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EXHIBIT 99.7
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of August 8, 2000, between Goldman Sachs Mortgage Company as seller
(the "Seller") and GMAC Commercial Mortgage Securities, Inc. as purchaser (the
"Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule"). Certain other multifamily and commercial mortgage
loans (the "Other 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
August 8, 2000 (the "GACC Warehouse Mortgage Loan Purchase Agreement"), between
the Purchaser and GACC; (ii) Goldman Sachs Mortgage Company ("GSMC") pursuant
to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of August 8, 2000 (the "GSMC Warehouse Mortgage Loan
Purchase Agreement") between the Purchaser and GSMC; (iii) Salomon Brothers
Realty Corp. ("Salomon"), pursuant to, and for the consideration described in,
the Mortgage Loan Purchase Agreement, dated as of August 8, 2000 (the "Salomon
Warehouse Mortgage Loan Purchase Agreement"), between the Purchaser and Salomon
(the mortgage loans purchased by the Purchaser under the GACC Warehouse Mortgage
Loan Purchase Agreement, the GSMC Warehouse Mortgage Loan Purchase Agreement and
the Salomon Warehouse Mortgage Loan Purchase Agreement, the "Warehouse Mortgage
Loans"); and (iv) GACC, pursuant to, and for the consideration described in, the
Mortgage Loan Purchase Agreement, dated as of August 8, 2000 (the "GACC Mortgage
Loan Purchase Agreement"), between the Purchaser and GACC. The Seller, GACC,
GSMC and Salomon are collectively referred to as the "Mortgage Loan Sellers." A
multifamily mortgage participation certificate issued and guaranteed by the
Federal Home Loan Mortgage Corporation (the "Mortgage Certificate") will be
purchased by the Purchaser from GMAC Commercial Mortgage Corporation ("GMACCM")
pursuant to an assignment and assumption agreement, dated as of August 17, 2000
(the "Assignment and Assumption Agreement"), between the Purchaser and GMACCM.
It is expected that the Mortgage Loans will be transferred, together with
the Other Mortgage Loans and the Mortgage Certificate to a trust fund (the
"Trust Fund") to be formed by the Purchaser, beneficial ownership of which will
be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by 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
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Agreement"), among the Purchaser as depositor, GMACCM 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.
The Purchaser intends to sell the Class A-1, Class A-2, Class B, Class C,
Class D and Class E Certificates to Deutsche Bank Securities Inc. and 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 and Class F to 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 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 Goldman, Sachs & Co. (in such capacity, an "Initial Purchaser").
The Class X, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class R-I, Class R-II and Class R-III Certificates are
collectively referred to as the "Non-Registered Certificates."
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to the
Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage Loans shall take place on August 17, 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 August 2000. As of the close of business on their
respective Cut-off Dates (which Cut-off Dates may occur after the Closing Date),
the Mortgage Loans will have an aggregate principal balance (the "Aggregate
Cut-off Date Balance"), after application of all payments of principal due
thereon on or before such date, whether or not received, of $184,059,278 subject
to a variance of plus or minus 5%. The purchase price for the Mortgage Loans
shall be $190,614,912.74.
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
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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. It is further acknowledged and agreed by the Seller that the Purchaser
intends to cause the Trustee to perform a limited review of such Mortgage Files
to enable the Trustee to confirm to the Purchaser on or before the Closing Date
that the Mortgage Note referred to in clause (i) of Exhibit B has been delivered
by the Seller with respect to each such Mortgage File. In the event Seller fails
to so deliver each such Mortgage File to the Trustee, the Purchaser and its
successors and assigns shall be entitled to pursue any rights or remedies in
respect of such failure as may be available under applicable law. If the Seller
cannot deliver, or cause to be delivered as to any Mortgage Loan, the original
Mortgage Note, the Seller shall deliver a copy or duplicate original of such
Mortgage Note, together with an affidavit certifying that the original thereof
has been lost or destroyed. If the Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original or a copy of any of the
documents and/or instruments referred to in clauses (ii), (iv), (viii), (xi)(A)
and (xii) of Exhibit B, with evidence of recording thereon, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, or because such
original recorded document has been lost or returned from the recording or
filing office and subsequently lost, as the case may be, the delivery
requirements of this Section 2(b) shall be deemed to have been satisfied as to
such missing item, and such missing item shall be deemed to have been included
in the related Mortgage File, provided that a copy of such document or
instrument (without evidence of recording or filing thereon, but certified
(which certificate may relate to multiple documents and/or instruments) by the
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Trustee, and
either the original of such missing document or instrument, or a copy thereof,
with evidence of recording or filing, as the case may be, thereon, is delivered
to or at
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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 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
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available in equity or at law for a breach of the Seller's representations,
warranties and covenants set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, and its successors and assigns (including,
without limitation, the Trustee and the holders of the Certificates), each of
the representations and warranties set forth in Exhibit C, with such changes or
modifications as may be permitted or required by the Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents and
warrants to, and covenants with, the Purchaser that:
(i) The Seller is a limited partnership, duly organized, validly
existing and in good standing under the laws of the State of New York, 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
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affect materially and adversely either the ability of the Seller to perform
its obligations under this Agreement or the financial condition of the
Seller.
(vi) No litigation is pending with regard to which Seller has received
service of process or, to the best of the Seller's knowledge, threatened
against the Seller the outcome of which, in the Seller's good faith and
reasonable judgment, could reasonably be expected to prohibit the Seller
from entering into this Agreement or materially and adversely affect the
ability of the Seller to perform its obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment banker,
agent or other person, other than the Purchaser, the Underwriters, the
Initial Purchasers and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the other transactions contemplated
hereby.
(viii) Neither the Seller nor anyone acting on its behalf has (A)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (B) solicited any offer to buy or to accept a
pledge, disposition or other transfer of any Certificate, any interest in
any Certificate or any other similar security from any person in any
manner, (C) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (D) made any general solicitation by means
of general advertising or in any other manner with respect to any
Certificate, any interest in any Certificate or any similar security, or
(E) taken any other action, that (in the case of any of the acts described
in clauses (A) through (E) above) would constitute or result in a violation
of the Securities Act or any state securities law relating to or in
connection with the issuance of the Certificates or require registration or
qualification pursuant to the Securities Act or any state securities law of
any Certificate not otherwise intended to be a Registered Certificate. In
addition, the Seller will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to any of the Certificates or interests therein. For
purposes of this paragraph 4(b)(viii), the term "similar security" shall be
deemed to include, without limitation, any security evidencing or, upon
issuance, that would have evidenced an interest in the Mortgage Loans or
the Other Mortgage Loans or any substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information set
forth on pages A-9 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/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-C2 Transaction--The
Mortgage Assets," "--Geographic Concentrations of the Mortgaged
Properties," "--Property Types," "--Prepayment Protection Provided by the
Mortgage Loans," "--Payment Terms of the
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Mortgage Loans," "Risk Factors" and "Description of the Mortgage Assets",
set forth on Annex A to the Prospectus Supplement and (to the extent it
contains information consistent with that on such Annex A) set forth on the
Diskette, does not contain any untrue statement of a material fact or (in
the case of the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law (including, with respect to any bulk sale laws),
for the execution, delivery and performance of or compliance by the Seller
with this Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) the filing or recording of financing
statements, instruments of assignment and other similar documents necessary
in connection with Seller's sale of the Mortgage Loans to the Purchaser,
(2) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained or made and (3)
where the lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties made pursuant to and set forth in subsection (b)
above which materially and adversely affects the interests of the Purchaser or a
breach of any of the representations and warranties made pursuant to subsection
(a) above and set forth in Exhibit C which materially and adversely affects the
value of any Mortgage Loan or the interests therein of the Purchaser or its
successors and assigns (including, without limitation the Trustee and the
holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and warrants
to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the Purchaser, and
the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or which is
applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the
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execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and delivery
by the Seller, constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Purchaser's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Purchaser to
perform its obligations under this Agreement or the financial condition of
the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely affect
either the ability of the Purchaser to perform its obligations under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Seller, the Underwriters, the Initial
Purchasers and their respective affiliates, that may be entitled to any
commission or compensation in connection with the sale of the Mortgage
Loans or the consummation of any of the transactions contemplated hereby.
(viii) No consent, approval, authorization or order of, registration or
filing with, or notice to, any governmental authority or court is required,
under federal or state law, for the execution, delivery and performance of
or compliance by the Purchaser with this Agreement, or the consummation by
the Purchaser of any transaction contemplated hereby, other than (1) such
consents, approvals, authorizations, qualifications, registrations, filings
or notices as have been obtained or made and (2) where the lack of such
consent, approval, authorization, qualification, registration, filing or
notice would not have a material adverse effect on the performance by the
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of any of the
representations and warranties set forth above which materially and adversely
affects the interests of the Seller, the party discovering such breach shall
give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
(a) Within 90 days of the earlier of discovery or receipt of notice by the
Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and
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Servicing Agreement as in effect on the Closing Date) in respect of the Mortgage
File for any Mortgage Loan or a breach of any representation or warranty made
pursuant to Section 4(a) and set forth in Exhibit C (a "Breach"), which Defect
or Breach, as the case may be, materially and adversely affects the value of any
Mortgage Loan or the interests therein of the Purchaser or its successors and
assigns (including, without limitation, the Trustee and the holders of the
Certificates), the Seller shall cure such Defect or Breach, as the case may be,
in all material respects or repurchase the affected Mortgage Loan from the then
owner(s) thereof at the applicable Purchase Price (as defined in the Pooling and
Servicing Agreement as in effect on the Closing Date) by payment of such
Purchase Price by wire transfer of immediately available funds to the account
designated by such owner(s); provided, however, that in lieu of effecting any
such repurchase, the Seller will be permitted to deliver a Qualifying Substitute
Mortgage Loan and to pay a cash amount equal to the applicable Substitution
Shortfall Amount, subject to the terms and conditions of the Pooling and
Servicing Agreement as in effect on the Closing Date.
If the Seller is notified of a Defect in any Mortgage File that corresponds
to information set forth in the Mortgage Loan Schedule, the Seller shall
promptly correct such Defect and provide a new, corrected Mortgage Loan Schedule
to the Purchaser, which corrected Mortgage Loan Schedule shall be deemed to
amend and replace the existing Mortgage Loan Schedule for all purposes.
(b) Notwithstanding Section 6(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage 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).
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
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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 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 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 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Orrick, Herrington & Sutcliffe LLP, 666 Fifth Avenue, New
York, New York 10103 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;
10
<PAGE>
(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;
(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 New York, 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, in a form reasonably
acceptable to counsel for the Purchaser and subject to such reasonable
assumptions and qualifications as may be
11
<PAGE>
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
(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 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 contained in the
Prospectus Supplement or the Memorandum under the headings "Summary of Series
2000-C2 Transaction--The Mortgage Assets," "--Geographic Concentrations of the
Mortgaged Properties," "--Property Types," "--Prepayment Protection Provided by
the Mortgage Loans," "--Payment Terms of the Mortgage Loans," "Risk Factors"
and/or "Description of the Mortgage Assets" 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.
12
<PAGE>
This indemnity agreement will be in addition to any liability which the Seller
may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 333-74299 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated July 31,
2000, as supplemented by the prospectus supplement dated August 8, 2000 (the
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated August 8, 2000, relating to
the Non-Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to 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 information 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 with the
proviso to the preceding sentence (it being understood, however, that the
13
<PAGE>
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.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne by
the respective parties hereto.
14
<PAGE>
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 Goldman Sachs Mortgage Company, 85 Broad Street, New
York, New York 10004, Attention: Jay Strauss, facsimile no. (212) 902-4140, 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 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.
15
<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 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.
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.
16
<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.
GOLDMAN SACHS MORTGAGE COMPANY,
a New York Limited Partnership
By: Goldman Sachs Real Estate Funding Corp.,
its General Partner
By: /s/ Mark Kogan
--------------------------------------
Name: Mark Kogan
Title: Vice President
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ David Lazarus
--------------------------------------
Name: David Lazarus
Title: Vice President
17
<PAGE>
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
<PAGE>
<TABLE>
<CAPTION>
LOAN NUMBER NAME ADDRESS CITY
<S> <C> <C> <C>
09-0001327 Cottonwood Plaza Shopping Center 17721-17789 Cottonwood Drive Parker
09-0001331 Alma-Elliot Square Shopping Center 941, 947, 955, 963, 971, 973 and 985 West Elliot Road Chandler
09-0001332 Fry's at the Island 835 West Warner Road Gilbert
09-0001333 Champaign Village Shopping Center 1812-2002 Glen Park Drive Champaign
09-0001335 Mountain View Shopping Center 1211 North Commerce Street Ardmore
09-0001336 Eagle River Business Center 8100 Shaffer Parkway Littleton
09-0001337 Metro Arts Building 5657 Wilshire Boulevard Los Angeles
09-0001338 Summerhill Office Plaza 7465, 7469, 7473, 7477 West Lake Mead Boulevard Las Vegas
09-0001339 Continental Court 65 S. Chapel Street Newark
09-0001340 The Oaks Apartments 330 North Screenland Drive Burbank
09-0001341 Parc Pointe Apartments 620-640 North Hollywood Avenue Burbank
09-0001343 Insight Aircenter 3068 East Sunset Road Las Vegas
09-0001344 The Promenade South Shopping Center 330 Coit Road Richardson
09-0001345 South Tech Hacienda Business Park 5275 Arville Street Las Vegas
09-0001346 South Tech Polaris Business Park 3485 West Harmon Avenue Las Vegas
09-0001347 South Tech Rio 4255 Industrial Road Las Vegas
09-0001348 Atrium Center 4801 South University Drive Davie
09-0001350 McCrory's Warehouse 2955 E. Market Street Springettsbury Township
09-0001351 McCarran Corporate Plaza - Building 1 5740 South Eastern Avenue Las Vegas
09-0001352 Mission Commons 7605 - 7699 West 88th Avenue Westminister
09-0001353 One Shoreline Plaza 800 North Shoreline Boulevard Corpus Christi
09-0001355 Crestwood Plaza 6930-6956 Crestwood Boulevard Frederick
<CAPTION>
INTEREST RATE ORIGINAL CUT-OFF DATE REMAINING
LOAN NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM MATURITY DATE
<S> <C> <C> <C> <C> <C> <C> <C> <C>
09-0001327 Colorado 80134 9.0600 Fixed 1,900,000.00 1,894,690.66 114 2/1/10
09-0001331 Arizona 85222 8.8200 Fixed 6,000,000.00 5,987,207.96 115 3/1/10
09-0001332 Arizona 85233 8.7500 Fixed 2,080,000.00 2,075,466.17 115 3/1/10
09-0001333 Illinois 75039 8.5700 Fixed 3,585,000.00 3,576,737.12 115 3/1/10
09-0001335 Oklahoma 73401 8.5900 Fixed 6,750,000.00 6,737,011.44 116 4/1/10
09-0001336 Colorado 80127 8.3100 Fixed 2,310,000.00 2,305,191.73 116 4/1/10
09-0001337 California 90036 8.4000 Fixed 4,450,000.00 4,440,965.67 116 4/1/10
09-0001338 Nevada 89128 8.1200 Fixed 6,500,000.00 6,488,014.19 118 6/1/10
09-0001339 Delaware 19711 8.0800 Fixed 4,000,000.00 3,989,267.17 117 5/1/10
09-0001340 California 91505 8.0600 Fixed 8,650,000.00 8,640,429.56 118 6/1/10
09-0001341 California 91505 8.0600 Fixed 21,000,000.00 20,976,765.38 118 6/1/10
09-0001343 Nevada 89120 8.2900 Fixed 2,850,000.00 2,845,875.93 117 5/1/10
09-0001344 Texas 75080 8.9300 Fixed 2,346,000.00 2,343,971.42 118 6/1/10
09-0001345 Nevada 89118 8.8400 Fixed 7,007,000.00 7,000,776.71 118 6/1/10
09-0001346 Nevada 89103 8.8400 Fixed 3,165,000.00 3,162,189.00 118 6/1/10
09-0001347 Nevada 89103 9.0400 Fixed 1,849,000.00 1,847,453.33 118 6/1/10
09-0001348 Florida 33328 8.7400 Fixed 5,743,000.00 5,735,553.95 118 6/1/10
09-0001350 Pennsylvania 17402 8.9100 Fixed 4,000,000.00 3,958,717.29 118 6/1/10
09-0001351 Nevada 89107 8.3200 Fixed 5,300,000.00 5,294,537.88 118 6/1/10
09-0001352 Colorado 80005 9.4100 Fixed 11,350,000.00 11,341,541.38 58 6/1/05
09-0001353 Texas 78401 8.9700 Fixed 19,000,000.00 18,994,290.82 119 7/1/10
09-0001355 Maryland 21703 8.3100 Fixed 4,550,000.00 4,548,184.30 119 7/1/10
<CAPTION>
CREDIT BRKR ADDL
ANT. REP. DAY PAYMT MTHLY ARD LEASE STRIP SERV. FEE SERV.
LOAN NUMBER DATE DUE PAYMT LOAN LOAN DEFEASANCE LOAN LOAN FEE
<C> <C> <C> <C> <C> <C> <C> <C> <C>
09-0001327 1 15,369.93 No Lock/30_Defeasance/86_0%/4 0.0575
09-0001331 1 47,502.31 No Lock/29_Defeasance/87_0%/4 0.0575
09-0001332 1 16,363.37 No Lock/29_Defeasance/87_0%/4 0.0575
09-0001333 1 27,743.59 No Lock/29_Defeasance/87_0%/4 0.0575
09-0001335 1 52,332.81 No Lock/28_Defeasance/88_0%/4 0.0575
09-0001336 1 17,451.79 No Lock/28_Defeasance/88_0%/4 Yes 0.1075
09-0001337 1 33,901.78 No Lock/28_Defeasance/88_0%/4 Yes 0.1375
09-0001338 1 50,685.86 No Lock/26_Defeasance/89_0%/5 0.0575
09-0001339 1 31,084.93 No Lock/27_Defeasance/89_0%/4 0.0575
09-0001340 1 63,832.81 No Lock/26_Defeasance/90_0%/4 Yes 0.0975
09-0001341 1 154,969.84 No Lock/26_Defeasance/90_0%/4 Yes 0.0975
09-0001343 1 21,491.29 No Lock/27_Defeasance/88_0%/5 0.0575
09-0001344 1 18,758.41 No Lock/35_Defeasance/81_0%/4 Yes 0.1375
09-0001345 1 55,575.12 No Lock/35_Defeasance/81_0%/4 0.0575
09-0001346 1 25,102.79 No Lock/35_Defeasance/81_0%/4 0.0575
09-0001347 1 14,930.72 No Lock/35_Defeasance/81_0%/4 0.0575
09-0001348 1 46,231.77 No Lock/26_Defeasance/90_0%/4 0.0575
09-0001350 1 50,755.58 No Lock/26_Defeasance/90_0%/4 0.0575
09-0001351 1 40,078.24 No Lock/26_Defeasance/90_0%/4 0.0575
09-0001352 1 94,692.56 No Lock/26_Defeasance/30_0%/4 0.0575
09-0001353 1 152,468.35 No Lock/25_Defeasance/91_0%/4 0.0575
</TABLE>
A-1
<PAGE>
<TABLE>
<CAPTION>
LOAN NUMBER NAME ADDRESS CITY
<S> <C> <C> <C>
09-0001356 Royal 400 Court Office Building - Phase II 3060 Royal Boulevard South Alpharetta
09-0001357 Satellite Court Office Building 2250 Satellite Boulevard Duluth
09-0001358 Mebane Mill Apartments - Phase II 1500-3000 East Dogwood Drive Mebane
09-0001359 The Plaza at Cottonwood 10242 - 10260 Coors Boulevard Bypass Albuquerque
09-0001360 Net Perceptions Building 7901 Flying Cloud Drive Eden Prairie
09-0001361 Meriden Parkade Shopping Center 1231 East Main Street Meriden
09-0001362 Crystal River Shopping Center 1051 Highway 133 Carbondale
09-0001364 Clock Tower Plaza 2005-2073 West Avenue K Lancaster
09-0001368 Roanoke Portfolio Various Roanoke
09-0001368-A Valley Park Center 5305 & 5310 Valley Park Drive Roanoke
09-0001368-B National Park Services Office Building 5162 Valleypointe Parkway Roanoke
09-0001368-C Park at Valleypointe 5221, 5228, 5238 Valleypointe Pkwy & Roanoke
5251 S. Concourse Drive
<CAPTION>
INTEREST RATE ORIGINAL CUT-OFF DATE REMAINING
LOAN NUMBER STATE ZIP RATE TYPE BALANCE BALANCE TERM MATURITY DATE
<S> <C> <C> <C> <C> <C> <C> <C> <C>
09-0001356 Georgia 30022 8.6000 Fixed 3,500,000.00 3,496,666.59 118 6/1/10
09-0001357 Georgia 30097 8.6000 Fixed 4,050,000.00 4,046,142.76 118 6/1/10
09-0001358 North Carolina 27302 8.2800 Fixed 3,600,000.00 3,598,546.44 119 7/1/10
09-0001359 New Mexico 87114 8.4500 Fixed 9,928,000.00 9,924,253.78 119 7/1/10
09-0001360 Minnesota 55344 8.6100 Fixed 3,830,000.00 3,828,647.78 119 7/1/10
09-0001361 Connecticut 06450 8.6500 Fixed 7,900,000.00 7,897,258.07 119 7/1/10
09-0001362 Colorado 81623 8.4000 Fixed 3,360,000.00 3,358,706.25 119 7/1/10
09-0001364 California 93536 8.5100 Fixed 2,125,000.00 2,124,217.65 119 7/1/10
09-0001368 Virginia 24019 8.3000 Fixed 11,600,000.00 11,600,000.00 120 8/1/10
09-0001368-A Virginia 24019 NAP
09-0001368-B Virginia 24019 NAP
09-0001368-C Virginia 24019 NAP
<CAPTION>
CREDIT BRKR ADDL
ANT. REP. DAY PAYMT MTHLY ARD LEASE STRIP SERV. FEE SERV.
LOAN NUMBER DATE DUE PAYMT LOAN LOAN DEFEASANCE LOAN LOAN FEE
<C> <C> <C> <C> <C> <C> <C> <C> <C>
09-0001355 1 34,374.74 No Lock/25_Defeasance/91_0%/4 0.0575
09-0001356 1 27,160.40 No Lock/26_Defeasance/90_0%/4 0.0575
09-0001357 1 31,428.47 No Lock/26_Defeasance/90_0%/4 0.0575
09-0001358 1 27,121.56 No Lock/25_Defeasance/91_0%/4 0.0575
09-0001359 1 75,986.21 No Lock/25_Defeasance/91_0%/4 0.0575
09-0001360 1 29,748.48 No Lock/25_Defeasance/91_0%/4 0.0575
09-0001361 1 61,585.96 No Lock/25_Defeasance/91_0%/4 0.0575
09-0001362 1 25,597.75 No Lock/25_Defeasance/91_0%/4 Yes 0.1075
09-0001364 1 16,354.47 No Lock/25_Defeasance/91_0%/4 0.0575
09-0001368 1 87,555.01 No Lock/24_Defeasance/89_0%/7 0.0575
09-0001368-A NAP NAP
09-0001368-B NAP NAP
09-0001368-C NAP NAP
</TABLE>
A-2
<PAGE>
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section 2(b),
collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most recent endorsee prior
to the Trustee or, if none, by the originator, without recourse, either in blank
or to the order of the Trustee in the following form: "Pay to the order of Wells
Fargo Bank Minnesota, N.A., as trustee for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through Certificates, Series
2000-C2, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in each case with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form, executed
by the most recent assignee of record thereof prior to the Trustee or, if none,
by the originator, either in blank or in favor of the Trustee (in such
capacity);
(iv) the original or a copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and, if applicable, the originals
or copies of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any, in each case with evidence of
recording thereon;
(v) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in recordable form, executed by
the most recent assignee of record thereof prior to the Trustee or, if none, by
the originator, either in blank or in favor of the Trustee (in such capacity),
which assignment may be included as part of the corresponding assignment of
Mortgage referred to in clause (iii) above;
(vi) an original or copy of any related Security Agreement (if such item is
a document separate from the Mortgage) and, if applicable, the originals or
copies of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement (if such
item is a document separate from the Mortgage) executed by the most recent
assignee of record 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
B-1
<PAGE>
where the terms or provisions of the Mortgage, Mortgage Note or any related
security document have been modified or the Mortgage Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy,
together with all endorsements or riders (or copies thereof) that were issued
with or subsequent to the issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgaged Property;
(x) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan together with (A) if applicable, the original
or copies of any intervening assignments of such guaranty showing a complete
chain of assignment from the originator of the Mortgage Loan to the most recent
assignee thereof prior to the Trustee, if any, and (B) an original assignment of
such guaranty executed by the most recent assignee thereof prior to the Trustee
or, if none, by the originator;
(xi) (A) file or certified copies of any UCC financing statements and
continuation statements which were filed in order to perfect (and maintain the
perfection of) any security interest held by the originator of the Mortgage Loan
(and each assignee of record prior to the Trustee) in and to the personalty of
the mortgagor at the Mortgaged Property (in each case with evidence of filing
thereon) and which were in the possession of the Seller (or its agent) at the
time the Mortgage Files were delivered to the Trustee and (B) if any such
security interest is perfected and the earlier UCC financing statements and
continuation statements were in the possession of the Seller, a UCC financing
statement executed by the most recent assignee of record prior to the Trustee
or, if none, by the originator, evidencing the transfer of such security
interest, either in blank or in favor of the Trustee;
(xii) the original or a copy of the power of attorney (with evidence of
recording thereon, if appropriate) granted by the Mortgagor if the Mortgage,
Mortgage Note or other document or instrument referred to above was signed on
behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the related Mortgaged
Property, the original ground lease or a copy thereof;
(xiv) if the Mortgage Loan is a Credit Lease Loan, an original of the
credit lease enhancement insurance policy, if any, obtained with respect to such
Mortgage Loan and an original of the residual value insurance policy, if any,
obtained with respect to such Mortgage 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 with respect to
the Mortgage Loan; and
(xvii) any additional documents required to be added to the Mortgage File
pursuant to this Agreement;
provided that, whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be deemed
to include such documents and
B-2
<PAGE>
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, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is specified,
as of the Closing Date, except as set forth on Schedule C-1 hereto, that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer thereof
to the Purchaser, the Seller had good and marketable title to, and was the sole
owner and holder of, such Mortgage Loan, free and clear of any and all liens,
encumbrances and other interests on, in or to such Mortgage Loan (other than, in
certain cases, the right of a subservicer to directly service such Mortgage
Loan). Such transfer validly assigns ownership of such Mortgage Loan to the
Purchaser free and clear of any pledge, lien, encumbrance or security interest
(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 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. 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
C-1
<PAGE>
UCC financing statement, if any, establishes and creates a first priority,
perfected security interest (subject only to any prior purchase money security
interest), to the extent such security interest can be perfected by the
recordation of a Mortgage or the filing of a UCC financing statement, in all
personal property owned by the Mortgagor that is used in, and is reasonably
necessary to, the operation of the related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by an
ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such 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 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.
C-2
<PAGE>
(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 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
C-3
<PAGE>
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 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. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage referred to
in clause (iii) of Exhibit B constitutes the legal, valid and binding assignment
of such Mortgage from the relevant assignor to the Trustee. The Assignment of
Leases set forth in the Mortgage or separate from the related Mortgage and
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject only to Permitted Encumbrances,
enforceable first priority lien and first priority security interest in the
related Mortgagor's interest in all leases, subleases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases, not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form and constitutes a legal,
valid and binding assignment, sufficient to convey to the assignee named therein
all of the assignor's right, title and interest in, to and under such Assignment
of Leases.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that are,
as of the Closing Date, required to be deposited with the mortgagee or its agent
have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of origination
of such Mortgage Loan and, to the actual knowledge of the Seller, as of the
Closing Date, the related Mortgaged Property was and is free and clear of any
mechanics' and materialmen's liens or liens
C-4
<PAGE>
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 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 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
C-5
<PAGE>
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 Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) Credit Lease Loans. With respect to each Mortgage Loan which is a
Credit Lease Loan:
(A) To the Seller's knowledge, each credit lease ("Credit Lease")
contains customary and enforceable provisions which render the
rights and remedies of the lessor
C-6
<PAGE>
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;
(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;
C-7
<PAGE>
(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, (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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(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;
(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
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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 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.
(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
C-10
<PAGE>
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 August 1, 2000), (ii) only with
substitute collateral constituting "government securities" within the meaning of
Treas. Reg. (SECTION) 1.860G-2(a)(8)(i), and (iii) only to facilitate the
disposition of mortgage real property and not as a part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
(xlvi) Defeasance Costs. If the Mortgage Loan permits defeasance, then the
mortgage loan documents related to such Mortgage Loan require (a) the borrower
to pay all rating agency fees associated with defeasance and all other
out-of-pocket expenses associated with defeasance such as accountant's fees and
opinions of counsel, or (b) that the borrower provide a REMIC opinion, an
opinion regarding the first priority perfected security interest in the
defeasance collateral, rating agency letters certifying no rating qualification
or downgrade on any securities, and accountant certification that all payments
from the defeasance collateral are sufficient to make monthly principal and
interest payments on such Mortgage Loan through maturity.
It is understood and agreed that the representations and warranties set
forth in this Exhibit 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-11
<PAGE>
SCHEDULE C-1 TO EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
<TABLE>
<CAPTION>
(v) Permitted Encumbrances.
Loan Number Property Issue
----------- -------- -----
<S> <C> <C>
002614872 McCrorys Warehouse The abutting property owner, Home Depot U.S.A., Inc. has a
right of first refusal to purchase the Mortgaged Property.
The right is not rendered inapplicable in the event of a
foreclosure. Additionally, the Newberry lease grants two
purchase options with the first exercisable either between
April 1, 2005 and April 30, 2005 for $9,000,000 and the
second exercisable between April 1, 2010 and April 30, 2010
for $7,500,000. The Mortgage Loan documents require that any
exercise of that right must be handled as a defeasance. The
Mortgagor is required to use its best efforts to obtain and
deliver a subordination from Home Depot on or before
September 5, 2000.
(vii) No Waiver By Seller of Material Default.
Loan Number Property Issue
----------- -------- -----
930843594 Home-Kim Industrial The Mortgaged Property does not have the number of parking
Building spaces required under local zoning ordinances and is not
legally non-conforming. The Mortgaged Property includes
sufficient additional area to comply and the Mortgagor has
reserved $41,250 with the Mortgagee as security until
Mortgagor delivers evidence of compliance. The work was
required to be completed within 90 days of closing. The 90
day time period has expired, but to the Seller's knowledge,
borrower is diligently pursuing the cure.
(ix) Condition of Property; Condemnation.
Loan Number Property Issue
----------- -------- -----
934402675 Alma-Elliot A partial condemnation is pending for the related
Square Shopping property Center which would result in condemnation
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proceeds of approximately $122,000.
(xviii) Mortgagor's Interest in the Mortgaged Property.
Loan Number Property Issue
----------- -------- -----
005374875 Crestwood Plaza The transaction was structured as an Indemnity Deed of Trust
to achieve recording tax savings in Maryland. The borrower
does not hold title to the Mortgaged Property. Fee title is
held by an affiliate entity that is granting a first lien on
the Mortgaged Property.
(xxiii) No Material Encroachments.
Loan Number Property Issue
----------- -------- -----
930843594 Home-Kim Industrial Building The Mortgaged Property does not have the number of parking
spaces required under local zoning ordinances and is not
legally non-conforming. The Mortgaged Property includes
sufficient additional area to comply and the Mortgagor has
reserved $41,250 with the Mortgagee as security until
Mortgagor delivers evidence of compliance. The work must be
completed within 90 days of closing.
(xliv) Single Purpose Entity.
Loan Number Property Issue
----------- -------- -----
934402675 Alma-Elliot Square Mortgagor is comprised of 4 special purpose entity limited
Shopping Center liability companies, holding their interests as tenants in
common. The managers of the Mortgagor are natural persons
and the limited liability companies are permitted to reorganize
and consolidate into a single entity with combined ownership
interests.
913245416 Atrium Center SPE provisions were waived in the Mortgage Loan documents.
</TABLE>
C-1-2
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EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF THE SELLER
Certificate of Officer of Goldman Sachs Mortgage Company ("Seller")
I, , a of the Seller, hereby certify as follows:
The Seller is limited partnership duly organized and validly existing under
the laws of the State of New York.
Attached hereto as Exhibit I are true and correct copies of the
organizational documents of the Seller, which organizational documents are on
the date hereof, and have been at all times in full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation or
dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and qualified
officer or authorized signatory of the Seller and his genuine signature is set
forth opposite his name:
NAME OFFICE SIGNATURE
-------------------- --------------------------- -----------------------------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of August 8, 2000 (the
"Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Seller of the Mortgage Loans, was, at the respective
times of such signing and delivery, duly authorized or appointed to execute such
documents in such capacity, and the signatures of such persons or facsimiles
thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
D-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
August ____, 2000.
By:
----------------------------------
Name:
Title:
I, ______________________________, ____________________________, hereby
certify that _______________________ is a duly elected or appointed, as the case
may be, qualified and acting ____________________ of the Seller and that the
signature appearing above is his or her genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
August ___, 2000.
By:
----------------------------------
Name:
Title:
<PAGE>
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
Certificate of Goldman Sachs Mortgage Company
In connection with the execution and delivery by Goldman Sachs Mortgage
Company (the "Seller") of, and the consummation of the transaction contemplated
by, that certain Mortgage Loan Purchase Agreement, dated as of August 8, 2000
(the "Purchase Agreement"), between GMAC Commercial Mortgage Securities, Inc.
and the Seller, the Seller hereby certifies that (i) the representations and
warranties of the Seller in the Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, and (ii) the Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the date hereof. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.
Certified thisday of August 2000.
GOLDMAN SACHS MORTGAGE COMPANY
By:
----------------------------------
Name:
Title:
D-2-1
