608 8.7800 Fixed 11,500,000.00 11,492,165.39 119 7/1/25
27256 Maryland 21842 8.5000 Fixed 6,120,000.00 6,109,541.80 118 6/1/25
27257 Maryland 21076 8.5000 Fixed 9,100,000.00 9,084,449.40 118 6/1/25
27271 Connecticut 06810 8.6250 Fixed 5,000,000.00 4,996,452.01 119 7/1/25
27433 North Carolina 28012 8.4300 Fixed 5,950,000.00 5,947,736.54 119 7/5/10
27619 Texas 75051 8.2400 Fixed 3,400,000.00 3,398,605.72 119 7/5/10
27754 Arizona 85253 8.3100 Fixed 3,300,000.00 3,300,000.00 119 7/5/10
27800 California 94105 8.4200 Fixed 27,250,000.00 27,222,688.33 118 6/5/10
27974 Various Various 8.3750 Fixed 2,200,000.00 2,199,144.38 119 7/5/10
27974-A New Jersey 07087
27974-B New Jersey 07047
28000 Michigan 48341 8.7000 Fixed 6,315,000.00 6,310,605.86 119 7/1/25
28001 Michigan 48341 8.7000 Fixed 7,485,000.00 7,479,791.74 119 7/1/25
01-1020226 District of Columbia 20001 8.8500 Fixed 2,420,000.00 2,417,857.02 58 6/1/05
01-1020227 District of Columbia 20036 8.8500 Fixed 3,646,000.00 3,642,771.37 58 6/1/05
01-1020228 District of Columbia 20005 8.8500 Fixed 5,833,000.00 5,827,834.72 58 6/1/05
01-1025095 Washington 98503 7.9400 Fixed 1,550,000.00 1,548,229.15 118 6/1/10
01-1025199 Texas 76092 8.7500 Fixed 1,030,000.00 1,028,713.35 117 5/1/10
01-1025231 Colorado 80011 8.2500 Fixed 3,080,000.00 3,076,763.86 118 6/1/25
</TABLE>
A-3
<PAGE>
DEUTSCHE BANK REPURCHASE FACILITY
<TABLE>
<CAPTION>
LOAN NUMBER NAME ADDRESS CITY
<S> <C> <C> <C>
01-1025336 Los Frances Apartments 508 Gale Street Laredo
01-1025387 K-Mart Retail - Grand Island 3535 West 13th Street Grand Island
01-1025540 Southport Associates Retail 354 - 378 Western Boulevard Greenwood
01-1025819 The Meadows Apartments - Lacey, WA 3428 West McLeod Road Bellingham
01-1025997 Across Lenox Shopping Center 3425 - 3435 Lenox Road Atlanta
01-1026176 Buckingham Apartments 3884 Buckingham Court St. Louis
01-1026212 La Brea Office Building 110 South La Brea Avenue Inglewood
01-1026263 K-Mart Retail - Aurora, Illinois 1250 North Lake Avenue Aurora
01-1026339 Pioneer Center Retail 501 - 557 Azusa Avenue & 1751 East Rowland Avenue West Covina
01-1026401 K-Mart Retail - Chicago 2050 West Peterson Avenue Chicago
01-1026497 9001 Braddock Road Office Building 9001 Braddock Road Springfield
01-1026584 K-Mart Retail - South Bend, IN U.S. Route 31 South Bend
01-1027351 Chili's Plaza SEC of US Highway 41 and Robinhood Street Sarasota
01-1027480 Meadows of Gwinnett County Apartments 9-22 and 27-29 Britain Drive Lawrenceville
01-1027900 BRC Plaza Shopping Center 12375 - 12505 West Chinden Boulevard Boise
01-1027902 Denver Creek Apartments 1160 South Denver Avenue Boise
01-1027903 Intermountain Self Storage #1 (Idaho Falls, ID) 1055 Sunnyside Road Idaho Falls
<CAPTION>
INTEREST RATE ORIGINAL CUT-OFF DATE REMAINING MATURITY
LOAN NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE
<S> <C> <C> <C> <C> <C> <C> <C> <C>
01-1025336 Texas 78041 8.5000 Fixed 1,920,000.00 1,916,209.88 116 4/1/10
01-1025387 Nebraska 68803 8.1250 Fixed 2,980,000.00 2,972,079.49 117 5/1/25
01-1025540 Indiana 46142 8.5000 Fixed 1,430,000.00 1,428,062.42 117 5/1/10
01-1025819 Washington 98226 8.3000 Fixed 3,000,000.00 2,996,891.05 118 6/1/10
01-1025997 Georgia 30326 7.9200 Fixed 2,500,000.00 2,487,611.93 237 5/1/20
01-1026176 Missouri 63108 8.3500 Fixed 1,125,000.00 1,123,850.40 118 6/1/10
01-1026212 California 90301 8.3750 Fixed 2,925,000.00 2,920,877.48 117 5/1/10
01-1026263 Illinois 60506 8.1800 Fixed 6,970,000.00 6,959,569.51 117 5/1/10
01-1026339 California 91791 8.8750 Fixed 2,100,000.00 2,098,154.13 118 6/1/10
01-1026401 Illinois 60659 8.1800 Fixed 7,905,000.00 7,893,170.30 117 5/1/10
01-1026497 Virginia 22151 8.3750 Fixed 2,250,000.00 2,246,828.81 117 5/1/10
01-1026584 Indiana 46614 8.5700 Fixed 2,700,000.00 2,699,030.49 119 7/1/10
01-1027351 Florida 34233 8.4200 Fixed 3,950,000.00 3,944,510.72 117 5/1/10
01-1027480 Georgia 30244 8.1100 Fixed 2,440,000.00 2,438,948.70 119 7/1/10
01-1027900 Idaho 83713 7.8500 Fixed 2,100,000.00 1,988,785.88 212 4/1/18
01-1027902 Idaho 83706 8.2000 Fixed 750,000.00 736,303.80 154 6/1/13
01-1027903 Idaho 83404 9.0000 Fixed 720,000.00 703,181.50 156 8/1/13
</TABLE>
A-4
<PAGE>
DEUTSCHE BANK REPURCHASE FACILITY
<TABLE>
<CAPTION>
LOAN NUMBER NAME ADDRESS CITY
<S> <C> <C> <C>
01-1027904 Intermountain Self Storage #2 (Chubbuck, ID) 201 West Linden Street Chubbuck
01-1027905 Intermountain Self Storage #3 (Chubbuck, ID) 4698 Burley Road Chubbuck
<CAPTION>
INTEREST RATE ORIGINAL CUT-OFF DATE REMAINING MATURITY
LOAN NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM DATE
<S> <C> <C> <C> <C> <C> <C> <C> <C>
01-1027904 Idaho 83202 9.0000 Fixed 625,000.00 610,400.44 156 8/1/13
01-1027905 Idaho 83202 9.0000 Fixed 430,000.00 419,955.64 156 8/1/13
</TABLE>
DEUTSCHE BANK REPURCHASE FACILITY
<TABLE>
<CAPTION>
ANTICIPATED DAY CREDIT
REPAYMENT PAYMENT MONTHLY ARD LEASE
LOAN NUMBER NAME DATE DUE PAYMENT LOAN LOAN
<S> <C> <C> <C> <C> <C> <C>
21702 Remond Cliff Plaza Apartments 10 24,109.14 No
24161 Galyan's-Plainfield 10 39,620.99 No
24483 Residence Inn by Marriott 6/1/10 1 49,118.86 Yes
24575 Galyan's-Leawood 10 68,465.53 No
25149 Center City Apartment Portfolio II 5 50,029.20 No
25149-A 1109 Spruce Street NAP
25149-B 322 S. 10th Street NAP
25149-C 927 Spruce Street NAP
25149-D 1104 Spruce Street NAP
25149-E 2125-27 Walnut Street NAP
25149-F 434 Lombard Street NAP
25149-G 1001 Pine Street NAP
25149-H 1034 Spruce Street NAP
25149-I 1616-18 Spruce Street NAP
25149-J 1957 Locust Street NAP
25149-K 218 S. 20th Street NAP
25149-L 1719 Spruce Street NAP
26002 Paradise Plaza Inn 5/1/10 1 51,382.91 Yes
26190 Candlestick Apartments 5 8,823.72 No
26207 Holcomb Corners Shopping Center 5 12,722.17 No
26209 Office Depot - Hobby Lobby Retail Center 5 26,161.63 No
26214 Dove Park Townhomes 5 13,589.29 No
<CAPTION>
BROKER ADDITIONAL
STRIP SERVICING
LOAN NUMBER DEFEASANCE LOAN FEE LOAN SERVICING FEE
<S> <C> <C> <C> <C>
21702 Lock/38_Defeasance/78_0%/4 0.1325
24161 Lock/35_Defeasance/83_0%/2 0.1325
24483 Lock/47_Defeasance/71_0%/2 0.1325
24575 Lock/35_Defeasance/83_0%/2 0.1325
25149 Lock/29_Defeasance/89_0%/2 0.1325
25149-A NAP
25149-B NAP
25149-C NAP
25149-D NAP
25149-E NAP
25149-F NAP
25149-G NAP
25149-H NAP
25149-I NAP
25149-J NAP
25149-K NAP
25149-L NAP
26002 Lock/47_Defeasance/71_0%/2 0.1325
26190 Lock/29_Defeasance/89_0%/2 0.1325
26207 Lock/47_Defeasance/71_0%/2 0.1325
26209 Lock/27_Defeasance/91_0%/2 0.1325
26214 Lock/28_Defeasance/90_0%/2 0.1325
</TABLE>
A-5
<PAGE>
DEUTSCHE BANK REPURCHASE FACILITY
<TABLE>
<CAPTION>
ANTICIPATED DAY CREDIT
REPAYMENT PAYMENT MONTHLY ARD LEASE
LOAN NUMBER NAME DATE DUE PAYMENT LOAN LOAN
<S> <C> <C> <C> <C> <C> <C>
26254 Feeley Apartment Portfolio 5 21,268.59 No
26254-A 64 Monroe Street NAP
26254-B 125 Monroe Street NAP
26254-C 70 Jefferson Street NAP
26254-D 100 Jefferson Street NAP
26254-E 102 Jefferson Street NAP
26426 Bank of America Office Building 5 37,319.55 No
26560 Ahwatukee Palms Shopping Center 5 100,443.73 No
26750 Brighton Park Shopping Center 5 33,957.00 No
27102 Sheraton Four Points Hotel 7/1/10 1 94,781.03 Yes
27256 Hampton Inn 6/1/10 1 49,279.90 Yes
27257 Holiday Inn Express - BWI 6/1/10 1 73,275.67 Yes
27271 Residence Inn (Danbury) 7/1/10 1 40,683.41 Yes
27433 Industrial Distribution Group Building 5 45,455.50 No
27619 Donna Lynn Apartments 5 25,519.17 No
27754 West Union Corporate Building 5 25,346.42 No
27800 Rialto Building 5 207,985.90 No
27974 Weinerman Multifamily Portfolio 5 16,721.59 No
27974-A Daibes Apartments NAP
27974-B Crescent Garden Apartments NAP
28000 Courtyard by Marriott 7/1/10 1 51,704.02 Yes
28001 Residence Inn by Marriott 7/1/10 1 61,283.39 Yes
01-1020226 Carpenter's Union Building 1 19,211.25 No
01-1020227 DuPont Medical Building 1 28,943.89 No
01-1020228 Continental Office Building 1 46,305.46 No
<CAPTION>
BROKER ADDITIONAL
STRIP SERVICING
LOAN NUMBER DEFEASANCE LOAN FEE LOAN SERVICING FEE
<S> <C> <C> <C> <C>
26254 Lock/28_Defeasance/90_0%/2 0.1325
26254-A NAP
26254-B NAP
26254-C NAP
26254-D NAP
26254-E NAP
26426 Lock/25_Defeasance/93_0%/2 0.1325
26560 Lock/27_Defeasance/91_0%/2 0.0825
26750 Lock/26_Defeasance/92_0%/2 0.1325
27102 Lock/47_Defeasance/71_0%/2 0.1325
27256 Lock/47_Defeasance/71_0%/2 0.1325
27257 Lock/47_Defeasance/71_0%/2 0.1325
27271 Lock/35_Defeasance/83_0%/2 0.1325
27433 Lock/25_Defeasance/93_0%/2 0.1325
27619 Lock/25_Defeasance/93_0%/2 0.1325
27754 Lock/25_Defeasance/93_0%/2 0.1325
27800 Lock/26_Defeasance/93_0%/1 0.07
27974 Lock/25_Defeasance/93_0%/2 0.1325
27974-A NAP
27974-B NAP
28000 Lock/47_Defeasance/69_0%/4 0.1325
28001 Lock/47_Defeasance/69_0%/4 0.1325
01-1020226 Lock/26_Defeasance/30_0%/4 0.1325
01-1020227 Lock/26_Defeasance/30_0%/4 0.1325
01-1020228 Lock/26_Defeasance/30_0%/4 0.1325
</TABLE>
A-6
<PAGE>
DEUTSCHE BANK REPURCHASE FACILITY
<TABLE>
<CAPTION>
ANTICIPATED DAY CREDIT
REPAYMENT PAYMENT MONTHLY ARD LEASE
LOAN NUMBER NAME DATE DUE PAYMENT LOAN LOAN
<S> <C> <C> <C> <C> <C> <C>
01-1025095 College Park Apartments 1 11,308.59 No
01-1025199 Southlake Market Loop 1 8,103.01 No
01-1025231 K-Mart Retail - Aurora, Colorado 6/1/10 1 23,139.01 Yes
01-1025336 Los Frances Apartments 1 14,763.14 No
01-1025387 K-Mart Retail - Grand Island 5/1/10 1 23,247.43 Yes
01-1025540 Southport Associates Retail 1 10,995.46 No
01-1025819 The Meadows Apartments - Lacey, WA 1 22,643.54 No
01-1025997 Across Lenox Shopping Center 1 20,968.28 No
01-1026176 Buckingham Apartments 1 8,530.97 No
01-1026212 La Brea Office Building 1 22,232.11 No
01-1026263 K-Mart Retail - Aurora, Illinois 1 52,020.68 No
01-1026339 Pioneer Center Retail 1 16,708.54 No
01-1026401 K-Mart Retail - Chicago 1 58,999.06 No
01-1026497 9001 Braddock Road Office Building 1 17,101.63 No
01-1026584 K-Mart Retail - South Bend, IN 1 20,894.76 No
01-1027351 Chili's Plaza 1 30,148.42 No
01-1027480 Meadows of Gwinnett County Apartments 1 18,091.31 No
01-1027900 BRC Plaza Shopping Center 1 17,369.71 No
01-1027902 Denver Creek Apartments 1 5,608.16 No
<CAPTION>
BROKER ADDITIONAL
STRIP SERVICING
LOAN NUMBER DEFEASANCE LOAN FEE LOAN SERVICING FEE
<S> <C> <C> <C> <C>
01-1025095 Lock/26_Defeasance/87_0%/7 0.1325
01-1025199 Lock/27_Defeasance/89_0%/4 0.2575
01-1025231 Lock/26_Defeasance/90_0%/4 0.1325
01-1025336 Lock/28_Defeasance/88_0%/4 0.1325
01-1025387 Lock/27_Defeasance/89_0%/4 0.1325
01-1025540 Lock/27_Defeasance/89_0%/4 0.1325
01-1025819 Lock/26_Defeasance/87_0%/7 0.1325
01-1025997 Lock/27_Defeasance/209_0%/4 0.1325
01-1026176 Lock/26_Defeasance/90_0%/4 0.2575
01-1026212 Lock/27_Defeasance/89_0%/4 0.1325
01-1026263 Lock/27_Defeasance/89_0%/4 0.1325
01-1026339 Lock/26_Defeasance/90_0%/4 0.1325
01-1026401 Lock/27_Defeasance/89_0%/4 0.1325
01-1026497 Lock/27_Defeasance/89_0%/4 0.1325
01-1026584 Lock/25_Defeasance/91_0%/4 0.1325
01-1027351 Lock/27_Defeasance/89_0%/4 0.1325
01-1027480 Lock/25_Defeasance/91_0%/4 0.1325
01-1027900 Lock/0_> YM or 1%/107_1%/126_0%/7 0.2575
01-1027902 Lock/0_> YM or 1%/107_1%/66_0%/7 0.2575
</TABLE>
A-7
<PAGE>
DEUTSCHE BANK REPURCHASE FACILITY
<TABLE>
<CAPTION>
ANTICIPATED DAY CREDIT
REPAYMENT PAYMENT MONTHLY ARD LEASE
LOAN NUMBER NAME DATE DUE PAYMENT LOAN LOAN
<S> <C> <C> <C> <C> <C> <C>
01-1027903 Intermountain Self Storage #1 (Idaho Falls, ID) 1 6,042.21 No
01-1027904 Intermountain Self Storage #2 (Chubbuck, ID) 1 5,244.98 No
01-1027905 Intermountain Self Storage #3 (Chubbuck, ID) 1 3,608.54 No
<CAPTION>
BROKER ADDITIONAL
STRIP SERVICING
LOAN NUMBER DEFEASANCE LOAN FEE LOAN SERVICING FEE
<S> <C> <C> <C> <C>
01-1027903 Lock/0_> YM or 1%/107_1%/66_0%/7 0.2575
01-1027904 Lock/0_> YM or 1%/107_1%/66_0%/7 0.2575
01-1027905 Lock/0_> YM or 1%/107_1%/66_0%/7 0.2575
</TABLE>
A-8
<PAGE>
EXHIBIT B
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, except as set forth on Schedule B-1 hereto, that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer
thereof to the Purchaser, the Seller had good and marketable title to, and was
the sole owner and holder of, such Mortgage Loan (or, in the case of the
Mortgage Loan subject to a Participation Agreement, the related Participation
Interest) free and clear of any and all liens, encumbrances and other interests
on, in or to such Mortgage Loan or 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 (or, in the
case of the Mortgage Loan subject to a Participation Agreement, the related
Participation Interest) to the Purchaser free and clear of any pledge, lien,
encumbrance or security interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right
and authority to sell, assign and transfer such Mortgage Loan to the Purchaser.
No provision of the Mortgage Note, Mortgage or other loan document relating to
such Mortgage Loan prohibits or restricts the Seller's right to assign or
transfer such Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct in
all material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the Cut-off Date
for such Mortgage Loan, and has not been during the twelve-month period prior
thereto, 30 days or more delinquent in respect of any debt service payment
required thereunder, without giving effect to any applicable grace period.
(v) Permitted Encumbrances. The Permitted Encumbrances (as defined in
the Mortgage Loan Purchase Agreement of which this Exhibit B forms a part) do
not materially interfere with the security intended to be provided by the
related Mortgage, the current use or operation of the related Mortgaged Property
or the current ability of the Mortgaged Property to generate net operating
income sufficient to service the Mortgage Loan. If the Mortgaged Property is
operated as a nursing facility, a hospitality property or a multifamily
property, the Mortgage, together with any separate security agreement, similar
agreement and UCC financing statement, if any, establishes and creates a first
priority, perfected security interest (subject only to any prior purchase money
security interest), to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in all
personal property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property.
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(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Encumbrances (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the benefit of
the Trustee or, in the case of the Participation Loan, its holder, without the
consent of or notice to the insurer.
(vii) No Waivers by Seller of Material Defaults. The Seller has not
waived any material default, breach, violation or event of acceleration existing
under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid offset,
defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of the
commencement of a proceeding for the condemnation of all or any material portion
of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage and all
other documents and instruments evidencing, guaranteeing, insuring or otherwise
securing such Mortgage Loan have been duly and properly executed by the parties
thereto, and each is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
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(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.
(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.
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(xvi) Waivers and Modifications. The terms of the related Mortgage and
the Mortgage Note have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties would
be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except in the case
of three Mortgage Loans as to which the interest of the related Mortgagor in the
related Mortgaged Property is in whole or in part a leasehold estate, the
interest of the related Mortgagor in the related Mortgaged Property consists of
a fee simple estate in real property.
(xix) Whole Loan. Except for the Participation Interest, each Mortgage
Loan is a whole loan and not a participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage referred
to in clause (iii) of Exhibit B of the Mortgage Loan Purchase Agreement between
German American Capital Corporation, as seller and GMAC Commercial Mortgage
Securities, Inc., as purchaser, dated August 8, 2000, constitutes the legal,
valid and binding assignment of such Mortgage from the relevant assignor to the
Trustee. The Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each Mortgage
Loan establishes and creates a valid, subsisting and, subject only to Permitted
Encumbrances, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, subleases, licenses
or other agreements pursuant to which any person is entitled to occupy, use or
possess all or any portion of the real property subject to the related Mortgage,
and each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases, not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form and constitutes a legal,
valid and binding assignment, sufficient to convey to the assignee named therein
all of the assignor's right, title and interest in, to and under such Assignment
of Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that
are, as of the Closing Date, required to be deposited with the mortgagee or its
agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the actual knowledge of the Seller, as
of the Closing Date, the related Mortgaged Property was and is free and clear of
any mechanics' and materialmen's liens or liens in the nature thereof which
create a lien prior to that created by the related Mortgage, except those which
are insured against by the Title Policy referred to in (vi) above.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of
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the date of such origination, no improvement that was included for the purpose
of determining the appraised value of the related Mortgaged Property at the time
of origination of such Mortgage Loan lay outside the boundaries and building
restriction lines of such property to any material extent (unless affirmatively
covered by the title insurance referred to in paragraph (vi) above), and no
improvements on adjoining properties encroached upon such Mortgaged Property to
any material extent. To the Seller's knowledge, based upon opinions of counsel
and/or other due diligence customarily performed by the Seller, the improvements
located on or forming part of such Mortgaged Property comply in all material
respects with applicable zoning laws and ordinances (except to the extent that
they may constitute legal non-conforming uses).
(xxiv) Originator Authorized. To the extent required under applicable
law as of the Closing Date, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent necessary to
ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. (A) To the Seller's knowledge, there exists
no material default, breach or event of acceleration under the related Mortgage
or Mortgage Note, and (B) the Seller has not received actual notice of any event
(other than payments due but not yet delinquent) that, with the passage of time
or with notice and the expiration of any grace or cure period, would constitute
such a material default, breach or event of acceleration; provided, however,
that this representation and warranty does not cover any default, breach or
event of acceleration that specifically pertains to any matter otherwise covered
or addressed by any other representation and warranty made by the Seller herein.
(xxvi) Inspection. In connection with the origination or acquisition of
each Mortgage Loan, the Seller inspected or caused to be inspected the Mortgaged
Property.
(xxvii) No Equity Participation or Contingent Interest. The Mortgage
Loan contains no equity participation by the lender, and does not provide for
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property, or for negative amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan has, to
the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any amount
required by the Mortgage Loan (other than amounts paid by the tenant as
specifically provided under the related lease).
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor or operator of the related Mortgaged Property was in possession of all
material licenses, permits and authorizations required by applicable laws for
the ownership and operation of the related Mortgaged Property as it was then
operated and if a related Mortgaged Property is improved by a skilled nursing,
congregate care or assisted living facility, the most recent inspection or
survey by governmental authorities having jurisdiction in connection with such
licenses, permits and authorizations did not cite such Mortgaged Property for
material violations (which shall include only "Level A" (or
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equivalent) violations in the case of skilled nursing facilities) that had not
been cured or as to which a plan of correction had not been submitted to and
accepted by such governmental authorities. To the extent such facility
participates in Medicaid or Medicare, such facility is in compliance in all
material respects with the requirements of such program.
(xxx) Servicing. The servicing and collection practices used with
respect to the Mortgage Loan have complied with applicable law in all material
respects and are consistent with the servicing standard set forth in Section
3.01(a) of the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. The related Mortgage or Mortgage Note,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph (xii)) such as to
render the rights and remedies of the holders thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage
provides that insurance proceeds and condemnation proceeds will be applied for
one of the following purposes: either to restore or repair the Mortgaged
Property, or to repay the principal of the Mortgage Loan, or otherwise at the
option of the holder of the Mortgage.
(xxxiii) LTV. The gross proceeds of such Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of the
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxxiii) shall be
made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Credit Lease Loans. With respect to each Mortgage Loan which is
a Credit Lease Loan:
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(A) To the Seller's knowledge, each credit lease ("Credit Lease") contains
customary and enforceable provisions which render the rights and remedies
of the lessor thereunder adequate for the enforcement and satisfaction of
the lessor's rights thereunder;
(B) To the Seller's knowledge, in reliance on a tenant estoppel certificate
and representation made by the tenant under the Credit Lease or
representations made by the related borrower under the Mortgage Loan
Documents, as of the closing date of each Credit Lease Loan (1) each Credit
Lease was in full force and effect, and no default by the borrower or the
tenant has occurred under the Credit Lease, nor is there any existing
condition which, but for the passage of time or the giving of notice, or
both, would result in a default under the terms of the Credit Lease, (2)
none of the terms of the Credit Lease have been impaired, waived, altered
or modified in any respect (except as described in the related tenant
estoppel), (3) no tenant has been released, in whole or in part, from its
obligations under the Credit Leases, (4) there is no right of rescission,
offset, abatement, diminution, defense or counterclaim to any Credit Lease,
nor will the operation of any of the terms of the Credit Leases, or the
exercise of any rights thereunder, render the Credit Lease unenforceable,
in whole or in part, or subject to any right of rescission, offset,
abatement, diminution, defense or counterclaim, and no such right of
rescission, offset, abatement, diminution, defense or counterclaim has been
asserted with respect thereto, and (5) each Credit Lease has a term ending
on or after the final maturity of the related Credit Lease Loan;
(C) The Mortgaged Property is not subject to any lease other than the related
Credit Lease, no Person has any possessory interest in, or right to occupy,
the Mortgaged Property except under and pursuant to such Credit Lease and
the tenant under the related Credit Lease is in occupancy of the Mortgaged
Property;
(D) The lease payments under the related Credit Lease are sufficient to pay the
entire amount of scheduled interest and principal on the Credit Lease Loan,
subject to the rights of the Tenant to terminate the Credit Lease or
offset, abate, suspend or otherwise diminish any amounts payable by the
tenant under the Credit Lease. Each Credit Lease Loan either (i) fully
amortizes over its original term and has no "balloon" payment of rent due
under the related Credit Lease or (ii) is a Balloon Loan, for which a
residual value insurance policy has been obtained that requires the payment
of an amount at least equal to the Balloon Payment due on the related
Maturity Date;
(E) Under the terms of the Credit Leases, the lessee is not permitted to assign
its interest or obligations under the Credit Lease unless such lessee
remains fully liable thereunder;
(F) The mortgagee is entitled to notice of any event of default from the
tenant under Credit Leases;
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(G) Each tenant under a Credit Lease is required to make all rental payments
directly to the mortgagee, its successors and assigns under the related
Credit Lease Loan;
(H) Each Credit Lease Loan provides that the related Credit Lease cannot be
modified without the consent of the mortgagees under the related Credit
Lease Loan;
(I) For each Credit Lease Loan under which a Credit Lease may be terminated
upon the occurrence of a casualty or condemnation, a lease enhancement
insurance policy has been obtained that requires upon such termination the
payment in full of: (a) the principal balance of the loan and (b) all
accrued and unpaid interest on the Mortgage Loan. Under the Credit Lease
for each Credit Lease Loan, upon the occurrence of a casualty or
condemnation, the tenant has no right of rent abatement, except to the
extent of coverage provided by the related lease enhancement insurance
policy; and
(J) The terms of any guaranty of the payment and performance obligations of the
tenant under any Credit Lease are unconditional and provide for guaranty of
payment and not of collection.
(xxxvi) Litigation. To the Seller's actual knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the related Mortgagor or the related Mortgaged
Property that, if determined adversely to such Mortgagor or Mortgaged Property,
would materially and adversely affect the value of the Mortgaged Property or the
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple interest in real estate or the related Mortgage
Loan is secured in whole or in part by the interest of the Mortgagor as a lessee
under a ground lease of the Mortgaged Property (a "Ground Lease"). Any Mortgage
Loan that is secured by the interest of the Mortgagor under a Ground Lease may
or may not be secured by the related fee interest in such Mortgaged Property
(the "Fee Interest"). If a Mortgage Loan is secured in whole or in part by a
Ground Lease, either (1) the ground lessor's Fee Interest is subordinated to the
lien of the Mortgage or (2) the following apply to such Ground Lease:
(A) To the actual knowledge of the Seller, based on due diligence customarily
performed in the origination of comparable mortgage loans by the Seller,
such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) permits the
interest of the lessee thereunder to be encumbered by the related Mortgage;
and there has been no material change in the payment terms of such Ground
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;
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(B) The lessee's interest in such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related Mortgage,
other than the ground lessor's related fee interest and Permitted
Encumbrances;
(C) The Mortgagor's interest in such Ground Lease is assignable to the
Purchaser and its successors and assigns upon notice to, but without the
consent of, the lessor thereunder (or, if such consent is required, it has
been obtained prior to the Closing Date) and, in the event that it is so
assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of, such
lessor;
(D) Such Ground Lease is in full force and effect, and the Seller has received
no notice that an event of default has occurred thereunder, and, to the
Seller's actual knowledge, there exists no condition that, but for the
passage of time or the giving of notice, or both, would result in an event
of default under the terms of such Ground Lease;
(E) Such Ground Lease, or an estoppel letter or other agreement, requires the
lessor under such Ground Lease to give notice of any default by the lessee
to the mortgagee under such Mortgage Loan, provided that the mortgagee
under such Mortgage Loan has provided the lessor with notice of its lien in
accordance with the provisions of such Ground Lease, and such Ground Lease,
or an estoppel letter or other agreement, further provides that no notice
of termination given under such Ground Lease is effective against the
mortgagee unless a copy has been delivered to the mortgagee;
(F) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(G) Such Ground Lease has an original term (including any extension options set
forth therein) which extends not less than ten years beyond the Stated
Maturity Date of the related Mortgage Loan;
(H) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds will be applied either to the
repair or restoration of all or part of the related 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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(I) Such Ground Lease does not impose any restrictions on subletting which
would be viewed, as of the date of origination of the related Mortgage
Loan, as commercially unreasonable by the Seller; and such Ground Lease
contains a covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession, interest or quiet
enjoyment of any subtenant of the lessee, or in any manner, which would
materially adversely affect the security provided by the related Mortgage;
and
(J) Such Ground Lease, or an estoppel letter or other agreement, requires the
lessor to enter into a new lease in the event of a termination of the
Ground Lease by reason of a default by the Mortgagor under the Ground
Lease, including, rejection of the ground lease in a bankruptcy proceeding.
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such portion was not considered material for purposes of
underwriting the Mortgage Loan, (b) release is conditioned upon the satisfaction
of certain underwriting and legal requirements or the payment of a release
price, or (c) a defeasance is affected in accordance with the Mortgage Loan
Documents, the related Mortgage Note or Mortgage does not require the holder
thereof to release all or any portion of the Mortgaged Property from the lien of
the related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal priority
with the lien of the related Mortgage (excluding any lien relating to another
Mortgage Loan that is cross-collateralized with such Mortgage Loan) without the
prior written consent of the holder thereof or the satisfaction of debt service
coverage or similar conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor is
not a debtor in any state or federal bankruptcy or insolvency proceeding.
(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
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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 March 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.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser, the Depositor and/or the Trustee and shall inure to the
benefit of the Purchaser, and its successors and assigns (including without
limitation the Depositor, the Trustee and the holders of the Certificates),
notwithstanding any restrictive or qualified endorsement or assignment.
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SCHEDULE B-1 to EXHIBIT B
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
(XXXVII) LEASEHOLD ESTATE
The following Mortgage loan(s) are secured in whole or in part by the
interest of the borrower as a lessee under a Ground Lease.
(H) The Ground Lease requires lessor to enter into a new lease in the
event of termination of the Ground Lease by reason of default.
Loan Number Property Issue
20227 Dupont Medical Building Ground Lease doesnot provide
provision which required
lessor to enter into a new
lease in the event of
termination by reason of
default
(XLIV) SINGLE PURPOSE ENTITY
The related Mortgagor is not a single purpose bankruptcy remote entity.
Loan Number Property Issue
20226 Carpenter's Union Building Borrower is not an SPE
20227 Dupont Medical Building Borrower is not an SPE
25095 College Park Apartments Borrower is not an SPE
25199 Southlake Market Loop Borrower is not an SPE
25231 K-Mart-Aurora, CO Borrower is not an SPE
25336 Los Frances Apartments Borrower is not an SPE
25387 K-Mart-Grand Island Borrower is not an SPE
25540 Southport Associates Retail Borrower is not an SPE
25997 Across Lenox SC Borrower is not an SPE
26176 Buckingham Apartments Borrower is not an SPE
26212 La Brea Office Bldg Borrower is not an SPE
26339 Pioneer Retail Center Borrower is not an SPE
26497 9001 Braddock Road Office Borrower is not an SPE
Bldg.
26584 K-Mart-South Bend Borrower is not an SPE
27351 Chili's Plaza Borrower is not an SPE
27480 Meadows of Gwinett Country Borrower is not an SPE
Apartments
27900 BRC Plaza SC Borrower is not an SPE
27902 Denver Creek Apartments Borrower is not an SPE
27903 Intermountain Self-Storage #1 Borrower is not an SPE
27904 Intermountain Self-Storage # 2 Borrower is not an SPE
27905 Intermountain Self-Storage # 3 Borrower is not an SP
B-1-1
